Hathi Singh vs Bheraram
2021 Latest Caselaw 18487 Raj

(1 of 18) [CW-15257/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

S.B. Civil Writ Petition No. 15257/2021

Hathi Singh S/o Shri Kishan Singh, aged about 23 years, resident of Village Belwa Khatriya, Tehsil Balesar, District Jodhpur.

----Petitioner Versus Bheraram S/o Shri Chhagnaram, resident of Village Belwar Khatriya, Tehshil Balesar, District Jodhpur (Raj.)

----Respondent

For Petitioner(s) : Mr. O.P. Mehta For Respondent(s) : Mr. G.R. Punia, Sr. Advocate assisted by Mr. Mahaveer Bhanwariya

JUSTICE DINESH MEHTA

Order reserved on ::: 24/11/2021

Order pronounced on ::: __/12/2021

Reportable

1. The jurisdiction of this Court under Article 226/227 of the

Constitution of India has been invoked by the petitioner, for the

purpose of challenging the order dated 27.07.2021, passed by the

learned Senior Civil Judge, Jodhpur District Jodhpur (hereinfater

referred to as 'the Election Tribunal' or 'the Tribunal').

2. Before adverting to the legal issues involved, it would be apt

to run through the factual canvas of the case.

3. The respondent-election petitioner filed an election petition

under Section 43 of the Rajasthan Panchayati Raj Act, 1994

(hereinafter referred to as 'the Act of 1994') read with Rule 80 of

the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter

referred to as 'the Rules of 1994'). It was inter alia averred in the

(2 of 18) [CW-15257/2021]

election petition that petitioner-returned candidate and the

respondent-election petitioner had submitted their nomination

forms for the post of Sarpanch, Gram Panchayat Belwa Khatriya.

Apart from the petitioner and respondent, various other persons

had submitted their nomination forms, out of which some

withdrew their nomination forms whereas forms of some of them

were rejected. Resultantly only two candidates, the petitioner and

the respondent, remained in the contest for the post of Sarpanch.

4. The election was held on 17.01.2020 through electronic

voting machine, and on the same day the votes were counted and

the result was declared. The petitioner herein was declared a

returned candidate.

5. The details of votes as given in the election petition are

reproduced hereunder:-

     Total electoral                        :                     2917
     Votes casted                           :                     2446
     Votes secured by election - petitioner :                     1174
     Votes secured by returned candidate :                        1242

6. The election petitioner-respondent challenged the petitioner's

election on the sole ground that he did not fulfill the requisite age

criteria provided in Section 19(a) of the Act of 1994, viz.-

'minimum age of a candidate should be 21 years'.

7. The present petitioner (non-petitioner in the election

petition) filed an application under Order VII Rule 11 of the Code

of Civil Procedure and requested the Tribunal to reject the election

petition, as the verification filed in the memo of election petition

was not in accordance with Rule 83 of the Rules of 1994. The

(3 of 18) [CW-15257/2021]

application so filed by the petitioner herein was rejected by the

Tribunal vide its order dated 18.08.2020.

8. Against the order aforesaid, passed by the Tribunal, the

petitioner preferred a writ petition before this Court, which was

registered as SB Civil Writ Petition No.11327/2020. During the

course of arguments of the writ petition, the counsel for the

respondent though conceded that the verification was defective,

nevertheless submitted that such defect is a curable defect and in

light of judgment of Hon'ble the Supreme Court in the case of R.P.

Moidutty Vs. P.T. Kunju Mohammed, reported in AIR 2000 SC

388, he be permitted to cure the same.

9. Acceding to the request so made, on 05.04.2021, petitioner's

earlier writ petition came to be disposed of in the following

terms:-

"On such categorical submission made by the learned Senior Advocate, the present writ petition is disposed of with liberty to the respondents to cure the defect as per the statement made by Sr. Advocate Mr. Punia in the verification in question strictly in accordance with law within a period of two weeks from today.

In case after curing of the defects, any defect in the petition as well as documents remains, the petitioner shall be at liberty to take it up the same before the learned court below."

