Geeta Devi vs District Judge, Gorakhpur and another

Rakesh Tiwari, J.—Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Nagendra Nath Mishra, Advocate, learned Standing Counsel for respondent No. 1, Sri Gajendra Pratap, learned Counsel representing respondent No. 2 and perked the records.

This writ petition has been filed challenging the validity and correctness of the orders dated 21.8.2006 and 31.10.2008 passed by the District Judge, Gorakhpur, which have been appended as Annexures8 and 9 to the writ petition.

By order dated 21.8.2006 the amendment application filed by the election petitioner has been allowed by the Court below by imposing cost of Rs. 100/and by order dated 31.10.2008 the District Judge, Gorakhpur has decided issue Nos. 5 and 7 against the petitioner.

The facts of the case in nutshell are that Smt. Vidya Devi wife of Sri Hari Prasad (respondent No. 2 in this writ petition) filed Election Petition No. 6 of 2006, Smt. Vidya Devi v. Geeta and others before the District Judge, Gorakhpur on 4.11.2006 praying for a relief of cancellation of the result of election declared in favour of the petitioner on 6.11.2006. In the election held on 3.11.2006, the result of which was declared on 6.11.2006 as stated above in which Smt. Geeta Devi was declared as successful candidate for the post of Chairman of Nagar Panchayat, Barahalganj, District Gorakhpur.

The petitioner in paragraph 12 of her written statement dated 8.3.2007 had taken a specific plea that the election petition was not duly verified in accordance with law as such it was not maintainable. Paragraph 12 of the written statement of the petitioner is said to have been specifically denied by contesting respondent No. 2 in her replication filed on 4.6.2007.

On the basis of the pleadings of the parties 6 issues were framed by the Court below on 5.9.2007. Another issue No. 7 was also framed on 4.1.2008 after amendment in the election petition.

The aforesaid issues were heard on 23.7.2008 and the case was fixed for decision on the aforesaid issues on 2.8.2008.

Paper No. 47C an application dated 1.8.2008 was filed by respondent No. 2 praying to suspend passing of the order on 2.8.2008. The petitioner filed her objection against the aforesaid paper No. 47C on 7.8.2008. It appears that thereafter respondent No. 2 filed amendment application paper No. 49 Ka2 dated 6.8.2008 by which the amendment was sought in subparas Ka, Ga, Gha, Ang, Cha, Chha, Ja of paragraph 6 for deleting the word "Prarthini Ki Or Se" on behalf of the applicant in the aforesaid paragraphs and substitution be read as by the applicant. The paragraph No. 6 is as under:

Against amendment application the paper No. 49 Ka (2) dated 6.8.2008 the petitioner filed her objection.

The contention of learned Counsel for the petitioner is that the petitioner is aggrieved by the orders impugned aforesaid passed by the District Judge, Gorakhpur, who according to the petitioner, has without considering the contents of the objection filed by him, allowed the amendment application on payment of Rs. 100/ cost vide his order dated 4.9.2008 and further directed for hearing issue Nos. 5 and 7 on 4.9.2008.

The District Judge/Gorakhpur vide his order dated 31.10.2008 also decided issue Nos. 5 and 7 with the observation that election petition was duly verified accordance with law and is not liable to be dismissed under Order VII, Rule 11 of the Code of Civil Procedure. The order dated 31.10.2008 is as under:

The contention of Sri Ashok Khare, learned Senior Counsel appearing on behalf of the petitioner is that the petitioner had raised question of maintainability and verification of the election petition at the first available opportunity in her written statement which has not been specifically controverted in replication by respondent No. 2 after framing of issues on which arguments were concluded by the parties. The case was fixed on 2.8.2008 for pronouncement of orders /judgment in respect of issue Nos. 5 and 7 but respondent No. 2 only a day earlier i.e. 1.8.2008 sought adjournment and filed an amendment application as stated above in order to remove the defects in the election petition which has prejudiced to the petitioner and can not be compensated by cost.

Learned Counsel for the petitioner has urged that it is settled principle of law that amendment, which is barred by limitation can not defeat the right of the parties accrued in the special circumstances and that there being not even a whisper in the findings recorded by the Court below regarding any special circumstances, the impugned orders are bad and liable to be set aside.

It is stated that paragraphs 1 to 8 of the election petition were verified by Smt. Vidya Devi on the basis of personal knowledge and the averments made in these paragraphs clearly demonstrate that the allegations made therein were "on behalf of the election petitioner" and not "by the election petitioner" which has been sought to be rectified therein by the amendment application as such this clearly shows that the averments made in paragraphs 1 to 8 were not within the personal knowledge of the election petitioner, hence verification was incorrect.

The impugned order is also assailed on the ground that by allowing the aforesaid amendment application the Court below has allowed the lacunae in defective election petition to be filled up by respondent No. 2, which is not permissible according to strict rule of law applicable to election petition and that respondent No. 2 could not have allowed the amendment application filed beyond the period of limitation and that the impugned order has in fact prejudiced the petitioner and if respondent No. 2 is permitted to recall/withdrew her earlier admission the petitioner will be deprived of her rightful right.

