{"id":68263,"date":"2010-07-29T00:00:00","date_gmt":"2010-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-shaikh-fateh-mohammed-mohd-vs-mr-kamlesh-somnath-yadav-on-29-july-2010"},"modified":"2015-10-24T11:51:19","modified_gmt":"2015-10-24T06:21:19","slug":"mr-shaikh-fateh-mohammed-mohd-vs-mr-kamlesh-somnath-yadav-on-29-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-shaikh-fateh-mohammed-mohd-vs-mr-kamlesh-somnath-yadav-on-29-july-2010","title":{"rendered":"Mr.Shaikh Fateh Mohammed Mohd. … vs Mr. Kamlesh Somnath Yadav on 29 July, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mr.Shaikh Fateh Mohammed Mohd. … vs Mr. Kamlesh Somnath Yadav on 29 July, 2010<\/div>\n
Bench: P. B. Majmudar, R. M. Savant<\/div>\n
                                         1                           WP 2644  of 2008\n\n\n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                          \n                      CIVIL APPELLATE JURISDICTION\n\n                       WRIT PETITION NO.2644 OF 2008\n\n\n\n\n                                                  \n    Mr.Shaikh Fateh Mohammed Mohd. Raza \n    Aged about 54 years, Adult, Indian Inhabitant,\n    Residing at CEN 335(22), Shariff Mansuri Chawl,\n\n\n\n\n                                                 \n    Gandhi Nagar, Charkop Link Road, \n    Kandivli (W), Mumbai - 400 067.                       ..... Petitioner\n\n              V\/s.\n\n\n\n\n                                            \n    1.   Mr. Kamlesh Somnath Yadav,\n                          \n         Adult, Indian Inhabitant, \n         Residing at Azad Lane, Gandhi Nagar, \n         Laljipada, Kandivli (W), \n                         \n         Mumbai - 400 067.  \n\n    2.   The Commissioner of Municipal \n         Corporation of Greater Bombay,\n         Having their registered office at\n          \n\n\n         Mahanagarpalika Marg, Fort, \n         Mumbai - 400 001. \n       \n\n\n\n    3.   Election Commissioner, \n         Administrative Building, \n         Mantralaya, Mumbai - 400 032. \n\n\n\n\n\n    4.   The Returning Officer, \n         Ward No.19, R\/Sough Ward, \n         Election Department, Mahanagarpalika\n         Marg, Fort, Mumbai - 400 001. \n\n\n\n\n\n    5.   Mr.Haudhari Mohammed Harun \n         Mohammed Yunus, Adult, Indian \n         Inhabitant, residing at Chaudhari\n         Marble, 91\/18\/19, Ganesh Nagar \n         Link Road, Opp. MHADA Colony, \n         Kandivali (W), Mumbai - 400 067. \n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 16:12:51 :::\n                                           2                              WP 2644  of 2008\n\n\n    6.   Mr.Kamble Ashok Vitthal,\n\n\n\n\n                                                                              \n         Adult, Indian Inhabitant, \n         Residing at 108, Bharatbhushan Plot\n         No.115, S.1R.S.C., 11, Charkop, \n\n\n\n\n                                                      \n         Kandivali (W), Mumbai - 400 067.\n\n    7.   Mr.Katkar Vijay Gangaram,\n         Adult, Inhabitant, Residing at\n\n\n\n\n                                                     \n         21, Devji Worli Chawl, Jijamata Nagar, \n         Bandarpakadi Road, Kandivali (W),\n         Mumbai - 400 067.\n\n\n\n\n                                         \n    8.   Mr.Keni Samarth Chandrakant,\n         Adult, Indian Inhabitant, \n                          \n         R\/o Sai Shraddha Bungalow, \n         Plot No.25, R.S.C.12\/53, S.2, \n         Charkop, Kandivali (W),\n                         \n         Mumbai - 400 067. \n\n    9.   Mr.Khan Amirullah Abdullah, \n         Adult, Indian Inhabitant, \n         Residing at 27, Sai Sahara Co-op. \n          \n\n\n         Hsg. Soc. Pipe Line Road, Kajupada, \n         Kurla, Mumbai - 400 072. \n       \n\n\n\n    10. Mr.Khan Haji Nigar Ashikali, \n        Adult, Indian Inhabitant, \n        Residing at C-8, Prabhat Chawl, \n\n\n\n\n\n        Link Road, Ganesh Nagar, Charkop, \n        Kandivali (W), Mumbai - 400 067.