Judgment:
A.K. Parichha, J.
1. In this application, the petitioner, who is the elected member of Zone No. 26 of Puri Zilla Parishad, has challenged the order dated 3.4.2004 (Annexure-4) passed by the learned District Judge, Puri in Election Misc. Case No. 70 of 2002 allowing the amendment of the election petition.
2. Petitioner was elected as a Member of Zone No. 26 of Puri Zilla Parishad in the election held in the month of February, 2002. Opposite party No. 1, who was a candidate for the said Zone and was defeated in the election, filed an election dispute bearing Election Misc. Case No. 70 of 2002 before the learned District Judge, Puri challenging the validity of election of the present petitioner on the ground that he resorted to corrupt practice by illegally utilizing the Government machinery for putting pressure on the voters; distributing huge amount of money and materials through agents to allure the voters, obstructed the voters of their rival candidates by use of physical force and intimidation and also tampered with the ballot papers, which had been kept in sealed packets. During pendency of the election dispute, opposite party No. 1 filed a petition on dated 25.2.2003 for amendment of the election petition to incorporate further that the present petitioner is a defaulter in repayment of loan incurred by him on 30th June, 1996 from the Laxmi Narayan Samanga Service Co-operative Society. Petitioner raised objection to that prayer with the plea that the amendment would introduce a new plea, which has already become barred by limitation. Learned District Judge, Puri, after hearing the parties, passed the impugned order dated 3.4.2004 allowing the said amendment. Aggrieved, the petitioner has filed the present application to quash the said order invoking the power under Articles 226 and 227 of the Constitution of India.
3. Mr. Ashok Kumar Mohanty, learned Senior Counsel appearing for the petitioner submitted that the amendment not only changes the nature and character of the election petition, but also introduces a new plea, which was already barred by limitation. According to him, when the ground that the petitioner was disqualified from contesting the election being a defaulter in the Co-operative Society was not taken in the original election petition, addition of the said plea brings out a new case. According to him, such new plea cannot be entertained after the expiry of the period of limitation provided for filing the election petition. In support of the contention, he cited the cases of Samant N. Balakrishna etc. v. George Fernandez and Ors., : [1969]3SCR603 , Ram Dayal v. Brijraj Singh and Ors., : [1970]1SCR530 , Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi, : [1987]3SCR369 .
4. Mr. Manoj Mishra, learned Counsel appearing for opposite party No. 1, on the other hand, contended that the present opposite party No. 1 had already alleged in the election petition that the petitioner adopted mal practice and corrupt methods to get himself elected and so, the plea in the amendment that he was also a defaulter in repayment of loan in the Co-operative Society, where he is a member, does not change the nature and character of the election petition as it simply elaborates how the petitioner concealed his legal disability and got the nomination passed. Mr. Mishra further submitted that since opposite party No. 1 had no knowledge about the above said default of the petitioner, he could not incorporate the plea in the original election petition. According to him, the period of limitation will begin from the date of knowledge of opposite party No. 1 about the default of the petitioner and because the amendment was filed soon after such knowledge, it was not at all barred by limitation. In support of his plea, Mr. Mishra cited the case of Surekha Dash v. Civil Judge (Junior Division), Jaipur and Ors., 1998 (II) OLR 43.
5. In the case of Samant N.Balakrishna (supra), the apex Court while analysing the scope of amendment of an election petition, observed thus:
In a petition the kind of corrupt practice which was perpetrated together with material facts on which a charge can be made out must be stated. If the material facts of the corrupt practice are stated, more or better particulars of the charge may be given later, but where the material facts themselves are missing, it is impossible to think that the charge has been made or can be later amplified. The power of amendment is given in respect of particulars but there is a prohibition against an amendment which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
In the case of Ram Dayal (supra), it was observed by the apex Court that in an election petition, the application for seeking amendment to introduce new ground for setting aside election filed after bar of limitation prescribed cannot be allowed.
In the case of Dhartipakar Madan Lal Agarwal (supra) the apex Court observed that in an election petition under the Representation of People's Act the order of amendment permitting new grounds to be raised beyond the time specified would amount to contravention of the provisions of limitation and beyond the ambit of Section 87 and as such, new ground cannot be raised or inserted in the election petition by way of amendment after expiry of the period of limitation.
