Patna High Court
Laliteshwar Prasad Shahi vs Bateshwar Prasad And Ors. on 14 January, 1963
Equivalent citations: AIR1963PAT235, AIR 1963 PATNA 235, ILR 45 PAT 215
JUDGMENT Kanhaiya Singh, J.
1. These are two applications under Article 227 of the Constitution arising out of the same election petition and challenging, respectively, the legality and correctness of the order of the Election Tribunal dated 16th July, 1962, refusing amendment of the election petition and the order dated 31st July, 1962, refusing leave to deliver interrogatories for the examination of opposite party No. 1, and they will be disposed of by this judgment; but for the sake of convenience I will deal with them separately. Miscellaneous Judicial Case No. 885 of 1962.
2. In a contest between the petitioner and opposite parties 1 to 4 for election to the Bihar Legislative Assembly from the Lalganj North Constituency, Bateshwar Prasad, opposite party No. 1, was declared elected on 27th February, 1962, and on 11th April, 1952, the petitioner filed an election petition under Section 81 of the Representation of the People Act, 1951 (hereinafter referred to as the Act), numbered as 133 of 1962, disputing the election of opposite party No. 1 as void, substantially on the ground that on the date of his election he was disqualified for being chosen as, and for being, a member of the Bihar Legislative Assembly by reason of the disqualification attaching to him under Clause (d) or section 7 of the Act. Clause (d) provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State if there subsists a contract entered into in the course of his trade or business by him with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government.
The Election Commission constituted Mr. Shyamnandan Prasad, District and Sessions Judge, Muzaffarpur, opposite party No. 5, as Election Tribunal and referred to him the election petition for trial under the provisions or Section 86 of the Act. The material facts in support of the said ground are stated in paragraphs 9 to 13 of the election petition (Annexure A), which may be conveniently reproduced here:
"9. That the respondent No. 1 and his son Shri Bhupendra Nath Prasad are the proprietors and owners of the Patna Flooring Company and they are carrying on the business, since long, of mosaic flooring and also plumbing and sanitary works etc. in the name and style of M/S Patna Flooring Co. with its office, godown, workshop and show room at Hassan Imam Road (Dak Bungalow Road) Patna and business is managed and looked after by the respondent No. 1.
10. That the respondent No. 1 himself and through his firm M/S Patna Flooring Company has got contracts with the Government of Bihar through Public Works Department (Construction Division) for doing mosaic works at Rajendra Surgical Block of Patna General Hospital and the above contracts were subsisting at the time of nomination and election of respondent No. 1.
11. That in connection with the above contracts mentioned in paragraph 10 the respondent No. 1 has filed a Money Suit No. 55 of 1959 in the Court of Subordinate Judge I, Patna against the State of Bihar, the Secretary, Public Works Department, Government of Bihar, the Executive Engineer, P.W.D. (Construction Divison No. 1) Patna for realisation of his claim amounting to Rs. 18,500/-in connection with the execution of the work of the said contracts which was pending adjudication at the relevant dates.
12. That respondent No. 1 himself and through his firm has got subsisting contracts for mosaic flooring etc. at Barauni with the Government of Bihar and the Central Govt.
13. That the respondent No. 1 directly and indirectly himself and through his firm M/S Patna Flooring Company has got several other subsisting contracts with the Government of Bihar for mosaic flooring and for sanitary fittings etc. and so he is disqualified for being chosen and for being a member of the Bihar Legislative Assembly."
in short, the allegation is that opposite party No. 1 himself and through his firm, Patna Flooring Co., has entered into contracts with the Bihar Government for execution or certain works.
3. On 5th July, 1962, opposite party No. 1 by a petition sought clarification and particulars regarding the allegations made in paragraphs 12 and 13 aforesaid, and the Election Tribunal, on the same day, directed the petitioner to state by 12th July, 1962, "the facts explicity by petition with regard to the allegations". On 12th July, 1962, the petitioner presented an application for amendment of the said paragraphs 12 and 13 (vide amendment petition, Annexure B). Opposite party No. 1 filed a rejoinder objecting to the granting of the amendment. It will be observed that in paragraphs 12 and 13 the petitioner has dated with precision the nature of the subsisting contracts which opposite party No. 1 had with the State Government, and by the petition of amendment he sought to introduce in those paragraphs the specifications of the said contracts. For a clear understanding of the nature of the amendment sought, I would re-write below paragraphs 12 and 13, showing therein the proposed amendment within brackets:
12. That respondent No. 1 himself and through his firm (Patna Flooring Co., Patna) has got subsisting contracts for mosaic flooring (and dado work in Russian Hostel belonging to Indian Refinery) etc. at (and near) Baradhi with the Government of Bihar and the Central Govt.