\n\n    11. Mr.More Vaibhav Diwakar, \n        Adult, Indian Inhabitant, \n\n\n\n\n\n        Residing at 17\/406, Samruddhi Co-op. \n        Hsg. Sco., Chhatrapati Shivaji Raje Sankul,\n        Charkop, Kandivali (W), Mumbai - 67. \n\n    12. Mr.Mundhe Ravindra Ramji,\n        Adult, Indian Inhabitant, \n        Residing at Pancharatna Society, \n        Shankarpada No.2, Dahanukarwadi, \n\n\n\n\n                                                      ::: Downloaded on - 09\/06\/2013 16:12:51 :::\n                                       3                           WP 2644  of 2008\n\n\n        Kandivali (W), Mumbai - 400 067.\n\n\n\n\n                                                                       \n    13. Mr.Pandey Mahendra,\n        Adult, Indian Inhabitant, \n\n\n\n\n                                               \n        Residing at Shivneri Chawl, \n        Shivsena Maidan, Sanjay Nagar, \n        Kandivali (W), Mumbai - 67. \n\n\n\n\n                                              \n    14. Ms.Sapkale Saresvati Ramesh\n        Adult, Indian Inhabitant, \n        Residing at Adarsh Chawl No.2, \n        Bhabrekar Nagar, Charkop, \n\n\n\n\n                                         \n        Kandivali (W), Mumbai - 400 067. \n                         \n    15. Mr.Savaratkar Shrikant Abaji, \n        Adult, Indian Inhabitant, \n        Residing at A\/13, Gurukrupa Chawl\n                        \n        Committee, Bhabrekar Nagar, Charkop,\n        Kandivali (W), Mumbai - 400 067. \n\n    16. Mr.Sayed Vazir Bashir, \n        Adult, Indian Inhabitant, \n          \n\n\n        Residing at Bharat Seva Society, \n        Selfi Gulli No.2, Gandhi Nagar, \n       \n\n\n\n        Kandivali (W), Mumbai - 400 067. \n\n    17. Mr.Shaikh Rafik Jamal, \n        Adult, Indian Inhabitant, \n\n\n\n\n\n        Residing at Room No.37, Shanti Seva\n        Society, Mustafa Compound, Gandhi\n        Nagar, Charkop, Kandivali (W),\n        Mumbai - 400 067. \n\n\n\n\n\n    18. Mr.Shaikh Sharfuddin Chandasaheb, \n        Adult, Indian Inhabitant, \n        R\/o Opp. Rehmat Masjid Road, \n        Ganesh Nagar, Charkop, \n        Kandivali (W), Mumbai - 400 067. \n\n    19. Mr.Shukla Amarbahadur Hansraj, \n        Adult, Indian Inhabitant, \n\n\n\n\n                                               ::: Downloaded on - 09\/06\/2013 16:12:51 :::\n                                         4                              WP 2644  of 2008\n\n\n         R\/o A-201, Thakur Plaza, \n\n\n\n\n                                                                            \n         Hirani Wadi, Road No.3, \n         Kandivali (W), Mumbai - 400 067. \n\n\n\n\n                                                    \n    20. Mr.Shukla Arjun Prasad Patesari,\n        Adult, Indian Inhabitant, \n        Residing at R.M.C. 22, B-Plot, \n        Government Industrial Estate, \n\n\n\n\n                                                   \n        Charkop, Kandivali (W), \n        Mumbai - 400 067. \n\n    21. Mr.Singh Durgaprasad Nandlal, \n\n\n\n\n                                       \n        Adult, Indian Inhabitant, \n        R\/o Saikrupa Society, Opp. Thakur \n                         \n        Dairy, Kwari Road, Malad (W),\n        Mumbai - 400 098. \n                        \n    22. Mr.Vishwakarma Dayaram Ramsuresh, \n        Adult, Indian Inhabitant, \n        Residing at K.D.Compound, \n        Gandhi Nagar, Jaya Bharat Seva Sangh\n        Society, Kandivali (W), Mumbai - 400 067.           ..... Respondents\n          \n\n\n                                  WITH\n       \n\n\n\n                      WRIT PETITION NO.6330 OF 2008\n\n    Kamlesh Yadav, \n    Presently residing at Azad Lane, \n\n\n\n\n\n    Gandhi Nagar, Laljipada, \n    Kandivali (W), Mumbai - 400 067.                        ..... Petitioner\n\n         V\/s.\n\n\n\n\n\n    1.   Mahendra Jeetbahadur Pandey,\n         Age 37 yrs., Occu - Business, \n         (Cable Operator), R\/o Room No.11, \n         Shivneri Chawl, Near Shiv Sena Maidan, \n         Sanjay Nagar, Kandivali (W),\n         Mumbai - 400 067.\n\n    2.   