P.V. Rajamannar, C.J.
1. The only question in this writ appeal is whether an Election Commissioner appointed to enquire into an election petition filed to set aside an election to a District Municipality has got the power to amend the petition by adding another ground on which the election is sought to be set aside, after the time for presenting the election petition has elapsed. Rajagopalan, J., held that the Election Commissioner has no jurisdiction to order an amendment in such circumstances.
2. The facts may be set out very briefly. An election for a seat in the Municipality from Municipal Ward No. 11, R.S. Puram, Coimbatore, was held on 16th September, 1952. There were three competing candidates of whom the 1st respondent was declared elected on 29th September, 1952, having secured the largest number of votes. The appellant before us filed an election petition before the Subordinate Judge, Coimbatore, who was the duly constituted Election Commissioner, challenging the validity of the 1st respondent's election on two grounds, namely (1) that the 1st respondent was not validly nominated and (2) that there was an unauthorised inclusion of a number of voters in the electoral roll. On 27th October, 1952, before the enquiry began but after the time for presenting an election petition had elapsed, the appellant filed an application to amend his petition by adding another ground on which he wanted to challenge the validity of the election, namely, that the 1st respondent was disqualified under Section 49(2)(c) of the District Municipalities Act, as he had an interest in a subsisting contract with the Municipality. That petition was allowed on 1st November, 1953. The Election Commissioner found against the appellant on the two grounds originally put forward in the election petition. But he held that the additional ground included by the amendment had been made out, and on that ground set aside the election of the 1st respondent. It was to quash this order of the Election Commissioner that W.P. No. 133 of 1953 was filed by the 1st respondent. Rajagopalan, J., allowed the petition, holding that the Election Commissioner had no jurisdiction to order the amendment. This appeal is against the judgment of Rajagopalan, J.
3. The learned Judge did not discuss the question, because he followed an earlier decision of Rajagopala Ayyangar, J., in W.P. No. 74 of 1953 on an identical question, with which he agreed entirely. It was urged before Rajagopalan, J., that the 1st respondent before us was not entitled to invoke the jurisdiction of the Court having taken advantage of the Election Commissioner's order granting the amendment by way of drawing out the costs ordered by the Election Commissioner to be paid to him when the Election Commissioner allowed the application for amendment. The learned Judge overruled this objection. There was another contention before him that the 1st respondent had submitted to the jurisdiction of the Election Commissioner, and therefore should not be permitted to invoke the jurisdiction of this Court under Article 226 of the Constitution. This contention was not accepted and it was not pressed before us. The material provisions relating to the main question in issue are to be found in the Rules for Decision of Election Disputes under the Madras District Municipalities Act, 1920. Rule 1(1) of these Rules says that, no election held under the Act shall be called in question except by an election petition presented in accordance with the rules to an Election Commissioner by a candidate or elector. Such a petition shall be presented within seven days of the date of the declaration of the result of the election. (Rule 2(1)). Rule 2(2) provides that the petition shall contain a statement in concise form of the material facts on which the petitioner relies and the particulars of any corrupt practice which he alleges. Rule 6 is in the following terms:
Every election petition shall be inquired into by the Election Commissioner as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits; provided that it shall only be necessary for the Ejection Commissioner to make a memorandum of the substance of the evidence of any witness examined by him.
Explanation: The Election Commissioner shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters:
(a) discovery and inspection,
(b) enforcing the attendance of witnesses and requiring the deposit of their expenses,
(c) compelling the production of documents,
(d) examining witnesses on oath,
(e) reception of evidence taken on affidavit and
(f) issuing commissions for examination of witnesses and may summon and examine suo motu any person whose evidence appears to him to be material.
4. Before we deal with decisions of this Court and other High Courts which have a bearing on the question which falls to be decided in this case, we shall refer to two decisions of the Supreme Court, in which the provisions of the Representation of People Act more or less similar to the provisions of the Municipal Election Rules bad to be construed. Section 83 of that Act runs thus:
83. Contents of Petition. (1) An Election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings.
(2) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice.
(3) The Tribunal may upon such terms as to costs and otherwise as it may direct at any time allow the particulars included in the said list to be amended or order such further and better particulars in regard to any matter referred to therein to be furnished as may in its opinion be necessary for the purpose of ensuring a fair and effectual trial of the petition.
Section 90(2) provides that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. Section 92 is practically identical with the Explanation to Rule 6 of the Municipal Rules.
