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2013 DIGILAW 1175 (MAD)

A. S. Murali v. K. R. Devandrier

2013-02-28

R.KARUPPIAH

body2013
ORDER : R. Karuppiah, J.— 1. Heard the learned counsel for the applicants/defendants and the respondent/plaintiff. The applicants have filed earlier two applications namely A. Nos. 4820 and 4821 of 2012 to permit them to file additional documents and to recall DW1 witness to file additional proof affidavit and additional documents. Later, the same applicants filed A. No. 756 of 2013 to permit them to file the additional written statement in the suit. 2. The suit is filed by the respondent/plaintiff against the applicants/defendants for infringement of trademark and the above said suit is in part heard stage and is posted for further evidence of defendants. In the said circumstances, the applicants/defendants have filed these three applications A. Nos. 4820 & 4821 of 2012 and A. No. 756 of 2013 to receive the additional documents, to recall DW1 witness and to mark the above said documents and also to receive additional written statement. In the said applications, it is stated that earlier the jewellery business was joint family business and they had started their business under the name and style of 'New Jewellery' in the name of defendants' brother one S. Kumar. It is also stated that initially the 2nd applicant/2nd defendant run the business under the name and style as "Vino Jewellery" and he used the name of 'New Jewellery' with the mark of "NEW" as his business symbol. The first applicant/first defendant is running the business under the name of "Sarojini Jewellery" business using "SARO" on the top of the symbol. As the defendants are using their trade mark as stated above, the question of infringement does not arise at all and to prove the same, the applicants seeking permission to file additional written statement, to receive additional documents and to recall DW1 witness to file additional proof affidavit. 3. The respondents have filed common counter in A. Nos. 4820 and 4821 of 2012 and separate counter in A. No. 756 of 2013. In both the counters, the respondent/plaintiff mainly contended that the same applicants/defendants have already filed A. No. 1632 of 2012 seeking permission to file additional documents. In the interest of justice, the respondent/plaintiff did not object the same. Therefore, the said application was ordered on 29.03.2012. 4820 and 4821 of 2012 and separate counter in A. No. 756 of 2013. In both the counters, the respondent/plaintiff mainly contended that the same applicants/defendants have already filed A. No. 1632 of 2012 seeking permission to file additional documents. In the interest of justice, the respondent/plaintiff did not object the same. Therefore, the said application was ordered on 29.03.2012. Since, the applicants/defendants are well aware that they have no case on merits, they have filed the present applications without assigning any reason as to why these documents were not filed at the earliest point of time, atleast when the earlier application was filed. It is further stated that a perusal of the contention raised in the additional written statement reveals that the applicants have pleaded new facts, which were not pleaded in the original written statement. Therefore, the above said applications to receive additional written statement cannot be allowed. If the additional written statement is not received, no question of receiving additional documents and recall witness will arise and therefore prayed for dismissing of the applications. 4. Heard the learned counsel appearing for both sides. 5. The learned counsel for the respondent/plaintiff contended that originally, the written statement was filed as early as on February 2010 and no explanation was given in the instant application as to why the said allegation sought for herein was not raised in the original written statement itself. It is further contended that if the application for receiving additional written statement is allowed, it is inconsistent with and at variance with the original written statement and completely changing the nature of the suit. The said allegation does not find place even in the proof affidavit of the defendants and in the subsequent oral evidence. The averments made in the additional written statement is an afterthought and concocted to fill up the lacuna in the defendants' case. Therefore, learned counsel for the respondent strongly objected for allowing this applications. 6. It is further contended that if these applications are allowed, the same would cause unwarranted delay and hardship to the respondent and also completely change the nature of the suit. It is further contended that other pleadings raised in the additional written statement are repetitions of those allegations in the original written statement. 6. It is further contended that if these applications are allowed, the same would cause unwarranted delay and hardship to the respondent and also completely change the nature of the suit. It is further contended that other pleadings raised in the additional written statement are repetitions of those allegations in the original written statement. Therefore, the additional written statement cannot be received at this stage and the question of receiving the additional documents and to recall DW1 witness does not arise. Hence the learned counsel prayed for dismissal of all the applications. 