Punjab-Haryana High Court
Nirmal Singh vs Vaninder Kaur Loomba on 29 October, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CMs No.3-E and 4-E of 2013 in/and
Election Petition No.3 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CMs No.3-E and 4-E of 2013 in/and
Election Petition No.3 of 2012
Nirmal Singh
...Petitioner
Versus
Varinder Kaur Loomba
...Respondent
CORAM : HON'BLE MR.JUSTICE RAJIV NARAIN RAINA
Present : Mr.Kanwalvir Singh Kang, Advocate and
Ms.Mandeep Kaur, Advocate,
for the petitioner.
Mr.S.S.Mattewal, Advocate
for the respondent.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
This is an application under Order 6 Rule 17 CPC read with Section 151 CPC read with Section 86(5) of the Representation of Peoples Act, 1951 for permission to amend the petition in order to correct the spelling of the name of the respondent, the returned candidate in the elections to the State Assembly held in 2012, changing it from 'Varinder Kaur Loomba' to read 'Vaninder Kaur Loomba which is pleaded to be a purely typographical mistake but the error occurring at many places in the body of the present election petition. The application is supported by an affidavit of the petitioner Nirmal Singh son of Shri Kishan Singh, the defeated candidate. It is pleaded in paragraph 2 of the application that during the pendency of the petition and on receiving the written statement of the respondent, the petitioner realized that the name of the respondent was PARITOSH KUMAR 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 2 wrongly typed as 'Varinder' instead of 'Vaninder'. It is urged that if the amendment to the election petition is allowed and wherever the name 'Varinder' occurs is allowed to be corrected it would cause no other change in the election petition and the same would not have any effect on the merits of the case. Permission has been sought by a separate accompanying application to place the amended petition on record. The affidavit in support is dated 21st February, 2013.
Mr. S.S.Mattewal appearing for the respondent, the returned candidate and presently a sitting member of the Punjab Legislative Assembly elected from the Shutrana reserved constituency in the State of Punjab submits that though a reply has not been filed to the application but his client has a right to contest the application on the basis of materials already available on record. He is not wrong in saying so and would have his full sway in contesting the application on merits and the preliminary objections taken during the course of hearing.
Mr.Kang appearing for the petitioner submits that an inadvertent mistake in the making of the election petition occurred in the first name of the petitioner where instead of the letter 'n', the letter, 'r' was typed making 'Vaninder' to read as 'Varinder' and this mistake has occurred throughout the petition from the cause title to its foot. The mistake is innocuous and is open to be corrected by an order of the Court as there is no dispute with respect to the identity of the respondent. At the time of signing of the petition, the petitioner overlooked the inadvertent clerical mistake and as soon as he came to know of it from the contents of the written statement he moved the present application for amending the petition save and limited to replacing one letter of the alphabet with the other. PARITOSH KUMAR 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 3 It is not disputed that in the nomination papers, the returned candidate had filled her name as Vaninder Kaur Loomba which is her name as mentioned in the electoral roll of the reserved constituency from where the petitioner lost the election to the respondent. Learned counsel for the petitioner has pointed out some doubts and discrepancies in the name of Vaninder Kaur in certain documents found in the petition including the Income Tax PAN card where her name has been recorded as Valady Maria daughter of Baldev Singh wife of Karan Singh. The photocopy of the PAN card is found at page 63 of the paper book. In the affidavit filed by the respondent for election to the Punjab Legislative from Shutrana reserved constituency (Page 41 of the paper book), the petitioner has mentioned her PAN card number as AVFPM 7849D which is issued in the name of Valady Maria. He refers to the photocopy of Civil Suit No.138 of 1996 instituted on 27.5.1996 and decreed on 31.10.2000 on the basis of a compromise that the respondent has been arrayed in the plaint as defendant No.2 by the name; Miss Valady Maria daughter of Ex-MLA Baldev Singh, Chungara Road, Patran Mandi, District Patiala [which is said to be her maiden name] and, therefore, deception and impersonation has been practiced justifying rejection of the nomination paper. The suit was compromised in execution proceedings on 29.2.2012 whereas the general elections to the legislative assembly were held on 30.1.2012. The counting of votes took place on 6.3.2012 against nomination papers filed on or before 12.1.2012.
