Binod Kumar Singh v. Md. Illiyas Hussain — 1998 DIGILAW 766 (PAT)

Judgment A.N.Trivedi, J. 1. In this Election Petition the Petitioner had assailed the election of the Returned Candidate, Md. Illiyas Hussain, the respondent from 235, Dehri Assembly Constituency in the Election held in 1995 on the ground of improper counting of ballot papers and improper rejection of the Nomination Papers of Subhash Rai and Ramta Singh. The Petitioner, however, abandoned the challenge to the election of the Respondent on the ground of improper counting of ballot papers. 2. The case of the petitioner is that besides him and the Respondent, 63 other candidates filed their Nomination Papers to contest the said Election and after scrutiny, the Returning Officer rejected the nomination papers of 14 candidates and accepted the Nomination Papers of rest of the candidates. Then 14 candidates withdrew their candidatures within the prescribed period and only 37 candidates were left to contest the Election. It is further pleaded that Subhash Rai and Ramta Singh had correctly filled in their Nomination Papers and the entries as regards their Proposers were also correct and the Returning Officer did not find any infirmity or any substantial error in the entries made in the said Nomination Papers filed by Subhash Rai and Ramta Singh but he arbitrarily rejected their Nomination Papers. The reason assigned by the Returning Officer for rejection of the Nomination Paper of Subhash Rai was that his name did not find mention in the Part No. of the Electoral List as mentioned by Subhash Rai in his Nomination Paper. 3. As regards Ramta Singh it has been pleaded that the name of his Proposer is Suryadeo Singh, who was the voter and his name finds mention in the Electoral List in Part No. 104, Sl. No. 231 but the Returning Officer improperly rejected the Nomination Paper on a non existent reason that the name of Suryadeo Singh the Proposer of Ramta Singh does not find mention in Part No. 104, SI. No. 231 of the Electoral List. It was, therefore, prayed that the election of the respondent be declared as void. 4. No. 231 but the Returning Officer improperly rejected the Nomination Paper on a non existent reason that the name of Suryadeo Singh the Proposer of Ramta Singh does not find mention in Part No. 104, SI. No. 231 of the Electoral List. It was, therefore, prayed that the election of the respondent be declared as void. 4. Upon service of summons, the Respondent put in appearance and filed his written statement on 1.7.1996 and raised certain pleas with regard to the Malntainability of the Election Petition and further pleaded that the Nomination Papers of Subhash Rai and Ramta Singh were properly rejected, moreover they were dummy candidates set up by the Election Petitioner and that on the presentation of the Nomination Paper by Subhash Rai, the Returning Officer cursorily perused it as the enquiry at the time of presentation of Nomination Paper is peripheral in nature and since Subhash Rai presented his Nomination Paper at 2.47 p.m. i.e. precisely 3 minutes before the time expired for presentation of the Nomination Paper, there was not much time left with the Returning Officer to verify each and every column of the Nomination Paper with reference to the Electoral List as on that date as many as 45 Nomination Papers were filed. According to the Respondent neither Subhash Rai nor his proposer, Suresh Singh turned up before the Returning Officer on the day of scrutiny of Nomination Papers despite announcement made by the Returning Officer in this behalf earlier and the reason for rejecting the Nomination Paper of Subhash Rai is perfectly valid and it could not have been accepted as the error in the Nomination Paper of Subhash Rai was substantial in nature and no person muchless Subhash Rai and Suresh Singh raised any oral or written objection at the time of rejection of the said Nomination Papers before the Electoral Officer. 5. Subhash Rai filed Election Petition No. 15 of 1995 challenging the election of the Respondent on the ground of improper rejection of Nomination Paper which was dismissed by this Court for non- compliance of the peremptory order on 9.5.1996. 6. As regards Ramta Singh, it has been pleaded that he filled in his Nomination Paper mentioning Part No. 104 and instead of mentioning his Sl. 6. As regards Ramta Singh, it has been pleaded that he filled in his Nomination Paper mentioning Part No. 104 and instead of mentioning his Sl. No. as 231, mentioned 221 in the relevant column as also Part No. of the Proposer of Ramta Singh is mentioned as 104 and instead of mentioning Sl. No. 246 it was mentioned as 231, therefore, the rejection of the Nomination Paper by the Returning Officer on 24.1.1995 was perfectly valid. It is asserted that the defects in the two Nomination Papers are of substantial nature and were properly rejected by the Returning Officer and the Petitioner is not entitled to any relief. 7. On 22.7.1996 hearing the learned Counsel for the parties and upon examination of the pleadings, the following Issues were settled: (1) Whether the Nomination Paper of Subhash Rai was illegally and improperly rejected? If so, is the election of the Respondent void? (2) Whether the Nomination Paper of Ramta Singh was illegally and improperly rejected by the Returning Officer? If so, is the election of the respondent void? (3) Whether the Election Petition is fit to be dismissed for non-compliance of the Secs. 81, 82 and 117 of the Representation of People Act, 1951? (4) Whether the Election Petition is fit to be dismissed because it does not contain the concise statement of material facts as required under Sections 83(1)(a) of the Act? (5) Whether the Election Petition is fit to be dismissed under Order VII, Rule 11 of the Code of Civil Procedure read with Sec. 87 of the Act because the allegations are vague and no cause of action has been disclosed in the Election Petition? (6) Whether the allegations contained in the Election Petition are vague and liable to be struck off under Order Vi, Rule 16 of the Code of Civil Procedure read with Sec. 87 of the Act? (7) Whether Subhash Rai and Ramta Singh were dummy candidates set up by the Election Petitioner? (8) To what other relief or reliefs, the petitioner is entitled? 