ORISSA HIGH COURT: CUTTACK.
W.P.(C) NO. 13079 OF 2008
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Radhakanta Juadi ...... Petitioner
-Versus-
State of Orissa & another ...... Opp. parties
For Petitioner : Mr. Goutam Mishra
For Opp. Parties : M/s. H.K. Mishra, A.K. Mishra,
A.S. Behera & T.K. Sahoo
(For O.P. 2)
Addl. Government Advocate
(For O.P. 1)
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Date of Judgment: 20.09.2010
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PRESENT :
THE HONOURABLE SHRI JUSTICE M.M. DAS
M. M. Das, J. The petitioner is the elected Sarpanch of Mayabarha in the
district of Sonepur. Apart from the petitioner, there were three other
candidates to contest the election to be the office of the Sarpanch of the
said Grama Panchayat. After declaration of the result of the election, the
opp. party no. 2 filed an application under Section 31 of the Orissa Grama
Panchayat Act before the learned Civil Judge (Junior Division), Rampur
challenging the election of the petitioner on the main ground that he had
more than two children born after the cut off date. The said election
petition was registered as MJC No. 10 of 2007. The petitioner after
appearing in the said election dispute has filed a show cause/written
statement. In paragraph-4 of the written statement, the petitioner denied
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the allegation with regard to the dates of birth of his children stating the
same to be incorrect and false. On 26.6.2010, the opp. party no. 2
(election petitioner) filed an alleged extract of the immunization register
indicating that the male child was born on 6.8.2003. After filing of the
written statement by the petitioner, the opp. party no. 2, who is the
election petitioner in the court below, filed an application under Order 6
Rule 17 C.P.C. seeking amendment of the petition, when the case was
posted for trial. The learned Election Tribunal by its order dated
3.12.2007 allowed the said petition for amendment against which the
present petitioner preferred an appeal before the learned District Judge,
Sonepur. The appeal was dismissed by order dated 22.2.2008 confirming
the order of the learned Election Tribunal by which the amendment was
allowed. Being aggrieved, the petitioner has preferred the present writ
petition calling in question the orders passed by the learned Election
Tribunal and the learned Appellate Court are at Annexures-5 and 6. The
proposed amendment in the application under Order 6 Rule 17 C.P.C.,
which was sought for by the opp. party no. 2, is as follows:
2. In paragraph-4 of the last line after the words the date of
birth “6.8.2003” may be deleted and in its place “8.11.2003” may be
written”.
Paragraph-4 in the Original Election Petition was as
follows:
“That the O.P. No. 1 is disqualified for being elected
as the Sarpanch of Mayabarha Grama Panchayat as he has
three children after the cut-off date as described below;
(i)Twinkil Juadi, D/O. Radhakanta Juadi, Date of birth –
17.3.1999 (ii) Rinki Juadi, D/O. Radhakanta Juadi, Date of
birth- 7.7.2002 (iii) Atul Juadi, S/O. Radhakanta Juadi,
Date of birth-06.08.2003.”
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3. The learned Election Tribunal hearing the application for
amendment concluded that the amendment will enable the court to find
out the truth and such amendment is required to the interest of justice. It
was further concluded that such amendment will not change the nature
and character of the case and accordingly, the prayer for amendment was
allowed. The learned appellate court recording the statement of the
respondent (opposite party no. 2 herein) that the appeal being against an
interlocutory order of the lower court is not maintainable in view of the
ratio laid down in the decision reported in the case of Sasmita Pradhan –
v- District Collector-C.E.O., Puri and others, 2007 (Suppl.) II OLR 875
came to the conclusion that the appeal is not maintainable in the eye of
law and accordingly, is dismissed. The appellant court has not gone into
the question as to whether allowing the amendment was legally
sustainable or not.
4. Mr. G. Mishra, learned counsel for the petitioner urged that
in view of the original pleadings at paragraph-4 of the election petition and
in view of the fact that the election petitioner himself has produced an
extract copy of the immunization registered as a document in support of
his case, which shows that the last child of the petitioner was born on
6.8.2003, the learned Election Tribunal having not taken into
consideration the said aspect has committed an error in allowing the
prayer for amendment made by the election petitioner (opposite party
no.2). He relied upon the decisions in the case of Ajendraprasadji N.
