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2014 DIGILAW 768 (ORI)

Rabinarayan Nanda v. Tararprasad Bahinipati

2014-11-17

BISWANATH RATH

body2014
JUDGMENT MR. BISWANATH RATH,J.-This is an application under Order 6 Rule-17 of the Civil Procedure Code, 1908 read with Section 87 of the Representation of the People Act. 1951. By filling this Misc. Case, the Election Petitioner has sought for amendment of the Election Petition by bringing in the following to the main petition:- "5F. Let it be declared that the Respondent No.1 has not subscribed "OATH" as mandatorily required under Article 173 of the Constitution of India & as such is not eligible to contest the election, for the reasons stated under paragraph 6F, & the votes recorded in favour of the Respondent No.1 be declared as invalid, void & throw-away votes & let it be further declared that the election Petitioner has secured majority of valid votes & be declared duly elected as a member of Odisha Legislative Assembly from 143Jeypore Assembly Constituency. 5G. Let it be declared that the "Form-A" & "Form-B", i.e.. party ticket filed by the Respondent No.1 along with his nomination is incomplete, invalid & non est in .the eyes of law & in absence of valid party ticket. as the Respondent No.1 has not been nominated by ten prospers, his nomination is liable for rejection, for the reasons stated in paragraph 60, & for such the votes recorded in favour of the Respondent No.1 be declared as invalid, void & throw-away votes & let it be further declared that the election Petitioner has secured majority of valid votes & duly elected as a member of Odisha Legislative Assembly from 143-Jeypore Assembly Constituency. 2. After paragraph 6E, add the following as paragraph 6F & paragraph 60 respectively: 6F. That the "OATH" subscribed by the Respondent No.1 being incomplete for non-disclosure/non-mention of the time of taking Oath so also the name & number of the Assembly Constituency from which the Respondent No.1 intends to contest, amounts to non-subscribing of oath under Article 173 of the Constitution of India, ultimately leading to rejection of nomination of Respondent No.1 as the defect is a substantial defect. 6G. 6G. That the party ticket granted in "Form-A" & Form-B" being incomplete for non-disclosure of the name & number of the constituency below the Returning Officer, to whom the "Form-A" & "Form-B" are to be delivered as well as in the heading of the subject, & since in "Form-B" column 3, 4, 6 & 7 are left blank, the "Form-A" & "Form-B" filed by the Respondent No.1 are not properly constituted "Form-A & Form-B", in the eyes of law. In absence of a properly constituted "Form-A" & "Form-B" it was incumbent for the Respondent No.1 to be nominated by Ten proposers in Part-II of the nomination Form-2B, since the same has not been done, the nomination of Respondent No.1 is liable to be rejected. 3. After prayer C, add the following as prayer C-land prayer C-2 respectively:- C-1. Let it be declared that the Respondent No.1 has not subscribed 'OATH' as mandatorily required under Article 173 of the Constitution of India & as such not eligible to contest the election. C-2. Let it be declared that the Respondent no.1 has not filed valid party ticket i.e. "Form-A" & "Form-B" & in absence of valid party ticket, the Respondent no.1 having not been nominated by ten proposers, his nomination is liable to be rejected. 4. In the Verification after para 6, add the following as para 7:- 7. That the statements made paragraphs SF, SG, 6F & 6G are true to my knowledge on verification of the "Oath" form as well as verification of the party ticket granted in favour of Respondent No.1 in 'Form-A' & 'Form-B', which I came to know on seeing the copy of the 'Oath Form' as well as copy of 'Form-A' & 'Form-B' & I believe the same to be true. 5. In the affidavit, add the following as paragraph 6A:- 6A. 5. In the affidavit, add the following as paragraph 6A:- 6A. That the statements made in paragraphs SF, SG, 6F & 6G are true to 'my knowledge on verification of the 'Oath' form as well as verification of the party ticket granted in favour of Respondent No.1 in 'Form-A' & 'Form-B', which I came to know on seeing the copy of the 'Oath Form' as well as copy of 'Form-A & 'Form-B' & I believe the same to be true." In filing the amendment application, The Election Petitioner has taken the grounds that the omissions in the Election Petition are all by over sight & inadvertence. Further the proposed amendments• sought for are essentially required for just determination of real question in controversy. The amendments sought for as described in the schedule are very formal in nature & if allowed will not chance nature & character of the Election Petition nor shall work out any prejudice to the Respondent No.1 or to any other Respondents. In course of argument, the Election Petitioner making reference to some paragraph in the Election Petition tried to establish that the proposed amendments are only explaining the facts already there in the Election Petition. By bringing reference to Sub-Section (5) of Section 86 & Section 