Allahabad High Court
Sahabuddin vs State Of U.P. And 15 Others on 11 December, 2023
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:234347
Court No. - 6 AFR
Case :- WRIT - C No. - 30425 of 2023
Petitioner :- Sahabuddin
Respondent :- State Of U.P. And 15 Others
Counsel for Petitioner :- Shyam Shankar Mishra,Kamlesh Kumar Tiwari
Counsel for Respondent :- C.S.C.,Anshul Kumar Singhal,Sumit Daga
Hon'ble Mrs. Manju Rani Chauhan,J.
Ref: Order on Amendment Application
1. Amendment application filed today, is taken on record.
2. Learned counsel for the petitioner prays to withdraw the amendment application on the ground that he will be withdrawing the application as moved before the revisional court for not pressing the revision.
3. Accordingly, the amendment application is dismissed as withdrawn.
Order on Writ Petition
1. Heard learned counsel for the petitioner, learned counsel for the respondents and learned Standing Counsel for the State-respondents.
2. The petition has been filed by the petitioner challenging the order dated 24.07.2023 passed by Additional District and Session Judge, Court No.9, Prayagraj vide which his amendment application has been rejected and a further prayer to direct the court below to allow the amendment application of the petitioner and adjudicate the Election Petition No.3 of 2022, within stipulated period.
3. Brief facts of the case are that in the election for the post of Pradhan held in the year 2021, the petitioner was declared the winning candidate by obtaining 904 votes and respondent no.4 was the returned candidate obtaining 901 votes. An election petition was filed by respondent no.4 on 21.05.2021 wherein the petitioner filed written statement/objections. Thirteen issues were framed by the court concerned and by order dated 15.07.2022 the Presiding Officer without recording any findings on the issues allowed the election petition, directing for recounting of votes. Pursuant to the aforesaid order, the returned candidate was declared as the winning candidate as per the result of the recounting held on 28.07.2022, which showed that the petitioner has secured a total of 899 votes whereas the respondent no.4 has secured a total of 900 votes, therefore, the defeated candidate in the election was declared as the winning candidate by one vote.
4. Being aggrieved by the order dated 15.07.2022, the petitioner filed revision before District and Session Judge, District-Prayagraj. On 20.07.2022, an application was moved by respondent no.4 requesting therein that the date for recounting may be fixed at earliest. The prescribed authority on the same date, fixed 28.07.2022 as the date for recounting of votes casted in the elections. As already mentioned, in the recounting held on 28.07.2022 pursuant to the order dated 15.07.2022 as passed by the Presiding Officer directing for recounting and allowing the election petition, the defeated candidate-respondent no.4 was declared the winning candidate by one vote. Challenging the order dated 15.07.2022, Writ-C No.21191 of 20221 has been filed, wherein as he had filed revision also, challenging the same order, therefore, the Co-ordinate Bench of this Court by order dated 26.07.2022 dismissed the writ petition for dual remedies having been adopted by the petitioner leaving it open to the petitioner to pursue remedy before the revisional court. It is an admitted case that the revision has been filed by directions of the Co-ordinate Bench of this Court within time. Learned counsel for the petitioner moved an amendment application dated 20.05.2023 requesting for permission to amend the revision for challenging the consequential order dated 28.07.2022 passed pursuant to the order dated 15.07.2022 wherein direction for recounting was issued. On the aforesaid application, an objection has been filed by respondent no.4 on 30.07.2023 on which order impugned has been passed rejecting the amendment application of the petitioner on the ground of delay and application not being maintainable under the proviso of Order 6 Rule 17 of C.P.C. Hence, the present petition has been filed by the petitioner.
5. Learned counsel for the petitioner submits that by order dated 15.07.2022, the election petition was allowed directing for recounting on an application moved by the respondent no.4. Pursuant to the aforesaid order, recounting was done on 28.07.2022 which was the date fixed on the application as moved by respondent no.4. As the aforesaid recounting has been done pursuant to the order passed in election petition, the same has to be treated as a consequential order. However, without noticing the aforesaid fact and due to ignorance on the part of the counsel, he could not challenge the consequential order dated 28.07.2022 vide which the respondent no.4 was declared as winning candidate, therefore, he moved an application on 20.05.2023 requesting for amendment to challenge the aforesaid order.
6. Objections have been raised by learned counsel for respondent considering which the amendment application has been rejected on the ground of delay as well as the same being not maintainable under the proviso of Order 6 Rule 17 of the C.P.C.
7. Learned counsel for the petitioner submits that as per the provisions of Section 12(C)(6) of U.P. Panchayat Raj Act, any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thrity days from the date of the order, apply to the District Judge for revision of such order on any one or more grounds as mentioned.
