Munesh Vs Prescribed Authority / Sub Divisional Magistrate, Sadar, Moradabad and 14 Others

Court No. - 34

Case :- WRIT - C No. - 1072 of 2023

Petitioner :- Munesh Respondent :- Prescribed Authority / Sub Divisional Magistrate, Sadar, Moradabad And 14 Others Counsel for Petitioner :- Divakar Rai Sharma,Ajeet Sharma Counsel for Respondent :- C.S.C.,Dharm Vir Jaiswal,Harsh Vikram

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Hon'ble Saurabh Shyam Shamshery,J.

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Heard Sri Ajeet Sharma, learned counsel for petitioner and Sri Dharm Vir Jaiswal, learned counsel for respondents.

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Issue before this Court is rejection of amendment at the instance of respondents who is a returned candidate.

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Learned counsel for petitioner submits that Election Tribunal has rejected the application for amendment mainly on two grounds that there was no provision to amend the pleadings in the election petition as well as it was a belated application and was filed only with object to delay the proceedings. He further submits that Rule 4 of U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 provides no bar for amendment in pleadings, therefore, amendment can be carried out in terms of provisions of Cr.P.C. He further submits that immediately after filing of written statement, an amendment application was moved, therefore, the finding that it was only to delay the proceedings was erroneous.

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Per contra, learned counsel for respondents submits that amendment was filed with delay with an object to delay the proceedings and by way of amendment, nature of written statement is also likely to be changed.

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Heard learned counsel for parties and perused the record.

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Rule 4 of U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 specifically provides that election petition shall be tried by the Sub Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure 1908, for the trial of suits and there is no bar that amendment cannot be carried out in any situation, therefore, proposed amendments cannot be rejected being barred in a election petition.

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Learned counsel for petitioner has not been able to indicate the date of filing of written statement as well as in the copy thereof no date is mentioned, therefore, application for amendment filed on 5.9.2022 cannot be said to be filed immediately after filing of written statement.

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In order to consider the submissions of learned counsel for respondents that proposed amendment if allowed will be creating a new case on behalf of respondent i.e returned candidate in the election petition, I have carefully perused the application. Amendment was sought for inserting as many as 10 paragraphs. Since in original reply, no plea was taken except bald denial, therefore, proposed amendments would change the entire nature of reply.

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The Supreme Court in Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited & Anr , 2022 SCC OnLine SC 1128, has held that where the amendment is sought before commencement of trial, the Court is required to be liberal in its approach, and delay in applying for amendment alone is not a ground to disallow the prayer, however, prayer for amendment can be disallowed, when amendment changes the nature of reply or suit, amendment is malafide or by amendment other side loses a valid defence.

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In present case, as referred above, by way of amendments, entire reply is sought to be amended by inserting 10 paragraphs on merit, thus it would change entire nature of reply as well as other side would also loose a valid defence, therefore, application was rightly rejected.

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It is also to take note that there is a general mandamus issued by this Court that all election petitions be disposed of within a period of six months and since in the present case, election petition was filed on 22.6.2022, therefore, it ought to have been decided within a period of six months, thus the application was filed to delay the proceedings.

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Petitioner has not made out any case of amendment, therefore, I do not find any ground to interfere with the impugned order.

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Writ petition is accordingly dismissed.

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Order Date :- 9.2.2023 SB

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Digitally signed by :- SANDEEP BHATTACHARYA High Court of Judicature at Allahabad

Munesh v. Prescribed Authority / Sub Divisional Magistrate, Sadar, Moradabad and 14 Others

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Munesh v. Prescribed Authority / Sub Divisional Magistrate, Sadar, Moradabad and 14 Others

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