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Amichand Udayram Vs. Pratap Singh Harpal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 18 of 1963
Judge
Reported inAIR1964MP23
ActsRepresentation of the People Act, 1951 - Sections 83, 90(3), 98 and 116A; Representation of the People (Amendment) Act, 1958
AppellantAmichand Udayram
RespondentPratap Singh Harpal Singh and ors.
Appellant AdvocateR.S. Dabir and ;V.S. Dabir, Advs.
Respondent AdvocateA.P. Sen, Adv. for Respondent No. 1
DispositionAppeal allowed
Cases ReferredLeach and Co. Ltd. v. Jardine Skinner and Co.
Excerpt:
.....of defect of petition not being signed or not being verified according to the requirements of law, the petition cannot be dismissed. the present case is better for the appellant in tne sense that he had himself applied for adding the verification clause. the same well settled principles laid down in the matter of amendments to tne pleadings in a suit should also regulate the exercise of tne power of amendment by a tribunal. ' the learned election tribunal referred to these observations in the order under appeal but unfortunately failed to give full effect to them for reasons which, in our opinion, are neither proper nor sufficient. but, it is well settled that though the words in a statute should be construed in their ordinarynatural sense, nevertheless a reacting of the enactment as..........elected from the said constituency.2. the petition filed by the appellant was made over to the election tribunal, raigarh, for trial. in his written statement, respondent no. 1 raised an objection on 7-7-1962 that the petition was liable to be summarily dismissed because it was not verified as required by law and hence there was no proper election petition for being inquired into by the tribunal. the appellant thereupon made an application on 19-7-1962 under order 6 rule 17 of tne code of civil procedure read with section 90(1) of tne act to amend the petition. we are not here required to deal with the amendments which are stated in paragraph 2(a) to (f) of the application because all these amendments have been treated by the election tribunal to be of formal nature. in paragraph 2.....
Judgment:

Bhargava, J.

1. This appeal under Section 116A of the Representation of the People Act, 1951, (hereinafter called the 'Act') arises out of an election petition filed by the appellant Amichand before the Election Commission, New Delhi, in which he prayed that the electron of the first respondent, Pratapsingh, to the Madhya Pradesh Legislative Assembly from, pithora Constituency be declared void and that it be further declared that respondent No. 6 Nemichand had been duly elected from the said Constituency.

2. The petition filed by the appellant was made over to the Election Tribunal, Raigarh, for trial. In his written statement, respondent No. 1 raised an objection on 7-7-1962 that the petition was liable to be summarily dismissed because it was not verified as required by law and hence there was no proper election petition for being inquired into by the Tribunal. The appellant thereupon made an application on 19-7-1962 under Order 6 rule 17 of tne Code of Civil Procedure read with Section 90(1) of tne Act to amend the petition. We are not here required to deal with the amendments which are stated in paragraph 2(a) to (f) of the application because all these amendments have been treated by the Election Tribunal to be of formal nature. In paragraph 2 (g), the appellant prayed for adding verification clause at the foot of the petition.

3. Respondents Nos. 2 to 6 did not raise any objection for adding the verification clause but respondent No. 1 objected to the amendment being made in the reply, dated 27-7-1962. The Election Tribunal passed an order on 26-12-1962 rejecting the prayer for adding the verification clause. That order is the subject-matter of this appeal.

4. Respondent No. 1 has alone contested this appeal, the other respondents having remained absent.

5. Shri A. P. Sen, learned counsel for respondent No. 1, (who hereinafter will be referred to as 'respondent' tor the sake of brevity) raised a preliminary objection to the effect that the appeal filed by the appellant was not competent. His contention is that under Section 116A of the Act, an appeal lies to the High Court only against the order passed by an Election Tribunal falling under Section 98 or 99 of the Act but the order appealed against is passed under none of these sections. He argued that for the order being covered by Section 98(a) of the Act, It must be passed 'at the conclusion of the trial' of an election petition but according to him, the order was passed before the trial began in this case. He emphasized that the trial meansthe final hearing of the petition consisting of examination of witnesses, filing of documents and addressing arguments, etc.

6. In our judgment, this argument is devoid of substance In Harish Chandra v. Triloki Singh, (S) AIR 195/ 3C 444 their Lordships exhaustively considered the meaning of the word 'trial'. Their Lordships in that case examined in detail the provisions of Chapter 111 of Part VI of the Act and laid down that the word 'trial' was used as meaning the entire proceedings before the Tribunal when the petition was transferred to it under section 86 of the act 'until the pronouncement of the award'. It is true that their Lordships in that case were considering the provisions of Sub-section (2) of Section 90 of the Act, which is now renumbered as Sub-section (1) but the meaning which was given by their Lordships to the word 'trial' cannot in any sense be confined only to the provisions of that sub-section.