7. Admittedly, the suit was filed in the year 2009 and written statement was filed on 22.02.2010 and the issues were framed on 15.12.2010. The oral evidence on the plaintiff side was closed and after examining one witness, the defendants' side witness was also closed. Therefore, as rightly contended by the learned counsel for the plaintiff, after closing the entire evidence, these applications are filed by the defendants/applicants. It is pertinent to note that as already stated by the defendants, another application filed by the defendants to receive the additional documents in A. No. 1632 of 2012, was ordered on 29.03.2012, since the respondent has no objection in the said application. 8. On the side of the applicants, no reason has been stated as to why these averments were not made in the original written statement and also not stated any reason as to why these documents were not filed along with the written statement or at the time of filing earlier application to receive the documents. As rightly contended by the learned counsel for the respondent, in the additional written statement new plea was raised which is contrary to the original written statement (i.e.) in the additional written statement, it is averred that the jewellery business is defendants' joint family business and the defendants started their business under the name and style of 'New Jewellery' in the name of our brother S. Kumar. Initially the 2nd defendant runs the business under the name and style of Vino Jewellery and used the name of my business under the name of New Jewellery with the mark of NEW as business symbols. The first defendant in the suit is running the business under the name and style of Sarojoni Jewellery business using SARO on the top of the symbol. This facts are not stated in the said original written statement. The first defendant in the suit is running the business under the name and style of Sarojoni Jewellery business using SARO on the top of the symbol. This facts are not stated in the said original written statement. Therefore, these averments are new plea and the applicants are trying to introduce new plea by way of additional written statement. Therefore, as rightly contended by the learned counsel for the respondent, these applications to receive the additional written statement cannot be entertained. 9. The learned counsel for the respondent/plaintiff relied on the judgement reported in 2000-1-LW-420 in H. Ramachandra Rao v. A. Mohideen, wherein, in para 8, it is held as follows: 8. Petitioner cannot contend or insist that Court must receive additional pleadings as of right. Permission has to be obtained under Order 8 Rule 9 of Code of Civil Procedure. Under what circumstances leave is to be exercised depend on the facts and circumstances of each case. In all such cases party who seeks leave has to explain as to why this contention was not raised in the earlier pleadings. While exercising discretion, the Court will consider the conduct of the party, stage of the litigation delay that has occasioned, how far the opposite party will be put to hardship etc. As discussed above, in the instant case also, the applicants/defendants have not explained as to why the contention was not raised in the earliest stage. Considering the conduct of the party and stage of the litigation viz., at argument stage, these applications are filed only to drag on the proceedings, which cannot be allowed, as laid down in the above said decision. 10. On the side the applicants/defendants, in support of his contention, relied on two decisions reported in (i) Subramanian and three others Vs. Jayaraman, (1999) 3 CTC 52 , wherein, in para 12, it is held as follows: 12......In the present case, moreover, the seriously objected portion of the additional written statement being the plea of res judicata and estoppel, both of which are quite legal, it is not reasonable to deny the petitioners from resorting to such legal questions, for the defendants in their considered opinion, however at a later stage, after filing of the written statement strongly feel that they could have recourse to such legal aspects. At the best, in the above circumstances, what the lower court could have done is that it could have allowed the application of the petitioners/defendants on such terms as contemplated by the Rule since certain amount of hardship and inconvenience have been caused to the respondent/plaintiff. And another decision reported in (ii) 2007 (3) CTC 554 in S. Suresh v. Sivabalakannan and others, wherein, in para 19, it is held as follows: 19. Reading of the additional statement makes it very clear that the revision petitioner only wants to explain the case further by subsequent pleadings and the subsequent pleadings are in fact in consonance with his earlier pleading. It cannot be said that be raised a mutually destructive plea nor it can be said that altogether a new case was put forward by him in the subsequent pleadings. On careful reading of the above said decisions would reveal that the first decision was in respect of seeking permission to file additional written statement regarding legal pleas i.e., res judicata and estoppel and in the second decision also, it is clearly proved that the subsequent pleadings were in consonance with the earlier pleading and not a new case was put forward by him in the subsequent pleadings. But in the instant case, the applicant/defendant trying to put forward a new case by way of additional written statement and on that ground sought for permission to receive additional documents and to recall DW1 for further evidence. 11. Therefore, the facts of the decisions relied on by the applicants/defendants are not applicable to the facts of the present case. The said decisions are not helpful to them. 12. For the above said discussions, this court is of the view that all the three applications are liable to be dismissed. In the result, all the applications are dismissed accordingly.