Delhi High Court
Loreal Sa vs Vekariya Nikunj Arvindbhai & Ors on 13 July, 2026
Author: Jyoti Singh
Bench: Jyoti Singh
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 13th July, 2026
+ CM(M)-IPD 21/2026 & CMs 91/2026, 92/2026
LOREAL SA .....Petitioner
Through: Mr. Pankaj Kumar, Advocate.
versus
VEKARIYA NIKUNJ ARVINDBHAI & ORS. .....Respondents
Through: Mr. Parth Thummar and Mr. Nishant
Verma, Advocates for R-2 to 5.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J. (ORAL)
1. This petition is filed on behalf of the Petitioner under Article 227 of
the Constitution of India for setting aside the impugned order dated
10.02.2026 passed by the learned District Judge-05, Saket District Court in
Suit bearing No. CS(COMM) 171/2024.
2. To the extent relevant, case of the Petitioner is that it adopted and
commenced use of the mark GARNIER BRIGHT COMPLETE
(device) and trade dress in September, 2020 in relation to
various facial and skincare products and allied cosmetic products. By virtue
of continuous use and promotion of the products under the said trademark/
trade dress, Petitioner has acquired substantial goodwill and reputation.
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Respondents are engaged in manufacture, marketing and sale of cosmetic
and skincare products identical to those of the Petitioner and adopted the
words/device marks GARUDA BRIGHT COMPLETE 30x and 6 DROPS
BRIGHT COMPLETE 3x and VITAMIN C, similar to Petitioner’s mark
GARNIER BRIGHT COMPLETE and since this was causing confusion
amongst consumers, Petitioner filed CS(COMM) 171/2024, seeking
permanent injunction against the Respondents claiming passing off, dilution
etc. before the Trial Court in which an ex parte ad interim injunction was
granted on 16.05.2024.
3. It is stated that during the pendency of the suit, Petitioner had applied
for trademark registration under application no. 6405978 in Class 03 on
26.04.2024 claiming user from 04.09.2020 and on 20.04.2025, registration
was granted. Basis this registration, Petitioner filed an application under
Order VI Rule 17 CPC on 01.07.2025 seeking to amend the plaint to
incorporate the factum of registration and relief of infringement. Vide order
dated 10.02.2026, the Trial Court dismissed the application on the ground
that Petitioner had made no averment in the plaint regarding the existence or
pendency of any application for registration and the suit as originally framed
was predicated on the common law remedy of passing off. It was observed
that subsequent registration of the device mark and trade dress had given
rise to new and fresh cause of action for infringement with different
parameters from passing off and hence, amendment could not be allowed.
4. Learned counsel for the Petitioner submits that the impugned order is
legally unsustainable and Trial Court has misapplied the legal principles
governing amendments under Order VI Rule 17 CPC. It is settled that
amendment should be ordinarily allowed where it is necessary for
determining the real controversy between the parties. Trial Court failed to
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appreciate that the amendment was necessitated owing to registration of the
trademark GARNIER BRIGHT COMPLETE during the pendency of the
suit, which gave right to the Petitioner to sue the Defendant for infringement
and therefore, instead of filing a separate suit, an application for amendment
was filed as the facts/products/marks are the same for an action for passing
off. Dismissal of the application will lead to multifarious proceedings with
regard to the same products and marks and unnecessary increase the
litigation between the parties.
5. Learned counsel appearing for Respondents No. 2 to 5 opposes the
petition on the ground that there is no infirmity in the order and it is rightly
held by the Trial Court that in the original plaint there is not even a whisper
that Petitioner had applied for the registration of the trademark GARNIER
BRIGHT COMPLETE and it was only pleaded that Petitioner was the prior
user of the mark and suit was filed for passing off. The opposition by
Respondents No. 2 to 5 is contested by counsel for the Petitioner on the
ground that they did not appear before the Trial Court despite service and
have been set ex parte and have no right to oppose this petition before this
Court.
6. Heard learned counsels for the parties and examined their rival
submissions.