BrihanMumbai Municipal Corporation,\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 16:12:51 :::\n                                                   5                                 WP 2644  of 2008\n\n\n          (Through the Municipal Election Officer),\n\n\n\n\n                                                                                         \n          Election Department, Mahapalika Marg, \n          Mumbai - 400 001. \n\n\n\n\n                                                                 \n    3.    The State Election Commission, \n          New Administrative Building, \n          Mantralaya, Mumbai - 400 023.                                  ..... Respondents\n\n\n\n\n                                                                \n    Mr.A.R.Mishra i\/by Mr.P.L.Singh, for the petitioner in WP No.2644 of 2008. \n    Mr.P.N.Patil, for respondent No.1 in WP No.2644 of 2008.\n    Mr.S.B.Shete, for respondent No.3 in WP No.2644 of 2008 and WP No.\n    6330 of 2008.\n\n\n\n\n                                                  \n    Mr.P.N.Patil, for the petitioner in WP No.6330 of 2008. \n    Mr.D.S.Sakhalkar   i\/by   Mr.S.S.Bangera,   for   respondent   No.1   in   WP   No.\n                                \n    6330 of 2008. \n\n                             CORAM : P.B.MAJMUDAR &\n                               \n                                     R.M.SAVANT, JJ.  \n<\/pre>\n
                      JUDGMENT RESERVED ON  :  14th July, 2010
\n                      JUDGMENT PRONOUNCED ON : 29th July, 2010 <\/p>\n
    JUDGMENT : (PER P.B.MAJMUDAR, J.) : –\n<\/p>\n
    1.                Rule.\n<\/p>\n
    2.                Learned   counsel   for   the   respective   respondents   waives <\/p>\n
    service   of   rule   on   behalf   of   the   respondents.     With   the   consent   of   the <\/p>\n
    parties, rule is made returnable forthwith and heard.\n<\/p>\n
    3.                Since common point is involved in both the above petitions, <\/p>\n
    they   are   heard   together   and   are   being   disposed   of   by   this   common <\/p>\n
    judgment.\n<\/p>\n
    4.                The   learned   Single   Judge   of   this   Court   (A.S.Oka,   J.)   by <\/p>\n
    order   dated   17-11-2009,   has   referred   the   following   point   for   the <\/p>\n
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\n                                                 6                                 WP 2644  of 2008<\/p>\n
    determination by the Larger Bench and accordingly, this Court is required <\/p>\n
    to consider the following point in the aforesaid two writ petitions : –\n<\/p>\n
                “Whether an election petition under Section 33 of the
\n                Bombay Municipal Corporation Act, 1888 (hereinafter
\n                referred to as the said Act) can be permitted to be amended ?\n<\/p><\/blockquote>\n
    5.                Both   these   petitions   are   filed   under   Article   227   of   the <\/p>\n
    Constitution of India, challenging the legality and validity of the orders <\/p>\n
    passed   by   the   learned   Additional   Chief   Judge   of   Small   Causes   Court, <\/p>\n
    Mumbai, dated 25-02-2008 and 23-06-2008 in Election Petition Nos.176 <\/p>\n
    of 2007 and 72 of 2007 respectively.\n<\/p>\n
    6.                The petitioner of Writ Petition No.2644 of 2008 has filed a <\/p>\n
    Election   Petition   No.176   of   2007   before   the   Court   of   Small   Causes, <\/p>\n
    Mumbai,   challenging   the   election   of   Returned\/elected   candidate   i.e. <\/p>\n
    respondent No.1 Mr.Kamlesh Somnath Yadav.     The petitioner contested <\/p>\n
    the   election   of   Municipal   Corporation   of   Greater   Mumbai,   held   on <\/p>\n
    01-02-2007 from Ward No.19 Kandivali (W), as a candidate of Republican <\/p>\n
    Party of India.   The respondent No.1 contested the said election from the <\/p>\n
    said   Ward   as   a   candidate   of   Nationalist   Congress   Party.     In   the   said <\/p>\n