10. The respondent-election petitioner, in turn, filed an

application dated 09.04.2021 with the caption "Application under

Order VI Rule 15 read with Section 151 CPC". While making

reference of the order dated 05.04.2021, passed in earlier writ

petition, the respondent submitted one verification for the election

petition and another verification, verifying the documents and

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prayed that he be permitted to verify the documents (which were

already filed with the election petition) by signing them.

11. The application filed by the respondent-election petitioner

was opposed by the returned candidate (petitioner herein) and a

detailed reply was filed stating therein that the application, which

has been filed by the respondent under Order VI Rule 15 of the

Code, was incompetent as the provision for amendment of the

pleadings are given under Order VI Rule 17 of the Code. According

to the petitioner, it was done intentionally in order to wriggle out

from the rigours of the provisions of Order VI Rule 17 of the Code,

which restricts the right of amendment, once the trial has

commenced.

12. It was also contended by the non-petitioner (petitioner

herein) that the High Court had permitted the election petitioner

to cure the defects 'in accordance with law' and the same cannot

be done in the manner attempted to.

13. After hearing the contentions of rival parties, the Tribunal

allowed the respondent's application dated 09.04.2021, with an

observation that the verification is not a part of pleadings and the

same has been filed under correct provision of law (Order VI Rule

15 of the Code). Resultantly, both the verifications and the

affidavit were taken on record and the election-petitioner was

permitted to sign the documents, which were filed with the

election petition.

14. Challenging the order aforesaid, Mr. Om Mehta, learned

counsel for the petitioner vehemently argued that the Tribunal has

fallen into a manifest error of law in repelling the petitioner's

argument that for the purpose of filing a fresh verification, the

provisions of Order VI Rule 15 of the Code were not applicable.

(5 of 18) [CW-15257/2021]

According to him, the verification is an integral part of pleading

and, therefore, the enabling provision for such purpose is, Rule 17

of Order VI and not Rule 15.

15. He emphasized that Order VI Rule 15 of the Code provides

for a verification to be appended at the foot of plaint or written

statement and if any amendment is to be made, the same can be

sought only under the provisions of Order VI Rule 17 of the Code.

And, therefore, while considering a prayer for curing or permitting

fresh verification, the Court must keep in mind the principles

applicable for Order VI Rule 17 of the Code.

16. He added that had the respondent (election-petitioner)

submitted the application under Order VI Rule 17 of the Code, his

application would have been hit by the proviso to Rule 17 of Order

VI of the Code. He argued that since the issues have been framed

and consequently trial has commenced, the application for

amendment filed by the respondent, could not have been allowed,

as no averment has been made therein that in spite of due

diligence, he could not cure the fundamental lacunae in the

verification.

17. According to him, the expression "due diligence" used in the

proviso is of great significance and coming to the facts of the

present case, the respondent cannot even plead due diligence,

because he had not only filed the election petition casually but has

also contested the matter till the High Court with the contention

that the verification was in order. He pointed out that it was only

when he did not find a way out, a liberty was sought to cure the

defect taking shelter of the judgment of the Supreme Court.

18. Mr. Mehta also flagged that along with the subject

application, the respondent has filed an affidavit in support of the

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documents, whereas he was required to file a verification in terms

of Rule 83 of the Rules of 1994. While inviting Court's attention

towards the fact that the Tribunal has allowed the respondent's

application and taken on record the verification separately filed

with the application, without realizing that the earlier defective

verification filed with the petition continues to remain on record,

he wondered that where would the subsequent verification (filed

with the application) be placed. According to him, the lacuna still

persists because as per Rule 83 of the Rules of 1994, the pleading

is invariably required to have a verification at its foot.

19. Mr. G.R. Punia, learned Senior Counsel, appearing for the

respondent (election-petitioner), firstly invited Court's attention

towards the provision of order VI Rule 3 of the Code and

submitted that it provides for various forms in Appendix 'A' and a

careful reading of the same shows that the Appendix 'A' does not

contain any form of verification which clearly suggests that the

verification is not a part of pleading.

20. He argued that for the purpose of correcting the error in the

verification filed with the election petition so also filing verification

for the documents, the relevant and applicable provision was,

Order VI Rule 15 of the Code and the order under challenge

rejecting petitioner's contention that the same is required to be

done by an application under Order VI Rule 17 of the Code is just

and proper.

