Allahabad High Court Order

Allahabad High Court Order

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ORDER HEADLINE : For The Purposes Of Proviso To Order VI Rule 17 Of CPC The Relevant Date For Commencement Of The Trial Is The Date On Which Issues Are Framed
ORDER TITLE : Chandra Narain Tripathi Vs. Kapil Muni Karwariya On 08/16/2011 By Allahabad High Court
CASE NO : ELECTION PETITION NO. 1 OF 2009
CORAM : Hon'ble Shri Kant Tripathi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. - 43

Case :- ELECTION PETITION No. - 1 Of 2009

Petitioner :- Chandra Narain Tripathi
Respondent :- Kapil Muni Karwariya
Petitioner Counsel :- In Person,Narendra Kumar Pandey,Smt.Sudha Pandey
Respondent Counsel :- K.N.Tripathi,K.R.Singh,Ravi Shankar Prasad,S.C. Dwivedi

(Order On The Amendment Application No. 294725 Of 2009)

Hon'ble Shri Kant Tripathi,J.

1. Heard Mr. Narendra Kumar Pandey For The Petitioner, Mr. K. R. Singh And Mr. S. C. Dwivedi For The Respondent On The Interlocutory Application No. 294725 Of 2009, Moved Under Order VI Rule 17 Of The Code Of Civil Procedure (hereinafter Referred To As 'the Code').

2. The Respondent Has Moved The Aforesaid Application For Addition Of New Para 88 A To 88 I In The Written Statement And Thereby Wants To Specify Additional Ground For Showing That The Proposer No.2 Pramod Kumar Was Not An Elector, Therefore, He Was Not Competent To Subscribe The Petitioner's Nomination For The Election Of The Member Of The House Of People From 51 - Phoolpur Parliamentary Constituency Of District Allahabad, Which Was Held On 16.4.2009. The Petitioner And The Respondent And Other Persons Filed Their Nominations. The Returning Officer Found The Nomination Of The Petitioner As Invalid On The Ground That Proposers Onkar Nath Tripathi, Rajesh Kumar, Tarun, Ashok Kumar And Akhilesh Kumar Dubey Were Not Electors And Their Names Did Not Find Place At Listed Serial Numbers Of Part No.275 Of "262- Allahabad North Assembly Constituency".

3. The Petitioner Has Pleaded In The Election Petition That He Filed His Nomination As An Independent Candidate Which Was Subscribed By Ten Proposers, Whose Details Have Been Specified In Para 37 Of The Election Petition, Which Is Being Reproduced As Follows:
"37. That It Is Pertinent To Mention Here That The Ten Persons Who Were The Proposers Of The Election Petitioner Are As Follows:
1. Ram Narayan, S/o Surya Deen Dwivedi, R/o Village Deoria, Post Hanumanganj, District Allahabad.
2. Pramod Kumar S/o Shri Hira Lal, R/o House No.1, Kala Danda, Allahabad.
3. Himansu, S/o Shri Ramanand, R/o House No.16, Clive Road, Allahabad.
4. Bhuvneshwar Dwivedi, S/o Shri Ram Sajeevan,R/o House No.3-G/2, Shivkuti, Allahabad.
5. Onkar Nath Tripathi, S/o Shri Brij Nath Tripathi, R/o House No.803/28-B/A, Allahpur Mohile Nagar, Allahabad.
6. Rajesh Kumar S/o Onkar Nath Tripathi, R/o House No.803/28- B/A, Allahpur Mohile Nagar, Allahabad.
7. Rakesh Kumar, S/o Paras Nath, R/o House No.8/3, Muir Road, Allahabad.
8. Tarun, S/o Shri Shashikant, R/o House No.767/28-B/1, Allahpur Mohile Nagar, Allahabad.
9. Ashok Kumar, S/o Shri Ram Kumar, R/o House No.763/28-B/1, Allahpur Mohile Nagar, Allahabad.
10. Akhilesh Kumar Debey, S/o Shri Rang Nath Dubey, R/o House No.28-B/118-A, Allahpur Mohile Nagar, Allahabad."