6. In the case of Surekha Dash (supra) cited on behalf of opposite party No. 1 also it was indicated that, amendment on particulars of corrupt practice alleged, in the petition is permissible, but such amendment does not extend to amend the material facts.
7. So, the law on the subject is perfectly settled. Amendment of an election petition seeking amendment of material facts not pleaded earlier or introduction of new case is not permissible when the period of limitation prescribed for filing the election petition is over.
8. The only controversy in the present case is whether the amendment which was allowed under Annexure-4 simply introduces particulars of the plea, which have been pleaded earlier in the election petition or whether it introduces a new ground, which is already barred by limitation. Admittedly, the plea of default of the petitioner in repayment of the loan in the Co-operative Society was not pleaded in the election petition and the amendment on this score was sought after lapse of the period of limitation prescribed/or filing the election dispute. The plea of the opposite party No. 1 is that the amendment does not introduce a new case. His alternative plea is that the fact of default of the petitioner in the Co-operative Society first came to his knowledge on 7.2.2003 and therefore, he was entitled to introduce the plea in the election petition by way of amendment within the period of limitation to be computed from the date of his knowledge.
9. Law is settled that amendment incorporating a fact, which was beyond the knowledge of the person seeking amendment, is permissible even at a later stage. Law is also fairly settled that in such contingency, the period of limitation will begin to run from the date of knowledge of the person concerned, if such person concerned under normal circumstance had no way of learning about the cause of action earlier.
10. In the instant case, the plea taken in the amendment was not there in the original petition and the plea, if accepted would disqualify the petitioner from contesting the Zilla Parishad election or holding the post of member. So, as per the ratio in the case of Ram Dayal (supra), such amendment would amount to introduction of a new case and would be permissible only if it is filed within the period of limitation.
11. As per the provisions of Section 32 of the Orissa Zilla Parishad Act, the procedure for filing of election petition shall be guided by the provisions contained in Chapter-VI-A of the Orissa Panchayat Samiti Act, 1959, except certain contingencies provided in the section. Section 44-B of Chapter VI-A of the Orissa Panchayat Samiti Act says that the election petition shall be presented before the concerned Judge together with deposit of Rs. 200/- within 15 days after the date on which the result of the election was announced. In the proviso to that Section, it has been indicated that if the office of the concerned Judge is closed on the last day of the period of limitation, then the petition can be presented on the next day on which such office reopens. In the subsequent proviso, it is further provided that if the petitioner satisfies the concerned Judge that sufficient cause existed for the failure to present petition within the period of limitation, the concerned Judge may in his discretion condone such delay.
12. The above noted provisions reveal that the normal period of filing the election petition is 15 days, but the concerned Judge on being satisfied that sufficient ground was there for the delay, may condone the delay. Here, opposite party No. 1 pleaded lack of knowledge about the default of the petitioner in the Co-operative Society and claimed that he learnt about such default for the first time on 7.2.2003 and thereafter presented the amendment petition on 25.2.2003. First of all no evidence is there from his side to establish the claim that he learnt about the default for the first time on 7.2.2003. Even otherwise, in the absence of any specific denial of the petitioner, if it is accepted that opposite party No. 1 acquired knowledge about default of the petitioner on 7.2.2003, then as per the proviso to Section 44-B of the Orissa Panchayat Samiti Act, the period of limitation of 15 days expired on 22.2.2003. Admittedly, the amendment petition was filed on 25.2.2003, which was beyond the prescribed period. In view of the ratio laid down in the decisions referred to above, such an amendment carrying new plea was not permissible beyond the period of limitation. Thus, the learned District Judge, Puri, committed legal error in allowing the amendment filed by opposite party No. 1.
13. For the reasons stated above, the impugned order dated 3.4.2004 passed by the learned District Judge, Puri in Election Misc. Case No. 70 of 2002 (Annexure-4) is hereby quashed and the writ petition is allowed. No cost.
P.K. Tripathy, J.
I agree.