21. Reading the definition of the term "pleading" given in Order

VI Rule 1 of the Code, he submitted that the pleading only means

plaint and written statement and not verification. According to

him, the verification not being part of the pleadings, can be

amended by way of an application either filed under Order VI Rule

(7 of 18) [CW-15257/2021]

15 of the Code or under inherent powers of the Court contained in

Section 151 of the Code, and there was no requirement of

resorting to the provisions of Order VI Rule 17 of the Code.

22. Learned Senior Counsel took the Court through the

provisions of Rule 2 of Order VI of the Code and pointed out that

the expression "pleadings" makes no reference of verification; in a

bid to substantiate his stance that verification is not a part of

plaint, written statement or even the pleadings.

23. Without prejudice to his above contentions, learned Senior

Counsel, submitted that Section 151 of the Code confers inherent

and unlimited powers upon the Court to pass appropriate orders to

serve the ends of justice. He argued that since this Court had

already given the respondent (election petitioner) a liberty to cure

the defects, it was required of the Tribunal to permit him to do so,

without being influenced by the trivial technicalities.

24. Clinging to his stance that the application in question was

filed under correct provision, learned Senior Counsel, in the

alternative, submitted that mere wrong mentioning of provision

cannot defeat the right of a party, if such power is traceable

elsewhere. For this purpose, a reliance was placed upon the

judgment of this Court in the case of Shyam Kumar Vs. Surendra

Kumar Goyal, reported in 2017 (1) WLC 651 (UC), in order to

lend support to his argument.

25. Mr. Mehta, learned counsel for the petitioner, in rejoinder,

submitted that it is a settled position of law that if a thing is

required to be done in a particular manner, it has to be done in

the same manner, while referring to the judgment of Hon'ble the

Supreme Court in the case of Pankajbhai Rameshbhai Zalavadia

(8 of 18) [CW-15257/2021]

Vs. Jethabhai Kalabhai Zalavadiya (deceased) through LRs & Ors.,

reported in (2017) 9 SCC 700 (para No.16).

26. Responding to the arguments of Mr. Punia, based on the

language of Rule 3 of Order VI of the Code, he argued that merely

because form of verification is not prescribed in Appendix "A", it

cannot be said that verification is not a part of pleading. He added

that the language of Rule 3 of Order VI of the Code clearly

suggests that it is inclusive and not exhaustive.

27. Learned counsel for the petitioner argued that the Tribunal

ought to have accepted petitioner's basic objection that the defect

in verification of the petition and in relation to documents, cannot

be cured at the strength of the subject application, which was

intentionally not filed under Rule 17 of Order VI of the Code.

28. Heard.

29. Concededly, the documents which were not supported by a

verification and the verification appended with the memo of

election petition, (as filed) were not in tune with the provision of

Rule 82 of the Rules of 1994 and these defects were permitted to

be cured by this Court, in light of judgment of Hon'ble the

Supreme Court in the case of R.P. Moidutti (supra).

30. But then, the moot question is; how these defects were to be

cured?

31. In the earlier verification, the respondent had given a

general remark that para No.1 to 17 of the petition are true and

correct based on his personal knowledge and legal advice. The

present petitioner objected to such verification, as the same did

not conform to the requirement of sub-rule (2) of Rule 15 of Order

VI of the Code.

(9 of 18) [CW-15257/2021]

32. In furtherance of the liberty granted, the respondent filed a

verification indicating that para No.1 to 13 are true and correct to

his knowledge and para No.14 to 17 are believed to be correct on

the basis of legal advice. But said verification was filed along with

an application captioned as "application under Order VI Rule 15 of

the Code read with Section 151 CPC".

33. This Court is unable to uphold the view of the Tribunal that

the verification is not part of pleading and if any amendment in

the verification is required to be done, Order VI Rule 15 of the

Code is the relevant provision.

34. In the opinion of this Court, Order VI Rule 15 of the Code

enjoins that every pleading shall be verified at the foot by the

party. Said provision, to my mind, is only an enabling provision,

which too is an integral part of Order VI, having chapter heading

"Pleadings Generally". Rule 15 provides for requirement so also

pre-requisites of verification, hence, in the opinion of this Court,

verification cannot be treated as anything but a part of pleading,

standing alone, a verification per-se has no identity much less,

have any significance.

