Delhi High Court
Novartis Ag & Anr. vs Natco Pharma Limited on 8 January, 2025
$~J3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 229/2019 & I.A. 10756/2024
NOVARTIS AG & ANR. .....Plaintiffs
Through: Mr. Hemant Singh, Mrs. Mamta Rani
Jha, Mr. Siddhanta Sharma, Mr.
Abhay Tandon, Advocates
M:8448683746
versus
NATCO PHARMA LIMITED .....Defendant
Through: Mr. J. Sai Deepak, Mr. Afzal B.
Khan, Mr. Samik Mukherjee, Mr.
Dominic alvares adn Mr. Avinash K.
Sharma, Advs.
M: 7585965845
Email: [email protected]
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
JUDGMENT
08.01.2025
MINI PUSHKARNA, J:
I.A. 10756/2024 (Application seeking leave to file additional written
statement)
1. The instant suit has been filed by the plaintiffs seeking permanent
injunction restraining the infringement of plaintiff no.1‟s Indian Patent No.
276026 (IN‟026), rendition of accounts/ damages and delivery up, etc.
2. The present application has been filed under Order VIII Rule 9 of the
Code of Civil Procedure, 1908 (“CPC“), by the defendant seeking leave to
file additional written statement. The defendant seeks to bring on record the
pleadings and grounds related to the Divisional Application, i.e. INSignature Not Verified
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5338/DELNP/2014 (IN‟5338) filed by the plaintiffs to the Parent
Application 3951/DELNP/2009, which resulted in grant of IN‟26. It is the
case of the defendant that the plaintiffs have suppressed documents
pertaining to the Divisional Application which came to the knowledge of the
defendant recently.
3. The present application came to be filed during the pendency of
another application of the defendant, i.e. I.A. 4636/2023 under Order
XXXIX Rule 4 CPC, seeking vacation of the interim injunction allowed in
favour of the plaintiffs vide judgment dated 09th January, 2023. The said
application for vacation of stay filed by the defendant, was subsequently
dismissed vide judgment dated 09th April, 2024. Appeals against both the
orders dated 09th January, 2023 and 09th April, 2024, are currently pending
before the Division Bench.
4. Submissions made on behalf of defendant, are as follows:
4.1 The Division Application and its knowledge thereof, is a subsequent
event and material to the adjudication of the suit.
4.2 The rules guiding filing of an additional written statement are similar
to the rules guiding amendment of pleadings under Order VI Rule 17 CPC.
On account of a subsequent development, where trial is yet to commence,
the application is bonafide and prima facie of concern to the suit.
4.3 The discretion to allow or disallow the additional written statement,
lies with the Court, and such discretion can be invited upon by an
application of a party.
4.4 Under Order XI Rule 1 (12) CPC, both parties have a continuing
obligation to disclose the facts which are material to the suit. Since the
plaintiffs consciously chose to remain silent on the filing of Divisional
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Application and its outcome, the defendant is constrained to bring it to the
Court‟s attention through the proposed additional written statement.
4.5 The plaintiffs are advancing mutually destructive arguments. On the
one hand, plaintiffs are stating that additional written statement can only be
filed within the period of One Hundred and Twenty (120) days, as stipulated
under Order VIII Rule 1 CPC. On the other hand, it is the stand of the
plaintiffs that additional written statement can only be filed in response to
new facts/ pleadings in replication.
4.6 The judgments dated 09th January, 2023 and 09th April, 2024 are not
conclusive in nature. Therefore, the same have not finally decided the issues
sought to be raised in the additional written statement.
4.7 Rule pertaining to filing of written statement within One Hundred
and Twenty (120) days, does not extend to provisions of Order VIII Rule 9
CPC.
4.8 Claims in the Divisional Application are identical to the Parent
Application. Further, prior art was cited by the Controller of Patents and the
Divisional Application of the plaintiffs was rejected by the Controller of
Patents on 16th December, 2022. Therefore, by way of the additional written
statement, the defendant seeks to bring on record the conduct of the
plaintiffs.
4.9 Defendant wishes to place on record the fact of rejection of
Divisional Application. The defendant will not travel beyond the
submissions that have been made by the defendant in the application under
Order XXXIX Rule 4 CPC.
4.10 Framing of issues are yet to take place. Issues pertaining to the
Division Application can be framed only if it is so pleaded in the written
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statement. Therefore, there is necessity to file additional written statement in
view of the subsequent development.
5. Submissions made on behalf of plaintiffs, are as follows:
5.1 The present application is not maintainable as the Court has not called
upon the defendant to file an addition written statement.
5.2 Order VIII Rule 9 CPC cannot be read in such a way so as to take
away the time limit of One Hundred and Twenty (120) days for filing the
written statement, as prescribed under the Commercial Courts Act, 2015.