Pandey and another -v- Swami Keshavprakeshdasji N. and others,
(2006) 12 SCC 1, Union Bank of India -v- Venkatesh Gopal Mahishi
and another, (2006) 12 SCC 20, M/s. Modi Spinning & Weaving Mills
Co. Ltd. and another -v- M/s. Ladha Ram & Co., AIR 1977 SC 680,
Sukhad Raj Singh -v- Ram Harsh Misra and others, AIR 1977 SC 681,
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Chander Kanta Bansal -v- Rajinder Singh Anand, (2008) 5 SCC 117,
Gobind Ch. Panda -v- Darsan Ch. Rout and others, (1969) CLT 1108.
In the case of Ajendraprasadji (supra), the Supreme Court in respect of the
amendment of the pleadings under Order 6 Rule 17 C.P.C. laid down that
merely stating the averments made in the amendment application, the
same could not be submitted before commencement of trial in spite of
taking utmost care taken by the defendants-applicants does not satisfy
the requirement of Order 6 Rule 17 C.P.C. without giving supporting the
particulars which would satisfy the requirement of law that the matters
now sought to be introduced by the amendment could not have raised
earlier in spite of due diligence. In the said case, the Supreme Court
considering the prayer for amendment allowed at a belated stage and
interpreting the proviso to Order 6 Rule 17 C.P.C. brought in by C.P.C.
(Amendment) Act, 2002 laid down as follows:
“43. Under the proviso no application for amendment
shall be allowed after the trial has commenced, unless in spite
of due diligence, the matter could not be raised before the
commencement of trial. It is submitted, that after the trial of
the case has commenced, no application of pleading shall be
allowed unless the above requirement is satisfied. The amended
Order 6 Rule 17 was due to the recommendation of the Law
Commission since Order (sic Rule) 17, as it existed prior to the
amendment, was invoked by parties interested in delaying the
trial. That to shorten the litigation and speed up disposal of
suits, amendment was made by the amending Act, 1999,
deleting Rule 17 from the Code. This evoked much controversy/
hesitation all over the country and also leading to boycott of
courts and, therefore, by the Civil Procedure Code (Amendment)
Act, 2002, provision has been restored by recognizing the power
of the court to grant amendment, however, with certain
limitation which is contained in the new proviso added to the
rule. The details furnished below will go to show as to how the
facts of the present case show that the matters which are
sought to be raised by way of amendment by the appellants
were well within their knowledge on their court case, and
manifests the absence of due diligence on the part of the
appellants disentitling them to relief.”
5. The Supreme Court, therefore, examined the case that the
amendment sought for will fall under the proviso to Order 6 Rule 17
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C.P.C. On that context, it was concluded that the defendant has,
therefore, to prove that in spite of due diligence, he could not have raised
the matter before the commencement of trial. Examining the facts of the
said case, it was ruled that the matter sought to be introduced by the
defendant by way of additional written statement does not satisfy the
requirement of Order 6 Rule 17 C.P.C. and thus, the same could not have
been allowed to be introduced by the amendment. In the case of M/s.
Modi Spinning & Weaving Mills (supra), the trial court rejected the prayer
for amendment of the written statement, which was made approximately
after three years from the date of filing of the written statement. By the
said amendment, which was sought for to be introduced, the defendants
wanted deletion of some paragraphs and substitution of two new
paragraphs. The High Court on revision affirmed the judgment of the trial
court by coming to the conclusion that by means of amendment, the
defendants wanted to introduce an entirely different case and if such
amendments were permitted, it would prejudice the other side.
6. Considering the facts of the said case, the Supreme Court
laid down that it is true that inconsistent pleas can be made in pleadings
but the effect of substitution of two paragraphs is not making inconsistent
and alternative pleadings but it is seeking to displace the plaintiff
completely from the admission made by the defendants in the written
statement. If such amendments are allowed, the plaintiff will be
irretrievably prejudiced by being denied the opportunity of extracting the
admission from the defendants. With the above findings, the Supreme
Court confirmed the order passed by the High Court rejecting the prayer
for amendment.
