Kantekar Madhumohan vs The Municipal Election Authority ...
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 THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                         AND
       HON'BLE SRI JUSTICE A.RAJASHEKER REDDY

                 WRIT APPEAL Nos.590 & 591 of 2021


COMMON JUDGMENT :(per Hon'ble Sri Justice A.Rajasheker Reddy)

         These Writ Appeals are filed against orders dated 18.10.2021 in

W.P.No.22479 of 2021 and 22334 of 2021, wherein and whereby the

learned Single Judge dismissed the writ petitions filed for quashing the

order In I.A.No.787 of 2021 in EOP No.121 of 2020 & I.A.No.789 of

2021 in EOP No.124 of 2020 dated 02.09.2021, respectively, on the file

of the Principal District Judge, Ranga Reddy District at L.B.Nagar-

cum-Election Tribunal allowing amendment to the Election Petition.


2.      Since the issue involved in both the writ appeals is arising out of

allowing of an amendment in Election Petition, they are being heard

together and disposed of by way of Common Judgment.


3.      Heard learned counsel for the parties.


        Sri A.Prabhakar Rao, learned counsel for the appellant submits

that the Election Petition was filed challenging the election of

Chairperson and Vice-Chairperson, without mentioning the name of

the returned candidates of Chairperson along with I.A.Nos.787 & 789

of 2021 on 22.04.2021 after expiry of the limitation seeking

amendment to declare the candidate who secured second highest votes

as Chairperson of Thukuguda Municipality by substituting prayer

No.5.    He also submits that the Election Petitions are liable to be

dismissed for non-joinder of necessary parties and that the judgments

relied on by the learned Single Judge have no application to the facts

of the present case i.e., as to whether an amendment to the Election

O.Ps is permissible or not after expiry of the limitation.        He also
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submits that the respondents 13 to 15 having failed to add the

contested candidates including successful candidate and unsuccessful

candidate by name as parties to the Election O.Ps, as required under

Rule 7 and 5 of Election Rules, 2020, they cannot seek relief of the

candidates who secured second highest vote in the election to the office

of the Chairperson of Thukkuguda Municipal Corporation. He submits

that the Election Tribunal has no power to allow the amendment to

Election Petition and the Code of Civil Procedure is general in nature

always yields to special rules issued in G.O.Ms.No.30, dated

11.02.2020.

4. In this case, it is to be seen that the issue whether the Tribunal

has power to allow the amendment by applying Order VI Rule 17 of

CPC is no longer res-intergra, as the said issue fell for consideration in

C.Maniyamma v. Junior Civil Judge, Narayanapet, District

Mahaboobnagar [1998 (5) ALD 361], wherein it was held that

amendment can be permitted in the Election Petition as per the

provisions of Order VI Rule 17 of the CPC.

5. Order XIV of the CPC is applicable to Election Petitions being

tried by Election Tribunals and that settlement of issues or framing of

points for consideration is an essential step in an enquiry of Election

Petition for the reason that parties should know on what questions in

controversy, necessary may have to be let in (See Smt. Lagudu

Amiradha v. Smt. Gorrepotu Chellayamma [2004 (4) ALT 197)].

6. The Hon'ble Apex Court while placing reliance in an unreported

decision in W.P.No.1145 of 1972 rendered by this Court on

19.10.1973, wherein, this Court held that the Tribunal was justified in

invoking Order IV Rule 9 of the CPC and setting aside the order of

dismissal of the Election Petition filed under the Act, before the

Election Tribunal.

7. In Merugu Kousalya v. Thadakamalla Hima Bindu [(2018) (1)

ALD 33], by considering the principle laid down in similar matters, it

is held that when the Tribunal can set a respondent ex parte for not

filing a counter, the power to set aside the ex parte order also inheres

in the Tribunal and, therefore, the Tribunal, which has power to set

the Respondent ex parte, will certainly have the power to entertain an

application under Order IX Rule 7 of the Code. The Hon'ble Apex

Court also held that the Tribunal was not justified in not invoking

Order IX Rule 7 of the Code in refusing to set aside the ex parte order.