7. From the narrative of the facts in this petition and from copy of the
plaint dated 04.04.2024 filed with the petition, it emerges that the Petitioner
filed a suit before the Trial Court seeking permanent injunction against the
Respondents inter alia alleging passing off, dilution etc. When the suit was
filed, the trademark GARNIER BRIGHT COMPLETE was not registered
and hence, there was no claim for infringement in the suit. During the
pendency of the suit, Petitioner applied for registration of the mark
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GARNIER BRIGHT COMPLETE on 26.04.2024 in Class 03 and
registration was granted on 20.04.2025 leading to filing of the amendment
application immediately thereafter, wherein Petitioner sought incorporation
of the factum of registration and consequential infringement of the mark as
also amendment in the relief clause. Learned Trial Court dismissed the
application on 10.02.2026 on the ground that existence of application for
registration was not pleaded in the original plaint and thus gave rise to a new
and fresh cause of action and shall not ipso facto merge with the already
existing cause of action since considerations for an action for passing off
and infringement of a trademark are different and hence, allowing the
amendment would change the nature of the suit and introduce a new cause
of action. Added reason for dismissal of the application is that Plaintiff’s
evidence stands concluded and allowing the application will turn the clock
back.
8. The controversy in the present petition is in a narrow compass.
Petitioner seeks amendment of the plaint to include the factum of
registration of its trademark and seek additional relief of infringement basis
the registration, granted during the pendency of the suit filed inter alia for
passing off and therefore, the only question is whether Petitioner was
entitled to amendment of the plaint in light of the subsequent development.
In my view, learned Trial Court has erred in dismissing the application for
amendment. It is trite that if the amendment is necessary for deciding the
real controversy between the parties to arrive at a just decision, the same can
be allowed at any stage. The power to allow amendment is wide and often,
Courts have allowed amendments to bring on record facts, grounds and
reliefs based on events that occur during the pendency of the suit provided
the basic complexion and nature of the original suit does not drastically
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change. In Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others,
(2006) 4 SCC 385, the Supreme Court held as follows:-
“15. The object of the rule is that the courts should try the merits of the
case that come before them and should, consequently, allow all
amendments that may be necessary for determining the real question in
controversy between the parties provided it does not cause injustice or
prejudice to the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the first part is
discretionary (may) and leaves it to the court to order amendment of
pleading. The second part is imperative (shall) and enjoins the court to
allow all amendments which are necessary for the purpose of determining
the real question in controversy between the parties.
17. In our view, since the cause of action arose during the pendency of the
suit, proposed amendment ought to have been granted because the basic
structure of the suit has not changed and that there was merely change in
the nature of relief claimed. We fail to understand if it is permissible for
the appellants to file an independent suit, why the same relief which could
be prayed for in the new suit cannot be permitted to be incorporated in the
pending suit.
18. As discussed above, the real controversy test is the basic or cardinal
test and it is the primary duty of the court to decide whether such an
amendment is necessary to decide the real dispute between the parties. If it
is, the amendment will be allowed; if it is not, the amendment will be
refused. On the contrary, the learned Judges of the High Court without
deciding whether such an amendment is necessary have expressed certain
opinions and entered into a discussion on merits of the amendment. In
cases like this, the court should also take notice of subsequent events in
order to shorten the litigation, to preserve and safeguard the rights of both
parties and to subserve the ends of justice. It is settled by a catena of
decisions of this Court that the rule of amendment is essentially a rule of
justice, equity and good conscience and the power of amendment should
be exercised in the larger interest of doing full and complete justice to the
parties before the court.”
9. This very issue came up in the context of a passing off suit before a
Coordinate Bench of this Court in Pravesh Narula Trading as M/s. Capital
Enterprises v. Raj Kumar Jain Trading as M/s. Bholaram Puranmall and
Another, 2024 SCC OnLine Del 7537 and relying on the judgment of the
Division Bench of this Court in Usha International and Another v. Usha
Television Limited, 2002 SCC OnLine Del 306, Court held that the Plaintiff
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could not be denied the opportunity to amend the plaint to incorporate an
additional relief relating to infringement, post-registration of the trademark,
inasmuch as cause of action and parameters for passing off action are based
on same set of facts. After registration, in any event, the Plaintiff will be
entitled to file a suit for infringement and therefore, in the interest of justice
and for a complete and effective adjudication of the disputes in the case, it
was imperative that amendment was allowed and multiplicity of proceedings
was avoided.