13. That the respondent No. 1 directly and indirectly himself and through his firm M/S Patna Flooring company has got several other subsisting contracts (namely (1) supply of engraved marble plates denoting inauguration or different labour welfare centres under the labour department of Govt. of Bihar (2) laying of 2" patent stones and mosaic flooring in Saharsa hospital building under Executive Engineer, P.W.D. Saharsa (3) flooring and mosaic work in Rajgir Kund under P.H.E.D., Patna (4) mosaic and flooring work of T. B. Clinic Latieriasarai under P.W.D. Darbhanga (5) mosaic and flooring work of newly constructed hospital building at or near Agamkuan, Patna under P.W.D., Patna (6) plumbing work under joint Water Board, Patna, (7) mosaic and flooring work of Electricity Board Inspection Bungalow of Barauni under Electricity Board, Patna, (8) mosaic and flooring work of T. B. Sanatorium, Koilwar under P.W.D., Sahabad (9) mosaic and flooring work under N.E. Ry. Gorakhpur with the Central Govt. and with the Government of Bihar for mosaic flooring and for sanitary fittings etc. and so he is disqualified for being chosen and for being a member of the Bihar Legisltaive Assembly. It is manifest that the material facts on which the election was attacked had already been stated in paragraphs 12 and 13, and by the proposed amendment the petitioner only gave a specification of the different contracts opposite party No. 1 had entered into with the Government. The Election Tribunal rejected the petition of amendment on two grounds, first, that the amendment sought to incorporate in those two paragraphs several new instances of contract which were not mentioned in the original petition and, second, that these new instances, if allowed to Be added, would change the nature of the case. Further, relying on the decision of the Supreme Court in Harish Chandra Bajpai v. Triloki Singh, (S) AIR 1957 SC 444, he observed that the Tribunal has no power to amend the petition where new instances are sought to be introduced by the amendment.
4. Mr. Balbhadra Prasad Singh appearing for the petitioner contended that the order of the Election Tribunal was vitiated because he had approached the entire question from a wrong perspective and applied wrong principles of law ant) did not comprehend the true scope and effect of the decision of their Lordships of the Supreme Court in the case of Harish Chandra Bajpai, (S) AIR 1957 SC 444, aforesaid. He urged further that these particulars were furnished by the petitioner, as directed by the Court, at the instance of opposite party No. 1 himself, and, therefore, it was not open to the opposite party to object to the amendment and that on that ground alone the amendment should have been allowed. He further contended that on merits also the proposed amendment was in conformity with the principles laid down by their Lordships of the Supreme Court in the aforesaid case, as it only sought to amplify and give further and better particulars in relation to the material facts already alleged in the petition and did not introduce any new ground and new matter not already stated therein.
On the other hand, Mr. S. N. Datta representing the opposite party repelled the allegation that opposite party No. 1 had by his petition asked for the instances of the different contracts. His contention is that all that was asked for is the particulars of the contracts already mentioned in the petition, such as, date, place and nature of the contracts, and not the particulars of new contracts. He complained that by amendment the petitioner wanted to introduce in the pleadings instances of different contracts which, in the eye of law, constituted new grounds of attack altogether and, as such, the amendment was foreign to the scope of the petition and was not permissible in law, especially when the period of limitation had run out. He urged that the Tribunal was not competent to permit such amendment. Lastly, he argued that the amendment of the petition was in the discretion of the Election Tribunal, and when it had exercised its discretion and refused amendment, this Court should not interfere with its discretion which is proper and not perverse. I am inclined to accept the contention of Mr. Singh.
5. Before I deal with these contentions, I may clarity one ground. It is wrong to say that opposite party No. 1 had not by his petition asked for further and better particulars of the contracts mentioned in paragraphs 12 and 13 of the election petition. Mr. Datta contended that what was intended was the date, nature and the place of the contracts, but this argument is prima facie fallacious. The date, nature and place of the contracts cannot be given without specifying the contracts themselves. It is manifest that the petitioner had sufficiently indicated the precise nature of the contracts opposite party No. 1 had entered into with the State Government but had not specified all those contracts. Naturally, Opposite Party No. 1 wanted to know what those contracts were. Therefore Opposite Party No. 1 undoubtedly asked for the details of the contracts mentioned therein, and accordingly those contracts cannot be regarded as fresh contracts.