It is not the appropriate stage to go into these questions as they are subject matter of trial in the election petition while at present the concern is only with respect to an application under Order 6 rule 17 CPC for amendment of the election petition as prayed for. Therefore, no opinion is PARITOSH KUMAR 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 4 expressed or can be at this stage on the question of the name of the respondent.
Learned counsel for the petitioner submits that the description of the name of the respondent may be allowed to be corrected as it does not go to the root of the matter or to the maintainability of the petition. It is also not the case where the identity and address of the party is in dispute. What in result remains on the face of the petition is merely a glitch in the preparation of the election petition and the mistake is only a misdescription of the respondent's name. A mistake in the spelling in the name is merely a typographical error and is preeminently a curable defect. If the correction is allowed, it would not amount to adding any new party neither would the cause of action be altered or any substantive change in the complexion of the petition which would remain the same in content and so long as there has been substantial compliance of Section 82 of the Act, that should be sufficient to support the amendment sought. He relies on the ruling of the Single Judge of the Madras High Court in A. Lazar v. M.K.Azhagiri and others1 wherein it has been held that in order to maintain the sanctity of the election, there should not be any technical attitude adopted. The misdescription is only a formal defect that does not go to the root of jurisdiction or foundational facts pleaded in the petition necessary to bring home the relief. The error is only cosmetic in nature. This was a case where the change sought for in the election petition was from the name 'S.Veeradurai' instead of 'S.Veerapandi' and 'K.Thangapandi' instead of K.Thangapandian'. The Court allowed the amendment finding that it was a bona fide mistake which was overlooked by the election petitioner at the time of preparation of the petition and signing papers. There was ample 1 PARITOSH KUMAR 2012(2) MLJ 684 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 5 material available on record of the case to indicate that some persons, who have contested the election, were meant to be impleaded and such a mistake is only an error on the face of the record. The cause title remains the same in substance.
In Ram Prasad Sharma v. Mani Kumar Subba and others2, , the Supreme Court held that the substance of the matter must govern because a hyper-technicality, when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat the vital judicial process namely investigation into the merits of the case.
In Gore Lal Shakya v. Maharaj Singh Yadav and others3, the Supreme Court was faced with a similar situation of an incorrect spelling in the array of the parties where the 10th respondent was described as 'Sanjai Kumar' instead of 'Sanjiv Kumar' in the election petition. The learned Single Judge of Allahabad High Court had dismissed the election petition on this technical ground. The only question that arose for consideration before the Supreme Court was whether the High Court was correct and justified in dismissing the election petition for alleged non-compliance of the provisions of Clause (a) of Section 82 of the Act, to wit, the name of respondent No.10 has not been correctly shown. The Court set aside the order in appeal observing that a small typographical mistake committed in the spelling of the name is very insignificant and does not warrant invocation of Section 81 of the Act. It may be seen that the name 'Sanjai Kumar" and 'Sanjiv Kumar' are distinctly separate in their pronunciation and not the same thing. In the present case, the mistake occurred only in the third letter of the first name where 'r' was typed instead of 'n' and, therefore, the mistake in the present case is even more innocuous.
2 (2003) 1 SCC 289 3 PARITOSH KUMAR 1995 Supp (3) SCC 407 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 6 The Supreme Court in Ram Prasad Sarma v. Mani Kumar
Subba and others4 had again occasion to deal with an appeal arising out of an order passed in the election petition in which there were spelling and typing mistakes in the names of parties. The Supreme Court after noticing the earlier case law, set aside the order of the High Court dismissing the election petition under Section 86(1) of the Representation of Peoples Act for non-compliance with the provisions of Sub Section 3 of 81 of the Act observing that a spelling mistake in party's name does not make the petition itself defective or is liable to be dismissed for non-compliance of Section 82(a) of the Act. Non-pleading of one of the candidates whose name was otherwise available in Form No.21E in the copy of Return of Election filed under Section 64 of the Conduct of Election Rules, 1961 containing the result of election as well as list of candidates on record annexed with the election petition, then the petition was not liable to be dismissed for want of pleading such candidate. For the aforestated reasons the petitioner contends the amendment deserves to be allowed.
