Arun B. Saharya ( 1 ) THESE two applications were filed by the defendant after decree was passed in suit on 9th September, 1985. In the suit, the plaint if, prayed :- (A) "for permanent injunction and order of this Hon ble Court restraining the defendants themselves, their servants, agents, stockists and all other persons on their behalf from using the offending mark SNOWCEM/showcem in respect or cement paint or any other trade mark which is an infringement of the plaintiffs registered trade mark no. 89847 in class 2. (b) For permanent injunction and order of this Hon able Court restraining the defendants themselves, their servants agents and all other persons on their behalf from infringing the plaintiffs registered "artistic copyright work nos. A 32022/81, A 32766/81, A 32768/81, A 32770/81 and A 32857/81. (c) For permanent injunction and order of this Hon ble Court restraining the defendants themselves, their servants, agents, stockists and all other persons on their behalf from using the offending trade mark SHOWCEM/snowcem and the impugned drums and bags having the infringing colour scheme, get up and design and diagonal lines in respect of cement point so as to pass off their cement paint as the cement paint of the plaintiff s manufacture. (d) For delivery upon affidavit by the defendants to the plaintiffs all the offending stationery, wrappers, shade cards, drum, bags, and other material bearing the offending trade mark SNOWCEM/showcem and the infringing get up, colour scheme and design for purposes of destruction and/or obliteration as the case may be. (e) For rendition of accounts into the profits made by the defendants since the adoption of the offending SNOWCEM/showcem and for the past three years on the sale of cement paint and decree for the amount so found due to the plaintiff. " ( 2 ) DECREE was granted to the plaintiff, as per prayer made in para 23 (a) to (e) of the plaint. For rendition of accounts a Local Commissioner was appointed by order made on 9th September, 85 with a direction "to go into the accounts of the defendant in respect of any sale of cement paint under the trade mark SNOWCEM for the last three years. Before the Local Commissioner, controversy arose between the parties with rerd to statement of accounts directed to be furnished by the defendant. Before the Local Commissioner, controversy arose between the parties with rerd to statement of accounts directed to be furnished by the defendant. ( 3 ) THE plaintiff wanted the Local Commissioner to examine books of account and record for sale of all cement paint by the defendant during three years preceding the suit on the plea that the defendant did not indicate trade mark used by him in sale vouchers, cash memos, their other accounts,and, that the entire" sale of cement paint by defendant was actually under trade mark SHOWCEM/snowcem. The defendant produced his bill book,cash book, and ledger for the period October, 81 to October 84, before the Local Commissioner on 5-4-86. Counsel for defendant had no objection to the Local Commissioner examining those books and permitting the plaintiff to take notes from portions where trade mark SHOWCEM/snowcem was mentioned. On 5th April, 86 the Local Commissoner examined some of the books and adjourned further proceedings to 17th September, 1986. Plaintiff wanted hooks produced by defendant to be kept by Local Commissioner, but the Local Commissioner directed them to be produced again at the next hearing. ( 4 ) ON 7th April, 86, counsel for parties agreed that a statement of accounts be given for three years in question, and, that "this statement should show the sales of SHOWCEM/snowcem/ cement paints. " Later, counsel for defendant said that he will "only show sales under SHOWCEM/snowcem of cement paint. " According to him, the Local Commissioner could not go beyond the order of the Court which was restricted to accounts in respect of sale of cement paint under the trade mark SNOWCEM/showcem. ( 5 ) THE Local Commissioner disagreed with the position taken by the defendant and directed him to furnish a statement of sale of SHOWCEM/ SNOWCEM cement paint. ( 6 ) THE first application, registered as IA 2819 of 86, was filed on 4. 4. 86. The defendant alleged that he neither manufactured nor sold any cement paint under the trade mark SNOWCEM/showcem. and, that he sold no cement paint under that trademark. He alleged that direction of the Local Commissioner to file statement of the entire sale of cement paint was beyond the scope of inquiry, and, that the Local Commissioner had no jurisdiction to do so. The defendant prayed that the proceedings before the Local Commissioner be stayed, and, suitable orders be passed by the Court. He alleged that direction of the Local Commissioner to file statement of the entire sale of cement paint was beyond the scope of inquiry, and, that the Local Commissioner had no jurisdiction to do so. The defendant prayed that the proceedings before the Local Commissioner be stayed, and, suitable orders be passed by the Court. On this application, further proceedings before the Local Commissioner were stayed by an order made on 2. 5. 86. ( 7 ) SECOND application, registered as IA 5315 of 86, was filed later by the defendant on 23. 9. 86. It was alleged that the defendant neither manufactured, nor sold cement paint under the trade mark SNOWCEM and that he made this position clear in his statement on 21. 585. Therefore, it was alleged that no force could be passed against the defendant in terms of prayer (e) made in suit. The defendant prayed for amendment of judgement and decree to be drawn up "in consonance with the statement made by the defendant on 21. 