8. Accordingly, the petitioner being aggrieved by the order dated 15.07.2022 filed a revision as per the provisions and also as per the directions passed by Co-ordinate Bench of this Court by order dated 26.07.2022 wherein Writ-C No.21191 of 2022 was dismissed on the ground of dual remedies being adopted by the petitioner, however, it was left open to the petitioner to avail the remedy for filing the revision. By the impugned order, the Court concerned has misread the provision of Section 12(C)(6) of U.P. Panchayat Raj Act, taking the limitation to be 30 days from 15.07.2022, date vide which election petition was allowed, for moving the amendment application, whereas the revision has to be moved challenging the order passed by prescribed authority which is in the present case order dated 15.07.2022 vide which the election petition has been decided.
9. There is no time limit provided under the act for any application or amendment application to be moved within 30 days. It is the order of the prescribed authority in the election petition which is to be challenged by way of filling revision that has to be filed within 30 days from that order.
10. Another ground taken by the competent court while rejecting the amendment application is that the same is not maintainable as per the proviso of Order 6 Rule 17, wherein the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that despite due diligence, the party could not have raised the matter before the commencement of the trial.
11. Learned counsel for the petitioner submits that the amendment application so moved is only with respect to the consequential order passed pursuant to the order passed in election petition dated 15.07.2022, which has been challenged by means of revision, therefore, there is no question of rejecting the same on the ground that it is barred by proviso of Order 6 Rule 17 as the revisional court has already started hearing the revision. Learned counsel for the petitioner further submits that the consequential order dated 28.07.2022 could not be challenged due to wrong advice of his lawyer. Thus, being ignorant of the settled position of law, he could not challenge the order timely and had moved the amendment application.
12. Learned counsel for the petitioner has lastly submitted that it is well settled that the Court must be extremely liberal in granting amendment, if the Court is of the view that if such amendment is not allowed, a party who has moved such an amendment, shall suffer irreparable loss and injury. It is equally well-settled that there is no absolute rule that in every case where relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow amendment if it is of the view that allowing of the amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. In support of his submission he has relied upon judgment of L.J. Leach & Co. Ltd. & Anr. Vs. Jardine Skinner & Co.2 as well as T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board & Ors.3.
13. Learned counsel for the respondent, however, submits that there is no illegality in the order impugned as the same is barred by limitation as per provisions of Section 12(C)(6) of U.P. Panchayat Raj Act, 1947 , wherein the limitation for filling a revision against the order passed by the prescribed authority is 30 days. He further submits that the proposed amendment to challenge the order dated 20.07.2022 and order dated 28.07.2022 is also barred by proviso of Order 6 Rule 17 as it is provided that no application for amendment shall be allowed after trial has commenced, unless the Court comes to the conclusion that despite due diligence, the party could not have raised the matter before commencement of trial. The aforesaid orders were well within the knowledge of the petitioner, therefore, he could have challenged the same along with order dated 15.07.2022 while filling the revision.
14. The ground as taken by learned counsel for the petitioner for not challenging the order dated 20.07.2022 and order dated 28.07.2022 within time along with the revision so filled challenging the order dated 15.07.2022 was due to wrong advice of previous counsel which cannot be taken as a ground for considering time barred amendment application. There are several judgments on the point that fault on the part of counsel cannot be a ground to file delayed amendment application. In support of his submission, he has relied upon judgments passed in the cases of Amitabh Gupta vs. Awadh Bihari Nigam4, Shri Firoz Uddin And 4 Others vs. Shri Anwar Uddin5, Satyapal Singh vs. Firm Swastik Plaza and others6, Sardar Joginder Singh and others vs. Nirmal Rohinson Clifford an another7.
15. He further submits that a time barred relief cannot be challenged by way of subsequent amendment. In support of his submission he has relied upon judgments passed in the cases of South Konkan Distilleries and Another vs. Prabhakar Gajanan Naik and Others8, Ashutosh Chaturvedi vs. Prano Devi alias Parani Devi and others9, Mahajan Sahkari Awas Samiti Ltd. Vs. Resham Singh and others10 and Jawahar Lal and others vs. Smt. Kanti Devi and Another11.
16. Heard counsel for the parties and perused the records.
17. Section 12(C)(6) of U.P. Panchayat Raj Act reads as follows :-
"12-C. Application for questioning the elections - (6) Any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on any one or more the following grounds, namely :-
(a) that the prescribed authority has exercised a jurisdiction not vested in it by law;
(b) that the prescribed authority has failed to exercise a jurisdiction so vested;
(c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity."