10. The Court also held that since the infringement was based on similar
and identical facts as the case of passing off, a liberal view should be taken
allowing amendment of the pleading to incorporate the subsequent event as
also that power of the Court to allow amendments even after commencement
of the trial, was not restricted. It was also observed that Courts should not
adopt a hyper technical approach and must not refuse bona fide, legitimate,
honest and necessary amendments. Relevant passages from the judgment are
as follows:-
“7. Holding that the supervening event of registration of trademark is a
fact, which can be taken note of and on that basis the application for
amendment deserves to be allowed, a Division Bench of this Court in the
case of Usha International v. Usha Television Ltd.1, has held as follows:
“xxx xxx xxx
7. The Court further observed that “it is well settled that the main
considerations to be borne in mind in exercising the discretion are
that the rules of procedure have no other aim than to facilitate the
task of administering justice, that multiplicity of suits should be
avoided and that the interest of substantial justice should be
advanced.”
8. Mr. Pravin Anand, the learned counsel for the appellants, also
placed reliance on the judgment of the Madras High Court in A.
Abdul Karim Sahib v. A. Shanmugha Mudaliar (1967 Mad LJ 468).
The Court observed that “the statute law relating to infringement of
trade mark is based on the same fundamental principles as the
general law relating to passing off Though there may be some
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procedural differences between the two actions, in substance and in
effect an action for passing off can easily be telescoped into an
action for infringement of trade mark and vice versa. Hence a suit
instituted for an injunction restraining the defendant from
marketing certain goods under a mark which is deceptively similar
to the plaintiff’s mark can be amended into one for infringement of
trademark under the Trade and Merchandise Marks Act, 1958 if the
plaintiff has obtained registration of his mark under the Act after
the institution of the suit. Such an amendment will not change the
cause of action and would only be in the nature of an alternative
relief. In this judgment the Court also observed that by allowing the
amendment multiplicity of suits are also avoided.
9. The Full Bench of the Madras High Court in Subramaniam v.
Sundaram, (1963) 1 Mad LJ 113 considered the propriety of a Court
taking note of subsequent events. It is no doubt true that a suit has to
be decided on the facts and circumstances existing on the date of its
institution, but circumstances do warrant a Court taking into
consideration supervening events as well provided the justice of the
case requires. The Full Bench observed that “the discretion of the
Court, under its inherent powers, to adjust the parties on the basis of
events happening after the starting of the action, is well recognised
and accepted as a rule of justice, equity and good conscience. In
some case, it is almost the duty of the Court to advert to the
subsequent events brought to its notice lest it should fail to do
substantial justice between the parties.” The Full Bench considered
the propriety of a Court taking note of subsequent events. It is no
doubt true that a suit has to be decided on the facts and
circumstances existing on the date of its institution, but
circumstances do warrant a Court taking into consideration
supervening events as well provided the justice of the case requires.
10. In another case Lydia Margaret Santhanam v. David Thamburaj,
(1966) 1 Mad LJ 408 the Madras High Court held that “the test for
allowing applications for amendment of plaints would be, not merely
whether a new cause of action is introduced but whether, if it is
allowed, thereby the defence would in any way be prejudiced, either
by deprivation of the plea of limitation or any other plea… A new
cause of action can well be allowed to be taken by way of an
amendment provided it is an alternative plea.”
11. In Nichhalbhai v. Jaswantlal, AIR 1966 SC 997 their Lordships of
the Supreme Court observed that “if the amendment is refused the
plaintiff may have to bring another suit and the object of the rule for
allowing amendments to the plaint is to avoid multiplicity of suits.”
12. We passed over the matter and waited for the counsel for the
respondent, but none appeared for the respondent.
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13. We have heard the learned counsel for the appellants and
carefully perused the judgments cited at the Bar. In our opinion, the
law relating to infringement and passing off are fundamentally
similar. The supervening event of registration of trademark under
the Trade and Merchandise Marks Act, 1958 is a fact which can be
taken note of and on that basis the application for amendment
deserves to be allowed.
