# Shitla Prasad v. Amrit Lal & Ors

- **Citation:** (2025) 5 ILRA 564
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-29
- **Case number:** Writ C No. 4987 of 2025
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shitla-prasad-v-amrit-lal-ors-53413
- **Pages:** 13

## Headnote

Civil Law - U.P. Municipalities Act, 1916 -
Election Petitions - Sections 12-A to 12-H,
12-E(2), 13-A to 13-K, 19, 20 - Order 6
Rule 17 CPC - Petitioner contested the
election of Chairman of Nagar Panchayat.
After the counting petitioner was declared
elected. Opposite Party No.1 filed an
election petition on 29.05.2023. Petitioner
filed written statement on 18.01.2024. An
amendment application was filed under
Order 6 Rule 17 CPC on 14.02.2024 -
District Judge, allowed the amendment
application.
In
election
petition,
the
5 All. Shitla Prasad Vs. Amrit Lal & Ors.
565
election of the petitioner was set aside
and
contestant
at
Serial
No.2
was
declared to have been elected. Held :
Although there was laches in challenging
the order of amendment passed on
08.07.2024, the court held that laches
would not be fatal, as firstly there was no
controversion to the challenge in the
absence of any counter affidavit and
secondly, all the interim orders merged in
the final order being the order dated
21.05.2025, which was being challenged
alongwith
the
earlier
order
dated
08.07.2024.
Amendment
application
drastically changed the nature of the
election petition; there being no such
pleading in the initial election petition, the
amendment could not have been allowed
that too after the limitations for filing the
petition had come to an end. As per S. 20
an election petition can be presented
within 30 days after the day on which the
result of the elections sought to be
questioned is announced by the Returning
Officer. Order impugned dated 21.05.2025
further suffers from the procedural error
inasmuch as after the amendment, a
specific issue to that effect ought to have
been framed, which is non-existent; the
specific issue with regard to the inclusion
of the name of the petitioner in the
electoral roll could be tested only after
framing of specific issue to that effect and
after
allowing
the
parties
to
lead
evidence, which has not been done. (Para
30, 31, 32, 33)

Allowed. (E-5)

## Text

_Characters 0–39,676 of 43,622. This is a partial read: ask again with offset=39676 for what follows._

564 INDIAN LAW REPORTS ALLAHABAD SERIES
Another
Vs.
Deputy
Director
of
Consolidation, Kanpur & Ors, reported
in 1993 RD 13, Ramanand Vs. Deputy
Director of Consolidation, Basti reported
in 1993 RD 91 (HC); Smt. Rama Devi Vs.
Dilip Singh, reported in (2008) 104 RD
538, Faggal Vs. State of U.P. reported in
2008 (105) RD 496 and Kamta Vs. Board
of Revenue, 2018 SCC OnLine All 8881.

24. The direction for validating a
transfer of immovable property by ACO by
depositing certain amount/revenue on the
market value of the property in the
Government Treasury is without any
authority. Further, this Court is of the firm
view that the transfer which was not valid
initially, cannot be validated by means of
depositing
certain
amount
in
the
Government Treasury.

25. For the reasons aforesaid, this
Court finds that the interference in the
impugned order is required.

26. Accordingly, the order dated
30.04.2025 (Annexure No.1) is hereby set
aside/quashed
and
the
order
dated
03.03.2025 passed by SOC is restored.

27. With regard to prayer no. 2, it is
provided
that
the
issues
related
to
possession which includes the issues based
upon Section(s) 209 and 210 of the Act of
1950 would be decided by the competent
authority/Court, as per law, and till
decision on this aspect of the case the
parties are directed to maintain status quo
as exists today.

28. Aforesaid is for the reason that
to establish the actual physical possession
over the land in dispute i.e. Gata no. 748
copies of revenue receipts and copies of
khasra have not been placed on record.
29. With the aforesaid, the the
petition is partly allowed.

30. At this stage, Mr. Rakesh D.
Kumar, Advocate, prayed for stay on the
implementation and operation of this
judgment for some time for the purpose of
filing Leave to Appeal. The prayer sought
is rejected for the reason that by this order
the parties have been directed to maintain
status quo till decision on the issues related
to
possession
by
the
competent
authority/Court.
----------
(2025) 5 ILRA 564
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.05.2025

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 4987 of 2025

Shitla Prasad ...Petitioner
Versus
Amrit Lal & Ors. ...Respondents

Counsel for the Petitioner:
Sharad Pathak, Lalta Prasad Misra, Manoj
Kumar Dwivedi

