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2019 DIGILAW 1845 (RAJ)

Ram Gopal Jat v. Addl. Chief Judicial Magistrate No. 2, Bikaner

2019-07-01

DINESH MEHTA

body2019
JUDGMENT : DINESH MEHTA, J. The present writ petition has been preferred by the petitioner impugning the order dated 02.06.2017, passed by learned Additional Senior Civil Judge & Additional Chief Judicial Magistrate No. 2, Bikaner (hereinafter referred to as “the trial Court”), vide which an application under Order VI Rule 17 of the Code of Civil Procedure has been allowed. 2. Briefly narrated the facts appertain to the present writ petition are that the petitioner contested the election for the post of Sarpanch, Gram Panchayat Palana, District Bikaner and was declared as returned candidate on 24.01.2015. Respondent No. 2 - Teja Ram another contestant filed an election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as “the Act of 1994”), calling in question the petitioner's election. The said election petition was premised on the grounds of irregularity in counting of the votes and production of forged documents by the returned candidate Ram Gopal (petitioner herein). According to the assertions made in the election petition, the present petitioner - successful candidate had not passed class VIIIth, and was thus not eligible to contest the election of Sarpanch. 3. After filing of the election petition on 23.02.2015, Teja Ram - election petitioner (respondent No. 2 herein) filed an application dated 13.5.2015, under Order VI Rule 17 of the Code and prayed that he be permitted to amend the election petition and Para 9A and 9B be allowed to be inserted. 4. The present petitioner, being returned candidate (defendant No. 1) opposed grant of such amendment by way of filing a reply dated 30.08.2016. 5. 4. The present petitioner, being returned candidate (defendant No. 1) opposed grant of such amendment by way of filing a reply dated 30.08.2016. 5. The aforesaid application filed by the respondent No. 2 Teja Ram has been allowed by the learned trial Court, vide its order dated 02.06.2017, and resultantly the following paras have been permitted to be inserted as No. 9A and 9B in the election petition:— ^^iSjk ua-9 ^^,^^ & ;g fd vizkFkhZ ua- 3 eksguyky ij fnukad 19-06-2008 dks /kkjk 409 Hkk-n-l- ds rgr U;k;ky; }kjk izLkaKku fy;k tkdj fojfpr fd;k x;k gS /kkjk 409 Hkk-n-l- esa nl lky ;k vkthou dkjkokl ds n.M dk izko/kku gS blfy;s vizkFkhZ ua-3 eksguyky ljiap in ds pquko esa mEehnokj cuus esa v;ksX; FkkA mldk uke funsZ'ku i= vLohdkj ;ksX; FkkA ysfdu pquko vf/kdkjh dk uke funsZ'ku i= xyr :i ls Lohdkj djus ds dkj.k pquko ij lkjHkwr vlj iM+k gSA ljiap in dk pquko bl fcUnq ij Hkh fujLr djus ;ksX; gSA ^^iSjk ua-9 ^^ch^^ & ;g fd vizkFkhZ ua-3 eksguyky ds fnukad 27-11-1995 ds ckn o"kZ 1999 o 2001 esa nks ls vf/kd larku iSnk gksus ls og jkt- iapk;rh jkt vf/kfu;e 1994 dh /kkjk 9ch ds rgr ljiap in ds pquko yM+us gsrq ekuuh; laHkkxh; vk;qDr chdkusj }kjk fnukad 26-03-2004 dks v;ksX; ?kksf"kr fd;k x;k gSA blfy;s vizkFkhZ ua-3 eksguyky dk ljiap in gsrq pquko ds mEehnokj dk uke funsZ'ku i= Lohdkj djus ls pquko ij lkj Hkwr vlj iM+k gSA ljaip in gsrq vizkFkhZ ua-1 pquko fujLr djus ;ksX; gSA^^ 6. While allowing the subject application dated 13.05.2015, the trial Court observed that the defendant (petitioner) has not filed his written statement; the grant of amendment will not change the nature of the case; and that such amendment would help the election Tribunal in deciding the election petition effectively. It will not be out of place to reproduce the concise reasons recorded by the Tribunal for grant of respondent's application under Order VI Rule 17 of the Code. It will not be out of place to reproduce the concise reasons recorded by the Tribunal for grant of respondent's application under Order VI Rule 17 of the Code. ^^bl izdkj izkFkhZ }kjk izkFkZuk i= ds tfj;s ftl izdkj dk la'kks/ku djok;s tkus dk fuosnu fd;k gS mlls U;k;ky; dks pquko ;kfpdk fookfnr fcUnqvks ds fuLrkj.k esa lgk;rk izkIr gksxh o ;kfpdk dh izd`fr esa dksbZ cnyko ugha vk,xk ,oa vizkFkhZx.k dks tokc dk volj izkIr gksxk D;ksafd pquko ;kfpdk esa vHkh vizkFkhZx.k }kjk tokc is'k ugh gqvk gSA ,slh fLFkfr esa izkFkhZ dks pquko ;kfpdk esa okafNr la’kks/ku fd;s tkus dh vuqefr iznkj fd;k tkrk U;k;ksfpr izrhr gksrk gSA vr% izdj.k ds rF;ksa ,oa ifjfLFkfr;ksa dks ns[krs gq, izkFkhZ dks mlds }kjk izLrqr izkFkZuk i= Lohdkj fd;k tkdj izkFkZuk esa of.kZrkuqlkj okafNr la'kks/ku fd;s tkus dh vuqefr iznku dh tkrh gSA izkFkhZ fu;ekuqlkj la'kksf/kr izkFkZuk i= is'k djsA^^ 7. Mr. Anil