87 of the Representation of the People Act, 1951 submitted that the High Court has ample power to consider the application for amendment. Learned senior Counsel for the Election Petitioner further submits that in view of provision contained in Section 87 of the Representation of the People Act, 1951 the provisions contained in Code of Civil Procedure, 1908 are very much applicable. The Learned senior Counsel for the Election Petitioner also in order to justify his submission, relied on the decisions AIR 1957 S.C. 444 Harish Chandra v. Triloki Singh, AIR 1965 S.C. 1243 Amin Lal v. Hunna Mal, AIR 1991 SC 1557 F.A. Sapa v. Singora, (1994) 2 SCC 579 , Sethi 'Roop Lal v. Malti Thapar & others & but given stress only on decision Sethi Roop Lal v. Malti Thapar & ors, (1994) 2 SCC 579 . Strongly relying on the decision reported in (1994) 2 SCC 579 , the election Petitioner contended that in view of the decision of the Hon'ble Apex Court (supra) application for amendment is valid & claim for allowing his application for amendment ought to be allowed. 2. Strongly relying on the decision reported in (1994) 2 SCC 579 , the election Petitioner contended that in view of the decision of the Hon'ble Apex Court (supra) application for amendment is valid & claim for allowing his application for amendment ought to be allowed. 2. Per contra, Respondent No.1, the returned candidate the only contestant by filing a counter to the petition for amendment objected in entertaining the petition for amendment on the following grounds:- (a) No amendment of Election Petition at this stage is permissible vis-a-vis Order 6 Rule-17 of the Civil Procedure Code in as much as it is the settled law that the procedure provided for trial of Civil suits under C.P.C. is not wholly applicable to trial of the Election petition. The provision contained in the Representation of the People Act, 1951 over reach the provision of C.P.C. particularly in the matter of amendment to Election petitions & the procedures of the C.P.C. are only guideline value in value Election cases (b) In referring to provisions contained in Section 81 of Representation of the People Act, 1951, the Respondent No.1 contended that limitation prescribed under Section 81 of Representation of the People Act, 1951 ceases after 45 days from the date of election of the return candidate. No amendment of the Election Petition can be entertained beyond 45 days. (c) In referring to Section 83 of Representation of the People Act, 1951 Respondent, i. e, the returned candidate contended that Section 83 of the act provides for contents of the Election Petition by saying that an Election Petition must contain a concise statement of material facts on which election Petitioner relies. It is on these premises, the returned candidate submitted that any statement of material facts beyond the statement of material facts borne in the Election Petition is impermissible beyond the 45 day'" prescription. (d) The return candidate claimed that the provision Order 6 Rule-17 of C.P.C. does not at all apply to the election petition. (e) The returned candidate further submits that by filing the present amendment application, the Election Petitioner has made an attempt to introduce new material facts going away from the material facts already contained in the Election Petition & as such the amendment is impermissible. (e) The returned candidate further submits that by filing the present amendment application, the Election Petitioner has made an attempt to introduce new material facts going away from the material facts already contained in the Election Petition & as such the amendment is impermissible. He further submitted that the provisions contained in Section 87 of the Representation of the People Act, 1951 so far as applicability of the procedures under the Code of Civil Procedure to the trial on suits in an Election Petition cannot be understood the application of Code of Civil Procedure to the Election proceedings as a whole. 3. The returned candidate to substantiate his submissions, apart from relying on the provisions of Section 81 (1), Section 83(1)(a), Section 86(5), Section 86(7) & Section 87(1) of the Representation of the People Act, 1951 & certain provisions under Chapter-35 of the Orissa High Court Rules also relied on the decisions referred to in (2005) 5 SCC-46, Harmohinder Singh Pradhan vrs. Ranjit Singh Talwandi & Ors, AIR 2005 Punjab & Haryana 251, Surinder Pal vrs. Gurpeet Singh Kangar & Ors, AIR 1987 SC 1577 , Dhartipakar Madan Lal Agarwal vrs. Shri Rajiv Gandhi, (2005) 4 SCC 480 , Kailash vrs. Nakhu & Ors & AIR 1987 Gauhati 11, Soneswar Borah vrs. Nagen Neog & Ors. It is on the basis of the aforesaid, submissions, the returned candidate, that is Respondent No.1 opposes entertaining the application under Order 6 Rule 17 CPC at the instance of the Election Petitioner. Though there are other Respondents in the Election Petition but they have neither filed any objection to the amendment application nor submitted any argument during course of hearing of the petition for amendment. . 