4. The Petitioner Has Further Specified In Para 39 Of The Election Petition That Pramod Kumar (proposer No.2) Was An Elector At Serial No.3, Part No. 170 Of The Electoral Roll Of "261- Allahabad (North) Assembly Constituency" Which Is A Segment Of 51- Phulpur Parliamentary Constituency. Para 39 Of The Election Petition Is Being Reproduced As Follows:
"39. That Likewise The Proposer No.2 Pramod Kumar S/o Hira Lal R/o H. No.1 Kala Danda, Allahabad Is Recorded As An Elector At Sl. No. 3 Part No. 170 Of Electoral Roll Of 261- Allahabad West Legislative Assembly Constituency Which Is Also A Segment Of 51- Phulpur Parliamentary Constituency."

5. The Petitioner Has Filed Objection And Counter Affidavit Against The Prayer For The Amendment Of The Written Statement.

6. Mr. N.K. Pandey Appearing For The Petitioner Submitted That The Facts To Be Introduced By The Amendment Are Altogether New Grounds To Challenge The Petitioner's Nomination, Therefore, The Respondent Can Not Be Permitted To Introduce A New Ground In The Garb Of The Amendment. Mr. Pandey Further Submitted That The Trial Of An Election Petition Commences On Filing Of The Election Petition, Therefore, In View Of The Proviso To Order VI Rule 17 Of The Code, No Amendment Can Be Allowed After The Commencement Of The Trial.

7. Mr. K.R. Singh On The Other Hand, Submitted That No Doubt The Returning Officer Rejected The Petitioner's Nomination On The Ground That The Petitioner Had Not Disclosed Correct Part No. Of The Electoral Roll Of 262 - Allahabad (North) Assembly Constituency Relating To The Proposer Nos. 5, 6, 8, 9 And 10 But In A Case Arising Out Of An Election Petition, Matters Can Not Be Confined To The Extent Of Grounds Stated By The Returning Officer For Rejecting A Nomination. The Respondent Has A Right To Plead Additional Grounds For Showing That The Nomination Was Not Valid And It Was Rightly Rejected. In Other Words, The Respondent Has A Right To Set Up The Defence That Some Other Proposer Of The Petitioner Besides Proposer No. 5, 6, 8, 9 And 10 Was Also Not Competent To Subscribe The Candidature Of The Petitioner. This Principle Has Been Laid Down By The Apex Court In The Case Of J.H. Patel V. Shubhan Khan (1996) 5 SCC 312. In That Case, The Apex 'Court Held That The High Court' Jurisdiction Cannot Be Confined To The Grounds On Which The Returning Officer Rejected The Nomination. It Is Open To Place Before The High Court Fresh Material Having Bearing On The Question Of Validity Of The Nomination. Mr. Singh Further Submitted That The Respondent Has Already Pleaded In Para 69 Of The Written Statement That The Petitioner's Proposers Were Not Competent To Subscribe His Candidature, Therefore, According To The Pleading Contained In Para 69 Of The Written Statement It Can Be Inferred That The Respondent Has Already Set Up The Defence That The Proposer No.2 Pramod Kumar Was Not Competent To Subscribe The Candidature Of The Petitioner. The Respondent Has Further Replied The Contents Of Para 39 Of The Election Petition And Alleged Therein That It Is Matter Of Evidence/record That The Proposers Were Electors Or Not. On The Basis Of These Averments Contained In The Written Statement, Mr. K.R. Singh Submitted That The Amendment Does Not In Any Way Amount To Setting Up Of A New Case Or New Ground. In Fact The Amendment, Which Is Necessary To Decide The Question Whether Or Not The Petitioner's Nomination Was Valid And Was Rightly Rejected By The Returning Officer, Is Nothing Except By Way Of Clarifying The Facts Already Pleaded In Paras 39 And 69 Of The Written Statement.

