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PETITIONER: S.   M. BANERJI

       Vs.

RESPONDENT: SRI KRISHNA AGARWAL

DATE OF JUDGMENT: 20/11/1959

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1960 AIR  368            1960 SCR  (2) 289

ACT: Election  Petition- Amendment of-Petition alleging  improper acceptance  of nomination--Amendment introducing  ground  of noncompliance  with  Provisions--Whether  can  be   allowed- Discretion  of Election Tribunal-lnterference by High  Court in  appeal-Representation  of the People Act,  1951  (43  of 1951), ss. 33(3) and 100

HEADNOTE: The  appellant held an office under the Government  and  was dismissed  from  service on January 24, 1956, for  a  reason other than corruption or disloyalty to the State.  He  filed his  nomination paper for election to Parliament  which  did not disclose any disqualifications.  No objection was  taken to  the  nomination and it was accepted without  making  any enquiry.   After  the poll the appellant was  declared  duly elected.    The  respondent  filed  an   election   petition challenging  the  election of the appellant on  the  ground, inter  alia, that the nomination of the appellant  had  been improperly  accepted  as he was  dismissed  from  Government service  and he had failed to obtain a certificate from  the Election  Commission  that  he had not  been  dismissed  for corruption or disloyalty to the State.  After limitation for filing  the petition had expired, the respondent applied  to the Election Tribunal for amendment of the petition  seeking to  add  to this ground the statement  that  the  nomination paper  was  not accompanied by the  prescribed  certificate. The Tribunal disallowed the amendment on the ground that the amendment sought to introduce a 290 new ground after the period of limitation and then dismissed the  election  petition  holding  that  the  appellant   was qualified  to stand for the election and his nomination  was not improperly accepted. On appeal, the High Court held that the  amendment should have been allowed as it  merely  asked for a clarification and not the introduction of a new ground and consequently it set aside tile order of the Tribunal and directed  a  retrial of the issue involving.  The  appellant obtained special leave and appealed.

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Held,  that the amendment could not be allowed as it  sought to  introduce a new ground in the petition after the  period of  limitation.  The ground taken in the petition  was  that there  was an improper acceptance of the nomination  covered by s. 100(1)(d)(1) of the Representation of the People  Act, 1951.    But  there  was  no  improper  acceptance  of   the nomination  for  the  nomination  paper  ex  facie  did  not disclose  any  defect or disqualification.  There  being  no subsisting  prayer  seeking  to raise the  ground  under  s. 100(1)(d)(iv)  for non-compliance with the Provisions of  s. 33(3) of the Act, the amendment was foreign to the scope  of the, enquiry under the ground covered by s. 100(1)(d)(1). Durga  Shankar  Mehta  v. Thakur Raghuraj  Singh,  [1955]  1 S.C.R. 267 and Harish Chandra Bajpai v. Triloki Singh [1957] S.C.R. 370, followed. Veluswami v. Raja Nainay, A.I.R. 1959 S.C. 422, referred to. There  was  no jurisdiction in the High Court  to  interfere with  the  discretion of the Election Tribunal  refusing  to allow  the  amendment after the entire  petition  had  -been disposed  of.  It is undesirable for an appellate  Court  to interfere  with the order of a subordinate Tribunal made  in the exercise of its discretion without exceeding the  limits of its powers, unless it has acted perversely or has taken a view which is clearly wrong.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 301 of 1959. Appeal  by special leave from the judgment and  order  dated December  10,  1958, of the Allahabad High Court,  in  First Appeal  No.  382 of 1958, arising out of  the  judgment  and order  dated  August  6, 1958,  of  the  Election  Tribunal, Kanpur, in Election Petition No. 284 of 1957. N. C. Chatterjee, R. K. Garg, S. C. Agarwal, D. P. Singh, V. A. Sayid Muhammad Janardan Sharma and M.     K.  Ramamurthi, for the appellant. A.   V.   Viswanatha  Sastri  and  K.  P.  Gupta,  for   the respondent.                             291 1959.  November 20.  The Judgment of the Court was delivered by SUBBA  RAO  J.-This  appeal by  special  leave  is  directed against  the  judgment of the High Court  of  Judicature  at Allahabad,  setting  aside that of  the  Election  Tribunal, Kanpur, dismissing the petition filed by the respondent  for setting aside the election of, the appellant as a member  of the Parliament from the Kanpur constituency. In  February-March  1957, elections were held to fill  up  a parliamentary  seat from the single-member constituency  No. 331,  Kanpur.  Sri S. M. Banerji, Sri Suraj Prasad and  four others  were  candidates for the said  election.   The  said persons filed their nomination papers between 19th and  29th January, 1957.  The appellant was employed as  Supervisor’A’ Grade at the Government Ammunition Factory, Kirkee, and  was dismissed  from  service on January 24, 1956, for  a  reason other than corruption or disloyalty to the state; and he was duly qualified to stand for the election.  He also filed his nomination paper within the prescribed time and ex facie  it complied  with all the provisions of the  Representation  of the  People Act, 1951 (43 of 1951), as amended by Act  XXVII of 1956, (hereinafter called the Act), and did not  disclose any disqualifications.  The Returning Officer held  scrutiny of  the  nomination  papers  on February  1,  1957.   As  no objection  was  taken  to the  appellant’s  nomination,  the

