Manipur High Court
Shri Moirangthem Okendro vs Shri Thokchom Radheshyam Singh ... on 22 September, 2023
SHAMURAILATPAM SUSHIL Digitally signed by SHAMURAILATPAM
SUSHIL SHARMA
SHARMA Date: 2023.09.22 15:13:51 +05'30' Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC(El.Pet.) No. 170 of 2022
Ref:- (i) MC(El.Pet.) No. 54 of 2022
(ii) El.Pet. No. 22 of 2022
Shri Moirangthem Okendro S/o. (Late) Moirangthem
Ibotombi aged about 54 years, resident of Heirok Part-II
Mayai Leikai, P.O. Wangjing and P.S. Heirok, Thoubal -
District, Manipur-795148.
.....Applicant
-Versus-
1. Shri Thokchom Radheshyam Singh aged about 57 years
S/o. Shri Thokchom Ibochouba of Heirok Khunou, Tehsil
Heirok, P.O. Wangjing and P.S. Heirok, Thoubal -
District, Manipur-795148.
2. Shri Ningthoujam Diten Singh, aged 53 about years, Son
of Late N. Kora Singh, resident of Ukhongshang Mayai
Leikai, P.O. Yairipok & P.S. Nongpok Sekmai, Thoubal
District, Manipur- 795149.
3. Shri Moirangthem Tomtomsana Nongshaba,aged about
50 years, Son of (Late) Moiranthem Tombiyaima agof
Heirok Part-II, Mayai Leikai Pujari Chithak, P.O.
Wangjing, Thoubal District, Manipur-795148.
...Respondents.
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
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BEFORE
HON'BLE THE ACTING CHIEF JUSTICE MR. M.V. MURALIDARAN
For the Applicant :: Mr. N. Jotendro, Sr. Adv.,
Mr. Syed Murtaza Ahmed, Adv.
For the Respondents :: Mr. N. Kumarjit, Sr. Adv.
Mr. N. Zequeson, Adv.
.
Date of Hearing and
reserving Judgment & Order :: 12.09.2023
Date of Judgment & Order :: 22.09.2023
JUDGMENT AND ORDER
(CAV)
Heard Mr. N. Jotendro, learned counsel for the
applicant and Mr. N. Kumarjit, learned senior counsel for the first
respondent.
2. This miscellaneous case has been filed by the
applicant under Order 8, Rule 1 read with Section 151 CPC and
Section 87(1) of the Representation of People Act, 1951 to grant
leave to file written objection subsequent to the rejoinder dated
13.9.2022 filed by the first respondent.
3. Mr. N. Jotendro, the learned senior counsel for the
applicant submitted that the first respondent had filed MC (EP)
No.54 of 2022 to dismiss the election petition and the applicant had
filed his written objection on 29.8.2022 and the first respondent had
also filed rejoinder to the said written objection. Upon perusal of the
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
Page |3
rejoinder filed by the first respondent, the applicant found that there
are certain statement made which are required to be further clarified
by way of written objection in the manner of subsequent pleadings.
4. The learned senior counsel for the applicant admits
that the written objection was filed beyond the prescribed period of
30 days from the date of delivery of the copy of the rejoinder filed in
MC (EP) No.54 of 2022. The said delay was due to the time taken
in making inquiries, consultations, preparations and other clerical
tasks and also verification of various documents from the
concerned departments. Moreover, the applicant was out of station
from 7.10.2022 to 12.10.2022. In the aforesaid situation, the
applicant took time in preparation and finalisation of the written
objection to the rejoinder/replication.
5. The learned senior counsel for the applicant urged that
by granting leave the applicant to file subsequent pleadings to the
rejoinder/replication shall cause no prejudice to any of the parties in
MC (EP) No.54 of 2022 and, on the other hand, if the applicant is
not allowed by granting leave to file the subsequent pleadings, the
applicant would be put to irreparable loss and hardship. which
cannot be compensation in any manner whatsoever. Thus, a
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
Page |4
prayer has been made to grant leave to file written objection to the
rejoinder/replication filed by the first respondent.
6. Per contra, Mr. N. Kumarjit, the learned senior counsel
for the respondents submitted that under Section 87(1) of the
Representation of People Act, 1951, every election petition is to be
tried by the High Court as nearly as may be, in accordance with the
procedure applicable under the CPC. He would submit that there is
no provision for filing additional written objection for clarification of
the statement in the written objection filed earlier. There is also no
provision under the Representation of People Act for filing
additional written objection. However, there are provisions under
the CPC for amendment of the written statement or written objection
filed in the proceedings of the election petition. Thus, a prayer has
been made to dismiss the petition.
7. This Court considered the rival submissions and also
perused the materials available on record.
8. In the present miscellaneous case, the applicant is
seeking leave to file written objection subsequent to the rejoinder
filed by the first respondent.