5. In Jagan Nath v. Jaswant Singh (1954) 1 M.L.J. 480 : (1954) S.C.J. 257 (S.C.), it was held that if any proper party is omitted from the list of respondents in an election petition, such a defect is not fatal, and the Tribunal is entitled to deal with it under the provisions of the Code of Civil Procedure, Order 1, Rules 9, 10 and 13. In more than one place in the judgment, Mahajan, C.J., observed that the rules of the Code of Civil Procedure had been made expressly applicable and when any question as to procedure arises, such a question should be decided in accordance with the provisions of the Code. In Basappa v. Nagappa (1954) S.C.J. 695, the competency of an election tribunal appointed under the Representation of People Act to allow an amendment of the pleadings such as was contemplated by Order 6, Rule 17 of the Civil Procedure Code was raised. The Mysore High Court had held that the Election Tribunal had no power of allowing a general amendment as contemplated by Order 6, Rule 17 of the Code. The Supreme Court considered it was unnecessary to deal with the question as it was not directly involved.
6. There are, however, certain observations in both the above decisions of the Supreme Court, which may be usefully cited. In Jagan Nath v. Jaswant Singh (1954) 1 M.L.J. 480 : (1954) S.C.J. 257 (S.C.) the learned Chief Justice made the following observations regarding the nature of an election petition:
The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the Common Law and that the Court possesses no Common Law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.
In Basappa v. Nagappa (1954) S.C.J. 695., at page 702, the way in which the objection that the election tribunal had no power to allow an amendment was disposed of is significant. Mukherjea, J., as he then was, said:
The only amendment applied for by the petitioner was a modification in the prayer clause by insertion of an alternative prayer to the original prayer in the petition. No change whatsoever was sought to be introduced in the actual averments in the petition and the original prayer which was kept intact was repeated in the application for amendment. The alternative prayer introduced by the amendment was not eventually allowed by the Tribunal which granted the prayer of the petitioner as it originally stood. In these circumstances the mere fact that the Tribunal granted the petitioner's application for amendment becomes altogether immaterial and has absolutely no bearing on the actual decision in the case.
7. The decision of Rajagopala Ayyangar, J., which Rajagopalan, J., followed is a direct decision on the question before us. That case also related to a Municipal election. In the election petition, it was alleged that there was impersonation of certain voters. A list of instances of such impersonation was given in the petition. Long after the period for filing a petition had elapsed, the election petitioner filed an application for amendment of the petition by adding the names of four more persons to the list of persons, who had impersonated voters who were actually dead at the time of the election and two more names of persons who were non-resident and who did not vote at the election. The learned Judge did not finally decide whether Order (sic), Rule 17, would apply: but even on the footing that a power similar to that conferred by Order 6, Rule 17, is vested in an election tribunal, the learned Judge held that the tribunal had no power to permit new charges to be introduced after the period within which alone an election petition could be filed. He followed the well-settled rule of election law in England that new charges cannot be added by way of amendment after the time for the filing of an election petition had elapsed.
8. It is not necessary for us to decide in this case finally whether Order 6, Rule 17 of the Code of Civil Procedure, applies to the trial of election petitions.
9. There appears to be some difference of opinion on this point. Satyanarayana Rao, and Rajagopalan, JJ., in W.A. No. 49 of 1953 expressed the opinion that the procedure laid down in Order 6, Rule 17, would apply to a proceeding before an Election Tribunal appointed under the Representation of People Act. In arriving at this conclusion, they followed the reasoning in Sitharam Hirachand v. Yograjsing Shankarsing I.L.R. (1953) Bom. 865. The Mysore High Court in Nagappa v. Basappa A.I.R. 1954 Mys. 102 and the Patna High Court in Sheo Mahadeo Prasad v. Deva Sharan A.I.R. 1955 Patna 81, took the view that Order 6, Rule 17 Civil Procedure Code, as such was not applicable to an application for the amendment of an election petition. In the said decision of the Patna High Court there is a very full discussion of the case-law. The learned Judges held that the provisions of the Representation of People Act rule out the possibility of permitting an amendment to be made in an election petition by raising new charges after the prescribed period, and that if the election tribunal is called upon to deal with any charge not laid before the authority within the prescribed period, it would be acting beyond its jurisdiction. They followed the English rule.
10. There is one ruling of this Court in Appaswami Padayachi v. Ethirajulu Naidu A.I.R. 1926 Mad. 1043 which was cited. Though it is a decision of a Bench of three Judges, we regret to say with great respect, that the judgment does not lay down any general principle and has not given us any assistance in deciding the question before us.