14. The rule of amendment of pleadings has to be governed on the
basic rule of justice, equity and good conscience. When this
principle is applied, the amendment as prayed has to be allowed. We
are satisfied that the alternative plea that is sought to be raised by
the appellant in the amendment application is only by way of
expatiating his rights which he has secured by a statute. Apart from
this, the main consideration for allowing the application is to avoid
multiplicity of proceedings which means saving of precious judicial
time and saving of avoidable expenses for the litigants.
xxx xxx xxx”
(Emphasis Supplied)
8. It is a settled proposition that if an amendment is necessary for deciding
the real controversy between the parties and for arriving at a just
conclusion, such amendment can be allowed even at a later stage. The
power to allow amendment is wide and can be exercised at any stage of the
proceedings. It has been laid time and again that in cases where cause of
action arose during the pendency of a suit, amendments ought to be
allowed, as the same did not change the basic structure of the suit, and
merely changed the nature of the relief claimed. It is necessary for the
Courts to take notice of subsequent events in order to shorten the litigation
and to serve the ends of justice……
9. There is no bar to allowing an amendment even after commencement of
the trial, if it is shown that in spite of due diligence, such amendment could
not have been sought earlier. In the present case, the plaintiff intends to
incorporate an additional relief relating to infringement, post registration of
the trademark. It is to be noted that the cause of action for infringement and
passing off actions, are based on same set of facts. After registration of its
mark, the plaintiff would be entitled to maintain a suit for infringement.
Therefore, for a complete and effective adjudication of the disputes involved
in the case, it is imperative that amendment is allowed, to avoid multiplicity
of proceedings.
10. Holding that a Court may allow either party to amend the pleadings, if it
is established that the proposed amendment is necessary for determining the
real question in controversy between the parties, even if the prayer for
amendment was a belated one, Supreme Court in the case of State of
Madhya Pradesh v. Union of India, has held as follows:
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“xxx xxx xxx
7. The above provision deals with amendment of pleadings. By
Amendment Act 46 of 1999, this provision was deleted. It has again
been restored by Amendment Act 22 of 2002 but with an added
proviso to prevent application for amendment being allowed after
the trial has commenced, unless the court comes to the conclusion
that in spite of due diligence, the party could not have raised the
matter before the commencement of trial. The proviso, to some
extent, curtails absolute discretion to allow amendment at any stage.
Now, if application is filed after commencement of trial, it must be
shown that in spite of due diligence, such amendment could not
have been sought earlier.
8. The purpose and object of Order 6 Rule 17 of the Code is to allow
either party to alter or amend his pleadings in such manner and on
such terms as may be just. Amendment cannot be claimed as a
matter of right and under all circumstances, but the courts while
deciding such prayers should not adopt a hypertechnical approach.
Liberal approach should be the general rule, particularly in cases
where the other side can be compensated with costs. Normally,
amendments are allowed in the pleadings to avoid multiplicity of
litigations.
xxx xxx xxx
10. This Court, while considering Order 6 Rule 17 of the Code, in
several judgments has laid down the principles to be applicable in the
case of amendment of plaint which are as follows:
(i) Surender Kumar Sharma v. Makhan Singh [(2009) 10 SCC
626 : (2009) 4 SCC (Civ) 294], at para 5 : (SCC p. 627)
“5. As noted hereinearlier, the prayer for amendment was
refused by the High Court on two grounds. So far as the first
ground is concerned i.e. the prayer for amendment was a
belated one, we are of the view that even if it was belated, then
also, the question that needs to be decided is to see whether by
allowing the amendment, the real controversy between the
parties may be resolved. It is well settled that under Order 6
Rule 17 of the Code of Civil Procedure, wide powers and
unfettered discretion have been conferred on the court to allow
amendment of the pleadings to a party in such a manner and
on such terms as it appears to the court just and proper. Even
if, such an application for amendment of the plaint was filed
belatedly, such belated amendment cannot be refused if it is
found that for deciding the real controversy between the
parties, it can be allowed on payment of costs. Therefore, inSignature Not Verified
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our view, mere delay and laches in making the application for
amendment cannot be a ground to refuse the amendment.”