The defendant ought to have reserved its right to file the additional written
statement in its written statement.
5.3 The developments in relation to the Divisional Application are not
material to the present lis and the plaintiffs were under no obligation to
disclose the same. The documents relating to the Divisional Application
were publicly available and the defendant had the benefit of perusing the
same.
5.4 The present application filed by the defendant is meritless and liable
to be dismissed. The defendant under the garb of the present application is
seeking leave to set up an entirely new defence and incorporate additional
facts by way of an additional written statement, which have been determined
finally by this Court, vide judgment dated 09th April, 2024.
5.5 The defendant has not made any disclosure as regards the pleadings
and documents they seek to bring on record by way of an additional written
statement.
5.6 The findings in judgement dated 09th April, 2024 are final and not a
prima facie view. The said judgment has decided the issue qua the
Divisional Application. Therefore, the defendant is barred by „issue
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estoppel‟ from re-agitating the said issue.
5.7 The rejection of the Divisional Application by the Controller of
Patents was not on merits and the plaintiffs chose not to pursue the same.
Moreover, the prior arts, as cited by the learned Controller, have already
been considered by this Court in the judgment dated 09 th January, 2023,
while deciding the injunction application.
5.8 The issue of validity of granting suit patent IN’026 has already been
adjudicated upon finally by the Intellectual Property Appellate Board
(“IPAB”) vide order dated 29th September, 2020 in appeal, O.A. 20/2019,
arising from order dated 16th August, 2020 passed by Controller of Patents
in post-grant opposition filed by the defendant. Therefore, the said issue
cannot be re-adjudicated in the present suit, as barred by the principles of
„res judicata‟ and „issue estoppel‟.
6. I have heard learned counsels for the parties and perused the record.
7. Right to file a written statement within the stipulated time period, is a
statutory right conferred upon a defendant by the CPC, however, filing of an
additional written statement is based upon the discretion of the Court.
Provision regarding filing of additional written statement is provided in
Order VIII Rule 9 CPC, as follows:
“xxx xxx xxx
9. Subsequent pleadings – No pleading subsequent to the written
statement of a defendant other than by way of defence to set-off or
counter-claim shall be presented except by the leave of the Court and
upon such terms as the Court thinks fit; but the Court may at any time
require a written statement or additional written statement from any of
the parties and fix a time of not more than thirty days for presenting the
same.
xxx xxx xxx”
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8. Reading of Order VIII Rule 9 CPC brings forth that additional written
statement can be filed only with leave of the Court and upon such terms, as
the Court thinks fit. Further, the Court may at any time require additional
written statement from any of the parties and fix a time of not more than
thirty days for presenting the same.
9. Rule 9 of Order VIII CPC was earlier omitted by the Code of Civil
Procedure (Amendment) Act, 1999 (Act 46 of 1999). The same has been
restored by Code of Civil Procedure (Amendment) Act, 2002 (Act 22 of
2002). The consequence of restoration of the said provision is that
subsequent pleadings shall be continued to be filed with the leave and
discretion of the Court and the Court shall fix a time for presenting the same,
which shall not be more than thirty days.
10. The Court has the authority to grant leave to file additional written
statement to take into account subsequent events that may have a bearing on
the suit. It may be worthwhile to note that provision of Order VIII Rule 9
CPC, which is a rule of procedure, is aimed at advancing the cause of justice
and doing substantial justice between the parties. The said provision allows
a party to bring on record further pleading after the written statement has
been filed. The Court would assess the plea of the party as regards the
justification and cogent reasons for filing additional written statement, and
as to why said pleas could not be raised at the time of filing the written
statement. However, filing of additional written statement cannot be claimed
as a matter of right and a party would have to establish plausible grounds for
granting leave to file additional written statement.
11. Further, the provision of Rule 9 of Order VIII CPC provides
categorically that the Court may at any time require an additional written
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statement from any of the parties. This provision is subsequent to the
provision of Rule 1 of Order VIII CPC, as amended by the Commercial
Courts Act, 2015, which provides an outer limit of One Hundred and
Twenty (120) days to file a written statement. There is nothing in the
Commercial Courts Act, 2015 to suggest that the provisions of Rule 9 of
Order VIII CPC shall not be applicable to Commercial Suits post the expiry
of period of One Hundred and Twenty (120) days for filing of written
statement. Therefore, the contention of the plaintiffs that additional written
statement can be filed only within the statutory limit of One Hundred and
Twenty (120) days, cannot be accepted. This Court cannot read into a statute
for a condition which the legislature has not appended. The language of the
provision of Order VIII Rule 9 CPC is plain and unambiguous, and does not
make any stipulation that liberty to file additional written statement can be
granted only if the same is within the statutory period, as stipulated in Order
VIII Rule 1 CPC.