18. As per the aforesaid provisions of Section 12(C)(6) any order passed by the prescribed authority can be challenged within 30 days of the said order. In the present case, the order dated 15.07.2022 was challenged by means of filling a revision, which was within time and was also in compliance of the order passed by this Court in a writ filed by the petitioner. Hence, no question of time barred revision being filed has arisen. As regards, the amendment application being moved after delay of sufficient period, it cannot be said that the same is in contravention with the provisions of Section 12(C)(6) as it does not speak about any application or amendment application to be filed within 30 days of the final orders passed in the election petition. Bare reading of the provision goes to show that it is the revision which has to be filed within 30 days after final decision has been passed by the prescribed authority in the election petition.
19. Even otherwise, if the amendment is treated to be time barred, in case the prayer for amendment merely adds to the facts already on record, the same should be allowed as has been held in the case of Vineet Kumar vs. Mangal Sain Wadhera12. There is no absolute rule that the amendment in such a case should not be allowed even if it is filed after ample delay where the relief sought to be added is by way of amendment. It is not an absolute rule that if the amendment in such case i.e. seeking amendment in the election petition or amendment of plaint filed in a suit is sought after ample delay, it should not be allowed. It is the discretion of the Court to allow the application under Order 6 Rule 17.
20. The aforesaid has been held by the Apex Court in the case of Pankaja & Another vs. Yellappa (dead) by lrs. And Others13 and Life Insurance Corporation of India vs. Sanjeev Builders Private Lmited & Ors.14.
21. In several judgments it has been held that the Court should take a liberal view in allowing the amendment application if it is required in the interest of justice.
22. A litigant cannot be penalized for any default or mistake on the part of the counsel. The Courts have protected litigants from adverse consequences accruing from a default or mistake of their counsel. The aforesaid has been held by the Apex Court in the case of Ashok Kumar vs. New India Assurance Company Ltd15. The relevant paragraph 8 of the aforesaid judgment is as follows :-
"In view of the foregoing, it has to be reiterated that the complaint No. 515 was filed after theft due to non-settlement of claim by the Insurance Company. The repudiation of the claim was made during the pendency of the said complaint, purportedly due to breach of condition no. 1 and 5. The said complaint was withdrawn by the advocate of the complainant on the pretext of the case being prolonged by the advocate of the Insurance Company, without having express instructions for withdrawal of the said complaint. However, for the fault of the advocate, the complainant cannot be made to suffer. Finally, the dismissal of the complaint was made by the National Commission under the wrong pretext that the earlier complaint had challenged the order of repudiation. Thus, in our view, the complaint cannot be thrown out on the threshold of Order XXIII Rule (1)(4) C.P.C. and in the peculiar facts, it requires consideration on merits."
23. In the present case wherein the order dated 28.07.2022 has been passed in compliance of the order dated 15.07.2022 passed in election petition for compliance of which on the application of respondent an order dated 20.07.2022 was passed fixing 28.07.2022 as the date of recounting, the same would be taken as consequential order, therefore, there is no need to reject the said amendment application.
24. On a pointed query raised by this Court to learned counsel for respondent as to whether there is any requirement of moving an amendment application challenging the consequential order dated 28.07.2022, he did not give a clear answer, however, he admits that the final orders passed in election petition has to be challenged in the revision. He also could not deny the fact that pursuant to the order dated 15.07.2022, wherein the order directing for recounting has been passed and on his application, order dated 20.07.2022 was passed, fixing 28.07.2022 for recounting, pursuant to which on 28.07.2022 the respondent no.4 has been declared as the winning candidate, therefore without challenging the aforesaid order, his rights cannot be taken away. He however, submits that the order dated 28.07.2022 has been passed pursuant to the order dated 15.07.2022 and when once the aforesaid order dated 15.07.2022 as challenged in revision is set-aside, the consequential order dated 28.07.2022 will also be vitiated.
25. Accordingly, the order dated 24.07.2023 is set-aside.
26. It is directed that the court concerned shall pass afresh order on the amendment application keeping in view the observations as made hereinabove as well as the law laid down in the case of Ramadhar Singh Vs. District Judge, Ghazipur & Ors.16, preferably, within a period of 15 days from today.
27. It is also directed that the revision so filed may be decided, in accordance with law, by reasoned and speaking order, within a period of two months from the date of production of certified copy of this order.
28. However, till 20 days from today, the court concerned is restrained from deciding the revision no.3 of 2022, under Order 6 Rule 17 of the C.P.C.
29. With the aforesaid observations/directions, the writ petition stands allowed.
Order Date :- 11.12.2023
Kalp Nath Singh
(Justice Manju Rani Chauhan)
