Sopan Abaji Pol v. Jaykumar Bhagwanrao Gore

counsel appearing on behalf of the Applicant submits that though it is not mandatory to disclose the source of information about the allegation of corrupt practices in affidavit in Form No. 25, this Court may allow the Applicant to carry out appropriate amendment in affidavit in support of the Election Petition in Form No. 25 as a sake of precaution.

7. The learned counsel appearing on behalf of the Respondent, vehemently, opposed the present application for amendment. The Respondent has filed his Affidavit-in-Reply on 9th April, 2012. He submits that as per the provisions of the Representation of People Act, 1951, it is mandatory on the part of the Petitioner to disclose the material facts in the Petition and affidavit in support of the Petition, on what basis the allegations of corrupt practices are made. He further states that the present application for amendment of the Election Petition is barred by limitation and, therefore, the same cannot be entertained. He states that about non-disclosure of material fact in the Petition as S. S. MORMARE 6 of 16 7 elect.appl.2.12.sxw well as affidavit in support of the Petition in Form No. 25, the Respondent raised specific ground in his Written Statement stated 5th May, 2010. He states that the Respondent in his Written Statement in paragraph no. 2(d), specifically raised an objection that, though the Petitioner alleges the corrupt practices against the Respondent, he did not provide full statement of particulars and also did not make concised statement of material facts. The Petitioner also did not complete the mandatory provisions of Section 83, such as, the Petitioner has not verified the pleadings in the Petition in the manner laid down in the Code of Civil Procedure, 1908. He submits that thereafter, they preferred Application No. 1 of 2011 for striking off paragraph nos. 5, 8 to 13 from the present Election Petition on the ground that those paragraphs do not disclose the cause of action and the allegations made in the said paragraphs are vague, devoid of material facts and particulars. He further states that in application no.1 of 2001, the Applicant/original Petitioner filed his affidavit-in-reply dated 8th February, 2011 and denied that the Petitioner failed to disclose the material facts alleging the corrupt practices against the Respondent as required by law. He submits that though the Applicant had knowledge of non-disclosure of material facts in the S. S. MORMARE 7 of 16 8 elect.appl.2.12.sxw affidavit in support of the Election Petition when Respondent filed his Written Statement dated 5th May, 2010, amended Written Statement dated 7th September, 2010 and the application No.1 of 2011 dated 20th January, 2011, the Applicant has preferred the present Application on 14th March, 2012. Therefore, on the face of it, there is delay on the part of the Applicant to prefer the present Application for amendment and, therefore, the same is liable to be dismissed with costs. He submits that the source of information is a mandatory provision in the Election Petition. If the source of information is not disclosed, then the Petition can be dismissed for non-disclosure of source of information. In support of this contention, he relies on the Judgment in the matter of V. Narayanswamy v/s. C. P. Tirumulla, reported in 2000 (2) SCC

294. Mainly he relies on the head note A of the said Judgment. He further states that the Apex Court in the matter of Regu Mahesh alias Regu maheswar Rao V/s. Rajendra Pratap Bhanj Dev and Aother, reported in (2004) 1 SCC 446 held that defects in Election Petition and/or affidavit in support of the Election Petition is curable but failure on the part of the Election Petitioner to cure the defect, despite having been specifically pointed out, and dismissal of Election Petition sought on that ground by the S. S. MORMARE 8 of 16 9 elect.appl.2.12.sxw Respondent, may be fatal to the Petition. He relies on the head note B of the said authority. He further submits that the Apex Court in the matter of Bashir Musa Patil V/s. Satyawan Ganpat Jawkar and Others, reported in (1997) 1 SCC 751 held that if the particulars of the corrupt practices found to be missing in the Petition and if the High Court directs the Petitioner to furnish those particulars in the purported exercise of powers under Section 86(5) of the Representation of People Act, 1951, it is an error on the part of High Court to permit the Election Petitioner to fill in the gap which would gravely prejudice the opposite party at the trial. He further states in the present proceeding the trial has already commenced, four witnesses are examined, and, therefore, in view of Order VI Rule 17 of the Code of Civil Procedure, 1908, the Court should not allow the Petitioner to carry out amendment as claimed in the present Application unless the Court comes to the conclusion that inspite of due diligence, the Applicant could not find out the material source of information at the time of filing the Petition. He states that in the entire application, the Applicant nowhere pleaded that in spite of due diligence, the information was not available to him at the time of filing the Election Petition. Therefore, it is crystal clear from the bare reading of the present S. S. MORMARE 9 of 16 10 elect.appl.2.12.sxw Application that the Applicant/ Original Petitioner filed the present Application in a very casual manner for carrying out the amendment in the Election Petition as well as in the affidavit in support of the Election Petition in Form No.25.