5. 86 and 9. 9. 85. " ( 8 ) FOR the sake of convenience both these applications were head together and are being disposed of by a common order. ( 9 ) AT the time of hearing, counsel for defendant pressed IA 5315 of 86 first. The contended that, on 21. 5. 86, the defendant merely stated that he is manufacturing cement paints without any brand and he categorically said that he was not manufacturing nor selling SNOWCEM; and, that the second statement made by him on 9,9. 85 was in continuation of the first one made on 21. 5. 83. He argued that decree in terms of prayer (e) for rendition of accounts could not be made on the basis of two statements made by defendant on 21. 5. 85 and 9. 9. 85, and, that the decree as passed is a nullity. He claimed that the order and decree should be amended to exclude prayer (e) regarding rendition of accounts by the defendant. ( 10 ) FOR a proper appreciation of the order and decree passed on 9. 9. 85,it is necessary to refer to proceedings in the suit upto that date. On an application of the plaintiff filed with the suit, an ex pane order was made on 18. 2. ( 10 ) FOR a proper appreciation of the order and decree passed on 9. 9. 85,it is necessary to refer to proceedings in the suit upto that date. On an application of the plaintiff filed with the suit, an ex pane order was made on 18. 2. 85, restraining the defendant from using trade mark SNOWCEM/ SHOWCEM in respect of cement paint till further orders, appointing a Local Commissioner to visit the premises of defendant and to make an inventory of goods with the trade marke SNOWCEM/showcem in drums, sacks, and, jars, and also to sign the account books of defendant for the last three years. The Local Commissioner visited premises of the defendant on 19th February,1985. An employee of the defendant refused to let him prepare an inventory of the goods or to produce books of account for his signatures. The Local Commissioner saw approximately 50 drums bearing trade mark SNOWCEM. Most of the drums were filled up and sealed, while some of themwere in the process of being filled up with cement paint manufactured by the defendant. After service of summons on defendant on 21. 5. 85, his counsel wanted time to file written statement in suit and reply to application for interim orders. Subhash Gupta was also present in Court that day. Court recorded his statement on oath. He said :- "i an the sole proprietor of defendant No. 1 s firm. The defendant s firm is manufacturing cement paints without any brand at their factory premises No. 3-10, DS1dc Shed, Nangloi. The defendant have not nor any of his partners own any godown in Delhi. The defendant s firm is also not manufacturing or selling the SNOWCEM. No goods with the mark of the plaintiff s SNOWCEM has been recovered from our factory by the police. " ( 11 ) LATER, defendant filed written statement contesting the suit on its merits. After pleadings of parties were complete, case was listed before the Court on 2. 9. 85 for framing issues. That day defendant was not present. Case was adjourned to 9. 9. 85 for recording his statement before framing issues. By that time, the defendant was fully aware of the case of the plaintiff and also of his own defence pleaded in his written statement. He appeared in Court on 9. 9. 9. 85 for framing issues. That day defendant was not present. Case was adjourned to 9. 9. 85 for recording his statement before framing issues. By that time, the defendant was fully aware of the case of the plaintiff and also of his own defence pleaded in his written statement. He appeared in Court on 9. 9. 85, and made the following statement : "in continuation of my statement dated 21. 5. 851 state that I have no objection if the decree in terms of paras 23 (a) to (e) is passed in favour of the plaintiff and against the defendants. " ( 12 ) IN these circumstances, argument of counsel for the defendant that the decree is inconsistent with statements made by the defendant deserves to be rejected. ( 13 ) COUNSEL for the defendant relied upon Nathu Ram Frinding Colony Co-operative House Building Society Limited v. Sardar Sohan Singh1, to contend the Court can always correct any judgement and decree to avoid injustice to any party even when the correction sought does not strictly fulfil the requirements of Section 152 Civil Procedure Code. In that case appeal against an order was dismissed as withdrawn. Thereafter maintainability of an application for certificate of fitness of the case for appeal to Supreme Court was questioned because of with drawl of the appeal. So, an application was made under Section 151, and 152, Code of Civil Procedure, praying that an correction be made in the order as the appeal of the applicant had been dismissed for reason of its not being pressed in view of a full bench decision of the Court. The Court had to consider whether counsel for applicant had earlier withdrawn the appeal or he did not press it in view of the full bench decision. At the time of hearing of the application, the learned Judge was unable to recollect the statement made by learned counsel for applicant at the time of admission of the appeal and preferred to accept the word of the senior advocate on the subject. To avoid rejuction to right of appeal of the party, court exercised inherent power to correct the earlier order of dismissal of appeal on the ground that it was not pressed in view of full bench decision instead of dismissal of the appeal as withdrawn. To avoid rejuction to right of appeal of the party, court exercised inherent power to correct the earlier order of dismissal of appeal on the ground that it was not pressed in view of full bench