It is a sound rule of interpretation that the same word should be given the same meaning as far as possible in the same Act unless there is something in the context which requires it to be interpreted differently, whetner me trial is of one point going to the root of the matter whicn disposes of the whole petition or whether the trial covere 'more than one point on which the parties are at issue, as order which dismisses the petition itself does conclude the trial of the election petition and must be taken to be an order under Section 98 of the Act. It was pertinently observed by a Division Bench of this Court in Gulsher Ahmaa v. Election Tribunal, Chhatarpur, (1958-59) 14 ELR 13 at P0 17: (AIR 1958 Madh Pra 224 at p. 225):

'The trial, brief as it may be for purposes of determining whether all necessary paties are present tnere or not, is a trial nevertheless brought to a conclusion by the order of dismissal of the election petition. In our opinion, the power exercised under Sub-section (3) of Section 90 is a power directly exercised under Section 98 of the Act'

Further, in Chandrika Prasad v. Shiv Prasad, AIR 1959 SC 627 their Lordships repelled a similar argument and approving of their previous decision in (S) AIR 1957 SC 444 (sup. cit.) said:

'There can be no doubt that the order passed under Section 90, Sub-section (3), is an order passed at the conclusion of the trial. It is true that it is an order on a preliminary point of law raised by the appellant but even so, the decision of the preliminary issue is undoubtedly a part of the trial of the petition and it cannot be said the the order passed on such a preliminary point is not an order passed at the conclusion of the trial when It, in fact, concludes the trial.'

7. Shri Sen urged that the explanation which was added by the Representation of the People (Amendment) Act, 1958 (No. 58 of 1958) on 30-12-1958 under Sub-section (3) or Section 90 of the Act made it clear that only if the application was dismissed under Section 81 or 82 of the Act, the order of the Tribunal was to be deemed as one made under Clause (a) of Section 98 of the Act. He stressed Wat the fiction created by the explanation could not tie pushed beyond the express language of the explanation. He contended that the explanation had the effect of widening the scope of the dismissal of an election petition by providing that the dismissal shall be deemed to be at the conclusion of the trial but for those cases which were not covered by It, the explanation had necessarily a limiting ettect. As the dismissal in the instant case was made for contravention of the provisions contained in Clause (3) of Sub-section (1) of Section 83 of the Act, the order could not be deemed ' fall under Section 98(a) of the Act.

It was further urged by Shri Sen in the same connection that in State of Bombay v. Pandurang, AIR 1953 SC 244 their Lordships of the Supreme Court had laid down that full effect must be given to the statutory fiction and it should be carried to its logical conclusion. He urged that if the fiction created by the explanation under Section 90(3) of the Act was viewed in this perspective, it was obvius that the dismissal of the election petition was not appealable under Section 98(a) of the Act.

8. We find ourselves unable to accept these contentions. in the first place, the wide meaning given by their Lord-ships of the Supreme Court to the word 'trial' in the atoresaid cases cannot be said to be affected in any manner by the explanation. Further, it is significant to note tnat in the explanation, it is nowhere provided that an order of dismissal of the election petition for contravention of any provision made in Section 83 of the Act would not be covered by Section 98(a) of the Act. Lastly, it may be pointed out that in Chandrika Prasad's case, AIR 1959 sc 827 [sup. cit.) their Lordships, while construing Section 90 of the Act, observed thus:

'The question of construing Section 90 can be considered from another point of view. It provides for We procedure before the tribunal and lays down that it is open to the tribunal to dismiss an election petition under Section 90, sub-section. (3); but this being a procedural provision, it would not be unreasonable to hold that, when the actual order dismissing the petition is passed, it would be referable to the provisions of Section 98(a).'

We, therefore, over-rule the preliminary objection.

9. On merits, it was contended by Shri R. S. Dabir on behalf of the appellant that the Tribunal had no power under any provision of the Act to dismiss the petition for want of proper verification. He further urged that Section 90(1) or the Act provided that subject to the provisions of tne Act and of any rules made thereunder, election petition shall be tried by the tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908, to the trial of suits and this provision was sutticient to authorize the Election Tribunal to allow the appellant to amend his petition if it lacked the verification clause. He urged that the distinction made by the Election Tribunal between an ordinary civil suit and an election petition in the matter of amendment thereof, under the circumstances of this case, was invidious and the order passed by the learned Tribunal refusing the amendment was not based on a sound exercise of judicial discretion and was, therefore, liable to be set aside.