8. The learned counsel appearing on behalf of the Respondent further states that the Applicant himself stated in the present Application that it is not necessary to place on record the material facts about the corruption and, therefore, the Application filed by the Petitioner is nothing but a device to delay the proceedings on one or the other ground. On the basis of these submissions, the learned counsel for the Respondent submits that the Application filed by the Applicant/ Original Petitioner deserves to be dismissed with costs.

9. I have heard both the sides at length and gone through the Election Petition, Written Statement, amended copy of Written Statement filed by the Respondent, previous Applications preferred by the Respondent for dismissal of the Election Petition for non-disclosure of source of information. It is to be noted that the Applicant filed the present Election Petition on 17th December, S. S. MORMARE 10 of 16 11 elect.appl.2.12.sxw

2009. Thereafter, the Respondent filed his Written Statement dated 5th May, 2010 and additional Written Statement dated 7th September, 2010, the Application No.1 of 2011 for striking off paragraph nos.5, 8 to 13 of the Election Petition was filed on 20 th January, 2011. It shows that there is a gross delay on the part of the Applicant to prefer the present Application for carrying out amendment. On one hand, the learned counsel appearing on behalf of the Applicant states that it is not necessary to disclose the material facts on which the Applicant made allegations about the corrupt practices against the Respondent and on the other hand he preferred the present Application for carrying out necessary amendments. This itself shows that the Applicant was not sure whether it was necessary to disclose the material facts at the time of filing the Election Petition and affidavit in support of the Election Petition in Form No.25 of those rules. Bare reading of the Written Statement, Additional Written Statement and the Application No.1 of 2011 show that the Respondent from time to time raised objection that the Applicant has not disclosed the material facts in the present Election Petition and, therefore, the Petition is liable to be dismissed summarily. S. S. MORMARE 11 of 16 12 elect.appl.2.12.sxw

10. Though the learned counsel appearing on behalf of the Applicant and Respondent cited several Judgments in favour of their submissions, it is to be noted that all the Judgments cited by the learned counsel for the Applicant as well as for the Respondent are on merits of the matter whether it is necessary to disclose the material facts in the Election Petition. That issue is not involved in the present Application. The issue involved in the present Application is whether the Petitioner can carry out amendment in the Petition to incorporate the material facts and source of information of the alleged corrupt practices after three years from the date of filing of the Election Petition, and trial has already commenced.

11. It is to be noted that Order VI Rule 17 of the Code of Civil Procedure, 1908 provides that no Application for amendment shall be allowed after the trial has commenced unless the Courts come to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. In the present matter, issues are already framed and four witnesses are examined. This shows that the trial has already commenced. Even, bare reading of the Application for amendment S. S. MORMARE 12 of 16 13 elect.appl.2.12.sxw shows that the Applicant failed to disclose that the information which he wants to incorporate in the Election Petition was not available on the date of filing of the Election Petition. Even, the Applicant failed to disclose that in spite of due diligence he could not procure the material, which he now wants to incorporate by way of amendment in the Election Petition, before the commencement of the trial. Then, surely the Court should not allow to carry out the amendment.