decision instead of dismissal of the appeal as withdrawn. ( 14 ) LEARNED counsel for defendant relied upon the following portion of the judgement :- "section 152 empowers the Court to correct any clerical or arithmetical mistake in judgements, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. The power of correction under this Section thus is left to the discretion of the Court to be exercised in view of the peculiar facts of each case and even where the correction sought to be made does not strictly fall within the ambit of section 152, Code of Civil Procedures the Court inherent power to amend its orders. No doubt as a general rule a judgement, decree on final order, once drawn up and signed cannot be subsequently altered, varied, or amended in any manner even with the consent of the parties except on review or under Section 15z yet no mistake, omission or slip can be allowed to perpetuate an unwarranted or misconceived injustice. If inadvertently an order is recorded conveying one meaning whereas the order that should have been recorded was to be different it can always tre corrected under Section 152 Civil Procedure Code (See AIR 1915 Allahabad 322 and AIR 1938 Madras 573 ). " ( 15 ) IN the instants case no injustice has been caused to the defendant. The court consciously passed the order and decree on 9. 9. 85. Circumstances of the case clearly show that there was neither inadvertence, nor any mistake in meaning that order and decree. ( 16 ) APPLICATION of defendant for amendment of order and decree passed on 9. 9. 85 is misconceived and has to be dismissed. ( 17 ) ON the application regarding accounts, learned counsel for defendant ontended that the decree-holder has to prove that the judgement-debtor has mane profits and also the extent thereof. According to him, onus of prooflies on the decree-holder. Further, he contended that order made by court on 9. 9. 9. 85 is misconceived and has to be dismissed. ( 17 ) ON the application regarding accounts, learned counsel for defendant ontended that the decree-holder has to prove that the judgement-debtor has mane profits and also the extent thereof. According to him, onus of prooflies on the decree-holder. Further, he contended that order made by court on 9. 9. 85 restricted the scope of accounts to be taken by the Local Commissioner to sale of cement paints under trade mark SNOWCEM/showcem, and the Local Commissioner had no jurisdiction to go into accounts of any other cement paints sold by defendant. ( 18 ) THE argument advanced by learned counsel for the defendant is wholly unjustified. Profits made by the defendant are within his special knowledge and the burden of proving that profits made by him were unrelatable to use of the infringing trade mark lies on the defendant. ( 19 ) THE defendant has tried to avade liability by trying, to show from the face of some of his account books that the sales made by him are unrelatable to the trade mark SHOWCEM/snowcem. According to plaintiff, the invoices, vouchers or entries inbooks of account maintained by defendant may be indicating only sale of cement paint, yet it can be demonstrated from other records, like customers orders, and other correspondence exchanged between the defendant and others, that the defendant used trade mark SHOWCEM/snowcem for sale of cement paint manufactured by him. Indeed this possiblity cannot be ruled out. Whether the defendant used the infringing trade mark for purpose of a particular transaction or not,will depend upon the kind of evidence that is produced by the parties before the Local Commissioner. After the defendant has produced all account books or other records for the relevant period, it will be open to the plaintiff to show that customers placed orders on the defendant for supply of SNOWCEM or that the defendant used the infringing trade mark SNOWCEM/showcem for goods supplied by him inspite of some of the vouchers, books etc. not describing the goods as SNOWCEM/showcem but as cement paints only. On the other hand, it will be open to the defendant to show that he used some other trade mark on the he did not use the infringing trade mark for sale of his goods. Decision on these matters has to be left to the Local Commissioner. not describing the goods as SNOWCEM/showcem but as cement paints only. On the other hand, it will be open to the defendant to show that he used some other trade mark on the he did not use the infringing trade mark for sale of his goods. Decision on these matters has to be left to the Local Commissioner. ( 20 ) IN the aforesaid circumstances, I see nothing wrong with the direction of the Local Commissioner requiring the defendant to produce all his account for the period in question. ( 21 ) AT the time of hearing, learned counsel for the plaintiff fairly conceded that the plaintiff will be entitled to payment only to the extent of profit made by the defendant by use of the infringing trade mark and not otherwise. Of course, the question of fact whether any transaction (s) made by the defendant can be connected with use of the infringing trade mark will have to be decided by the Local Commissioner on the basis of evidence that may be produced before the Local Commissioner. ( 22 ) THEREFORE, application of the defendant, for stay of proceedings before the Local Commissioner and for directions to be given regarding accounts to be produced by the defendant, is without merit and has to be dismissed. Orders made on 2,5. 86 and 27. 5. 86 regarding stay of proceedings before the Local Commissioner are hereby vacated. ( 23 ) BOTH the applications filled by the defendant are, therefore, dismissed with costs. Counsel s fee Rs. 2000. 00