12. Holding that if the language of the enactment is clear and
unambiguous, it would not be proper for the courts to add any words thereto
and evolve some legislative intent, not found in the statute, Supreme Court
in the case of Ansal Properties and Industries Limited Versus State of
Haryana and Another, (2009) 3 SCC 553, has held as follows:
“xxx xxx xxx
39. If the legislature had intended that the licensee is required to
transfer the land and also to construct the buildings on it or to make
payment for such construction, the legislature would have made
specific provisions laying down such conditions explicitly and in clear
words in which event the provisions would have been worded in
altogether different words and terms. It is a well-settled principle in
law that the court cannot read anything into a statutory provision
which is plain and unambiguous. The language employed in a statuteSignature Not Verified
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is determinative factor of legislative intent. If the language of the
enactment is clear and unambiguous, it would not be proper for the
courts to add any words thereto and evolve some legislative intent, not
found in the statute.
40. In Ganga Prasad Verma (Dr.) v. State of Bihar [1995 Supp (1) SCC
192: 1995 SCC (L&S) 383: (1995) 29 ATC 154] it has been held that:
(SCC p. 195, para 5)
“5. Where the language of the Act is clear and explicit, the
court must give effect to it, whatever may be the
consequences, for in that case the words of the statute speak
the intention of the legislature.”
xxx xxx xxx
42. The responsibility regarding construction of community centres and
other community buildings could be discharged by adopting any of the
three options as mentioned hereinbefore and each one of such options
is an independent option and one cannot be connected and related with
the other. We cannot read the provision relating to construction at the
own cost of the developer the schools, hospitals, community centres and
other community buildings on the land set apart for this purpose, into
an independent alternative provision relating to transfer of such land to
the Government free of cost. The aforesaid option given to the
developer to construct the community centres and other community
buildings at its own cost is when he can utilise himself to manage it.
Therefore, we cannot read the aforesaid provision in the manner
sought to be read by Mr Chaudhari, for reading by adding certain
words in the aforesaid manner does not appear to be the intention of
the legislature while enacting the aforesaid legislation, for otherwise
the legislature would have explicitly said so in the body of the main
part of the section itself.
xxx xxx xxx”
(Emphasis Supplied)
13. A written statement has to be filed mandatorily within the statutory
outer limit of One Hundred and Twenty (120) days in terms of Rule 1 of
Order VIII CPC, as amended by the Commercial Courts Act, 2015.
However, as regards additional written statement, a wider discretion has
been conferred upon the Courts to grant leave to file additional written
statement in appropriate cases and fix a time limit for filing such additionalSignature Not Verified
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written statement, which shall not be beyond thirty days. The provision of
Rule 1 of Order VIII CPC, as amended by the Commercial Courts Act,
2015, is independent and distinct from the provision under Rule 9 of Order
VIII CPC. Therefore, the condition as stipulated in the provision of Rule 1
of Order VIII CPC, as amended by the Commercial Courts Act, 2015,
cannot be read into the provision of Rule 9 of Order VIII CPC.
14. In the present case, an additional written statement is sought to be
filed by the defendant to bring a subsequent development on record, which
as per the defendant is prima facie material to the subject matter of the
dispute between the parties.
15. This Court notes that the present suit pertains to a Patent, i.e. IN’026
granted in favour of the plaintiffs on 28th September, 2016, and the suit has
been filed by the plaintiffs for permanent injunction restraining infringement
of the said patent IN’026, by the defendant.
16. The plaintiffs had also filed a Divisional Application to the suit
patent, i.e. IN‟5338 on 27th June, 2014. Various objections were raised by
the Controller of Patents. Hearing notice dated 11th November, 2022 was
issued by the Controller of Patents fixing the date of hearing on 12th
December, 2022. However, the plaintiffs filed a letter dated 09th December,
2022 before the Controller of Patents that they do not wish to pursue the said
Divisional Application and thus, will not be attending the hearing.
17. Subsequently, vide order dated 16th December, 2022, the Divisional
Application filed by the plaintiffs was refused under Section 15 of the
Patents Act, 1970, in the following manner:
”
THE PATENTS ACT, 1970
SECTION 15
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By:AMAN UNIYAL
Signing Date:08.01.2025
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IN THE MATTER OF
PATENT APPLICATION No.