6. I would first state here the powers of the Election Tribunal in the matter of amendment of the pleadings. The powers of the Tribunal are derived from Section 90(1) which lays down that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, 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. Rule 17 of Order VI of the Code of Civil Procedure empowers a Court to alter or amend the pleadings of either party at any stage of the proceedings in such manner and on such terms as may be just and enjoins that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The Tribunal, therefore, has ample powers to amend pleadings, and the only limitation upon those powers is that it must be subject to the provisions of the Act and of any rules made thereunder.
One of the provisions relating to election petition, as contained in Section 81, is that the election petition calling in question any election must be presented within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. Where, therefore, an amendment to the pleading is sought within the period of limitation prescribed by Section 81, the powers of the Tribunal to amend the pleading are the same as those of a Civil Court. This question came up for decision by their Lordships of the Supreme Court in the case of Harish Chandra Bajpai, (S) AIR 1957 SC 444, and without embarking upon a detailed discussion of the question I would state that the decision of their Lordships therein defines the powers of the Election Tribunal in the matter of amendment of pleadings. The views of the Supreme Court are summarised in the following two propositions;
"(1) Under Section 83(3) the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended, provided the petition itself specifies the grounds or charges, and this power extends to permitting new instances to be given.
(2) The Tribunal has power under Order 6, Rule 17 to order amendment of a petition, but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character as to make it in substance a new petition, if a fresh petition on those allegations will then be barred."
It will be observed that unlike a Civil Court wherein it can extend the period of limitation, in an appropriate case the Election Tribunal has no power to permit new grounds to be raised beyond the time of limitation prescribed by Section 81 of the Act, It is further apparent that an amendment introducing a new matter or a new ground may also be allowed if it is sought before the expiry or the period of limitation prescribed for the filing of the petition. It is thus settled by the highest authority that order VI, Rule 17 of the Code of Civil Procedure applies to the proceedings before the Tribunal, and the Tribunal has ample powers to amend the pleadings. Where, however, by the amendment a new matter or a new ground is sought to be introduced, this will not be permitted by the Tribunal if the prayer is made after the expiry of the prescribed period of limitation. Further, even new grounds or new matters also may be permitted to be introduced if the amendment is sought within the period of limitation. Another point which is equally well-settled is that in determining whether in a given case the pleadings should be amended or not, attention should be given to the substance and not the form, and technicalities should; not be allowed to interfere with the administration of justice. Their Lordships of the Supreme Court have laid down in S. M. Banerji v. Sri Krishna Agarwal, AIR 1960) SC 368 at 375:
"Courts and Tribunals are constituted to do justice between the parties within the confines of statutory limitations, and undue emphasis on technicalities or enlarging their scope would cramp their powers, diminish their effectiveness and defeat the very purpose for which they are constituted. We must make it clear that within the limits prescribed by the decisions of this Court the discretionary jurisdiction of the Tribunals to amend the pleadings is as extensive as that of a civil court. The same well-settled principles laid down in the matter of amendments to the pleadings in a suit should also regulate the exercise of the power of amendment by a Tribunal......
'It is no doubt true that pleadings should not be too strictly construed, and that regard should be had to the substance of the matter and not the form.'"
There is thus undoubted power in the Election Tribunal to amend the pleadings. The principles which guide the civil courts also govern the proceedings before the Election Tribunal. Shortly put, the established principles are that m order to get at the true facts, the amendment of pleadings should be liberally allowed, subject to three general conditions, (1) bona fides on the part of the applicant, (2) possibility of amendment without such prejudice to the other party as cannot be compensated by costs, and (3) the proposed amendment is not such as to turn the suit of one character into a suit of another and inconsistent character. There is no kind of error or mistake which, it not fraudulent or intended to over-reach, a Court ought not to correct, if it can be done without injustice to the other party. Thus, the Tribunal possesses wide powers to amend pleadings. The appropriateness of the proposed amendment is to be determined in the light of these well-established principles. Now, the question that falls for determination is whether hawing regard to the rival, contentions of the parties, the election petition in the instant case should be amended. This leads me first to the consideration as to what the pleadings should contain.
7. Section 81 of the Act provides that "an election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the Election Commission by any candidate at such election or any elector....."
