Case: Amin Lal Vs. Hunna Mal

to promote feelings of enmity etc. He also contended that the allegations in the petition are, strictly speaking, against the respondent and not Suraj Bhan and that merely alleging that Suraj Bhan distributed the pamphlets without imputing to him the knowledge, express or implied, of the contents of the pamphlets does not amount to an allegation of corrupt practice. In support of this he pointed out that the appellant had expressly submitted to the Tribunal that no allegation of corrupt practice was ever intended to be made against Suraj Bhan. This is not quite correct because the Tribunal in para 16 of its order has observed as follows:"It has not been seriously challenged that (sic) in fact it cannot be challenged that the allegations made against Suraj Bhan in the amended petition amount to allegations of corrupt practice."11. Apart from that the allegation against the respondent himself is in practically the same terms as that against Suraj Bhan and other persons mentioned in paragraph 9(c)(i) of the petition. The appellant did not say in his petition that the respondent had no knowledge express or implied of the contents of the pamphlets. Yet, according to him, he was guilty of corrupt practice by distributing and causing the distribution of the pamphlets through Suraj Bhan and others. If the averments contained in the aforesaid paragraph are, therefore, not to be regarded as allegations of corrupt practice against Suraj Bhan they could also not be regarded as allegations of that type against the respondent. If that were so, the whole of paragraph 9(c)(i) would lose its meaning and significance. Indeed, both the High Court and the Tribunal have regarded the allegations therein as allegations of corrupt practices and we ourselves do not see how else they could be construed.12. Mr. Setalvad then contended that the Tribunal had no power to allow or direct the amendment of the election petition as it is not a suit between two parties but is a proceeding in which the entire constituency is interested and referred in this connection to two decisions of this Court in K. Kamaraja Nadar v. Kunju Thevar, 1959 SCR 583 : (AIR 1958 SC 687 ) and Mallappa Basappa v. Basavaraj Ayyapa, 1959 SCR 611 : (AIR 1958 SC 696).13. In the Act as it stood prior to its amendment in 1956 the provisions of the Code of Civil Procedure relating to trial of suits were made applicable to trial of election petition by S. 90(2). Those provisions are now reproduced in S. 90(1) of the Act. As regards allegations of corrupt and illegal practice S. 83(2) provided, as does S. 83(1)(a) now, that full particulars of the parties alleged to be guilty of such practices be given. Sub-section (3) empowered the Tribunal to permit amendment of the particulars. This latter provision has been deleted. But while it was still in force this Court held in Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370 : ((S) AIR 1957 SC 444 ) that despite this provision, the Tribunal had power to permit amendment under O. VI, R. 17, Code of Civil Procedure in regard to matters other than those falling within sub-section (3) of S. 83. Bhagwati J., who was a party to this decision and who delivered the judgment of the Court in the two cases earlier referred to has not expressed any disent from this view. What he did say in those cases, in so far as permission to amend is concerned was that the Tribunal had no power to grant it so as to enable the petitioner whose petition did not comply with the provisions of S. 81 or S. 82 to remedy the defect. In the case before us, the Tribunal did not, by giving an option to the appellant either to amend the petition or furnish particulars or to have para 9(c)(i) struck off as being vague enable the appellant to remove a defect pertaining to the presentation of a petition or joinder of parties (which are matters dealt with by Ss. 81 and 82). We agree, with what has been said in Harischandra Bajpais case, 1957 SCR 370 : ( (S) AIR 1957 SC 444 ) and hold that the Tribunal was competent to allow or give an option to the appellant to amend the petition.14. The next contention of learned counsel is that since the petition had become defective by reason of the amendment the Tribunal should either have permitted the appellant to join Suraj Bhan as a respondent or to further amend the petition by deleting reference to Suraj Bhan. A party can avail himself of the provisions of O. 1, R.10(1), C.P.C. subject to the law of limitation. Assuming that a Tribunal can permit the joinder of parties, we must point out that under S. 81 of the Act an election petition has to be presented within 45 days of the date of the election of the returned candidate. The application under O. 1, R.10 was made more than eight months after the election of the respondent and was thus inordinately late and could, therefore, not be granted. As regards joinder of Suraj Bhan in exercise of the powers conferred on a court by O. 1, R. 10(2) all that we need say is that the matter was in the discretion of the Tribunal and we would not lightly interfere with what the Tribunal has done. As regards the last submission, it cannot be forgotten that the appellant did have the choice when the Tribunal made its order on September 3, 1962 to decline to amend and suffer para 9(c)(i) being struck off. He chose to amend and has lost the right to adopt the alternative. Moreover, though the decision in K. Kamaraja Nadars case, 1959 SCR 583 : (ARI 158 SC 687) may not strictly apply, to allow a further amendment for avoiding the penalty under S.90(3) of the Act would have been grossly improper and the Tribunal was right in rejecting it.15.