Orissa High Court
Umaballav Rath vs Maheswar Mohanty And Ors. on 21 March, 1997
Equivalent citations: AIR1997ORI204, 1997(I)OLR472, AIR 1997 ORISSA 204, (1997) 1 ORISSA LR 472
Author: P.K. Misra
Bench: P.K. Misra
ORDER P.K. Misra, J.
1. This is an application filed by the petitioner in the election petition seeking permission to amend the election petition.
2. The petitioner seeks to amend paragraphs 8 and 16 of the election petition by way of correcting the dates mentioned in those paragraphs. In paragraph 8 of the original election petition while referring to the orderc of the Election Commission of India, the petitioner has indicated the relevant date to be 27-1-1995 and the petitioner seeks to correct the said date by indicating that, in fact, the said order had been passed on 25-1-1995.
In paragraph 16 of the original election petition it has been averred that on 11-2-1995, respondent No. 1 had organised public meeting in Puri town, wherein some speeches making personal allegations had been made which amounted to corrupt practice as defined in Section 123(4) of the Representation of the People Act. 1951 (hereinafter called the "Act"). The petitioner by way of amendment now seeks to indicate the date of the meeting to be 9-2-1995 instead of 11-2-1995.
3. In the objection filed on behalf of respondent No. 1. it has been stated that by changing the dates, new facts are sought to be introduced which should not be permitted and the proposed amendment will change the nature of the allegation and should not be allowed. In course of argument on the question relating to amendment, serious objection has been raised on behalf of respondent No. I relating to the proposed amendment of the date as contained in paragraph 16.
4. Before entering upon the controversy, it is advisable to notice the relevant provisions contained in the Act regarding procedure to be followed. Section 87(1) of the Act provides as follows :-
"87. Procedure before the High Court.-- (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits : Provided that......."
From a bare perusal of Section 87(1), it is apparent that the provisions of the Code of Civil Procedure are applicable subject to the provisions of the Representation of the People Act and any Rules made thereunder. Thus the provisions contained in Order 6. Rule 17 of the Code of Civil Procedure regarding amendment of pleading are applicable subject, of course, to other provisions of the Representation of the People Act and the Rules made thereunder.
Section 86(5) of the Act reads as follows :-
"86. Trial of election petitions.
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit. allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."
As indicated in Section 87(1), the procedure applicable under the Code of Civil Procedure is made applicable, but it is subject to other provisions of the Act including Section 86(5). Section 86(5) specifically contemplates the question of amendment of election petition so far as it relates to particulars of any corrupt practice alleged in the election petition. A combined reading of Section 87(1) and Section 86(5) makes it clear that an election petition can be permitted to be amended us per the provisions contained in Order 6, Rule 17 of the Code of Civil Procedure subject, however, to the exception that if the petition for amendment relates to question of amendment ot particulars of any corrupt practice the embargo envisaged in Section 86(5) has to be complied with. In other words. Section 86(5) is a restrictive clause which whittles down .scope of amendment of the election petition so far as it relates to the question of amendment of the particulars of any corrupt practice alleged in the original election petition. Judged against the aforesaid back-drop of the provisions it becomes apparent that so far as the prayer for amendment of the date contained in paragraph 8 is concerned. the same has to be considered in the light of principles of amendment applicable under Order 6. Rule 17 of the Code of Civil Procedure, whereas the question of amendment of paragraph 16 is to be decided in the light of Section 86(5) of the Act. In such view of the matter, there is no difficulty whatsoever in allowing the amendment of paragraph 8 by correcting the date to be 25-1-1995 instead of 27-1-1995 as contained-in the original election petition. The explanation of the petitioner as contained in the amendment petition to the effect that under a bona fide mistake, the date had been indicated to be 27-1-1995, appears to be correct. Accordingly, I permit the petitioner to amend paragraph 8 of the original election petition by permitting correction of the date 27-1-1995 to the dale 25-1 -1995.
5. The counsel for respondent No, 1 has raised serious objections regarding the prayer for amendment of paragraph 16 of the original election petition. The said paragraph definitely relates to particulars of corrupt practice alleged by the petitioner. The learned counsel appearing for respondent No. 1 has drawn my attention to Section 83 of the Act which prescribes about the contents of an election petition. Section 83(1)(a) envisages that an election petition shall contain a concise statement of the material facts on which the petitioner relies. Section 83(1)(b) enjoins that election petition shall set-forth full particulars of any corrupt practice alleged by the petitioner including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each such corrupt practice. Section 83(1)(a) contemplates that the election petition should be signed by the election petitioner and verified in the manner laid down in the Code of Civil Procedure and where corrupt practice is alleged, the petition is required to be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice as well as the particulars thereof. Relying on the aforesaid provisions as contained in Section 83(1) (b) and (c), it is contended by the learned counsel for respondent No. 1 that in the original election petition allegation had been made about the alleged corrupt practice and as per requirement of Section 83(1)(b), the date had been given and if the said date is changed by way of amendment, il would amount to inclusion of fresh particulars of corrupt practice committed on another date and it is. therefore, contended that in view of the embargo contained in Section 86(5) of the Act barring me introduction of particulars of a corrupt practice which had not been alleged in the original election petition, such amendment should not he allowed. The learned counsel for respondent No. I has also emphasised on the fact that an election petition which does not contain the full particulars of any corrupt practice is liable to be rejected at the threshold and as such the petitioner cannot be permitted to amend the election petition by introducing new particulars of corrupt practice.
