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2002 DIGILAW 560 (KAR)

AMIR ALI v. AHMED PATEL

2002-09-09

K.SREEDHAR RAO

body2002
SREEDHAR RAO, J. ( 1 ) REVISION Petition is filed under Section 115 of CPC against the order of the learned Civil Judge (Sr. dn.) Gulbarga in Misc. No. 447/ 2000. The petitioner is the successful candidate in Taluk Panchayath election, elected from Kadadoor constituency of Chittapur Taluk panchayath. The first respondent herein is the unsuccessful candidate at the election, filed an election petition challenging the election of the petitioner herein. During the pendency of the proceedings, the first respondent made an application in I. A. No. III under Order 6 Rule 17 of CPC to amend the cause title in describing the second respondent herein as the Returning Officer, No. 5 kadadoor Taluk Panchayath, Chittapur. In the original pleadings, the second respondent is described as Returning Officer-cum-Tahsildar taluk Panchayath, Chittapur. It is noticed that the second respondent who is the first respondent in the original petition is not properly described, so also, the relevant averments in the petition did not describe properly the second respondent. Hence an application was made to carry out the amendment. The Trial Court after hearing the parties, allowed the amendment holding that the amendment does not touch the root of the matter and seeks to properly describe the respondent who is the returning officer of the constituency. Being aggrieved, the present revision petition is filed. ( 2 ) THE contesting respondent No. 1 although served has remained absent. The second respondent is represented by the State. The third respondent is another defeated candidate and is not represented *crp No. 1357/2002 dated 9th September 2002 although served. ( 3 ) A short and an interesting question would arise in these proceedings. Under the Code of Civil Procedure, when a party is not properly described or mis-described, it is permissible to describe the party in a proper manner and such an attempt does not amount to impleading a party under Order 1 Rule 10 of CPC. Since the necessary person is already made a party but, his descriptions are wrongly given or there is a mis-description, in such situations, the amendment to clarify the correct particulars of the party is not held to be impleading of a party at a later stage under Order 1 Rule 10 cpc. However, when the lapse committed does not amount to misdescription. However, when the lapse committed does not amount to misdescription. Necessarily an application under Order 1 Rule 10 CPC has to be made to implead the party and if allowed, such impleading takes place from the date of issuance of summons and is not considered to be a party on records as on the date of institution. This is the general proposition of law envisaged under Code of Civil procedure relating to the non-description of the parties and impleading of parties under Order 1 Rule 10 of CPC. In the present case, the first respondent described the Returning Officer of Kadadoor constituency as the Returning Officer-cum-Tahsildar of Chittapur Taluk panchayath. Having realized that the description of Returning Officer is not properly given, made an application for amendment. ( 4 ) COUNSEL for the petitioner strenuously contended that under the provisions of Section 16 (4) power of allowing amendment is very limited. The amendment relating to details of corrupt practice by amplified details is permissible if it is necessary for effective fair trial. However any of the corrupt practices not pleaded for the first time cannot be brought on record by way of an amendment, thereby, sub-section (4) enables only an amendment by way of clarificatory pleadings relating to corrupt practices which are already set out on record in the first instance and no other amendment is permissible. Counsel also submitted that the provisions of Code of Civil Procedure are not applicable for the trial of election petition under the Karnataka panchayath Raj Act. ( 5 ) A question would arise whether the lapse committed by the first respondent in his pleadings amounts to mis-description or whether the description whatever given is a nullity and by the amendment an attempt is made to implead the Returning Officer for the first time, beyond the period of limitation for instituting the election petition. ( 6 ) COUNSEL for the petitioner relied on the ruling of this Court in case of KHADARSAB vs MUNSAB AND OTHERS1. In the said decision in para No. 5, this Court refers to ratio laid down by the supreme Court in AIR 1969 SC 677 . ( 6 ) COUNSEL for the petitioner relied on the ruling of this Court in case of KHADARSAB vs MUNSAB AND OTHERS1. In the said decision in para No. 5, this Court refers to ratio laid down by the supreme Court in AIR 1969 SC 677 . In para No. 10 of the said decision it is held thus: It is argued that the Civil Procedure Code applies and Order 6 Rule 17 and Order 1 Rule 10 enables the High Court respectively to order amendment of a petition and to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of reference to periwal. This argument cannot be accepted. No doubt the power of amendment is preserved to the Court and Order 1 Rule 10 enables the Court to strike out parties but the Court cannot use order 6 Rule 17 or Order 1 Rule 10 to avoid the consequences of non-joinder for which a special provision is to be found in the act. The Court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the people Act and any rules made thereunder. When the act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used a curative means to save the petition. Going by the ratio laid down by this Court and the Supreme Court, i find that the description of the Returning Officer whatever given in the original petition cannot be considered as a mis-description. By mere reference of a Returning Officer does not satisfy the requirements of making the Returning Officer concerned as a party to the proceedings. It was incumbent on the first respondent to have described the Returning Officer in a proper and correct manner. The tahsildar of the Chittapur Taluk was not the Returning Officer of kadadoor Constituency. There is no reference to Returning officer 1. It was incumbent on the first respondent to have described the Returning Officer in a proper and correct manner. The tahsildar of the Chittapur Taluk was not the Returning Officer of kadadoor Constituency. There is no reference to Returning officer 1. ILR 1997 KAR 3402 of Kadadoor constituency in the cause title or in the averments in the petition. In that view of the matter, by the amendment the first respondent sought to make the Returning Officer of Kadadoor constituency as a party for the first time and is obviously beyond the period of limitation to present a valid election petition. In that view of the matter, I find the order of the Trial Court is bad in law and to condone the lapse as a trivial fallacy is improper. Accordingly, the order of the Trial Court is set aside. The matter is remitted back. Petition to be disposed of in accordance with law. --- *** --- .