Bombay High Court
Rajendra Vithal Raut vs Gangadhar Dilip Sopal on 4 May, 2000
Equivalent citations: AIR2000BOM419, 2000(4)BOMCR26, (2000)2BOMLR843, 2000(3)MHLJ671, AIR 2000 BOMBAY 419, (2000) 3 ALLMR 573 (BOM), (2000) 3 MAH LJ 671, (2001) 1 MAHLR 161, (2000) 4 BOM CR 26, 2000 (2) BOM LR 843, 2000 BOM LR 2 843
Author: R. M. Lodha
Bench: R.M. Lodha
ORDER R. M. Lodha, J.
1. Heard Mr. M. M. Vashi, the learned Counsel for the petitioner and Mr. A. Y. Sakhare, the learned Counsel for Mr. Dilip Gangadhar Sopal.
2. By means of this chamber summons taken out by the election petitioner it is prayed that the election petition be allowed to be amended by correcting the name of the 1st respondent as Dilip Gangadhar Sopal instead of Gangadhar Dilip Sopal in the title of the petition and other consequential amendments arising therefrom.
3. In the affidavit in support of the chamber summons, the election petitioner has stated that in the title of the petition the name of the 1st respondent has been mentioned as Gangadhar Dilip Sopal instead of Dilip Gangadhar Sopal due to oversight. According to the election petitioner the mistake is a typographical mistake since in the body of the petition the name of the elected candidate i.e. 1st respondent is correctly shown as Dilip Gangadhar Sopal. The petitioner has further stated that as soon as the aforesaid mistake came to his notice, he made an application being Application No. 1 of 1999 for amending the petition. But since the said application was not in proper form, it was disposed of with liberty to petitioner to make an appropriate application and hence the present chamber summons.
4. The chamber summons is being opposed by the elected candidate Dilip Gangadhar Sopal and in his affidavit in reply it is stated that the chamber summons taken out by the election petitioner is not in proper form as required under Rule 126 read with Form No. 12 of Bombay High Court (Original Side) Rules, 1980. According to the elected candidate, he has not been impleaded in the chamber summons as party respondent and the chamber summons is liable to be dismissed on that ground alone. It is further stated by the elected candidate in his affidavit in reply that he has not been impleaded as party respondent by election petitioner within 45 days of declaration of election and, therefore, the election petition itself is liable to be dismissed having been filed without the impleadment of necessary party and now by way of amendment, he cannot be permitted to be impleaded after the period of limitation which has already expired. The elected candidate has also stated in his affidavit in reply that the mistake is not typographical mistake as has been sought to be made out by describing his name but in extra ledger copies as well as eight other copies, on all pages in the title, title of Vakalatnama, memo of address and list of documents he has been described as Gangadhar Dilip Sopal. Such gross mistake cannot be by way of oversight since at all places election petitioner has consistently maintained the name of respondent No. 1 as Gangadhar Dilip Sopal.
5. Paragraph 4 of the election petition reads thus:
"4. The petitioner states that total number of votes secured by the Petitioner and the other Respondents are as under :--
Serial No. Name of Candidate Party Affiliation Number of votes polled
1.
Raut RajendraVithal (Petitioner) Shivsena 47188
2. Sopal Dilip Gangadhar (Respondent No. 1) Nationalist Congress Party (NCP) 47527
3. Shaikh Abbas Vajif (Respondent No. 2) Indian National Congress(Congress 1) 9708
4. Yehteshamuddin (Respondent No. 3) Akhil Bhartiya Sena 861
5. Kulkarni Mohan Ganpatrao (Respondent No. 4) Akhil Bhartiya Hindu Mahasabha 211
6. Petitioner's name finds place at Item No. 1 while respondent No. 1 in the said paragraph is described as Sopal Dilip Gangadhar (the correct name of elected candidate). In paragraph 4 the said Sopal Dilip Gangadhar has also been described as Respondent No. 1 in the election petition but in the cause title the name of respondent has been shown as Gangadhar Dilip Sopal and it is this mistake which is sought to be corrected by way of amendment through this chamber summons. Perusal of paragraph 4 of election petition leaves no manner of doubt that in fact respondent No. 1 in the election petition is Sopal Dilip Gangadhar but his name has been wrongly described in the cause title as Gangadhar Dilip Sopal. This mistake is nothing but a typographical mistake and it is not that in the election petition a person different from the elected candidate has been impleaded. Obviously once the typographical error crept in respect of correct name of elected candidate i.e. Dilip Gangadhar Sopal in the main election petition, obviously in the copies of the election petition as well as in the Vakalatnama, memo of address and list of documents the same mistake crept in.
7. In Gore Lal Shakya v. Maharaj Singh Yadav and ors., , in the election petition, respondent No. 10 was shown as Sanjai Kumar in place of Sanjiv Kumar. The returned candidate who was respondent No. 1 made an application, inter alia, for dismissal of election petition on the ground that the necessary party Sanjiv Kumar was not impleaded. The High Court dismissed the election petition on the ground of non-joinder of a contesting candidate Sanjiv Kumar. Upon appeal being filed against the order of the High Court before the Apex Court, the order of the High Court was set aside and the Apex Court in paragraphs 5, 6 and 7 observed thus :-
"5. Now this order is impugned before us. The only question that arises for our consideration in the present appeal is whether the High Court was correct and justified in dismissing the election petition for the alleged non-compliance of the provisions of Clause (a) of section 82 of the Act in that the name of respondent 10 has not been correctly shown. The learned Counsel for the appellant, Ms. Sandhya Goswamy, contended that there was no mistake in mentioning the name of respondent 10 and that in fact the reading of entire election petition discloses that the name of the 10th respondent has been correctly mentioned and that a small typographical mistake committed in the spelling of the name only in the portion of the array of parties is very insignificant and that typographical mistake does not warrant invocation of section 81. It was brought to our notice that the order of the High Court made on 14-3-1990 which reads :
"Notice sent by post has been served on respondents 3 and 10....." clearly indicates that section 82 has been materially complied with.
