By TIOL News Service

NEW DELHI, SEPT 10, 2015: THIS is an appeal by the DGFT against the order of Single Judge. Vide the impugned order, the Single Judge allowed the application filed by the respondent under Order VI Rule 17 of the CPC, a per which a Court may at any stage of the proceedings allow either party to alter or amend his pleading.

The respondent filed a writ petition seeking a Writ of Certiorari for setting aside the communication/order dated 25.3.2011 issued by the appellant putting the respondent on the Denied Entity List (DEL) issued by the appellant.

During pendency of the writ petition on 27.3.2015 the Additional Director General of Foreign Trade, Mumbai issued a Show Cause Notice to the respondent for having prima facie violated the provisions of The Foreign Trade (Development and Regulation) Act, 1992. The respondent was called upon to show cause why its Importer- Exporter Code No.(IEC) should not be cancelled with immediate effect. Pursuant to receipt of the said Show Cause Notice dated 27.03.2015 the respondent has filed an application under Order VI Rule 17 CPC seeking amendment in the prayer clause of the writ petition for the purpose of adding the Show Cause Notice dated 27.03.2015 in the order/communication sought to be impugned.

The impugned order dated 03.08.2015 of the Single Judge permitted the amendment application holding that the amendment sought will not change the nature of the petition and is formal in nature. This order of Single Judge is now challenged by the DGFT.

After hearing both sides, the High Court held:

A perusal of the new contentions shows that now the respondent seeks to, on facts and law, contend that the contentions as stated by the appellant in the show cause notice dated 27.03.2015 are erroneous and the said show cause notice is liable to be quashed.

It is clear that by the proposed amendment which has been allowed by the impugned order, the nature of the writ petition gets substantially and materially altered and changed from the original writ petition.

In the context of amendments of pleadings in a suit the legal position is well settled. Amendments which seek to add entirely new cause of actions which virtually amount to substitution of a new plaint or a new cause of action in place of what was originally there, would normally be refused by a Court.

The amendment now sought by the respondent has the effect of changing the entire writ petition substantially. New facts and issues are being added to the writ petition. The amended writ petition would virtually tantamount to substitution of an altogether new case when compared to the original case. It is appropriate that the respondent challenges the Show Cause Notice in different proceedings and not mix up the facts and submissions.

Accordingly, the High Court set aside the order of Single Judge and allowed the appeal.

(See 2015-TIOL-2087-HC-DEL-CUS)