Shri Mange Ram Garg vs Hari Shankar Gupta & Ors.
2009 Latest Caselaw 3121 Del

               * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                         Date of Reserve: 27.7.2009
                                                     Date of Order: 12th August, 2009

IA No. 6140/2009 in Election Petition No. 7/2009
%                                                                      12.08.2009

         Shri Mange Ram Garg                       ... Petitioner
                       Through: Shri Rakesh Mahajan, Advocate and
                       Mr. Gautam Anand, Advocate

                   Versus


         Hari Shankar Gupta & Ors.                 ... Respondents
                        Through: Mr. Mahendra Rana, Advocate


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the
judgment?                                                                      Yes.

2. To be referred to the reporter or not?                                      Yes.

3. Whether judgment should be reported in Digest?                              Yes.

JUDGMENT

By this application made under Section 86(5) of the Representation

of People Act, 1951 read with Order VI Rule 17 CPC the applicant/petitioner has

sought to make amendments in the Election Petition. It is stated by the

applicant/petitioner that the petitioner had made allegations in para 10 of the

election petition about distribution of packets of sweets and food to the voters

and to the children of voters on 18th November, 2008 and 22nd November, 2008.

In para 19, the dates regarding distribution were mentioned as 18th November,

2008 to 22nd November, 2008. It is submitted that in fact the distribution of

sweets and food packets by respondent no.1 and his election agents had started

on 16th November, 2008 and continued up to 22 nd November, 2008. Therefore,

the petitioner seeks to amend paras no. 10 & 19 of the petition. In para 10 of the

petition, he seeks to amend the dates of distribution of sweets and food packets

from "16th November, 2008 to 22nd November 2008" in place of "18th November,

2008 and 22nd November, 2008" similarly para 19 he seeks leave to replace "18th

November 2008 to 22nd November, 2008" by "16th November, 2008 to 22nd

November, 2008".

2. The other amendment sought by the election petitioner is in para 18

of the petition. In para 18 of the petition, the petitioner had stated that

respondent no.1 contravened Section 77 of the Act since respondent no.1 had

not shown the actual expenses incurred by him during election and not

maintained the accounts of the expenses incurred by him in accordance with law,

which shall amount to violation of law and shall amount to corrupt practices. The

petitioner now wants to make following additional submissions in para 18 of the

petition:

"It is submitted that the expenses borne on the food and sweets distributed by Respondent No.1, his election agent and supporters under the instructions of Respondent No.1/with his knowledge and consent on various occasions during the elections and on the pamphlets, leaflets, posters, voting slips and other such material got printed and

distributed by Respondent No.1, his election agent and supporters with the consent of Respondent No.1, as accounted for by the Respondent No.1 is not correct. He has concealed the actual expenses by showing far lesser quantity and cost per piece/per head of the said items. If the actual expenses borne on the said items are taken into account the total expenditure of Respondent No.1 in the election exceeds the prescribed limit."

3. It is submitted by the applicant/petitioner that by way of

amendments, the petitioner only seeks to give the particulars of corrupt practices

and non-compliance of rules, already stated in the petition. No new corrupt

practice was sought to be introduced in the petition by the petitioner therefore,

the application be allowed.

4. In reply to this application, the respondent no. 1 has taken the

stand that the issues in the case had already been framed and the matter was

fixed for recording of evidence. As a general rule, amendment is not allowed

after framing of issues and after the matter is fixed for recording of evidence.

The application for amendment made by the petitioner after framing of issues

was therefore liable to be dismissed. It is further submitted that amendments as

sought by the petitioner would result into withdrawal of admissions, which was

not permissible under law. The respondent in his WS had stated the dates of

meeting with his workers as 16th November, 2008. In the replication the

petitioner again reiterated the facts of the petition and thereafter issues were

framed. If the petitioner‟s case had been that the distribution of sweets had

taken place between 16th November to 22nd November, 2008 as is now alleged,

the petitioner, after WS of respondent, would have immediately moved

application for amendment but the petitioner in his replication denied the

contentions made by the respondent, which amounted to admission on the part

of the petitioner about no meeting having taken place on 16 th November, 2008.

The petitioner now by way of amendment cannot be allowed to withdraw this

admission.

5. It is further submitted by the counsel for the respondent that the

amendments sought by the petitioner fall within the mischief of Section 86(5) of

the Representation of People Act. The petitioner wanted to introduce additional

corrupt practices by seeking to change the dates of the corrupt practices. It is

submitted that the previous stand of the petitioner was that corrupt practice had

taken place on 18th November and 22nd November, 2008 or between 18th

November and 22nd November, 2008 but the petitioner wants to expand the

scope of corrupt practice alleging that corrupt practices had taken place from 16th

November 2008 to 22nd November, 2008. He submits that it was not permissible.