(ii) North Eastern Railway Admn. v. Bhagwan Das [(2008) 8 SCC
511], at para 16 : (SCC p. 517)
“16. Insofar as the principles which govern the question of
granting or disallowing amendments under Order 6 Rule
17 CPC (as it stood at the relevant time) are concerned, these
are also well settled. Order 6 Rule 17 CPC postulates
amendment of pleadings at any stage of the proceedings.
In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR
1957 SC 363] which still holds the field, it was held that all
amendments ought to be allowed which satisfy the two
conditions : (a) of not working injustice to the other side; and
(b) of being necessary for the purpose of determining the real
questions in controversy between the parties. Amendments
should be refused only where the other party cannot be placed
in the same position as if the pleading had been originally
correct, but the amendment would cause him an injury which
could not be compensated in costs.”
(iii) Usha Devi v. Rijwan Ahamd [(2008) 3 SCC 717 : (2008) 1
SCC (Civ) 922], at para 13 : (SCC p. 722)
“13. Mr. Bharuka, on the other hand, invited our attention to
another decision of this Court in Baldev Singh v. Manohar
Singh [(2006) 6 SCC 498]. In para 17 of the decision, it was
held and observed as follows : (SCC pp. 504-05)
’17. Before we part with this order, we may also notice that
proviso to Order 6 Rule 17 CPC provides that amendment of
pleadings shall not be allowed when the trial of the suit has
already commenced. For this reason, we have examined the
records and find that, in fact, the trial has not yet commenced. It
appears from the records that the parties have yet to file their
documentary evidence in the suit. From the record, it also
appears that the suit was not on the verge of conclusion as
found by the High Court and the trial court. That apart,
commencement of trial as used in proviso to Order 6 Rule 17 in
the Code of Civil Procedure must be understood in the limited
sense as meaning the final hearing of the suit, examination of
witnesses, filing of documents and addressing of arguments. As
noted hereinbefore, parties are yet to file their documents, we do
not find any reason to reject the application for amendment of
the written statement in view of proviso to Order 6 Rule
17 CPC which confers wide power and unfettered discretion on
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the court to allow an amendment of the written statement at any
stage of the proceedings.'”
(iv) Rajesh Kumar Aggarwal v. K.K. Modi [(2006) 4 SCC 385], at
paras 15 & 16 : (SCC pp. 392-93)
“15. The object of the rule is that the courts should try the
merits of the case that come before them and should,
consequently, allow all amendments that may be necessary for
determining the real question in controversy between the parties
provided it does not cause injustice or prejudice to the other
side.
16. Order 6 Rule 17 consists of two parts. Whereas the first part
is discretionary (may) and leaves it to the court to order
amendment of pleading. The second part is imperative (shall)
and enjoins the court to allow all amendments which are
necessary for the purpose of determining the real question in
controversy between the parties.”
(v) Revajeetu Builders and Developers v. Narayanaswamy and
Sons [(2009) 10 SCC 84 : (2009) 4 SCC (Civ) 37], at para 63 :
(SCC p. 102)
“63. On critically analysing both the English and Indian
cases, some basic principles emerge which ought to be taken
into consideration while allowing or rejecting the application
for amendment:
(1) whether the amendment sought is imperative for proper
and effective adjudication of the case;
(2) whether the application for amendment is bona fide or
mala fide;
(3) the amendment should not cause such prejudice to the
other side which cannot be compensated adequately in
terms of money;
(4) refusing amendment would in fact lead to injustice or
lead to multiple litigation;
(5) whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the
case; and
(6) as a general rule, the court should decline amendments
if a fresh suit on the amended claims would be barred by
limitation on the date of application.
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These are some of the important factors which may be kept in
mind while dealing with application filed under Order 6 Rule
17. These are only illustrative and not exhaustive.”
The above principles make it clear that courts have ample
power to allow the application for amendment of the plaint.