8. After hearing the learned Counsel for the parties. Issues 3, 4, 5 and 6 were decided in the negative and against the respondent by the order dated 4.9.1997 and it was further directed that hearing for recording the evidence of witnesses shall continue day to day with effect from 11.9.1997. 9. 8. After hearing the learned Counsel for the parties. Issues 3, 4, 5 and 6 were decided in the negative and against the respondent by the order dated 4.9.1997 and it was further directed that hearing for recording the evidence of witnesses shall continue day to day with effect from 11.9.1997. 9. A Special Leave Petition was filed by the respondent before the Apex Court challenging the order dated 4.9.1997. The Respondent prayed that the orders of. the Apex Court on the Special Leave Petition be awaited. Finally on 27.10.1997 on another request made on behalf of the respondent, the case was adjourned to 10.11.1997 awaiting the orders of the Apex Court when the learned Counsel for the respondent gave an undertaking that he shall not seek any further adjournment in the case. The Special Leave Petition preferred by the Respondent was dismissed by the Apex Court and the order hearing was fixed for 8.12.1997 and from 9.12.1997 witnesses on behalf of the petitioner were examined till 10.8.1998. From 7.9.1998 till 17.9.1998. 5 witnesses of respondent were examined and some more witnesses are to be examined by the respondent. 10. The Respondent had filed an application on 22.10.1997 for amendment of the written statement under Order VI, Rule 17, C.P.C. read with Sec. 87 of the Representation of the People Act, 1951 (hereinafter referred to as the Act). The petitioner filed objections to the application for amendment of the Written Statement only on 24-9-1998 and it was then that the Application for amendment was taken up for disposal. The Respondent moved two more Applications--one for summoning of witnesses and the another for summoning of documents. 11. In the application for amendment of the written statement, the respondent has stated in paragraph 4 that recently he has come to know that Suresh Singh S/o Sri Sitaram Singh whose name finds mention at Sl. No. 756 of Part No. 213 of 235, Dehri Assembly Constituency is a Lever Man (Class IV) in the Eastern Railway and is posted at Dehri-on-sone since last five years and the Respondent has also come to know that Suresh Singh had not put his signature on the Nomination Paper of Subhash Rai as a Proposer which was filed on 23.1.1995 at 2.47 p.m. The petitioner, therefore, sought leave to incorporate paragraph 24(a) after paragraph 24 in the Written Statement. The proposed amendment in the written statement is being reproduced herein. Paragraph 24(a):- -Thus it is stated that Suresh Singh son of Sitaram Singh whose name finds place at Serial No. 756, Part No. 213 of 235, Dehri Assembly Constituency is a Leverman (Class IV) in the Eastern Railway, Dehri-on-sone. He is posted at Dehri-on-sone Railway Station since five years. His Controlling Officer is Station Manager of Dehri-on-sone. He has not put his signature on the Nomination Paper of Subhash Rai, as Proposer which was filed on 23.1.1995 at 2,47 p.m. before the Returning Officer. The signature of Subhash Singh as a Proposer on the Nomination Paper of Subhash Rai is forged one. In that view of the matter, the Nomination filed by Subhash Rai on 23.1.1995 was improper, void, illegal and as such the Returning Officer rightly rejected the Nomination Paper of Subhash Rai. 12. The petitioner in his objections inter alia pleaded that at the time of scrutiny of the Nomination Paper of Subhash Rai, the Respondent did not raise any objection that his Proposer was a Lever Man employed in the Eastern Railway and was posted at Dehri-on-sone nor was any objection raised by the Respondent that the signature of Suresh Singh on the Nomination Paper of Subhash Rai was not genuine but was forged and that the proposed amendment are motivated to frustrate the Election Petition by setting up a new plea, a new case and a new ground unknown to the pleading of the Respondents Written Statement and the proposed amendment is not permissible in law and the application for amendment of the written statement is liable to be rejected. It has been asserted that in granting leave to the respondent to incorporate the proposed amendments in the written statement the effect would be that the respondent would change the nature of defence which is impermissible. 13. Mr. It has been asserted that in granting leave to the respondent to incorporate the proposed amendments in the written statement the effect would be that the respondent would change the nature of defence which is impermissible. 13. Mr. Ganga Prasad Roy, learned Senior Counsel for the respondent Returned Candidate contended that the definite case of the respondent in his written statement is that Ramta Singh and Subhash Rai or their Proposers or any person authorised by them was not present before the Returning Officer on the date of scrutiny and both Ramta Singh and Subhash Rai were dummy candidates set up by Binod Kumar Singh, the Election Petitioner and to save the election, the respondent is entitled to justify the rejection of the Nomination Paper of Subhash Rai on a ground other than on which it was rejected as this right is available to him in law and in support of the submission relied upon the decisions of the Apex Court in N.T. Veluswami Thevar V/s. G. Raja Nainar -- , Biradmal Singhvi V/s. Anand Purohit -- and J.H. Patel V/s. Subtian Khan -- . 