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Since there is, according to him, no provision for amendment of an election petition during the time the Election Commission is seized with it, and since under sub-section (3) of S. 90 the powers of the Tribunal are identical with those of the Election Commission under S. 35, we must take the expression "election petition" to mean an unamended election petition. It is not necessary for us to consider whether the Election Commission can permit amendment of an election petition, but assuming that it has no such power it does not follow that the Tribunal to whom the petition has been sent for trial has no power to dismiss it after it has been amended by the petitioner. The procedure regarding the trial of election petition is contained in Chapter III of the Act, the first section in which is S. 86. That section deals with the appointment of an Election Tribunal. It provides that if the petition is not dismissed under S. 85 by the Election Commission, it shall be referred to an Election Tribunal for trial. Sub-section (1) of S. 90 provides that subject to the provisions of the Act and rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under theCode of Civil Procedure, 1908 to the trial of suits. Under O. VI, R. 17 of theCode of Civil Procedure a Civil Court has power to permit amendment of pleadings and, therefore, it is obvious that the Tribunal can exercise the same power with respect to a petition referred to it for trial as the civil court. Sub-section (3) provides that the Tribunal shall dismiss the petition if it does not comply with the provisions of S. 81 or S. 82 notwithstanding that it has not been dismissed by the Election Commission under S. 85. It would follow from this that the power of the Tribunal to dismiss an election petition is not in any way affected by the fact that it was not dismissed by the Election Commission under Sec. 85. Indeed this provision gives an independent power to the Tribunal to dismiss an election petition on the ground of non-compliance with the provisions of Ss. 81 and 82 despite the fact that the Election Commission has not chosen to dismiss it upon those grounds that S. 85. Since an election petition can be permitted by the Tribunal to be amended, a petition which has been amended would, from the date of amendment, be the only petition before it. Therefore, that would be the petition with respect to which it could exercise the powers conferred upon it by sub-section (3) of S. 90. To hold otherwise would lead to the result that the powers conferred by the legislature on the Tribunal by this provision will become non-exercisable in respect of one category of election petitions. There is nothing in S. 90 which deprives the Tribunal of any of the powers conferred upon it by the aforesaid provision. No other provision has been brought to our notice which has the effect of taking away the express powers conferred by sub-section (3) of S. 90 on the Tribunal by reason of an amendment of the petition. We cannot, therefore, accept hissub-section (3-A) of S. 123 of the Act the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language, by a candidate or his agent or any other persons with the, consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate amounts to a corrupt practice. The allegations against Suraj Bhan are thus obviously allegations of corruptfrom that the allegation against the respondent himself is in practically the same terms as that against Suraj Bhan and other persons mentioned in paragraph 9(c)(i) of the petition. The appellant did not say in his petition that the respondent had no knowledge express or implied of the contents of the pamphlets. Yet, according to him, he was guilty of corrupt practice by distributing and causing the distribution of the pamphlets through Suraj Bhan and others. If the averments contained in the aforesaid paragraph are, therefore, not to be regarded as allegations of corrupt practice against Suraj Bhan they could also not be regarded as allegations of that type against the respondent. If that were so, the whole of paragraph 9(c)(i) would lose its meaning and significance. Indeed, both the High Court and the Tribunal have regarded the allegations therein as allegations of corrupt practices and we ourselves do not see how else they could be construed.In the Act as it stood prior to its amendment in 1956 the provisions of theCode of Civil Procedure relating to trial of suits were made applicable to trial of election petition by S. 90(2). Those provisions are now reproduced in S. 90(1) of the Act. As regards allegations of corrupt and illegal practice S. 83(2) provided, as does S. 83(1)(a) now, that full particulars of the parties alleged to be guilty of such practices be given. Sub-section (3) empowered the Tribunal to permit amendment of the particulars. This latter provision has been deleted. But while it was still in force this Court held in Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370   : ((S) AIR 1957 SC 444  ) that despite this provision, the Tribunal had power to permit amendment under O. VI, R. 17,Code of Civil Procedure in regard to matters other than those falling within sub-section (3) of S. 83. Bhagwati J., who was a party to this decision and who delivered the judgment of the Court in the two cases earlier referred to has not expressed any disent from this view. What he did say in those cases, in so far as permission to amend is concerned was that the Tribunal had no power to grant it so as to enable the petitioner whose petition did not comply with the provisions of S. 81 or S. 82 to remedy the defect. In the case before us, the Tribunal did not, by giving an option to the appellant either to amend the petition or furnish particulars or to have para 9(c)(i) struck off as being vague enable the appellant to remove a defect pertaining to the presentation of a petition or joinder of parties (which are matters dealt with by Ss. 81 and 82). We agree, with what has been said in Harischandra Bajpais case, 1957 SCR 370   : ( (S) AIR 1957 SC 444  ) and hold that the Tribunal was competent to allow or give an option to the appellant to amend thethat a Tribunal can permit the joinder of parties, we must point out that under S. 81 of the Act an election petition has to be presented within 45 days of the date of the election of the returned candidate. The application under O. 1, R.10 was made more than eight months after the election of the respondent and was thus inordinately late and could, therefore, not be granted. As regards joinder of Suraj Bhan in exercise of the powers conferred on a court by O. 1, R. 10(2) all that we need say is that the matter was in the discretion of the Tribunal and we would not lightly interfere with what the Tribunal has done. As regards the last submission, it cannot be forgotten that the appellant did have the choice when the Tribunal made its order on September 3, 1962 to decline to amend and suffer para 9(c)(i) being struck off. He chose to amend and has lost the right to adopt the alternative. Moreover, though the decision in K. Kamaraja Nadars case, 1959 SCR 583 : (ARI 158 SC 687) may not strictly apply, to allow a further amendment for avoiding the penalty under S.90(3) of the Act would have been grossly improper and the Tribunal was right in rejecting it.