CHARULATA SWAIN Vs. MANOJ KUMAR MOHANTY

JUDGEMENT

(1.) Challenge in this writ application is to correctness of the order dated 5.9.1997 passed by the learned Civil Judge (Junior Division), Kendrapara rejecting the prayers for (a) amendment of the plaint in paragraph 6 of the election petition questioning election of opposite party No. 2 as Sarpanch under Section 25 of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as the 'Act'), and (b) examination of one Natabar Samal to prove the entries in the Polio Vaccine Register produced by the Medical Officer, Indupur P.H.C.

(2.) A brief reference to the factual aspects would suffice. Election to the office of Sarpanch, Ayeba Grama Panchayat was held on 20.1.1997. After withdrawal of nomination, petitioner and opposite party No. 2 were only candidates left to the contest. Petitioner challenged the election of opposite party No. 2 on the ground that she was disqualified to be elected as Sarpanch under Section 25(v) of the Act, as she had more than two children. The petition was numbered as Election Misc. Case No 13 of 1997, It was stated that opposite party No. 2 had given birth to these children by the date of submission of nomination papers on 11.12 1996. The second child was born on 28 4.1994, and the third child was born after 18.4.1995. Opposite party No 2 filed objection taking the plea that she had only one child. On 8 7.1997 a petition was filed under Order 6, Rule 17 of the Code of Civil Procedure, 1908 (in short, the 'Code' seeking certain amendments to the plaint of the election petition The two proposed amendments sought to be made were that in the cause title of the election petition, the name of opposite party No 2's husband was wrongly described as Bilaya, whereas the correct name is Bijay, and the date of birth of second child given in paragraph 6 of the election petition was wrongly written as 23.4.1994, and it should be corrected to 28.4.1994. Objection was filed by opposite party No. 2 taking the stand that the provision of Order 6, Rule 17 of the Code is not applicable to election disputes. By order dated 25.7.1997 the learned Civil Judge (Junior Division) allowed the prayer for amendment so far as first prayer is concerned, but refused the second one on the ground that the date sought to be changed was not mentioned in the petition to be 23.4.1994. It was stated that in paragraph 6 there was no mention of the date as 23.4.1995 but it was mentioned as 23.4 1994 and therefore, the date mentioned in the amendment petition does not correspond to the date mentioned in paragraph 6 of the election petition and ambiguity was created regarding exact date of birth of second child of opposite party No. 2. That is how the prayer was rejected. Another application under Order 47, Rule 1 read with Section 151 of the Code was filed on 31.7.1997 with a prayer to review the order refusing the proposed amendment The said prayer was also rejected on the ground that no case for bringing in application of Order 47, Rule 1 of the Code was made out Another application was filed for examination of Natabar Samal. Same was rejected on the ground that relevance Of said witness was not established.

(3.) In support of the application. Mr P. Pujari, learned counsel submitted that the approach of the learned trial Judge is wrong The real essence of the dispute was sought to be brought out and nature and character of the dispute was not sought to be changed by the proposed amendment. Additionally the Polio Vaccine Register had been called for from the custody of the Medical Officer and same being not a public document the scope for examining any witness with reference to that register has arisen.