6. It is seen from the appeal records that the appellant filed an application dated 19-7-1990 seeking an amendment or correction of the alias name of the 10th respondent as Sanjiv Kumar. In that application the following averments are made:
In para 3 it is averred thus :
"In the petition correct spelling of the name of respondent 10 is written Sanjiv Kumar....."
In paragraph 5 of the said petition it is stated :
"That in the body of the petition at one place name of respondent 10 is given as Sanjiv Kumar in Hindi vide Annexure 4-A page 148 and at the other place his name is given as Sanjiv Kumar in English vide page No. 5 of the petition and his alias name is given on page No. 2 as Sanjiv Kumar with his correct postal address."
Again in paragraph 7 of the said petition it is stated :
"That on page No. 2 of the petition name of respondent 10 ought to have been typed by the spelling of Sanjiv Kumar but in dictation typist has typed his alias name with the spelling of Sanjai Kumar and this mistake occurred due to pronunciation of his name. Mistake is clerical and in typing."
7. Nothing has been brought to our notice as to whether any counter-affidavit has been filed before the High Court refuting the statement made in the application filed by the appellant stating that the name of 10th respondent is correctly mentioned in the body of the petition Sanjiv Kumar; but by typographical mistake the spelling of the name of Sanjiv Kumar has been mentioned as Sanjai Kumar. The High Court has made much about nothing and also made a mountain out of a mole hill. It is very surprising that the first respondent himself has committed the same typographical mistake in his application taken up before the High Court seeking dismissal of the election petition mentioning the name of "Sanjiv Kumar" at one place as "Sanjai Kumar" and when Counsel for the respondent was confronted with this mistake in his application, he states that it is a typographical mistake. In our considered opinion nothing can adversely be inferred against the appellant since it is now demonstrably shown that the mistake is committed only in the array of parties that too by a typographical error.
8. The observations made by the Apex Court aforequoted are clearly applicable to the facts and circumstances of the present case. In the light of the clear, categorical and unambiguous averment made in paragraph 4 of the election petition, no doubt is left that the elected candidate Dilip Sopal as respondent is described as Gangadhar Dilip Sopal as respondent No. 1 due to typographical error and oversight and it cannot be said that by means of the chamber summons for the first time the elected candidate Dilip Gangadhar Sopal is sought to be impleaded.
9. Mr. Sakhare, the learned Counsel appearing for elected candidate Dilip Gangadhar Sopal heavily relied upon the judgment of the Supreme Court in K. Venkateswara Rao and another v. Bekkam Narasimha Reddi and others, . The said judgment has no application whatsoever in the facts and circumstances of the present case. It may be noted that in that case though one Mr. V.K. Reddi was charged with corrupt practices, he was not impleaded as a party to the petition. An application was made by the election petitioner after the issues were settled for impleading V.K. Reddi as party respondent to the election petition. The order dismissing the application for amendment application came up for consideration before the Apex Court in appeal but the Apex Court did not find any merit in interfering with the order passed by the trial Judge. In paragraph 19 of the report, the Apex Court observed thus :
"19. It was argued that if a petition were to be thrown out merely because a necessary party had not been joined within the period of 45 days no enquiry into the corrupt practices alleged to have been committed at certain elections would be possible. This is however a matter which can be set right only by the legislature. It is worthy of note that although the Act has been amended on several occasions, a provisions like section 86(1) as it now stands has always been on the statute book but whereas in the Act of 1951 the discretion was given to the election commission to entertain a petition beyond the period fixed if it was satisfied as to the cause for delay no such saving clause is to be found now. The legislature in its wisdom has made the observance of certain formalities and provisions obligatory and failure in that respect can only be visited with a dismissal of the petition."
10. The facts which have been noted above by me do not attract the aforesaid observation since in the body of the election petition the name of the elected candidate has rightly been described as Dilip Gangadhar Sopal but in the cause title his father's name has been described before his name.
11. I do not find any merit in the contention of the elected candidate that the chamber summons is not addressed to the elected candidate, namely, Dilip Gangadhar Sopal. It may be observed that in the chamber summons also the election petitioner has described the elected candidate in the same style as has been described in the election petition with the prayer for correction of his name as Dilip Gangadhar Sopal instead of Gangadhar Dilip Sopal.
11-A. I have no hesitation in holding that it is only by typographical error that the name of elected candidate Dilip Gangadhar Sopal has been described in the cause title and other places like title of vakalatnama, memo of address and list of documents and such mistake being insignificant deserves to be rectified by permitting the election petitioner to amend the election petition.
12. The chamber summons is accordingly made absolute in terms of prayers (a) and (b). Prayers (a) and (b) read thus :-
a) that the petitioner be allowed to amend the petition by correcting the name of the first respondent as "Dilip Gangadhar Sopal" instead of "Gangadhar Dilip Sopal" in the title of the petition.
b) other consequential amendments arising from prayer (a) be allowed to be carried out.
13. Necessary amendment be carried out within six weeks from today in view of ensuing summer vacation. After the necessary amendment is carried out, office is directed to issue summons to the respondents returnable on 14-7-2000.
14. The parties may be provided ordinary copy of this order duly authenticated by the Court Associate on payment of usual copying charges.