- (1.) THIS petition has been filed against the order dated 6th July, 2012 passed by the Chief Judicial Magistrate cum Election Tribunal, Karauli dismissing the petitioner's (returned candidate) application under Order 6 Rule 17 of CPC for amendment of the reply to the election petition laid by the election-petitioner/respondent no.2.
(2.) HEARD the learned counsel for the petitioner as also for the respondent and perused the writ petition. Mr. R.N. Mathur Senior Counsel with Mr. Ravi Shankar Sharma apearing for the petitioner submitted that two applications were filed before the Election Tribunal by the returned candidate; one under Order 8 Rule 1 of CPC for taking on record a document pertaining to date of birth of his second child one Suman evidencing her birth on 15th July, 1995 and second, for amendment of reply to the election petition seeking to rectify an averment in the reply that Suman was born on 15th September, 1996, when in fact, she was born on 15th July, 1995. Counsel submits that even while the first application filed under Order 8 Rule 1 CPC was allowed and the certificate evidencing the date of birth of Suman as 15th July, 1995 was taken on record yet it the consequential amendment in the reply was not allowed and the application filed under Order 6 Rule 17 of CPC was dismissed. Learned counsel for the respondent submits that the entire attempt in seeking to amend the reply to the election petition was merely to delay the trial of the election petition. It is submitted that Suman's date of birth must obviously have been known to the returned candidate as her father at the time of filing of the reply to the election petition and there was no occasion to allow an amendment of the reply on that score belatedly. It is submitted that the lack of diligence in filing pleadings cannot be a ground to amend the pleadings in terms of the proviso to Order 6 Rule 17 of CPC. Counsel submits that even otherwise issue in the election petition was not with regard to date of birth of Suman who was admittedly the second child but with regard to the third child one Rahul who was born to the returned candidate subsequent to the cut off date i.e. 27th November, 1995 rendering him ineligible under Section 19(l) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter to be referred in short as 'the Act of 1994'). Counsel submits that as the petitioner had two living children as on 27th November, 2011, the birth of the third child subsequent to the cut off date has rendered the returned candidate ineligible and vitiated his election to the post of Sarpanch. Counsel of the respondent further submits that the Hon'ble High Court in D.B. Civil Special Appeal (W) No. 307/2012 vide its order dated 22nd March, 2012, had directed the trial court to decide the election petition as early as possible. Counsel submits that in this view of matter, both in the context of the irrelevance of the belated amendment sought and the directions of the Division Bench to expedite the trial of the election petition, the impugned order passed by the Election Tribunal is wholly legal and valid order and not liable to be quashed and set aside, as prayed for. Having considered the respective contentions as also the impugned order, I am of the view that there is no perversity or misdirection in law committed by the learned Election Tribunal while dismissing the application under Order 6 Rule 17 of CPC. The proviso to Order 6 Rule 17 CPC states that due diligence where absent will exclude consideration of application for amendment of pleadings. This situation obtained in the present case. The returned candidate ought to have been diligent in mentioning the correct date of birth of his own daughter while filing the reply to the election petition. The Tribunal was right in observing that the purpose of the application filed under Order 6 Rule 17 of CPC appeared to be to delay the trial inasmuch as amendment sought was not central to the dispute in the election petition. In my considered opinion, the document pertaining to Suman's date of birth having been taken on record by the trial court on accepting the petitioner's application filed under Order 8 Rule 1 of CPC, it is for the returned candidate now in the course of trial of the election petition to have the said document exhibited. On the said document being exhibited, the trial court will be free to evaluate its probative worth and address the central issue in the election petition as to whether the birth of third child Rahul on 20th June, 1999 to the returned candidate entailed the returned candidate being ineligible to contest and be elected to the post of Sarpanch with regard to Section 19(l) of the Act of 1994.
(3.) FURTHER the limitations of jurisdiction of this Court under Article 227 of the Constitution of India, have been well delineated by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty and Another Versus Rajendra Shankar Patil reported in (2010) 8 Supreme Court Cases 329, the Apex Court has held that the power under Article 227 of the Constitution of India is a reserve and exceptional power for judicial intervention to be exercised for the promotion of public confidence in the administration of justice and held though unfettered is subject to a high degree of judicial discipline. I find no force in the writ petition and the same is dismissed. Further, in the light of the judgment of the Division Bench in D.B. Civil Special Appeal (W) No. 307/2012 decided on 22th March, 2012, it is expected that the learned trial court will expedite the trial of the election petition.;