Sub-section (1) of Section 100 enumerates the grounds on which the Tribunal shall declare the election of the returned candidate" to be void, and one of the grounds which is germane to the present enquiry is the one contained in Clause (1) of Section 100, namely, that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act. In other words, if the candidate was disqualified, then his election must be declared to be void by the Tribunal. What constitutes disqualification is laid down in Section 7 of the Act. This section lays down, inter alia, that a person shall be disqualified for being chosen as, and for being, a member of either House or Parliament or of the Legislative Assembly or Legislative Council of a State if there subsists a contract entered into in the course of his trade or business by him with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government (Clause (d)). "Appropriate authority", as defined by Section 2(1) (b) of the Act, means the Central Government or the State Government, according as the election relates to the Parliament or the State Legislature, in other words, a person is not qualified for being chosen as, and for being, a member of the Legislative Assembly or the Legislative Council of a State, if he has a subsisting contract with the State Government. Section 83 of the Act provides for the contents of an election petition. It enacts:
"83 (1) An election petition--
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, 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 the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."
Dealing with the scope of Section 83, Venkatarama Ayyar, J., who delivered the judgment of the Court in the case of Harish Chandra Bajpai, (S) AIR 1957 SC 444 aforesaid, observed as follows:--
"In our opinion, Section 81 (1) and Section 83, Sub-sections (1) and (2), when correctly understood, support the contention of the respondent that the Tribunal has authority to allow an amendment even when that involves inclusion of new instances, provided they relate to a charge contained in the petition. Taking first Section 81 (1), it enacts that a petition may be presented calling an election in question on one of the grounds specified in Section 100, Sub-sections (1) and (2) and Section 101, These sections enumerate a number of grounds on which the election may be set aside, including the commission of the corrupt practices mentioned in Section 123 of the Act, and quite clearly it is the different categories of objections mentioned in Section 100, Sub-sections (1) and (2), Section 101 and Section 123 that constitute the grounds, mentioned in Section 81(1). Then we come to Section 83(1) It says that the petition should contain a concise statement of the material facts, and that would include facts relating to the holding of the election, the result thereof, the grounds on which it is sought to be set aside, the right of the petitioner to present the petition and the like. Then Section 83(2) enacts that when there is an allegation of corrupt or illegal practice, particulars thereof should be given in a separate list. If the grounds on which an election is sought to be set aside are something other than the commission of corrupt or illegal practices, as for example, when it is stated that the nomination had been wrongly accepted or that the returned candidate was not entitled to stand for election, then Section 83(2) has no application, and the requirements of Section 83(1) are satisfied when the facts relating to those objections are stated. The facts to be stated under Section 83(1) are thus different from the particulars which have to be given under Section 83(2). When, therefore, an election is challenged on the ground that the candidate has committed the corrupt practices mentioned in Section 123 instances constituting particulars thereof will properly tan within Section 83(2) and not Section 83(1). The result is that the power under Section 83(3) to allow further and better particulars will include a power to allow fresh instances of the charges, which form the grounds on which the election is questioned.'' After dealing with the decisions of English Courts on statutory provisions which are in pari materia with our enactment, their Lordships of the Supreme Court concluded as follows:
"These decisions establish that the requirement as to statement of grounds and facts is satisfied when the charge on which the election is sought to be set aside is set out in the petition, that the failure to give therein particulars of corrupt and illegal practices on which it is founded is not fatal to its maintainability, and that it is sufficient if the particulars are ordered to be furnished within a reasonable time before the commencement of the trial. On the same reasoning, the conclusion should follow that Section 81(1) and Section 83(1) are compiled with, when the grounds on which the election is sought to be set aside, are stated in the petition, those grounds being, as already stated, the matters mentioned in Section 100, sub-SECTIONS (1) and (2), Section 101 and Section 123, which is attracted by Section 100(2) (b), and that the particulars in respect of those grounds, when they are charges of corrupt or illegal practices, fall within Section 83(2). There is, it should be observed, nothing in the Election, law of England corresponding to Section 83(2), the question of particulars being left there to be dealt with under the Rules applicable to the trial of causes. The consequence is that while under the English practice, the petitioners are not obliged to state particulars of corrupt practices in their petition, under Section 83(2) a statement of those particulars must be made in the petition in a separate list annexed thereto. But this difference is more a matter of form than of substance, as Section 83(3) provides for particulars being called for and furnished in the course of the proceedings, and does not affect the conclusion as to the power of the Tribunal to allow new instances to be pleaded..... .In this view, the order of amendment in question is not open to attack on the ground that it has permitted new instances to be raised. What has to be seen is whether those instances are, in tact, particulars in respect of a ground put forward in the petition or whether they are, in substance, new grounds of attack".