8. Mr. K.R. Singh Lastly Submitted That No Doubt The Trial Of An Election Petition Commences On The Presentation Of The Election Petition But The Expression "commencement Of The Trial" Provided In The Proviso To Order VI Rule 17 Of The Code Has A Different Meaning.

9. The Representation Of People Act, 1951 (hereinafter Referred To As '1951 Act') Is Silent So Far As The Amendment Of The Written Statement Is Concerned. However, Section 86 (5) Of The 1951 Act Provides For Amendment Of The Election Petition Under Certain Circumstances. Mr. K.R. Singh Submitted That Initially The Provisions Relating To Amendment Of Election Petition Were Provided In Section 83(3) Of The 1951 Act, Which Has Now Been Shifted To Section 86 Of The 1951 Act By An Amendment Of 1951 Act And Now Section 86 (5) Of The 1951 Act Deals With Such Amendment. In The Case Of Harish Chandra Bajpai And Another V. Triloki Singh And Another, AIR 1957 SC 444 The Apex Court While Considering The Ambit And Scope Of Old Section 83(3) Of The 1951 Act, Held That The Amendment Can Not Be Confined To The Extent Provided In Section 83(3) Of The 1951 Act. Where The Amendment Relates Not To Particulars But To Other Matters, That Is A Field Not Occupied By Section 83(3) Of The 1951 Act, Order VI Rule 17 Of The Code Will Apply In Such Matters Therefore, In That Case The Apex Court Propounded The Principle That Order VI Rule 17 Of The Code Can Be Applied In Appropriate Cases While Considering An Amendment Of Pleadings In Election Matters. A Similar Principle Has Been Laid Down By The Apex Court In Gajanan Krishaji Bapat & Another Vs. Dattaji Raghobaji Meghe And Others,(1995) 5 SCC 347. In That Case, The Apex Court Held That Power Of Amendment Given In The Code Can Be Invoked By The High Court Because Section 86 Of The 1951 Act Itself Makes The Procedure Applicable, As Nearly As May Be, To The Trial Of Election Petition. The Apex Court Further Held That The General Power Of Amendment Drawn From The Code Must Be Construed In The Light Of The Provisions Of The Election Law And Applied With Such Restraints As Are Inherent In An Election Petition.

10. In The Case Of Kailash V. Nanhku And Others, AIR 2005 SC 2441, The Apex Court Held That The Trial Of An Election Petition Is Entirely Different From The Trial Of A Civil Suit, As In A Civil Suit Trial Commences On Framing The Issues While Trial Of An Election Petition Encompasses All Proceedings Commencing From The Filing Of The Election Petition Up To The Date Of Decision. Therefore, The Procedure Provided In The Trial Of Civil Suits Under The Code Of Civil Procedure Is Not Applicable In Its Entirety To The Trial Of The Election Petition. The Apex Court Further Held That The Applicability Of The Procedure Prescribed In The Code Is Circumscribed By Two Riders; Firstly, The C.P.C. Procedure Is Applicable Only As Nearly As May Be, And Secondly, The C.P.C. Would Give Way To Any Provisions Of The Act Or Any Rules Made Thereunder. Following The Principles Laid Down In The Case Of Kailash (supra) The Apex Court, In The Case Of Kalyan Singh Chouhan V. C.P. Joshi, AIR 2011 SC 1127, Held That The Procedure Prescribed In The Code Applies To Election Trial With Flexibility And Only As Guide Lines.

11. In The Case Of Sethi Roop Lal V. Malti Thapar & Others, (1994) 2 SCC 579, The Apex Court Very Specifically Held That Order VI Rule 17 Of The Code, Which Relates To Amendment Of Pleadings Will Afortiori Apply To The Election Petitions Subject, However, To The Provisions Of The Act And 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 And On Such Terms As May Be Just And 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. The Apex Court Further Opined That The General Powers Of Amendment Stood Curtailed By Section 86 (5) Of The 1951 Act When Amendment Is Sought For In Respect Of Any Election Petition Based On Corrupt Practice.

