Allahabad High Court
Smt. Sangita Devi vs Addl. Sessions Judge, Court No. ... on 19 April, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 21
Case :- MATTERS UNDER ARTICLE 227 No. - 1234 of 2023
Petitioner :- Smt. Sangita Devi
Respondent :- Addl. Sessions Judge, Court No. 46, Barabanki And Another
Counsel for Petitioner :- Shashi Kant Tripathi,Vinay Kumar
Counsel for Respondent :- Kamlesh Kumar Shukla,Sudhir Kumar Singh
Hon'ble Manish Mathur,J.
Supplementary affidavit filed today in Court on behalf of petitioner is taken on record.
Heard Mr. Shashi Kant Tripathi, learned counsel for petitioner and Mr. Sudhir Kumar Singh, learned counsel for opposite party no.2.
Opposite party no.1 being merely a proforma in nature, notice is dispensed with .
Petition under Article 227 of the Constitution of India has been filed challenging the order dated 15.02.2023 passed in Civil Revision No.50 of 2022 whereby application preferred by opposite party no.2-election petitioner for amendment of plaint has been allowed.
Learned counsel for petitioner submits that election for the post of Pradhan of village concerned was held in 2021 with result being declared on 02.05.2021. It is submitted that limitation period for filing of an election petition in terms of Section 12C of U. P. Panchayat Raj Act, 1947 being only 90 days from the date of declaration of result, election petition as such was maintainable only up-till 02.08.2021. It is further submitted that instead of filing an election petition, opposite party no.2 who is the election petitioner straightaway filed a writ petition before this Court, which was dismissed on the ground of alternative remedy by means of judgment and order dated 27.10.2021. Learned counsel has also drawn attention to the fact that even thereafter the election petition was filed with considerable delay on 30.11.2021 along with an application for condonation of delay. The petitioner being the winning candidate had filed an application under Order 7 Rule 11 of the code of Civil Procedure on 22.07.2022 and in pursuance thereof, the election petition was dismissed by means of order dated 31.08.2022 on the ground of limitation.
It is submitted that against the order dated 31.08.2022, the aforesaid Civil Revision No.50 of 2022 had been preferred in which an application for amendment of plaint was also filed which has been allowed by means of impugned order dated 15.02.2023.
Learned counsel has placed reliance on judgment rendered by coordinate bench of this Court in the case of Smt. Phool Kumari versus Sub Divisional Officer, Tehsil Maholi, District Sitapur & Ors., Writ Petition No.7620 (M/s) of 2020 to submit that the aforesaid judgment in turn places reliance on judgment rendered by Hon'ble the Supreme Court in the case of Smita Subhash Sawant v. Jagdeeshwari Jagdish Amin & Ors. reported in (2015)12 SCC 169 to the effect that laws pertaining to election petitions are required to be adhered to strictly and it has been held that there is no power to condone delay in filing election petition. It is thus submitted that in view of aforesaid judgment, there was no occasion for the revisional court to have granted the amendment sought since it only pertained to explanation for delay in filing election petition.
Learned counsel appearing for opposite party no.2 has submitted that considering the fact that answering opposite parties had filed a writ petition before this Court on wrong advice despite availability of filing an election petition, the said writ petition was dismissed on the ground of jurisdiction and therefore the election petitioner would be entitled to benefit of section 14 of the Limitation Act. It is further submitted that grounds for condonation of delay had been clearly laid down in the plaint which were only sought to be explained by means of amendment application preferred at the revisional stage. It is further submitted that amendment application as such did not change the nature of case in any manner nor did it set up a new case and therefore the revisional court has correctly allowed the amendment application particularly in view of the fact that ground taken in the election petition went to the root of the matter regarding eligibility of petitioner to be elected on the post Gram Pradhan.
Upon consideration of submissions advanced by learned counsel for parties, it is admitted that the election petition was filed beyond the period of 90 days as stipulated under section 12 C of the Act and as such was rejected by means of order dated 31.08.2022 primarily on the grounds of limitation. It is also evident that against the aforesaid order, Civil Revision No.50 of 2022 has been preferred, during pendency of which amendment in the plaint was sought and has been allowed by means of impugned order primarily on the ground that at the stage of adjudication of an amendment application, merits of the case are not required to be seen and since the amendment sought does not change the nature of case in any manner, amendment was liable to be allowed subject to evidence/arguments being led.
With regard to the amendment application, it is thus evident that by means of amendment sought, explanation has been offered with regard to condonation of delay in filing the election petition. While it may be correct that at the time of allowing an amendment application, merits of the suit are not required to be gone into but at the same time it is also noticeable that present proceedings pertained to election petition and as per judgment rendered in the case of Smt. Phool Kumari as well as by Hon'ble the Supreme Court in the case of Smita Subhash Sawant (supra), in the considered opinion of this Court, no effective relief can be granted by allowing the amendment application when there is no provision for condoning delay in filing election petition.
The aforesaid aspect has not been considered by the revisional authority while passing impugned order and as such the amendment application even if allowed would not serve the objective and would in fact be a futile order.
In view of aforesaid discussion, the impugned order dated 15.02.2023 passed in Civil Revision No.50 of 2022 being unsustainable is set aside by issuance of writ in the nature of certiorari.
Resultantly, the writ petition succeeds and is allowed. Parties to bear their own costs. The revisional authority is also directed to expedite hearing of Civil Revision No.50 of 2022; Smt. Daulati Devi versus Smt. Sangita Devi to be concluded within a period of three months from the date a certified copy of this order is brought on record of proceedings and in case there is no other legal impediment.
Benefit of this order shall be available only in case petitioner cooperates in early conclusion of the application/suit.
Order Date :- 19.4.2023
Subodh/-
