An Appeal Cannot Be Converted Into An Election Petition By Way Of Amendment Application: Madhya Pradesh HC
The Madhya Pradesh High Court has held that an Appeal cannot be converted into an Election Petition by way of filing an Amendment Application.
The Court was considering a Writ Petition against an order whereby learned Sub-Divisional Officer allowed the application filed under Order 6 Rule 17 of the CPC and permitted the respondent to carry out the amendment in the appeal preferred by the respondent under Section 91 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993.
The single-bench of Justice Vinay Saraf observed, " An application for amendment cannot be allowed to convert an appeal into election petition, if the compliance of mandatory provisions of Rules, 1995 are not established. Election petition is required to be filed strictly as per the provisions of Rules, 1995 and by allowing an application for amendment an appeal which was not filed in compliance of the provisions of Rules, 1995 cannot be permitted to convert into election petition."
The Petition was represented by Advocate Rajas Pohankar while the Respondent was represented by Advocate Rahul Rajpoot.
The fact of the case are that the Petitioner and the Respondent contested for the post of Panch. The Petitioner was declared as elected by the Returning Officer, aggrieved of which the Respondent filed an appeal under Section 91 of the Act, 1993 assailing the certificate. After appearance, the Petitioner raised an objection regarding the maintainability of the appeal under Section 91 of the Act, 1993 and consequently, an application was moved on behalf of the Respondent under Order 6 Rule 17 of the CPC for correcting the cause title of the Appeal by inserting the words 'election petition' in place of 'appeal' and mentioning 'Section 122' in place of 'Section 91 of the Act,1993' as well as replacing the word 'appellant' by 'petitioner' and 'non-appellant' by 'respondent'. The application was opposed by petitioner on the ground that the proposed amendment will change the nature of the lis and an appeal filed under Section 91 of the Act, 1993 cannot be converted into an election petition under Section 122 of the Act. However, the Sub Divisional Officer allowed the application filed under Order 6 Rule 17 of the CPC considering the explanation given by the respondent that the mistake occurred due to typographical error and inadvertence. Therefore the present petition.
Counsel for the Petitioner submitted that an Election Petition can be filed under Section 122 of the Act, 1993 and in accordance with Rule 3 of M.P. Panchayat (Election Petitions Corrupt Practices & Disqualification For Membership) Rules 1995. He further submitted that as per Rule 7 of the Rules, 1995 at the time of presentation of Election Petition, the Petitioner is under obligation to deposit a sum of Rs.500/- as security with the specified officer and until and unless amount is deposited, no Election Petition can be entertained. He further submitted that where no security deposit was accompanied with the Election Petition, the Petition cannot be entertained and same is liable to be dismissed under Rule 8, which provides that if the provisions of Rules 3, 4 or 7 are not complied with, the Petition shall be dismissed by the specified officer. It was not in dispute that along with the appeal filed under Section 91 of the Act, 1993, no amount was deposited as security amount and even along with the amendment application, it was not offered by the respondent to deposit the security amount therefore, in the absence of deposition of security amount, no election petition can be entertained and the same was liable to be dismissed according to the Rule 8 of the Rules, 1995. He stressed that when no amount as security was deposited, the Appeal could not be converted into Election Petition.
It was further submitted that an Election Petition is required to be verified in accordance with the provisions of Rule 5 (C) of the Rules 1995 which provides that the election petition should be verified in the manner laid down in the Code of Civil Procedure, 1908 and the pleadings should be verified as it is trite law that if an Election Petition is not duly verified, the same is not maintainable.
He submitted that there was no verification at the time of filing the Original Appeal or even after amendment therefore, the same cannot be treated as valid election petition and is liable to be rejected. He further submitted that even no affidavit has been filed in support of the so called election petition in accordance with provisions of Order 6 Rule 15 (4) of the CPC and stressed that Election Petition is required to be presented and verified by the election petitioner himself and should be accompanied with the security amount of Rs.500/-, which ought to have been deposited at the time of presentation and if these rules are not complied with, the election petition is liable to be dismissed.
He accordingly submitted that the order passed by the Sub Divisional Officer is contrary to the provisions of Rules, 1995.
Counsel for the Respondents supported the order passed by the Sub Divisional Officer on the ground that the election of petitioner was duly challenged by the Respondent by preferring a petition but due to typographical error or inadvertently the same was drafted as an Appeal and a wrong provision was mentioned in the Appeal. He further submitted that if a petition is filed mentioning wrong provisions, the same may be corrected at any time during the pendency of the petition and when it was came to the knowledge of the election petitioner (respondent) that wrong provision has been mentioned, the amendment application was filed, which was duly allowed by the Sub Divisional Officer and the Sub Divisional Officer has not committed any error in allowing the application.
The Court was of the view that the nature of the Appeal cannot be changed into an Election Petition by simply mentioning the correct provisions.
"As per Rule 5 of the Rules, 1995, the pleadings are required to be verified in the manner laid down in the Code of Civil Procedure, 1908, whereas no verification was there in the appeal memo and therefore, even by allowing the amendment, the appeal could not be converted into a valid election petition. When the facts are not verified by affidavit, the petition cannot be treated as election petition. Similarly, the amount of security was not deposited by the respondent as per Rule 7 and therefore, the petition cannot be entertained and is liable to be rejected under Rule 8," the Court observed.
"Election petition is required to be filed strictly as per the provisions of Rules, 1995 and by allowing an application for amendment an appeal which was not filed in compliance of the provisions of Rules, 1995 cannot be permitted to convert into election petition," the Court further observed.
The Petition was accordingly allowed.
Cause Title: Chanchal Gupta vs. Rakhi Dhali (2024:MPHC-JBP:57663)
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