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TMI Blog1973 (11) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... r was without the authority of law. It was further prayed that a declaration be issued to the effect that section 132 of the Income-tax Act (hereinafter referred to as "the Act"), did not authorise the personal search of any person or seizure of any property in the hands or in the pocket of such person. It was also prayed that a declaration be issued that rule 112 of the Income-tax Rules does not authorise any Income-tax Officer to make search of the person and seize goods from him unless a search warrant was issued against him or unless he was an agent of the person guilty of tax evasion. It was further prayed that search and seizure of the goods and all the proceedings taken by the respondents on the 1st August, 1972, be quashed. The petitioner also prayed for a writ of prohibition restraining the respondents from taking further proceedings or to make any assessment under section 132(5) of the Act. Lastly, it was prayed that the respondents be directed to return the goods seized from the petitioner on August 1, 1972. The above mentioned prayers were made mainly on the grounds : (i) that the search warrants authorised the respondents to make search of the business premises of Mess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature on the documents were his. Upon the Mr. Agarwal, learned counsel for the petitioner sought time to file a rejoinder to the answer of the income-tax department and the case was posted for rejoinder on 23rd October, 1972. On 23rd October, 1972, instead of filing the rejoinder, Mr. Agarwal, counsel for the petitioner, prayed that he be permitted to amend the petition and two weeks time was allowed for filing an application for amendment. On November 9, 1972, an application for amendment was made on behalf of each of the petitioners seeking extensive amendments by inserting a number of paragraphs by deleting some of them and by adding and substituting a number of grounds on which the writ was sought and also by deleting and adding the paragraphs in various clauses of grounds. The proposed amendments may be classified under the following categories : Category I : (1) Additional inconsistent facts which were available to the petitioner at the time of the filing of the writ petition and the grounds and reliefs arising therefrom. This head comprises the proposed amendment contained in para. 6(a) and 6(aa) and new grounds Nos. (ii), (iii), (iv), (v), (va), (vb), (vc), (vd) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law and the same should be disallowed. We have heard learned counsel for the parties on the amendment application. We shall deal with the amendment application under each category. Category I : As regards the new facts which are sought to be introduced it may be noticed that the case set up in the original writ petition is that the concerned officer who conducted the search and effected the seizure of the goods from the concerned petitioner was not at all authorised. The petitioner now seeks to give up this stand and, contrary to it, asks to substitute an inconsistent case that the authorised warrants in the case of each of the petitioners were obtained after knowing the list of articles with each of the petitioners in consequence of a conspiracy entered into by the Commissioner of Income-tax and the officer concerned. This in our opinion is nothing but an endeavour to introduce totally a different new and inconsistent case. It is true that the provisions of the Code of Civil Procedure are applicable to civil proceedings including the writ petitions as far as practicable by virtue of section 141 of the Code of Civil Procedure. But it has to be borne in mind that the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s already indicated, the question embodied in the additional issue was not raised in the pleadings. The appellants founded their claim on the ground that the land was ancestral and it was on that ground that they challenged the right of the widow to make the gift. Not once during the proceedings in the trial court did they suggest that even if the land was found to be non-ancestral the widow would still be incompetent to dispose of it. In Eshenchunder Singh v. Shamachurn Bhutto Lord Westbury described, it as an absolute necessity that the determinations in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. The course decided upon by the learned District Judge offended against this principle and their Lordships consider that he was rightly overruled. In asking the Board to allow the plaint to be amended at this stage attention has been drawn to the provisions of section 153 and Order 6, rule 17, Civil Procedure Code. The powers of amendment conferred by the Code are, very wide, but they must be exercised in accordance with legal principles, and their Lordships cannot allow an amendment which would involve the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or to do complete justice between the parties but none of the authorities relate to the amendment of writ petitions between the parties. Even such amendment cannot be allowed as a matter of course. It is in the discretion of the court to allow amendment by way of introduction of subsequent events if in its opinion it is just and necessary for finally deciding the controversy between the parties. In Rajeshwardayal v. Padam Kumar Kothari, Jagat Narain J. had occasion to consider this aspect of the matter. It has been held in that case that amendment introducing cause of action arising subsequent to the filing of a suit cannot be allowed except in exceptional cases. The learned judge had examined some of the authorities cited by the learned counsel and was of the opinion that it is only in exceptional circumstances that the court may allow an amendment of the plaint as to include the cause of action which had not accrued on the date of the institution of the proceedings, and that too under the inherent power of the High Court and not under Order 6, rule 17, Civil Procedure Code. B.N. Saoji v. State of M. P. is an authority directly in point. That case related to a petition for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timately found to be without jurisdiction on final hearing then this court may consider the matter if it finds the entire action of the respondents without jurisdiction. But that authority in no way supports the learned counsel seeking the amendment. We are, therefore, not inclined to grant amendment by allowing introduction of post-writ facts and relief in regard to the quashing of assessment order passed under section 132(5) of the Income-tax Act. Proposed amendments mentioned under the second category are, therefore, disallowed. Category III : The new additional grounds categorised under category III are legal grounds and are in no way inconsistent or prejudicial to the other side and appear to be necessary for a just decision of the controversy before us. There can be, therefore, no objection to allow incorporation thereof by way of amendment. The proposed amendments mentioned under category III are, therefore, allowed. In the result, the amendments under categories I and II are disallowed and amendments in category III are allowed. The amendment applications, therefore, stand disposed of in the terms indicated above. This decision will mutatis mutandis govern the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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