Counsel for the Respondents:
Dinesh Kumar Ojha, Anupam Mehrotra

Civil Law - U.P. Municipalities Act, 1916 -
Election Petitions - Sections 12-A to 12-H,
12-E(2), 13-A to 13-K, 19, 20 - Order 6
Rule 17 CPC - Petitioner contested the
election of Chairman of Nagar Panchayat.
After the counting petitioner was declared
elected. Opposite Party No.1 filed an
election petition on 29.05.2023. Petitioner
filed written statement on 18.01.2024. An
amendment application was filed under
Order 6 Rule 17 CPC on 14.02.2024 -
District Judge, allowed the amendment
application.
In
election
petition,
the
5 All. Shitla Prasad Vs. Amrit Lal & Ors.
565
election of the petitioner was set aside
and
contestant
at
Serial
No.2
was
declared to have been elected. Held :
Although there was laches in challenging
the order of amendment passed on
08.07.2024, the court held that laches
would not be fatal, as firstly there was no
controversion to the challenge in the
absence of any counter affidavit and
secondly, all the interim orders merged in
the final order being the order dated
21.05.2025, which was being challenged
alongwith
the
earlier
order
dated
08.07.2024.
Amendment
application
drastically changed the nature of the
election petition; there being no such
pleading in the initial election petition, the
amendment could not have been allowed
that too after the limitations for filing the
petition had come to an end. As per S. 20
an election petition can be presented
within 30 days after the day on which the
result of the elections sought to be
questioned is announced by the Returning
Officer. Order impugned dated 21.05.2025
further suffers from the procedural error
inasmuch as after the amendment, a
specific issue to that effect ought to have
been framed, which is non-existent; the
specific issue with regard to the inclusion
of the name of the petitioner in the
electoral roll could be tested only after
framing of specific issue to that effect and
after
allowing
the
parties
to
lead
evidence, which has not been done. (Para
30, 31, 32, 33)

Allowed. (E-5)

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Dr. L.P. Mishra, learned
counsel
assisted
by
Ms.
Anupama
Agnihotri, Ms. Arti Bali, Mr. Shivang
Dwivedi, Mr. Saurabh Pathak and Shri
Sharad Pathak, learned counsel for the
petitioner, and Shri Anupam Mehrotra,
Shri Balkeshwar Srivastava and Shri
Rishi Raj Mishra, learned counsel for the
respondent.
2. Present petition has been filed by
the petitioner challenging the order dated
21.05.2025 passed by the Additional
District Judge, Pratapgarh in Election
Petition No.02 of 2023 whereby the
election of the petitioner was set aside and
contestant at Serial No.2 was declared to
have been elected.

Present petition also challenges the
order
dated
08.07.2024
passed
by
Additional
District
Judge,
Pratapgarh
whereby the amendment application was
allowed.

3. Learned counsel appearing for
the petitioner of election petition namely
Shri Anupam Mehrotra, Shri Balkeshwar
Srivastava and Shri Rishi Raj Mishra
appears for the respondents herein and
make a statement that they do not want to
file a counter affidavit and the present
petition may be decided based upon the
arguments advanced.

4. Present petition was heard at
length.

5. Dr. L.P. Mishra, learned counsel
appearing for the petitioner argues that the
petitioner
contested
the
election
of
Chairman of Nagar Panchayat Konhdaur,
Pargana
and
Tehsil
Patti,
District
Pratapgarh held on 04.05.2023 and after the
counting held on 13.05.2023, the petitioner
was shown to have secured 2584 votes and
declared elected. Opposite Party No.1
secured 1957 votes and thus, there was a
difference of 627 votes. It is stated that
Opposite Party No.1 filed an election
petition being Election Petition No.2 of
2023. The said petition was filed on
29.05.2023 and is contained in Annexure -
3. It is stated that a written statement was
filed
by
one
another
candidate
on
566 INDIAN LAW REPORTS ALLAHABAD SERIES
12.01.2024, Opposite Party No.3 herein,
and the petitioner also filed a written
statement on 18.01.2024 (Annexure - 5)
controverting the allegations as levelled in
the election petition.

6. It is stated that after the written
statement
was
filed,
an
amendment
application was filed under Order 6 Rule 17
of CPC on 14.02.2024 (Annexure - 6) to
which objections were also filed on
20.02.2024 (Annexure - 7). District Judge,
Pratapgarh vide an order dated 08.07.2024
(Annexure - 8) allowed the amendment
application and thereafter, an application was
also filed by Opposite Party No.1 in reply to
the written statement filed by the petitioner on
04.03.2024. It is pleaded in Para 13 that
although, the amendment application was
illegally allowed, the petitioner, however,
could not challenge the said order as the trial
was proceeding speedily. However, it is
argued that the amendment application could
not have been allowed as the effect of the said
amendment was that the nature of the election
petition was changed and an otherwise time
barred plea was allowed. It is further pleaded
that after the amendment application was
allowed, documents were filed by Opposite
Party No.1 on 18.04.2023 and 19.04.2023 and
the Opposite Party No.1 examined himself as
PW - 1 and one Shri Pawan Kumar as PW -
2. It is stated that the petitioner also examined
himself as DW - 1 and one Shri Krishna Lal
Soni as DW - 2.