12. In View Of The Aforesaid Settled Principles, Order VI Rule 17 Of The Code Is Applicable To Deal With The Matter Relating To Amendments Of Written Statement. There Does Not Appear To Be Any Provision In The 1951 Act Prohibiting Amendments Of Written Statement. More So, The Learned Counsel For The Parties Did Not Dispute This Legal Position And Conceded That The Amendment Is Liable To Be Considered According To Order VI Rule 17 Of The Code.

13. The Apex Court Had Occasion To Consider The Ambit And Scope Of The Provisions Of Order VI Rule 17 Of The Code In Various Decisions And Some Of Them Are Being Referred To Hereinafter.

14. In The Case Of B.K.N. Pillai Vs. P. Pillai, ARC 2001 (1) SC 5, The Supreme Court Held That The Amendments Are Allowed In The Pleadings To Avoid Uncalled For Multiplicity Of Litigation. The Purpose And Object Of Order VI Rule 17 Of The Code Is To Allow Either Party To Alter Or Amend His Pleadings In Such Manner And On Such Terms As May Be Just. The Power To Allow The Amendment Is Wide And Can Be Exercised At Any Stage Of The Proceedings In The Interest Of Justice.

15. In The Case Of Baldeo Singh Vs. Manohar Singh, AIR 2006 SC 832, The Supreme Court Held That The Courts Should Be Extremely Liberal In Granting The Prayer For Amendment Of Pleadings Unless Serious Injustice Or Irreparable Loss Is Caused To The Other Side.

16. In The Case Of Rajesh Kumar Agrawal Vs. K.K. Modi, AIR 2006 SC 1647, The Apex Court Observed:
"The Object Of Order 6 Rule 17 Is That The Courts Should Try The Merits Of The Case That Come Before Them And Should, Consequently, Allow All Amendments That May Be Necessary For Determining The Real Question In Controversy Between The Parties Provided It Does Not Cause Injustice Or Prejudice To The Other Side. The Rule Of Amendment Is Essentially A Rule Of Justice, Equity And Good Conscience And The Power Of Amendment Should Be Exercised In The Larger Interest Of Doing Full And Complete Justice To The Parties Before The Court. The Court Always Gives Leave To Amend The Pleadings Of A Party Unless It Is Satisfied That The Party Applying Was Acting Mala Fide. The Amendment To Pleading Should Be Liberally Allowed Since Procedural Obstacles Ought Not To Impede The Dispensation Of Justice. The Court Should Also Take Notice Of Subsequent Events In Order To Shorten The Litigation, To Preserve And Safeguard The Rights Of Both Parties And To Subserve The Ends Of Justice."

17. It May Also Be Mentioned That Merit Of The Amendment Can Not Be Gone Into At The Stage Of Considering The Amendment And The Cases Of Andhra Bank Vs A.B.N. Amro Bank, AIR 2007 SC 2511 And Usha Devi Vs. Rizwan Ahmad And Others, AIR 2008 SC 1147 Are Referable In This Regard.

18.In The Case Of Baldeo Singh & Others Vs. Manohar Singh & Another, (2006) 6 SCC 498, The Apex Court While Holding That More Liberal Approach Should Be Adopted In The Matter Of Amendment Of Written Statement Than Of Plaint, Held That It Is Now Well Settled That An Amendment Of A Plaint And Amendment Of A Written Statement Are Not Necessarily Governed By Exactly The Same Principle. It Is True That Some General Principles Are Certainly Common To Both, But The Rules That The Plaintiff Can Not Be Allowed To Amend His Pleadings So As To Alter Materially Or Substitute His Cause Of Action Or The Nature Of His Claim Has Necessarily No Counterpart In The Law Relating To Amendment Of The Written Statement. Adding A New Ground Of Defence Or Substituting Or Altering A Defence Does Not Raise The Same Problem As Adding, Altering Or Substituting A New Cause Of Action. Accordingly, In The Case Of Amendment Of Written Statement, The Courts Are Inclined To Be More Liberal In Allowing Amendment Of The Written Statement Than Of Plaint And Question Of Prejudice Is Less Likely To Operate With Same Rigour In The Former Than In The Latter Case.

