This Civil Revision Petition is filed against order dated 26.11.2008 passed in IA.No.380/2008 in Election Original Petition NO.29/2006 by the learned I Additional District Judge (PCR) Tiruchy, refusing to allow amendment to the pleadings in the main election petition.
2. The petitioner has challenged the election of the successful candidates as null and void and to declare the petitioner as successful candidate for the District Councillor for Ward No.24, Trichy District and consequential reliefs have been prayed for. Pending the said election petition, an application in IA.No.380/2008 has been filed by the petitioner seeking to amend main petition by incorporating an additional ground for declaring the election of the 1st respondent as invalid that he is not a resident of the Marungapuri Constituency and he is a permanent resident of Manapparai Taluk. It is averred that the said information was known to him from enquiring with the Tahsildar, Manapparai, who has furnished the information by his letter dated 4.1.2008.
3. The trial court dismissed the petition on the ground that the amendment sought for by the petitioner is not necessary and he is at liberty to give evidence with respect to the grounds which are available under Section 259 of the Tamil Nadu Panchayat Act, 1994. Equally the successful candidate also has the right to dispute the contention of the petitioner and they can adduce evidence to prove their respective contentions.
4. Ms.J.Maria Roseline, the learned counsel for the petitioner submitted that without necessary pleadings the petitioner cannot adduce evidence to prove such averments as would enable the result of the election being set aside and therefore, the amendment sought for by the petitioner is necessary. She would contend the proposed amendment is not a new ground as the candidate should be a permanent resident of that constituency from where he is elected and unless he is allowed to incorporate the said fact, by amending the petition, he cannot adduce evidence to prove that the 1st respondent is the permanent resident of the Manapparai.
5. The learned counsel would place reliance on the decision of the Honourable Supreme Court rendered in the case of Harikrishna Lal Vs. Babu Lal Marwadi [2004-1-MLJ-119-SC] wherein it is held that the burden of proof lies on the one who challenges the election to raise to raise necessary pleadings and adduce evidence to prove such averment as would enable the result of the election being set aside on any one of the grounds available under the law.
6. It is useful to refer to some of the decisions to show that the election tribunal has got power to amend the petition.
7. In the case of Thangalakshmi Ammal Vs. Arunachalam and others [AIR-1958-Mad-455], the Division Bench of this court has held that though an election tribunal has no inherent or common law powers, like a court of law or equity and though there is no such express power of amendment given in the case of Municipal election petitions, like the power under
Section 83(3) of the Representation of the People Act, that power must be implied to exist and to be included in the power of amendment under Order 6 Rule 17 of CPC which would exist in the case of Municipal election petitions also.
8. The Full Bench of the Madhya Pradesh High Court in the case of Babulal Sharma Vs. Brijnarain Brajesh and others [AIR-1958-MP-175], it has been held thus:-
"Where in an election petition corrupt practice had been alleged but no particulars had at all been furnished and the petitioner applied for the amendment to set out particulars the order of the Tribunal that it did not possess the power to allow the amendment was erroneous. It was an error of law apparent on the face of the record which the High Court could correct under Articles 226 and 227 of the Constitution."
9. From the above said decisions, it is clear that Order 6 Rule 17 of the CPC is applicable to the trial of election petition by election tribunals and deals with alteration or amendment of pleadings. It is no doubt true that the power of amendment under the Code of Civil Procedure cannot be exercised so as to permit new grounds of charges to be raised or to alter the character of the petition as to make it in substance a new petition, if a fresh petition on those allegations will then be barred.
10. In the present case, the averment which sought to be included in the main election petition is that the 1st respondent is a permanent resident of Manapparai and he does not belong to the Manapparai Constituency from where he is elected. This is not a new ground, but only an additional plea raised by the petitioner so as to enable him to adduce evidence to prove the said allegation at the time of trial. The court below ought to have allowed the amendment and the order passed by the court below dismissing the petition filed for amendment is liable to be set aside and accordingly it is set aside.
11. In the result, this Civil Revision Petition is allowed. No costs. Consequently, the connected MP is closed.
Srcm To:
The I Additional District Judge (PCR) Tiruchy.