7. It is stated that thereafter the
District Judge while deciding the election
petition framed as many as six issues, which
are as under:

"1- क्या याची चुनाव यातचका में वतणथि िथ्यों पर,
पुनमथिणना के आिार पर तनवाथतचि अध्यक्ष घोतषि होने का
अतिकारी है ?

2- क्या वषथ २०२३ में नगरीय पांचायि चुनाव के
अन्द्िगथि नगर पांचायि कोहडौर का अध्यक्ष पद, अनुसूतचि र्जाति के
तलए आरतक्षि िा ?
 3- क्या प्रत्यिी सांख्या-१ शीिलिा प्रसाद का
तनवाथचन वैि िा ?

4- क्या यातचका अन्द्दर तमयाद है ?

5- क्या मिगणना तवतहि चुनाव प्रतिया / प्रावतिनों
के िहि करायी गयी िी ?

6- अन्द्य अनुिोष ?"

And thereafter framed another
issue being Issue No.7, which is as under:

"7- क्या विथमान चुनाव यातचका िारा-८०
सी०पी०सी के प्राविान से बातिि है?"

8. Contention of learned counsel
for the petitioner is that on all the issues
except Issue No.3, findings were returned
in favour of the petitioner, however, the
Issue No.3 was decided against the
petitioner and based thereupon alone, the
election of the petitioner was set aside. He
argues that on a plain reading of Issue
No.3, it is clear that the same was a general
issue to the effect as to whether the election
of Opposite party No.1 Shitla Prasad was
valid ? However, in the garb of the said
issue, the pleadings which were made by
respondent no.1 through amendment were
extensively considered and without framing
a specific issue, the same was decided
against the petitioner.

9. In the backdrop of the said
arguments, it is essential to notice that the
election
petition
initially
filed
by
respondent no.1 on various grounds,
however,
through
an
amendment
application,
specific
amendment
was
sought by pleading that the name of the
petitioner appeared in the electoral list
prepared at Mumbai (Maharashtra) in the
list of Bandra East at Serial No.126 and as
the name of the petitioner was mentioned in
5 All. Shitla Prasad Vs. Amrit Lal & Ors.
567
the said electoral roll, the election of the
petitioner was automatically void. It is
argued that in the reply to the said
amendment application, it was stated that
earlier the petitioner used to reside at
Mumbai,
however,
after
shifting
to
Pratapgarh, an application was moved for
removal
of
his
name
through
an
application. It was also pleaded in the
objection that the whole complexion of the
election petition changes because of the
said amendment.

10. It is also essential to notice that
while recording finding of Issue No.3, the
trial Court has recorded that the name of
the petitioner appeared in the electoral list
of Jawahar Nagar, Bandra East, Mumbai
(Maharashtra)
at
Serial
No.1216
of
Electoral Roll No.115. The trial Court also
considered the submission of the petitioner
to the effect that to the best of his
knowledge, his name was already struck off
from the electoral list of Maharashtra and
in any case, the same would not have any
effect on the elections held in the State of
Uttar Pradesh. He also recorded the
statement of the petitioner to the effect that
he could not state with certainty that his
name has been deleted from the electoral
list of Maharashtra. Thereafter, the trial
Court considering the mandate of Section
12-E(2) of the U.P. Municipalities Act,
held that the name of the electorate cannot
be included in any other municipality,
cantonment etc., and as the petitioner has
failed to discharge the burden that his name
had been struck off and no evidence was
also produced to the effect that an
application
bearing
relevant
date
or
endorsement of acceptance was filed, as
such, the name of the petitioner was
wrongly included in the electoral list and
was not included in terms of the statute and
thus, the election of the petitioner was not
valid.

