Writ Petition No.2699 of 2009

21st March, 2009

Petitioner Counsel: Mr. VINEET B. NAIK,Mr. BHARAT JOSHI
Respondent Counsel: Mr. R. K. MENDADKAR,Ms. HELAN MANDLIK , Mr. BALWANT V. PATOLE,M. M. MALAVANKAR

Cases Cited:
Vidyabai Vs. Padmalatha, 2009(1) ALL MR 471 (S.C.) [Para 9]
Alkapuri Co-operative Housing Society Ltd. Vs. Jayantibhai Naginbhai (deceased) Thr.L.Rs., 2009(2) Bom.C.R. 42 [Para 10]

JUDGMENT

JUDGMENT :- Heard finally, by consent.

2. The Petitioner has challenged two separate impugned orders dated 22nd January, 2009 at Exhibits 45 and 48 in Election Petition No.51 of 2007 pending for final hearing in a Small Causes Court at Bombay, whereby the application for an amendment and application for recalling the witnesses and to led evidence were rejected.

3. The Petitioner was declared as elected candidate from Ward No.3 in the Election of Bombay Municipal Corporation i.e. B.M.C. held on 1st February, 2007. The said Ward was a Reserved Ward for Other Backward Class woman candidates. Respondent No.1 had challenged the election of the Petitioner in Election Petition No.51 of 2007 on the ground that the Petitioner is not O.B.C. candidate and therefore, was not qualified even to contest the election as the Petitioner filed false and improper nomination form. These facts are not in dispute.

4. Respondent No.1 has secured second highest number of votes. Therefore, claiming to be declared as the returned candidate. The Petitioner was declared as "disqualified" by Respondent No.2 on the strength of the report of Caste Verification Committee. This is also not in dispute.

5. The Election Petition is dated 1st February, 2007. The Petitioner filed Written Statement on 21st March, 2007. The issues were framed on 13th July, 2007. Respondent No.1 filed affidavit of evidence on 26th February, 2008. Respondent No.1 was cross-examined on 16th July, 2008. Admittedly, the Petitioner did not lead any evidence at the relevant time. Respondent No.2 also did not lead any evidence. Sometime in October, 2008 after hearing arguments of both the Parties, the matter was fixed for judgment and order.

6. On 15th November, 2008, application was filed by the Petitioner for leading evidence. It was replied on 17th November, 2008 by Respondent No.1 and Respondent No.2. On 1st December 2008, the application for amendment for Written Statement was filed by the Petitioner. It was also resisted by the Respondent. On 10th December, 2008 the learned Judge was transferred/suspended as averred.

7. On 6th/7th January, 2009, both the applications were heard and thereafter, the impugned order on 22nd January, 2009 is passed by the present learned Judge.

8. Admittedly, the Petitioner did not lead evidence and filed a pursis accordingly on 1st October, 2008. As recorded, the matter was also listed after hearing both the Parties by the erstwhile Judge for judgment. Therefore, application for amendment of written statement, as well as, to lead evidence as filed in the month of November, 2008, needs to be decided on the foundation of delay, laches and due diligence as required under the provisions of Civil Procedure Code (for short, "C.P.C.") and also under the procedure as contemplated under the Schedule to Presidency Small Cause Court Rules made by the High Court of Bombay which governed such Election Petition before Small Causes Court at Bombay. The facts and circumstances are always essential to consider such case/orders.

9. As declared and expressed by the Supreme Court recently in Vidyabai & Ors. Vs. Padmalatha & Anr. reported in 2009(1) ALL MR 471 of Paragraphs 7. The relevant Paragraph No.7 is as under :

"7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order 6, Rule 17 of the Code, which reads as under :

"Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial."

10. Admittedly, the Trial was commenced already. Therefore, we have to consider the basic reasons and justifications to file such applications in this background, in the Election Petition. The time and the election procedure is prescribed under the statute and the rules. Any kind of delay and/or latches in such matters always results into injustice to the Parties as well as to the Voters. Early disposal of such Election Petition is an essential requirement. The foundation of delay and due diligence as if, is an essential part, then the Petitioner who had full knowledge about the pendency of the criminal matter even prior to filing to the date of the Election Petition, cannot be permitted again after such a long period to agitate the issue now. In the present case, the submission that she came to know in detail about the criminal matter at the later point of time and merely because the averments are made about suppression of the fact is unacceptable. At the relevant time, by filing a written statement or immediately thereafter, in such type of election petition, it is necessary to file and add details about such material. The Apex Court has observed in Alkapuri Co-operative Housing Society Ltd. Vs. Jayantibhai Naginbhai (deceased) Thr.L.Rs. Reported in 2009(2) Bom.C.R. 42 as under :