14. Learned Counsel contended that the enquiry by the Returning Officer is summary in nature under Sec. 36 of the Act and the Election Petition being the original proceedings and not an Appeal against the order of the Returning Officer, fresh material can be adduced before the High Court to justify the order of the Returning Officer either for the improper rejection or improper acceptance of the Nomination Paper and, therefore, why the respondent seeks to incorporate a fresh ground not originally taken in the written statement as he had no knowledge about the same at the time of filing of the written statement, it is in the interest of justice and for the determination of real question involved in the Election Petition, that is to say, whether the Nomination Paper of Subhash Rai was properly rejected, therefore, the respondent is justified in seeking leave to incorporate the proposed amendment in his written statement to save his election. 15. Mr. 15. Mr. Ganga Prasad Roy, learned Senior Counsel for the respondent contended that there was no delay on the part of the respondent and the respondent promptly applied for amendment of the written statement and such leave to incorporate the proposed amendment ought to be granted and even if there was gross delay on the part of the respondent, the petitioner may be compensated with costs and in support of his submission relied upon the decision of the Supreme Court in Suraj Prakash Bhasin V/s. Smt. Rajrani Bhasin -- . Learned Counsel further submitted that it is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings subsequently by amendment of the pleadings and placed reliance upon the decision of the Supreme Court in Akshaya Restaurant V/s. P. Anjanappa -- . 16. Learned Counsel then contended that it is open to a Defendant to take contrary stands or contradictory stands and thereby the cause of action is not in any manner affected as the same would apply only to a case of the plaint being amended so as to introduce a new cause of action and placed reliance upon the decision of the Supreme Court in Basavan Jaggu Dhobi V/s. Sukhnandan Ramdas Choudhary 1995 Supp. 3 SCC 179. 17. He also submitted that it is settled law that the plaintiff is entitled to plead even inconsistent pleas and seek alternative reliefs and, therefore there is no reason why the Respondent should be denied leave to incorporate the proposed amendment when no prejudice or injustice would be caused to the Election Petitioner and in support of his submission relied upon the decision of the Supreme Court in G. Nagamma V/s. Siromananna -- . 18. He next contended that it cannot be said that the petitioner is being taken by surprise by the proposed amendment as in the cross-examination of the petitioner (P.W. 1) it was suggested to him that the signature of Suresh Singh is not genuine and is forged and at the earliest stage the respondent had sought leave to amend the written statement. 19. 19. Learned Counsel submitted that it is settled that procedural law should be so construed as to render justice whenever reasonably possible and the Code is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishment and penalties and therefore, the power of amendment of pleadings conferred by Order VI, Rule 17 of the Code should be liberally exercised. 20. Mr. S.N.P. Sharma, learned Senior Counsel for the petitioner did not dispute the proposition that it was open for a party to place fresh material before the Court and take a ground or a reason to justify the order of the Returning Officer on the Nomination Paper of the candidate whether it is a plea of improper acceptance of Nomination Paper or improper rejection of a Nomination Paper but such a ground or reason ought to have been pleaded by the party so taking the ground and reason in its original pleadings and such a party cannot be permitted to incorporate the ground or reason by way of amendment in the pleadings. 21. Mr. Sharma, referred to Sub-sec. (2) of Sec. 36 of the Act which is reproduced hereunder: 22. Learned Counsel then contended that an Election Petition can be amended only to give better particulars of corrupt practices already pleaded but an amendment cannot be permitted to incorporate a new corrupt practice and further that since material facts cannot be amended in the Election Petition, the same principle would apply in the case of an amendment proposed to be made In the written statement and placed reliance on the decision of the Madras High Court in M.A. Mutheah Chettiar V/s. Saw Ganesan and Ors. (XIII) Election Law Reports 201, and also on the decisions of the Apex Court in S.N. Balakrishna V/s. George Fernandez -- , Udhav Singh V/s. Madhav Rao Scindia -- , Dhartipakar Madan Lal Agrawal V/s. Rajiv Gandhi -- and S.A. Sapa V/s. Singora -- . 23. Elaborating his submission, Mr. (XIII) Election Law Reports 201, and also on the decisions of the Apex Court in S.N. Balakrishna V/s. George Fernandez -- , Udhav Singh V/s. Madhav Rao Scindia -- , Dhartipakar Madan Lal Agrawal V/s. Rajiv Gandhi -- and S.A. Sapa V/s. Singora -- . 23. Elaborating his submission, Mr. Sharma, learned Senior Counsel submitted that all material Acts have to be stated in the Election Petition and the written statement and the allegation that the signature of Suresh Singh is forged is a primary fact and that, the signature was not genuine gives a new cause of action and further that in the written statement it had not been pleaded that Suresh Singh is employed as a Lever Man in the Railways. Learned Counsel asserted that material facts as contemplated under Sec. 83(1)(a) of the Act cannot be amended either in the Election Petition or in the Written Statement. 24. He further submitted that the power of the High Court to grant leave to amend the pleadings while trying an Election Petition is subject to the restrictions envisaged in Sub-sec. (5) of Sec. 86 of the Act inasmuch as the High Court cannot allow any amendment of the petition which will have the effect of introducing new particulars not previously pleaded in the Election Petition and the same restriction is equally applicable to the power of the High Court while considering the Application for leave to amend the written statement moved by the respondent. 25. Learned Counsel for the petitioner then referred to various decisions of the Apex Court with regard to the principle of amendment of pleadings but it is not necessary to cite all of them except two latest decisions of the Apex Court cited by him, namely, Shrimoni Gurdwara Committee V/s. Jaswant Singh -- and Vijendra Kumar Goel V/s. Kusum Bhuwania -- . 