[Cites 3, Cited by 0]
Orissa High Court
Sushila Mallik vs Banita Mallik .... Opposite Parties on 16 January, 2026
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 36841 of 2025
Sushila Mallik .... Petitioner
Mr. T.K. Mishra, Advocate
-versus-
1. Banita Mallik .... Opposite Parties
2. Rina Mallik
3. Block Development Officer-
cum-Election Officer,
Surada Panchayat Samiti,
Ganjam
4. District Election Officer-
cum-Collector, Ganjam
Mr. A. Kejriwal, Advocate
CORAM: JUSTICE V. NARASINGH
ORDER
16.01.2026
Order No.
02. 1. Heard learned counsel for the Petitioner and
learned counsel for the Opposite Parties.
2. This is the second journey of the Petitioner
to this Court.
3. The Petitioner is the Respondent No.1 in
Election Petition No.01 of 2022 on the file of the
learned Civil Judge (Jr. Division), Surada instituted
by the Opposite Party assailing his election as
Sarpanch inter alia on the ground that the
Petitioner has incurred the disqualification of having
more than two children by the cut-off date i.e.,
21.04.1995, in terms of Section 25(1)(v) of Orissa
Grama Panchayat Act 1964. Paragraph-5 & 6 of the
Election Petition reads thus:-
"5. That,- as prescribed U/s. 25 1 (V) of the said Act
the respondent No.1 disqualified to contest Sarpanch
as her second & third child was born on 02.02.2002
and 28.07.2007 respectively i.e. after cut of date i.e.
21.04.1995.
6. That, the date of birth of the second and third
children, were born after cut of date as recorded in the
School Register of Barahi U.P. School, Sidhapur and
Govt. Nodal High School, Gouda Gotha respectively as
detail given in the schedule below.
Sl.No. Name of the Child Name of Parents Date of Birth
1. Sunita Mallik Magi Malik(Father) 02.02.2002
(Second child) Susila Mailik (Mother)
2. Mamata Malik Magi Malik (Father) 28.07.2007
(Third Child) Susila Mailik (Mother)
4. After filing of the written statement an
amendment was sought for by the Election
Petitioner-Opposite Party No.1 for introducing
details of the first child. For convenience of
reference, relevant extract of the Amendment
Petition is extracted hereunder:-
"4. That, the required amendment is as follows in
5th & 6th paragraph.
5th Paragraph:-
That as prescribed U/s 25(1)(v) of the said act the
respondent No.1 disqualified to contest
Sarapancha as her first child born on 05/06/1990.
Second & Third child born on 02/02/2002 &
28/07/2007 respectively i.e. after cut of date i.e.
21/04/1995.
6th Paragraph:-
That, the date of birth of the first child i.e. Banita
Mallik is 05.06.1990 as recorded in Govt. Primary
School, Kalakhadi, Ganjam, the date of birth of
the second and third children, were born after cut
of date as recorded in the School Register of
Barahi U.P.School, Sidhapur and Govt.Nodal High
School, Goudagotha respectively as given details
in the schedule below.............."
5. An objection to the said effect was filed by
the present Petitioner-the returned candidate, inter
alia, on the ground that the same will change the
nature and character of the lis.
6. Since the learned Court in seisin allowed the
amendment, the Petitioner initially challenged the
same by filing W.P.(C) No. 31650 of 2022 and this
Court by order dated 29.04.2025, keeping in view
that the Petitioner has a statutory remedy of
appeal, directed him to prefer an appeal and
accordingly the Petitioner filed Election Appeal No.
02 of 2025 before the learned Additional District
Judge, Bhanjanagar. The judgment dated
27.11.2025 passed by the Appellate Court,
concurring with the finding of the Trial Court and
allowing the amendment, is assailed in the present
writ petition.
7. It is the submission of the learned counsel
for the Petitioner that allowing the amendment
after filing of the written statement militates
against the schematic arrangement of the Grama
Panchayat Act relating to the Election Petition. And,
in this context attention of this Court is drawn to
Section 33 of the Orissa Grama Panchayat Act,
1964.
7-A. It is his further submission that, by way of
amendment, the details which were not within the
knowledge of the Petitioner at the time of filing of
the Election Petition are sought to be introduced,
which according to the learned counsel for the
Petitioner ought not to have been allowed and
which changes the nature and character of the lis
and even otherwise is not permissible.
7-B. It is stated that the learned Trial Court while
allowing the amendment has not given any finding
regarding the change of nature and character of the
litigation which was specifically pleaded by the
Petitioner.
7-C. It is stated that so far as the Appellate Court
is concerned, it has mechanically exercised its
jurisdiction. Hence, the matter merits consideration
of this Court.
8. Learned counsel for the Opposite Party- the
Election Petitioner submits that there is no infirmity
in the impugned orders and rebutting the
contention of the learned counsel for the Petitioner
regarding the finding of the learned Trial Court,
submits that the learned Trial Court, though in so
many words has not expressed any view regarding
the claim that the amendment will change the
nature and character of the litigation, has held that
it is necessary for just and effective adjudication.
Referring to the pleadings and paragraphs of the
Election Petition quoted hereinabove, it is submitted
that the pleadings in substance were already there
and the amendments sought only to explain the
same with regard to the first child. Hence, by no
stretch of imagination it can be said to have
changed the nature and character of the lis.
8-A. The attention of this Court has also been
drawn to the finding of the learned Appellate Court
at page-10 of the said order and for convenience
the said finding is extracted hereunder:-
"The amendment sought for by the
petitioner/respondent no.1 in the present case is to
further explain her pleading by mentioning the name,
date of birth and the school of the first child of the OP
No.1/appellant, the same is bona fide and necessary
for proper and effective adjudication of the election
petition, although filed after framing of issues. Such
amendment will also no way change the nature and
character of the proceeding.
That apart accepting the amendment already
allowed by the trial court, in the meantime both
parties have adduced their respective evidence and
the proceeding before the trial court is now at the
stage of argument. No fruitful purpose will be served
by disallowing the amendment at this stage, rather it
will further linger the election dispute pending since
2022."
(Emphasized)
9. From the order of the learned Appellate
Court it is evident that both sides have led evidence
in the case at hand in support of the pleading post
amendment and the matter is at the stage of
argument.
10. It is submitted by the learned counsel for the
Petitioner that since manifest error has been
committed by the Courts in seisin, merely because
the matter has proceeded and is pending for
argument ought not to deter this Court from
deciding the validity of the amendment.
11. To fortify his submission, learned counsel for
the Petitioner relied on the judgment of this Court
dated 25.08.2022 passed in W.P.(C) No.19989 of
2022.
12. On a bare perusal of the factual matrix of the
case at hand, this Court is of the considered view
that the case law cited does not apply to the facts
of the present case.
13. Considering the rival submissions, this Court
is persuaded to hold that the amendment as sought
for is explanatory, as rightly pointed out, since the
pleadings in substance were already there. Hence,
this Court does not find any infirmity in the
appreciation of the materials on record by the
learned Courts below in allowing the amendment so
as to warrant interference by this Court.
14. Accordingly, the writ petition stands disposed
of.
15. In view of disposal of the writ petition,
pending I.As. also stand disposed of.
(V. Narasingh)
Judge
Ayesha
Location: High Court of Orissa, Cuttack
