9911796707
TMI Blog2001 (1) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... this application neither of the parties has filed any affidavit-in-opposition. The petitioners and added parties and/or intervenors apart from advancing oral submission have filed written notes of arguments but other parties were contended with oral submission. 3. Dr. Singhvi, learned Advocate for the petitioners submitted various aspects both on the question of jurisdiction and my authority as to whether I can entertain the aforesaid application at this stage without deciding the question of jurisdiction in the writ petition itself. 4. He contends that question of territorial jurisdiction for entertaining and trying the present amendment petition is absolutely of no relevance. In this situation the correct procedure would be to first grant amendment and, thereafter, to decide the question of territorial jurisdiction. In support of his submission he has relied on the following decisions :- (i) AIR 1958 All. 96, (ii) AIR 1983 Cal. 384, (iii) AIR 1953 Hyderabad 212, (iv) AIR 1959 Rajasthan 146, (v) AIR 1949 Madras 208, (vi) AIR 1982 Orissa 25, (vii) AIR 1932 Kerala 28, (viii) AIR 1969 N 75, (ix) AIR 1973 Guj. 283 and (x) AIR 1985 Bom. 462. 5. In the present case, he con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.C. 1087 and (vii) AIR 1987 Orissa 255. 9. Dr. Singhvi contends that delay in taking out the application is of no relevance since the amendment has been allowed even after the court has closed arguments in a matter. He seeks to rely for this proposition on two decisions reported in AIR 1993 MP 248 and AIR 1969 S.C. 1267. On the question of territorial jurisdiction of this Court it is submission of the writ petitioner advanced by Dr. Singhvi alternatively that in order to decide this question the court is to look into the averments of the writ petition only nothing more nothing less. 10. He contends perusal of the Cause Title of the original writ petition that the subject matter of the writ petition is stated and the same being the notification dated 11th December, 1998 issued by the Director General of Foreign Trade, Ministry of Commerce, Government of India, New Delhi under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992. 11. He contends that the places of business of the petitioners, as stated in the Cause Title, are situate within the territorial jurisdiction of this Hon ble Court. Besides the notification dated 11th December, 1998, continuance of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he part of cause of action. After having noted the aforesaid amendment it has been held by the various courts that effect of the order which is the subject matter of the writ petition is felt would confer territorial jurisdiction on the High Court within whose territorial limit the place of felt effect situates. In this context the following decisions have been relied on : (i) AIR 1983 Cal. 307 (Paragraphs 24-25), (ii) AIR 1967 Bom. 355 paragraph 5, (iii) AIR 1971 Madras 155 (paragraph 8), (iv) 1981 (8) E.L.T. 730, (v) 1990 (49) E.L.T. 179, and (vi) 1987 (31) E.L.T. 895. 14. Learned Advocate General appearing on behalf of Essar Steel India Ltd. one of the supporting respondents in his argument reiterates elaborately the contention of Dr. Singhvi and brought additional decisions on the question of jurisdiction and amendment. 15. Mr. Jayanta Mitra, learned Senior Advocate appearing for the Steel Authority of India is one of the respondents though advanced separate argument but substance thereof is identically same with that of Dr. Singhvi and the learned Advocate General. Mr. Mitra has also relied on the same decision, however, he drew my attention to the relevant paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in 1985 (3) SCC 217, 1994 (4) SCC 711, 1998 (108) E.L.T. 251 and 1988 All. 36. 20. On merit of this amendment application they contend that there is no question of amendment in this matter. The principal grievance in the writ petition is against the decision of the Designated Authority dated 8th February, 1999. This decision was taken at and communicated by letter dated 8th February, 1999 issued by the Designated Authority, from New Delhi. 21. They contend realising the futility of the main prayers of the writ petition, for the purpose of granting amendment emphasis is sought to be laid by the petitioners upon the prayers (a) (iii) and (d) of the writ petition. In any event, allegations and averments made in the proposed amendment are not the cause of action nor the same have any nexus with the subject matter of the writ petition. In order to maintain a writ, action either initially or by way of amendment, one has to establish that there is subsisting legal right and then breach thereof which causes damage and, also legal injury. No sach case has been made out in the proposed amendment. The two notifications which are sought to be brought by way of amendment did not hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said notification to expire and no application for amendment was made. Now after more than 10 months the present application for amendment is taken out, the same is barred not only because of delay but by reason of the fact as the proposed amendment seeks to introduce a futile, infructuous and mala fide point. 25. Having heard the learned Advocates for the parties in this amendment application I am to consider whether I will decide the question of jurisdiction of this Court while determining the question of amendment or not. 26. The learned Advocates for all the parties have cited a number of decisions on the aforesaid point apparently both in favour and against the aforesaid proposition. After considering the principles laid down by the various Courts on this point and having considered the sequence of events of this case I think it fit question of jurisdiction at this stage need not be decided and the same should be decided at the time of hearing of this application on merit. Since the learned lawyers of both the parties have already addressed on the question of jurisdiction so I will not permit any of the learned lawyers or parties to address once again on this question. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y amendment of the plaint to bring the case within its jurisdiction. 32. The decision of the learned Single Judge of this Court reported in AIR 1987 Cal. 24 has rather observed, following the earlier decision of this Court reported in AIR 1960 Cal. 540 and a decision of Bombay High Court reported in AIR 1950 Bom. 345 that it is permissible for the court to allow amendment of the jurisdictional fact which was lacking originally. In other words, if the plaint did not disclose that the court had jurisdiction the plaintiff was entitled to show other facts that it had jurisdiction. I respectfully accepting observation of the learned Single Judge, Justice C.K. Banerji, hold that the court can entertain an application for amendment of the plaint in order to incorporate the jurisdictional fact provided reading as a whole of the plaint and the proposed amendment court finds that it does not lack inherent jurisdiction, then it obviously follows logically in order to decide this amendment application the court will not decide the question of jurisdiction at the first instance. The court will examine whether by amendment the jurisdictional fact has been brought or not, otherwise if the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has adopted under the Rule 53 relating to constitutional matter, the provision of Civil Procedure Code as far as possible). Order 6 Rule 17 : The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such forms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 36. Such questions obviously must have nexus and/or relation with the controversy arose at the time of filing of the suit. Therefore in order to decide this question, to my mind, the duty of the Court is to examine what is controversy between the parties highlighted in the original pleading. Questions in relation to different controversy between the same parties cannot be brought into one litigation that will result in jumbling of the controversies which may lead to confusion to the Court. 37. All the decisions cited as above at the bar in support of amendment of new cause of action or subsequent event are in my view repetition and reiteration of the same principle and I cannot qaarrel with them. The question is applicability of the aforesaid prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits. (para 27) By virtue of the aforesaid communication dated 8th Febtuary, 1999 the concerned respondents not only allowed the countries mentioned in the second anti-dumping petition to go scot free in spite of instances of dumping of the said items of import, but in the near future if the aforesaid notifications are modified to the detriment of your petitioners and/or withdrawn, your petitioners will be exposed to the high risk of anti-dumping of the said items once again and before anti-dumping duties are imposed again a considerable passage of time will pass causing irreparable loss and injury to the petitioners. (para 29) 40. Dr. Singhvi, learned Advocate General and Mr. Jayanta Mitra, Senior Counsel contend in chorus that apart from the aforesaid grievance there is another grievance which is interconnected and inextricably linked with non-disposal of second anti-dumping petition, that the petitioner and supporting respondents were seriously and genuinely apprehending that the notification by which floor price of H.R. Coils of 302 dollars per Metric Tonne would very soon be withdrawn and/or further notification would be issued reducing the floor price. The reason for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... government that anti-dumping petition needs to be decided in favour of the applicants. This question may be a relevant factor before the Designated Authority who decides the application for imposition of anti-dumping duty. So I hold that the so-called petitioner s a quia timet action is absolutely misplaced here. 44. By the proposed amendment the writ petitioner wants to challenge notification dated 1-11-1999 being No. 31 (RE-99) 1997-2002 by which the floor price of H.R. Coil was reduced from US D 302 per Metric Tonnes and then withdrawn altogether. The whole grievance of the petitioner is that the floor price should not have been withdrawn at all keeping this second anti-dumping petition undisposed on merit. This case has been termed to be a subsequent event and/or a new cause of action in order to bring within the scope of controversy between the parties. I observed above subsequent event must have a relation and/or nexus with the controversy which existed at the time of filing of the lis. The controversy herein as indicated above relates to non-disposal of the second anti-dumping petition by the Designated Authority in accordance with law. No case has been made out as a sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new cause of action are absolutely inappropriate here as there is no prima facie entertainable case. Therefore I do not find any merit on this amendment application. 47. Moreover I find this application is wholly mala fide and this has been taken out at a stage when the hearing of the writ petition was being taken up. It is not that the so-called subsequent event was not within the knowledge of the writ petitioner and this has occurred as far back as in November 1999. This could have been brought at that stage but it was not done so rather an application for interim relief was made after the aforesaid notification was issued, for maintaining floor price of 302 US dollars per Metric Tonne for H.R. Coils. Had there been any genuine grievance of the petitioners they could have got it incorporated by way of amendment at that stage, this suggests that this is not the grievance of the petitioner canvassed in the writ petition. According to me this is abuse of process of the court and it was resorted to aiming at prevent the matter being disposed of finally. So this application is bound to be and is hereby dismissed with costs assessed at 500 Gns. to be paid to the respondent Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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