26. 26. He, therefore, contended that when the limitation for amendment of the Election Petition is only 45 days from the date of declaration of the result of Election in question, a belated application for amendment of the written statement cannot be permitted in view of the aforementioned decisions of the Apex Court and stated that the same principle as is applicable in the case of amendment of the plaint where the claim is barred by limitation and would also apply in the case where the respondent/defendant seeks leave to incorporate amendment in the written statement and placed reliance on a decision of the Apex Court in Mohammad Ishaq V/s. Mohammad Iqbal and Mohammad Ali and Co. -- , and a Division Bench decision of the Assam High Court in Subhashni V/s. Krishna Prasad AIR 1956 Assam 79 and a Single Judge decision of the Punjab & Haryana High Court in Ishar V/s. Sudhesh Kumar -- . 27. I have considered the submissions made by the learned Counsel for the parties and the materials on record. 28. Admittedly the application for leave to amend the written statement was filed on 22.10.1997 much before the commencement of oral evidence of the petitioner, that is, from 9.12.1997. It is not necessary to refer to the reason assigned by the Returning Officer for rejection of the Nomination Paper of Ramta Singh as the proposed amendment relates to the rejection of the Nomination Paper of Subhash Rai. The Nomination Paper of Subhash Rai (Exhibit 2) was rejected by the Returning Officer on the ground that the name of the candidate did not find mention in the Part No. of the Electoral Roll as mentioned in the Nomination Paper of Subhash Rai. By the proposed amendment, the respondent seeks leave to support the rejection of the Nomination Paper by the Returning Officer on a ground other than which led to the rejection of the Nomination Paper by the Returning Officer. 29. We have already noticed the proposed amendment which is sought to be incorporated by the respondent in his written statement. In the amendment application filed on 22.10.1997 it has been stated by the respondent in paragraphs 4 and 5 of the Amendment application that he had recently come to know that Suresh Singh whose name finds place at Sl. 29. We have already noticed the proposed amendment which is sought to be incorporated by the respondent in his written statement. In the amendment application filed on 22.10.1997 it has been stated by the respondent in paragraphs 4 and 5 of the Amendment application that he had recently come to know that Suresh Singh whose name finds place at Sl. No. 756 of Part No. 213 of the Electoral Roll of 235, Dehri Assembly Constitutency is a Lever Man (Class IV) in the Eastern Railway posted at Dehri-on-sone since five years and further that Suresh Singh had not put his signature on the Nomination Paper of Subhash Rai as a Proposer which was filed on 23.7.1995. 30. The petitioner has filed his counter-affidavit objecting to the Amendment Application and in paragraph 8 thereof the reply to paragraph 4 and 5 of the Amendment Application is that the averments made therein are attracted with an ulterior motive to frustrate the principles of justice by setting a new plea, a new case on a new ground unknown to the pleading of his written statement. From the averments made in the counter-affidavit of the petitioner it is evident that the fact that the respondent had recently come to know about the facts stated in his Amendment Application which are sought to be incorporated in the written statement has nowhere been controverted and denied. Other legal and technical objections have been raised by the petitioner in his counter affidavit. It has also been stated that the Amendment Application had been filed earlier but it was only after the close of evidence of the petitioner and towards the closure of the evidence of the respondent that the Amendment Application has been moved, this clause is apparently incorrect as the Amendment Application had admittedly been filed on 22.2.1997 before the commencement of the evidence of the petitioner. During the course of hearing of the Amendment Application, Mr. S.N.P. Sharma fairly conceded that he is not taking an objection with regard to the stage at which the Amendment Application is being considered by the Court. 31. During the course of hearing of the Amendment Application, Mr. S.N.P. Sharma fairly conceded that he is not taking an objection with regard to the stage at which the Amendment Application is being considered by the Court. 31. In the Rejoinder Affidavit filed on behalf of the respondent the averments made in the counter-affidavit have been denied and it has been asserted that a copy of the Amendment Application was served on the learned Counsel for the petitioner prior to filing of the Amendment Application and there has been no suppression of any fact by the respondent and further that it is open for the respondent to place fresh material before this Court to show that the rejection of the Nomination Paper was not erroneous and justified the decision of the Returning Officer on a ground other than which led to the rejection of the Nomination Paper of Subhash Rai by the Returning Officer. 32. I am of the opinion that the respondent is neither taking an inconsistent plea or a mutually destructive plea in his written statement but is seeking leave to incorporate in the written statement new facts of which he had no knowledge at the time of filing of the written statement as to support the order of the Returning Officer rejecting the Nomination Paper of Subhash Rai. Besides it cannot be said that the petitioner has been taken by surprise for two reasons: (1) that the amendment application had been filed on 22.10.1997 much prior to the commencement of the evidence of the petitioner and (2) that in his cross- examination on 9.12.1997 the petitioner admitted that he did not know whether Suresh Singh is engaged anywhere and further that Suresh Singh is an employee of the Railway Department at Dehri-on-Sone nor could he say to which village does Suresh Singh belonged. However, by taking such a plea the cause of action which has accrued to the petitioner is not in any manner affected. 