The District Judge, Gorakhpur vide his order dated 1.8.2008 held that from perusal of the amendment application 49 Ka (2) it is clear that the said amendment application has been moved with object to remove state of confusion that wherever the words "on behalf of the" has been used means "by the election petitioner" that words "on behalf of the" means "by the petitioner". Thus the amendment does not change the facts or the nature of the suit. The Court below has rightly rejected the contention of the petitioner that if the amendment is allowed, it will affect the verification and her rights which has already accrued to him by the mistake in the aforesaid paragraph is misconceived as the petitioner for the reason has not sought any amendment in the verification clause itself. He has also noted that the election petition is at the primary stage itself as such the plea of the petitioner that any delay would be caused by this amendment is misconceived. The relevant extract of the finding on which reliance has been placed by Sri Ashok Khare, learned Senior Counsel for the petitioner is as under:

In so far as the order dated 31.10.2008 is concerned, the Court below has considered the grievance of the petitioner as to whether issue Nos. 5 and which have been framed regarding verification of the ejection petition in accordance with law and its affect and as to whether the election petition is liable to be rejected under Order VII. Rule 11, C.P.C. The Court below in operative portion of the order has concluded that in paragraph 6 and its subparagraphs read with paragraph 34 it has been alleged that at the time of counting 161 votes were found to be without signatures of the Presiding Officer, yet these votes were counted in favour of respondent No. 2 and that the allegations made in paragraph 6Ga regarding corrupt practices are sufficient cause for maintaining the election petition and therefore, the election petition was not liable to be rejected under Order VII, Rule 11, C.P.C. Thus issue Nos. 5 and 7 were decided in negative and against the petitioner. Referring to paragraph 34, Sri Ashok Khare, learned Senior Counsel for the petitioner has submitted that there is no such admission in paragraphs 34 and 35 of the reply of the petitioner. Paragraphs 34 and 35 are as under:

In rebuttal Sri Gajendra Prasad, learned Counsel for respondent No. 2 has submitted that the orders passed by the Court below are proper and justified in the facts and circumstances of the case. He further submits that neither the nature of the suit nor its facts were in any way affected by the said amendment as no amendment in the verification clauses has been sought by the petitioner. He has supported the order on the ground that "on behalf of the petitioner in fact means" by the petitioner" who has alleged corrupt practices against the petitioner in paragraph 6 Ka and Ga. In so far as admission in paragraph 34 is concerned, he has placed reliance upon Annexure4 to the writ petition which is the objection of the petitioner (respondent in the election petition) wherein it has been stated that by amendment earlier paragraph 34Ka has been added in which the admission of the petitioner regarding maintainability of the election petition on the basis of the allegations made in paragraph 6Ka and Ga is maintainable. Paragraph 5 is as under:

After hearing learned Counsel for the parties and on perusal of the record it appears that allegations of corrupt practices were already on record. Verification was not at all affected, rather amendment has been clarified and supported the verification. Verification was not defeated and whatever ambiguity or confusion was in paragraph 6 and its subclauses has been clarified by the amendment which do not change the nature of the suit or the facts of the case.

In so far as contention of rejection of plaint under Order VII, Rule 11, C.P.C. is concerned, it does not appear to be applicable in the facts and circumstances of the present case.

Order VII Rule 11 of the Code of Civil Procedure provides thus:

"11. Rejection of plaint.The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed as properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, stamp paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamppapers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."

The learned Counsel for the respondent has placed a copy of the order dated 10.9.2007 passed in Civil Misc. Writ Petition No. 43007 of 2007, Smt. Vidya v. State of U.P. and others, before this Court wherein the High Court directed the Court below to complete the proceedings within a period of one year from the date of production of a certified copy of the order. It appears that the petitioner wants to delay the matter. Once the Court has passed the order for deciding the matter within a time bound frame. A fresh petition on a mere technicality which is not fatal to the election petition should not be entertained.

In my opinion, a person who is democratically elected should vacate office by democratic procecdure. If his election of the elected Pradhan is challenged on allegations of wrong counting of votes or on the basis of corrupt practices the Court should not reject the amendment application on a mere technicality which do not affect the nature of the suit and facts alleged therein.

On a meaningful reading of the plaint it is found that it is not vexatious, meritless and discloses the plaintiff''s right hence it has rightly been allowed for it shows that the cause of action upon which the plaint is based. The fact that cause of action averred in paragraphs 6Ka and 6Ga is sufficient for maintaining election petition is also admitted by the petitioner in paragraph 5 of the election petition. In my opinion, the plaint discloses cause of action and the Court below has rightly allowed the amendment application in this regard.

For all the reasons slated "hove, the writ petition is dismissed. No order as to costs.