8. In case of conflict between the provisions of the Representation

of People Act, 1951 and the Rules framed there under or the Rules

framed by the High Court in exercise of the power conferred by Article

225 of the Constitution on the one hand, and the Rules of procedure

contained in CPC on the other hand, the former shall prevail over the

latter. As per Rule 10 of the Rules, the Election Tribunal shall be

deemed to be a Civil Court while trying a suit in respect of the matters

mentioned as 'a' to 'g', as such, the said Rules do not contain any Rule

which is 'in conflict' with the provisions of the C.P.C. When there is no

Rule which is 'in conflict' with the provisions of the C.P.C., the Election

Tribunal can exercise power conferred by the Rules as well as the

provisions of the CPC. [(See Kailash v. Nanhku) (2005) 4 SCC 480].

9. Every Election Petition shall be enquired into by the Election

Tribunal in accordance with the procedure applicable under the CPC

and it is now well settled that all the subsequent amendments to CPC

get incorporated into Rule 11 though the amendment to Order XVIII

Rule 4 was not there when the Rules were made. (See M.Ganganna v.

A.Chitma Guravaiah[2003 (5) ALD 231)]. It is settled law that as per

Rule 9 of the rules, every Election Petition shall be enquired into by the

Election Tribunal 'as nearly as may be' in accordance with the

procedure applicable to the trial of the suits under the CPC and the

Election Tribunal shall be deemed to be a civil Court while trying a suit

in respect of the matters mentioned under 'a' to 'g' of Rule 10 of the

Rules and the Election Rules contained in G.O.Ms.No.30, dated

11.12.2020 do not contain any rule which is contrary to the provisions

of the CPC, as such, the contention of the learned counsel for the

appellant that the provisions of CPC, have no application that too for

amendment of the pleadings, cannot be accepted.

10. As far as the issue of allowing the amendment applications is

hit by the limitation, it is to be seen that there is no change in the

main prayer, which is intact and also there is no change in the nature

of the Election Petition by virtue of such amendment and the

amendment sought is also in consonance with Rule 20 of the Rules

and the same is only a consequential relief as the main prayer remains

the same.

11. Finally, it is contended by the learned counsel for the appellant

that limitation for filing Election Petition within 30 days under Rule 3

from the date of declaration of results is only for filing Election

Petition. But in the present case, it is not disputed that the Election

Petition is not filed within 30 days, but it is only an application filed for

seeking amendment to the pleadings, which is found to be only

interlocutory in nature, as such, limitation of 30 days found in Rule 3

has no application for filing amendment application. The Rule making

authority has provided 30 days limitation for filing Election Petition

from the date of declaration of results of Election, but it does not

provide any limitation for filing an application for seeking amendment,

as such, the contention of the learned counsel for the appellant that

the amendment sought is hit by limitation as contained in Rule 3 of

the Rules, cannot be accepted. However, if there is any such issue, it

is always open for the appellant to raise the aspect of limitation during

the course of trial and the issue of limitation is a question of fact or

law, can be decided only after full-fledged trial. By allowing the

amendment application, no relief is granted to the respondents/

petitioners.

12. Learned Single Judge by referring to several judgments of this

Court as well as the Hon'ble Apex Court, referred to supra, came to the

conclusion that the amendment is only a clarificatory in nature and is

not hit by limitation under Rule 3, as such, no exception can be taken

to the order of the learned Single Judge.

13. In view of above facts and circumstances, we are of the

considered opinion that it is not a fit case warranting interference

under Clause XV of Letters Patent, as such, both these Writ Appeals

are liable to be dismissed and accordingly dismissed.

There shall be no order as to costs. As a sequel thereto,

miscellaneous applications, pending if any, shall stands dismissed.

___________________________________ SATISH CHANDRA SHARMA, CJ

_____________________________ A.RAJASHEKER REDDY, J 29.11.2021 kvs

THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA AND HON'BLE SRI JUSTICE A.RAJASHEKER REDDY

WRIT APPEAL Nos.590 & 591 of 2021

.11.2021

kvs