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O. 6 R. 17 CPC | Amendment To Election Petition Can't Be Permitted To Cure 'Inherent Defect' After Expiry Of Limitation Period: Orissa High Court

Jyoti Prakash Dutta
5 Sep 2022 5:51 AM GMT
O. 6 R. 17 CPC | Amendment To Election Petition Cant Be Permitted To Cure Inherent Defect After Expiry Of Limitation Period: Orissa High Court
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The Orissa High Court held that an amendment application under Order 6, Rule 17 of the Code of Civil Procedure, 1908 cannot be allowed to cure some inherent defects in an election petition, changing its character and nature, after the expiry of the prescribed limitation period. A Single Bench of Justice Biswanath Rath observed, "For the opinion of this Court, the mistake appears to...

The Orissa High Court held that an amendment application under Order 6, Rule 17 of the Code of Civil Procedure, 1908 cannot be allowed to cure some inherent defects in an election petition, changing its character and nature, after the expiry of the prescribed limitation period.

A Single Bench of Justice Biswanath Rath observed,

"For the opinion of this Court, the mistake appears to be inherent mistake by allowing change in the village names after election dispute period is over which will be amounting to extending filing of election dispute beyond the time stipulation prescribed in the Grama Panchayat Election Rules. Finding the election dispute involved inherent mistake and amendment being brought after 15 days restriction from filing the election dispute of this nature is impermissible in the eye of law."

Issue for Consideration:

Whether amendment application can be allowed under the provision of Order 6 Rule 17, CPC in the election petition filed under the Odisha Gram Panchayat Act, having regard for the nature of amendment sought, which attempts to correct an inherent mistake after the expiry of the prescribed limitation period?

Contentions of the Petitioner:

Mr. M.K. Panda, counsel for the petitioner, contended that once there is an inherent mistake involving an election dispute inasmuch as claiming relief involving particular villages under Panchayat, no amendment can be entertained to replace the villages under the said Panchayat. He further pointed out that the pleading discloses that opposite party no. 1 pressed that 6 panchayat samiti members of some villages, i.e., Chandanpur Bari, Madhusudanpur, Ratalanga, Arangabad & Amathpur G.P. are incapable to cast their votes.

However, by filing the amendment application, the petitioner sought an amendment to be made to the election petition for replacing names of the villages. Hence, he argued that such a drastic change will modify the nature and character of the dispute and hence, impermissible.

Contentions of the Respondents:

Mr. A. Rath, counsel appearing for the opposite party, submitted that the proposed amendment is not a 'material defect' which shall prejudice the petitioner in the event such defect is cured. He also contended that unless the proposed amendment is allowed, the election petition will lose its value and will culminate in an automatic dismissal.

He also pointed out that the petitioner was in doubt with regard to the name of the villages mentioned and he was still waiting for the correct information under the R.T.I. Act provisions. Thus, he contended that the amendment was possible after the information was provided under the R.T.I. application.

Court's Observations:

The Court observed, the mistake committed through the pleading cannot be considered to be a simple 'typographical error'. It noted, it is unbelievable that the opposite party alleged malfunctioning through an election petition giving wrong description of the villages. It held, in the event the opposite party was unaware of names of villages and he was waiting to know the names through an RTI reply, nothing would have prevented him from abstaining to disclose the names of villages at that point of time and to simply leave a statement that his right to give the names of villages will be effective at the subsequent stage, depending upon the RTI reply.

The Court placed reliance on Harish Chandra Bajpai v. Triloki Singh, AIR 1957 SC 454, wherein the Apex Court held,

"…its powers to amend a petition under Order VI, Rule 17 of Code of Civil Procedure could not be exercised so as to permit new grounds of charges to be raised or the character of the petition to be so altered so as to make it in substance and a new petition, when a fresh petition on those allegations would be time barred".

The Court was of the opinion that the above point of law squarely applies to the case in hand. Accordingly, it was held that the amendment to the election petition at this stage to cure an inherent defect cannot be allowed.

Case Title: Ashok Kumar Gedi v. Jyotrimayee Behera & Ors.

Citation :2022 LiveLaw (Ori) 132

Case No.: W.P.(C) No. 19989 of 2022

Judgment Dated: 25th August 2022

Coram: Biswanath Rath, J.

Counsel for the Petitioner: Mr. M.K. Panda, Mr. S.R. Nayak, Mr. S.S. Chhualsingh & Mr. M. Mohanty, Advocates.

Counsel for the Respondents: Mr.A. Rath & S. Rath, Advocates (For O.P.No.1) Mr. U.K. Sahoo, Addl. Standing Counsel.

Citation:

Click Here To Read/Download Judgment


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