33. In these circumstances, in my view to determine the real question involved, that is to say, whether the rejection of the Nomination Paper of Subhash Rai by the Returning Officer is improper or not, it is in the interest of justice to permit the respondent to incorporate the proposed amendment in the written statement. 34. 33. In these circumstances, in my view to determine the real question involved, that is to say, whether the rejection of the Nomination Paper of Subhash Rai by the Returning Officer is improper or not, it is in the interest of justice to permit the respondent to incorporate the proposed amendment in the written statement. 34. There is no dispute between the parties, as noticed above, that the Election Petition is an Original proceeding and not an Appellate proceeding and it is open for a party to place fresh material before the Court trying an Election Petition to support an order of the Returning Officer either properly or improperly accepting a Nomination Paper or properly or improperly rejecting a Nomination Paper. 35. The Apex Court in Veluswami Thevar (supra), relied upon by the learned Senior Counsel for the respondent held that- ...The jurisdiction which a tribunal exercises in hearing an election petition even when it raises a question under Sec. 100(1)(c) is not in the nature of an appeal against the decision of the Returning Officer. An election petition is an original proceeding instituted by the presentation of a petition under Sec. 81 of the Act. The respondents have a right to file written statements by way of reply to it; issues have to be framed, and subject to the provisions of the Act, the provisions of the Civil Procedure Code regulate the trial, of the petition. All the parties have the right to adduce evidence, and that is of the essence of an original proceeding as contrasted with a proceeding by way of appeal. That being the character of the proceedings, the rule applicable is that which governs the trial of all original proceedings; that is, it is open to a party to put forward all grounds in support of or negation of the claim, subject only to such limitations as may be found in the Act. It was further held that- ...The enquiry which a Returning Officer has to make under Sec. 36 is summary in character. He may make "such summary enquiry, if any, as he thinks necessary"; he can act suo motu. It was further held that- ...The enquiry which a Returning Officer has to make under Sec. 36 is summary in character. He may make "such summary enquiry, if any, as he thinks necessary"; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under Sec. 100(1)(c) and Section 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the Returning Officer. Their Lordships while approving the decisions of the Rajasthan, Madhya Pradesh and Andhra Pradesh High Courts observed that- The question now under consideration came up directly for decision before the High Court of Rajasthan in Tej Singh v Election Tribunal Jaipur -- , and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground by the Returning Officer was defective on one or more of the other grounds mentioned in Sec. 36(2) of the Act, and that such a plea, if taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehars V/s. Vishwanath Y. Tamaskar 1958 15 ELB 260 it was observed by a Bench of the Madhya Pradesh High Court that in determining whether a nomination was improperly rejected, the Election Tribunal was not bound to confine its enquiry to the ground on which the Returning Officer rejected it and that even if the ground on which the Returning Officer rejected the nomination could not be sustained, the rejection could not be held to be improper if the Tribunal found other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti V/s. J.V. Narsing Rao, Special Appeal No. 1 of 1957 (Andh. Pra.) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the Returning Officer. We are in agreement with these decisions. 36. Pra.) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the Returning Officer. We are in agreement with these decisions. 36. Similar was the view taken by the Apex Court in Birad Mal Singhvi (supra) and J.H. Patel (supra) and it is, therefore, not necessary to refer to the observations made by their Lordships in these two decisions. 37. In Suraj Prakash Bhasin, (supra), the Apex Court while considering the question of amendment of plaint seeking inclusion of relief for dissolution of partnership and rendition of accounts where there was gross delay on the part of the plaintiff in seeking amendment observed that- In such cases we must remember the power of the Court to resort to the universal panacea for the pathology of negligence, indifference, slipshodness and other delinquencies of litigants. The Court, while allowing amendments, will in such cases, order heavy costs. 38. In the present case it may be that the petitioner may be entitled to costs but it cannot be said that there has been gross delay on the part of the respondent in praying for leave to amend the written statement in view of the facts and circumstances of this case. 39. In Akshaya Restaurant, (supra), the next decision relied upon by the learned Counsel for the respondent, their Lordships observed that it is settled law that even the admission can be explained and even inconsistent pleas should be taken in the pleadings. Their lordships found that in paragraph 6 of the written statement a definite stand was taken but subsequently in the Application for amendment, it was sought to be modified. In the present case the stand which was originally taken by the respondent is not sought to be modified but a further plea is sought to be incorporated which, as noticed above, is open to the party to take in his written statement or election petition, as the case may be. 40. In the other decision in Basavan Jaggu Dhobi (supra), relied upon by the learned Senior Counsel for the respondent, the Apex Court considered the case. 40. In the other decision in Basavan Jaggu Dhobi (supra), relied upon by the learned Senior Counsel for