    election,  the   respondent   No.1   was  declared  elected,   which   election  has <\/p>\n
    been challenged by the petitioner on the ground that that the respondent <\/p>\n
    No.1   was   engaged   in   certain   corrupt   practices.       In   the   said   election <\/p>\n
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\n                                                7                                WP 2644  of 2008<\/p>\n
    petition, the petitioner herein submitted an application below Exh.18 to <\/p>\n
    amend the election petition on the ground that during the pendency of the <\/p>\n
    election   petition,  he  came  to  know   certain  material  facts   regarding  the <\/p>\n
    election   of   respondent   No.1.       The   petitioner   wanted   to   add   certain <\/p>\n
    paragraphs viz. Para No.13(A) to 13(e) in the original election petition by <\/p>\n
    taking the grounds that the name of respondent No.1 was appearing in the <\/p>\n
    electoral role at two places i.e. one at the native place at (234) Barsathi <\/p>\n
    Assembly Constituency and the second at the place from where respondent <\/p>\n
    No.1 was contesting the municipal elections.     The other grounds which <\/p>\n
    the   petitioner  was   desirous  to  add  in  the  election  petition  are  that the <\/p>\n
    respondent No.1 submitted false declaration in the nomination form and <\/p>\n
    that   the   respondent   No.1   was   habitual   in   constructing   illegal   and <\/p>\n
    unauthorized   structures   and   has   suppressed   material   facts   before   the <\/p>\n
    State Election Commission.\n<\/p>\n
    7.               The learned Trial Judge partly allowed the said amendment <\/p>\n
    in   connection   with   Para   13(B)   only   by   holding   that   the   proposed <\/p>\n
    amendment in Para 13(B), does not change the nature of the proceedings <\/p>\n
    as it  is   clarificatory  in   nature.     Being  aggrieved  and  dissatisfied  by  the <\/p>\n
    aforesaid order, by which  the learned trial Judge has only granted part of <\/p>\n
    the amendment, the original election petitioner has filed writ petition No.<\/p>\n
    2644 of 2008 in so far as part of the prayers for amendment is rejected by <\/p>\n
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\n                                                   8                                 WP 2644  of 2008<\/p>\n
    the learned Trial Judge.\n<\/p>\n
    8.                So far as the writ petition No.6330 of 2008 is concerned, it <\/p>\n
    is filed by the petitioner, who is respondent No.1 in Writ Petition No.2644 <\/p>\n
    of 2008. The petitioner challenges the impugned order of the learned Trial <\/p>\n
    Judge by which the amendment application is partly allowed, as according <\/p>\n
    to the said petitioner, the entire application is required to be rejected.\n<\/p>\n
    9.                At   the   time   of   hearing,   it   is   requested   by   the   learned <\/p>\n
    counsel   appearing   in   the   writ   petitions   that   after   giving   answer   to   the <\/p>\n
    reference, it is not necessary to send the matter back to the learned Single <\/p>\n
    Judge of this Court and this Court may dispose of both the writ petitions <\/p>\n
    finally on the basis of the answer to the reference.   Accordingly, we have <\/p>\n
    heard the learned counsel for the respective parties at some length on the <\/p>\n
    question of law as well as on the merits of the case.\n<\/p>\n
    10.               So far as election petition under the Municipal Corporation <\/p>\n
    is concerned, the same is required to be preferred under Section 33(1) of <\/p>\n
    the Mumbai Municipal Corporation Act, 1888.   It would be relevant to <\/p>\n
    reproduce the text of Section 33(1), which reads as under : –\n<\/p>\n
                “33.Election petitions to be heard and disposed of by Chief
\n                Judge of the Small Causes Court : (1) if the qualification of
\n                any person declared to be elected for being a councillor is