In opposition, Mr.Mattewal submits that no amendment deserves to be allowed after the period of limitation of 45 days prescribed under Section 81 of the Act has expired by keeping in view that the petition though was presented within time but against a wrongly named person which is not a proper presentation in the eyes of law. This argument takes us back to the spelling mistake. I am not prepared to accept this argument for the reason that in dismissing the application substantial injustice may result and would have a deleterious effect on the further proceedings where an impurity may be found at all times and till the end of the litigation. The effect of change in the correct spelling of the first name of the petitioner is 4 PARITOSH KUMAR 2003(1) SCC 289 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 7 not required to be decided in the present proceedings under Order 6 Rule 17 CPC and will remain subject to further debate and discussion and its impact on the nomination papers and on the result of the election upon a trial after issues are framed.
The respondent counsel then urges that once the penalty of dismissal is provided in Section 86(1) of the Act, then the application for amendment does not merit acceptance and the amendment cannot be allowed to save the defective election petition which has to be viewed strictly on such a lacuna imprinted on the face of the petition. He next argues that no fundamental right is involved in the prayer for amendment which is only a statutory right. If the elected candidate is not impleaded by the correct name, then the election petition is filed against a wrongly named person, deserves to be dismissed on this short ground. On this submission, I called for the original docket of service of the respondent and found that the summons issued by this Court were duly accepted by the respondent in the wrong name without any demur. Once the respondent has accepted the summons from the Court in an election petition, it would be too myopic and a far too stretched argument to non-suit the petitioner on this little lapse which has inadvertently occurred in a lawyer's office and an unsuspecting litigant signing case papers in good faith. If the name was wrongly spelled, the respondent could have readily refused service of summons without facing the threat of being proceeded ex parte. If there was an oversight on the part of the petitioner then there was oversight on the part of the respondent as well. In human affairs such things can happen and often do. The Court must remain alive to the substance and not the form of pleadings and the prayers or relief claimed. So long as the petitioner's finger pointed in the right direction by bringing the petition against the elected candidate from PARITOSH KUMAR 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 8 Shutrana reserved constituency whose identity is writ large not only on case papers but on the nomination papers, the ballot paper and the votes cast. Thus an error in spelling of the respondent's name should not be allowed to rule the roost only to deny justice by allowing construction of an edifice on an inconsequential and weak foundation. I would therefore gladly go by the selection of judgments placed before me by the petitioner on the issue of correction of a minor inadvertent mistake in the spelling of the first name, which Mr.Mattewal incorrectly asserts as one which goes to the root of jurisdiction. If the argument is accepted it would not only create a bad precedent but would be pulling wool over the eyes and putting the stamp of approval on a trifling aberration prevailing over better sense and deflecting the course of justice. The best way forward in deciding the election petition is most certainly by allowing the application for amendment. Election law may be highly technical in nature as asserted by the learned counsel for the respondent and the procedure laid down may have to be strictly adhered to but human errors are not immutable. They are insignificant when coming from a small mistake committed by sheer oversight in proof reading. They are not of an intransigent kind. The doors of the inevitable must be left forever open for correction by judicious benevolence of the touch of the judge's human hand. It is the adage of Murphy's law that if a thing can go wrong, it will. And there is a corollary or a variant to Murphy's law in Finagle's Law of Dynamic Negatives that advises: "Anything that can go wrong, will--at the worst possible moment." Legal drafting is taxing business. A lawyer's office is a combination of skills which are contribution based. Important things can escape notice and lead to embarrassment in court. But embarrassment should not be made a festering wound or a whip. It is oft said, to err is human but to forgive is divine. Spelling and PARITOSH KUMAR 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 9 grammatical mistakes abound judgments and pleadings in Indian courts and if we are to spend much time on them it would only be at the cost of justice, a price not worth paying.