the respondent, the Apex Court considered the case. The case was that landlord sought eviction of the tenant under the Presidency Small Causes Court Act stating that the leave and licence granted in favour of the tenant came to be terminated by a notice and therefore he had to right to remain in possession and was liable to be evicted. In his defence the tenant pleaded that he was a joint tenant alongwith others but the plea of joint tenancy was negatived by the Courts. In appeal to the Supreme Court, the findings of the Courts were challenged on two grounds that by amending a written statement, an alternative plea opposing to the original stand of the defendant was not permissible; it, is not necessary to refer to the second ground of challenge as it is not relevant for the purpose of this case. Their Lordships held that- As regards the first contention, we are afraid that the Courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order VI, Rule 17, CPC by taking a contrary stand than what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action.... 41. In G. Nagamma (supra), referred to by the learned Senior Counsel for the respondent, the Apex Court held that it is settled law that the plaintiff is entitled to plead even inconsistent pleas. 42. It is true as urged by Mr. 41. In G. Nagamma (supra), referred to by the learned Senior Counsel for the respondent, the Apex Court held that it is settled law that the plaintiff is entitled to plead even inconsistent pleas. 42. It is true as urged by Mr. S.N.P. Sharma that under Clause (b) of Sub-section (2) of Sec. 36 of the Act the Returning Officer may reject the Nomination Paper of a candidate when he finds that there has been a failure to comply with any of the provisions of Sec. 33 or Sec. 34 of the Act and in the present case, the respondents definite stand in the written statement was that there had been non-compliance of the provisions of Sec. 33 of the Act as the errors in the Nomination Paper of Subhash Rai were of substantial nature and therefore only Clause (b) of Sub-sec. (2) of Sec. 36 of the Act was attracted. Yet nothing prevents the respondent to urge a further ground as envisaged under Clause (c) of Sub-sec. (2) of Sec. 36 of the Act that the signature of the proposer on the Nomination Paper is not genuine. 43. By proposing to take such a plea, it cannot be said that the respondent seeks to raise a plea which is inconsistent with his defence already set up in his written statement or the proposed plea is mutually destructive of the stand already taken in the written statement nor can it be said that a new cause of action is sought to be pleaded by the respondent as the cause of action has to be pleaded by the petitioner in his Election Petition and I am therefore of the opinion that the contentions of the learned Senior Counsel for the petitioner are not tenable. 44. The contention of the learned Senior Counsel for the petitioner that an amendment can only be permitted under the provisions of the Act for giving better particulars of corrupt practices already pleaded but an amendment cannot be permitted to incorporate new corrupt practice and in the context the reliance placed by the learned Counsel on the decision of the Madras High Court in N.A. Muthiah Chettiar (supra), as also the directions of the Apex Court in S.N. Balakrishna, Udhav Singh. Dhartipakar and S.A. Sapa (supra), support the contention of the learned Counsel. Dhartipakar and S.A. Sapa (supra), support the contention of the learned Counsel. However, these decisions relate to cases where in an Election Petition amendment was sought by the Election Petitioner which was not permissible under Sub-sec. (5) of Sec. 86 of the Act, moreover, these decisions relate to an Election Petition where the election of the Returned Candidate was challenged on the ground of-corrupt practices mentioned in Sec. 123 of the Act. In the present case neither the petitioner nor the respondent is alleging any corrupt practice so as to render the Election void and as suck reliance placed on the decision of the Madras High Court and the decisions of the Apex Court referred hereinabove do not in any manner support the objection of the petitioner that the purposed amendment should not be permitted to be incorporated in the written statement. 45. The contention of the petitioner that concise statement of facts as required to be stated under Sec. 83(1)(a) of the Act cannot be altered or amended is also untenable. Sec. 87 of the Act inter alia provides that subject to the provisions of the Act and the Rules made thereunder, every Election Petition has to be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure. Sec. 83 of the Act insofar as is relevant for the present case provides that an Election Petition shall contain concise statement of material facts on which the petitioner relies and is to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of the pleadings. Sub-rule (2) of Order VI, Rule 1, CPC also provides that every pleading shall contain, and contain only, a statement in concise form of material facts on which the party pleading reliance for his plaint or defence, as the case may be, but not the evidence by which they are to be proved. Sub-rule (2) of Order VI, Rule 1, CPC also provides that every pleading shall contain, and contain only, a statement in concise form of material facts on which the party pleading reliance for his plaint or defence, as the case may be, but not the evidence by which they are to be proved. However, no provision either of the Act or the Code of Civil Procedure has been brought to my notice by the Counsel which prevents the respondent in an election petition to seek leave of the Court to incorporate those facts in the written statement which had come to his knowledge after filing of the written statement, moreover, if the contention of the learned Senior Counsel for the petitioner is accepted, the respondent could under no circumstances seek leave of the Court to amend the written statement which would result in rendering the provisions of Order VI, Rule 17, CPC otiose. Besides in the present case nothing