5338/DELNP/2014
Applicant: NOVARTIS AG
LICHSTRASSE 35, 4056 BASEL, SWITZERLAND
ORDER
An application for patent titled “COMPOUNDS AND COMPOSITIONS
AS PROTEIN KINASE INHIBITORS” was filed on the 10/01/2014 by
NOVARTIS AG through M/s Anand & Anand Advocates B-41,
Nizamuddin East, New Delhi – 110013. As per the provision under
section 11-A of Patents Act, the said application was published on B-41,
Nizamuddin East, New Delhi – 110013. The said application was
examined under section 12 and 13 of Patents Act and First Examination
Report was issued on 10/01/2018. The applicant filed response to FER
on 25/04/2018. Since the objections raised in FER were not met vide the
reply to FER the applicant was offered a hearing.
The applicants were provided with an opportunity to be heard on
12/12/2022. However the applicant has not complied with the objections
and the attorney did not appear for hearing which was also confirmed by
the correspondence of the applicant filed on 09/12/2022 regarding the
intimation of the applicant for not attending the hearing and the
applicant stated (sic) that it does not (sic) wish to pursue the application.
In view of these the application for patent 5338/DELNP/2014 is refused
u/s 15 of the Patents Act. 1970.
Dated this 16th day of December, 2022
KUMARI RAGINI
Assistant Controller of Patents & Designs”
18. Upon gaining knowledge of the aforesaid facts, the defendant filed an
application for vacation of interim injunction, as granted in favour of the
plaintiffs vide judgment dated 09th January, 2023. Subsequently, during the
pendency of the said application, the defendant also filed the present
application seeking leave of the Court to file an additional written statement.
Vide judgment dated 09th April, 2024, the application of the defendant, i.e.,Signature Not Verified
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I.A. 4636/2023 under Order XXXIX Rule 4 CPC seeking vacation of interim
injunction, was dismissed. The relevant paragraphs of the judgment dated
09th April, 2024, are reproduced as under:
“xxx xxx xxx
22. The submission of Mr. Sai Deepak cannot be accepted, and for a very
simple reason. The Divisional Application IN 5338/DELNP/2014 filed
by the plaintiff was not rejected on merits. There is no adjudication by
the Patent Office on the objections raised in the FER against the
Divisional Application. The order passed in the Divisional Application
reads thus:
“The applicants were provided with an opportunity to be
heard on 12/12/2022. However, the applicant has not
complied objections with and the attorney did not appear for
hearing which was also confirmed by the correspondence of
the applicant filed on 09/12/2022 regarding the intimation of
applicant for the not attending the hearing and the applicant
were stated there that does not wish to pursue the
application. In view of these the application for patent
5338/DELNP/2014 is refused u/s 15 of the Patents Act.
1970.”
23. It is clear that the Divisional Application was, therefore, not
rejected on merits, but because the applicant itself chose not to pursue
the application. A decision not to pursue a Divisional Application
cannot be regarded, by any stretch of imagination, as acknowledging
the merit of the objections contained in the FER raised against the
Divisional Application by the Patent Office. There may be myriad
reasons why a party does not choose to pursue a Divisional Application.
The decision not to pursue the Divisional Application cannot estop the
plaintiff from contesting the grounds on which the validity of the suit
patent was sought to be assailed by the defendant.
xxx xxx xxx
27. In my opinion, no more can be read into the order of refusal on the
Divisional Application than is stated therein. There is, quite clearly, no
decision on merits on the objections contained in the FER raised by the
Patent Office. The omission, on the part of the plaintiffs, to make
reference to the Divisional Application cannot, therefore, seriously
impact, in any way, the prima facie merits of the case. Nor could it be
said that, had the Divisional Application and the outcome thereof, been
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disclosed, verdict on the plaintiff’s application for interlocutory
application would have been otherwise.
28. Plainly expressed, the entire foundation of the Order XXXIX Rule 4
application of the defendant is the Divisional Application which was filed
by the plaintiff. That application was, ultimately, not pursued, and was
accordingly refused. The reference to Section 15 of the Patents Act
cannot convert the decision into an adjudication on merits of the claims
in the Divisional Application. The Court has to take the decision on the
Divisional Application for what it is, and as it reads, and, thus viewed, it
is apparent that the application was “refused” not because it was found
to be meritless, but because the plaintiff chose not to pursue it.
Assuming, arguendo, that the decision on the Division Application were
to be regarded as on merits
29. Even if it were to be assumed, arguendo, that the reference to Section
15 in the order on the Divisional Application would justify the order
being read as reflective of the merits of the application, I am still unable
to agree with Mr. Sai Deepak that the decision would justify recall, or
vacation, of the interim injunction granted to the plaintiff in the present
case. It goes without saying that the decision of the Controller is not
binding on the Court and, is, at the highest, a factor which the Court
could take into account, even if it were to be regarded as an opinion on
merits. When, on an independent analysis on merits, this Court has found
the suit patent not to be vulnerable to invalidity on any of the grounds
envisaged in Section 64 of the Patents Act, the opinion of the Controller
can hardly be cited as a ground for this Court to revisit, much less
reverse, its decision. That would be analogous to this Court being called
upon to reverse an interim order granted by it because the view adopted
by it is contrary to the decision of a hierarchically lower Court, which
was not brought to its notice.