11. In view of the decision of the Supreme Court in Jagan Nath v. Jaswant Singh (1954) 1 M.L.J. 480 : (1954) S.C.J. 257 (S.C.) we shall assume for the purpose of this case that Order 6, Rule 17 of the Code, would apply to the trial of an election petition by an election tribunal, in the same way as, Order 1, Rule 9, was held to apply in that decision. But no authority has been cited to us in which it has been held that the power to amend extends to allowing an amendment by which a totally new charge is sought to be added to the charges already made in the election petition when filed, after the time for filing the election petition has expired. Even assuming that Order 6, Rule 17, applies in dealing with an application for an amendment of an election petition, we think that the rule of English Law which is based on equity and justice should be taken into account. That rule as stated in Halsbury's Laws of England, Vol. 12, page 390 (and edition), is this:
The Court has not jurisdiction to allow an amendment of a petition after the time prescribed by statute by the introduction of a fresh substantive charge. There is not, it is submitted, jurisdiction to allow such an amendment whether the charge sought to be added be one of a fresh nature, or whether it be one only of a fresh instance but not covered by the allegations in the petition as standing.
The leading case on the subject is Maude v. Lowley L.R. 9 C.P. 165 vide also Rogers on Elections) 1928 edition, Vol. 2, page 181. In Ma Shwe Mya v. Maung Mo Hnaung (1921) L.R. 48 I.A. 214 : I.L.R. 48 Cal. 832 (P.C.), the Privy Council laid down the limits of the power to amend under Order 6, Rule 17 of the Code of Civil Procedure. In that case, the plaintiff sued for specific performance of a verbal agreement of the year 1912. This agreement was found against, but the Court allowed the plaint to be amended by introducing a claim for damages for a breach of an earlier agreement of 1903, and that was allowed. Dealing with this amendment their Lordships said:
The real question in controversy between the parties in these proceedings was the existence and the character of an agreement alleged to have been made in 1912 for the delivery of certain sites of oil wells specified and identified by the numbers stated in the plaint which could only have been delivered in respect of that subsequent bargain. When once that contract has been negatived, to permit the plaintiff to set up and establish another and an independent contract altogether would, in their Lordships' opinion, be to go outside the provisions established by the Code of Civil Procedure, to which reference has been made. It would be a regrettable thing if when in fact the whole of a controversy between two parties was properly open, rigid rules prevent its determination but in this case their Lordships think that the rules do have that operation and that it was not open to the Court to permit a new case to be made.
12. In our opinion, the plain language of Order 6, Rule 17 of the Code of Civil Procedure, does not permit a new charge to be added by way of an amendment. The real question in controversy between the parties was whether the election of the 1st respondent was liable to be set aside on the grounds set out in the election petition. For the purpose of determining this question, it is not necessary to add an altogether new ground attacking the validity of the election. We, therefore, agree with the view taken by Rajagopala Ayyangar, J., in Writ Appeal No. 74 of 1953, which was followed by Rajagopalan, J., in his order under appeal. We may mention that this view of ours is not in conflict with the view taken by this Court in Writ Appeals No. 37 of 1953 and 49 of 1953 and Sitharam Hirachand v. Yograjsing Shankarsing I.L.R. (1953) Bom. 865. In these cases, the amendment allowed served to cure certain formal defects in the pleadings. We hold that the Election Tribunal had no power to permit the amendment which he did.
13. The only other point raised by Mr. Kumaramangalam for the appellant was that the 1st respondent was precluded from disputing the correctness of the order allowing the amendment, because he had drawn out the costs ordered by the Election Commissioner to be paid to him in and by his order allowing the amendment. Rajagopalan, J., held that the direction in the order allowing the amendment that costs should be paid to the 1st respondent did not operate as a bar to the application under Article 226 of the Constitution. The appellant's counsel relied on the decision of this Court in Prayag Dossjee v. Venkata Perumal A.I.R. (1933) Mad. 410. In that case, the order allowing the amendment was made conditional on the payment of costs to the defendant. In the case before us, there was no such conditional order. The decision in Prayag Dossjee v. Venkata Perumal A.I.R. (1933) Mad. 410 follows the decision in Venkatarayudu v. Chinna Ramakrishnayya (1929) 58 M.L.J. 137 where this distinction is pointed out. Venkatasubba Rao, J., observed:
It is next needless to add that the rule in question does not apply to a case where the various directions in an order or judgment are intended to be distinct and independent of each other.
14. We may also say that the decision in Venkatarayudu v. Chinna Ramakrishnayya (1929) 58 M.L.J. 137 was based on English decisions like Pearce v. Chaplin (1846) 9 Q.B. 802 : 115 E.R. 1483 and Tinkler v. Hilder (1849) 4 W.H. and G. 187 : 154 E.R. 1176 which, however, were not accepted as authorities for the proposition which the learned. Judges of this Court thought they were, in the decision of the House of Lords in Lissenden v. C.A.V. Bosch, Ltd. L.R. (1940) A.C. 412. There is no substance, therefore, in this contention on behalf of the appellant.
15. No other point was raised before us. The appeal is dismissed with costs of the 1st respondent. Advocate's fee Rs. 100.