4. At this stage, it is necessary to refer to some of the provisions of the Representation of the People Act, 1951 as well as a: provision from the Representation of the People Act relevant for the purpose, which runs as follows: "81. . 4. At this stage, it is necessary to refer to some of the provisions of the Representation of the People Act, 1951 as well as a: provision from the Representation of the People Act relevant for the purpose, which runs as follows: "81. Presentation of petitions.-(I) An election petition calling in question any election may be presented on one or more of the grounds specified in B[sub-Section (1)] of (Section 100 & Section 101) to the 4[High Court] by any candidate at such election or any elector 5[within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election & the dates of their election are different, the later of those two dates]. "83. Contents of petition.-(1) An election petition (a) shall contain a concise statement of the material facts on which the Petitioner relies" 86- Trial of Election Petitions "86 (5) The High Court may, upon such terms as to costs & otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair & effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (7) Every election petition shall be tried as expeditiously as possible & endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial. . "87. (7) Every election petition shall be tried as expeditiously as possible & endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial. . "87. Procedure before the High Court.-(1) Subject to the provisions of this Act & of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits: Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings " It is also a relevant to quote Section 81 (3) of the Old Representation of the People Act, which runs as follows: "83(3) The Tribunal may upon terms as to interest & otherwise as it may direct at any time allow the particulars included in the said list to be amended or order said further & better particulars in regard to any matter referred to therein to be furnished as may in its opinion it necessary for purpose of ensuring a fair & factual trial of the petition." Under this provision since the disposal of the Election petition could not be materialized within a reasonable time the law makers consciously taken out the aforesaid Provisions from the Representation of the People Act. After taking out the provisions as contained vide Sub-Section (3) of Section 83 of the Representation of the People Act, the only provision accepting amendment remained vide Sub-Section(5) of Section 86 of the Representation of the People Act, 1951, which is again confined to amendment of Elect!c,11 Petition on the allegation of corrupt practice. After taking out the provisions as contained vide Sub-Section (3) of Section 83 of the Representation of the People Act, the only provision accepting amendment remained vide Sub-Section(5) of Section 86 of the Representation of the People Act, 1951, which is again confined to amendment of Elect!c,11 Petition on the allegation of corrupt practice. From bare reading of the Election Petition as well as amendment application, it is amply clear that the proposed amendments are all introduction of new material facts & having no relevance to the material facts already existed therein: Under the specific provisions as contained in Section 83(1) read with Section 81 of the Representation of the People Act, 1951, the Election Petition containing concise statement of the material facts on which the Petitioner relies ought to be filed 'within 45 days but not earlier than the date of Election of the return candidate ought to have been filed. The provisions referred to hereinabove makes it clear that period of limitation in filing concise statement of material facts is maximum 45 days & not beyond that. Further reading of the Sub-Section( 5) of Section 86, the law makers have very consciously made the law giving relaxation of the amendment of the election petition confining to cases in relation to corrupt practices only. This provision has absolutely no application to other Election Petitions & the rest provisions undoubtedly debars filing of an amendment beyond 45 days bringing in further material facts. 5. The decision cited by the Election Petitioner vide AIR 1965 SC 1243 & 1991 (3) SCC 375 do not fit to the facts in the "resent case & hence have no application to the present case. So far as decision cited by the Election Petitioner relates to (1994) 2 SCC 579 is concerned, it is relevant to travel through paras 9, 10 & 11 of the said decision, which runs as follow: "9. Coining now to the other impugned order, we find that the Learned Judge has rejected the prayer for amendment of the petition principally on the ground that by the proposed amendment the Appellant was seeking to introduce 'material fact' as distinguished from material particulars' of a corrupt practice which was impermissible. Coining now to the other impugned order, we find that the Learned Judge has rejected the prayer for amendment of the petition principally on the ground that by the proposed amendment the Appellant was