Vyas, learned counsel for the petitioner submitted that the impugned order passed by the trial Court is per se illegal and contrary to the settled canons of law, besides being contrary to the provisions of Order VI Rule 17 of the Code of Civil Procedure. He submitted that by allowing the amendment application, the trial Court has permitted the election petitioner - respondent No. 2 to raise two additional grounds, which were not raised at the time of institution of the election petition. He argued that merely because the defendant has not filed written statement, the trial Court cannot allow the amendment application, particularly when the amendment sought has the effect of changing the nature of the election petition. 8. Mr. Sanjay Mathur, learned counsel appearing for the respondents submitted that the trial Court has passed a just and legal order and no interference in supervisory jurisdiction of this Court is warranted. He added that the petitioner - returned candidate shall have a right to oppose the election petition on all possible counts while filing a written statement and hence, this Court should not upturn the discretionary order passed by the trial Court. 9. He added that the petitioner - returned candidate shall have a right to oppose the election petition on all possible counts while filing a written statement and hence, this Court should not upturn the discretionary order passed by the trial Court. 9. Having heard learned counsel for the parties and upon perusal of the material available on record, this Court is of the considered opinion that the trial Court has not only ignored the settled proposition of election law but has also taken a detour from the basic principles governing the applications seeking amendment under Order VI Rule 17 of the Code of Civil Procedure. 10. Needless it is, to state that while dealing with the election petitions, the Courts should refrain from adopting an ultra-liberal approach and a rather conservative path should be resorted to. In other words, in matters involving challenge to elections, strict principles of pleadings are required to be adhered to. 11. An appraisal of the contextual facts reveals that by way of the order impugned, the trial Court has permitted the respondent No. 2 to plead altogether new facts and raise corresponding grounds, viz, framing of the charges against the petitioner and giving birth to a third child after the cut off date. It is noteworthy that there was not even a whisper about such facts in the original election petition. 12. It is pertinent to note that the facts and grounds sought to be implanted by way of the impugned amendment relate to the period prior to filing the nomination and they were very much in existence, hence, the respondent cannot introduce them subsequently simply by pleading ignorance. 13. It is beyond pale of doubt that para No. 9A and 9B permitted to be inserted by the trial Court would lead to introduction of new facts and grounds and thus tantamount to change the very basis and structure of the election petition and would naturally expand its scope. 14. Grant of such amendment in the election petition would entirely change the fulcrum and foundation of the election petition. The amendment in question is clearly beyond the ambit and scope of Order VI Rule 17 of the Code. 15. An election petition under the Panchayati Raj Act is required to be filed within 30 days of declaration of the result, while clearly setting out the grounds for such challenge. The amendment in question is clearly beyond the ambit and scope of Order VI Rule 17 of the Code. 15. An election petition under the Panchayati Raj Act is required to be filed within 30 days of declaration of the result, while clearly setting out the grounds for such challenge. Addition of new grounds at a later stage will be barred by the limitation. 16. Viewed from any angle, impugned order is clearly contrary to the principles laid down by this Court and by Hon'ble the Supreme Court. A gainful reference of the observation made in following judgments of Hon'ble the Supreme Court and this High Court can be made in this regard (i) 1993 Supp (1) SCC 50 : AIR 1992 SC 164 (K.D. Deshmukh v. Amrit Lal Jiaswal,):— “3. The respondent who had filed the election petition then submitted an application for amendment in the original election petition to add a ground that the oath administered to the appellant was not in proper form. This amendment application submitted on 8th March, 1991 was allowed by the High Court by the impugned order dated 4th April, 1991. The appellant took time on 5th April, 1991 to file the amended written statement. 