Their Lordships have thus indicated what a petition should contain when it relates to Section 83(1) (a). I may point out that the Representation of the People Act, 1951 (Act 43 of 1951) was amended by Act 27 of 1955, and their lordships of the Supreme Court were dealing with section 83 as it stood before the amendment, but the observations of their Lordships are of wider import and have full application in the present case also. The simple reason is that Act 27 of 1956 has not made any material change in Section 83. Clauses (a) and (c) of Sub-section (1) of the amended section 83 practically constitute Sub-section (1) of Section 83 as it stood before the amendment. Sub-section (3) of old section 83 is now incorporated in Sub-section (5) of Section 90, as amended, We are not concerned at present with the amendment of a pleading with respect to corrupt practices. The present case falls under Sub-section (1) (a) of Section 83, and the observations of their Lordships of the Supreme Court in the aforesaid case apply with equal force. Now, as pointed out by their Lordships of the Supreme Court in that case, Sections 81(1) and 83(1) are complied with, when the grounds on which the election is sought to be set aside are stated in the petition, those grounds being, as already stated, the matters mentioned in Section 100, sub-SECTIONS (1) and (2), Section 101 and Section 123, which is attracted by Section 100 (2) (b). If, therefore, the election of a returned candidate is challenged as void on account of the disqualitication attaching to him under Section 7(d) of the Act, all that the petitioner has to state in the petition is the said grounds. In the instant case, the petitioner has not only stated me grounds, as required by Section 83(1), but has also indicated with sufficient precision the nature of the contracts opposite party No. 1 has entered into with the State Government.
Mr. Singh for the petitioner candidly conceded that mere statement of the ground in the abstract will not constitute sufficient compliance with the requirement of Section 83(1), and he said that the nature of the disqualification should also be indicated concisely and also precisely. The petitioner, in addition to the statement of the disqualification, has also given fuller particulars of the contracts held by opposite party No. 1, in paragraphs 10 and 11 of the election petition. In paragraph 12 he has stated that opposite party No. 1 himself and through his firm has got subsisting contracts for mosaic flooring. The nature of the contracts is indicated, but what are the instances of the contracts have not been given; and similarly in paragraph 13 he has stated that opposite party No. 1 has got several other subsisting contracts with the Government of Bihar for mosaic flooring and for sanitary fittings. But what are those other subsisting contracts have not been specified. By the amendment the petitioner seeks now to specify in detail the various contracts which opposite party No. 1 has with the Government of Bihar The main ground of attack is, as stated in the petition that opposite party No. 1 has subsisting contracts with the State of Bihar for mosaic flooring and sanitary fitting, and this, in my opinion, is sufficient compliance with the requirements of Section 83(1) of the Act. Even if me various contracts are not fully described, the petitioner would have been entitled at the time of hearing to adudce evidence to show what those contracts were. By the amendment, he only wants to add to the election petition various instances of contract, such as, mosaic flooring and sanitary fittings. Therefore, by this amendment no new ground, nor any new material fact is sought to be introduced In the election petition. The ground stated therein stands, and that is the ground on which the election is challenged as void. The instances which are sought to be incorporated in the election petition are only clarificatory of the said contracts, and I do not find that any legitimate exception can be taken to such 'amendment, if the new instances would have constituted new ground or new material fact, then the amendment was not in order, because the amendment petition was filed after the period of limitation presribed by section 81.
Here, however, the amendment only tends to specify and particularise what is already stated in the election petition. Rule 5 of Order VI of the Code of Civil Procedure provides that a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just. Therefore, where the amendment does not operate prejudice to the opposite side, the court may order furnishing of further and better particulars of any matter stated in any pleading. It is well to remember that these particular instances were given by the petitioner on the application of opposite party No. 1 and under the orders of the Court, and opposite party No. 1 is not taken by surprise later by this amendment. He is afforded ample opportunity to ensure a fair trial at the time or hearing. I see, therefore, no good ground for rejection of the amendment in the particular case.