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
Page |5
9. The applicant, who is the original election petitioner,
has challenged the election of the first respondent from 33-Heirok
Assembly Constituency in Election Petition No.22 of 2022. Pending
election petition, the first respondent filed MC (EP) No.54 of 2022
to dismiss the election petition. Resisting MC (EP) No.54 of 2022,
the applicant has filed written objection on 29.8.2022 and the first
respondent has also filed his rejoinder/replication to the written
objection dated 29.8.2022. Finding certain statement made in the
rejoinder, which are required to be clarified by way of written
objection, the applicant praying leave of this Court to file written
objection/subsequent pleadings.
10. The present miscellaneous case has been opposed by
the first respondent contending that there is no provision for filing
additional written objection for clarification of the statement in the
written objection earlier filed and also there is no provision either
under the Representation of People Act or the Rules framed
thereunder or under the CPC for filing additional written objection.
11. The applicant himself admitted that the written
objection has been filed beyond the period of 30 days from the date
of supply of the copy of the rejoinder/replication filed by the first
respondent in connection with MC (EP) No.54 of 2022. Stating that
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
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the delay in filing the written objection was caused due to the time
taken in making inquiries, consultations and other clerical tasks in
obtaining various documents from the concerned Department, the
applicant is seeking leave to file written objection to the
rejoinder/replication. It is also the say of the applicant that he was
out of station with effect from 7.10.2022 to 12.10.2022.
12. Order 8, Rule 1 CPC provides that the defendant shall,
within thirty days from the date of service of summons on him,
present a written statement of his defence. Provided that where the
defendant fails to file the written statement within the said period of
thirty days, he shall be allowed to file the same on such other day,
as may be specified by the Court, for reasons to be recorded in
writing, but which shall not be later than ninety days from the date
of service of summons.
13. While explaining the sweep and mandate of Order 8,
Rule 1 and Order 8, Rule 10 CPC, the Apex Court in the case of
SCG Contracts (India) Private Limited v. K.S. Chamankar
Infrastructure Private Limited and others, reported in (2019) 12 SCC
210 held that a perusal of these provisions would show that
ordinarily a written statement is to be filed within a period of 30 days.
However, grace period of a further 90 days is granted which the
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
Page |7
Court may employ for reasons to be recorded in writing and
payment of such costs as it deems fit to allow such written
statement to come on record. What is of great importance is the fact
that beyond 120 days from the date of service of summons, the
defendant shall forfeit the right to file the written statement and the
Court shall not allow the written statement to be taken on record.
This is further buttressed by the proviso in Order 8, Rule 10 also
adding that the Court has no further power to extend the time
beyond this period of 120 days.
14. On a perusal of the first page of the present
miscellaneous case, the applicant stated the date of filing of the
rejoinder/replication by the first respondent as 13.09.2022.
Assuming that the rejoinder/replication was filed on 13.9.2022, the
thirty days' time prescribed under Order 8, Rule 1 CPC ends on
13.10.2022. However, the applicant has filed the miscellaneous
case for leave to file written objection on 19.10.2022.
15. The learned senior counsel for the first respondent
submitted that there are provisions under the CPC for amendment
of the written statement or written objection filed in the proceedings
of the election petition and therefore, the present miscellaneous
case is not maintainable and is liable to be dismissed.
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
Page |8
16. According to the applicant, there are certain
statements made in the rejoinder/replication which are required to
be further clarified by way of written objection/subsequent pleading.
17. At this juncture, the learned senior counsel for the first
respondent urged that the applicant has no right to file additional
written statement in the manner of subsequent pleadings. The
learned senior counsel also referred to the provision Order 8, Rule
9 CPC, which reads thus:
"9. Subsequent Pleadings - No pleading
subsequent to the written statement of a
defendant other than by way of defence to set-
off or counter-claim shall be presented except
by the leave of the Court and upon such terms
as the Court thinks fit; but the Court may at any
time require a written statement or additional
written statement from any of the parties and fix
a time of not more than thirty days for
presenting the same."
18. Under Order 8 Rule 9 CPC a wide discretion is given
to the Court to give a chance to the parties to agitate their right even
by raising subsequent pleas. Moreover, no restriction was imposed
with regard to the receiving of additional written statement under
Order 8, Rule 9 CPC after commencement of the trial like in the
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
Page |9
case of amending the plaint under Order 6, Rule 17 CPC where
unless the Court comes to the conclusion that in spite of due
diligence, the party could have not raised the matter before the
commencement of the trial. Thus, under Order 8 Rule 9 CPC wide
discretion is given to the Court to receive the written statement or
additional written statement to give opportunity to the parties to
agitate the case effectively. Therefore, the rigid principle applicable
in the case of amendment of plaint under Order 6 Rule 17, CPC
cannot be applied in the case of receiving additional written
statement under Order 8 Rule 9 CPC
19. It is well settled that the primary object of subsequent
pleading is to supply what has been omitted inadvertently or
unintentionally or to deny or clarify the facts stated in the pleadings
of the opposite party. In the rejoinder the plaintiff can be permitted
to explain the additional facts, which have been incorporated in the
written statement.