6. It is unnecessary to refer to the several decisions relied upon by the learned counsel for respondent No. 1 to the effect that provisions of Section 83(1)(b) of the Act are required to be complied with strictly. However, it is necessary to refer to some of the decisions touching the question of amendment, particularly in the light of the provisions contained in Section 86(5) of the Act.
7. The learned counsel for the petitioner has placed strong reliance upon the decision of the Supreme Court reported in AIR 1991 SC 1557 : 1991 AIR SCW 1492 (F. A. Sapa etc. etc. v. Singora and others etc.), more particularly the following observations as contained in paragraph 18 of the said decision (at page 1569; of AIR):-
"............ Section 86(5) as it presently stands empowers the High Court to allow the 'particulars' of any corrupt practice alleged in the petition to be amended or amplified provided the amendment does not have the effect of widening the scope of the election petition by introducing particulars in regard to a corrupt practice not previously alleged or pleaded within the period of limitation in the election petition. In other words the amendment or amplification must relate to particulars of a corrupt practice already pleaded and must not be an effort to expand the scope of the inquiry by introducing particulars regarding a different corrupt practice not earlier pleaded. Only the particulars of that corrupt practice of which the germ exists in the election petition can be amended or amplified and there can be no question of introducing a new corrupt practice. It is significant to note that Section 86(5) permits 'particulars' of any corrupt practice 'alleged in the petition' to be amended or amplified and not the "material facts'. It is, therefore, clear from the trinity of Clauses (a) and (b) of Section 83 and Sub-section (5) of Section 86 that there is a distinction between 'material facts' referred to in Clause (a) and 'particulars' referred to in Clause (b) and what Section 86(5) permits is the amendment/amplification of the latter and not the former. Thus the power of amendment granted by Section 86(5) is relatable to Clause (b) of Section 83(1) and is coupled with a prohibition, namely, the amendment will not relates to a corrupt practice not already pleaded in the election petition. The power is not relatable to Clause (a) of Section 83(1) as the plain language of Section 86(5) confines itself to the amendments of 'particulars' of any corrupt practice alleged in the petition and does not extend to 'material facts'. This becomes crystal clear on the plain words of the closely connected trinity of Sections 83(1)(a), 83(1)(b) and 86(5) and is also supported by authority. See Samant N. Balkrishna v. George Fernandes (1969) 3 SCC 603 : (AIR 1969 SC 1201) and D. P. Mishra v. Kamal Narayan Sharma (1971) 1 SCR 8 : (AIR 1990 SC 1477). In Balwan Singh v. Lakshmi Narain. (1961) 22 ILR 273 : (AIR 1960 SC 770) this Court held that if full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to avail of that opportunity that part of the charge may be struck down. We may. however, hasten to add that once the amendment sought falls within the purview of Section 86(5). the High Court should be liberal in allowing the same unless, in the facts and circumstances of the case, the Court finds it unjust and prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience, vide Raj Narain v. Indira Nehru Gandhi, (1972) 3 SCR 841 : AIR 1972 SC 1302. This much for the provisions of Section 83(1) (a) and (b) and Section 86(5) of the R. P. Act."
In the case of Raj Narain v. Smt. Indira Nehru Gandhi and another, AIR 1972 SC 1302, after referring to Section 83(1) (a) and (b) and Section 86(5). it was observed (at p. 1306):-
"19. From these two provisions, it follows that if the allegations made regarding a corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and further those allegations cannot be amended after the period of limitation for filing an election petition; but the court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified.
After referring to several earlier decisions of the Supreme Court, it was further observed :-
"............. From these decisions, it follows that facts stated in the petition relating to any corrupt practice must be sufficient to constitute a cause of action. In other words the facts must bring out all the ingredients of the corrupt practice alleged. If the facts stated fail to satisfy that requirement then they do not give rise to a triable issue. Such a defect cannot be cured by any amendment after the period of limitation for filing the election petition. But even if all the material facts are stated in the election petition, for a proper trial better particulars may still be required. If those particulars are not set out in the election petition, they may be incorporated into the election petition with the permission of the court even after the period of limitation........."
It was further observed :-
".............. These allegations bring out all the ingredients of the corrupt practice alleged though they are lacking in better particulars such as the date on which the respondent became a candidate and the date on which Yashpal Kapur was entrusted with the responsibility of organising the electioneering work of the respondent. The absence of those particulars does not par se invalidate the charge. They can be supplied even now with the permission of the Court........."
