Najir Hussain vs Nurul Huda And Ors

1) Heard Mr. M.U. Mahmud, learned counsel for the applicant (i.e. the Election Petitioner) and Mr. R.P. Sharma, learned senior counsel, assisted by

Mr. S.P. Chetry, learned counsel for the respondent no. 1 (i.e. the returned candidate).

2) The applicant herein is the election petitioner in the connected election petition and the opposite party, who is the returned candidate, is arrayed as

respondent no. 1 therein. For the sake of clarity and convenience, in this order, the parties are referred by their respective position in the connected

election petition.

3) The applicant (i.e. the election petitioner) and has filed this interlocutory application under Order VI, Rule 17 read with Section 151 of the Civil

Procedure Code for amendment of the connected election petition. The prayer in this interlocutory application petition is to allow the amendment as

prayed for and further allow the applicant to submit an amended election petition and adjudicate the same on merit in view of section 86(7) of The

Representation of the People Act, 1951 (hereinafter referred to as ‘RP Actâ€​ for short).

4) The learned counsel for the petitioner has submitted that although statements have been made in the election petition regarding various events that

have taken place from time to time, but the various dates of cause of action have not been mentioned in one paragraph, as is customary in ordinary

civil suits. It is also stated that the election petition contains statement to the effect that the petitioner has collected information about certain facts, and

the documents in support of the allegation of corrupt practice, like certified copies, etc. have also been annexed to the election petition, but due to

inadvertence the Courts and authorities from where copies/ certified copies of orders have been collected or downloaded have not been mentioned as

such it is submitted that the amendment would not bring about new set of facts, but would bring on record better particulars.

5) It is further submitted that in election petition each and every provision of the Civil Procedure Code must be scrupulously followed and therefore,

following of CPC is not mandatory but directory. In this regard, it has been submitted that in the present case, there was substantial compliance of the

provisions of CPC. It is submitted that the defects in the election petition are curable defects. Accordingly, it has been submitted that the amendment

of the election petition has become necessary for the purpose of determining the real issues in controversy. It is submitted that despite exercise of due

diligence, some bona fide mistakes have occurred in the election petition. It is also submitted that the proposed amendment would not change the

nature and character of the election petition.

6) In support of his submissions, the learned counsel for the petitioner has referred to the following cases; viz., (i) S. Malla Reddy & Ors. v. M/s.

Future Builders Cooperative Housing Society and ors., (2013) 9 SCC 349, (ii) Umesh Challiyil v. K.P. Rajendran, (2008) 11 SCC 740, (iii)

North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by LRS, (2008) 8 SCC 511, (iv) Baldev Singh & ors. v. Manohar

Singh & anr., (2006) 6 SCC 498, (v) Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344, (vi) Sardar Harcharan

Singh Brar Vs. Sukh Darshan Singh & ors., (2004) 11 SCC 196, (vii) Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 3

SCC 137, (viii) G. Mallikarjunappa v. Shamanur Shivashankarappa, (2001) 4 SCC 428, (ix) Ragu Tilak D. John v. S. Rayappan & ors,

(2001) 2 SCC 472, (x) D. Ramachandran v. R.V. Janakiraman & ors, (1999) 3 SCC 267, (xi) Karikho Kri v. Nuney Tayang & Anr., 2021 (3)

GLT 558, (xii) Abhijit Roy v. Sheuli Sarma Chakraborty & Ors., (2020) 2 GLT 76, (xiii) Chandan Kumar Sarkar v. Nirmalendu Banikya &

Ors., I.A. (C) 2009/2016 (In El.Pet 2/2016), decided by this Court on 15.09.2017, xiv) Sushmita Begum v. The State of Assam & Ors., (2015)

3 GLT 502. Apart from the above, the learned counsel for the petitioner had referred to 4 (four) other cases, being (i) 1987 (2) CLJ 654, (ii)

1995 (2) CLJ 25, (iii) 1998 (2) CLJ 495, and (iv) 2000 (2) CLJ 49,5 but although the Court had directed the learned counsel for the petitioner to

furnish print out of the said judgments, neither the name of the parties nor the print-out of the said cases were furnished. Therefore, the sad cases

could not be considered.