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Returning Officer accepted it under s. 36 of the Act without making  any  enquiry.  The polling took place  on  March  6, 1957,  and the result was declared on March 13,  1957.   The appellant  having secured the largest member of  votes,  was declared duly -elected.  On April 24, 1957, the  respondent, who is one of the voters in the said constituency, presented a  petition  before  the  Election  Commission,  New  Delhi, praying that the election of the appellant be declared void. In  the  petition  he alleged ten  grounds  to  sustain  his petition.   The Election Commission constituted an  Election Tribunal  in the manner prescribed by the Act  and  referred the  petition to the said Tribunal for trial.  On  July  17, 1957, i.e., after the prescribed period 292 of  limitation of 45 days had expired, the respondent  filed an application for amendment of the election petition.   The amendments sought to be made in the     election    petition were as follows: "(a)  In paragraph No. 5 clause ’i’, figure ’9’ between  the words  ’under section’ and ’clause’ is a typing mistake  for figure ’33’.  In place of figure (9)  figure ’33’ be substituted. (b)  In paragraph No. 5(d) at the end of the paragraph,  the following sentence be added: "The nomination paper of the respondent presented before the Returning  Officer was not accompanied by a  certificate  of the  Election Commission to the effect that he has not  been dismissed  for  disloyalty  or  corruption.   The   improper acceptance  of  the  nomination  paper  being  that  of  the returned  candidate, there is a presumption that the  result of the election has been materially affected". On August 3, 1957, the respondent filed another  application for   amendment   seeking  the  second  amendment,   in   an abbreviated form.  The proposed amendment was as follows: "  (b)  In paragraph No. 5(d) at the end of  paragraph,  the following sentence be added in the petition : "  and such a certificate did not accompany  the  nomination paper of the respondent and the acceptance of his nomination paper materially affected the result of the election." By  an  order dated August 12, 1957, the  Election  Tribunal dismissed  the  petition on the -round that  the  amendments sought to introduce a new ground after the prescribed period of  limitation, and therefore it had no power to  allow  the same.   After dismissing the application, the Tribunal  took up  the main petition for disposal and, after recording  the findings  on  the  issues raised, dismissed  the  same  with costs.   Against the said judgment the respondent  preferred an  appeal  under  s. 116A of the Act  to  the  High  Court. Before   the  High  Court  the  learned  Counsel   for   the respondent, withdrew the prayer for amendment of                             293 sub-paragraph (1) of paragraph (5) of the election  petition and  confined his relief only to the amendment asked for  in paragraph 5(d) of the election petition, i.e., he sought  to bring  in the amendment under the head "improper  acceptance of  the  nomination paper".  The High Court  found,  on  the construction of the pleadings, that the allegations found in the  original petition were sufficient to bring in the  case under  s.  100(1)(d)(i)  of the Act  i.e.,  under  the  head "improper  acceptance", and, therefore, the amendment  asked for  was only a clarification but not an introduction  of  a new  ground:  in the result, the High Court  set  aside  the order  of the Tribunal and directed it to decide the  issues that  arose  out of the averment made in the  amended  para. 5(d) of the election petition.  The present appeal was filed