8. In support of his contention Mr. Datta referred to a Bench decision of the Madras High Court in Muthiah Chettiar v. Saw Ganesan, AIR 1958 Mad 187. This case, in my opinion is sufficiently distinguishable. In that case, the election petition did not contain any general statement which could cover contracts other than the one specified therein. In the election petition as originally filed the respondent of that case had alleged that the petitioner was disqualified for being chosen to fill a seat by reason of his interest in a contract falling within the classes specified in Section 7(d) of the Act. The election petition had specified the contract and stated it as a ground for disqualification. By the amendment a set of entirely new contracts, unrelated to the one specified in the original petition, was put forward as further grounds for disqualification. In those circumstances, their Lordships said that the addition of entirely new contracts unrelated to the one mentioned in the petition constituted a fresh material fact, rather a new ground, and, therefore, the petition having been presented beyond the period of limitation was not permissible in law.
In the present case, in paragraphs 12 and 13 the contracts have not been specified. Only the nature of the contracts which opposite party No. 1 has entered into with the State Government has been given. In such circumstances, there is no bar to furnishing of further and better particulars of the contracts stated therein, and, in my opinion, their Lordships of the Madras High Court do not lay down a general proposition that in all cases where the contracts have not been specified, but only the nature of the contracts has been given, the instances of those contracts by way of further particulars cannot be added to the petition by amendment after the period of limitation.
As a matter of fact, relying on the observations of their Lordships of the Supreme Court in the case of Harish Chandra Bajpai, (S) AIR 1957 SC 444 aforesaid, they have laid down that where by an amendment, a party applying for it, seeks to allege a new fact and not merely to explain or clarify a material fact already stated -- as a ground for setting aside the election the same cannot be allowed if the application is made after the period prescribed by Section 81 for filing a petition had-elapsed. Therefore, this decision is not an authority for the general proposition that instances of the contract where the nature of the contract is fully given in the election petition cannot be permitted to be incorporated in the pleadings.
9. It will thus appear that the effect of the proposed amendment is not to permit a new ground or any material fact or charge to he raised, and the Election Tribunal was in error when he said that to allow the amendment would alter the character of the petition as a whole as stated before, what is asked by way of amendment is only a clarification of the ground already stated with precision in the election petition. In my opinion, the amendment was legally permissible and should have been allowed.
10. Mr. Datta next contended that a person incurs disqualification envisaged in Section 7(d) of the Act, only when he enters into a contract with the appropriate Government, in this case the State of Bihar, and that some of the contracts have been entered into with authorities other than the State Government. He pointed out that in any event those contracts should not form part of the amendment. This contention is no doubt correct. He referred in this connection to the addition of "and dado work in Russian Hostel belonging to Indian Refinery" in paragraph 12. He said that the Indian Refinery at Baraum was the concern of the Central Government.
Mr. Singh pointed out, and I think rightly, that there was no evidence that the State Government had no interest or share in the Indian Refinery, it is really a question of evidence, and this amendment cannot be disallowed simply on the supposition that the Indian Refinery is the sole concern of the Central Government. If from the evidence it appears that the State Government has absolutely no concern with the Indian Refinery, then this will not be taken into consideration. I may mention in this connection that it was conceded at the Bar that 'dado' work is also a mosaic work on the lower portion of the wall. Learned counsel further referred to items (6) and (9) of the amendment proposed to be added in paragraph 13. Item (6) relates to the plumbing work under the joint Water Board, Patna, This is a work under the Patna Municipal Corporation and, therefore, it cannot be regarded as a contract with the State Government Item (9) admittedly relates to a contract with the Central Government. Therefore, these two items, namely, items (6) and (9), will not be introduced in paragraph 13. Subject to this, paragraph 13 will be amended, as grayed for.
11. Lastly, Mr. Dutta contended that the amendment of the pleadings is in the discretion of the Court or the Tribunal, and this Court should not interfere with the discretion properly exercised by the Tribunal. In the case of S. M. Banerji, AIR 1960 SC 368, their Lordships have laid down that, "an appellate Court has no doubt an unquestioned right to review or modify the order made by a subordinate Court; but it is undesirable to do so when the subordinate Court made an order in the exercise of its discretion without exceeding the limits of its power, unless it acted perversely or unless the view taken by it is clearly wrong". In this case, the Election Tribunal has clearly exceeded the limits of his power and did not fully understand the powers of amendment of the pleadings vested in him under Section 90 of the Act, and the reasons given by him are wholly without justification. He is wrong in holding that the instances of the contract cannot be added to the election petition. This is contrary to what has been laid down by the Supreme Court in the case of Harish Chandra Bajpai, (S) AIR 1957 SC 444 aforesaid. Therefore, the Election Tribunal has not exercised properly and legally the discretion vested in him, and the view taken is perverse. Accordingly, in the circumstances of the case, I am justified in interfering with the order of the Tribunal which in my considered judgment, cannot be maintained. Accordingly, I would allow the application and direct that, subject to the observations afroesaid, the amendment be made.
