DATE  OF DECISION : October 5, 2005


                              IA 102/2005 in  CS(OS) 518/2004


Vogel Medial International GMBH & Anr.                            ..... Plaintiffs


Through : Mr.Valmiki Mehta, Sr.Advocate                          

with Ms.Swetashree Majumdar, Advocate




Jasu Shan & Ors.                                  ..... Defendants

Through Mr.Amarjeet Singh and Ms.V.Mohini, Advocates




1.                           Defendants have made this application under Order 6 Rule 7, Order 6 Rule 16 and Order 1 Rule 10 read with Section 151 CPC with the following prayers-                                                                   

(i)that the amended plaint filed on 10th December, 2004 by the companies Vogel Burda Holding GmbH and Vogel Communication GmbH (not being the plaintiffs) be not taken and/or ordered to be taken off the record and/or


(ii)that the names of Vogel Burda Holding GmbH and Vogel Communications GmbH having been improperly substituted as Plaintiffs be struck out from the amended plaint in terms of the provisions of Order 1 Rule 10 CPC;


(iii)that the pleadings containing new grounds of claims or the allegation of facts made in the amended plaint filed on 10th December, 2004 as are inconsistent with the original plaint be ordered to be struck off; and


(iv)that the name of Jasubhai Media Pvt. Ltd. improperly joined as defendant no.2 in the amended plaint be ordered to be struck off in terms of Order 1 Rule 10. 


2.                           In brief the facts giving rise to the present application are that while disposing of IA No.3762/2004 filed by the  plaintiffs seeking permission to file the amended plaint and deficient court fee on the enhanced value of the suit, this Court vide order dated 22.11.2004 without taking a very strict view of the matter and in order to avoid harassment to the plaintiffs and the delay in the disposal of the suit, allowed the said application  as a special case permitted the plaintiffs to file the amended plaint.  Pursuant to the said order an amended plaint  dated 10.12.2004 stands filed by the plaintiffs.    In the present application, it is alleged by the defendants that the amended plaint so filed by the plaintiffs is not in consonance with the order of this Court dated 22.11.2004, inasmuch as several unauthorized and unnecessary amendments have been incorporated in the amended plaint without leave of the Court.  It is alleged that this has been so done by the plaintiffs with oblique motive and it is pointed out that the plaintiffs have described the amended plaint as a plaint in Suit No.883/2001 re-numbered as CS(OS) No.518/2004 despite a categorical finding recorded by this Court that CS (OS) No.518/2004 is a freshly instituted suit within the meaning of the provisions of the Code of Civil Procedure and the same shall be tried denovo under the provisions of the Code and therefore, reference to suit No.883/2001 in the plaint is malafide and mischievous; plaintiffs are not entitled to raise any new ground  of claim or claim inconsistent  with the previous pleadings on record except by way of an application under Order 6 Rule 17 CPC; the plaintiffs in the suit have been differently described inasmuch the plaintiffs are left with no valid or subsisting cause of action against the defendant which objection was taken by the defendant in the written statement and the plaintiffs were not entitled to substitute themselves without the leave of the Court.  It is pointed out that on one hand, the plaintiffs are trying to take undue advantage of the order passed by this Court on 22.11.2004, by filing the amended plaint  incorporating new grounds and claims, substituting defendants as the defendant no.2 (without leave of the Court) and on the other hand, they have challenged the said order before the Division Bench in FAO (OS)  No.274/2004.  Accordingly,  prayers have been made to the above effect.


3.                           Though no reply has been filed but the application is opposed on behalf of the plaintiffs.


4.                           I have heard Mr.Amarjeet Singh learned senior counsel representing the defendants/applicant and Mr. Valmiki Mehta, learned senior counsel representing the plaintiff and have bestowed my anxious consideration to their respective submissions.


5.                           Mr.Mehta has invited the attention of this Court to the averments made and relief claimed in IA No.3762/2004 which was allowed by this Court on 22.11.2004.  In the said application,  it was averred by the learned counsel for the plaintiff that due to certain changes in the plaintiff-company by virtue of which all rights in the trademark CHIP and the associated intellectual property came to vest in Vogel Burda Holding GmbH and Vogel Burda Communications GmbH, an application (IA No.4508/2003) under the provisions of Order XXII Rule 10 read with Section 151 CPC was made in this Court seeking substitution of the applicants as plaintiffs and to file the amended memo of parties before its transfer to the District Court.  It is also mentioned that pursuant to the Order dated 27.5.2004 passed by the District Court, returning the plaint for proper presentation due to enhanced value of the suit,  the plaintiff was required to file an amended plaint and, therefore, the procedural requirement for filing  two different amended plaints at two separate junctures could be easily avoided by filing only one amended plaint.  Accordingly the prayer was made in the application that the Court may grant proper extension of time for filing the amended plaint pursuant to the enhancement of the value of the suit and allow the said  amendment to be incorporated concurrently with the amendment of the plaint upon substitution of the plaintiffs upon disposal of IA No.4508/2003.


