Sushila Mallik Vs Banita Mallik

The Petitioner is the Respondent No.1 in Election Petition No.01 of 2022 on the file of the learned Civil Judge (Jr. Division), Surada instituted by the Opposite Party assailing his election as Sarpanch inter alia on the ground that the Petitioner has incurred the disqualification of having

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more than two children by the cut-off date i.e., 21.04.1995, in terms of Section 25(1)(v) of Orissa Grama Panchayat Act 1964. Paragraph-5 & 6 of the Election Petition reads thus:-

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“5. That,- as prescribed U/s. 25 1 (V) of the said Act the respondent No.1 disqualified to contest Sarpanch as her second & third child was born on 02.02.2002 and 28.07.2007 respectively i.e. after cut of date i.e. 21.04.1995.

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That, the date of birth of the second and third children, were born after cut of date as recorded in the School Register of Barahi U.P. School, Sidhapur and Govt. Nodal High School, Gouda Gotha respectively as detail given in the schedule below.

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Sl.No.	Name of the Child	Name of Parents	Date of Birth
1.	Sunita Mallik	Magi Malik(Father)	02.02.2002
	(Second child)	Susila Mailik (Mother)
2.	Mamata Malik	Magi Malik (Father)	28.07.2007
	(Third Child)	Susila Mailik (Mother)

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After filing of the written statement an amendment was sought for by the Election Petitioner-Opposite Party No.1 for introducing details of the first child. For convenience of reference, relevant extract of the Amendment Petition is extracted hereunder:-

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“4. That, the required amendment is as follows in 5th & 6th paragraph.

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5^th Paragraph:-

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That as prescribed U/s 25(1)(v) of the said act the respondent No.1 disqualified to contest Sarapancha as her first child born on 05/06/1990. Second & Third child born on 02/02/2002 & 28/07/2007 respectively i.e. after cut of date i.e. 21/04/1995.

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6^th Paragraph:-

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That, the date of birth of the first child i.e. Banita Mallik is 05.06.1990 as recorded in Govt. Primary School, Kalakhadi, Ganjam, the date of birth of the second and third children, were born after cut of date as recorded in the School Register of Barahi U.P.School, Sidhapur and Govt.Nodal High School, Goudagotha respectively as given details in the schedule below…………..”

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An objection to the said effect was filed by the present Petitioner-the returned candidate, inter alia, on the ground that the same will change the nature and character of the lis.

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Since the learned Court in seisin allowed the amendment, the Petitioner initially challenged the same by filing W.P.(C) No. 31650 of 2022 and this Court by order dated 29.04.2025, keeping in view that the Petitioner has a statutory remedy of appeal, directed him to prefer an appeal and accordingly the Petitioner filed Election Appeal No. 02 of 2025 before the learned Additional District Judge, Bhanjanagar. The judgment dated

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27.11.2025 passed by the Appellate Court, concurring with the finding of the Trial Court and allowing the amendment, is assailed in the present writ petition.

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It is the submission of the learned counsel for the Petitioner that allowing the amendment after filing of the written statement militates against the schematic arrangement of the Grama Panchayat Act relating to the Election Petition. And, in this context attention of this Court is drawn to Section 33 of the Orissa Grama Panchayat Act, 1964.

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7-A. It is his further submission that, by way of amendment, the details which were not within the knowledge of the Petitioner at the time of filing of the Election Petition are sought to be introduced, which according to the learned counsel for the Petitioner ought not to have been allowed and which changes the nature and character of the lis and even otherwise is not permissible.

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7-B. It is stated that the learned Trial Court while allowing the amendment has not given any finding regarding the change of nature and character of the litigation which was specifically pleaded by the Petitioner.

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7-C. It is stated that so far as the Appellate Court is concerned, it has mechanically exercised its jurisdiction. Hence, the matter merits consideration of this Court.

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Learned counsel for the Opposite Party- the Election Petitioner submits that there is no infirmity in the impugned orders and rebutting the contention of the learned counsel for the Petitioner regarding the finding of the learned Trial Court, submits that the learned Trial Court, though in so many words has not expressed any view regarding the claim that the amendment will change the nature and character of the litigation, has held that it is necessary for just and effective adjudication. Referring to the pleadings and paragraphs of the Election Petition quoted hereinabove, it is submitted that the pleadings in substance were already there and the amendments sought only to explain the same with regard to the first child. Hence, by no stretch of imagination it can be said to have changed the nature and character of the lis.

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8-A. The attention of this Court has also been drawn to the finding of the learned Appellate Court at page-10 of the said order and for convenience the said finding is extracted hereunder:-

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“The amendment sought for by the petitioner/respondent no.1 in the present case is to further explain her pleading by mentioning the name, date of birth and the school of the first child of the OP No.1/appellant, the same is bona fide and necessary for proper and effective adjudication of the election petition, although filed after framing of issues. Such amendment will also no way change the nature and character of the proceeding.

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That apart accepting the amendment already allowed by the trial court, in the meantime both parties have adduced their respective evidence and the proceeding before the trial court is now at the stage of argument. No fruitful purpose will be served by disallowing the amendment at this stage, rather it will further linger the election dispute pending since 2022.”

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(Emphasized)

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From the order of the learned Appellate Court it is evident that both sides have led evidence in the case at hand in support of the pleading post amendment and the matter is at the stage of argument.

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It is submitted by the learned counsel for the Petitioner that since manifest error has been committed by the Courts in seisin, merely because the matter has proceeded and is pending for argument ought not to deter this Court from deciding the validity of the amendment.

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To fortify his submission, learned counsel for the Petitioner relied on the judgment of this Court dated 25.08.2022 passed in W.P.(C) No.19989 of 2022.

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On a bare perusal of the factual matrix of the case at hand, this Court is of the considered view that the case law cited does not apply to the facts of the present case.

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Considering the rival submissions, this Court is persuaded to hold that the amendment as sought for is explanatory, as rightly pointed out, since the pleadings in substance were already there. Hence, this Court does not find any infirmity in the appreciation of the materials on record by the learned Courts below in allowing the amendment so as to warrant interference by this Court.

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