\n                disputed,   or   if   the   validity   of   any   election   is   questioned,
\n                whether by reason of the improper rejection (by the State
\n                Election Commissioner) of a nomination or of the improper
\n                reception of refusal of a vote, or for any other cause (or if <\/p>\n
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\n                                                 9                                 WP 2644  of 2008<\/p>\n
                the validity of the election of a person is questioned on the <\/p>\n
                ground that he has committed a corrupt practice within the
\n                meaning   of   Section   28F),   any   person   enrolled   in   the
\n                municipal election  roll  may, at any time, within  ten  days <\/p>\n
                from the date on which the list prescribed under Clause (k)
\n                of Section 28 was available for sale or inspection apply to
\n                the   Chief   Judge   of   the   Small   Causes   Court.     (If   the
\n                application is for a declaration that any particular candidate <\/p>\n
                shall be deemed to have been elected, the applicant shall
\n                make parties to his application all candidates who although
\n                not declared elected, have, according to the results declared
\n                by   the   State   Election   Commissioner   under   Section   32,   a <\/p>\n
                greater   number   of   votes   than   the   said   candidate,   and
\n                proceed against them in  the same  manner  as  against the <\/p>\n
                said candidate).\n<\/p><\/blockquote>\n
    11.               From the plain reading of the aforesaid Section, it is crystal <\/p>\n
    clear that the election petition is required to be filed within a period of 10 <\/p>\n
    days   from   the   date   on   which   the   list   prescribed   under   Clause   (k)   of <\/p>\n
    Section 28 was available for sale or inspection.   It is pertinent to note that <\/p>\n
    the   aforesaid   elections   petitions   have   been   filed   by   the   respective <\/p>\n
    petitioners   on   12-02-2007.       However,   amendment   application   in   the <\/p>\n
    election petition No.176 of 2007 came to be preferred in September 2007.\n<\/p>\n
    Whereas, in the Election Petition No.72 of 2007, amendment application <\/p>\n
    was preferred by the petitioner on 06-02-2008.   In our view, it is clear that <\/p>\n
    the   respective   applications   for   amendment   were   filed   by   the   election <\/p>\n
    petitioners after the period of limitation prescribed for filing the election <\/p>\n
    petition.\n<\/p>\n
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                                                  10                                 WP 2644  of 2008<\/p>\n
    12.               Mr.Patil,   the   learned   counsel   for   the   respondent   No.1   in <\/p>\n
    Writ Petition No.2644 of 2008, has relied upon a judgment of the Supreme <\/p>\n
    Court in the case of  Vatal Nagaraj V\/s. R.Dayanand Sagar, (1975) 4 SCC  <\/p>\n
    127,   wherein   it   has   been   held   that   ‘even   if   there   have   been   initial <\/p>\n
    omissions in pleadings, they can be made up, by Court’s leave, at any time.\n<\/p>\n
    Omissions such as minor variance with alleged particulars may be allowed.\n<\/p>\n
    13.               The   learned   counsel   appearing   for   the   respondent   No.1, <\/p>\n
    further   relied   upon   a   decision   of   the   Supreme   Court   in   the   case   of <\/p>\n
    K.D.Deshmukh V\/s. Amritlal  Jayaswal, AIR 1992 SC 164, wherein it has <\/p>\n
    been held that no new ground can be allowed to be added in the election <\/p>\n
    petition.   Para No.4 of the said decision, reads thus :\n<\/p>\n
                “4.We have heard the learned counsel for the parties and
\n                we   are   inclined   to   allow   this   appeal.     It   is   an   admitted <\/p>\n