Mr. Mattewal lastly argues then that the ingredients of the proviso to Order 6 Rule 17 CPC are not met in this case since there is no averment of due diligence in the application praying for amending the petition limited to the extent in issue for the present. However, a reading of Order 6 Rule 17 CPC does not suggest that any due diligence was required to unearth the correct spelling of the name of the respondent who herself lives by two names as admitted by her in the written statement i.e. Vaninder Kaur Loomba and Valady Maria; One, Indian, the other anglicized. This is too trifling a matter to be elevated to a triable issue for the Court to come to the conclusion "that in spite of due diligence, the party could not have raised the matter before the commencement of the trial", the words found in the proviso. Raising a matter for the first time after the commencement of the trial has nexus to facts-in-issue and the substantive relief claimed as may result by a change in pleadings. A mistake in spelling of a party's name, however many times replicated, is not a mistake that strikes at the heart of the election petition. The "matter" in issue in an election petition is more than plastic surgery or a dose of Botox to lift the skin of pleadings. The "matter" must go to the root system of the real controversy before we apply the proviso to Order 6 Rule 17 of the CPC before we stunt the growth of an adjudication on merits and speak of due diligence as insisted on behalf of the respondent. No, I would not tread that path for the life of the court and be buried without earth.
But to be fair to Mr.Mattewal, I would need to notice the case law cited by him in support of his submissions. In Amin Lal v. Hunna PARITOSH KUMAR 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 10 Mal5, a 5 Judge Bench of the Supreme Court while dealing with issues arising out of the Representation of Peoples Act observed in paragraphs 10 and 11 as follows : -
10. 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 dissent 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 Bajpai's 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.
11. 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 5 PARITOSH KUMAR AIR 1965 Supreme Court 1243 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 11 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 election of the returned candidate. The application under O.1, R.10 was made more than eight months after the election."
In Hukamdev Narain Yadav v. Lalit Narain Mishra6;, the Supreme Court observed that non-compliance with the provisions of Sections 82 and 117, which are mandatory, the election petition has to be dismissed under Section 86(1) for want of presentation of election petition within the period prescribed in Section 81 would be equally mandatory, the non-compliance of which provisions invariably visits the penalty of the petition being dismissed. Though Parliament has made certain amendments in Section 8 of the Act in 1969, it has not considered it necessary till now to amend the Act to confer, on persons challenging an election, benefits similar to those available to them under the proviso to the repealed S.85 of the Act, for Parliament did not want delays to occur in the disposal of election petitions as in the past. Hence the provisions of S.5 of the Limitation Act do not govern the filing of election petitions or their trial. Earlier case law discussed in extenso in deciding the case.
The principles laid down in Hukamdev Narain Yadav are binding but have no application to the facts of the present case where there was no delay in the presentation of the election petition but a lacuna was left inadvertently on the face of judicial record which is sought to be cured by amendment which in any event would not change the nature of the proceedings or the true identity of the parties. Reliance on the decision of the Supreme Court in Inamati Mallappa Basappa v. Desai Basavaraj 6 PARITOSH KUMAR AIR 1974 Supreme Court 480(1) 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 12 Ayyappa and others7 is of no practical assistance to the respondent as the Court entered upon a range of legal principles applicable to the election law which do not touch upon the trifling issue involved in this case. In Kamarja Thevar v. Kunju Thevar8, , the Supreme Court held that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It was observed by the Supreme Court as follows : -
"16. The above provisions go to show that an election petition once filed does not mean a contest only between the parties thereto but creates a situation which the whole constituency is entitled to avail itself of. Any person who might himself have been a petitioner is entitled to be substituted, on the fulfillment of the requisite conditions and upon such terms as the Tribunal may think fit, in place of the party withdrawing and even the death of the sole petitioner or of the survivor of several petitioners does not put an end to the proceedings, but they can be continued by any person who might himself have been a petitioner. Even if the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and there is no other respondent who is opposing the petition, a similar situation arises and the opposition to the petition can be continued by any person who might have been a petitioner, of course on the fulfillment of the conditions prescribed in S.116. These provision therefore show that the election petition once presented continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of opposition by the respondent but is liable to be continued by any person who might have been a petitioner.