11. In the light of the said, Dr. L.P.
Mishra, learned counsel for the petitioner,
strongly argues that in terms of the
provisions
contained
in
the
U.P.
Municipalities Act (hereinafter referred to
as 'the Act'), electoral rolls are to be
prepared in terms of the mandate of Section
12-A to 12-H and the conduct of elections
is prescribed under Section 13-A to 13-K of
the Act. He argues that process of election
is set forth in terms of the prescriptions
contained under Section 13-A and prior
thereto, the manner of including entry in
electoral rolls itself specifies that in the
event of there being errors in the electoral
list, a method of correction is prescribed
including an appeal. He further argues that
the election petitions in terms of the
mandate of the Act can only be filed in
terms of the mandate of Section 19, which
is as under:

 "19.
Power
to
question
municipal election by petition. - (1) The
election of any person as a member of a
Municipality may be questioned by an
election petition on the ground, -

(a) that such person committed
during or in respect of the election
proceedings a corrupt practice as defined
in Section 28;

(b) that such person was declared
to be elected by reason of the improper
rejection or admission of one or more
votes, or any other reason was not duly
elected by a majority of lawful votes;

(c) that such person was not
qualified to be nominated as a candidate
for election or that the nomination paper of
the petitioner was improperly rejected.
568 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) The election of any person as
a member of a Municipality shall not be
questioned, -

(a) on the ground that the name
of any person qualified to vote has been
omitted from, or the name of any person
not qualified to vote has been inserted in
the electoral roll or rolls;

(b) on the ground of any noncompliance with this Act or any rule, or of
any mistake in the forms required thereby,
or of any error, irregularity or informality
on the part of the officer or officers
charged with carrying out this Act or any
rules, unless such non-compliance, mistake,
error, irregularity or informality has
materially affected the result of the
election."

12. He specifically draws my
attention to Section 19(2) to argue that the
election cannot be challenged and there is a
specific restriction contained in Section
19(2)(a).

13. He further argues that the
District Judge has erred in ignoring the
mandate of Section 1(2) of the Act itself,
wherein it is specified that the Act
extends to the whole of Uttar Pradesh and
thus, even if for the sake of argument,
Section
12-E(2)
is
taken
into
consideration,
the
same
cannot
be
accepted as admittedly the name of the
petitioner appeared in the electoral rolls
at Mumbai, Maharashtra and not in any
place in the State of Uttar Pradesh. It is
essential to quote Section 12-E which is
as under:

"12-E. Registration to be in one
ward only. - (1) No person shall be entitled
to be registered in the electoral roll for
more than one ward or more than once in
the electoral roll for the same ward.

(2) No person shall be entitled to
be registered in the electoral roll for any
ward, if his name is entered in any
electoral roll pertaining to any city, other
Municipal area, Cantonment or area of
Gram Panchayat, unless he shows that his
name has been struck off from such
electoral roll."

14. He further argues that in any
case it is well settled that the amendment in
the election petition cannot be allowed to
incorporate the pleas which make the
election petition time barred as a time of 30
days is prescribed for filing an election
petition under Section 20 of the Act.

15. To support his arguments as
recorded above, reliance is placed upon a
judgment of the Supreme Court in the case
of Indrajit Barua and Ors. v. Election
Commission of India and Ors.; (1985) 4
SCC 722 with emphasis on Para 12, which
reads as under:

"12. From the materials placed
by
the
parties
and
the
Election
Commission,
we
have
come
to
the
conclusion that the Election Commission
did not give directions contrary to the
requirements of Section 16 of the Act and
the revision of the 1979 electoral rolls
could not be undertaken for reasons
beyond
the
control
of
the
Election
Commission. As pointed out by us in our
order of September 28, 1984, there was no
dispute to the electoral roll of 1977 nor
was any challenge advanced against the
election of 1978 to the State Legislature
held on the basis of such rolls. Admittedly,
the 1979 rolls were the outcome of
intensive revision of the rolls of 1977. That
being the position and in view of the
proviso to sub-section (2) of Section 21
which we have extracted above the
5 All. Shitla Prasad Vs. Amrit Lal & Ors.
569
electoral rolls of 1979 were validly in
existence and remained effective even
though the process contemplated in subsection (2) for revision had not either been
undertaken or completed. It has been
indicated by a Constitution Bench decision
of this Court in Lakshmi Charan Sen v.
A.K.M. Hassan Uzzaman; (1985) 4 SCC
689] that preparation and revision of
electoral rolls is a continuous process not
connected with any particular election but
when an election is to be held, the electoral
roll which exists at the time when election
is notified would form the foundation for
holding of such election. That is why subsection (3) of Section 23 provides for
suspension of any modification to the
electoral roll after that last date of making
of nominations for an election and until
completion of the election. We had,
therefore, come to the conclusion that the
electoral rolls of 1979 were not invalid and
could provide the basis for holding of the
elections in 1983. Whether preparation and
publication of the electoral rolls are a part
of the process of election within the
meaning
of
Article
329(b)
of
the
Constitution is the next aspect to be
considered.
In
N.P.
Ponnuswami
v.
Returning Officer, Namakkal Constituency
[(1952) 1 SCC 94 : AIR 1952 SC 64 : 1952
SCR 218 : (1951-52) 1 ELR 133] this Court
had to decide the amplitude of the term
'election'. Fazl Ali, J. speaking for the
Constitution Bench indicated:

"It seems to me that the word
'election' has been used in Part XV of the
Constitution in the wide sense, that is to
say, to connote the entire procedure to be
gone through to return a candidate to the
Legislature. The use of the expression
'conduct of elections' in Article 324
specifically points to the wide meaning, and
that meaning can also be read consistently
into the other provisions which occur in
Part XV including Article 329(b). That the
word 'election' bears this wide meaning
whenever we talk of elections in a
democratic country, is borne out by the fact
that in most of the books on the subject and
in several cases dealing with the matter,
one of the questions mooted is, when the
election begins. Tlie subject is dealt with
quite concisely in Halsbury's Laws of
England in the following passage under the
heading 'Commencement of the Election':

Although the first formal step in
every election is the issue of the writ, the
election is considered for some purposes to
begin at an earlier date. It is a question of
fact in each case when an election begins
in such a way as to make the parties
concerned responsible for breaches of
election law, the test being whether the
contest is 'reasonably imminent'. Neither
the issue of the writ nor the publication of
the notice of election can be looked to as
fixing the date when an election begins
from this point of view. Nor, again, does
the nomination day afford any criterion.
The election will usually begin at least
earlier than the issue of the writ. The
question when the election begins must be
carefully distinguished from that as to
when 'the conduct and management of' an
election may be said to begin. Again, the
question as to when a particular person
commences to be a candidate is a question
to be considered in each case.

The discussion in this passage
makes it clear that the word 'election' can
be and has been appropriately used with
reference to the entire process which
consists of several stages and embraces
many steps, some of which may have an
important bearing on the result of the
process."

We are not prepared to take the
view that preparation of electoral rolls is
also a process of election. We find support
570 INDIAN LAW REPORTS ALLAHABAD SERIES
for our view from the observations of
Chandrachud, C.J. in Lakshmi Charan Sen
case [AIR 1957 SC 304 : 1957 SCR 68 :
(1956) 12 ELR 443] that "it may be
difficult, consistently with that view, to hold
that preparation and revision of electoral
roll, is a part of 'election' within the
meaning of Article 329(b)". In a suitable
case challenge to the electoral roll for not
complying with the requirements of the law
may be entertained subject to the rule
indicated in Ponnuswami case [(1985) 4
SCC 689]. But the election of a candidate
is not open to challenge on the score of the
electoral roll being defective. Holding the
election to the Legislature and holding
them according to law are both matters of
paramount importance. Such elections have
to be held also in accordance with a time
bound programme contemplated in the
Constitution and the Act. The proviso
added in Section 22(2) of the Act of 1950 is
intended to extend cover to the electoral
rolls in eventualities which otherwise might
have interfered with the smooth working of
the programme. These are the reasons for
which we came to the conclusion that the
electoral roll of 1979 had not been vitiated
and was not open to be attacked as
invalid."

16. He next places reliance on the
judgment of the Constitutional Bench of
the Supreme Court in the case of S.M.
Banerji v. Sri Krishna Agarwal; AIR 1960
SC 368 and places reliance on Para 11,
which reads as under:

"11. The second case is a
decision of four Judges and it defines the
powers of the Election Tribunal in the
matter of amendment of pleadings. This
decision also turns upon the relevant
provisions of Act 43 of 1951 before it was
amended by Act 27 of 1956. Section 83(3)
of
the
Act
before
the
amendment
corresponds to Section 90(5) of the
amended Act. In other respects, so far as
it is material to the question raised, no
change has been introduced in the other
relevant sections. In this case, the
respondent in the appeal filed an election
petition challenging the election of the
appellants
to
the
U.P.
Legislative
Assembly on the ground that they had
committed corrupt practices, the material
allegations being, (i) that the appellants
"could in the furtherance of their election
enlist the support of certain Government
servants", and (ii) that the Appellant 1
had employed two persons in excess of
the prescribed number for his election
purposes. No list of particulars of corrupt
practices was attached to the petition.
Long after the period of limitation
prescribed for the filing of election
petitions, the respondent applied for
amendment of his petition by adding the
names
of
certain
village
Headmen
(Mukhias) as having worked for the
appellants and later on becoming their
polling agents. The Election Tribunal
allowed the amendment on the ground
that
the
allegations
sought
to
be
introduced by the amendment were mere
particulars of the charge already made.
Holding that corrupt practice had been
committed by the appellants, it declared
their
election
void
under
Section
100(2)(b) of the Act. The appellants
preferred an appeal against that order to
this Court and contended that the
Election Tribunal had no power either
under Section 83(3) of the Act or under
Order 6 Rule 17 of the Code of Civil
Procedure to allow the amendment. In
that context, this Court elaborately
considered the scope of the power of the
Election Tribunal to amend the pleadings
in an election dispute and summarized its
5 All. Shitla Prasad Vs. Amrit Lal & Ors.
571
views in the following two propositions,
at p. 392:

"(1) Under Section 83(3) the
Tribunal has power to allow particulars in
respect of illegal or corrupt practices to be
amended, provided the petition itself
specifies the grounds or charges, and this
power extends to permitting new instances
to be given.