However, they must be satisfied that the same is required in
the interest of justice and for the purpose of determination of
real question in controversy between the parties.
xxx xxx xxx”
(Emphasis Supplied)
11. The proposed amendments do not change the nature and character of
the case, as a case for infringement is essentially based on similar and
identical facts, as that of a case for passing off. It has been held in a
catena of judgments that the Courts ought to take a liberal view in favour
of allowing amendments and allow a party to amend the pleadings, by
taking note of subsequent events. The power of the Court to allow
amendments even after the commencement of the trial, is not restricted. If
the amendments, as sought in the present case, are not allowed, the same
will lead to unnecessary multiplicity of litigation.
12. Thus, holding that Courts should not adopt a hyper technical approach
and must not refuse bona fide, legitimate, honest and necessary
amendment, Supreme court in the case of Ramesh Kumar
Agarwal v. Rajmala Exports Private Limited, has held as follows:
“xxx xxx xxx
19. In Rajkumar Gurawara v. S.K. Sarwagi & Co. (P) Ltd. [(2008) 14
SCC 364] this Court considered the scope of amendment of pleadings
before or after the commencement of the trial. In para 18, this Court
held as under : (SCC p. 369)
“18. … It is settled law that the grant of application for
amendment be subject to certain conditions, namely, (i) when the
nature of it is changed by permitting amendment; (ii) when the
amendment would result in introducing new cause of action and
intends to prejudice the other party; (iii) when allowing
amendment application defeats the law of limitation.”
20. In Revajeetu Builders & Developers v. Narayanaswamy &
Sons [(2009) 10 SCC 84 : (2009) 4 SCC (Civ) 37] this Court once
again considered the scope of amendment of pleadings. In para 63, it
concluded as follows : (SCC p. 102)
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“Factors to be taken into consideration while dealing with
applications for amendments
63. On critically analysing both the English and Indian cases, some
basic principles emerge which ought to be taken into consideration
while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and
effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala
fide;
(3) the amendment should not cause such prejudice to the other
side which cannot be compensated adequately in terms of
money;
(4) refusing amendment would in fact lead to injustice or lead to
multiple litigation;
(5) whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case;
and
(6) as a general rule, the court should decline amendments if a
fresh suit on the amended claims would be barred by limitation
on the date of application.
These are some of the important factors which may be kept in mind
while dealing with application filed under Order 6 Rule 17. These
are only illustrative and not exhaustive.”
21. It is clear that while deciding the application for amendment
ordinarily the court must not refuse bona fide, legitimate, honest
and necessary amendments and should never permit mala fide and
dishonest amendments. The purpose and object of Order 6 Rule 17
of the Code is to allow either party to alter or amend his pleadings in
such manner and on such terms as may be just. Amendment cannot
be claimed as a matter of right and under all circumstances, but the
courts while deciding such prayers should not adopt a
hypertechnical approach. Liberal approach should be the general
rule, particularly in cases where the other side can be compensated
with costs. Normally, amendments are allowed in the pleadings to
avoid multiplicity of litigations.
xxx xxx xxx”
(Emphasis Supplied)”
11. In my view, the case of the Petitioner is squarely covered by the
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aforesaid judgments. In the instant case, the cause of action for infringement
based on the registration of the mark granted during the pendency of the
suit, is based on the same set of facts, same rival trademarks and products
and relegating the Petitioner to filing a fresh suit for infringement by
dismissing the amendment application will only lead to multiplicity of
proceedings. The impugned order itself shows that the Trial Court was
conscious of the fact that the application for registration was filed only after
the suit was filed and therefore, the observation that there was no mention of
the application in the original plaint, is completely erroneous. Courts have
permitted amendments wherever it is felt that they are necessary for
deciding the real controversy between the parties and to arrive at a just
decision. The fact that the trial has commenced, can also not be a reason
enough for dismissing the application for the simple reason that
Respondents No. 2 to 5 are already ex parte and secondly, dismissal of the
application will lead to yet another suit, which will be only increase and
prolonging the conclusion of litigation inter se the parties with respect to the
same trademark and products.
12. For all the aforesaid reasons, the impugned order dated 10.02.2026
passed in CS(COMM) 171/2024 is quashed and set aside and the application
under Order VI Rule 17 CPC is allowed. Learned Trial Court will take the
amended plaint on record and proceed accordingly.
13. Petition stands disposed of along with pending applications.
JYOTI SINGH, J
JULY 13, 2026
S.Sharma
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