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by  special  leave  against the said judgment  of  the  High Court. The   contentions  of  the  learned  Counsel,  Mr.   N.   C. Chatterjee,  for the appellant may be briefly put thus:  The ground  for  relief in the election petition  was  based  on improper acceptance of the appellant’s nomination within the meaning  of  s. 100(1)(d)(i) of the Act and  no  alternative ground  tinder sub-cl.(iv) of cl.(d) s. 100(1) was  alleged. There  was  proper acceptance of the nomination  paper  and, therefore,  the High Court or the Tribunal had no  power  to introduce by amendment a new ground, namely, that the result of  the  election had been materially affected by  the  non- compliance with the provisions of the Act, and  particularly when the ground based upon s. 33 of the Act. was given up by the respondent. He relies upon for the first proposition on the decision  of this  Court in Durga Shankar Mehta v. Thakur Raghuraj  Singh (1)  and  for the second on the decision of  this  Court  in Harish Chandra Bajpai v. Triloki Singh (2). Mr.  A.  V. Viswanatha Sastry, the learned Counsel  for  the respondent,  contends  that  the  said  two  decisions  were wrongly  decided and require reconsideration, and  that,  in any event, the amendment asked for clearly falls within  the scope of the later decision.  He (1)  [1955] 1 S.C.R. 267. (2) [1957] S.C.R. 370. 38 294 further  contends  that, on a fair reading of  the  relevant allegations  in  the petition as  originally  presented,  it would be clear that the respondent stated all the  necessary facts  to sustain the ground he had taken in  the  amendment petition,  and that by the amendment he was only seeking  to clarify  the said ground.  In any  view, he argues that  the appellate  Court on a careful construction of the  pleadings has  held that the petition in substance disclosed the  said ground; and the question of correctness of the said decision does   not  legitimately  fall  within   the   discretionary jurisdiction   of   this  Court  under  Art.  136   of   the Constitution. At  the  outset the relevant provisions of the  Act  may  be noticed.  The said provisions read: S.   9  (3)  : " If any question is raised as to  whether  a person who, having held any office referred to in clause  (f )of section 7, has been dismissed is disqualified under that clause  for  being  chosen as a member of  either  House  of Parliament  or  of the Legislative Assembly  or  Legislative Council  of a State, the production of a certificate  issued in  the prescribed manner by the Election Commission to  the effect   that  such  person  has  not  been  dismissed   for corruption  or disloyalty to the State shall  be  conclusive proof that -he is not disqualified under that clause." S.   33  (3): " Where the candidate is a person who,  having held any office referred-to in clause (f) of section 7,  has been  dismissed and a period of five years has  not  elapsed since  the dismissal, such person shall not be deemed to  be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by  the  Election Commission to the effect that he  has  not been dismissed for corruption or disloyalty to the State." S.   36:  "  (1)  On  the date fixed  for  the  scrutiny  of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person , may attend at such

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295 time and place as the returning officer may appoint; and the returning officer shall give them all reasonable  facilities for examining the nomination papers of all candidates  which have  been delivered within the time and in the manner  laid down in section 33. (2) The returning officer shall then examine the  nomination papers and shall decide all objections which may be made  to any nomination, and may, either on such objection or on  his own motion, after such summary inquiry, if any, as he thinks necessary,  reject  any nomination on any of  the  following grounds:- (a)  *                   *         * (b)  that there has been a failure to comply with any of the provisions of section 33 or section 34; or (c)  *                        *         * S.   100: (1) Subject to the provisions of sub-section  (2), if the Tribunal is of opinion- *                     *                * (d)  that  the  result  of the election, in  so  far  as  it concerns a returned candidate, has been materially affected- (i)  by the improper acceptance of any nomination, or (iv) by  any  non-compliance  with  the  provisions  of  the Constitution or of this Act or of any other rules or  orders under  this Act, the  Tribunal  shall declare the election  of  the  returned candidate  to  be  void. The  foregoing provisions, so far  relevent to  the  present enquiry,  may  be summarised thus: If a candidate  has  been dismissed from Government service and a period of five years has not elapsed since dismissal-, he will have to file along with  the  nomination  paper a  certificate  issued  in  the prescribed  manner by the Election Commission to the  effect that he has not been dismissed for corruption or  disloyalty to  the  State.   If it has not  been  done,  the  Returning Officer,  either  suo motu or on objections  raised  by  the opposite  party,  has  to reject  the  nomination.   If  the nomination  paper does not disclose any such defect  and  if the 296 Returning  Officer has no knowledge of that fact, he has  no option but to accept the nomination.  The Returning  Officer may improperly accept a nomination paper     though       it discloses the said defect and though an      objection    is raised   to   its  reception  on   that   ground.    Section 100(1)(d)(i)  of the Act deals with improper  acceptance  of any nomination and s. 100(1)(d)(iv) permits an attack on the ground, among others, of non-compliance with the  provisions of the Act. Before we consider the contentions of the parties, it  would be  convenient  to  appreciate the true  scope  of  the  two decisions  of  this  court in the  light  of  the  arguments advanced by the learned Counsel.  The first -decision is  in Durga  Shankar  Mehta v. Thakur Raghuraj  Singh  (1).   This decision turns upon the provisions of sub-s. (1)(c) and sub- s. (2)(c) of s. 100 of the Representation of the People Act, 1951  before  it was amended by Act XXVII of  1956.   Sub-s. (1)(c) and sub-s. (2)(c), in so far as they are material  to the present discussion correspond to s. 100(1)(d)(i) and  s. 100(1)(d)(iv)  respectively of the amended Act.   This  case arose  out  of an election held in December, 1951,  for  the double member Lakhnadon Legislative Assembly Constituency in Madhya  Pradesh,  one  of  the  seats  being  reserved   for Scheduled Tribes.  The appellant and respondents 1, 3,5  and 7  therein  were duly nominated candidates for  the  general