30. I do not deem it necessary, therefore, to enter into the specifics of the
Divisional Application, or its legality or validity vis-à-vis the original
application filed by the plaintiffs which resulted in the grant of the suit
patent. It has to be remembered that the prior arts which were cited by
the Controller in the FER against the Divisional Application have all
been considered by me in the judgment dated 9 January 2023, by which
interim injunction was granted to the plaintiffs. Even were the facts
relating to the Divisional Application to have been disclosed, therefore,
there is no possibility of the outcome of IA 6384/2019 having been any
difference. The failure on the part of the plaintiffs to disclose the
aforesaid fact cannot, therefore, be regarded as sufficient to justify a
re-visitation of the order dated 9 January 2023.
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Second proviso to Order XXXIX Rule 4
31. Besides, the second proviso to order XXXIX Rule 4 of the CPC
proscribes any re-visitation of an interlocutory injunction order under
Order XXXIX Rules 1 and 2 of the CPC, where the order was passed
after hearing the defendant, save and except whether the variation is
necessitated by a change in circumstance or whether the order has
caused undue hardship to the defendant. Though there is an averment
in the present application that it has been necessitated owing to a change
in circumstances, the averment is not supported by any material
whatsoever. Inasmuch as the Divisional Application and its outcome
were much prior to passing of the order dated 9 January 2023, they
cannot constitute “change in circumstances” within the meaning of
Order XXXIX Rule 4 of the CPC.
xxx xxx xxx
Outcome of Divisional Application does not affect findings of fact in
order dated 9 January 2023
33. In fact, once, after considering all these circumstances, this Court
has already found the suit patent not to be vulnerable to invalidity, there
can obviously be no question of revisiting the said decision merely on the
basis of the submission advanced by Mr. Sai Deepak, predicated on the
Divisional Application and its outcome. The findings regarding the suit
patent not being vulnerable to invalidity for any of the reasons cited by
the defendant would continue to remain untouched and undisturbed, even
if the Divisional Application, and its ultimate fate, were to be taken into
account.
xxx xxx xxx
35. It is only, therefore, suppression of a fact which, if disclosed, would
alter the outcome of the case, which can be regard as a material fact, as
would justify a revisitation of the order of interim injunction.
Re. plea of Ceritinib becoming available in the public domain consequent
on refusal of Divisional Application
36. The submission that, with the refusal of the Divisional Application,
Ceritinib became available for exploitation in the public domain, too,
cannot be accepted. The “refusal” of the Divisional Application does
not, either in fact or in law, extinguish the suit patent. The claim for a
patent for Ceritinib stands granted in the suit patent and, until and unless
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the suit patent is invalidated, the patent continues to remain valid. Any
exploitation of Ceritinib by a third party, during the life of the suit patent,
therefore, infringes the suit patent, and cannot be permitted. Mr. Hemant
Singh put the point pithily in his submission that it is the Divisional
Application which is dependent on the suit patent, and not vice versa.
xxx xxx xxx”
(Emphasis Supplied)
19. By way of the additional written statement, the defendant seeks to
bring on record all the aforesaid facts. During the course of hearing, it was
categorically stated on behalf of the defendant that the defendant seeks to
incorporate in the additional written statement, the submissions, as made in
the application for vacation of interim injunction. The contention of the
plaintiffs that since the Division Application was pending even prior to the
institution of the suit, it does not constitute a subsequent development for the
purposes of additional written statement, cannot be accepted. The fact
regarding the filing of the Divisional Application and its refusal, were not
brought before this Court by the plaintiffs. Further, the Divisional
Application was refused after the filing of the present suit, which is indeed a
subsequent development to the completion of the pleadings in the suit.
20. Additionally, this Court cannot lose sight of the fact that under Order
XI Rule 1 (12) CPC, both parties have a continuing obligation to disclose
documents, which have come to their notice. Order XI Rule 1 (12) CPC,
reads as under:
“ORDER XI
DISCLOSURE, DISCOVERY AND INSPECTION OF DOCUMENTS
IN SUITS BEFORE THE COMMERCIAL DIVISION OF A HIGH
COURT OR A COMMERCIAL COURT
1. Disclosure and discovery of documents: …………
xxx xxx xxx
(12) Duty to disclose documents, which have come to the notice of aSignature Not Verified
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party, shall continue till disposal of the suit.
xxx xxx xxx”
(Emphasis Supplied)
21. This Court also rejects the contention of the plaintiffs that the facts
sought to be pleaded by the defendant in the additional written statement,
have already been adjudicated and rejected vide judgment dated 09th April,
2024, by which the application of the defendant, I.A. 4636/2023, under
Order XXXIX Rule 4 seeking vacation of interim injunction, was dismissed.