17...It will be noticed that the procedure for trial before the Tribunal and the powers of the Tribunal are treated separately thus distinguishing between the procedure to be followed by the Tribunal and the powers to be exercised by it. There are also other provisions to be found in the Act which relate to 7 AIR 1958 Supreme Court 698 8 PARITOSH KUMAR AIR 1958 SC 687 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 13 place of trial (S.88); Power of Election Commission to withdraw and transfer petitions (S.89); appearance before Tribunal (S.91); documentary evidence (S.93); answering of criminating questions and certificate of indemnity (S.95) and expenses of witnesses (S.96). The effect of all these provisions really is to constitute a self contained Code governing the trial of election petitions and it would appear that in spite of S.90(1) of the Act, the provisions of O.23, R.1 of the Code of Civil Procedure would not be applicable to the trial of election petitions by the tribunals. If the withdrawal of a petition cannot be permitted and any person who might have been a petitioner is entitled to continue the proceedings, on a parity of reasoning, the withdrawal of a part of the claim also could not be permitted without allowing another person who might have been a petitioner an opportunity of proceeding with that part of the claim by substituting himself in place and stead of the petitioner who withdraws or abandons the same. If the constituency as a whole is interested in the petition presented before the Election Tribunal no such withdrawal or abandonment of a part of the claim could ever be permitted without giving an opportunity to any person who might have been a petitioner to continue the proceedings and pursue the petition to its logical conclusion.
18. The provisions of O.23, R.1 of the Code of Civil Procedure also contain inherent evidence which militates against this contention. Order 23, R.1 sub-rule (2) provides for liberty being given by the Court to a party withdrawing or abandoning a part of his claim to file a fresh suit on the same cause of action, if so advised. In the very nature of things such liberty could not be reserved to a petitioner in an election petition. The provisions above referred to in regard to withdrawal of petitions do not provide for the same and if they do not do so, can it be urged that the provisions of O.23, R.1, sub-rule (2), though they may not apply to the cases of withdrawal of petitions may nevertheless apply where the petitioner withdraws or abandons a part of his claim? If these provisions do not apply to the withdrawal or abandonment of a part of the claim in the case of an election petition, could it then be urged that nevertheless the other provisions of O.23, R.1 would apply and the petitioner would be at liberty to withdraw or abandon a part of his claim?PARITOSH KUMAR 2014.11.27 16:31 I attest to the accuracy and authenticity of this document
CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 14
19. On a due consideration of all these provisions, we are of opinion that the provisions of O.23, R.1 do not apply to the election petitions and it would not be open to a petitioner to withdraw or abandon a part of his claim once an election petition was presented to the Election Commission, more so when such a withdrawal or abandonment of a part of the claim would have the effect of depriving the returned candidate or any other party to the petition of the right of recrimination which had accrued to him under S.97, of the Act."
Following these principles, I. D. Dua, J. speaking for the Division Bench of this Court in Harnam Singh v. Tirath Singh9 held that an election petition is not an action of law nor is it a suit in equity. The court followed the observations in Kamarja Thevar case.
An election petition is purely a statutory proceeding created and governed by Statue. The amendment of written statement to the election petition is governed by Order 6 Rule 17 CPC. It was observed that in the performance of their statutory duties, the Tribunals and the Appeal Courts are to discharge their own responsibilities in safeguarding the constitutional right of the constituency; the election contest not being a mere private dispute between the parties to the election petition. In view of the position explained above, the petitioner submits that the amendment be carried by a motion of the Court. It is also the law that an election petition cannot be withdrawn for the asking under Order 23 Rule 1 of the Code when substitution is permissible to avoid a trade off and so as not subvert the public purpose for which the court was moved. This is much like public interest litigation where there is a court evolved rule that the petitioner is not the dominus lites of public interest litigation. There is thus a bar against withdrawal of a petition and the court may choose to proceed suo motu and 9 PARITOSH KUMAR 1964(1) ILR (Punjab) 798 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 15 on its own motion when the case demands. I say this by way of an analogy to proliferate the principle in multi dimensions in search of an answer to the application only to test the correctness of my reasoning.