(Underlining is mine) In paragraph 20 of the said decision, it was observed as follows :-
"20. Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are nto mere formulae to be observed as rituals. Beneath the words of a provision of law. generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it. What then is the principle underlying Section 86(5)? In our. opinion the aim of that section is to see that a person accused of a corrupt practice must know precisely what he is accused of so that he may have the opportunity to meet the allegations made against him. If the accusation made is nobulous and is capable of being made use of for establishing more than one charge or if it does not make out a corrupt practice at all then the charge fails at the very threshold. So long as the charge levelled is beyond doubt, Section 86(5) is satisfied; rest is more refinement.They either pertain to the region of particulars or evidence. That section is not designed to interdict a mere clumsy pleading like the petition before us. The purpose of that section is to see that every charge of corrupt practice should be brought before the Court before the prescribed period of limitation and none thereafter so that the trial of the case may not be converted into a persecution by adding more and more charges or by converting one charge into another as the trial proceeds. ......,...."
8. On the other hand, the learned counsel for respondent No. 1 relying upon paragraph-34 of the decision reported in AIR 1991 SC 1557 (supra) submits that since the proposed amendment seeks to introduce a new particular of alleged corrupt practice not initially pleaded, the amendment should not be allowed. The learned counsel for respondent No. 1 has also relied upon the decision of the Supreme Court reported in AIR 1995 SC 2284 : (1995 AIR SCW 3407) (Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe) in support of his contention that an election petition particularly in relation to allegation of corrupt practice should not be permitted to be amended merely for the asking. In paragraph-86 of the said decision, it was observed (at page 2317 of AIR):-
"Section 86(5) of the Act deals with the amendment of an election petition. It lays down that the High Court may upon such term as to costs or otherwise, as it deems fit. allow amendment in respect of particulars but there is a complete prohibition against any amendment being allowed which may have the effect of introducing either material facts not already pleaded or of introducing particulars of a corrupt practice not previously alleged in the petition. The first part of Section 86(5) of the Act. therefore, is an enabling provision while the second part creates a positive bar. Of course, the power of amendment given in the Code of Civil Procedure can be invoked by the High Court because Section 86 of the Act itself makes the procedure applicable, us nearly us may be to the trial of election etition, but it must not be ignored that some of the Rules framed under the Act itself override certain provisions of the Civil Procedure Code and thus, the general power of amendment drawn from the Code of Civil Procedure must be construed in the light of the provisions of the election law and applied with such restraints as are inherent in an election petition ......."
9. From a discussion of the relevant provisions and the decisions on the point, there is no doubt about the fact that the question of amendment of an election petition which involves the amendment of particulars of corrupt practice alleged in the original election petition must stand the scrutiny of the principles envisaged in Section 86(5). The question is whether by permitting correction of the date relating to alleged corrupt practice, it can be said that new.particulars.of corrupt practice are being introduced. The submission of the learned counsel for respondent No. 1 is to the effect that as per Section 83(1)(b). the date of alleged corrupt practice is required to be given, and as such it is the intention of the Legislature that such vital aspect such as date and place as envisaged in Section 83(1)(b) should not be permitted to be amended. He submits that the very fact that it is statutorily so required to be given shows the importance of such date and any change of the date would constitute a material alteration of the election petition.
The aforesaid submission though attractive on the face of it cannot bear closer scrutiny. Section 83(1)(b) requires that the petitioner shall set-forth full particulars of any corrupt practice as alleged by the petitioner "including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each such corrupt practice". The expression "as full a statement as possible", is not only relatable to the names of the parties, but also to the "date" and "place of the commission of such corrupt practice". By using the expression "as full a statement as possible", it is apparent that there is some amount of leeway in the matter of furnishing these particulars. As required under Section 83(1)(b) an election petitioner is required to give full particulars of any corrupt practice which would evidently include "as full a statement as possible" of the "date". Section 86(5) specifically envisages amendment of the particulars of any corrupt practice, but it prohibits introduction of particulars of any corrupt practice not previously alleged in the petition. By changing the date of the alleged corrupt practice, it cannot be said that the particulars of a corrupt practice not previously alleged in the petition are being introduced by way of amendment Keeping in view the aforesaid aspects, I am inclined to hold that by changing the date of commission of the corrupt practice alleged in paragraph-16, the petitioner is not seeking to introduce, particulars of any corrupt practice not previously alleged in the petition, but merely trying to rectify an inadvertent mistake in the election petition. Accordingly, I am inclined to allow the prayer for amendment relating to paragraph-16 of the election petition by incorporating the date 9-2-1995 in place of 11 -2-1995.
10. Since the petition for amendment had to be taken up for hearing on several dates, in order to alleviate the inconvenience caused to respondent No. 1, the petition for amendment is al lowed subject to payment of Rs. 1,000/- as cost to respondent No. 1 on or before 4-4-1997. Consolidated, petition incorporating the amendments shall be filed on or before 4-4-1997 after service of copy on the counsel Correspondent No. 1. Additional written statement, if any shall be filed by respondent No. 1 on or before 21-4-1997. If the cost is not paid within the stipulated period, the amendment petition shall be deemed to have been rejected.