Manipur High Court
Thangjam Mohendro Singh vs Thokchom Lokeshwar Singh on 27 September, 2024
Author: A.Guneshwar Sharma
Bench: A.Guneshwar Sharma
NON-reportable
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC (El Pet) 208 of 2022 with
El Pet No.29 of 2022
Thangjam Mohendro Singh,
aged about 64 years, s/o late
Thangjam Maipak Singh of Haraorou,
P.O.Pangei Yangdong & PS
Sagolmang, District Imphal East,
Manipur 795114 ... Applicant/Election Petitioner
-Versus-
1. Thokchom Lokeshwar Singh,
aged about 55 years s/o late Thokchom
Navakumar Singh of Sagolmang Mamang
Leikai, PO Pangei & PS Sagolmang,
District, Imphal East, Manipur 795114.
2. Thangjam Shyam Singh aged about 60 years,
S/o Late Th.Ibocha Singh of Pangei
Yangdong, PO Pangei & PS Heingang, Districtc
Imphal East, Manipur 795114,
3. Elangbam Sovid Singh, aged about
45 years, s/o Elangbam Ibochouba Singh of
Khewa Sagolmang, PO Pangei & PS
Lamlai, Imphal East District,
Manipur 795114. ... Respondents
BEFORE
HON'BLE MR. JUSTICE A.GUNESHWAR SHARMA
For the Applicant :: Mr.A.Mohendro, Advocate
For the respondents :: Mr.N.Ibotombi, Sr.Advocate
Ms.N.Savitri, Advocate
Date of hearing :: 08.04.2024
Date of order :: 27.09.2024
JUDGEMNT & ORDER (cav)
[1] By the instant application, under Order 8 Rule 9 of the
Code of Civil Procedure read with Section 148 of the same Code, the
applicant/election petitioner is praying for leave for filling Replication
in the Election Petition No.29 of 2022.
[2] Heard Mr. A. Mohendro, learned counsel for the
applicant/election petiitoner and Mr. N. Ibotombi, learned senior
counsel assisted by Ms. N. Savitri, learned counsel for the
respondent No.1/returned candidate.
[3] In the application it is stated that respondent No.1 has
filed written statement to the Election Petition No.29 of 2022 and
after perusal of the contentions made in the written statement, it
has been noticed that certain plea has been taken by Respondent
No.1 for establishing his contentions and for negating the case set
up by the Applicant/Election Petitioner and the same need to be
replied and clarified by way of filing subsequent pleading for
determining the issues in the Election Petition No.29 of 2022.
[4] Respondent No.1 filed written objection to the instant
application. The provision under which the present application is
filed is not applicable and as such, the application is not
maintainable and liable to be dismissed. It is also stated that if the
application is allowed, it may amount to introducing new facts and
the same is not permissible by law.
[5] In support of his argument, Mr. A. Mohendro, learned
counsel for the applicant relied on the decisions of Rajasthan High
Court in the case of (1) Gurjant Singh Vs Krishan Chander &
Ors: (2000) AIHC 3848, (2) Kalyan Mal Mina Vs Ratan Lal
Tambi: (1981) AIR (Raj) 249 to emphasise the point that the
provisions of CPC including the provisions of Order 8 Rule 9 will be
applicable in an election petition in terms of provisions of Section 87
of RP Act.
[6] Mr. N. Ibotombi, learned senior counsel for the
respondent also placed his reliance on the decision of this Court in
the case of Thangjam Mohendro Singh Vs Thokchom
Lokeshwar Singh in MC (E.P.) No.23 of 2017 Ref: Election
Petition 3 of 2017 [Judgment Dated 05.07.2019]. Referring
to various case laws of the Hon'ble Apex Court, it was held that the
application under Order 8 Rule 9 CPC cannot be treated as one
under Order 6 Rule 17 CPC. In the guise of filing subsequent
pleading, incorporation of new plea cannot be introduced so as to
change the nature of the case.
[7] Learned senior counsel draws the attention of this
Court to the proposed replication/subsequent pleading of the
election petitioner specially the contents of para 5 to 9 where the
petitioner has disputed the settled fact of adoption in earlier judicial
proceeding for the first time in the replication. It is pointed such a
plea has been mentioned in the election petition. This amounts to
amendment of the election petition by introducing new plea of
disputing the adoption of the returned candidate. The election result
of the returned candidate was declared on 10.03.2022 and the
replication was filed on 25.11.2022, ie, after 200 days of the
declaration of the result. It is submitted that such as application is
barred by combined reading of the provisions of Sections 87, 81 and
83 of RP Act and Order 8 Rule 9 CPC. Any amendment of election
petition beyond 45 days is not permissible that too introducing new
material facts. It is reiterated that the application under Order 8 Rule
9 CPC is nothing but an application under Order 6 Rule 17. It is
prayed that the application be rejected with heavy cost.
[8] It is the settled principle of law that new plea to
change the nature of the case cannot be introduced by way of
amendment or in form of subsequent plea. The salutary provisions
of Order 8 Rule 9 and Order 6 Rule 17 are aimed to facilitate in
arriving a correct decision based on relevant facts. However, such
provisions cannot introduce altogether new facts to change the
nature of dispute. In election petition, any introduction of new
material facts is to be made within 45 days' time limit fixed by
Section 81 of RP Act, if the same is permissible.
[9] On perusal of contents of para 5 to 9 of the replication
proposed to be filed by the election petition, it is seen that new
material facts disputing the adoption of the returned candidate have
been raised for the first time. Such facts have not been averred in
the petition. Moreover, this Court, as election tribunal, has no
jurisdiction to examine the factum of adoption of the returned
candidate which fact that has already been accepted in earlier
judicial proceedings. By the present replication, the election
petitioner has introduced new material facts in the petition and the
same is not permissible in view of the clear provisions of Sections
81, 83 and 87 of RP Act read with Order 8 Rule 9 and Order 6 Rule
17 CPC.
[10] Accordingly, the application being MC(EP) No. 208 of
2022 is rejected with a cost of Rs. 10,000/- (Rupees ten thousand)
only to be deposited in favour of High Court Legal Services
Committee. Election petitioner is to submit proof of deposit of the
cost before the next date.
[11] List election petition No. 29 of 2022 along with the
pending applications on 10.10.2024 for further proceedings.
JUDGE
FR/NFR
RAJKUMAR RAJKUMAR PRIYOJIT
SINGH
PRIYOJIT SINGH Date: 2024.09.27 13:14:52
+05'30'
