JUDGMENT : Dr. B.R. Sarangi, J. - Assailing the order dated 7.9.2013 passed by the learned Civil Judge (Senior Division), Nimapara in Election Misc. Case No. 2 of 2012 rejecting the application filed by the petitioner for recrimination u/s 44I of the Panchayat Samiti Act, 1959, read with Order 6, Rule 17 of the CPC by way of amendment of the written statement, this writ petition is filed before this Court. The factual matrix of the case, in hand, is that, the last Panchayat Samiti Election for Andhara icchhapur Gram Panchayat was held on 17.2.2012. The present petitioner, opposite party No. 1 and one Sandhyarani Behera filed their respective nominations to the post of Nominee and contested the election. The election was conducted in a very fair manner following due procedure of law and counting of votes was done in accordance with the provisions contained in the Rules governing in the field. 2. The result of the election was declared on 22.2.2012. On a demand being made for recounting of votes on the application filed by opposite party No. 1, the same was done and finally result was declared describing the present petitioner as elected having secured highest number of votes of 1563. On declaration being made by the Collector, Puri the petitioner was elected to the post of Chairperson of Gop Panchayat Samiti. Opposite party No. 1 in order to set aside the election of the petitioner, filed Election Misc. Case No. 2 of 2012 before the learned Civil Judge (Senior Division), Nimapara u/s 44B of the Panchayat Samiti Act, 1959, hereinafter referred to as "the Act", in short, on the ground of improper addition of two Nos. of valid ballot papers at the time of recounting of votes along with other grounds. 3. On being noticed, the petitioner appeared and filed her written statement denying the allegations made in the Election Misc. Case and prayed for dismissal of the same. On consideration of the pleadings of the parties, learned Civil Judge (Senior Division), Nimapara directed the parties to produce their evidence in support of their respective claims. Accordingly, opposite party No. 1, who is the election petitioner, filed the affidavit evidence of four witnesses and they were allowed to cross-examine by the petitioner. On consideration of the pleadings of the parties, learned Civil Judge (Senior Division), Nimapara directed the parties to produce their evidence in support of their respective claims. Accordingly, opposite party No. 1, who is the election petitioner, filed the affidavit evidence of four witnesses and they were allowed to cross-examine by the petitioner. At this point of time, the petitioner wanted to incorporate certain facts regarding disqualification of the opposite party No. 1 election petitioner to contest the election, which is alleged to have been suppressed knowingly to participate in the election. It was stated by the petitioner that the said facts were not within her knowledge and despite due diligence, she could not able to collect the said materials at the time of filing her written statement, but subsequently, when she got the materials wanted to bring the said facts to the notice of the Court and accordingly filed an application under Order 6, Rule 17 of the CPC for amendment of the written statement. 4. To such application for amendment of written statement under Order 6, Rule 17 of the Code of Civil Procedure, the opposite party No. 1- election petitioner filed her objection. On consideration of the same, the learned Civil Judge (Senior Division), Nimapara by order dated 19.8.2013 rejected the application for amendment filed under Order 6, Rule 17 of the Code of Civil Procedure. Challenging the said order, the petitioner filed W.P. (C) No. 19828 of 2013 before this Court and this Court disposed of the said writ petition by order dated 30.8.2013 permitting the petitioner to withdraw the same with liberty to exercise her right of recrimination as provided u/s 44I of the Act. 5. After withdrawal of the said writ petition, the petitioner moved the learned Civil Judge (Senior Division), Nimapara to amend here pleading claiming recrimination against the opposite party No. 1- election petitioner and wanted to amend her written statement. Such application has been filed in purported exercise of the provisions contained under Order 6, Rule 17 of the CPC read with Section 44I of the Act. 6. The opposite party No. 1 - election petitioner filed her objection to the petition claiming recrimination virtually amending the pleadings by invoking the provisions contained under Order 6, Rule 17 of the CPC and also raised a question of maintainability. 6. The opposite party No. 1 - election petitioner filed her objection to the petition claiming recrimination virtually amending the pleadings by invoking the provisions contained under Order 6, Rule 17 of the CPC and also raised a question of maintainability. After due adjudication, learned Civil Judge (Senior Division), Nimapara passed the impugned order dated 7.9.2013 rejecting the application for amendment of written statement sought for by the petitioner under Order 6, Rule 17 of the CPC read with Section 44I of the Act on the ground that recrimination during course of evidence is not maintainable. Hence, the writ petition. 7. With the above factual background of the case in hand, now it is to be considered whether the impugned order passed by the learned Civil Judge (Senior Division), Nimapara rejecting the application for recrimination and amendment of pleadings in written statement is justified or not? 8. Section 44I of the Act reads as follows: 44-I. Recrimination when seat claimed- (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election: Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the [Subordinate Judge] of his intention to do so and has also given the security and the further security referred to in Sections 44B and 44F, respectively. (2) Every notice referred to in Sub-section (1) shall be accompanied by the statement and particulars required by Section 44D in the case of an election petition shall be signed and verified in like manner. 