Research › Browse › Judgment

Patna High Court · body

1992 DIGILAW 443 (PAT)

Raj Kishore Singh v. Bina Devi

1992-12-03

DHARAMPAL SINHA

body1992
Order Heard learned counsel for the petitioner and respondent no. 1 as well as the learned counsel for Respondents No. 2, 7, 8, 13 and 14 on the petition at flag 7' which has been filed under Order 6, rule 17 of the Code of Civil procedure 'the Code' for short) read with section 87 of the Representation of People Act, 1951 ('the Act' for short). 2. In this petition, prayer has been made for substituting a fax message which is attached with this petition at the place of Annexure-2 which is another Fax-message (both issued by the Secretary of the Election Commission) on the ground that by mistake a wrong Fax-message had been made annexure-2 and attached with the election petition in place of the Fax-message attached with this amendment petition which ought to have been attached. 3. It has been submitted by the learned counsel for the petitioner that in the election petition (vide para 25) it has already been stated that under the direction of the Election Commission of India the Secretary of the Election Commission of India sent a Fax-message to the Returning Officer for excluding the votes of Booths No. 141 and 161 to 168 and further directed to declare the result. According to the submission the Fax-message about which reference has been made in para 25 is not that Fax-message which is attached with the amendment petition and should have been made Annexure-2 to the election petition, but due to inadvertent mistake another Fax-message had been made annexure-2. It is pointed out that the Fax-message no, sought to be substituted by way of amendment contains reference to Booths No. 141 and 161 to 168, but the Fax-message filed by the election petitioner as Annexure-2 is a different one making no reference to any such Booth number as are mentioned in para 25 of the election petition. The amendment, according to his submission, is necessary to bring on the record the correct Fax-message consistent with the facts which have already been asserted in the election petition. 4. Learned counsel for the respondent No.1 has strongly contended that such amendments has been proposed in the instant case is not permissible. The amendment, according to his submission, is necessary to bring on the record the correct Fax-message consistent with the facts which have already been asserted in the election petition. 4. Learned counsel for the respondent No.1 has strongly contended that such amendments has been proposed in the instant case is not permissible. According to his submission, in election cases, amendment can only be made only to furnish better particulars of corrupt practice as contemplated by the provision of sub-section (5) of section 86 of the Act, but not for substitution of an 8nnexure to the election petition. In course of argument, he relied upon decisions of the Supreme Court reported in AIR 1969 Supreme Court 677 (Mohan Raj v. Surendra Kumar Taparia and others) : AIR 1969 Supreme Court 872 (K. Venkateshwara Rao and another v. Bekham Narsiamha Reddi and others) and AIR 1969 Supreme Court 1201 (Samant N. Balakrishna v. George Farnandes and others). He also contended that the power of amendment so far as it relates to amendment of election petition is subject to the provision of the Act and the Rules framed thereunder and according to his submission, the power of amendment in election case is very limited. He further contended that the proposed amendment will amount to filing a fresh election petition by adding a new ground and that at least it will amount to introducing a fresh particular which cannot be permitted. 5. Learned counsel for Respondents No. 2, 7, 8, 13 and 14, on whose behalf a separate written statement had been filed, has submitted that the aforesaid amendment is fit to be allowed and he has pointed out that in fact the Fax-message which is now sought by the election petition to be brought on the record has already been brought on the record as annexure-B to the written statement filed by them and so it is already on the record. 6. After careful consideration of all the submissions made by the learned counsel and considering the nature of the proposed amendment, I am of the opinion that the amendment, prayed for, substitution of the Fax-message of this amendment petition in place of Annexure-2 to the election petition is fit to be allowed for the reasons indicated below. 6. After careful consideration of all the submissions made by the learned counsel and considering the nature of the proposed amendment, I am of the opinion that the amendment, prayed for, substitution of the Fax-message of this amendment petition in place of Annexure-2 to the election petition is fit to be allowed for the reasons indicated below. In the first place this Fax-message now sought to be brought on the record seems to be consistent with the facts which have already been asserted in para 25 of the election petition. Indeed, the Fax-message which is already annexed in the election petition does not seem to be in conformity with the assertions made in para 25 of the election petition and obviously by the proposed amendment only the mistake inadvertently committed of annexing wrong Fax-message will stand rectified. Moreover, the Fax-message has already been brought on the record as Annexure-B to the written statement of respondents No. 2, 7, 8, 13 and 14. This amendment is not likely to cause any prejudice also to Respondent No. 1 because he has already been made aware about the Fax-message by the assertions made in para 25 of the election petition. The proposed amendment has not been mace belatedly nor it is mala fide and it is now settled that all amendments if not mala fide and if not made at a very belatedly stare or will not cause prejudice to the other side and does not change the nature of the case, should be allowed. 7. I do not find any substance in the argument that the amendment will amount to filing a fresh election petition on new ground; nor I am convinced of the contentions of the learned counsel for the respondent No. 1 that the election law does not permit such amendment as has been proposed. True it is that so far as addition or deletion of the names of the parties is concerned no amendment seems to be permissible because of provision of the section 82 of the Act which makes specific provision as to who are the persons who should be joined as respondents. True it is that so far as addition or deletion of the names of the parties is concerned no amendment seems to be permissible because of provision of the section 82 of the Act which makes specific provision as to who are the persons who should be joined as respondents. It is also true that when some allegation of corrupt practice has been made in the election petition, the Act further contains some further provision as to what should be included in the petition vide clause (b) of section 83 (1) of the Act and there is some specific provision (in subsection (5) of section 86) regarding amendment when sought to be made in any particulars of corrupt practice alleged in the election petition. The decision of the Supreme Court relied upon by the learned counsel for the Respondent No. 1 appears to relate to matter of amendment relating to parties or relating to corrupt practice of their particulars. The ratio of any of those decisions, in my opinion, is not at all applicable to the amendment proposed to be made in this case. 8. It may be noticed that in this case no corrupt practice had been alleged against Respondent No. 1. Even some of the decisions cited by the learned counsel for the Respondent No. 1 appear to indicate that the court in appropriate cases may allow amendment, though the decisions also indicate that the prayer of amendment is limited in such matters where there are specific provisions made in the Act and no such amendment should be allowed as would be inconsistent with the provisions of the election law. In the present case as already indicated above, the proposed amendment is not an amendment of that nature to which the ratio of the Supreme Court decisions relied above would apply; rather it appears that it is necessary in the interest of justice to rectify an inadvertent mistake which seems to have been committed and to bring on the record the correct Fax-message about which assertions have already been made in para 25 of the election petition. 9. The petition is, accordingly, allowed. 10. Respondents may file additional written statement if any in the light of the amendment allowed within three weeks from today. 11. In the meantime, call for the documents as per list of documents submitted. 12. 9. The petition is, accordingly, allowed. 10. Respondents may file additional written statement if any in the light of the amendment allowed within three weeks from today. 11. In the meantime, call for the documents as per list of documents submitted. 12. If the special messenger cost is deposited, as submitted by the learned counsel for the petitioner, same may be called for through special messenger.