6.                           Mr.Valmiki Mehta, learned senior counsel representing the plaintiffs has urged that in view of the prayer made in the aforesaid application, which was allowed by the Court vide order dated 22.11.2004, the plaintiffs have filed the amended plaint under the bona fide plea that their twin prayers, i.e. for amending the plaint so as to alter the enhanced value of the suit as also in regard to substitution of the existing plaintiffs, had also been allowed by this Court while disposing of IA 3762/04 and permitting the plaintiffs to file the amended plaint.  In any case, it is submitted by Mr.Mehta that the application of the plaintiff under Order 22 Rule 10 read with Order 1 Rule 10 (being IA 4508/03) was pending at the time when the suit was transferred to the  District Court and will be deemed to be still pending after the suit has been reinstituted in this Court on plaint being returned by the District Court.  It is also submitted that even if the said application is deemed to be non est, the plaintiffs have filed another application under Order 22 Rule 10 read with Order 1 Rule 10 (being IA 3124/05) for substitution of the new plaintiffs.  It is strongly urged by Mr.Mehta that even if this Court takes a very strict view of the matter in regard to compliance of the provisions of the Code, the said application of the plaintiffs may be disposed of along with the application  under consideration and thereupon the applicants would be entitled to be substituted as plaintiffs and the amended plaint so filed by them will then be in strict confirmity with the provisions of the Code.  In support of his contention, Mr.Valmiki Mehta has urged that the provisions of the Code should be considered liberally and as far as possible, technical objection should not be allowed to defeat the substantial justice.  Further, that procedure is mere machinery and its object is to facilitate and not to obstruct administration of justice.  In this connection, reliance has been placed on recent Supreme Court decision in the case of Kailash Vs. Nanhku & Ors., 2005(3) SCALE  740.   In the said judgment, the Court was more primarily considering the scope of the provisions of amended Rule 1 of Order 8 CPC whether the said provision was mandatory or directory and in that context, it has noted with approval the following three principles laid down by the Apex Court in another decision in Sangram Singh Vs. Election Tribunal, Kotah & Anr., (1955) 2 SCR 1:- 

(i)A code of procedure must be regarded as such.  It is  'procedure', something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up.  Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against provided always that justice is done to `both' sides lest the very means  designed for the furtherance of justice be used to frustrate it.


(ii) There must be ever present to the mind the fact that our laws of procedure  are grounded on a principle  of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.  Of course, there must be exceptions and where they are clearly defined they must be given effect to.


(iii) No forms or procedure should ever be permitted to exclude the presentation or the litigant's defence unless there be an express provision to the contrary.


7.                           Yet another decision heavily relied upon by learned counsel for the plaintiff is in the case of Hanamanthappa & Anr. Vs. Chandrashekharappa & Ors., (1997) 9 SCC 688.  In that case, the Supreme Court on the facts of the said case held that after return of the plaint for representation to the proper Court having territorial jurisdiction and the representation of the plaint containing necessary amendment in the plaint without seeking permission of the amendment of the plaint was not the right course.  In fact, this authority supports the case of the defendant rather than of the plaintiffs.


8.                           Mr.Amarjeet Singh, learned counsel for the defendants/applicants on the other hand, emphatically urged that by no stretch, it can be said that while allowing the plaintiffs' application (IA 3762/04), this Court had allowed the plaintiff to file the   amended plaint incorporating substitution of the plaintiffs.    He has pointed out that the plaintiffs, ever since the return of the plaint, have deliberately avoided to pursue their suit strictly in accordance with the provisions of the Code and every attempt is made to by-pass the provisions of the Code  with mala fide intention.


9.                           No doubt, it is a well settled legal preposition that the Code of Civil Procedure is a body of general law governing the procedure of trial of the suits, appeals and other proceedings designed to facilitate justice and in that view of the matter, it cannot be said to be a vehicle  for providing the punishment and penalties, but at the same time we cannot brush aside lightly the equally well settled and firm legal position that the statutory provisions cannot be whittled down by general principles of equity, justice and good conscience nor can they be avoided on the ground of  hardship or inconvenience when the meaning is clear on the face of the statute.   This Court must observe that if non-observance of the provisions of the Code results into prejudice to the other side or any legal right flows to the other side, then in that situation, non-confirmation with the provisions of the Act cannot be brushed aside lightly.


10.                         From the facts and circumstances, as noticed above in detail, it would appear to this Court that the plaintiffs have scant regard for the provisions of the Code of Civil Procedure inasmuch as they wanted to by-pass the provisions of the Code at their own whims and fancies and without any legitimate or compelling circumstances.  It is pertinent to note that  even after passing of the order on 22.11.2004 by this Court, they are treating the suit which was instituted in this Court after revaluation of the plaint as the continuation of the suit, which was initially filed in this Court and then transferred  to the District Court.  Not only this, the plaintiffs despite pendency of their application under Order 22 Rule 10 read with Order 1 Rule 10 (IA 4508/03) and having moved fresh/another application (IA 3124/05) for similar relief, have ventured to file a totally unauthorised amended plaint presuming that both the applications have been allowed and substitution of the applicants had been permitted.   In the opinion of the Court, the plaintiffs had no basis to presume so until and unless  either of the two applications for substitution had been allowed.  The substitution of the parties in a suit has far reaching consequences and no  party can presume that as soon as an application for substitution  is made, the Court will allow such substitution irrespective of any objection from the opposite side.  The plaintiffs before substituting the new plaintiffs  ought to have waited for the disposal of the said applications filed by them rather than to substitute the name of the new plaintiffs in the amended plaint.  Therefore, there is no escape from the conclusion  that the amended plaint dated 10.12.2004 purportedly filed by the companies Vogel Burda Holding GmbH and Vogel Burda Communication GmbH (which have yet to be substituted and brought on record as plaintiffs) without  there being an order of this Court permitting their  substitution,  is not in accordance with  law and their names are liable to be struck off from the plaint.

11.                         In the result, IA 102/05 is  allowed and the plaintiffs are called upon to delete the names of the  companies Vogel Burda Holding GmbH and Vogel Burda Communication GmbH  and file a fresh amended plaint in conformity with  the order dated 22.11.2004.  Let corrected amended plaint be filed within one week.


12.                                                 The application stands disposed of.



OCTOBER 5, 2005                                                                           R.C.JAIN, J.