"16. The High Court, in our opinion,, in a case of this nature, should not have interfered with the discretionary jurisdiction exercised by the learned 3rd Additional Sr. Civil Judge. The question as to whether an application for amendment should be allowed in spite of delay and latches in moving the same, would depend upon the facts and circumstances of each case wherefor a judicial evaluation would be necessary.

18. There cannot be any doubt or dispute that an application for amendment of the plaint seeking to introduce a cause of action which had arisen during the pendency of the suit stands on a different footing than the one which had arisen prior to the date of institution of the suit."

11. The Petitioner's contention that it goes to the root of the matter while deciding or passing order under section 33 sub-section 2 of the Bombay Municipal Corporation Act, 1888 (for short "the BMC Act"), on facts is unacceptable. Sub-Section 2 of Section 33 of the Act is reproduced as under :

"Once the case is made out and as contemplated, the Election is set aside, the next candidate in whose favour highest number of valid votes is recorded and against whose Election no cause of objection is found. The said Judge has no choice but to declare her/him elected. The Section contemplates such candidate shall be deemed to have been elected even all above conditions are fulfilled. Therefore, the evidence with such amendment is essential to consider this facet and therefore, must be permitted in the interest of public at large."

12. The Petitioner who had full opportunity to raise same issue and on same pleadings at appropriate time, now just cannot reagitate the same again even on this ground, specially as referred above, for want of due diligence and latches and improper justification to support such applications. Even otherwise on the date of filing of nomination form, no criminal charges were framed. Therefore, there was no false declaration as contended.

13. The learned judge, therefore, right in rejecting, these applications as there was no justification whatsoever given in support of these applications.

Even after going through the record and after hearing both the parties, I am also of the view, that those material and basically the pendency as referred above was well within the knowledge of the Petitioner. The Petitioner just cannot say now that she got those documents at later point of time and therefore, these applications. The pleadings at proper time with full knowledge of the case ought have been filed as supporting documents. The requirement of due diligence and specially when the trial is already commenced and over, is a very essential aspect while dealing with the Election Petition like this. A submission that she was wrongly or not properly advised at the relevant time, just cannot be the reason to accept this contention. There is no justification to permit to bring such documents and averments on record.

14. Even on the merits as contended that the charges that the false declaration was made in the affidavit filed with nomination form is not correct. Admittedly, though there was accusation of offences under sections 332, 353 and 506 of the Indian Penal Code (for short, "IPC") but there was no charge framed on that date. The nomination form was therefore accepted and the elections were held accordingly. There was no such objections raised at the relevant time even though the Petitioner had knowledge about the same. Admittedly, now the charges are framed in the month of February, 2009 for the alleged offences of the year 2006. The Petitioner who knowing fully the background of litigation had refused to adduce the evidence, not agitated or brought material on record at the appropriate stage, now, no indulgence can be shown in favour of the Petitioner. These applications are not bonafide. For that reason, application for proposed amendment is also, therefore, cannot be allowed.

15. Resultantly, there is no reason to interfere with the impugned order dated 22nd January, 2009 passed by the Additional Chief Judge of Small Causes Court at Bombay, and there is no perversity in the orders and the same are well within the framework of law and the record.

15-A. These elections are governed by the statue, therefore, also the rights. The candidate who secure next highest number of valid votes, in view of Sub-Section (2) of Section 33 shall be deemed to have been elected, once, the person whose election is objected and it has been declared null and void and/or set aside and/or such person is disqualified. The Chief Judge, Small Causes Court, has therefore no option but to pass such order of declaring the next highest person who secured next highest valid votes as elected. But there is one more facet as per Sub-Section (2) of Section 33 which requires that the Judge to consider to declare next person elected against whose election, "no cause of objection is found".

16. Admittedly, at the relevant time, no charges were framed, but now when the main election petition is heard finally and the same is pending for judgment, he may take into consideration, in accordance with law, this subsequent fact of framing of charges before passing final order.

17. In view of this the Writ Petition is dismissed with no order as to costs.

Petition dismissed.