35. If the argument of Mr. Punia, learned Senior Counsel, were

to be accepted that an application to amend the verification is

maintainable under Order VI Rule 15 of the Code only, then a

plaint can be amended under Order VII Rule 1 of the Code and so

can be a written statement, under Order VIII Rule 1 of the Code.

Because Rule 1 of Order VII and Order VIII respectively prescribes

what should be contained in the plaint and what should be

contained in the written statement as does Rule 15 of Order VI

regarding verification. Else, there was no need of enacting a

(10 of 18) [CW-15257/2021]

separate provision for amendment in the form of Rule 17, even for

plaint and written statement.

36. The issue as to whether verification is a part of pleading and

whether provision of Order VI Rule 17 can be pressed into service

for amending verification came up before Delhi High Court and

Bombay High Court. Though, the views of both the High Courts

are diametrically opposed, but nevertheless it would be profitable

to sail through the elucidation made in their judgments with

concise narration of facts.

37. Briefly stated, the facts appertain to the case of Jotiram

Shiva Patil and Ors. vs. Dwarkabai Yashwant Mardane and

Ors. [2012 (4) Bom CR 190; MANU/MH/1590/2011] are

that the Defendants therein moved applications before the trial

court for permitting the other Defendants to sign the written

statement and file the supporting affidavit in terms of Order VI of

the Code and also for correcting the verification clause. The said

applications came to be rejected and accordingly an appeal was

preferred before the High Court wherein the Respondents-

Plaintiffs' objection was that the verification clause can by no

stretch of imagination be called as pleadings; it was argued that

the reliance of the Petitioners-Defendants on the judgments

relating to jurisdiction of the Court under Order VI Rule 17 of the

Code was misplaced and the reference to Order VI Rule 17 of the

Code was a misnomer as the Defendants-Petitioners by way of the

said Applications were in fact invoking the jurisdiction of the

Appellate Court under Section 153 of the CPC. The High Court

accepted the said objection by holding as follows:

"12. Though the Trial Court has proceeded on the premise that the said applications Exhibit 43 and

(11 of 18) [CW-15257/2021]

43A have been filed invoking Order 6 Rule 17 of the CPC. In my view, the reference to the said provision is erroneous in view of Order 6 Rule 1 and Order 7 Rule 1 of the CPC.. The permission to sign the pleadings and to sign the verification clause can by no stretch of imagination be said to be amendment of pleadings. The signing of the pleadings and the verification can only be said to be for authenticating the said pleadings by their proponents. The Trial Court has, therefore, erred in adverting to Order 6 Rule 17 of the CPC. However, that would not make any material difference in view of the fact that the Court is sufficiently ceased with powers under Section 153 of the CPC to permit the correction of any defect or error in the proceedings so as to facilitate the determination of the real question before the Court."

38. In the case of FMC Corporation and Ors. vs. NATCO

Pharma Limited [2020 IVAD (Delhi) 553;

MANU/DE/1380/2020] the Court allowed I.A. No. 4274/2020

and 5209/2020 filed under Order VI Rule 17 of the Code by the

Plaintiffs. The I.A. No. 4274/2020 sought to amend the verification

below the plaint whereas during pendency of the I.A. No.

4274/2020 the Plaintiffs preferred I.A. No. 5290/2020 seeking

once again to amend the verification below the plaint to rectify the

error that had crept in the amended verification proposed in I.A.

No. 4274/2020. The Court while allowing the said applications

held as follows:

"23. Applying the above principles, it is obvious that the amendments, in the verification, below the plaint, and in para 3 of the Statement of Truth accompanying the plaint, as proposed in I.A.

