Kailash Narayan vs Namdar and Others

Doabia, J.

An election-petition preferred by the petitioner challenging the election conducted under the Madhya Pradesh Panchyat Raj Adhiniyam. 1993 (here in alter referred to as the Adhiniyam). stand dismissed. The basis for dismissal is that full security amount was not deposited, at the time of presentation of the petition. The petitioner submits that initially a sum of Rs. 50/- was deposited. He further submit that later on this deficiency was made good and a further sum of Rs. 2,00 /- was deposited. He submits that as the deficiency was made during the period of limitation, therefore, the petition could not be dismissed. The relevant rules which deal with deposit of security and presentation of election petition be noticed. There are rules 3, 7, and 8, of the Madhya Pradesh Panchayats (Election Petition Corrupt Practices and Disqualification for Membership) Rules, 1991, reads as under: -

3 Presentation of Elections Petitions : -

(i) The election petition shall be presented to the prescribed authority during the office hours by the person making the petition, or by a person authorised, in writing, in this behalf by the person making the petition within 30 days from the date on which the election of co-option in question was notified,

(ii) However, election petition shall be accomopanied by as many copies there of as there are respondents mentioned in the petition another such copies shall be attested by the petitioner under his own signature to be true copy of the petition.

Deposit of Security-At the time of presentation of an election petition the petitioner shall deposit with the prescribed authority a sum of rupees two hundred and fifty as security for cost of petition. Where election or co-option of more than one candidate is called in question, separate deposit of an equivalent amount shall be required in respect of the such returned candidate.

Procedure on receiving petition - If the provisions of rule 3 or rule 4 or rule 7 have not been complied with, the prescribed authority shall dismiss the petition :

Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard.

A perusal of rule 8 indicates that election petition is to be presented complete in all respects. Thus requirement of deposit of security is mandatory. There is no dispute with regard to this.

As a matter of fact this was so held by this Court in Mangilal v. S.D.O. Chanchoda & others. Writ Petition No. 386 of 1995 decided on 28.3.1995.

The argument in the present petition is that deficient security amount was deposited within the period of limitation and therefore the Election petition should he deemed to have been properly presented.

The learned counsel for the respondents has argued that unless and until there is valid presentation in terms of rule 8, the election has to be rejected at the very threshold. According to him, the prescribed authority is not supposed to wait till the period of limitation is over.

I am of the view the that correct interpretation is that if the default is made good within the period of limitation then the presentation of the Election petition would he valid presentation and it would he deemed to have been presented on the date on which the default is made good. In the view, I have taken. I am fortified by the decision given by the Supreme Court reported as Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, . In the above case, some amendments were sought to be incorporated. Their Lordships of the Supreme Court were of the view that the only impediment in the matter of allowing the amendment would be law of limitation. If a right comes to vest in the other side then this right cannot be taken way. It was observed as under.

We think that the correct principles were enunciated by Match for J. in his judgment in the same case, viz. 33, Bom. 644 at p. 655 (c), when he said at pp. 649, 650.

All amendments ought to be allowed which satisfy the two conditions (a) of working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties.....but I retrain from citing further authorities, as in my opinion. They all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him a injury which could not he compensated in costs. It is merely a particular case of this general rule that where a plaintiff seek to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had be come barred by limitation, the amendment must be refused to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same; can the amendment be allowed without injustice to the other side or can it not?" It was further said :

The same principles, we hold, should apply in the present case, The amendments do not really introduce a new case, and the application tiled by the appellant himself showed that he was not taken by surprise, nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation.

In the present case the position is the same. Shortage in deposit was made good within the period of limitation. The decision arrived at by the election Court in dismissing the petition on the ground that sum of Rs. 250/- was not deposited as on the date it was presented is not correct. This deficiency can be made good even after the date of presentation but it should be done within the period of limitation.

Same view was expressed in Harish Chandra Bajpai Vs. Triloki Singh, in para 22 and 23, it was observed :

On these authorities, it is contended for the appellants that even if the Tribunal is held to possess a power to order amendments generally under 0.6. R. 17, an order under that rule cannot he made when a new ground or charge is raised, if the application is made beyond the period of limitation prescribed for Tiling election petitions. The Tribunal sought to get over this difficulty by relying on the principle well established with reference to amendments under 0.6. R. 17 that fact that a suit on the claim sought to be raised would be barred on the date of the application would be a material elemeant in deciding whether it should be allowed or not but would not affect the jurisdiction of the court to grant it in exceptional circumstances as laid down in Charan Das v. Amir Khan, 47, fad. App. 255 : (AIR 1921 P.C. 50) (L). But this is to ignore the restriction imposed by s. 90 (2) if that the procedure of the court under the CPC in which 0.6, R. 17 is comprised is to apply subject to the provisions of the Act and the rules, and there being no power conferred on the Tribunal to extend the period of limitation prescribed, an order of amendment permitting a new ground to be raised beyond the time limited by S. 81 and R. 119 must contravene those provisions and is, in consequence, beyond the ambit of authority conferred by S. 90 (2). We are accordingly of opinion that the contention of the appellant on this point is well - founded, and must be accepted as correct.

The result of the foregoing discussion may thus be summed up:

(1) Under S. 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 0.6, R. 17 to order amendment of a petition, but that power cannot be exercised so as to permit new grougds 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 he barred.

Thus a defect can be cured and if this is done within the period of limitation then no exception can be taken to the same.

The date of presentation would be the date when the default is made. This petition is allowed. The election Court would now proceed to decide the matter on merits. The parties to appear before the election Court on 30th of October. 1995.