seeking to introduce 'material fact' as distinguished from material particulars' of a corrupt practice which was impermissible. In so doing the Learned Judge drew sustenance from the following observations made by this Court in the case of F.A. Sapa v. Singora: "(i) Our election law is statutory in character as distinguished from common law & it must be strictly complied with. (ii) There is a clear & vital distinction between 'material facts' referred to in Section 83(1)(a) & 'particulars' in relation to corrupt practice referred to in Section 83(1)(b) of the Act. (iii) Section 86(5) of the Act empowers the High Court to allow particulars of any corrupt practice which has already been alleged in the petitions to be amended or amplified provided the .amendment does not seek to introduce a corrupt practice which is not previously pleaded. (iv) By implication amendment cannot be permitted so as to introduce 'material facts'," 10. The fasciculus of Sections appearing in Chapter III of Part VI of the Act lays down the procedure for trial of election petitions. Sub-Section (1) of Section 87 thereof provides that subject to the provisions of this Act & of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure ('Code' for short). That necessarily means that Order VI Rule 17 of the Code which relates to amendment of pleadings will afortiori apply to election petitions subject, however, to the provisions of the Act & of any rules made thereunder. Under Order VI Rule 17 of the Code the Court has the power to allow parties to the proceedings to alter or amend their pleadings in such manner & on such terms as may be just & it provides that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. But exercise of such general powers stands curtailed by Section 86(5) of the Act, when amendment is sought for in respect of any election petition based on corrupt practice. But exercise of such general powers stands curtailed by Section 86(5) of the Act, when amendment is sought for in respect of any election petition based on corrupt practice. Since Section 87 of the Act &, for that matter, Order VI Rule 17 of the Code is subject to the provisions of the Act, which necessarily includes Section 86(5), the general power of amendment under the former must yield to the restrictions imposed by the latter. 11. Indubitably, therefore, if the amendment sought for in the instant case related to corrupt practice we might have to consider the same in conformity with Section 86(5) of the Act as interpreted by this Court in the case of F.A. Sapal & accept the findings of the Learned Judge as recorded in the impugned order; but then, the Learned Judge failed to notice that the amendments, the Appellant intends to bring in his election petition, do not relate to any corrupt practice &, therefore, it has to be considered in the light of Section 87, & de hors Section 86(5) of the Act. For the foregoing reasons the' impugned Order Dated May 28, 1993 cannot also be sustained. "In considering the case involved in the above decision, .the Hon'ble Apex Court has categorically held that exercise of general powers as in Order VI Rule-17 of the Code stands curtailed by Section 86 of the Act except an exception for amendment in Election cases in the premises of corrupt practices. It is on the above premises while interfering in the High Court Judgment involved therein the Hon'ble Apex Court set aside the impugned Order Dated 28th May, 1993 & directed the same to be reconsidered by the High Court in the light of Section 87 & dehors Section 86(5). This decision rather directly supports the contention of the Respondent No.1. 6. The question of amendment in an Election Petition has visited the Hon'ble Apex Court as well as other High Courts on the subject as follows: (A) AIR 1987 Gauhati 11. In deciding a case of applicability of Code of Civil Procedure to the Election Petition, the Single Bench of Gauhati High Court held as follows:- "2-Ashort question which arises for consideration is whether a Judge is required to sign the deposition of the witness in an election case. In deciding a case of applicability of Code of Civil Procedure to the Election Petition, the Single Bench of Gauhati High Court held as follows:- "2-Ashort question which arises for consideration is whether a Judge is required to sign the deposition of the witness in an election case. S.87 (1) of the 'Act' runs: "Subject to the provisions of this Act & of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits " The provisions in S.87 (1) of the 'Act' shows that the whole of the Civil Procedure Code is not fully applicable. The S.87 (1) provides that the proceeding should be tried "as nearly as may be" in accordance with the procedure applicable under the Code of Civil Procedure. The reasons for using the expression "as nearly as may be" appears to be that u/s.86 (7) of the 'Act', endeavour is to be made to conclude the trial of an 'election petition within 6 (six) months from the date on which the election petition is presented & if the technicalities of the Code is followed the trial may not be concluded expeditiously. The