Pre-trial amendments elaborating prior use are permissible when they do not alter the suit’s nature.

The respondent–plaintiff instituted Commercial O.S. No. 281 of 2025 seeking a permanent injunction restraining the petitioner–defendant from passing off its goods under the mark “DATE BITES” as the plaintiff’s “HAPPILO DATE BITES” products, along with damages, delivery-up and an account of profits.

The plaintiff thereafter filed an application under Order VI Rule 17 read with Section 151 CPC seeking to amend the plaint by pleading that its predecessor had commercially used the mark from September 2016 and that such use had continued thereafter.

The plaintiff stated that archival invoices evidencing the earlier use were discovered after filing the written statement.

The defendant opposed the amendment, contending that the original plaint proceeded on adoption of the mark in December 2022 and that the amendment introduced a new and inconsistent case solely to overcome the defence that the defendant had used the mark from 2017.

The Commercial Court allowed the amendment, holding that the trial had not commenced, that the amendment was relevant to determining prior use, and that the defendant could file an additional written statement.

The defendant challenged that order under Articles 226 and 227 of the Constitution.

1. Whether the Commercial Court was justified in allowing the plaintiff’s application under Order VI Rule 17 read with Section 151 CPC to amend the plaint by introducing pleadings concerning prior use of the mark from 2016?

2. Whether the proposed amendment impermissibly altered the nature and cause of action of the passing-off suit or caused irremediable prejudice to the defendant?

The Court applied Order VI Rule 17 CPC, under which amendments necessary for determining the real controversy should ordinarily be permitted, subject to the court’s judicial discretion.

Amendments introducing a completely new or inconsistent cause of action, withdrawing clear admissions, defeating accrued legal rights, or fundamentally altering the character of the suit may be rejected.

The proviso to Order VI Rule 17 imposes a stricter requirement after commencement of trial, requiring the applicant to show that, despite due diligence, the matter could not have been raised earlier; mere filing of a written statement does not constitute commencement of trial.

The Court also applied the principle that prejudice capable of being remedied through an additional written statement and an opportunity to lead evidence is not sufficient to refuse a pre-trial amendment.

In considering the governing principles, the Court referred to Mohammadrafi v. Bandenawaz, 2025 SCC OnLine Kar 25113, and Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd., (2022) 16 SCC 1.

The Court held that the trial had not commenced because no evidence had been recorded and the issues had not yet been tested; consequently, the proviso to Order VI Rule 17 was not attracted merely because the written statement had been filed.

The proposed amendment related to adoption, prior use and continuity of use—foundational matters in a passing-off action—and was therefore relevant to determining which party was the prior user of the disputed mark.

The amendment did not abandon the original passing-off cause of action, alter the reliefs sought, or change the essential allegation that the defendant’s use of “DATE BITES” amounted to passing off.

Whether the plaintiff could prove its asserted use from 2016 was a matter for trial and not for determination at the amendment stage.

Any prejudice to the defendant could be addressed by permitting an additional written statement, cross-examination and production of evidence.

The Commercial Court had therefore exercised its discretion neither perversely nor with jurisdictional error.

It found that the amendment was a permissible pre-trial elaboration of the existing passing-off claim, did not fundamentally alter the suit, and caused no irremediable prejudice to the defendant.

The writ petition was accordingly dismissed, and any pending interlocutory applications were ordered to stand closed.