is sought to be deleted from the written statement but facts which had come to the knowledge of the respondent after the filing of the written statement are sought to be incorporated and this is permissible under Order VI, Rule 17, CPC. 46. The contention of the learned Counsel that the restrictions envisaged in Sub-section (5) of Sec. 86 of the Act are equally applicable while considering an Application for leave to amend the written statement by the petitioner is untenable. Sub-sec. (5) of Sec. 86 of the Act specifically deals with an Election Petition in which the Election Petitioner impugns the election of the Returned Candidate on the ground of corrupt practices. The decision of the Apex Court in Shiromani Gurudwara Committee (supra), relied upon by the learned Counsel for the petitioner, it was found that the Defendant had pleaded in the written statement that one Isher Singh had no title to property and they set up a title in the Darbar Sahib and that he had gifted the Darbar Sahib and eventually the parties, on the basis of issued raised, adduced evidence and at the end of the trial, the Defendant filed an Application under Order VI, Rule 17, CPC for amendment of the written statement pleading that Isher Singh had gifted over the property to Darbar Sahib Amritsar Shrimoni Gurudwara Prabandhak Committee and it was in possession as legatee of the property. It appears that the trial Court granted leave to the Defendant to incorporate the proposed amendment but in Revision the High Court set aside the order on two grounds, namely, (1) that inconsistent pleas are permissible to be taken in the written statement, it is not a case of inconsistence but mutually destructive of the pleadings and (2) for unexplained delay. Their lordships upheld the order of the High Court and observed that it is settled law that the Defendant can raise mutually inconsistent pleadings in the written statement but it is for the Court to consider whether the case can be properly considered for deciding the issue and since the proposed amendment and the plea taken in the written statement was mutually destructive, the Apex Court did not find any error of jurisdiction or material irregularity in exercise of the jurisdiction by the High Court warranting interference and accordingly dismissed the Special Leave Petition. 47. As noticed above, the Petitioner is neither taking an inconsistent plea or a mutually destructive plea to his defence, and 1 am of the opinion that the said decision is of no assistance to the petitioner as the respondent has explained the reasons for not raising the proposed plea in the written statement as it has been stated by him in his amendment application that he had no knowledge about the facts sought to be incorporated in the written statement. 48. In the other decision of the Apex Court relied upon by the learned Senior Counsel for the petitioner in Vijendra Kumar Goel (supra), the respondent filed a suit on 21.12.1990 based on an agreement dated 25.3.1985 for sale of a building to him, seeking inter alia a declaration that the agreement was still subsisting and the Defendant was bound to execute and register the sale deed in his favour and also injunction against, the Defendant from transferring the land to any other person and during the pendency of the suit, the respondent submitted an application on 16.4.1993 for amendment of the plaint by seeking to add therein that "after receiving consideration, the Defendant be directed to execute and register sale deed in favour of plaintiff within a period fixed by the Court failing which the sale deed be executed and registered by the Court." The trial Court refused the amendment but on Revision, the High Court allowed the same. Before the Apex Court it was contended that on the date of filing of application for amendment, a suit for specific performance of contract was barred by limitation in view of the provisions contained in Article 53 of the Limitation Act, the amendment ought not to have been allowed by the High Court. The Apex Court held that the Suit as framed was for declaration and injunction only and by the proposed amendment, it was sought, to be converted into a suit for specific performance at a time when the claim for specific performance had become barred by limitation and, therefore, their lordships allowed the Appeal filed by the Defendant and set aside the judgment and order of the High Court and restored the order passed by the trial Court disallowing the amendment. 49. It is obvious from what has been stated hereinabove that the said decisions are of no avail to the petitioner. 50. The contention of the learned Senior Counsel for the respondent that when the limitation for amendment of an application is only 45 days from the date of declaration of the result of election in question, a belated application for amendment of the written statement cannot be permitted since the same principle would apply in the case of amendment of the written statement is clearly untenable. 51. The decisions of the Apex Court relied upon by the learned Senior Counsel for the petitioner were to the effect that a new ground to challenge the election of the Returned Candidate which had not been initially pleaded in the Election Petition cannot be allowed to be incorporated in the Election Petition after 45 days from the date of declaration of the result of election as limitation for filing the Election Petition on the grounds mentioned in the Act can be presented from the date of declaration of the result of the Election in question. The limitation of 45 days is applicable to an election petitioner to challenge the election of the Returned Candidate on specific grounds and in the event the Election Petitioner desires to challenge the Election on a further ground, such a ground has to be incorporated in the Election Petition by amendment within 45 days of the declaration of the result of the election in question but the limitation of 45 days is in no manner applicable to the filling of the written statement by the respondent or for him to seek leave of the Court to amend the written statement. In the present case it has already been found that the presentation of the. application for amendment of the written statement by the respondent did not suffer from inordinate delay muchless gross delay or negligence. Therefore, this contention of the learned Senior Counsel for the petitioner is also untenable. 