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seat  in the said constituency, while respondents Nos. 2,  4 and  6 were nominated for the reserved seat.   No  objection was  taken before the Returning Officer in respect  _of  the nomination of either the appellant or respondent No. 2.  The appellant and respondent No. 2 were declared elected to  the general and reserved seat respectively.  The respondent  No. 1  filed an election petition against the appellant and  the other  respondents for setting aside the election as  wholly void.  One of the allegations was that the respondent No. 2, was,  at all material times, under 25 years of age  and  was consequently  not qualified to be chosen to fill a  seat  in the  Legislative Assembly of a State under Art. 173  of  the Constitution.  The Election Tribunal held that the (1)  (1955) 1 S.C.R. 267.                             297 acceptance  by  the Returning Officer of the  nomination  of respondent  No.  2  amounted to an  improper  acceptance  of nomination  within the meaning of s. 100(1)(c) of  the  Act, and  on  that ground declared that the entire  election  was void.   The candidate, who was elected to the  general  seat preferred  an  appeal to this Court and contended  that  his nomination  had  been  properly accepted  by  the  Returning Officer  and,  therefore, if respondent No. 2 was  not  duly qualified  to  be  elected, his  election  alone  should  be declared void on the ground that such disqualification shall fall  under  sub-s., (2)(c) of s. 100 and not  under  sub-s. (1)(c)  thereof  This Court accepted the contention  and  in that  context defined the import of " improper acceptance  " within  the meaning of s. 100(1)(c) of the Act.   Mukherjea, J.,  as  he then was, delivering the judgment of  the  Court observed at p. 277: "  If  the  want of qualification of a  candidate  does  not appear  on  the  face  of the nomination  paper  or  of  the electoral  roll, but is a matter which could be  established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any  objection to the nomination.  The Returning-Officer  is then  bound to make such enquiry as he thinks proper on  the result  of  which  he  can  either  accept  or  reject   the nomination.   But when the candidate appears to be  properly qualified  on  the  face  of  the  electoral  roll  and  the nomination   paper  and  no  objection  is  raised  to   the nomination,  the Returning Officer has no other  alternative but to accept the nomination.  ’This would be apparent  from section 36, subsection (7) of the Act . . .". The learned Judge proceeded to state at p. 278: " It would have been an improper acceptance, if the want  of qulification was apparent on the electoral roll itself or on the  face of the nomination paper and the Returning  Officer overlooked  that defect or if any objection was  raised  and enquiry  made  as  to the absence of  qualification  in  the candidate  and  the  Returning  Officer  came  to  a   wrong conclusion on the materials placed before him.  When neither 298 of   these   things   happened,  the   acceptance   of   the nomination by the Returning Officer must be  deemed to be  a proper acceptance." This  judgment,  therefore,  is a clear  authority  for  the proposition  that  if  the want of  qualification  does  not appear  on  the  face  of the nomination  paper  and  if  no objection  is  raised on that ground  before  the  Returning Officer, the acceptance of the nomination must be deemed  to be a proper acceptance. Mr.  A.V.  Viswanatha Sastry, the learned  Counsel  for  the respondent,  attacks  the  correctness  of  this   decision.