In Sheela Barse v. Union of India10 the Supreme Court dwelt on the locus standi of a petitioner to withdraw a PIL who claimed that the person who initiated the PIL proceedings was entitled as a matter of right to withdraw the proceedings and the court cannot refuse leave to withdraw the case which was the result of 'a voluntary action of the citizen' and could not be continued without the participation of the applicant. The Court rejected the argument and observed that the rights of those who bring the action on behalf of others are subordinate to the interests of those for whom the action is brought which could be continued by any other citizen or organization on the ground that PIL jurisdiction is corrective in nature rather than compensatory. The Court in PIL cases is not merely a passive disinterested umpire or onlooker but has a more dynamic and positive role with the responsibility for the organization of the proceedings, moulding the relief and - this is important - also supervising the implementation thereof. Since it is not a private litigation, the petitioner in PIL cases cannot exercise the right of a private litigator to withdraw the proceedings. Only a private litigant can abandon his claims.
This is not to say that this is a PIL or an assertion of a right to withdraw but I think that the principles in PIL are apposite to apply in the case of an election petition where community interest is predominantly involved and especially when Mr. Mattewal asserts that the spelling lacuna is so fatal to the action as would non-suit the petitioner by rejection of the application and consequently the election petition itself. 10
PARITOSH KUMARAIR 1988 SC 2211: (1988) 4 SCC 226 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 16
There is a greater degree of liberalization of locus standi in the election law than in some other jurisdictions to enforce collective rights of the electoral community at large as each one of them is a person sufficiently interested though they may be not be before the Court but are at the same time vitally interested in the result of the litigation. The application for amendment cannot be thrown out on the jejune ground of one wrong letter of the alphabet typed by a printer's devil or even if it were unwittingly approved by counsel and signed by party approaching court in absolute good faith. Counsel should not be seen pinned down on the mat on such an insignificant mistake such as this.
If an election petition once presented is not open to be withdrawn or abandoned then looking to the larger public interest involved in the constituency and the people at large then I think it would be a pretty horrible thing to throw out an election petition or to dismiss the application under Order 6 Rule 17 CPC on such a hyper-technical ground as is contested by the respondent. The democratic system that the founders of the Constitution gave would be put in serious peril if such a thing were allowed not to be corrected by a court order by rejecting request for a mere correction of a letter in the pleadings. On a plain reading of and by culling out the ratio of the Basappa case in trying to forcibly interpret it in favour of the respondent as argued by her is against the very fabric of Mr. Mattewal's cumulative arguments addressed before this Court. The principles of law laid down in the judgment really deserve to be read against the respondent.
Moreover, I have gone through some other judgments cited by the learned counsel including Mohan Raj v. Surendra Kumar Taparia PARITOSH KUMAR 2014.11.27 16:31 I attest to the accuracy and authenticity of this document CMs No.3-E and 4-E of 2013 in/and Election Petition No.3 of 2012 17 and others11 and the Single Bench decision of this Court in Shiv Chand v. Ujagar Singh12 but fail to see how they help him.
For the foregoing reasons, the application is allowed and the amendment is permitted to be carried out. The amended petition is taken on record. The respondent is at liberty to file a fresh written statement or adopt the written statement already filed by her. Four weeks time is granted to the respondent to do so or to omit to do so.
However, a challenge to a small mistake in typing 'r' for 'n' has led to a gross waste of Court time in hearing this matter and passing judgment even when there was sufficient case law in command for the propositions in issue. Besides, the respondent has been put to unnecessary expense of Court hearings, counsel fee etc. on the application for amendment for which she deserves to be compensated. Therefore, it is deemed fit that the applications will be allowed subject to payment of `25,000/- as costs; half payable to the respondent and the rest to the Mediation & Conciliation Centre of this Court.
List for further proceedings on 4.12.2014.
(RAJIV NARAIN RAINA) JUDGE October 29, 2014 Paritosh Kumar 11 AIR 1969 Supreme Court 677 (1) 12 PARITOSH KUMARAIR 1978 Punjab and Haryana 200(1) 2014.11.27 16:31 I attest to the accuracy and authenticity of this document