5209/2020, are required to be allowed. Trial, in the case, is yet to begin. The defendant has not placed once scintilla of material, on record, or advanced any submission, whatsoever, to indicate that allowing the amendments, as sought by the

(12 of 18) [CW-15257/2021]

plaintiffs, would result in irreparable prejudice to the defendant. Recitals, regarding the place and date, when the plaint was verified, and the basis for claiming the contents, of the various paragraphs, in the plaint, to be true and correct, are within the knowledge of the deponent and, if, as originally filed, any error, omission, existed in respect thereof, there can be no embargo, whatsoever, on the deponent rectifying the error, by invoking the jurisdiction, of the Court, to allow amendment of the pleadings. Processual justice cannot afford to be tight-fisted. The submission that the amendments had "a significant bearing on the whole case", "a serious impact on cross examination" and "adversely impacted any possible of compliance with trial procedures" are, quite obviously, merely platitudes, with little substance. The submission that allowing the amendments, in para 3 of the Statement of Truth, and in the verification below the plaint, would impede cross examination, or due compliance with trial procedures, is completely incomprehensible; significantly, though these contentions have been advanced, in para 2 of the written submissions, placed on record by the defendant after reserving of judgment on these applications, Mr. Sai Deepak, with his experience, did not seek to so urge during arguments. The mere fact that the amendments may have been sought, consequent to the lacunae, in the verification and the Statement of Truth, having been pointed out by the defendant during arguments before this Court, cannot, either, constitute a ground to reject the prayer for amendment. At all times, it has to be remembered that the power to allow amendment is in furtherance of the duty, of the court, to decide the lis before it on merits, unencumbered by technical considerations and is required, therefore, to be exercised with the full awareness of the sweep and expansiveness it possesses. Disallowing the amendments, as sought, and allowing the suit to proceed to trial with the defects, in the verification below the plaint, and in the corresponding paragraph of the Statement of Truth, remaining unremedied, would go against the very grain and

(13 of 18) [CW-15257/2021]

philosophy of Order VI Rule 17. Such an approach has, therefore, sedulously to be avoided."

39. Upon perusal of the aforesaid judgments it is clear that the

positions taken by the Delhi High Court and the Bombay High

Court are at odds in so far as treatment of verification below the

plaint is concerned, inasmuch as the former holds the verification

below the plaint to be well within the scope of pleadings as

envisaged under Order VI Rule 17, whereas the latter considers it

to be outside the scope of pleadings as envisaged under Order VI

Rule 17.

40. According to this Court, in order to clothe the Courts with

power to decide the lis on merit and to further the course of

justice, Rule 17 was inserted in Order VI for the purpose of

amendment of pleadings. The only source of power to permit the

correction can be found only in Rule 17 of Order VI read with

Section 151 of the Code and not in Order VI Rule 15 of the Code.

41. Now comes the second question, whether the curing of the

defect in the earlier verification is headed by proviso to Rule 17 of

Order VI of the Code?

42. Before embarking upon this question, it would be better to

have a glance over the provisions of Rule 17 of Order VI of the

Code, which is being reproduced hereunder:-

"17. Amendment of pleadings.- The Court may at any stage of the respondents 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.

(14 of 18) [CW-15257/2021]

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

*Emphasis supplied.

43. It is pertinent to note that rule 17 of Order VI of the Code

uses different expressions in its body vis-a-vis the proviso. The

main provision uses expression "to alter or amend his

pleadings", whereas in the proviso, the expression used is-"no

application for amendment".

44. Before reading into the words 'alter' and 'amend', it would be

appropriate to briefly advert to the various definitions and the

legal treatment of the said words in jurisprudence.

45. Black's Law Dictionary

"Alter. To make a change in; to modify; to vary in some degree; to change some of the elements or ingredients or details without substituting an entirely new thing or destroying the identity of the thing affected. To change partially. To change in one or more respects, but without destruction of existence or identity of the thing changed; to increase or diminish.

See Alteration; Amend; Change.

Alteration. Variation; changing; making different. A change of a thing from one form or state to another; making a thing different from what it was without destroying its identity.

See Alter. An act done upon an instrument by which its meaning or language is changed. Language different in legal effect, or change in rights, interests, or obligations of parties. It introduces some change into instrument's terms, meaning, language, or details. The term is not properly applied to any change which involves the substitution of a practically new document. An alteration

(15 of 18) [CW-15257/2021]

is said to be material when it affects, or may possibly affect, the rights of the persons interested in the document."