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Broadly stated, his criticism is that the proceedings before the Returning Officer are summary proceeding,, and that  the election  petition  is not an appeal from the order  of  the Returning  Officer, but is an original petition  seeking  to set  aside  the  election and that in such  a  petition  the aggrieved  party  has  the right to seek to  set  aside  the election on all or any of the grounds mentioned in s. 100 of the  Act  and that, as one of the grounds  is  the  improper acceptance  of the nomination paper, he could  establish  by evidence  that  the  acceptance of  the  nomination  by  the Returning  Officer  was in the derogation of  the  statutory provisions,  such  as  those  relating  to  the  absence  of qualification  in  the  candidate  or  the  filing  of   his nomination  paper unaccompanied by a certificate within  the meaning  of  s.  33(3)  of the  Act.   In  support  of  this contention reliance is placed upon another decision of  this Court in Veluswami v. Raja Nainar (1).  The point raised and decided  in  that  case was whether an  enquiry  before  the Election Tribunal was not restricted to the material  placed before  the Returning Officer relating to a ground, but  all evidence bearing on that ground could be adduced before that Tribunal.  There unlike here, at the time of scrutiny of the nominations  objection  was taken to the nomination  of  the candidate  on the ground that he was the Head Master of  the National  Training School, Tiruchendur, which was a  Govern- ment-aided  school, and therefore be was disqualified  under s. 7, cls. (d) and (e) of the Act.  The Returning (1)  A.I.R. 1959 S.C. 422.                             299 Officer  upheld the objection.  In a petition to  set  aside the  election,  the  returned  candidate  pleaded  that  the candidate whose nomination was rejected was not qualified to be  chosen not merely on the ground put forward  before  the Returning  Officer  but also on other grounds.   This  Court held that. it is open to a party to put forward all  grounds in  support  or negation of the claim subject only  to  such limitations as may be found in the Act, notwithstanding that some  of  the grounds were not taken  before  the  Returning Officer.  The reason for the decision is found at p. 426 and it reads : " An election petition is an original proceeding  instituted by  the  presentation  of  a petition under  s.  81  of  the Act...........  All  the parties have the  right  to  adduce evidence  and  that  is  of  the  essence  of  an   original proceeding  as  contrasted  with a  proceeding,  by  way  of appeal.   That being the character of the  proceedings,  the rule  applicable  is  that which governs the  trial  of  all original proceedings; that is, it is open to a party to  put forward all grounds in support of or negation of the  claim, subject  only  to such limitations as may be  found  in  the Act." The learned Judge elaborated the point at a subsequent stage of the judgment thus: " The enquiry which a returning officer has to make under S. 36  is  summary in character.  He may make  "  such  summary enquiry,  if any, as he thinks necessary "; be can  act  suo motu.  Such being the nature of the enquiry, the right which is  given to a party under S. 100(1)(c) and S.  100(1)(d)(i) to  challenge  the  propriety of an order  of  rejection  or acceptance  of a nomination paper would become illusory,  if the  Tribunal is to base its decision only on the  materials placed before the returning officer." When the attention of the Court was invited to the  decision in  Durga  Shankar Mehta v. Thakur  Raghuraj  Singh(1),  the Court distinguished that decision in the following manner:

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"  This  is not a direct pronouncement on the point  now  in controversy, and that is conceded." (1)  [1955] 1 S.C.R. 267. 300 The two decisions can stand together and they deal with  two different  situations  :  in the former,  no  objection  was raised   at   all   to  the   nomination,   while   in   the latter   an   objection  was  raised  on   the   ground   of disqualification;  but in the election  petition  additional grounds  of disqualification were alleged and sought to   be proved: one is concerned with a case of improper  acceptance and  the  other with a case of improper  rejection.   Though some of the observations in the later decision may well have been  advanced  to  come to a  contrary  conclusion  in  the earlier  decision, Venkatarama Ayyar, J., who was  party  to both  the  decisions, distinguished the earlier one  on  the ground  that  it  was  not a  direct  pronouncement  on  the question raised in the later.  The earlier decision is  that of  five  Judges  but the later is  of  three  Judges.   The learned Judges, who decided the later case, did not see  any conflict between their decision and that of the earlier one. Though  there is some force in the argument advanced by  Mr. A.  V. Viswanatha Sastry, and, if it were res integra,  some of us might be inclined not to agree with the reasoning  and the conclusion of the earlier judgment, this Court is  bound by its earlier decision and we do not see any  justification to refer the question to a larger bench, particularly as  we have  come  to the conclusion that the High  Court  was  not justified  in  interfering  with the  order  passed  by  the Tribunal   in  its  discretion  disallowing   the   material amendment. The second case is a decision of four Judges and it  defines the  powers  of  the  Election Tribunal  in  the  matter  of amendment  of pleadings.  This decision also turns upon  the relevant provisions of Act 43 of 1951 before it was  amended by  Act  27 of 1956.  Section 83(3) of the  Act  before  the amendment  corresponds to s. 90(5) of the amended  Act.   In other  respects, so far, as it is material to  the  question raised, no change has been introduced in the other  relevant sections.  In this case, the respondent in the appeal  filed an  election  petition  challenging  the  election  of   the appellants  to the U.P. Legislative Assembly on  the  ground that they had committed corrupt practices, the material 301 allegations  being, (i) that the appellants " could  in  the furtherance of their election enlist the support of  certain Government servants ", and (ii) that the appellant No. 1 had employed two persons in excess of the prescribed number  for his  election purposes.  No list of particulars  of  corrupt practices  was  attached to the petition.   Long  after  the period  of limitation prescribed for the filing of  election petitions,  the  respondent  applied for  amendment  of  his petition  by  adding the names of  certain  village  Headmen (Mukhias)  as having worked for the appellants and later  on becoming  their  polling  agents.   The  Election   Tribunal allowed  the  amendment on the ground that  the  allegations sought   to  be  introduced  by  the  amendment  were   mere particulars  of  the  charge  already  made.   Holding  that corrupt  practice had been committed by the  appellants,  it declared their election void under s. 100(2)(b) of the  Act. The  appellants  preferred an appeal against that  order  to this  Court and contended that the Election Tribunal had  no power  either under s. 83(3) of the Act or under  Order  VI, rule  17  of  the  Code of  Civil  Procedure  to  allow  the amendment.    In  that  context,  this   Court   elaborately