The findings in the said judgment are only prima facie in nature, as the same
dealt with the aspect of interim injunction in favour of the plaintiffs. The
findings given in the said judgment dated 9th April, 2024, are only in the
context of adjudicating upon the application for vacation of stay.
22. It is trite that at the stage of interim injunction, the Court only
formulates a prima facie opinion on the basis of which orders are passed.
Therefore, any observation in the judgment dated 09th January, 2023 or 09th
April, 2024, can be only prima facie in nature and cannot be considered to
be final or conclusive in any manner. Thus, the Supreme Court in the case of
Martin Burn Ltd. Versus R.N. Bangerjee, 1957 SCC OnLine SC 51, has
held as follows:
“xxx xxx xxx
27. The Labour Appellate Tribunal had to determine on these
materials whether a prima facie case had been made out by the
appellant for the termination of the respondent’s service. A prima
facie case does not mean a case proved to the hilt but a case which
can be said to be established if the evidence which is led in support
of the same were believed. While determining whether a prima facie
case had been made out the relevant consideration is whether on the
evidence led it was possible to arrive at the conclusion in question
and not whether that was the only conclusion which could be
arrived at on that evidence. It may be that the Tribunal considering
this question may itself have arrived at a different conclusion. It has,Signature Not Verified
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however, not to substitute its own judgment for the judgment in
question. It has only got to consider whether the view taken is a
possible view on the evidence on the record. (See Buckingham &
Carnatic Co., Ltd. [(1952) Labour Appeal Cases 490].
xxx xxx xxx”
(Emphasis Supplied)
23. Further, it is to be noted that the findings as given in the judgment
dated 09th April, 2024, are in the context whether the defendant had set out a
prima facie case under Order XXXIX Rule 4 for vacation of interim
injunction dated 09th January, 2023. The said findings have no bearing on
adjudicating the instant application under Order VIII Rule 9 CPC, since the
purpose, standard and outcomes are materially different in fact and in law.
24. The reliance by the plaintiffs on the judgment of Hope Plantations
Ltd. Versus Taluk Land Board, Peermade and Another, (1999) 5 SCC 590
is completely misplaced. The said judgment dealt with the consequence of
„issue estoppel‟ in relation to final findings on a preliminary issue. However,
prima facie findings in interim applications are different from final findings
on a preliminary issue.
25. Likewise, the contention of the plaintiffs that the issue of validity of
suit patent has already been adjudicated finally by IPAB in post-grant
opposition filed by the defendant, therefore, the said issue cannot be re-
adjudicated in the present suit, as barred by principles of „res judicata‟ and
„issue estoppel‟, again does not hold any water. The said issue is a subject
matter of final adjudication and not material for deciding the present
application. As long as the application under Order VIII Rule 9 CPC is
bonafide and is prima facie of concern to the suit, its final relevance can be
tested at the stage of final arguments and not at this stage.
26. Similarly, reliance by the plaintiffs upon the judgment in the case of
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SCG Contracts (India) Private Limited Versus K.S. Chamankar
Infrastructure Private Limited and Others, (2019) 12 SCC 210, is also
misplaced. The said judgment was rendered in the context of filing a written
statement, wherein, the Supreme Court held that mandatory provisions
regarding filing of written statement cannot be circumvented by taking
recourse to inherent powers of the Court. The said judgment has no
applicability to the present case.
27. Similarly, reliance by the plaintiffs upon the judgment of the Madras
High Court dated 12th July, 2019 in Civil Suit No. 282/2018, Novartis AG
and Another Versus Venkata Narayana Active Ingredients Private Limited
and Others, is misplaced. The said judgment relates to filing of additional
written statement by way of a set off or counter claim. However, that is not
the position in the present case. Further, in the said judgment, the defendants
therein admitted that counter claim and additional defence could not be
taken, due to paucity of time, which was sought to be circumvented by filing
of additional written statement along with counter claim. However, in the
instant case the defendant seeks to bring on record a subsequent
development qua plaintiffs‟ Divisional Application. Therefore, the said
judgment of the Madras High Court is clearly distinguishable and not
applicable to the facts of the present case.