52. Reliance was also placed by the learned Senior Counsel for the respondent on the decision of the Apex Court in Mohammad Ishaq (supra), in this case amendment of the written statement, was sought by the Defendants in the Appeal preferred by them in the High Court and further sought leave to adduce additional eiudence. The Apex Court observed that the amendment of the written statement in Appeal was on such facts which, if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence and it would have brought about an entirely new plea which was never taken in the original pleadings and further that the additional evidence sought to be adduced was in respect of the facts stated in the Amendment Application. The Apex Court held that the High Court in Appeal rightly rejected all the petitions for amending the written statement and adducing additional evidence. 53. It would be seen that the Defendants in Mohammad Ishaq (supra), was not diligent and sought leave to plead an entirely new plea which was never taken in the original pleadings, moreover, leave was sought not at the stage of trial but in appeal. 54. 53. It would be seen that the Defendants in Mohammad Ishaq (supra), was not diligent and sought leave to plead an entirely new plea which was never taken in the original pleadings, moreover, leave was sought not at the stage of trial but in appeal. 54. In the Division Bench decision of the Assam High Court in Subhashni (supra), it was held that even though the power of the Court under Order VI, Rule 17, CPC is very wide, it has to be exercised in conformity with sound judicial principles and an amendment setting up a case which is totally inconsistent with the original case is not allowed normally, particularly when it is unjust to the other side. Neither the respondent is seeking leave to take inconsistent pleas with the original case nor in my opinion it is unjust to the petitioner as he had already been asked in his cross-examination about the engagement etc. of Suresh Singh, therefore, this decision also does not render any assistance to the petitioner. 55. In the decision of the Punjab & Haryana High Court in Isher (supra), referred to by the learned Senior Counsel for the petitioner, it was held that amendment of a written statement cannot be granted if it would convert the defence into another of a different and inconsistent character. 56. It has been pointed out above that the original defence which had been taken by the respondent in his written statement has not been abandoned but in addition thereto a further plea which in neither inconsistent nor mutually destructive of the stand already taken by the respondent in his written statement is sought to be incorporated. It is open for the respondent to take even a contrary stand or contradictory stand and thereby the cause of action is not in any manner affected as it would apply only to a case of the plaint being amended to introduce new cause of action. It is open for the respondent to take even a contrary stand or contradictory stand and thereby the cause of action is not in any manner affected as it would apply only to a case of the plaint being amended to introduce new cause of action. It is true that it is a material fact and the facts sought to be incorporated are primary and material which ought to have been stated by the respondent in his written statement but the reason for not doing so has been explained by him that he had no knowledge about those facts at the time when he had filed his written statement and had acquired knowledge later, moreover, as pointed out above, no prejudice can be said to be caused to the petitioner if the respondent is permitted to incorporate the proposed amendment as it is for the respondent to establish and prove the facts sought to be incorporated. 57. In view of the above discussions, the respondent is entitled to leave to incorporate the proposed paragraph 24(a) after paragraph 24 in the written statement. 58. Before the conclusion of the submissions by the learned Counsel for the parties, Mr. S.N.P. Sharma, learned Senior Counsel for the petitioner was requested as to whether he desires to make submission on the other two applications moved by the respondent for summoning of witnesses and production of documents, it was fairly stated by him that in the event the application for amendment is allowed, the consequence would be to grant leave to the respondent as sought in these two applications and in the event the application for amendment is rejected, these two application would be rendered infructuous. 59. Accordingly the respondent is granted leave to incorporate paragraph 24(a), as proposed in the Amendment Application, after paragraph 24 in the written statement and is further granted leave to summon the witnesses as also the documents, as prayed for in the other two applications. The respondent Shall incorporate the amendment in the written statement within one week on payment of Rs. 500.00 (five hundred) as costs to the petitioner. The respondent shall take appropriate steps for summoning the witnesses by Dasti Summons and for summoning the documents through a Special Messenger within ten days from today. 60. It would be open for the petitioner, if he so desires, to file a replication within two weeks from today. 61. 500.00 (five hundred) as costs to the petitioner. The respondent shall take appropriate steps for summoning the witnesses by Dasti Summons and for summoning the documents through a Special Messenger within ten days from today. 60. It would be open for the petitioner, if he so desires, to file a replication within two weeks from today. 61. Let this case be listed on 27.11.1998 for settlement of additional issue if any. 62. With the above observations and directions, all the three applications moved by the respondent are allowed.