20. Admittedly, the applicant is not seeking to file written
statement or additional written statement to the original
miscellaneous case, namely, MC (EP) No.54 of 2022. The
applicant seeks leave to file his written objection to the
rejoinder/replication filed by the first respondent in MC (EP) No.54
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
P a g e | 10
of 2022. According to the applicant, the written objection sought to
be filed is a clarification to the statement made in the
rejoinder/replication filed by the first respondent. In order to
controvert the statement made in the rejoinder/replication, the other
party can be allowed to bring his version.
21. Time and again, the Apex Court as well as this Court
held that if the defendant introduces a new case, it is fair to allow
the plaintiff to file his subsequent pleading. Also, it has been laid
down that if the plaintiff amends his plaint, the defendant should be
given leave to file a subsequent pleading. Conversely, if the
defendant amends his written statement, then leave should be
granted to permit the plaintiff to file his additional pleading to react
to it. The leave to file an additional pleading may be granted to take
into account subsequent events, occurring after the filing of the suit
and to avoid multiplicity of suits.
22. In Olympic Industries v. Mulla Hussainy Bhai Mulla
Akberally and others, reported in (2009) 15 SCC 528, the Apex
Court held that even by filing an amendment or additional written
statement, it is open to defendant to add a new ground of defence
or to substitute or alter the defence or even to take inconsistent
pleas in the written statement so long as the pleadings do not result
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
P a g e | 11
in causing grave injuries/irretrievable prejudice to plaintiff. It was
further observed that mere delay is not sufficient to refuse
amendment of pleadings or an additional written statement.
23. It is not the case that there is a delay in filing the written
objection in MC (EP) No.54 of 2022. The delay canvassed by the
parties is to the filing of the written objection to the
rejoinder/replication filed by the first respondent. As stated supra,
the delay is very shorter and within the extended time period of 120
days.
24. In the instant case, the first respondent cannot be
allowed to introduce new pleas under the garb of filing
rejoinder/replication so as to alter the basis of his MC (EP) No.54 of
2022. In rejoinder, the first respondent has a right to explain only
the additional facts incorporated by the applicant in his written
objection to MC (EP) No.54 of 2022. If there appears to be certain
statement made in the rejoinder, which requires to be clarified, a
chance has to be given to the other side to file written objection.
Here, it is a case where after filing of the written objection to MC
(EP) No.54 of 2022, the first respondent had filed
rejoinder/replication. To deny and/or controvert the statement
made and to clarify the statement in the rejoinder/replication, the
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
P a g e | 12
applicant is entitled to file the written objection. If leave is granted
to file the written objection to the rejoinder/replication filed by the
first respondent in MC (EP) No.54 of 2022, no prejudice would be
caused to any of the respondents, much less the first respondent.
That apart, the written objection sought to be filed by the applicant
is in connection with the miscellaneous case and not the original
election petition. At this stage, if MC (EP) No.170 of 2022 is allowed
and leave is granted, no hardship would be caused to the first
respondent. Therefore, in the interest of justice and for proper
adjudication of MC (EP) No.54 of 2022, in the facts and
circumstances of the case, it would be appropriate to grant leave to
the applicant to file written objection to the rejoinder/replication
within the time limit.
25. It may be worthwhile to mention that the rules of
procedure like Order 8, Rule 1 CPC are aimed at not only advancing
the cause of justice, but also doing substantial justice between the
parties. In no case, the rule of procedure can be brought to be
interpreted in a manner, which may thwart the juridical process.
The ultimate aim of all laws including the procedural laws has to
finally set at rest controversies between the parties. Thus, while
allowing written objection to the rejoinder filed in MC (EP) No.54 of
2022 or refusing to accept the same, the Court should only see that
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
P a g e | 13
if such written objection is not accepted, the real controversy
between the parties could not be decided. As stated supra, if the
present miscellaneous case is allowed, no prejudice would be
caused to the respondents. On the other hand, if the written
objection to the rejoinder/replication is permitted to be filed, it would
be very much helpful for this Court to decide MC (EP) No.54 of
2022.
26. For all the reasons stated above, this Court is inclined
to pass the following orders:
(i) MC (EP) No.170 of 2022 in MC (EP)
No.54 of 2022 in Election Petition
No.22 of 2022 is allowed.
(ii) Leave is granted to the applicant to file
written objection to the
rejoinder/replication dated 13.9.2022
filed by the first respondent.
(iii) The applicant is directed to file written
objection to the rejoinder/replication in
MC (EP) No.54 of 2022 within a period
of seven (7) days from today. If the
applicant filed written objection to the
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
P a g e | 14
rejoinder/replication along with MC
(EP) No.170 of 2022, the same may be
received by the Registry.
(iv) No costs.
(v) It is made clear that in the given facts
and circumstances of the present case,
this Court granted leave to file written
objection to the rejoinder filed by the
first respondent. This order may not be
cited as precedent.
ACTING CHIEF JUSTICE
FR/NFR
Sushil
MC(El.Pet.) No. 170 of 2022 (Ref:- (i) MC(El.Pet.) No. 54 of 2022 & (ii) El.Pet. No. 22 of 2022)
