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2007 DIGILAW 626 (ORI)

Kalandi Mallik v. Sricharan Sethy

2007-08-16

P.K.TRIPATHY, R.N.BISWAL

body2007
ORDER Dt.16.08.2007 : Heard Learned Additional Government Advocate appears for opposite parties 2 and 3-Copy of the writ petition has been received by him. Opposite party No.1, appears through counsel and states that Vakalatnama has already been filed. That Vakalatnama be tagged or record. On consent of the parties, the writ petition is heard and disposed of at the stage of admission. The writ petitioner, i.e., elected Sarpanch and the oppo¬site party No.1 are respectively Opp.party No.3 and petitioner in Election Misc. Case No.7 of 2007 of the Court of Civil Judge (Junior, Division), Kendrapara. Opp. party No.1 filed that elec¬tion petition, inter alia, on the ground that the elected Sara¬panch (writ petitioner) had more than two children after the cut off date as provided in Sub-section (1)(v) of Section 25 of the Orisa Gram Panchayat. Act., 1964 (in short the ‘Act’). It is stated at the Bar and also available from the election petition, Annexure-1, that in paragraphs - 6 and 7 of the election peti¬tion, Opposite party No.1 states that petitioner has four chil¬dren and the last child was born on 12.4.1998, i.e., after the prescribed cut off date. After filing of the show-cause by the petitioner in the Election Misc. Case, opposite party No.1 filed application for amendment station that in fact the petitioner begot two children after the cut off date, i.e., on 12.4.1998 and 12.7.1999 and therefore petitioner has five children and not four children. Accordingly he sought for amendment and that was con¬sidered and allowed by learned Civil Judge as per the impugned order passed on 13.7.2007. Learned counsel for the petitioner states that in view of the ratio in the case of Ram Dayal v. Brijraj Singh and others, AIR 1970 SC 110 and Muni Lal v. The Oriental Fire & General Insurance Company Ltd. and another, AIR 1996 SC 642 , the order allowing amendment is illegal and liable to be quashed. Learned counsel for opposite party No.1, on the other hand, relies on the case of Surekha Dash v. Civil Judge (Junior Division) Jajpur and others, 1998 (II) OLR 43, in which this Court propounded that application for amendment are entertainable in election dispute under the Act and such amendments can be considered as per guide¬lines provided in paragraph-11 of that judgment. The fact and the ratio involved in the case of Muni Lal are completely different and therefore not found relevant. Be that as it may, the question of limitation as it occurred in that case has not occurred in the same manner so far as the present case is concerned. In the case of Ram Dayal (supra) the following passage from that judgment is pressed into service by the petitioner: (2) “An election petition has, under Section 81 (1) of the Representation of the People Act, 1951, to be filed within 45 days of the date of publication of the result of the election. An application for setting aside the election, that Dataram was below the age of 25 and on that account the election was liable to be set aside under Section 100(1) (d) (i) of the Act made on August 15, 1967, would plainly have been barred, and by amendment the ground could not permitted to be added. This Court in Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370 = ( AIR 1957 SC 444 ) held that the Election Tribunal has power to allow an amendment in respect of particulars of illegal and corrupt practices, or to permit new instances to be included provided the grounds or charges are specifically stated in the petition, but its power to permit amendment of a petition under Order VI, Rule 17 of the Code of Civil Procedure will not be exercised so as to allow new grounds or charges to be raised or the character of the petition to be so altered as to make it in substance a new petition, if a fresh petition on those allegations would on the date of the proposed amendment be barred. By the amendment a new ground for setting aside the election was sought to be introduced and the High Court was right in rejecting the application for amendment”. In the case of Surekha Das(supra) it was held : (11) “The question whether amendment is to be allowed would depend upon the parameters indicated in Order 6, Rule 17 of the code. Essentially the principles governing the amendment of plaints are as follows :- (i) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit. Essentially the principles governing the amendment of plaints are as follows :- (i) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit. (ii) All the same, substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject-matter of or controversy in the suit is not per¬missible. (iii) Introduction by amendment of inconsistent or contradic¬tory allegations in negation of the admitted position on facts or mutually destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be intro¬duced by way of amendment. (iv) In general the amendments should not cause prejudice to the other side which cannot be compensated in costs. (v) Amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is outweighed by the special circumstances of the case. Keeping in view the above settled principle and looking to the facts involved in this case, it is seen that learned Civil Judge has opined that the fact of disqualification of the peti¬tioner on the ground available under Section 25(1)(v) is already on record. The election petitioner (O.P. No.1 in this writ peti¬tion) could know about the fifth child only after institution of the election petition and therefore insertion of such a plea is not barred by limitation, inasmuch as, such plea is available on record in paragraphs-6 and 7. The approach adopted by learned Civil Judge does not appear to be illegal or incorrect. There¬fore, there is nothing to interfere with the impugned order. Learned counsel for the petitioner states that the ground of limitation, which he has raised is sufficient enough to reject the application for amendment. As noted earlier, the ground of limitation is not available to him because the disqualification is specifically pleaded in paragraphs-6 and only the facts and figures have been corrected as per the amendment. Be that as it may, if such a ground is raised in the counter/written statement and if such an issue is raised then at the time of hearing that may be considered by learned Civil Judge in accordance with law basing on the facts and evidence available to him. With the above observation, the writ petition is dismissed. Be that as it may, if such a ground is raised in the counter/written statement and if such an issue is raised then at the time of hearing that may be considered by learned Civil Judge in accordance with law basing on the facts and evidence available to him. With the above observation, the writ petition is dismissed. Petition dismissed.