(2) The Tribunal has power under
Order 6 Rule 17 to order amendment of a
petition, but that power cannot be exercised
so as to permit new grounds or charges to
be raised or to so alter its character as to
make it in substance a new petition, if a
fresh petition on those allegations will then
be barred."

On the basis of those propositions
this Court held that the petition as
originally presented did not allege that the
appellants had committed corrupt practices
and, therefore, that the allegations sought
to be introduced by the amendment,
namely, that two village Headmen worked
for the appellants and later on became
their polling agents, so radically altered
the character of the petition as originally
framed as to make it practically a new
petition, and so it was not within the power
of the Tribunal to allow amendments of that
kind. Even if the Tribunal had the power
under Order 6 Rule 17 of the Code of Civil
Procedure to permit an amendment raising
a new charge, the Court held that it did not
under the circumstances exercise a sound
and judicial discretion in permitting the
amendment in question. It may be noticed
that in that case the question turned upon
the construction of Section 83, sub-sections
(2) and (3), of the Act. Though in that case
this Court was concerned with the powers
of an Election Tribunal to amend the
petition beyond the period of limitation, the
discussion of the Court covered a wider
field, presumably, because the Court
intended to settle the principles governing
the power of Election Tribunals to amend
pleadings with a view to prevent confusion
and to stabilize the procedure. This Court
rejected the argument that Order 6 Rule 17
of the Civil Procedure Code, does not
apply to election petitions. It was observed
at p. 389:

 "We are accordingly of opinion
that the application of Order 6 Rule 17,
Civil Procedure Code to the proceedings
before the Tribunal is not excluded by
Section 83(3)."

It
was
contended
for
the
appellant in that case that even if Section
83(3) of the Act did not exclude the
application of Order 6 Rule 17, Civil
Procedure Code, to the proceedings before
the Tribunal, the exercise of the power
under that rule must, nevertheless, be
subject to the conditions prescribed by
Section 81 for presentation of an election
petition, that one of those conditions was
that it should be presented within the time
allowed therefor, and that accordingly, no
amendment should be allowed which would
have the effect of defeating that provision.
After considering the English decisions on
the statutory provisions which are pari
materia with our enactments, the Court
held that the Election Tribunal had no
power to permit a new ground to be raised
beyond the time of limitation prescribed by
Section 81 of the Act. Mr A.V. Viswanatha
Sastry contended that the learned Judges,
having rightly conceded the power of the
Election Tribunal to amend the pleadings
under Order 6 Rule 17, Civil Procedure
Code, went wrong in limiting that power in
the way they did, and that the reason
advanced by them in limiting that power
equally applies to the pleadings in a suit,
for, it is said, under the Indian Limitation
Act, every suit filed beyond the prescribed
period of limitation shall be dismissed
572 INDIAN LAW REPORTS ALLAHABAD SERIES
although limitation has not been set up as a
defence. There is no doubt some force in
this contention, but this argument was
presumably advanced before the learned
Judges and was negatived on the following
ground stated at p. 392:

"The Tribunal sought to get over
this difficulty by relying on the principle
well-established
with
reference
to
amendments under Order 6 Rule 17 that
the fact that a suit on the claim sought to be
raised would be barred on the date of the
application would be a material element in
deciding whether it should be allowed or
not but would not affect the jurisdiction of
the court to grant it in exceptional
circumstances as laid down in Charan Das
v. Amir Khan [(1920) LR 47 IA 255] . But
this is to ignore the restriction imposed by
Section 90(2) that the procedure of the
court under the Code of Civil Procedure in
which Order 6 Rule 17 is comprised, is to
apply subject to the provisions of the Act
and the rules, and there being no power
conferred on the Tribunal to extend the
period of limitation prescribed, an order of
amendment permitting a new ground to be
raised beyond the time limited by Section
81 and Rule 119 must contravene those
provisions and is, in consequence, beyond
the ambit of authority conferred by Section
90(2)."

This passage indicates that the
learned
Judges
were
aware
of
the
argument now advanced and, for the
reason mentioned by them, namely, that
unlike a civil suit wherein the Court can
extend the period of limitation in a proper
case, the Tribunal has no such power,
rejected the argument. We are bound by
this decision."