4. We have heard learned Counsel for the parties and we are inclined to allow this appeal. It is an admitted position that the result of the election was declared on 28-2-1990 and the election petition could have been filed within 45 days of such result. It is also an admitted position that on 8-3-91 when the amendment application was filed, the said period of 45 days had expired long back. The ground now sought to be raised by way of amendment is totally a new ground falling under Section 100(1)(d) of the Act. The original petition was filed on the ground of improper rejection of nomination papers of 3 candidates under Section 100(1)(c) of the Act, and the ground now sought to be raised by amendment is of improper acceptance of nomination paper of the appellant himself under Section 100(1)(d) of the Act. In our view the High Court was wrong in allowing the amendment application and in taking the view that the objection regarding limitation shall be decided while disposing of the election petition on merits finally. In our view the High Court was wrong in allowing the amendment application and in taking the view that the objection regarding limitation shall be decided while disposing of the election petition on merits finally. This approach of the High Court is totally wrong inasmuch as no amendment could have been allowed by which totally a new ground was sought to be taken and which was clearly beyond limitation on 8-3-91, the date of filing the amendment application.” (ii) 2010 (6) ALLMR 507 (Fateh Mohammed Mohd. Raza v. Kamlesh Somnath Yadav,):— “Considering the scheme of the Act, in our view, no amendment is permissible after the prescribed period of limitation and no new ground can be taken once it is filed. Even within the period of limitation, no new ground can be added. However, regarding existing ground taken in the petition, if any particulars are to be given, the same can be given within the prescribed period of limitation. However, giving of such particulars may not be permissible after the period of limitation, as election petition cannot be equated with a civil suit. However, clerical or typographical error can be carried out at any point of time, of course, with the leave of the Court. In our view, therefore, no new ground can be taken by way of amendment once election petition is filed. Better particulars can be given but that too within the period of limitation. Since in the instant case, amendment is permitted after a long time, the learned trial Judge has erred in granting amendment after the period of limitation, which in our view, could not have been granted. It cannot be said that even otherwise, amendment granted by the learned Trial Judge, is clarificatory in nature. We accordingly answer the Reference by holding that amendment in the election petition is not permissible after the prescribed period of limitation. No new ground can be taken in the election petition after it is filed.” (iii) 2018 (2) WLN 187 (Raj.) (Gafoor Khan v. Ramjan Khan,). “To understand the real nature and scope of amendment and the fundamentals governing the law relating to the applications for amendment filed under Order VI Rule 17, one must advert to the celebrity judgments of Revajeetu Builders & Developers, (Supra). “To understand the real nature and scope of amendment and the fundamentals governing the law relating to the applications for amendment filed under Order VI Rule 17, one must advert to the celebrity judgments of Revajeetu Builders & Developers, (Supra). In the aforesaid judgment, the Supreme Court after considering almost all the judgments on the subject and legislative history, has asserted with authority the following principles:— (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.” If the amendment application in question is tested on the touchstone of the principles propounded in Revajeetu Builders & Developers (Supra), and other judgments, I unhesitently hold that it deserves to be rejected …” 17. In view of the factual analysis and legal position, the order impugned passed by the trial Court on 02.06.2017, can not withstand the judicial scrutiny. 18. The writ petition is thus allowed. The impugned order dated 02.06.2017 passed by the trial Court is quashed and set aside. The application dated 13.05.2015 of the respondent No. 2 Teja Ram filed under Order VI Rule 17 of the Code of Civil Procedure is rejected. The stay application No. 7896/2017 also stands disposed of.