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PUSHP LATA versus KAUSHALYA SHARMA & ORS

High Court of Punjab and Haryana, Chandigarh

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PUSHP LATA v. KAUSHALYA SHARMA & Ors - CR-4501-2005 [2005] RD-P&H 209 (26 October 2005)

In the High Court of Punjab and Haryana, Chandigarh

......

Civil Revision No.4501 of 2005 (O&M)

....

Date of decision:5.9.2005

Pushp Lata

.....Petitioner

v.

Kaushalya Sharma and others

.....Respondents

....

Present: Shri P.K. Gupta, Advocate for the petitioner.

.....

S.S. Saron, J.

The petitioner Pushp Lata is aggrieved against the order dated 9.8.2005 (Anexure-P.4) passed by the learned Civil Judge (Senior Division), Jagadhri, exercising the powers of the Tribunal constituted under the Haryana Municipal Election Rules, 1978 (`Election Rules' for short) as framed under the Haryana Municipal Act, 1973 (`Municipal Act' for short) and for dismissing the application (Annexure-P.2) seeking amendment of the election petition.

The elections to the Municipal Council, Yamuna Nagar were held in which the petitioner and respondents No.1 to 4 filed their C.R. No.4501/2005 (O&M)

[2]

nomination papers from Ward No.24, Municipal City, Yamuna Nagar.

The election took place as per schedule. The petitioner was declared elected securing 466 votes. Respondent No.1 secured 450 votes.

Respondent No.1 filed an election petition under Rule 75 of the Election Rules framed under the Municipal Act assailing the election of the petitioner. During the pendency of the petition, an application dated 16.7.2005 (Annexure-P.2) was moved by respondent No.1 for amending the heading of the election petition in which she sought permission to substitute respondents No.5 to 7 as mentioned in the election petition with respondents No.5 to 7 as mentioned in the application (Annexure-P.2).

The said application has been allowed by the impugned order.

Learned counsel for the petitioner contends that the limitation for filing the election petition is 30 days. It is contended that the election in this case took place on 16.4.2005 and the time to file election petition was upto 13.5.2005. It is stated that by filing the application dated 16.7.2005 (Annexure-P.2) seeking to replace respondents No.5 to 7 by substitution of another set of respondents No.5 to 7 clearly barred the petition and, therefore, the amendment was not liable to be allowed.

After giving my thoughtful consideration to the matter, it may be noticed that the learned Tribunal has observed that the petitioner had C.R. No.4501/2005 (O&M)

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not filed his written statement in the case. It was observed that the respondent No.1 has filed the election petition and impleaded respondents No.5 to 7 after verifying from the record of the election office. However, later she came to know that the names of the Presiding Officers were changed at the 11th

hour and therefore, it could not be held by any stretch of imagination that the petitioner had not explained the circumstances as to why earlier she could not implead correct respondents despite due diligence. Rather, the mistake, it was observed, had occurred due to wrong maintenance of the record in the election office. With respect to limitation, it was observed that the petitioner had sought to replace the names of the Presiding Officer and other election staff i.e. respondents No.5 to 7. Therefore, the impleadment of fresh respondents and applicability of the period of limitation cannot be held to be applicable in the present amendment application. Accordingly, the names of correct respondents, it was observed, were being replaced for which the learned Tribunal found no ground to reject the application filed by respondent No.1 for changing the names of respondents No.5 to 7 in the election petition.

The reasons and findings recorded by the learned Tribunal are not such which would warrant interference of this Court in exercise of its C.R. No.4501/2005 (O&M)

[4]

supervisory revisional jurisdiction under Article 227 of the Constitution of India. Even if it is to be taken that the petition would be barred by the provisions of Limitation Act, it may be noticed that the Supreme Court in the case of Pankaja and another v. Yellapa (D) by LRs and others, AIR 2004 SC 4102 observed that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. It was held that since the jurisdiction to allow or not to allow an amendment is discretionary, the same would have to be exercised on judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. Besides, it was observed that there can be no strait-jacket formula for allowing or disallowing an amendment of pleadings and each case depends on the factual background of that case. A reference was made in the said decision to an earlier decision of the Hon'ble Supreme Court in L.J. Leach and Co. Limited and another v. Messrs Jardine Skainner and Co., AIR 1957 SC 357 wherein it was held that it is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date C.R. No.4501/2005 (O&M)

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of application. However, that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it if that is required in the interest of justice. The Tribunal having exercised its jurisdiction and allowed the amendment in the circumstances of the case would not warrant interference of this Court in exercise of its revisional jurisdiction and that would be a matter which the petitioner may if so advised raise before the Tribunal. The plea that the relief sought in the case is barred by limitation or not is an arguable point and such a plea if raised by the petitioner could be made a subject matter of the issue but in the circumstances it cannot debar the amendment of the election petition.

For the foregoing reasons, there is no merit in this petition and the same is accordingly dismissed. The petitioner would, however, be at liberty to raise the plea of limitation to the election petition and if such a plea is raised the same shall be considered by the Tribunal in accordance with law.

September 5, 2005. (S.S. Saron)

Judge

hsp


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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