                position   that   the   result   of   the   election   was   declared   on
\n                28-02-1990 and the election petition could have been filed
\n                within   45   days   of   such   result.     It   is   also   an   admitted <\/p>\n
                position   that   on   08-03-1991   when   the   amendment
\n                application   was   filed,   the   said   period   of   45   days   had
\n                expired long back.  The ground now sought to be raised by
\n                way of amendment is totally a new ground falling under
\n                Section 100(1)(d) of the Act.     The original petition was
\n                filed   on   the   ground   of   improper   rejection   of   nomination <\/p>\n
                papers of three candidates under Section 100(1)(c) of the
\n                Act,   and   the   ground   now   sought   to   be   raised   by
\n                amendment is of improper acceptance of nomination paper
\n                of   the   appellant   himself   under   Section   100(1)(d)   of   the
\n                Act.     In our view, the High Court was wrong in allowing
\n                the amendment application and in taking the view that the
\n                objection   regarding   limitation   shall   be   decided   while
\n                disposing of the election petition on merits finally.     This <\/p>\n
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\n                                                11                                WP 2644  of 2008<\/p>\n
               approach   of   the   Court   is   totally   wrong   inasmuch   as   no <\/p>\n
               amendment   could   have   been   allowed   by   which   totally   a
\n               new ground was sought to be taken and which was clearly
\n               beyond   limitation   on   08-03-1991,   the   date   of   filing   the <\/p>\n
               amendment application.\n<\/p><\/blockquote>\n
    14.        He further relied upon a decision of the Supreme Court in the <\/p>\n
    case of Baburao V\/s. Manikrao and Anr., (1999) 5 SCC 38, wherein it has <\/p>\n
    been held that ‘in case candidate’s name is appearing in the electoral roll <\/p>\n
    of   more   than   one   constituencies,   that   would   not   disqualify   him   from <\/p>\n
    contesting election from any of those constituencies.  The said decision is <\/p>\n
    rendered under the Representation of the People Act, 1950.\n<\/p>\n
    15.        Mr.Patil,   further   placed   strong   reliance   on   the   ruling   of   the <\/p>\n
    Supreme Court in the case of Hari Shankar Jain V\/s. Sonia Gandhi, (2001)  <\/p>\n
    8 SCC 233, wherein it has been held by the Supreme Court that ‘if the <\/p>\n
    material facts is not stated in the election petition, the same are fatal to the <\/p>\n
    election   petition.   The   Court   is   duty   bound   to   examine   the   petition <\/p>\n
    regardless of written statement or denial in some other form and to reject <\/p>\n
    it if it does not disclose a cause of action’.     The said decision is of course <\/p>\n
    given under the Representation of the People Act, 1951 and it is held that <\/p>\n
    the provisions of Order VII Rule 11 are applicable to the election petition.\n<\/p>\n
    In the aforesaid case, the High Court dismissed the election petition at the <\/p>\n
    preliminary stage which  decision was upheld by the Supreme Court by the <\/p>\n
    aforesaid decision.\n<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 16:12:51 :::<\/span><\/p>\n
                                                 12                                WP 2644  of 2008<\/p>\n
    16.               Mr.Patil,   learned   counsel   appearing   for   respondent   No.1 <\/p>\n
    has relied upon a decision in the case of  R.S.Navalkar V\/s. Mrs.Sarojini  <\/p>\n
    Naidu, 1923 (XXV) B.L.R. 463, wherein it was held that ‘the Chief Judge in <\/p>\n
    the Small Causes Court at Bombay, acting under the powers granted by <\/p>\n