7) Per contra, the learned senior counsel for the respondent no. 1 has submitted that the prayer for amendment is barred by the prescribed period of

limitation and amendment of election petition, which is based only on the allegations of corrupt practice cannot be allowed after the expiry of 45 days

from the date when the election result was declared. It is submitted that particulars of corrupt practice may be permitted to be amended, but not the

material facts. It is submitted that although the petitioner has filed an affidavit under Form 25 in terms of Rule 94A of the Conduct of Election Rules,

1961 but the same is not in accordance with the contents of Form No. 25, as the statements made in the “Schedule of Corrupt Practiceâ€

appended to the election petition is not supported by verification in the said affidavit. It is further submitted that the particulars of corrupt practice as

pleaded in the Schedule of Corrupt Practice cannot be amended. It is also submitted that there is no specific pleading about the nature of amendment

to be carried out. In support of his contention, reliance is placed on the following cases, viz., (i) Dr. Smt. Shipra v. Shanti Lal Khoiwal, AIR 1996 SC

1691, (ii) Kashinath v. Kudsia Begam, AIR 1971 SC 372, and (iii) Sethi Roop Lal v. Malti Thapar, (1994) 2 SCC 579.

8) It may be stated that in course of the lengthy hearing, the Court had posed a question to the learned counsel for the petitioner as to what was the

specific amendment prayed for. On the same, the specific reply by the learned counsel for the petitioner was that his prayer was to allow the

petitioner to file an amended election petition and if the said prayer is allowed, the petitioner shall file the amended election petition.

9) Situated thus, it is deemed appropriate that the voluminous statements made in para-3 including all its sub-paragraphs be extracted below to

demonstrate that the present application does not contain the nature of amendment sought to be carried out in the election petition. The said para-3 is

quoted below:-

“3. That now the applicant wants to amend and correct the mistakes of the Election Petition, otherwise, the applicant may suffer

considerable loss and injury.

In this regard, it may be stated that those mistakes are not fatal but curable which have the support of different judgments of the

Hon’ble High Courts and the Hon’ble Apex Court, and they are described in details in the 2 affidavits in opposition as stated

above.

The proposes amendments sought for, would be as follows-After paragraph 18, there would as under-

18(a) That in the Verification and Affidavit made in respect of paras 5 and 2nd part of para 6 of the Election Petition, the 2nd part would

start from “but later on, from different sources, he came to know that there is a criminal as well as Bakijai case pending against him on

the day of filing Nomination paper. In the verification and affidavit, the same information would based on record.

The 1st part of the said para i.e. para no.6 starting from “That the petitioner begs to state that the respondent no.1 also submitted his

nomination paper with an affidavit in term of Form 26, the same should be true to the knowledge and information of the Election Petitioner.

18(b) That the averments made in the Para 11, the verification and affidavit, it may be treated as true to the knowledge of the Election

petitioner and also submission before the Hon’ble Court.

18(c) That the cause of action this Election Petition arose on 08/03/21, when the respondent no.1 filed nomination paper with an Affidavit

in Form 26, without disclosing about the criminal cases in his affidavit, on 21/001/21, when he could collect the copy of the order sheet

from the website of Debts Recovery Tribunal, Guwahati, on 20/04/21 when he could collect the copy of the FIR of Samaguri Police Station

case no.655/2016, U/S 379/409 IPC R/W section 7 of the Essential Commodities Act, and also a copy of the list of the Assam MLA’s with

criminal records and copy of the judgment of GR case no.1488/2012 in which case the respondent no.1was acquitted on benefit of doubt,

and every moments thereafter at Samaguri, Koliabor, Rupohihat and Nagaon etc. places which fall within the jurisdiction of this

Hon’ble Court.