12. Admittedly, in the present proceeding, the application for amendment has been preferred after the lapse of three years from the date of presentation of the Petition and that too without disclosing any reason for such a long delay. Therefore, it cannot be allowed at all.

13. The Apex Court in the matter of Virendra Kumar Sanklecha V/s. Jagjiwan and Others, reported in (1972) 1 SCC 826 emphasized held that the importance of an affidavit filed in support of an Election Petition, whereby the election of the returned candidate has been questioned on allegations of corrupt practices. It was held that the allegations of the corrupt practices S. S. MORMARE 13 of 16 14 elect.appl.2.12.sxw are by law required to be supported by an affidavit and the deponent of the affidavit must set out in the Affidavit clearly as to which of the statements relating to the corrupt practice are true to the knowledge of the deponent and which of the statements are true to his information and, in that event the deponent is required to furnish the source of information also. The Apex Court dealing with the importance of furnishing the source of information at the earliest opportunity observed as under:- “The non-disclosure of grounds or sources of information in an election petition which is to be filed within 45 days from the date of election of the returned candidate, will have to be scrutinized from two points of view. The non- disclosure of the grounds did not come forward with the sources of information at the first opportunity. The real importance of setting out the sources of information at the time of the presentation of the petition is to give the other side notice of the contemporaneous evidence on which the election petition is based. That will give an opportunity to the other side to test the genuineness and veracity of the sources of information. The other point of view is that the election petitioner will not be able to make any departure from the sources or grounds. If there is any embellishment of the case it will be discovered.”

14. Therefore, in any case, whether it is necessary to disclose the source of information or not, that cannot be decided in the present application because the present application is only S. S. MORMARE 14 of 16 15 elect.appl.2.12.sxw for amendment of the Election Petition and affidavit in support of the Election Petition in Form No. 25 under Rule 94A of the Conduct of Election Rules, 1961. The Respondent already preferred an Application No. 1 of 2011 for striking off the paragraph nos. 5, 8 to 13 under the provisions of the Code of Civil Procedure, 1908 since those paragraphs do not disclose the cause of action and the allegations made in the said paragraphs are vague, devoid of material facts and particulars as the said application is pending for hearing and final disposal. During the pendency of the said application, the Applicant preferred present Application for carrying out the amendment. Whether it is necessary to disclose the material facts about the corrupt practices in the Election Petition and in affidavit in support of the Election Petition in Form No. 25 can be considered at the time of deciding the Respondent's Application No. 1 of 2011.

15. In the present application, the Applicant has not pointed out any authority to show that the Applicant can carry out amendment at any time even after expiry of limitation period for filing the Election Petition and the trial has commenced. It is to be noted that the Uttarakhand High Court in the mater of Ram S. S. MORMARE 15 of 16 16 elect.appl.2.12.sxw Sukh V/s. Dinesh Agarwal reported in AIR 2008 Uttarakhand 33 held that filing of affidavit at later stage that too after the expiry of the prescribed period for filing of the Election Petition is of no consequence. Head Note of the said Judgment reads thus: “Representation of the People Act (43 of 1951), Ss. 83 (1), 86- Election Petition – Allegations of corrupt practice – Not accompanied by affidavit in prescribed form – Defect is incurable and fatal – Filling of affidavit at later stage that too after expiry of prescribed period for filing election petition is of no consequence – Election Petition liable to be dismissed at threshold.”

16. Therefore as discussed above and taking into the law laid down by the Apex Court and High Court, I am of the opinion that the present application is preferred by the Applicant beyond the period of limitation, without disclosing the fact that inspite of due diligence the Applicant was not aware of the material which he now wants to place on record and as the trial has already begun and in view of provisions under Order VI Rule 17 of the Code of Civil Procedure, 1908 I do not find any substance in the present Application and the same is dismissed with cost. (K. K. TATED, J.) S. S. MORMARE 16 of 16