28. While dealing with the issue of additional pleading, Supreme Court in
the case of Olympic Industries Versus Mulla Hussainy Bhai Mulla
Akberally and Others, (2009) 15 SCC 528, has held as follows:
“xxx xxx xxx
15. It is also well settled that the courts should be more generous in
allowing the amendment of the counter-statement of the defendant
than in the case of plaint. The High Court in its impugned order hasSignature Not Verified
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also observed that in order to file an additional counter-statement, it
would be open to the defendant to take inconsistent plea. The prayer for
acceptance of the additional counter-statement was rejected by the High
Court on the ground that while allowing such additional counter-
statement to be accepted, it has to be seen whether it was expedient with
reference to the circumstances of the case to permit such a plea being
put forward at that stage.
xxx xxx xxx
18. It is also well settled that while allowing the additional counter-
statement or refusing to accept the same, the court should only see that
if such additional counter-statement is not accepted, the real
controversy between the parties could not be decided. As noted herein
earlier, by filing an additional counter-statement in the present case, in
our view, would not cause injustice or prejudice to the respondents but
that would help the court to decide the real controversy between the
parties. In our view, the High Court was, therefore, not justified in
rejecting the application for permission to file additional counter-
statement as no prejudice could be caused to the respondent which
would otherwise be compensated in terms of costs.
xxx xxx xxx”
(Emphasis Supplied)
29. Likewise, the High Court of Madras in the case of P. Saraswathi
Versus C. Subramaniam, 2013 SCC OnLine Mad 3224, while dealing with
the issue of filing of an additional written statement, has held as follows:
“xxx xxx xxx
12. Coming to the next question, it is submitted by the learned
Counsel appearing for the Plaintiff that by filing an Additional
Written Statement, the Second Defendant is making an attempt to take
an inconsistent defence. On a perusal of the materials available on
record, I find that in the original Written Statement filed by the
Second Defendant, he had merely denied the case of the Plaintiff. But,
in the subsequent Additional Written Statement, he is projecting a
specific defence with regard to the entitlement of the share of the First
Defendant to the extent of 5/6th share in the Suit property and it is
only an additional defence and it cannot be treated as inconsistent
defence from that of the defence taken in the original Written
Statement. Moreover, adding a new ground of defence or substituting
or altering a defence is permissible. In this regard, the learned
Counsel appearing for the Second Defendant has relied upon the
Judgment reported in Baldev Singh v. Manohar Singh, 2006 (6) SCCSignature Not Verified
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498, wherein the Hon’ble Supreme Court, in Para 15, has held as
follows:
“15. Let us now take up the last ground on which the
Application for amendment of the Written Statement was
rejected by the High Court as well as the Trial Court. The
rejection was made on the ground that inconsistent plea cannot
be allowed to be taken. We are unable to appreciate the ground
of rejection made by the High Court as well as the trial Court.
After going through the pleadings and also the statements made
in the Application for amendment of the Written Statement, we
fail to understand how inconsistent plea could be said to have
been taken by the Appellants in their Application for amendment
of the Written Statement, excepting the plea taken by the
Appellants in the Application for amendment of Written
Statement regarding the joint ownership of the Suit property.
Accordingly, on facts, we are not satisfied that the Application
for amendment of the Written Statement could be rejected also
on this ground. That apart, it is now well settled that an
amendment of a Plaint and amendment of a Written Statement
are not necessarily governed by exactly the same principle. It is
true that some general principles are certainly common to both,
but the Rules that the Plaintiff cannot be allowed to amend his
pleadings so as to alter materially or substitute his cause of
action or the nature of his claim has necessarily no counterpart
in the law relating to amendment of the Written Statement.
Adding a new ground of defence or substituting or altering a
defence does not raise the same problem as adding, altering or
substituting a new cause of action. Accordingly, in the case of
amendment of Written Statement, the courts are inclined to be
more liberal in allowing amendment of the Written Statement
than of Plaint and question of prejudice is less likely to operate
with same rigour in the former than in the latter case.”