18(d) That the documents annexed in the writ petition have been obtained from various Authorities which have been mentioned clearly in

different Paras. In this regard, the applicant begs to state that the Annexure-1 of the Election Petition i.e. Form-B, the Nomination paper is

obtained from the Returning Officer of No.85 Rupohihat LAC along with certain documents through RTI application. The Annexure- 2 of the

Election Petition is the communication regarding the authorized person to intimate the names of candidates set up by a recognized political

party, which was with me. Annexure-3 is the Elector’s Voter ID card, issued by the Election Commissioner of India in favour of the

Election Petitioner, which was in the possession of the applicant/ petitioner himself since 2013. Annexure-4 is the Candidates Identity card,

issued by the Returning Officer of No.85 Rupohihat LAC in favour of the Election Petitioner and was under his possession. Annexure-5 is

the press note issued by the Election Commissioner of India obtained from the Election Commission. Annexure-6 is the notification, issued by

Election Commission of India, dated 02/03/2021 fixing dates of Elections to be held in different constituencies in Assam obtained from

Election Commission’s website. Annexure-7 is the list of candidates, who contested the Election from No.85 Rupohihat LAC and

obtained from Returning Officer. Annexure-8 is the result of the Election of Rupohihat LAC, dated 06/05/2021, issued by Returning Officer

of the said constituency. Annexure-9 is the Affidavit in Form No.26 sworn in as per Rule 4A of the schedule of ROP Act, duly submitted by

respondent no.1 before the Returning Officer of No.85 Rupohihat LAC and obtained throughRTI application, Annexure-10 is the order

sheets of Debts Recovery Tribunal, Guwahati obtained from the website of the said Tribunal. Annexure-11 is the FIR filed against the

respondent no.1 and others at Samaguri P.S. obtained from SDJM Koliabar Court, Annexure-12 is the list of MLA’s with criminal

records obtained from the website of Election Commissioner of India. Annexure-13 is the judgment in GR case No.1488/2021, passed by the

Ld. CJM Nagaon, acquitting the respondent no.1 on benefit of doubt and obtained from that court, Annexure-14 is the application filed by

the Election agent of the Election Petitioner, dated 24/04/2021, submitted before the Election Commissioner of India which is in his own

possession, Annexure-15 is the letter of Additional Chief Electoral Officer, Assam, addressed to District Election Officer, Nagaon to conduct

inquiry against the respondent no.1. Annexure-16 is the letter of Returning Officer No.85 Rupohihat LAC to S.P. Nagaon. Annexure-17 is

the letter issued to Returning Officer of No.85 Rupohihat LAC, dated 06/05/2021 sent by S.P. Nagaon. Annexure-18 is the letter of

Returning Officer of No.85 Rupohihat LAC to DC, Nagaon regarding no disposal of criminal cases of respondent no.1. All these Annexures

no.15 to 18 are obtained from Returning Officer of No.85, Rupohihat LAC. Annexure-19 is the communal and hatred speech of respondent

no.1 in a meeting at Jeomary on 19/03/21, which was telecasted by dy365 on that day and obtained from internet. Annexure-20 is the letter

of the Election Petitioner, addressed to Returning Officer of No.85 Rupohihat LAC. Annexure-21 is the Treasury Challan in favour of

Registrar (J), Guwahati High Court to file Election Petition.

18(e) That in every page of the Election Petition, there is the signature of the Election Petitioner and in the notice, which has been served

upon the respondent no.1, it is clearly mentioned by the Joint Registrar (Judicial) Gauhati High Court certifying that the same is the true

copy of the Election petition from page 15 to 208 of the election petition. As such, page 30 to 38 are within those pages. Moreover, section

83 ROP Act 1951 does not say that in each of the pages, true copy should be written. However, there were substantial compliance in filing

the Election petition and there was no fatal omission. Moreover, in Election Petition, it is not mandatory that each and every provisions of

CPC must be followed. So, far the legal consequences upon the respondent no.1 are concerned, the law will take its own course and if the

averments made in Election Petition are proved in due process of law.