technicalities of the code should not make the progress of the trial of an election petition difficult. However, it must be consistent with the interest of justice. As such, the expression "as nearly as may be" shows only an approximation. In the other words, an election Court shall be guided by the spirit of the Code, but shall not be bound by the letter of the Code. "Act'. This decision has made it clear that provisions in C.P.C. are not made application to election petitions as a whole. (B) AIR 1987 SC 1577 :- "Considering a case for striking out certain parts of the petition not disclosing any cause of action under Order 6 Rule-16 CPC in Para 31 & Order 6 Rule 17 in the said decision, the Hon'ble Apex Court held as follows: "31. (B) AIR 1987 SC 1577 :- "Considering a case for striking out certain parts of the petition not disclosing any cause of action under Order 6 Rule-16 CPC in Para 31 & Order 6 Rule 17 in the said decision, the Hon'ble Apex Court held as follows: "31. The above scanning of the election petition would show that the Appellant failed to plead complete details of corrupt practice which could constitute a cause of action as contemplated by S.100 of the Act & he further failed to give the material facts & other• details of the alleged corrupt practices. The allegations relating to corrupt practice, even if assumed to be true as stated in the various paras of the election petition do not constitute any corrupt practice. The petition was drafted in a highly vague & general manner. Various paras of the petition presented disjointed averments & it is difficult to make out as to what actually the Petitioner intended to plead. At the conclusion of hearing of the appeal before us Appellant made applications for amending the election petition, to remove the defects pointed out by the High Court & to render the allegations of corrupt practice in accordance with the provisions of S.33 read with S.123 of the Act. Having given our anxious consideration to the amendment applications we are of the opinion that these applications cannot be allowed at this stage. It must be borne in mind that the election petition was presented to the Registrar of the High Court at Lucknow Bench on the last day of the limitation prescribed for filing the election petition. The Appellant could not raise any ground of challenge after the expiry of limitation. Order VI, Rule-17 no doubt permits amendment of an election petition but the same is subject to the provisions of the Act. Section 87 prescribes a period of 45 days from the date of the election for presenting election petition calling in question, the election of a returned candidate. After the expiry of that period no election petition is maintainable & the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in S.81 would amount to contravention of those provisions & beyond the ambit of S.87 of the Act. After the expiry of that period no election petition is maintainable & the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in S.81 would amount to contravention of those provisions & beyond the ambit of S.87 of the Act. It necessarily follows that a new ground cannot be raised or inserted in an election petition by way of amendment after the expiry of the period of limitation. The amendments claimed by the Appellant are not in the nature of supplying particulars instead those seek to raise new ground of challenge. Various paras of the election petition which are sought to be amended do not disclose any cause of action, therefore, it is not permissible to allow their amendment after expiry of the period of limitation. Amendment applications are accordingly rejected. Order 6 Rule -17. Amendment of pleadings - "The Court may at any stage of the proceedings allow either part to alter or amend his pleadings in such manner & on such terms as may be just, & 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." In the above case the Hon'ble Apex Court has made it clear that no amendment in the Election Petition beyond the period of limitation as prescribed in Section 81 of the Act. In deciding the case as reported in 1987 AIR S.C.1577 the Hon'ble Apex Court has categorically held that the Appellant could not raise any ground to challenge the election petition after expiry of limitation & the same is subject to the provisions of the Act Section 87 prescribes a period of 45 days from the date of election in presenting Election Petition. The Hon'ble Apex Court also held an order of Amendment permitting a new ground to be raised beyond the time specified in Section 81 would account to contravention of those provisions & beyond ambit of Section 87 of the Act. The Hon'ble Apex Court also held an order of Amendment permitting a new ground to be raised beyond the time specified in Section 81 would account to contravention of those provisions & beyond ambit of Section 87 of the Act. (C) (2005) 4 Supreme Court Cases 480: "7 - Two points of significance deserve to be noted & highlighted. On all the subjects, suggested by the titles given to the different chapters, provisions are already available in CPC which is