Safari Cycles Pvt. Ltd. And Anr. vs Safari International And Anr.

Z.S. Negi, J

This petition filed by the applicant No. 2 herein is to amend the year ""1995"" in paragraph 2 of the statement of case filed by him by substituting

the year ""1985"".

The learned Counsel for the applicants submitted that the error of wrong mention of the year 1995 in paragraph 2 of the statement of case is a

mere typographical error or a clerical error in nature and no prejudice would be caused to the respondent No. 1 if the said error is allowed to be

amended. He took us through those paras of the statement of the case and the affidavit in support thereof where the year of use of the trade mark

i.e. '1985' is mentioned.

The learned Counsel for the respondent No. 1 opposed the petition on the ground that it amounts to withdrawal of written admission made by the

applicant. In support of his contention he relied on Rajinder Gopal and Ors. v. Gowarsons Publishers 2000 (53) DRJ 156, Shri Krishan Swarup

Bhatnagar v. Shri Chander Mohan Rewal Janu Laxman Kumbhar v. Pandurang Laxman Kumbhar 2001 AIHC 3577 and Heeralal v. Kalyan Mal

and Ors.

The provisions of Rule order 6 rule 17 of Order VI of the C.P.C. have been included to do justice and not to shut out justice merely on

technicality of pleading, however, by allowing amendment of pleadings a party should not be allowed to set up case or new cause of action and the

parties cannot be allowed to change completely the case made out in the pleadings and further, frivolous prayer for amendment should be

disallowed. This rule deals only with the amendment of the pleadings and is not exhaustive of all the powers of the Court in the matter of

amendment. All amendments ordinarily are required to be allowed which satisfy the two conditions, first not working injustice to the other side and

second of being necessary for the purpose of determining the real questions in controversy between the parties shall have to be allowed.

We have given our careful consideration to the arguments advanced by learned Counsel for the parties. The case laws relied by the learned

Counsel for the respondent No. 1 will be of no help to him as the fact of the cases relied on are different and are of no application to the facts of

the petition on hand. We are unable to agree with the contention of the counsel for the respondent that the amendment sought to amend the year of

user will amount to withdrawal of written admission by the applicant. In fact it amounts to straightening the written statement which is based on

fact and is supported by evidence on record. Here the amendment sought for is the year of user which is a material factor in determining as to who

is the prior user of the mark. In the entire statement of the case and along with the supporting affidavit thereof, the user year have been written as

'1985' except in paragraph 2 wherein it is written as '1995'. The petition is devoid of mala fide as the error is typographical or clerical in nature.

In view of the above, we allow the M.P. seeking amendment of para 2 of the statement of the case. However, there is no order as to costs.