In this regard, there are many decisions of various High Courts and Hon’ble Supreme Court, which would unjustify the prayers made

by the respondent no.1 and/or justify the amendment petition.

i. 2004 11 SCC 196. Para 9, 13, 14, 15 and 16.

ii. 2001 4 SCC 428, para 7.

iii. 2012 2 GLT 907,

iv. Order, dated 27/2012, passed in MC No2949/2011 arising out of Election Petition No. 2/2011, between Nabakumar Doley vs. Bharat

Ch. Narah.

v. Order, dated 15/9/2017, passed in L.A(C) No. 2009/2016 in Election Petition No. 2/2016 Chandan Kumar Sarkar vs Nirmalendu

Banikya.

18(f) That some defects in the Election Petition are curable like requirements made in section 83 of ROP Act, Rule 94 A of the conduct of

Election rules, 1961 in form 25 and Order 6, Rule 15 of CPC etc and the court should provide adequate opportunity to the Election

petitioner to ratify the same instead of dismissing the election petition at the threshold as provided in Order 6, Rule 18 of CPC. Moreover,

defect in verification in Election Petition is also curable. In another case, the Honorable Supreme Court as reported in 2003 VIII SCC 498

para 48-50 held that the word shall or may, may be interpreted according to the facts and circumstances of the case, and sometimes shall

should be read as may and some time may be read as shall. So, the wording used in various provisions of Election Law or CPC may be

interpreted, accordingly. It is also held by various Honorable High Courts that the concise statements and particulars of corrupt practices

would fulfil the requirements of section 83 of ROP Act. There are also many other orders of Honorable High Courts as well as Supreme

Court of India with regard to the provisions of Order 6, Rule 16, order 7 rule 11, section 83/86 of the ROP Act and rule 94 A i.e. form no

25 of the conduct of Election Rule, 1961, which dearly negate the prayers made in I.A. (C) No.1452/21 and IA(C) No.1432/21 filed by the

respondent 1 of the Election Petition.

18(g) That the amendment has become also necessary for the purpose of determining the real questions in controversy between the

applicant and OP No. 1/ Respondent No.1. Moreover, inspite of due diligence, some bonafide mistake have occurred there in the Election

Petition, and if amendment petition is allowed, then the same would not change the nature and character of the Election Petition, rather it

would be helpful in deciding the real questions of controversy between the two parties.

18(h) That applicant begs to state that though there is a little omission and commission in the Election Petition, but the same are curable

mistakes and the Honorable Court may direct the Election petitioner to correct the mistakes by way of amending the Election Petition to the

extend stated above.

18.(i) That this amendment petition is made bonafide in the interest or justice.â€​

10) Thus, from the statements made in para-3 of the instant interlocutory application, it is seen that the said statements are argumentative and not the

proposed amendment to the election petition. From the herein before quoted statements, neither the learned counsel for the petitioner could show the

proposed amendment, nor the Court could cull out the exact nature of proposed amendment.

11) It is too well settled that the provisions of Order VI, Rule 17 of the Civil Procedure Code confers a discretionary jurisdiction on the Court, which is

exercisable at any stage of the proceedings, to allow either party to alter or amend pleadings in such manner and on such terms as may be just and

proper. The Rule goes on to provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in

controversy between the parties. Therefore, until and unless the party desiring such amendment pleads before the Court as to how and in what

manner the pleading before the Court is proposed to be amended, the Court cannot apply its judicial mind to find out whether the proposed amendment

would be appropriate to determine the real issues in controversy. If vague order for allowing amendment is passed, it is quite possible that the party

may withdraw an admission made in the pleadings, or introduce a plea which is otherwise barred by law of limitation, or such amendment may change

the nature and character of the case. In this case, for example, the petitioner has not specifically stated in this interlocutory application that because of

omission to refer to “particulars of corrupt practice†as set forth in the “Schedule of corrupt practiceâ€, there is a defect in the affidavit

appended to the election petition, as such the Court would presume that no amendment is desired in such affidavit. Therefore, but if amendment is

vaguely allowed without knowing or appreciating what sought of amendment to the election petition is proposed, then it quite possible that material

facts as well as material particulars of corrupt practice which are required to be specifically stated in the “Schedule of corrupt practice†may be

amended to the detriment of the right that may have accrued in favour of the respondent (i.e. returned candidate). It is reiterated at the cost of

repetition that this election petition is based on alleged corrupt practice by the respondent no. 1.