A reading of the dictum laid down by the Hon’ble Supreme Court in
the above judgment would show that the inconsistent defence can be
raised in the Written Statement although the same is not permissible
in the case of the plaint. Therefore, I do not find any force in the
submission made by the learned Counsel appearing for the Plaintiff
that since already trial has commenced, the Court below ought not to
have permitted the Second Defendant to file additional Written
Statement. Under Order 8, Rule 9, C.P.C., wide discretion was given
to the Court to give a chance to the parties to agitate their right even
by raising subsequent pleas. Moreover, no restriction was imposed
with regard to the receiving of the additional Written Statement
under Order 8, Rule 9, C.P.C. after commencement of the trial like
in the case of amending the Plaint under Order 6, Rule 17, C.P.C.,
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where 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 the trial. In this regard, reference could be placed
in the Judgment reported in Muthusamy v. Thangaraj, 2005 (5) CTC
785. In Paras 8 & 9, it has been held as follows:
“8. True, as seen from the Additional Written Statement, some
new pleas have also been taken. Whether this new plea will
prevent the Plaintiff from succeeding in the case is a matter to
be decided at the time of trial, not at the time of receiving the
statement. Therefore, the additional Written Statement,
wherein an attempt is made to explain the original statement,
giving further particulars, cannot be labelled as entirely a new
one, disowning the original case. In this context, we have to see
the relevant provisions, namely Order 8, Rule 9, C.P.C. Order 8,
Rule 9, C.P.C. reads:
“No pleading subsequent to the Written Statement of a
defendant other than by way of defence to set-off or
counter-claim shall be presented except by the leave of the
Court and upon such terms as the Court thinks fit; but the
Court may at any time require a Written Statement or
additional Written Statement from any of the parties and
fix a time of not more than thirty days for presenting the
same”
It does not say that no Application for receiving the additional
statement shall be 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, as provided under Order 6, Rule 17,
C.P.C. Proviso. The legislators when amended the C.P.C.
thought it fit not to allow the party to have amendment, as a
matter of right, that too in a case where they had an
opportunity to raise the same, at the time of filing the
pleadings. But, when they come to Order 8, C.P.C., no such
restriction has been imposed, thereby giving discretion to the
Court concerned to allow the subsequent pleadings, for which
it is not necessary whether that defence was available on the
date of filing of the original Written Statement or not. Under
Order 8, Rule 9, C.P.C., power is given to the Court to call for
the Written Statement or additional Written Statement from
any party, fixing time, not exceeding 30 days, thereby showing
the provisions of Order 8, Rule 9, C.P.C. is liberal in its
Application, giving wide discretion to the Court, probably to
give a chance to the parties, to agitate their right even raising
subsequent pleas, for which, the Court should not be rigid. The
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Courts should exercise their discretion liberally, when it will
not affect the right of the party.
9. In this case, the only grievance, if at all for the Revision
Petitioner, as urged before me, must be that when PW1 was in
the box, that too pending cross-examination, subsequent
pleadings should not be allowed. By allowing the subsequent
pleadings, the right of the Plaintiff is not going to be affected
and it is for the Defendant to prove the subsequent pleadings
by letting in evidence, since in the original Written Statement,
he has opposed the claim of Plaintiff. The Plaintiff can also
re-examine PW1, if he desires, with the permission of the
Court, even to deny the allegations in the Written Statement.
Thus, it is seen, ample opportunity is available to PW1, to deny
or accept the case projected in the additional Written
Statement, which would go to show, no prejudice would be
caused to the Plaintiff, though the Suit is a part heard one.
Order 8, Rule 9, C.P.C. does not say, after commencement of
trial, no subsequent pleading shall be entertained by the Court,
as said in Order 6, Rule 17, C.P.C. Proviso.”
Keeping the dictum laid down in the above Judgment, I am of the
view that under Order 8, Rule 9, C.P.C., wide discretion is given to
the Court to receive the Written Statement or additional Written
Statement to give opportunity to the parties to agitate the case
effectively. Therefore, the rigid principle applicable in the case of
amendment of Plaint under Order 6, Rule 17, C.P.C. cannot be
applied in the case of receiving additional Written Statement under
Order 8, Rule 9, C.P.C. Hence, when there is no restriction with
regard to the receiving of the additional Written Statement, no
infirmity could be found in the Order passed by the Court below in
allowing the Application to permit the Second Defendant to file
Additional Written Statement, in the interest of justice. Therefore, for
the foregoing reasons, I do not find any valid grounds to interfere with
the Order passed by the Court below.
xxx xxx xxx”
(Emphasis Supplied)
30. Considering the aforesaid discussion, this Court is of the view that no
prejudice shall be caused to the plaintiffs if the present application is
allowed and the defendant is allowed to file an additional written statement
in order to bring on record the facts pertaining to the Divisional ApplicationSignature Not Verified
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of the plaintiffs.
31. Accordingly, the defendant is granted leave to file an additional
written statement to incorporate the facts pertaining to Divisional
Application no. 5338/DELNP/2014 of the plaintiffs, as elucidated by the
defendant in its application, I.A. 4636/2023 under Order XXXIX Rule 4
CPC. It is directed that the defendant shall not incorporate any fresh
pleading in the additional written statement, beyond what has already been
stated in the application, I.A. 4636/2023.
32. The additional written statement shall be filed by the defendant within
a period of 30 days from today.
33. The present application is allowed in the aforesaid terms.
(MINI PUSHKARNA)
JUDGE
JANUARY 08, 2025
KrSignature Not Verified
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