IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11205 of 2008 BHOLA NATH SAH, Versus ARVIND KUMAR SINGH & ORS ----------- For the petitioner: Mr. Mahesh Narayan Parbat,Advocate Mr. Ved Prakash Srivastava,Advocate Mr. Sanjay Kumar, Advocate For the State: Mr. Pankaj Kumar Sinha, J.C. to S.C. III ---- 3. 26.11.2008 Heard learned counsels for the petitioner and the State. Although the notice was issued to respondent No.10, the elected candidate and has been validly served, but he has chosen not to contest the matter. The petitioner has approached this Court for quashing the order dated 19.7.2008 passed by the Munsif, 2nd Court, Chapra in Election Case No. 12/2006: Bhola Nath Sah Vs. Arvind Kumar Singh and others, by which he has rejected the application filed by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the election petition and further for commanding the respondents to call for the entire used ballot papers ( votes ) of Gram Panchayat Election, 2006 for the post of Mukhia of Gram Panchayat Raj Harazi in the Court and after declaring those ballot papers ( votes), which were containing marks of wood as valid and after recounting declaring the result of the election of the said Gram Panchayat accordingly and for consequential reliefs. The petitioner along with respondent No.10 and other candidates had contested the election for the post of Mukhia of Gram Panchayat Raj Harazi held in the year 2006 in which respondent No.10 was declared elected. The petitioner, thereafter, 2 filed Election Case No. 12 of 2006. The petitioner had claimed the relief that he should be declared the elected candidate after declaring the result of respondent No.10 for the post of Mukhia as illegal. The ground taken was that as many as 60 votes cast in favour of the petitioner in Booth No.15, Ward No. 1 which were caste in favour of the petitioner, had been wrongly declared invalid on the ground that they contained the mark of wood instead of the mark of Swastik. The claim of the petitioner was that the rectangular piece of wood containing rubber seal on its both ends bearing mark of Swastik had been supplied, but due to overuse on many of the booths the said rubber seal of Swastik had fallen away and when the attention of the Presiding Officers was drawn to it , they asked the voters to use the said rectangular piece of wood for casting votes. The same having been done by the voters, they were wrongly declared invalid at the stage of counting. It is stated by learned counsel for the petitioner on the basis of the statements made in the election petition that all the facts pertaining to the said issue have been clearly mentioned in the election petition but in the final relief claimed, it was not clearly mentioned that the ballot papers should be directed to be brought before the Court and the ballot papers containing the mark of wood insteaed of Swastik should also be counted and declared valid. It is submitted by learned counsel for the petitioner that the same was due to inadvertence and does not amount to any addition or alteration of the case of the petitioner. It is stated that the crux of the 3 case of the petitioner is that merely because of the failure of the counsel to not mention the reliefs properly in the plaint at the appropriate place, the same should not be used to deprive the petitioner of the reliefs to which he is entitled. It is urged by learned counsel for the petitioner that the Court below has rejected the prayer for amendment mainly on the ground that the amendment has been sought at a belated stage when arguments have already been concluded by the partiers. It is submitted that the petitioner being the election petitioner himself any delay in the matter can only work to the disadvantage of the petitioner and to the advantage of the winning candidate- respondent No.10 and thus the same should not have been used as a ground for rejecting his application. In support of the aforesaid contention, learned counsel for the petitioner relies upon the case of Reeta Kumari Vs. Anish Ranjan : 2007 (3) PLJR 103, in which it has been laid down that where the amendment sought is merely clarificatory in nature the same does not take away any accrued right of the other side and ought to be allowed. On a consideration of the facts and circumstances of the case, this Court is of the view that the learned Election Tribunal ought to have allowed the amendment in order to ensure that the matter was decided in a just and fair manner. The writ application is, accordingly, allowed. The order dated 19.7.2008 of the Munsif- II, Chapra is set aside and the 4 application for amendment filed by the petitioner is allowed. The learned Election Tribunal is directed to proceed in the matter from that stage in accordance with law and dispose of the proceedings expeditiously. VPS ( Ramesh Kumar Datta,J.)