12) In order to prevent undesirable amendment of pleadings to be introduced, the Supreme Court of India in the case of Gurdial Singh v. Raj Kumar

Aneja, (2002) 2 SCC 445: 2002 STPL 2990 SC (para-13 and 15), has held as follows:-

“13. Order 6 Rule 17 CPC confers a discretionary jurisdiction on the court exercisable at any stage of the proceedings to allow either

party to alter or amend his pleadings in such manner and on such terms as may be just. The Rule goes on to provide that all such

amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Unless

and until the court is told how and in what manner the pleading originally submitted to the court is proposed to be altered or amended, the

court cannot effectively exercise its power to permit amendment. An amendment may involve withdrawal of an admission previously made,

may attempt to introduce a plea or claim barred by limitation, or, may be so devised as to deprive the opposite party of a valuable right

accrued to him by lapse of time and so on. It is, therefore, necessary for an amendment applicant to set out specifically in his application,

seeking leave of the court for amendment in the pleading, as to what is proposed to be omitted from or altered or substituted in or added to

the original pleading.â€​

*** *** ***

The court may allow or refuse the prayer for amendment in sound exercise of its discretionary jurisdiction. It would, therefore, be better

if the reasons persuading the applicant to seek an amendment in the pleadings as also the grounds explaining the delay, if there be any, in

seeking the amendment, are stated in the application so that the opposite party has an opportunity of meeting such grounds and none is

taken by surprise at the hearing on the application.â€​ (extracted from STPL).

13) It is, therefore, necessary for a party seeking amendment of pleadings to specifically set out in his application, as to what is proposed to be omitted

from, or altered, or substituted, or added to the original pleading.

14) In this regard, it is seen that in the case of Kashinath v. Kudsia Begam, AIR 1971 SC 372, the proposed amendment of the election petition where

the following words “in whose company Madan Gopal Misra†to be inserted in the Schedule of corrupt practice, did not find favour. Thus, it is

apparent that it is not the volume of proposed amendment, but the nature of proposed amendment, which is the relevant factor to be considered before

prayer for amendment is allowed. It is in this regard that the petitioner has miserably failed to specifically state in this interlocutory application the

nature of proposed amendment.

15) Although the defect in the affidavit filed under Form 25 was pointed out in I.A. (C) 1451/2021 and I.A. (C) 1452/2021, the petitioner did not take

steps to file a fresh affidavit in consonance with Rule 94A read with Form-25 of the Rules. Similarly, in the objection filed on 01.12.2021 the

respondent no.1 had once again pointed out, amongst others, that (i) the defect in verification and affidavit for corrupt practice; and (ii) the application

was belated and therefore, hit by limitation of 45 days prescribed under Section 81 of the RP Act. Similarly, in course of hearing the learned senior

counsel for the petitioner had pointed out that the specific nature of amendment was not narrated and it was also submitted that the affidavit (page 35-

36 of the election petition) in support of “Particulars of corrupt practice†in the “Schedule of corrupt practice†(available at page 37 of the

election petition) did not have any reference or verification in respect of the “Schedule of corrupt practiceâ€. However, neither did the petitioner

take appropriate steps to give a statement of proposed amendment, nor any steps was taken to introduce a fresh affidavit in support of the allegations

or particulars of corrupt practice.

16) Therefore, this is not a case where the Court in its own motion is required to give another opportunity to the petitioner to amend the election

petition or to file a fresh affidavit because the petitioner has himself availed an opportunity to amend the election petition, which is under consideration.

17) Therefore, this interlocutory application deserves to be dismissed and is accordingly, dismissed.

18) In light of the discussions above, no purpose would be served to burden this order with the judgments cited by the learned counsel for the petitioner

and the learned senior counsel for the respondent no. 1 at the Bar.

19) There shall be no order as to costs.