This is an action for passing off. The plaintiff publishes a Journal known as 'Ananda Bodhini' and he complains that the defendant recently started a periodical under the name 'Ananda Guna Bodhini' and that the use of this name is calculated to deoeive and to cause the defendant's goods to be taken for the goods of the plaintiff. Mr. S. Duraiswami Ayyar for the plaintiff now asks for permission to amend his plaint by alleging fraud. That the imitation of the plaintiff's name is calculated to mislead, is distinctly alleged in the plaint. For the plaintiff, it is contended that the allegation of fraud is already there, but that it is sought to put forward this case more clearly in the pleadings. I do not agree that the plaint contains a charge of fraud and the question, therefore, is, is the plaintiff now to be given liberty to amend his plaint?
In a passing off case, it is well settled that fraud is not a necessary element of the Tight of action. The cause of action set forth in the plaint is thus complete; but proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception. (See Kerly on Trade Marks, Sixth Edition, page 550). As has been observed by Earl Loreburn in Claudius Ash Sons and Co. v. Invicta Manufacturing Co.(1919) 29 R.P.C. 485 :
When once you establish the intent to deceive, it is only a short step to proving that the intent has been successful, but, still it is a step even, though it be a short, step.
The principle underlying this, is thus tersely stated in the course of the argument, in the same case, when it was before the Court of Appeal by Cozens Hardy, M.R.:
'If you find a defendant who is a knave, you may presume he is not a fool.' That the defendant's conduct is calculated to mislead is thus the foundation of the action, although fraud on the defendant's part helps the plaintiff in proving that there is this probability of deception.
All the same, it is well established that if a charge of fraud is to be made at the trial, it is essential that it should be put forward clearly and prominently on the pleadings. Kerly, page 548.
The plaintiff's Counsel opened his case in March, 1927, and did no more than give a brief outline. At that time, Mr. Duraiswami Ayyar clearly indicated that he was going to rely upon fraud and referred to certain instances which, if true, he contended, would support that charge. After this, the case was repeatedly adjourned to suit the convenience of the plaintiff or the defend and, I shall not be wrong in stating that the defendant is at least equally to blame for this with the plaintiff. When the case was now taken up, the plaintiff began to give oral evidence and it was then brought out clearly that he wanted to allege fraud and I pointed out that this could not be done, as the case of fraud was not distinctly put forward in the plaint and as there was no issue upon it.
It is in these circumstances that the present application came to be made. Mr. Venkataramana Rao for the defendant opposes it, but I do not think I can accept his view. If the present course was suggested to the plaintiff by anything that happened at the trial, or, if I suspected that his object is to fabricate evidence to meet some point now raised, I should probably refuse leave to amend; but the ease here is far different. The infringement complained of occurred in May, 1926, the plaint was presented on the 22nd of June, 1926. The plaintiff applied for an interim injunction and filed an affidavit on the same date as he presented the plaint, and in that affidavit he makes the following statement:
Attracted by the wide circulation commanded by my Journal, and actuated by envy and malice, the defendant has started on or about the 15th of May, 1926, a Tamil Journal...
Can there be clearer proof of the fact that the plaintiff intended from the very outset to allege fraud? I do not see why, I should, in these circumstances, refuse leave. I may mention that the defect was discovered at a very early stage in the course of the plaintiff's examination. I am satisfied that the omission to refer to fraud in the plaint is due to an oversight, and that in the interests of justice, this amendment ought to be allowed.
It is quite true that an amendment will not be generally allowed for the purpose of adding a plea of fraud, except where strong grounds exist. This test is satisfied in the present case and I allow the plaintiff's application. The defendant shall have liberty to file an additional written statement in two weeks, and the case shall be posted for issues in 17 days, from this date.
Costs of this application are reserved.