10. Shri A. P. Sen, on the other hand, contended that the writing of the verification clause in the election petition was a matter of substance; as that clause was completely omitted, there was no substantial compliance of the provisions made in Section 83(1)(c) of the Act; that due to the omission of the verification clause, there was no valid election petition before the Election Tribunal and that to allow the appellant to amend the petition beyond the period prescribed by Section 81 of the Act had the effect of converting it into a new petition altogether and, therefore, tne amendment was rightly refused. He further contended that the amendment was discretionary with the Tribunal and tne discretion having been exercised against the amendment, tne order could not be interfered with in appeal.

11. In our judgment, the contentions raised by snri R. S. Dabir for the appellant must be allowed to prevail ana this appeal must be allowed. We may point cut that Section 35 of the Act as it stood before the amendment made by Act 27 of 1956 dealt with powers of Election Commission tor dismissing the election petition when it was before it It was enacted in Section 85 of the Act that if the provisions of Sections 81, 83 or 117 were not complied with, the Election. Commission shall dismiss the petition and Sub-section (4) of Section 90, as it stood before the said amendment, read. as follows:

'Notwithstanding anything contained in Section 85, the Tribunal may dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117.'

But, the changes made in 1956 are eloquent inasmuch as Section 83 was completely taken away from the purview or Section 85 of the Act and the new Section 90, sub-section (3). It is clear that the present law does not require the Tribunal to dismiss the petition for non-compliance with Section 83. The change in this Section clearly brings out the intention of the Legislature to the effect that merely on account of defect of petition not being signed or not being verified according to the requirements of law, the petition cannot be dismissed.

12. The object of directing verification of the contents of election petition appears to be that the person making the petition should be aware of the fact that he is undertaking a particular responsibility in asserting particular tacts in his petition. The same is the object of having the lists verified. In our view, the correct exercise of discretion or court in cases where verification is defective or where there is no verification at ail would be to call upon the petitioner to remove the defect. If he fails to comply with the oraer of the Court in spite of a proper opportunity being given to him, then it may be that the Tribunal is constrained to dismiss the petition but without any such opportunity being given to the petitioner, the dismissal order cannot be justified. The present case is better for the appellant in tne sense that he had himself applied for adding the verification clause.

13. We may stress the observations of their Lordships of the Supreme Court made in the case of S. M. Banerji v. Sri Krishna, AIR 1950 SC 368 as under:

'Courts and Tribunals are constituted to do justice between the parties within the confines of a statutory limitations and undue emphasis on technicalities or enlarging their scope would cramp their powers, diminish their ettectiveness and defeat the very purpose for which they are constituted. It must be made clear that within the limits prescribed by the decisions of the Supreme Court the discretionary jurisiction of the Tribunals to amend the pleadings is as extensive as that of a civil Court. The same well settled principles laid down in the matter of amendments to tne pleadings in a suit should also regulate the exercise of tne power of amendment by a Tribunal.'

The learned Election Tribunal referred to these observations in the order under appeal but unfortunately failed to give full effect to them for reasons which, in our opinion, are neither proper nor sufficient. It is true that the discretion to allow or refuse the amendment vested in the Election Tribunal but it is a judicial discretion and is required to be exercised on sound judicial principles and not on the basis of any whim or caprice. Section 90(1) of the Act makes the procedure under the Code of Civil Procedure applicable to election petitions! subject only to the provisions of the Act or Rules. made thereunder. The provision contained in the Act snow that the defect of non-joinder of necessary parties in the election petition cannot be cured by amendment inasmuch as the election Tribunal has no power to grant such an amendment, be it by way of withdrawal or amendment of a part of a claim or otherwise once an election petition has beenpresented to the Election Commission claiming further declaration under Section 82(a) of the Act. (See Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687). The other provision which prohibits the making of any amendment is to be found in Section 90(5) of the Act where it has been laiddown that the tribunal shall not allow any amendment or the petition which will have the effects of introducing partieulars of a corrupt practice not previously alleged in tie petition. All other amendments have to be allowed or disallowed on the principles which apply to civil suits.

14. Section 153 of the Code of Civil Procedure invests the Court with the general power to amend any detect of error in any proceedings and it is the duty of the court to call upon parties to make the necessary correction. (See, Baliram v. Mt. Sitabai, 31 Nag LR 386 : (AIR 1935 Nag 168). Order 6 Rule 14 and Order 6 rule 15 of the code of Civil Procedure provide for pleading being signed and verified. In Rajit Ram v. Katesar Math, ILR 18 All 396, it has been held by a Division Bench of the Allahabad High court that if the verification of plaint is discovered to be detective at any time whilst the suit is before the Court, in tne first instance the plaint may be amended by the Court anaif the defect is discovered when the suit comes in the appealbefore an appellate Court, such Court may, if it thinks fit, return the plaint to the Court of first instance to be amended by it.