    him by Section 33 of the City of Bombay Municipal Act, 1888, is a persona <\/p>\n
    designata  and is not a Court subordinate to the High Court of Bombay.\n<\/p>\n
    The High Court has, therefore, no jurisdiction under Section 115 of the <\/p>\n
    Civil Procedure Code, to interfere with his decision’.   It is required to be <\/p>\n
    noted that this Court is dealing with the writ petitions filed under Section <\/p>\n
    227   of   the   Constitution   of   India,   which   is   a   constitutional   remedy   and <\/p>\n
    therefore, the efficacy of a Pre-Constitituion judgment is doubtful.\n<\/p>\n
    17.               He further placed reliance upon a decision in the case of <\/p>\n
    Shahinara Salim Baig V\/s. B.M.C. And Ors., 2002(2) Mh.L.J. 940, wherein <\/p>\n
    it was held that in  a election petition under Section 33 of the Bombay <\/p>\n
    Municipal   Corporation   Act,   no   interim   relief   can   be   granted   to   the <\/p>\n
    aggrieved party.   Relying on the same, it is submitted that the provisions <\/p>\n
    of Order VI Rule 17 granting amendment to pleadings, cannot be made <\/p>\n
    applicable to the election petition.  However, in our view, we do not accept <\/p>\n
    such a contention that the provisions of the Code of Civil Procedure are <\/p>\n
    not applicable to the election petition at all.\n<\/p>\n
    18.               Mr.Patil, has placed reliance upon a decision of a Division <\/p>\n
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\n                                                  13                                WP 2644  of 2008<\/p>\n
    Bench   of   this   Court   in   the   case   of  Rajendra   Dhanji   Sakhala   V\/s.   State  <\/p>\n
    Election Commission and Ors., 2008(1) Mh.L.H. 398, wherein it was held <\/p>\n
    that Section 5 of the Limitation Act, is not applicable so far as election <\/p>\n
    petition filed under Section 33 of the Mumbai Municipal Corporation Act, <\/p>\n
    1888 is concerned.\n<\/p>\n
    19.               A reference is required to be made on the judgment of the <\/p>\n
    learned Single Judge (R.M.Lodha, J., as His Lordship then was) in Writ <\/p>\n
    Petition No.74 of 1998, on which strong reliance is placed by Mr.Sakhalkar, <\/p>\n
    learned counsel appearing for respondent No.1 in Writ Petition No.6330 of <\/p>\n
    2008.   The   learned   Single   Judge   has   held   that   the   Judgment   of   the <\/p>\n
    Supreme Court which was referred to in his judgment, was in connection <\/p>\n
    with the Representation of the People Act. The learned Single Judge has <\/p>\n
    further held that if the amendment is allowed it will have retrospective <\/p>\n
    effect and therefore, it is deemed to be within the period of limitation.  A <\/p>\n
    reading of the said judgment would indicate that no proposition of law as <\/p>\n
    such,   has   been   laid   down   by   the   learned   Single   Judge   and   the   matter <\/p>\n
    proceeded   on   the   basis   of   the   principles   applicable   to   amendments   of <\/p>\n
    pleadings under the Code of Civil Procedure.   Considering the judgments <\/p>\n
    of the Supreme Court, which we have referred above, in our view, though <\/p>\n
    it is true that the provisions of the Representation of the People Act, are <\/p>\n
    not   straight   way   way   applicable   so   far   as   election   petition   filed   under <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 16:12:51 :::<\/span>
\n                                                    14                                 WP 2644  of 2008<\/p>\n
    Section 33 of the Act, is concerned.   However, analogy and principles of <\/p>\n
    the   Representation   of   the   People   Act,   can   be   made   applicable   to   the <\/p>\n
    election petition even under the Mumbai Municipal Corporation Act.   It is <\/p>\n
    required to be noted that even as per the decision of this Court, Section 5 <\/p>\n
    of the Limitation Act, is not applicable in so far as election petition filed <\/p>\n