a pre-existing law. An election petition is a civil trial & if Parliament had so wished, all the aspects of trial included in Part VI could have been left to be taken care of by the pre-existing law, that is, CPC. However, Parliament has chosen to enact separate & independent provisions applicable to the trial of election petitions & placed them in the body of the Act." "9- Sub-Section (6) of Section 86 of the Act requires trial of an election petition to be continued from day to day until its conclusion, so far as is practicable consistently with the interests of justice in respect of the trial, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. Sub-Section (7) requires every election petition to be tried as expeditiously as possible with an endeavour to conclude the trial within six months from the date of presentation of the election petition. Thus, the procedure provided for the trial of civil suits by CPC is not applicable in its entirety to the trial of election petitions. The applicability of the procedure is circumscribed by two riders: firstly, CPC procedure is applicable "as nearly as may be"; & secondly, CPC procedure would give way to any provisions of the Act & or any rules made thereunder". "46(ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the .trial of suits to the trial of election petitions is not attracted with all its rigidity & technicality. The rules of procedure contained in CPC apply to the trial of .election petitions under the Act which flexibility & only as guidelines". By this Judgment, the Hon'ble Apex Court has also held that CPC apply to the trial of election case under the Act will flexibility & only as guidelines. The rules of procedure contained in CPC apply to the trial of .election petitions under the Act which flexibility & only as guidelines". By this Judgment, the Hon'ble Apex Court has also held that CPC apply to the trial of election case under the Act will flexibility & only as guidelines. This decision supports the case of the Respondent No.1 fully. . (D) AIR 1970 Supreme Court 108. Ratan Lal Shah v. Firm Latman Das Chhadamma Lal & another: "2-Against the decree, Ratan Lal alone appealed to the High Court of Allahabad. Mohan Singh was impleaded as the second Respondent in the appeal. The notice of appeal sent to Mohan Singh was returned unserved & an application made by Counsel for the Appellant to serve Mohan Singh "in the ordinary course, as well as by registered post" was not disposed of by the Court. On July 9, 1963 Ratan Lal applied that it was "detected that there had been no service of the notice of appeal upon Mohan Singh & it was essential for the ends of justice that notice of appeal may be served upon Mohan Singh". The Court by Order Dated July 10, 1963, rejected the application & proceeded to hear the appeal. The Court was of. the view that since there was a joint decree' against Ratan Lal & Mohan Singh in a suit founded on a joint cause of action & the decree against Mohan Singh had become final, Ratan Lal could not claim to be heard on his appeal. The High Court observed: "If we hear him (Ratan Lal) the result may be that on the success of his appeal there will be two conflicting decisions between the "same parties in the same suit based on the same cause of action. Furthermore, the Appellant has not taken steps to serve the second Respondent (Mohan Singh) & the appeal must be dismissed for want of prosecution. On both these grounds we dismiss this appeal". Against the order passed by the High Court, this appeal has been preferred with special leave". In concluding the issue, the Hon'ble Apex Court has categorically held the High Court was right in rejecting the application for amendment. Decisions cited by Respondent No.1 as reported in AIR 1987 Orissa 204, AIR 2005 Punjab & Haryana 251 since stood on different footing have no application to the present case. 7. In concluding the issue, the Hon'ble Apex Court has categorically held the High Court was right in rejecting the application for amendment. Decisions cited by Respondent No.1 as reported in AIR 1987 Orissa 204, AIR 2005 Punjab & Haryana 251 since stood on different footing have no application to the present case. 7. Perusal of the petition for amendment clearly established introduction of new material facts which are beyond the material facts already contained therein & is opposed to the spirit of Section 87 of the Act. Attempt for introduction of prayer being dependent on the introduction of new material facts cannot be permissible in view of restriction indicated hereinabove. Besides, the attempt for introduction of new material facts as well as the new• prayer being made beyond the limitation of forty five days also opposed to Section 81 of the Act. Hon'ble Apex Court in its reported pronouncements, as indicated supra, has very categorically held that amendment beyond material facts & beyond the period of limitation is wholly impermissible. Hence, I do not find any merit to allow the Misc. Case for amendment of the election petition & the same is dismissed as such with cost of Rs.5,000 (Rupees five thousand) only.