Judgment :- BHASKARAN, J. Application praying. This Hon'ble court be pleased to amend the plaint by re-instating the prayer regarding passing off the Defendant's goods as and for the goods of the plaintiff by use of the Trade Mark 'Coromandel Cements' or any other mark deceptively similar thereto in page 70 page 31 after (a) and other clauses be numbered C to 1. This application coming on for hearing the court made the following order :- This is an application by the plaintiff in the suit to amend the plaint. The plaintiff filed the suit for a permanent injunction restraining the defendant, its Directors, Servants, Agents, Distributors or representatives from using the trading named styled Coromandel Cements Limited or any other trading style which is deceptively similar to the plaintiff's trade mark Coromandel Cement, from infringing the plaintiff's trade mark Coromandel cement or any other mark deceptively similar thereto in the like products or in any other manner whosoever and also for a permanent injunction restraining the defendant from entering the capital market and making public issue under the trading style Cormandel Cement Limited or any other trading style similar thereto and for other reliefs. The further averments in support of the application is that the plaintiff also intended to seek the relief of passing off the defendant's goods as and for the goods of the plaintiff by the use of the trading style-trading mark "Coromandel Cement", or in any manner whatsoever, as per paragraph No. 23 in the plaint. The relief (b) regarding "passing off" was deleted, as an objection was raised by the office at the time of registration of the suit. Therefore, the application is filed to amend the plaint by reinstating the prayer regarding "passing off" of the defendant's goods as and for the goods of the plaintiff by use of trade mark "Coromandel Cement" or anyother mark deceptively similar thereto. By this amendment, there is no change of cause of action and the defendant will not therefore be prejudiced. The defendant filed a counter opposing the amendment to the plaint. The plaintiff has voluntarily deleted the prayer regarding passing off the goods. Passing off the goods as the goods of plaintiff implies that the defendant has manufactured the cement and is passing off the goods as that of the plaintiff, but, actually, the defendant has not started producing the cement. The plaintiff has voluntarily deleted the prayer regarding passing off the goods. Passing off the goods as the goods of plaintiff implies that the defendant has manufactured the cement and is passing off the goods as that of the plaintiff, but, actually, the defendant has not started producing the cement. Therefore, the factual foundation for the charge of passing off the goods by the defendant does not exist. Further, the plaintiff obtained leave to use originally with the relief of passing off. But at the time of registration of the suit, the relief of passing off was given up. Therefore if relief of passing off is to be introduced, it has to go through the process of obtaining leave once again. Further, as the plaintiff has voluntarily given up a part of the cause of action, no fresh suit can be filed on the portion of cause of action given up. Therefore, the application is liable to be dismissed. Learned counsel for the plaintiff submitted that in the plaint sufficient averments have been made to seek the relief of passing off, and because some technical objection was raised by the office at the time of registration of the suit, he has deleted the relief of "passing off". Further, it was not the intention of the plaintiff to give up the said prayer altogether and in an anxiety to have the suit numbered it is omitted by inadvertance. No harm will be caused to the defendant by incorporating the relief of passing off in the plaint and the defendant will not be put to any disadvantage. On behalf of the defendant it is contended that Order 2 Rule 2, Code of Civil Procedure is a bar to the plaintiff to amend the plaint by incorporating this additional relief, since it has already given it up. Admittedly, the defendant has not started producing cement and only if the defendant had produced cement, therefore will be a case for the defendant passing off the goods as that of the plaintiff and, therefore, no cause of action has arisen as regards the relief of passing off and if such a relief were to be incorporated under Order 7 Rule 11(a) the suit is liable to be rejected. He also refereed to Section 27 of the Trade and Merchandise Marks Act, 1958. He also refereed to Section 27 of the Trade and Merchandise Marks Act, 1958. He reiterated that as the defendant has not started manufacturing the goods, there is no question of the plaintiff seeking the relief of passing off. Learned counsel for the plaintiff submitted that under Order 6 Rule 17, it is settled that power to allow amendment should be liberally exercised, and the amendment if allowed will cause no prejudice to the opposite party. In Mulla's Code of Civil Procedure (Fourteenth Edition-Volume II) relying on the decision reported in Clarapede & Co. v. Commercial Union Association (1883) 32 W.R. (Eng) 262 it has been held as follows ;- "It does not matter that the original omission arose from negligence or carelessness. However negligent or careless may have been the first omission, and, however late the proposed amendment the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs." * Pages 1005 to 1006. It is not disputed in this case that the plaint contains averments to include the relief of passing off in the prayer column. The objection is that the defendant has not yet started producing the goods. But it is submitted on behalf of the plaintiff that the defendant has entered the capital market by making public issue of shares under the trading style Coromandel Cement Limited, though according to the defendant it has not yet started manufacturing the products. Admittedly, it is not the case of the defendant that it is put to any irreparable loss by the proposed amendment being allowed. It is also seen from the extracted observation found in Mulla's Code of Civil Procedure that for what ever reason the plaintiff has failed to incorporate the relief originally, he should be permitted to incorporate the relief, so long as it will not cause any irreprable loss to the defendant. As regards the objection under Order 2 Rule 2 raised by the defendant it only applies to fresh suit. Under Order 2 Rule 2, where a plaintiff omits to sue in respect of , or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. As regards the objection under Order 2 Rule 2 raised by the defendant it only applies to fresh suit. Under Order 2 Rule 2, where a plaintiff omits to sue in respect of , or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. If the plaintiff does not incorporate the relief of passing off to which it is entitled, it cannot file a separate suit for the same. The very reason that there is a bar to file a fresh suit under Order 2 Rule 2, the Code of Civil Procedure, in a ground to permit the plaintiff to raise that point in the suit itself which the plaintiff has originally failed to incorporate. The further objection is that leave to sue was granted with respect to the plaint originally filed inclusive of the relief of passing off and that as at the time of registration of the suit the relief of passing off was given up, fresh leave has to be obtained if the proposed amendment were to be ordered. I do not think the learned counsel is correct in his contention. As he says leave was granted with the prayer of passing off and if the plaintiff is permitted to amend the plaint, the plaint is restored to a position when leave was granted. Therefore, the objection on this ground also is rejected. Power to amend the plaint should be liberally granted unless irreparable loss is caused to the defendant No such case is made out by the defendant. Therefore, the applications is allowed. Time to carry out the amendment two weeks from today. The defendant is granted four weeks thereafter to file the written statement. Held : That the power to amend the plaint should be liberally granted unless irreparable loss is caused to the defendant. The objection raised by the defendant under Order 2 Rule 2 only applies to fresh suit. In the circumstances, the plaintiffs' application for the amendment of the plaint to include the ground of passing off is allowed.