    under   Section   33   of   the   Act.       Election   petition   is   required   to   be   filed <\/p>\n
    within a period of 10 days as stipulated under Section 33(1) of the said <\/p>\n
    Act and if there is no cause of action and if no particulars of the grounds <\/p>\n
    made   out   have   been   given,   election   petition   can   be   dismissed   at   a <\/p>\n
    preliminary stage.  We therefore, do not agree with the view taken by the <\/p>\n
    learned Single Judge in the aforesaid writ petition, as in our view, it does <\/p>\n
    not lay down correct proposition of law.\n<\/p>\n
    20.                Considering   the   scheme   of   the   Act,   in   our   view,   no <\/p>\n
    amendment is permissible after the prescribed period of limitation and no <\/p>\n
    new   ground   can   be   taken   once   it   is   filed.     Even   within   the   period   of <\/p>\n
    limitation, no new   ground can be added.   However, regarding existing <\/p>\n
    ground taken in the petition, if any particulars are to be given, the same <\/p>\n
    can be given within the prescribed period of limitation.  However, giving of <\/p>\n
    such particulars may not be permissible after the period of limitation, as <\/p>\n
    election petition cannot be equated with a civil suit.    However, clerical or <\/p>\n
    typographical error can be carried out at any point of time, of course, with <\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 16:12:51 :::<\/span>
\n                                                15                                WP 2644  of 2008<\/p>\n
    the leave of the Court.     In our view, therefore, no new ground can be <\/p>\n
    taken   by   way   of   amendment   once   election   petition   is   filed.   Better <\/p>\n
    particulars can be given but that too within the period of limitation.   Since <\/p>\n
    in the instant case, amendment is permitted after a long time, the learned <\/p>\n
    trial Judge has erred in granting amendment after the period of limitation, <\/p>\n
    which in our view, could not have been granted.   It cannot be said that <\/p>\n
    even   otherwise,   amendment   granted   by   the   learned   Trial   Judge,     is <\/p>\n
    clarificatory in nature.    We accordingly answer the Reference by holding <\/p>\n
    that   amendment   in   the   election   petition   is   not   permissible   after   the <\/p>\n
    prescribed   period   of   limitation.     No   new   ground   can   be   taken   in   the <\/p>\n
    election petition after it is filed.\n<\/p>\n
    21.              The   upshot   of   the   aforesaid   discussion   is   that   the   writ <\/p>\n
    petition No.2644 of 2008 is dismissed and the writ petition filed by the <\/p>\n
    returning candidate bearing No.6330 of 2008 is allowed in the aforesaid <\/p>\n
    terms, by quashing and setting aside the impugned order of the learned <\/p>\n
    Trial Judge. The learned trial Judge may now proceed with the Election <\/p>\n
    petitions   on   its   own   merits   and   in   accordance   with   law   and   without <\/p>\n
    considering the amendment.\n<\/p>\n
          ( R.M.SAVANT, J. )                                    ( P.B.MAJMUDAR, J. )\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 16:12:51 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mr.Shaikh Fateh Mohammed Mohd. … vs Mr. Kamlesh Somnath Yadav on 29 July, 2010 Bench: P. B. Majmudar, R. M. Savant 1 WP 2644 of 2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2644 OF 2008 Mr.Shaikh Fateh Mohammed Mohd. Raza Aged about 54 years, Adult, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-68263","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMr.Shaikh Fateh Mohammed Mohd. ... vs Mr. Kamlesh Somnath Yadav on 29 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-shaikh-fateh-mohammed-mohd-vs-mr-kamlesh-somnath-yadav-on-29-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr.Shaikh Fateh Mohammed Mohd. ... vs Mr. Kamlesh Somnath Yadav on 29 July, 2010 - 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