19. In View Of The Aforesaid Case Laws, An Amendment Of The Plaint Or Written Statement, Which Is Necessary For Proper Decision Of The Case, Can Be Allowed At Any Stage Of Proceedings Unless It Is Shown That Some Prejudice Or Serious Injustice Is Going To Be Caused To The Opposite Side. In Other Words, If The Opposite Side Can Be Adequately Compensated By Costs And The Amendment Is Not Barred By Any Law And No Prejudice Or Serious Injustice Is Going To Be Caused To The Opposite Party, The Amendment Should Be Allowed.

20. The Main Contention Raised On Behalf Of The Petitioner While Opposing The Amendment Was That The Amendment Has Been Sought For After The Commencement Of The Trial, Therefore, In View Of The Proviso To Order VI Rule 17 Of The Code, The Amendment Can Not Be Allowed. The Submission Put Forth On Behalf Of The Petitioner Was That The Trial Of An Election Petition Commences On Filing Of The Election Petition As Held By The Apex Court In The Case Of Kailash (supra) And Kalyan Singh Chouhan (supra), As Such, The Amendment Is Barred By The Said Proviso.

21. The Proviso To Order VI Rule 17 Of The Code Was Inserted By The Civil Procedure Code (Amendment) Act, 2002 W.e.f. 1.7.2002, Which Reads As Follows:
"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."

22. The Proviso, Therefore, Is In The Mandatory Form And Curtails The Jurisdiction Of The Court To Allow An Amendment After The Trial Has Commenced. However, There Is An Exception To This Proposition And That Is The Court May Allow An Amendment Even After The Commencement Of The Trial If It Comes To The Conclusion That In Spite Of Due Diligence, The Party Seeking The Amendment Could Not Have Raised The Matter Before The Commencement Of The Trial. In The Case Of Vidyabai & Others V. Padmalatha And Another, AIR 2009 SC 1433, The Apex Court Has Very Clearly Held That For The Purposes Of The Proviso To Order VI Rule 17 Of The Code The Relevant Date For The Commencement Of The Trial Is The Date On Which Issues Are Framed, Therefore, For The Purposes Of The Amendment Application Moved By The Respondent, The Expression "commencement Of The Trial" As Contemplated By The Proviso To Order VI Rule 17 Of The Code Has A Meaning Different From The Meaning Assigned To That Expression Under The 1951 Act. If The Date Of The Filing Of The Election Petition Is Taken As The Date Of The Commencement Of The Trial For The Purposes Of The Proviso To Order VI Rule 17 Of The Code, The Application Of The Said Proviso Would Never Arise In The Matter Of An Amendment Not Only Of Written Statements But Also Of The Election Petitions. The Question Of An Amendment Arises Only After Filing Of Pleadings (plaint And Written Statement) And Not Prior To That. If The Date Of Commencement Of The Trial For The Purposes Of The Proviso To Order VI Rule 17 Of The Code Is Taken As The Date Of Presentation Of The Election Petition In The High Court, No Occasion Will Ever Arise Either For The Petitioner Or The Respondent To Amend His Pleading. In Such Situation, Not Only Section 86(5) Of The 1951 Act But Also Order VI Rule 17 Of The Code Would Be Inapplicable. Such An Interpretation Instead Of Harmonising Various Provisions Would Result In Absurdity. Therefore, The Rule Of Harmonious Construction Has To Be Applied So As To Give Effect To Various Provisions Of 1951 Act And Order VI Rule 17 Of The Code. It Is Well Settled That When On A Construction Of A Statute Two Views Are Possible, One Which Results In An Anomaly And The Other Gives Effect To The Statute, It Is The Duty Of The Court To Adopt The Latter Construction. In This View Of The Matter, The Date On Which The Trial Commences Within The Meaning Of The Proviso To Order VI Rule 17 Of The Code Can Not Be Held To Be Either A Date Prior To The Date Of Presentation Of Pleadings Or The Date On Which The Pleading Is Presented In The Court. Therefore, The Relevant Date Seems To Be The Date On Which Issues Are Framed, Therefore, The Proviso To Order VI Rule 17 Of The Code Is Not Applicable In Respect Of An Amendment Sought For Before Settlement Of Issues. Mr. N.K. Pandey Further Tried To Contend That The Day On Which Fifteen Days Period Expires From The Date Of Presentation Of The Written Statement Is Liable To Be Treated As The Date Of The Commencement Of Trial Of An Election Petition For The Purposes Of The Aforesaid Proviso. The Date So Suggested By Mr. Pandey Has No Legal Support Whereas The Date On Which Issues Are Framed Has Been Held By The Apex Court In The Case Of Vidyabai (supra) And Other Cases As The Date On Which The Trial Commences Within The Meaning Of The Proviso To Order VI Rule 17 Of The Code. Therefore, I Do Not Find Any Force In The Aforesaid Submission.

