Dabur India Ltd. v. Alka Ayurvedic Pvt. Ltd.
2015 (61) PTC 304 (Del)
Plaintiff filed a suit for infringement of trade mark and passing off against the Defendant in respect of the mark ‘PACHMOLA’. Plaintiff was the registered proprietor of the mark ‘HAJMOLA’.
An ex-parte injunction was granted in favour of the Plaintiff. Later, the same was vacated on the ground that the Plaintiff did not disclose to the Court that the Defendant was a registered proprietor of the mark ‘PACHMOLA’.
The Defendant had raised the factum of such registration in his written statement. However, the same was merely denied by the Plaintiff in his replication on the ground of not having any knowledge towards the same.
The contention of the Defendant was that the Plaintiff knew about the trade mark of the Defendant as the same was cited in the trade mark search report in another case.
To clarify it’s stand the Plaintiff sought amended of it’s replication. The Plaintiff moved an application under Order VI Rule 17 to amend it’s replication. The Plaintiff clarified it’s stand to the extent that the trade mark search report did not show Defendant as registered proprietor but somebody else and therefore the Plaintiff could not have been aware of Defendant’s registration.
Defendant’s objection to application:
Replication is not a pleading and Order VI Rule 17 does not apply to it.
The application is delayed. The amendment is after initiation of trial as issues have been settled and evidence by way of affidavit has been filed.
• In some cases, where replication is permitted to be filed, to controvert the written statement, the same would be a part of the pleading.
• Affidavit of witnesses are sill to be tendered.
• The amendment sought are merely clarificatory and not far-fetched explanations.
The application for amendment was allowed with cost and liberty to Defendant to file a sur-rejoinder.