6. Law regarding amendment of Election petition has been well settled

in F.A.Sapa Etc., Etc., v. Singora and Ors. etc. AIR 1991 SC 1557:

18. Before the amendment of the R.P.Act by Act 27 of 1956, Section 83(3) provided for an amendment of an election petition insofar as „particulars‟ of corrupt practice were concerned. By the 1956 amendment this provision was replaced by Section 90(5) which in turn came to be deleted and transferred as sub-section (5) of Section 86 by the Amendment Act 47 of 1966. Section 86(5) as it presently stands empowers the High Court to allow the

„particulars‟ of any corrupt practice alleged in the petition to be amended or amplified provided the amendment does not have the effect of widening the scope of the election petition by introducing particulars in regard to a corrupt practice not previously alleged or pleaded within the period of limitation in the election petition. In other words the amendment or amplification must relate to particulars of a corrupt practice already pleaded and must not be an effort to expand the scope of the inquiry by introducing particulars regarding a different corrupt practice not earlier pleaded. Only the particulars of that corrupt practice of which the germ exists in the election petition can be amended or amplified and there can be no question of introducing a new corrupt practice. It is significant to note that Section 86(5) permits „particulars‟ of any corrupt practice „alleged in the petition‟ to be amended or amplified and not the „material facts‟. It is, therefore clear from the trinity of clauses (a) and (b) of Section 83 and sub- section (5) of the Section 86 that there is a distinction between „material facts‟ referred to in clause (a) and „particulars‟ referred to in clause (b) and what Section 86(5) permits is the amendment/amplication of the latter and not the former. Thus, the power of amendment granted by Section 86(5) is relatable to clause (b) of Section 83(1) and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice not already pleaded in the election petition. The power is not relatable to clause (a) of Section 83(1) as the plain language of Section 86(5) confines itself to the amendments of „particulars‟ of any corrupt practice alleged in the petition and does not extend to „material facts‟. This becomes crystal clear on the plain words of the closely connected trinity of Ss. 83(1)(a), 83(1)(b) and 86(5) and is also supported by authority. See Samant N.. Balkrishna v. George Fernandez, (1969) 3 SCR 603 and D.P.Mishra v. Kamal Narayan Sharma, (1971) 1 SCR 8. In Balwan Singh v. Lakshmi Narain (1961) 22 ELR 273 this Court held that if full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to avail of that opportunity that part of the charge may be struck down. We may, however, hasten to add that once the amendment sought falls within the purview of Section 86(5), the High Court should be liberal in allowing the same unless, in the facts and circumstances of the case, the Court

finds it unjust and prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience, vide Raj Narain v. Indira Nehru Gandhi, (1972) 3 SCR 841. This much for the provisions of Section 83(1)(a) and (b) and Section 86(5) of the R.P. Act.

7. In the present case, the petitioner had entire material with him; the

CD of distribution of food packets was also with him. The respondent in WS had

clearly stated that the meeting had taken place on 16 th November, 2008 and the

food packets were given to the workers of the party in his election office on 16th

November and proper accounts had been maintained of the same. Despite this

information having been clearly given, the petitioner did not consider it necessary

to seek amendment of the petition. The petitioner moved the present application

only after framing of issues and when the matter was listed for petitioner‟s

evidence. I consider that once a petitioner is given notice of additional

material/facts by the respondent himself in the WS and if the petitioner on the

basis of this information intends to amend the plaint/petition, the petitioner must

take steps for amendment immediately. The petitioner however, in this case

filed replication and reiterated the facts stated by him in the petition thereby

stating that he did not believe the facts given by the respondent and now the

petitioner wants to amend the petition on the grounds of those very facts.

8. The application for amendment is contrary to law of amendment as

given in CPC, where it is provided that the amendment application must be made

before commencement of the trial. In the present case, the amendment

application has been made after commencement of trial and I think that this

application should not be entertained on this ground itself.

9. I also consider that the amendment sought by the petitioner

enlarges the scope of corrupt practices pleaded by him. While in the petition, he

has pleaded in para 10 that sweets were distributed on 18th November, 2008 and

22nd November, 2008 now he wants to enlarge the scope of distribution of sweets

and food packets from 16th November, 2008 to 22nd November, 2008 i.e. from

two days to seven days. Similarly, he wants to make changes in other paras

where the date of "18th November 2008 to 22nd November, 2008" has been

recorded to be replaced by "16th November, 2008 to 22nd November, 2008". I

consider that the petitioner cannot be allowed to enlarge the scope or the period

of corrupt practice from "18th November, 2008 to 22nd November, 2008" to "16th

November, to/and 22nd November, 2008".

10. The amendment stated in para 18 of the plaint is also not in the

nature of explanation. In the initial petition nothing has been stated in para 18

and para 18 has been kept totally vague. By way of amendment, the petitioner

wants to furnish particulars in para 18 which were not at all there in the earlier

para. The amendment sought is not by way of explanation/clarification but is by

way of filling up the lacunae and I consider that such an amendment cannot be

allowed. In Surinder Pal v. Gurpreet Singh Kangar andn Ors. AIR 2005 P&H

251, the Punjab & Haryana High Court observed as under:

35. To sum up, the petitioner cannot be permitted to amend the venue of speech and the date of speech allegedly made by respondent no.1, which constituted corrupt practice under Section 123(3) and (4) of the said Act because these are not particulars of corrupt practices as laid down in Section 83(1)(b) of the Act. Therefore, the application for amendment filed by the petitioner for amendment in the date and venue of the speech is liable to be dismissed.

I consider that this application for amendment cannot be allowed

and is hereby dismissed.

Election Petition

List on 28th August, 2009 before the Joint Registrar.

August 12, 2009                                    SHIV NARAYAN DHINGRA, J.
vn