It was further observed in that case in any event, a defect in the verification of a plaint would not of necessity result in the dismissal of the suit. In Shib Deo Misra v.Ram Prasad, ILR 46 All 637: (AIR 1925 AH 79) anotner Division Bench of the Allahabad High Court held that

'a plaint which is filed without having teen verified in the manner prescribed by the Code of Civil Procedure is not an invalid document but may be verified at a later stageof the suit.'

Further, in A. S. Subbaraj v. M. Muthiah, AIR 1954 Mad 336. Venkatarama Ayyar J., (as he then was) held that the words 'Election Commission shall dismiss the petition' in Section 85though in form were mandatory, yet these words construedin their natural ordinary sense, nevertheless on a reading of the enactment as a whole might indicate that that sensewas not what was intended by the Legislature. The Courtobserved:

'Section 85 does not make it imperative on tne part of the Election Commission to dismiss the election petition for defective verification and whatever might be the powersof the Election Commission under Section 85, when once tne matter comes before the Tribunal, it is thereafter governed by Section 90(4) and under this section, the Tribunal has a discretion in the matter of dismissing the petition tor non-compliance with the requirements of Section 83. The words Election Commission shall dismiss the petition in Section 85 are in form undoubtedly mandatory. But, it is well settled that though the words in a statute should be construed in their ordinarynatural sense, nevertheless a reacting of the enactment as awhole might indicate that that sense was not what was intended by the Legislature. The use of the word 'shall' isnot conclusive and the intention of the Legislature mustbe gathered on a reading of the enactment as a whole. Thecumulative effect of the three. .... .provisions, Section. 85,proviso, Section 83(3) and Section. 90(4) is to lead to the conclusion that it is not mandatory on the part of the Election Commission to dismiss the petition and that the words 'Shall dismiss' should be construed as meaning 'shall have the powersto dismiss.'

It was further said in that case:

'This conclusion is in accordance with the authorities under Order 6 Rule 15, Civil Procedure Code, which by force of Section 83(1) has been made applicable to election petitions. That defective verification is a mere irregularity and does not affect the jurisdiction of the Court to entertain the suit, notwithstanding that the rule provides that the verification 'shall' be in the manner prescribed therein.'

15. As against the view expressed in the aforesaid cases, the learned counsel for the respondent relied on the observations of Bhagwati J., (as he then was) in Prince Line Ltd. v. Trustees of the Port of Bombay, AIR 1950 Bom 130. The learned Judge held in that case that-

'Unless and until a plaint is presented to the court complying with the provisions contained in Order 6 Rule 14 and Order 6 Rule 15, it cannot be said that a proper plaint is presented to the Court and unless such, a proper plaint is presented to the Court it cannot be said that the suit has been instituted in the Court by a party.'

16. It would be seen that the weight of authority is inclined in favour of the view taken in Rajit Ram's case, ILR 18 All 396 [sup. cit.). In our judgment, a defect in the verification made and the total absence of verification clause in a document only amount to an irregularity in procedure and cannot be viewed differently. The plaint of petition suffering from that defect cannot be rejected merely on this ground and the defect can always be allowed to be cured by an amendment at any stage of the suit. Such a defect does not make the plaint or petition void. We respectfully record our concurrence with the view expressed in the above-mentioned cases. Further, in the aforesaid case of air 1950 Bom 130 it has been pointed out that the court has always got the discretion if a plaint is not properly presented and is not signed and verified in accordance with the provisions of Order 6 Rule 14 or Order 6 Rule 15 of the Code of Civil Procedure to allow the plaintiff to remedy tne defect at a later stage even though the period of limitation may have expired.

Thus, it would be seen that even this case does not help the respondent much. To allow the petition to be properly verified by permitting the amendment after the expiry of limitation prescribed for filing of election petitions under Section 81 of the Act did not affect the power of the Court to order it. It is only a factor to be taken into account in the exercise of the discretion as to whether tne amendment should be permitted or not, (See: Leach and Co. Ltd. v. Jardine Skinner and Co., (S) AIR 1957 SC 357). To allow the omission of verification to be made good subsequently could not, in our opinion, do any injustice to tne other side. The amendment does not introduce any new and inconsistent case. It was only aimed at removing a defect of form which, in the circumstances of the case, should not have been treated as a defect of substance.

17. For all these reasons, disagreeing with the learnedTribunal, we allow the amendment which was sought to beintroduced by the application, dated 19-7-1962. We set asidethe order of the dismissal of the election petition passedby the learned Tribunal and remand the case for trial according to law. The appellant will be entitled to his costs inthis Court from the respondent No. 1. Counsel feeRs. 100/-.


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