17. He next places reliance on the
judgment of the Supreme Court in the case of
Yeswant Deorao Deshmukh v. Walchand
Ramchand Kothai; 1950 SCC 766 : 1950
SCC OnLine SC 44, with emphasis on Para
16, which read as under:

 "16. Having thus got over the
difficulty in his way under Section 48 of the
Code of Civil Procedure, he has next to meet
the objection under the Limitation Act. On
behalf of the appellant, it was urged that
Section 18 of the Limitation Act applied to the
facts and that the right to apply accrued to
the appellant when the fraud by the
judgment-debtor became known to him in
1946. No reliance was placed on Section 18
of the Limitation Act in the courts below and
no reference to it is found in the grounds of
appeal to this Court. It is however mentioned
for the first time in the appellant's statement
of the case. If the facts proved and found as
established are sufficient to make out a case
of fraud within the meaning of Section 18,
this objection may not be serious, as the
question of the applicability of the section
will be only a question of law and such a
question could be raised at any stage of the
case and also in the final court of appeal. The
following observations of Lord Watson in
Connecticut Fire Insurance Co. v. Kavanagh
[Connecticut
Fire
Insurance
Co.
v.
Kavanagh, 1892 AC 473 (PC)] are relevant.
He said : (AC p. 480)

"... When a question of law is
raised for the first time in a court of last
resort, upon the construction of a document,
or upon facts either admitted or proved
beyond controversy, it is not only competent
but expedient, in the interests of justice, to
entertain the plea. The expediency of
adopting that course may be doubted, when
the plea cannot be disposed of without
deciding nice questions of fact, in considering
which the court of ultimate review is placed
in a much less advantageous position than
the courts below."
5 All. Shitla Prasad Vs. Amrit Lal & Ors.
573
18. He also places reliance on the
judgment of the Supreme Court in the case
of M/s Trilokchand Motichand and Ors. v.
H.B. Munshi, Commissioner of Sales Tax,
Bombay and Anr.; AIR 1970 SC 898 and
lays emphasis on Paras 6 & 39, which read
as under:

"6.
Then
again
this
Court
refrains from acting under Article 32 if the
party has already moved the High Court
under Article 226. This constitutes a comity
between the Supreme Court and the High
Court. Similarly, when a party had already
moved the High Court with a similar
complaint and for the same relief and
failed, this Court insists on an appeal to be
brought before it and does not allow fresh
proceedings
to
be
started.
In
this
connection the principle of res judicata has
been applied, although the expression is
some what inapt and unfortunate. The
reason of the rule no doubt is public policy
which Coke summarised as "interest
reipublicae res judicatas non rescindi" but
the motivating factor is the existence of
another parallel jurisdiction in another
Court and that Court having been moved,
this Court insists on bringing its decision
before this Court for review. Again this
Court distinguishes between cases in which
a speaking order on merits has been
passed. Where the order is not speaking or
the matter has been disposed of on some
other ground at the threshold, this Court in
a suitable case entertains the application
before itself. Another restraint which this
Court puts on itself is that it does not allow
a new ground to be taken in appeal. In the
same way, this Court has refrained from
taking action when a better remedy is to
move the High Court under Article 226
which can go into the controversy more
comprehensively than this Court can under
Article 32.
 39. The next and the more
fundamental question is whether in the
circumstances the Court should give relief
in a writ petition under Article 32 of the
Constitution. No period of limitation is
prescribed for such a petition. The right to
move this Court for enforcement of
fundamental rights is guaranteed by Article
32. The writ under Article 32 issues as a
matter of course if a breach of a
fundamental right is established. Technical
rules applicable to suits like the provisions
of Section 80 of the Code of Civil
Procedure
are
not
applicable
to
a
proceeding under Article 32. But this does
not mean that in giving relief under Article
32 the Court must ignore and trample
under foot all laws of procedure, evidence,
limitation, res judicata and the like. Under
Article 145(1)(c) rules may be framed for
regulating the practice and procedure in
proceedings under Article 32. In the
absence of such rules the Court may adopt
any reasonable rule of procedure. Thus a
petitioner has no right to move this Court
under Article 32 for enforcement of this
fundamental right on a petition containing
misleading and inaccurate statements and
if he files such a petition the Court will
dismiss it, see Indian Sugars & Refineries
Ltd. v. Union of India, 1968 SCC OnLine
SC 158. On grounds of public policy it
would be intolerable if the Court were to
entertain such a petition. Likewise the
Court held in Daryao v. State of U.P. [1961
SCC OnLine SC 21 : (1962) 1 SCR 574]
that the general principles of res judicata
applied to a writ petition under Article 32.
Similarly,
this
Court
has
summarily
dismissed innumerable writ petitions on
that ground that it was presented after
unreasonable delay."

19. In the light of the said, it is
argued that present petition deserves to be
574 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed and impugned order deserves to be
set aside.