Miscellaneous judicial case No. 886 of 1962.
12. By his petition dated 27th July, 1962, the petitioner sought leave of the Tribunal to deliver the following interrogatories for the examination of opposite party no. 1;
"1. Is there any partnership firm known as 'Patna Flooring Company'?
2. Are you a partner or proprietor of M/s Patna Flooring Company, Patna?
3. What contracts were taken by the Patna Flooring Company from Jan. 1960 to Jan. 1962 from the Govt. of the State of Bihar?
4. Did the Patna Flooring Company ever take any contract for mosaic and did work in Rajendra Surgical Wards, Patna? If so, when?
5. Whether any contract by the Patna Flooring Company was subsisting with State of Bihar in Jan. 1962?"
On 30th July, 1962, opposite party No. 1 raised objection to the exhibition of interrogatories. By his order dated 31st July, 1962, the Election Tribunal refused to give leave to administer the interrogatories on two grounds, first, that whether or not opposite party No. 1 had entered into contracts with the State of Bihar is a matter to be pleaded by the petitioner himself and it cannot form the subject-matter of the interrogatories, and, second, that there is no provision in law by which opposite party No. 1 could be asked to answer the interrogatories. Both these grounds are wholly erroneous and are obviously based upon utter misconception of law. The Election Tribunal was wrong in saying that there was no provision in law for administering interrogatories in such cases. It is unfortunate that Sections 90 and 92 of the Act were not brought to his notice.
Section 90 lays down the general provision that the trial of the election petition shall be held in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Section 92 lays down particularly the powers of the Election Tribunal in respect of the matters enumerated therein. One of the matters Is contained in Clause (a), namely discovery and inspection. The Tribunal, therefore, has ample power to direct discovery and inspection in the matter of an election petition. The Tribunal was, therefore, wrong in saying that there was no provision for serving interrogatories on the opposite party. What is the scope and ambit of the interrogatories is a different question altogether. Rule 1 of Order XI provides for discovery by interrogatories. It lays down:
"In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more or such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer; Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose; provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness."
Rule 2 provides as follows;
"On an application for leave to deliver interrogatories the particular interrogatories proposed to be delivered shall be submitted to the Court. In deciding upon such application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court snail consider necessary either for disposing fairly of the suit or for saving costs."
Rule 3 is in the following terms:
"In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety or exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the Court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexaticously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto "shall be paid in any event by the party in fault."
Rule 6 provides for objections to interrogatories by answer. It runs as follows:
"Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at mat stage, or on any other ground, may be taken in the affidavit in answer."
Rule 7 empowers the Court to set aside and strike out the interrogatories in appropriate cases. It lays down as follows:
"Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiousiy or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the Interrogatories."
It will appear from the above that the main object of the interrogatories is to ensure fair and speedier disposal of the suit and to save unnecessary costs. The aforesaid rules provide the extent and limitation of the interrogatories. The interrogatories must relate to any matters in question, not necessarily to matters directly in issue, and should tend to ensure speedier disposal and minimisation or costs. The other limitations which emerge from these rules are that (1) they should not be exhibited unreasonably, vexatiousiy, or at improper length; (2) they should not be scandalous or irrelevant or not exhibited bona fide for the purpose of the suit; and (3) they are not unreasonable, vexatious, prolix, oppressive, unnecessary or scandalous Within these limitations the Court has ample power to order amendment of the pleadings (sic). These provisions are based upon the principles obtaining in the English Courts.