"Amend. To improve. To change for the better by if moving defects or faults. To change, correct, revise." "Amendment. To change or modify for the better. To alter by modification, deletion, or addition. Practice and pleading. The correction of an error committed in any process, pleading, or proceeding at law, or in equity, and which is done either as of course, or by the consent of parties, or upon motion to the court in which the proceeding is pending. Under Fed. R. Civil P., any change in pleadings, though not necessarily a correction, which a party may accomplish once as a matter of course at any time before a responsive pleading has been served. Such amendment may be necessary to cause pleadings to conform to evidence. Rule 15(a), (b). The amendment relates back to the original pleading if the subject of it arose out of the transaction set forth or attempted to be set forth in the original pleading."

46. Webster's English Dictionary "alter. 1. to make different in some particular, as size, style, course, or the like; modify: to alter a coat; to alter a will; to alter course. 2. to castrate or spay.3. to change; become different or modified."

"amend. 1. to alter, modify, rephrase, or add to or subtract from (a motion, bill, constitution, etc.) by formal procedure: Congress may amend the proposed tax bill. 2. to change for the better; improve: to amend one's ways.

3. to remove or correct faults in; rectify. 4. to grow or become better by reforming oneself: He amends day by day."

47. There is a subtle yet significant difference in the expression

'alter', and 'amend'. The term 'alter' means modification or change

(16 of 18) [CW-15257/2021]

without bringing out the change in the body; whereas expression

'amend' has a wider meaning and larger scope, which means and

includes a change, which may be substantial. An amendment

always involves an alteration but an alteration does not

necessarily amount to amendment.

48. A careful reading of the proviso shows that an application for

amendment cannot be allowed unless the Court comes to a

conclusion that in spite of due diligence, such party could not have

raised the matter before the commencement of the trial.

49. According to this Court, the proviso is meant to deal with

those cases, where a party seeks to amend the pleadings so as to

bring new facts or new grounds on record. That is why, the

proviso with restrictive scope has been worded by using

expression - "that in spite of due diligence, the party could not

have raised it before the commencement of trial".

50. In other words, the proviso comes into play when a party

seeks to amend pleading in such a manner that a new fact or new

ground is sought to be introduced and in that event, the party has

to satisfy the Court that despite due diligence such matter could

not be raised before the commencement of trial.

51. Whereas, in the cases where a party seeks to alter the

pleading or cure the defect(s), which is/are not of much

importance or cases which involve correction/alteration qua

inconsequential facts/matters or particulars, neither is the proviso

to Rule 17 of Order VI of the Code applicable nor is a party

required to show the reason for delay or due diligence. This view

of mine gets strength from the expression 'due diligence' used in

the proviso is followed by, 'could not have raised the matter'.

(17 of 18) [CW-15257/2021]

52. There is no gainsaying that the verification in support of the

documents was absent and further the verification with the plaint

was not in accordance with Rule 82 of the Rules of 1994 were the

only two defects, and both of them were not only held to be

curable but were also allowed to be cured by this Court in

petitioner's earlier inning.

53. The expression 'cure the defect' used in order of this Court,

itself suggests that it did not fall within the ambit of 'amend', as

no new fact or ground was sought to be introduced by the

respondent-election petitioner.

54. In light of the aforesaid discussion, this Court is of the

considered view that though the election tribunal could have

permitted the respondent-election petitioner to cure the defect in

its inherent powers under Section 151 of the Code, yet even if

some provision of the Code is to be resorted to, then it was to be

done within the contours of Order VI Rule 17 of the Code, because

the case in hands squarely falls within the fold of expression

'alter'. Hence, proviso to Rule 17 of Order VI of the Code had no

bearing so as to satisfy the Court about the due diligence.

55. In view of the foregoing discussion, this Court has strong

reasons to affirm the order impugned dated 27.07.2021.

56. Consequently, the petition for issuing a writ of certiorari fails.

57. The stay application also stands disposed of accordingly.

58. The Election Tribunal shall, however, permit the election

petitioner to score-out the verification already filed with the

election petition and then place the verification filed with the

(18 of 18) [CW-15257/2021]

application dated 09.04.2021, just after the memo of the election

petition so that it would seemingly be at the foot of the plaint.

(DINESH MEHTA),J

/skm/-

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