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March 7, 2020

Plaint can be amended to include a new fact which fundamentally impacts the relief

Author: Siddharth Varshney

In the matter of Sony Kabushiki Kaisha v Mahaluxmi Textile Mills [CO No. 3008 of 2011], the Calcutta High Court (Hiranmay Bhattacharyya, J.), vide its judgment dated February 27, 2020, allowed the Plaintiff’s application for amendment of plaint, holding that the fact sought to be included by amendment had a fundamental bearing on the relief claimed in the plaint.

The instant dispute arose on account of the Respondent’s alleged use of the Petitioner’s mark SONY in respect of hosiery products. At the time of filing the suit for permanent injunction restraining the Defendant from using the mark SONY, the Petitioner only claimed passing off, as its trademark application in respect of apparel had not yet been granted by the Registry. Upon attaining registration, the Petitioner filed an application for amendment of plaint to include this fact as well as the cause of action of infringement. The Trial Court rejected the Petitioner’s application on the ground that it would change the nature of the suit, as the Plaintiff was not a registered proprietor at the time of filing the suit.

The Petitioner filed the instant appeal, submitting that the amendment of plaint, if allowed, will not change the nature and character of the suit, which will remain a suit for permanent injunction. It was further submitted that the Petitioner’s registration of the mark needs to be taken on record to grant complete justice in the instant dispute.

The Respondent submitted that the Petitioner wants to incorporate a new cause of action by way of amendment which is not permissible. The Respondant further argued that the registration of the Plaintiff’s mark is not essential in an action for passing off, which is what the suit had been filed for.

The Court while allowing the amendment of plaint observed that “It is well settled that the rights of the parties are normally decided on the date of suit. However, if a fact arising after the institution of the suit has a fundamental impact on the relief which the suitor is entitled to, such events must be taken into consideration to render substantial justice to the parties.”

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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