Mr. Datta objected to the interrogatories on two grounds," first, that the existence of the contracts which form the subject-matter of the interrogatories has already been denied in the pleadings, and, second, that the interrogatories should not be directed to obtaining admission from the other side. Both these grounds are, in my opinion, unsubstantial. In Attorney-General v. Gaskill, (1882) 20 Ch. D. 519, Cotton, L. J., made the following significant observations:
".....a party has a right to interrogate with a view to obtaining an admission from his opponent of everything which is material and relevant to the issue raised on the pleadings. It was said in argument that it is not discovery where the plaintiff himself already knows the fact, but that is a mere play on the word 'discovery'. Discovery is not limited to giving the plaintiff a knowledge of that which he does not already know, but includes the getting an admission of anything which he has to prove on any issue which is raised between him and the Defendant, to say that the pleadings have raised the issues, and that therefore the interrogatories should not be allowed is an entire fallacy. The object of the pleadings is to ascertain what the issues are, the object of interrogatories is not to learn what the issues are, but to see whether the party who interrogates cannot obtain an admission from his opponent which will make the burden of proof easier than it otherwise would have been. As regards the interrogatories relative to the right of way they clearly are proper interrogatories. The object is to get from the Defendant in this case an admission of that which no doubt he denied by his defence, but not on oath, viz. a fact supposed to be within his knowledge that there is a right of way, and an admission of it by him must obviously save an enormous amount of expense at the trial."
In the case the defendant was sought to be restrained from building across a public footpath. The defendant, by his defence, denied the existence of any public right of way over the ground. The plaintiffs delivered interrogatories as to the existence of a public right of way over the land. It was laid down in that case that the defendant was bound to answer as to the existence of the right of way, for that one object of interrogatories is to enable a party to obtain admission from the other party, and so to relieve himself of the necessity of adducing evidence. Therefore, the denial in the pleadings of the fact that the defendant was called upon to admit what plaintiff, had to prove is no ground for refusing to administer the interrogatories. So far as the interrogatories are restricted to matters in question, there is, in my opinion, absolutely no justification for refusing to deliver the interrogatories. It is true that the interrogatories shall not be delivered for obtaining evidence or for making out a case. As laid down in Dinajpur Trading and Banking Co. Ltd. v. Probhash Chandra Sen, AIR 1933 Cal 151, a party is not entitled to administer interrogatories for obtaining discovery of facts which constitute exclusively the evidence of his adversary's case.
Similarly, as laid down in Bhagwandas Parashram v. Borjorji Ruttonji, ILR 37 Bom 347, the interrogatories will not be allowed when they are sought to be administered obviously for the purpose of fishing out a case. Of course, interrogatories cannot be allowed to be served when they only seem to elicit whether it is a fact that certain allegations made in statement of claim are true and whether it is not a fact that certain statements in the defence are true. The object of the interrogatories is to ascertain the truth or falsehood of the allegations made in the petition (see Johns v. James, (1879) 13 Ch. D. 370). After a review of the various decisions, A. N. Kay, J., has laid down in Jamaitrai v. Motilal Chamaria, AIR 1960 Cal 536 that interrogatories should be confined to obtaining from the party interrogated, admissions of tact which it is necessary for the party interrogating to prove in order to establish his case; and with this observation of his Lordship I respectfully agree.
Bearing these principles in mind, it will appear that the interrogatories sought to be exhibited are wholly innocuous and are confined to the material facts in issue, namely, whether or not opposite party No. 1 has entered into contracts with the State Government, all that is sought to ask from opposite party No. 1 is the nature of those contracts and the period within which they were entered into. It will be well to remember that in order to establish the disqualification of opposite party No. 1 the petitioner has to prove that the former has entered into certain contracts with the State Government and those contracts were subsisting on the date of the election. If opposite party No. 1 admits the existence or those contracts, the petitioner will indeed be relieved or adducing a mass of evidence in support of the various contracts alleged therein. The interrogatories, therefore, are designed to ensure fair and speedier trial and save much of the harassment and cost to the parties. Restricted as they are to the exact matters in question, there should be no exception to the administering of these interrogatories to the other side. If, I have no doubt, the Election Tribunal, had kept these legal principles in view, he would have surely allowed the delivery of the interrogatories to opposite party No. 1.
It is true that the delivery of the interrogatories is in the discretion of the Tribunal, but as will appear from the above the refusal proceeded from a misconception of the law and the power vested in the Tribunal under the Act, and it seems that the discretion was not properly exercised and was against the provisions of law. This Court will, therefore, be justified in interfering with the order of the Tribunal and directing the service of the interrogatories on the other side.
13. I would, therefore, allow this application and direct that the interrogatories be administered to opposite party No. 1 for answer by affidavit.
14. The petitioner will be entitled to costs in both these applications from opposite party No. 1. A consolidated hearing fee is assessed at Rs. 64/-.
Ramaratna Singh, J.
15. I agree.