7. Delayed amendments sought for have put for consideration
of the court on enumerable number of cases. After amendment of Order 6
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Rule 17 C.P.C., such amendments, if satisfied the proviso to Order 6 Rule
17 C.P.C., can only be allowed. In view of such position of law as
discussed above, which has been repeatedly laid down by the Apex Court
as well as this Court, it is for this Court to examine the facts of the
present case to determine as to whether the learned Election Tribunal was
right in allowing the amendment sought for by the election petitioner.
8. As already narrated above, the amendment sought for was
with regard to the date of birth of the alleged third child of the petitioner.
The said date of birth of the alleged third child in the original election
petition was mentioned as 6.8.2003, which was sought to be changed to
8.11.2003. In the show cause affidavit filed by the writ petitioner before
the court below, the allegation made in paragraph-4 to the election
petition with regard to the date of birth of the alleged third child of the
petitioner was specifically denied by the writ petitioner, is as follows:
“4. That the allegations made in para-4 are incorrect and
hence denied for the contents of para-4 it is submitted that
Twinkil Juadi is the daughter of the O.P. but it is wrong and
incorrect the date of birth is on dtd. 17.3.1999 and likewise
Rinki Juadi is not the daughter of the O.P. and to such child
was born to the O.P. on dtd. 07.07.2002 likewise Atul Juadi
is not the son of the O.P. and any such child was never born
on dtd. 06.08.2003 and as such, the petitioner has given a
false information and false pleading before this Court. Such
allegations have been made by the petitioner after creating
some baseless documents with the collusion of the health
worker of Mayabarha. It is note worthy the petitioner is
hostile to the O.P. for the last 15 years than the petitioner
and the O.P. had contested for the post of Sarpanch of
Mayabarha G.P. for the first time and in that election the
O.P. had elected for the post of Sarpanch of Mayabarha G.P.
and further both the present petitioner and the O.P. had
further contested for the post of Sarpanch of Mayabarha
G.P. in the next election and at that time the present
petitioner was the Sarpanch of same G.P. and likewise in
this election both the petitioner and the O.P. were contesting
for the post of Sarpanch of Mayabarha G.P. along with
others candidate who were lost the election along with the
petitioner and the O.P. was declared as Sarpanch of
Mayabarha G.P. and as such there was/is strong political
rivalry between the petitioner and the O.P. No. 1 and when
the petitioner was the Sarpanch from 2001 to 2006 the so
7called health worker of Mayabarha was under the care and
control of the petitioner. As the O.P. was making
organization for last 15 years in that G.P., the petitioner
being apprehensive of the contest to be made in future, only
to create evidence appears to have created some paper
gaining over the health worker.”
9. The election petitioner has filed a document in support of his
case purporting to be a certificate granted by the Medical Officer-in-
charge, C.H.C., Dunguripali showing the date of birth of the third child of
the petitioner to be 6.8.2003. In the application for amendment filed
under Order 6 Rule 17 C.P.C., the election petitioner except stating that
the date of birth of the third child as mentioned in para-4 of the election
petition was wrongly typed as 6.8.2003 instead of 8.11.2003, has not
stated any other ground as to why such amendment should be allowed.
No doubt, changing of the date of birth of the alleged third child of the
petitioner could not change the nature and character of the case, but
since the opp. party no. 2, who is the election petitioner, himself filed a
certificate as at Annexure-3 indicating that a male child was born to the
petitioner on 6.8.2003 allowing the election petitioner to amend the said
date of birth on the ground that it is a typographical error would amount
to patch of lacuna in the case of the election petitioner. As neither any
supportive document with regard to the date sought to be amended was
produced by the election petitioner nor any statement was made in the
application for amendment regarding the source of such error
nomenclatured by the petitioner as typographical error, the amendment
petition was filed at a belated stage.
10. Under the circumstance of the case, the amendment sought
for should not have been allowed by the Election Tribunal. I, therefore, set
aside the impugned order allowing the amendment with regard to the date
of birth of the alleged third child of the petitioner as mentioned in para-4
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of the election petitioner. As the election case is pending since 2007, the
learned Election Tribunal-cum-Civil Judge (Junior Division), Jajpur is
directed to dispose of the Election Petition No. 10 of 2007 as expeditiously
as possible preferably by the end of 2010. The writ petition is accordingly
allowed but in the circumstances without cost.
……………………
M.M. Das, J.
Orissa High Court, Cuttack.
Dated 20th September, 2010/Bks
