Case: Emco Industries, New Delhi Vs Prem Electricals, Delhi. Trademark Tribunal

Party NameEmco Industries, New Delhi Vs Prem Electricals, Delhi
CounselFor Appellant: Mr. K.L. Aggarwal, Advocate and For Respondents: Mr. N.K. Anand and Mr. R.K. Anand, Advocates
JudgesM. R. Bhalerao, DRTM
IssueTrade Mark Act
Citation1988 (8) PTC 51 (Reg)
Judgement DateOctober 20, 1987
CourtTrademark Tribunal

Judgment:

M. R. Bhalerao, DRTM

  1. These proceedings relate to the Interlocutory Petition filed on 3rd March, 1987 by the Opponents in Opposition No. DEL-4230 to Application No. 377329, in Class 9.

  2. Hearing to consider aforesaid petition took place on 15th September, 1987.

  3. By filing the aforesaid petition, the Opponents /Petitioners pray that their Notice of Opposition may be allowed to be amended.

  4. The grounds of the aforesaid petition are found in paragraphs 2, 3 and 5 of the petition. Briefly, the ground is that the Notice of Opposition has not been drafted properly and therefore its amendment is "necessary for a fair adjudication of controversy in issue in the above opposition proceedings".

  5. The sole point which arises for consideration is whether the amendment sought to be made in the Notice of Opposition are allowable or not? The same question came before the Delhi High Court in Shri Amin Chand & Sons vs. Sohan Lal Bassan & Bros. (1977-78 IPLR P. 160). In that case, the following rule of law was accepted as correct.

    "In Tideslev v. Harper (1978) 10 Ch D. 393, it was observed that leave to amend ought not to be refused unless the court was satisfied that the party applying was acting malafide or that by his bludner had done some injury to the other side which could not be compensated by payment of costs or otherwise......................this rule has been approved by the Supreme Court in Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patel, A.I.R. 1957 SC. 363, and the learned Judges observed as follows: -

    " All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties..................amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could be compensated in costs... The ultimate test therefore still remains the same, can the amendment be allowed without injustice to the other side, or can it not".

  6. Mullah on the Code of Civil Procedure, 12th Edn. Vol. 1, p. 728, it has been stated on the basis of the various decided cases, that leave to amend pleadings should be refused-

    Where the amendment is not necessary for the purpose of determining the real questions in controversy between the parties, as where it is merely technical...

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