9. In the proviso to Section 44I of the Act, it is clearly stated that the return candidate or such other party shall not be entitled to give evidence unless he has within fourteen days from the date of commencement of the trial, given notice to the Subordinate Judge of his intention to do so and has also given the security and the further security referred to in Sections 44B and 44F, respectively. In the present case, it is found that the opposite party No. 1 election petitioner has already examined four witnesses, who have also been duly cross-examined by the petitioner, who is the opposite party in the court below and when the evidence of the opposite party No. 1 election petitioner as P.W. 5 was going on, at that stage, the present petitioner, who is opposite party No. 1 in the court below filed the application for amendment under order 6, Rule 17 of CPC read with Section 44I of the Act. 10. Order 6, Rule 17 of the Code of Civil Procedure, which deals with amendment of pleading reads as follows: Amendment of pleadings-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties; Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 11. From a reading of proviso to the provisions contained in Order 6, Rule 17 of the Code of Civil Procedure, it is made clear that no application for amendment shall be allowed after the "trial has commenced" unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The expression "after trial has commenced" has been explained by this Court in Smt. Basanti Satapathy and Others Vs. Rakesh Kumar Satapathy where it is held that the said expression should be read in a restricted sense and should be limited to cases when the examination of witnesses commenced and also clarified the position stating that the trial does not commence when the issues are framed or the case is only posted for hearing without examination of the witnesses. Apart from the same, the apex Court in Salem Advocate Bar Association, Tamil Nadu Vs. Apart from the same, the apex Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), has been pleased to hold that if the amendment petition is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier and the object is to prevent frivolous applications which are filed to delay the trial. Applying the principles laid down by the courts under Order 6, Rule 17 of the CPC to the present facts of the case, it is made clear that by the time the application for amendment was filed, the opposite party No. 1 election petitioner had already examined four witnesses and they had been cross-examined by the petitioner, who was the opposite party No. 1 in the Court below. Therefore, the trial having been commenced, any application for amendment at this juncture is not permissible. Apart from the same, earlier similar prayer for amendment was sought by the petitioner and the same was rejected and against which order, the petitioner approached this Court by filing W.P. (C) No. 19828 of 2013, which was subsequently withdrawn with liberty to file an application for recrimination u/s 44I of the Act. Therefore, any application on the self-same facts for carrying out the amendment of the written statement will amount to res judicata and by incorporating new facts, it will change the nature and character of the case, which will ultimately prejudice the opposite party No. 1 election petitioner. 12. Mr. G. Rout, learned counsel for the petitioner led emphasis on the order passed by this Court in the earlier writ petition and strenuously urged that dismissal of the writ petition bearing W.P. (C) No. 19828 of 2013 as withdrawn with liberty to file an application for recrimination u/s 44I of the Act, entitles the petitioner to file the application for amendment incorporating recrimination. Therefore, the learned Civil Judge (Senior Division), Nimapara should not have rejected the same. 13. Mr. Bose, learned counsel appearing for the opposite party No. 1 states that the writ petition has been withdrawn by the petitioner seeking liberty to move the trial court for filing an application u/s 44I of the Act. That ipso facto cannot confer a jurisdiction on the court below, if the statute does not permit the same. 14. 13. Mr. Bose, learned counsel appearing for the opposite party No. 1 states that the writ petition has been withdrawn by the petitioner seeking liberty to move the trial court for filing an application u/s 44I of the Act. That ipso facto cannot confer a jurisdiction on the court below, if the statute does not permit the same. 14. On perusal of Section 44I of the Act, it is made clear that the returned candidate or such other party shall not be entitled to give such evidence unless he has within fourteen days from the date of commencement of the trial, given notice to the Subordinate Judge of his intention to do so. In the present case, the trial has commenced long before and four witnesses have already been examined and cross-examined and thereby the fourteen days period from the date of commencement of trial has expired long back and at this stage if the petitioner will be encouraged to file amendment incorporating recrimination, it will be contrary to the provisions of law as contemplated under Order 6, Rule 17 of the CPC read with Section 44I of the Act. Therefore, the incorporation of new facts in the guise of filing an application under Order 6, Rule 17 of the CPC read with Section 44I of the Act cannot be permitted. In view of the aforesaid facts and circumstances, in my considered opinion, the learned Civil Judge (Senior Division), Nimapara has not committed any illegality or infirmity in passing the impugned order. Accordingly, the writ petition fails and the same is dismissed. The learned Civil Judge (Senior Division), Nimapara is however, directed to conclude the Election Misc. Case No. 2 of 2012 as early as possible within a period of four months since it is an election dispute of the year 2012. There shall be no order as to costs. Final Result : Dismissed