Gujarat High Court
Bandish Saurabh Soparkar vs Union Of India on 27 December, 2019
Author: Harsha Devani
Bench: Harsha Devani, Sangeeta K. Vishen
C/SCA/17329/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17329 of 2017
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BANDISH SAURABH SOPARKAR
Versus
UNION OF INDIA & 2 other(s)
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Appearance:
MR SN SOPARKAR, SENIOR ADVOCATE with MRS SWATI
SOPARKAR(870) for the Petitioner(s) No. 1
MR MR BHATT, SENIOR ADVOCATE with MRS MAUNA M BHATT(174) for
the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 27/12/2019
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. The learned advocate for the petitioner has tendered a draft amendment seeking to add paragraphs 6, 6.9 and 6.10 to the petition as set out in the amendment.
2. By virtue of the draft amendment, the petitioner seeks to amend the petition to bring on record the fact that because of the reference of the decision of Supreme Court in Justice K.S. Puttaswamy (Retd.), (2019) 1 SCC 1, to the Larger Bench by the judgment rendered in Civil Appeal No.8588 of 2019, the validity of the Aadhaar Act itself is now under scrutiny. According to the petitioner, if the Supreme Court holds that the Aadhaar Act could not have been passed as a Money Bill, it would have the necessary impact on section 139AA of the Page 1 of 6 Downloaded on : Sat Jan 18 01:52:26 IST 2020 C/SCA/17329/2017 ORDER Income Tax Act, 1961 also becoming invalid.
3. Mr. S.N. Soparkar, Senior Advocate, learned counsel for the petitioner, invited the attention of the court to the decision of the Supreme Court in Lekh Raj v. Munilal and others, (2001) 2 SCC 762, wherein it has been held thus:-
"11. The law on the subject is also settled. In case subsequent event or fact having bearing on the issues or relief in a suit or proceeding, to which any party seek to bring on record, the Court should not shut its door. All laws and procedures including functioning of courts are all in aid to confer justice to all who knocks its door. Courts should interpret the law not in derogation of justice but in its aid. Thus bringing on record subsequent event, which is relevant, should be permitted to be brought on record to render justice to a party. But the court in doing so should be cautious not to permit it in a routine. It should refuse where a party is doing so to delay the proceedings, harass other party or doing so for any other ulterior motive. The courts even before admitting should examine, whether the alleged subsequent event has any material bearing on issues involved and which would materially effect the result. In Pasupuleti Venkateswarlu vs. The Motor & General Traders, (1975) 1 SCC 770, this Court has very clearly held to the same effect:
"It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink as it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. Nor can Page 2 of 6 Downloaded on : Sat Jan 18 01:52:26 IST 2020 C/SCA/17329/2017 ORDER we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."
3.1 Reliance was also placed upon the decision of the Supreme Court in Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385, wherein the court held thus:-
"17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.
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 Page 3 of 6 Downloaded on : Sat Jan 18 01:52:26 IST 2020 C/SCA/17329/2017 ORDER 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.
20. .... The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting malafide. There are a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice."
3.2 It was submitted that during the pendency of the petition, a subsequent event has occurred, namely that the correctness of the earlier view is pending before the larger bench and hence, in the light of the principles enunciated in the above decisions, the amendment deserves to be allowed.
4. Opposing the amendment, Mr. M.R. Bhatt, Senior Advocate, learned counsel for the respondents, submitted that the proposed draft amendment and the relief sought would clearly go beyond the pleadings and contentions raised in the Page 4 of 6 Downloaded on : Sat Jan 18 01:52:26 IST 2020 C/SCA/17329/2017 ORDER petition and alters the original cause of action. It was submitted that the prayers prayed for in the petition are restricted to acceptance of the applicant's return filed for assessment year 2017-18 filed electronically and to declare that section 139AA violates article 21 of the Constitution of India, which is now not available in view of the decision of the Supreme Court in the case of Justice K.S. Puttaswamy (Retd.) (supra), inasmuch as, even after referring the issue to the larger bench as to whether the Aadhar Act could have been passed as a Money Bill, the other issues decided in that decision have not been touched. It was contended that the proposed draft amendment would materially alter the nature and character of the petition and, therefore, cannot be granted. It was submitted that by way of the proposed draft amendment the petitioner desires to put forth an entirely new case which would change the entire complexion of the petition and is, therefore, impermissible. It was, accordingly, urged that the amendment may not be allowed.
5. In the present case, while it is true that while referring its decision in Justice K.S. Puttaswamy (Retd.) (supra) to the Larger Bench, the Supreme Court has not touched the issues raised in the present petition viz. violation of the petitioner's right to privacy and the validity of section 139AA of the Act, both of which stand concluded against the petitioner; nonetheless, the subsequent event of reference of the issue as to whether the Aadhaar Bill could have been passed as a Money Bill has a direct impact on the case of the petitioner, inasmuch as, if it is held that the Aadhaar Act could not have been passed as a Money Bill, the provisions of section 139AA of the Income Tax Act, 1961 would be rendered nugatory, Page 5 of 6 Downloaded on : Sat Jan 18 01:52:26 IST 2020 C/SCA/17329/2017 ORDER inasmuch as, section 139AA mandates quoting of Aadhaar number in the return of income and intimation of the Aadhaar number to the competent authority, failing which the permanent account number allotted to such person shall be deemed to be invalid. Thus, the court is of the view that the subsequent event, which is relevant for the purposes of the present petition, deserves to be permitted to be brought on record in the interest of justice.
6. The amendment is, therefore, allowed. The same shall be carried out forthwith.
7. Since the decision of the Supreme Court in Rojer Mathew v. South Indian Bank Ltd., Civil Appeal No.8588 of 2019, has a bearing on the outcome of the present petition, the petition is adjourned sine die. The parties will be at liberty to move a note to circulate the matter as and when the decision of the Supreme Court in the case of Rojer Mathew v. South Indian Bank Ltd., Civil Appeal No.8588 of 2019, is delivered and made available.
(HARSHA DEVANI, J.) (SANGEETA K. VISHEN,J) Z.G. SHAIKH Page 6 of 6 Downloaded on : Sat Jan 18 01:52:26 IST 2020