23. In This Case Issues Have Not Yet Been Framed And The Respondent Moved The Amendment Application At The Very Initial Stage Within A Month From The Date Of Filing Of The Written Statement, Therefore, The Amendment Application Can Not Be Rejected On The Ground That It Was Barred By The Proviso To Order VI Rule 17 Of The Code.

24.So Far As The Merit Of The Amendment Is Concerned, It Seems To Be Necessary For Deciding The Controversy Involved In The Election Petition. In The Present Case, The Petitioner Has Alleged That His Nomination Was Valid But The Returning Officer Improperly Rejected It. He Has Further Pleaded That His All The Proposers Were Electors And As Such Were Competent To Subscribe His Candidature. The Respondent Disputed These Allegations And Alleged That The Petitioner's Proposers Were Competent To Act As Proposers. In This Way, The Main Controversy Involved In The Case Is With Regard To The Validity Of The Nomination Filed By The Petitioner, Therefore, The Amendment By Which The Respondent Wants To Plead That Proposer No.2 Pramod Kumar Was Not Competent To Act As A Proposer, Seems To Be Necessary To Decide The Controversy. More So, In Para 69 Of The Written Statement Respondent Has Very Clearly Stated That The Petitioner's Proposers Were Not Competent To Subscribe His Candidature, Therefore, The Amendment Does Not Amount To Addition Of A New Ground And Is Also Not In Any Way Contrary To The Original Pleading. It Appears That The Amendment Is Nothing Except Byway Of Clarifying The Earlier Pleadings Which Seems To Be Necessary For Proper Decision Of The Case. Apart From That The Amendment Does Not In Any Way Cause Any Prejudice Or Injustice To The Petitioner Nor It Takes Away His Any Vested Right. More So, The Petitioner Can Be Adequately Compensated With Costs.

25.The Amendment Application Is Allowed Subject To Payment Of Costs Of Rs. Five Thousand To The Petitioner Within Eight Days. In Case The Petitioner Does Not Accept The Costs, It Will Be Open To The Respondent To Deposit The Costs In The Court. The Amendment Shall Be Incorporated Also Within Eight Days. Replication, If Any, May Also Be Filed Within The Same Period. However, Mr. N.K. Pandey Informed That He Would Not File Any Replication.

26.List The Case On 25.8.2011 For Issues.

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