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. ----------- 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) -------------------------------- Date of Judgment: 20.09.2010 -------------------------------- 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 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.” 2 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, 3 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 4 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 5 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 6 called 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 7 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 8