Rajasthan High Court

Vikash Jain S/O Late Shri Vimal ... vs Union Of India on 18 May, 2022

Bench: Mahendar Kumar Goyal

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 12157/2021

Vikash Jain & Ors.
                                                                     ----Petitioners
                                    Versus
Union Of India & Ors.
                                                                   ----Respondents

For Petitioner(s) : Mr. Swadeep Singh Hora For Respondent(s) : Mr. R.D. Rastogi, ASG with Mr. Anand Sharma & Mr. C.S. Sinha Mr. Devesh Sharma Mr. Aditya Singh Mr. Rajat Chaudhary Major R.P. Singh, AAG with Mr. Hemant Kothari Mr. Akshay Bhardwaj

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

18/05/2022

The matter comes up on two applications filed by the

petitioners; one, seeking amendment in the memo of writ petition

and another seeking amendment in the stay application.

The facts in brief are that the petitioners have filed a writ

petition assailing the legality and validity of the

order/communication dated 21.12.2020 whereby, their properties

have allegedly been attached by the Assistant Director (PMLA).

During its pendency, the respondents passed an order dated

11.02.2022 under Section 5 of the Prevention of Money

Laundering Act, 2002 (for brevity, "the Act of 2002") provisionally

attaching the immovable properties of the petitioners. By way of

the aforesaid amendment applications, the petitioners want to

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incorporate this subsequent event and to assail its legality and

validity.

Although, detailed arguments have been advanced by the

learned counsels for the respective parties touching the legality

and validity of the order dated 21.12.2020 passed by the Assistant

Director (PMLA) purportedly under Section 54 (hf) of the Act of

2002 as also the provisional attachment order dated 11.02.2022

passed under Section 5 as also the maintainability of the writ

petition assailing the validity of provisional attachment order

under Section 5 of the Act of 2002 in view of availability of the

alternative remedy under Section 8, Section 26 and Section 42 of

the Act of 2002; but, in view of the trite law that merits of the

proposed amendment cannot be appreciated and adjudicated upon

by a Court while considering an application seeking amendment,

this Court deems it just and proper not to advert to these

submissions.

This Court finds support in this view from the judgment of

the Hon'ble Apex Court in case of Lakha Ram Sharma Vs. Balar

Marketing Private Limited, (2008) 17 SCC 671 wherein, it

was held as under:

"4. It is settled law that while considering

whether the amendment is to be granted or not, the

Court does not go into the merits of the matter and

decide whether or not the claim made therein is

bonafide or not. That is a question which can only be

decided at the trial of the Suit."

In case of Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi

& Ors., (2006) 4 SCC 385, the Hon'ble Supreme Court held as

under:

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"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 has expressed certain opinion 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 rights of both parties and to sub-serve the ends of justice. It is settled by 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.

19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."

The order of attachment under Section 5 has been passed

during pendency of the writ petition assailing the legality and

validity of the order dated 21.12.2020 passed by Assistant

Director (PMLA), the Additional Inspector General, Registration &

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Stamps, Jaipur has been requested to ensure that the immovable

properties enumerated therein, shall not be

transferred/sold/disposed/alienate without obtaining prior

permission from this Directorate. Indisputably, the petitioners can

always prefer an independent writ petition against the order dated

11.02.2022 passed under Section 5 of the Act of 2002 subject to

objection as to its maintainability. It is a settled legal proposition

that subsequent event should be permitted to be incorporated

liberally by way of an amendment in the pleading to minimize or

shorten the litigation. Their Lordships have, in case of Sampath

Kumar Vs. Ayyakannu & Anr.,(2002) 7 SCC 559, held as

under:

"6. It is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arisen to the plaintiff during the pendency of the suit. According to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possession of the property since before the institution of the suit itself.

7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court it was one to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiffs revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case,

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allowing the amendment would curtail multiplicity of legal proceedings.

9. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof."

In the present case, reply to the writ petition is yet to be

filed by the respondents.

In case of Ragu Thilak D. John Vs. S. Rayappan & Ors.,

(2001) 2 SCC 472, their Lordships held as under:

"4. In view of the subsequent developments, the appellant filed an application under Order 6 Rule 17 for the amendment of the plaint for adding paras 8(a) to 8(f) in his plaint. The trial court rejected his prayer and the revision petition filed against that order was dismissed by the High Court vide order impugned in this appeal, mainly on the ground that the amendment, if allowed, would result in introducing a new case and cause of action. It was further held that as the appellant was seeking recovery of damages, the amendment could not be allowed as it would allegedly change the nature of the suit. It was also observed that the amendment sought was barred by limitation.

5. After referring to the judgments in Charan Das v. Amir Khan, L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., Ganga Bai v. Vijay Kumar, Ganesh Trading Co. v. Moji Ram and various other authorities, this Court in B.K.Narayana. Pillai v. Parmeswaran Pillai held: (SCC p. 715, para 3) "3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of

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guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."

6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plant which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for."

In the present case, the gravamen of objection by the

respondents is that the proposed amendment incorporating

challenge to the order dated 11.02.2022 passed under Section 5

of the Act of 2002 would change nature of the litigation and it

would also be hit by the principle of availability of alternative

remedy available to the petitioners against the order impugned, is

of no avail as merits of the proposed amendment cannot be

examined by this Court at this stage.

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In view thereof, this Court deems it just and proper to allow

the applications filed by the petitioners seeking amendment in the

writ petition as also in the stay application. The memo of amended