20. Shri Anupam Mehrotra, learned
counsel for the respondent, on the other
hand, extensively draws my attention to the
pleadings contained in Paras 13 & 14 to the
following effect:

"13. That the application for
amendment was illegally allowed but
petitioner could not challenge the aforesaid
order at that point of time as the trial was
proceeding
speedly
but
since
the
application for amendment could not have
been allowed changing the nature of
election petition and, M therefore, the
petitioner is challenging the said / order
now before this Hon'ble Court.

14. That however after allowing
the application for amendment, documents
were filed by opposite party no. 1 on
18.04.2023 and 19.04.2023. The opposite
party no. 1 also examined himself as PW- 1
and Mr. Pawan Kumar as PW-2. The true
copy of the evidence of opposite party no. 1
recorded as PW-1 is annexed herewith as
Annexure No. 10 to this writ petition and
true copy of evidence of Pawan Kumar
recorded as PW-2 is annexed herewith as
Annexure No. 11 to this writ petition."

to argue that the said pleadings
cannot be a ground for challenging the
order dated passed on the amendment
application.

21. He further draws my attention
to
the
amendment
application
filed
whereby it was specifically pleaded that the
name of the petitioner was included in the
electoral roll at Mumbai and also draws my
attention to the reply filed by the petitioner
to the said amendment application to argue
that the only ground taken was that he had
taken steps for scrolling off his name in the
electoral roll at Mumbai. He, thus, argues
that no specific denial was made.

22. He further draws my attention
to the affidavit filed by the petitioner
himself in the petition to demonstrate that it
was specifically deposed by the petitioner
that his name had been scrolled off and
even if his name appeared, the fault was
that of the employees who had not scrolled
off the name despite there being an
application. He, thus, argues that the
petitioner having failed to challenge the
order
passed
on
the
amendment
application, cannot challenge the same now
by filing a petition which suffers from
laches insofar as it relates to the challenge
to the order dated 08.07.2024.

23. He further argues that in the
absence of any specific pleadings, the
points cannot be urged as are being argued.
He extensively relies upon the judgment of
the Supreme Court in the case of Kedar
Shashikant
Deshpandey
v.
Bhor
Municipal Council and Ors.; (2011) 2
SCC 654 with emphasis on Para 28, which
reads as under:

"28. The question whether the
Additional Collector had jurisdiction to
entertain and decide the disqualification
petition filed by the respondents is
essentially a question of fact. It is pertinent
to
note
that
Section
13(3)
of
the
Maharashtra Land Revenue Code, 1966
contemplates statutory delegation in favour
of the Additional Collector. Whether there
was statutory delegation in favour of the
Additional Collector in terms of Section
13(3) of the Maharashtra Land Revenue
Code, is a question of fact. Therefore, the
appellants cannot be permitted to argue for
the first time before this Court the point
that the Additional Collector had no
5 All. Shitla Prasad Vs. Amrit Lal & Ors.
575
jurisdiction to entertain the disqualification
petition filed by the respondents. Even
otherwise, the record clinchingly shows
that the appellants had submitted to the
jurisdiction of the Additional Collector and
participated in the proceedings before the
Additional
Collector
without
any
reservation. Therefore, having lost before
the Additional Collector, they cannot turn
round and challenge the jurisdiction of the
Additional Collector for the first time in the
appeals filed under Article 136 of the
Constitution."

24. The said point is emphasized to
the effect that once the petitioner had
submitted to the jurisdiction, even after the
amendment, he could not agitate the same.

25. He further extensively relies
upon the commentary on Constitutional
Law of India by H.M. Seervai; Fourth
Edition (Vol. 2) to argue that improper
conduct in presenting the petition can lead
to a conclusion that the petitioner has come
with unclean hands and the Court should
refuse him the relief.

26. He also draws my attention to
the observations made in the same
commentary in the context of judgment in
the case of Furquharson v. Morgan;
(1894) 1 Q.B. 552 wherein a distinction
was made between a patent want of
jurisdiction i.e. a want of jurisdiction
appearing on the face of the proceedings,
and a latent want of jurisdiction i.e., a want
of jurisdiction becoming manifest in the
course of proceedings.

27. He further argues that Dr. L.P.
Mishra, learned counsel for the petitioner,
is wrong in contending that the petitioner
on the ground that his name was included
in the electoral list at Mumbai cannot be a
ground for challenge on the plain reading
of Section 19(1)(c) of the Act which itself
prescribes that the election petition can be
filed against a person who was not
qualified to be nominated as a candidate for
election. He, thus, argues that in view of
the bar created by Section 12-E of the Act,
it is clear that the name of the petitioner
could not be included in the list of electoral
rolls and thus, the election petition would
lie.

28.