Research › Search › Judgment

Bombay High Court · body

2010 DIGILAW 1045 (BOM)

Chinnaji Bhimayya Nalboga v. Nanaji Sitaram Shamkule

2010-07-23

A.H.JOSHI

body2010
Judgment : (1.) This is an application by the respondent. (2.) By this application, he is praying for recalling of the order passed by this Court on 23-4-2010. (3.) In C.A. No. 184 of 2010, this Court passed the order on 23-4-2010 permitting correction in the name of the respondent which was shown in the election petition originally as 'Sitaram Nanaji Shamkule' to 'Nanaji Sitaram Shamkule'. The order was passed relying upon various reported judgments. (4.) According to the applicant, the order deserves to be recalled for the reasons namely :- (a) The order was passed without notice to the returned candidate namely Nanaji Sitaram Shamkule, who was proposed to be impleaded by virtue of said amendment. (b) The order was passed by this Court permitting the amendment beyond 45 days of filing of election petition and hence, induction of Nanaji Sitaram Shamkule as respondent is beyond limitation. (c) In the judgments relied upon by this Court while allowing the amendment, the name of the respondent was wrongly mentioned in the cause title, while in the entire body, name of the returned candidate was correctly mentioned. (5.) Learned Advocate Mr. Chandurkar has placed reliance on the following judgments : (1) AIR (33) 1946 Nagpur 60, Ganesh Prasad Ramprasad vs. Damayanti w/o Ganesh Prasad, (2) AIR 1958 Allahabad 809, Chaturbhuj Chunnilal vs. Election Tribunal, Kanpur and others, (3) AIR 1969 SC 677 , Mohan Raj vs. Surendra Kumar Taparia and others, (4) 1995(2) Mh.L.J. 376 , Kallappa Laxman Malabade vs. Prakash Kallappa Awade, (5) (2005)13 SCC 777 , Kapra Mazdoor Ekta Union vs. Birla Cotton Spinning and Weaving Mills Ltd. and another. (6.) According to the learned Advocate Mr. Chandurkar, therefore, the order passed by this Court, which is sought to be recalled, is based on the erroneous foundation and, therefore, deserves to be recalled. (7.) This application is opposed by the learned Advocate Mr. Dr. R. S. Sundaram, arguing following points : (a) What was sought to be corrected was the typographical mistake. (b) In similar circumstances, the amendment was allowed in case of Rajendra vs. Gangadhar Sopan in which case a Judgment of Hon'ble Supreme Court was relied, and therefore, such amendment was permissible. (8.) Learned Advocate Dr. R. S. Sundaram placed reliance on the same reported judgments which he had earlier relied upon. (b) In similar circumstances, the amendment was allowed in case of Rajendra vs. Gangadhar Sopan in which case a Judgment of Hon'ble Supreme Court was relied, and therefore, such amendment was permissible. (8.) Learned Advocate Dr. R. S. Sundaram placed reliance on the same reported judgments which he had earlier relied upon. (1) 1995 Supp (3) SCC 407, Gore Lal Shaky a vs. Maharaj Singh Yadav and others, (2) 2000(3) Mh.L.J. 671 , Rajendra Vithal Rant vs. Gangadhar Dilip Sopal, (3) (2008) 11 SCC 740 , Umesh Challiyill vs. K. P. Rajendran. (9.) After hearing the parties, what this Court finds is as follows :- (a) In the body of petition, except in the title cause, the description of respondent is either as the respondent or as a "returned candidate". (b) Sitaram Shamkule is not the returned candidate, but Nanaji Sitaram Shamkule is the returned candidate. (c) All annextures refer to Nanaji Sitaram Shamkule. (d) Thus, by necessary implication in the body of the petition, reference is essential to the returned candidate only. (e) There is only one returned candidate in the constituency and therefore, there is no room for confusion. (f) The amendment was proposed after notice issued in erroneous name was returned, and granted before notice was issued to the returned candidate. (g) Though the notice was issued in the name of Sitaram Nanaji Shamkule, he cannot be the returned candidate. (h) The amendment was applied and carried out before noticing and serving the returned candidate on the election petition, and therefore, it was not necessary to first issue notice on application for amendment before service of notice of election petition on the returned candidate. (10.) Present application is titled as application for recalling order, it can only fit into Order 47 of Civil Procedure Code. (11.) The question as to whether Order 47, Civil Procedure Code has application to the proceedings under Representation of People Act, may be kept aside. By applying general doctrine as to review, generally and not under Order 47, Civil Procedure Code. Review could be permitted on the ground analogous to those recognized under Order 47 of Civil Procedure Code alone. (12.) The Order passed by this Court, seen from the telescope provided by grounds raised for modification, suggests that the grounds of review are that the order sought to be reviewed is erroneous in view of the provisions of law. Review could be permitted on the ground analogous to those recognized under Order 47 of Civil Procedure Code alone. (12.) The Order passed by this Court, seen from the telescope provided by grounds raised for modification, suggests that the grounds of review are that the order sought to be reviewed is erroneous in view of the provisions of law. This ground does not answer the settled grounds of review of "error apparent on the face of record". The error banked upon, is in relation to law can be corrected by superior forum and cannot be corrected in a review application by the same Court. (13.) This Court has seen the case from the point of view of grounds raised and the reply that what was sought to be corrected was a human error. The error was that the second name (father's name of returned candidate) was written/ typed 1st in order and the 1st name i.e. name of candidate was written as second name i.e. in place of father's name. (14.) Though law relating to challenge to election is highly technical, it does not mean that an error which does not vitiate the spirit of challenge should not be corrected. (15.) It is not a case that the constituency had to return many candidates and error would have totally rendered identity mixed and incapable of ascertaining or denoting at a particular individual. (16.) In present case no confusion as to identity was produced. The error was simply ministerial. The constituency, the candidate or the justice is not likely going to be prejudiced due to the amendment. It is a fact that the candidate is not getting the petition thrown away, due to amendment. Being required to face an election petition is one amongst inevitable consequences of being elected. (17.) An error in narration without any confusion or mistake as to identity as to returned candidate in the mind of the returned candidate does not come in the way of maintainability of an election petition. (18.) In the result, application for modification has to fail and is accordingly rejected. Application dismissed.