SANDEEP M.T. Vs. P.V. PATHROSE

JUDGEMENT

(1.) THE petitioners in the captioned writ petitions are the respondents in the original petitions filed by the common first respondent herein, before the Kerala State Election Commission (for short 'the Commission'). They filed interlocutory applications under Order VI Rule 17 of the Civil Procedure Code (for short the 'Code') in the respective original petitions for amending the objections filed by them. It is the dismissal of those applications that constrained the petitioners to come up with the captioned writ petitions assailing the respective orders passed against them. For the sake of convenience, the number of the writ petitions, the number of the original petitions from which each of these writ petitions arose and the number of the interlocutory applications dismissed by the Commission are tabulated as hereunder: -

(2.) IN all these cases, copy of the original petitions filed by the common first respondent before the Commission, copy of the objection filed by the respective petitioners in the respective original petition, copy of the amendment applications, copy of the objection filed by the common first respondent to the amendment application and the copy of the impugned order passed by the Commission are produced respectively as Exts.P1 to P5. In view of the generality of the issues germinated under exactly similar set of facts and also of the commonness of the point posed for consideration, individual consideration of these writ petitions is uncalled for. Therefore, on consent of parties, they were heard jointly and are being disposed of by this common judgment.

(3.) I have heard the learned counsel for the petitioners, the learned counsel for the common first respondent and the learned standing counsel appearing for the Commission. Various grounds have been raised by the petitioners to challenge the impugned order rejecting their application for amending their respective objection. The common first respondent filed original petitions against the petitioners under section 4(1) of the Act and going by section 5 of the Act, such petitions are to be disposed of in accordance with the procedures under the Code and, in such circumstances, the Commission was to dispose of Ext. P3 applications for amendment of the objections filed in the said original petitions, in accordance with the principles governing amendment of pleadings in a civil suit, it is contended. Nonetheless, according to the petitioners, Ext. P5 orders were passed on such applications for amendment without giving due regard to the principles governing amendment of pleadings under Order VI Rule 17 of the Code. It is their further contention that the Commission went wrong in considering the merits of the proposed amendments while passing Ext. P5 orders. It is also contended that the petitioners sought for amendment to bring in explanations to the effect that they did not act against their own political party and in fact, subsequent to 8.3.2012, the common first respondent defied the whip of the party in the 'no confidence motion' against the then Vice -president of the panchayat and committed defection and for that purpose, to bring on record what happened before and after 'no confidence motion' against the common first respondent held on 8.3.2012. It is further contended that the joint trial of the original petitions is not yet over and in such circumstances, there was absolutely no justification for the Commission to dismiss the applications for amendment. The learned counsel for the petitioners further contended thus: - In the light of the provisions under Order VI Rule 17 it is permissible to move application for amendment at any stage prior to the pronouncement of the judgment and that it is also permissible in law to bring by way of an amendment, new grounds of defence or to substitute or alter defence or even to take pleas inconsistent with the pleas taken in an earlier written statement/objection. No delay could be attributed on the part of the petitioners in moving such applications for amendment and that there is no legal impediment to amend written statement/objection to bring in subsequent events. To buttress the said contentions, the learned counsel for the petitioners relied on the decisions of the Hon'ble Apex Court in Harish Chandra Bajpai v. Triloki Singh reported in : 1957 KHC 348, Sushil Kumar Jain v. Manoj Kumar [ : AIR 2009 SC 2544], Sampath Kumar v. Ayyakannu reported in : 2002 KHC 1366, Andhra Bank v. ABN Amro Bank [ : (2007) 6 SCC 167], (1974) 1 SCC 675, Sultan Saluddin Owasi v. Mohammed Osman Shaweed and others reported in, 1980 KHC 699, Parsvnath Developers Ltd. v. Ghanshyam Das Agarwal [ : AIR 2009 Delhi 24] and Samant N. Balakrishna and others v. George Fernandez and others reported in 1969 KHC 608. Several other judgments were also cited by the learned counsel for the petitioners on different questions involved in these cases. However, taking into account the nature of the issues involved in these cases and also the fact that a survey of all those decisions is not required to decide those issues, I do not think it necessary to burden this judgment with all those authorities. The learned counsel appearing for the common first respondent contended that in view of the amendment brought in to Order VI Rule 17 of the Code as per the Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999) with effect from 1.7.2002 by introducing a proviso, an application for amendment could not be allowed after the commencement of the trial unless the court came to the conclusion that in spite of due diligence, the party seeking amendment could not have raised the matter before the commencement of trial. It is submitted that after completion of pleadings in these cases, the parties have let in their respective evidence and it is thereafter that the writ petitioners have filed application for amendment. In fact, now, the argument by the common first respondent (petitioner in the O.Ps) is also over. In such circumstances, according to the learned counsel appearing for the common first respondent, the attempt on the part of the petitioners is nothing but to protract the proceedings and even a consideration in the light of the proviso to Order VI Rule 17 of the Code was not warranted in view of the indisputable fact that the trial was already commenced and none of the applications carried a statement to the effect that in spite of due diligence the party could not have raised the matters now sought to be incorporated, before the commencement of trial. The learned standing counsel appearing for the Commission contended that the Commission considered the applications in accordance with law and as is evident from the impugned orders, the Commission dismissed the applications on coming to the conclusion that the events occurred subsequent to the date of voting on the 'no confidence motion' are totally irrelevant for deciding the fact in issue and other facts tried to be incorporated are already been taken up in the pleadings. The delay in the matter of filing applications was also taken into consideration.