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considered  the scope of the power of the Election  Tribunal to amend the pleadings in an election dispute and summarized its views in the following two propositions, at p. 392: "  (1)  Under  s.  83(3) the Tribunal  has  power  to  allow particulars in respect of illegal or corrupt practices to be amended, provided the petition itself specifies the  grounds or  charges,  and  this  power  extends  to  permitting  new instances to be given. (2)  The  Tribunal  has power under 0. VI, r.  17  to  order amendment of a petition, but that power cannot be  exercised so as to permit new grounds or charges to be raised or to so alter  its  character  as  to make it  in  substance  a  new petition, if a fresh petition on those allegations will then be barred." On the basis of those propositions this Court held that  the petition  as  originally presented did not allege  that  the appellants  had committed corrupt practices and,  therefore, that the allegations sought to be introduced 39           302 by the amendment, namely, that two village Headmen s. worked for the appellants and later on became their polling agents, so  radically  altered  the character  of  the  petition  as originally framed as to make it practically a new  petition, and so it was not within the power of the Tribunal to  allow amendments of that kind. Even if the Tribunal had the  power under 0. VI, r. 17 of the Code of Civil Procedure to  permit an  amendment raising a new charge, the Court held  that  it did  not  under  the  circumstances  exercise  a  sound  and judicial discretion in permitting the amendment in question. It may be noticed that in that case the question turned upon the construction of s. 83, sub-ss. (2) and (3), of the  Act. Though in that case this Court was concerned with the powers of  an  Election Tribunal to amend the petition  beyond  the period of limitation, the discussion of the Court covered  a wider  field,  presumably,  because the  Court  intended  to settle the principles    governing  the  power  of  Election Tribunals  to  amend  pleadings  with  a  view  to   prevent confusion  and  to  stabilize  the  procedure.  This   Court rejected  the  argument  that  0. VI, r.  17  of  the  Civil Procedure Code, does not apply to election petitions. It was observed at p. 389: "  We are accordingly of opinion that the application of  0. VI,  r. 17, Civil Procedure Code to the  proceedings  before the Tribunal is not excluded by s. 83(3)." It was contended for the appellant in that case that even if s.  83(3) of the Act did not exclude the application  of  0. VI,  r. 17, Civil Procedure Code, to the proceedings  before the  Tribunal,  the exercise of the power  under  that  rule must, nevertheless, be subject to the conditions  prescribed by s. 81 for presentation of an election petition, that  one of  those conditions was that it should be presented  within the   time  allowed  therefor,  and  that  accordingly,   no amendment  should be allowed which would have the effect  of defeating  that  provision. After  considering  the  English decisions on the statutory provisions which are pari materia with  our  enactments,  the Court  held  that  the  Election Tribunal had no power to permit a new ground to be 303 raised beyond the time of limitation prescribed by s. 81  of the  Act.   Mr. A. V. Viswanatha Sastry contended  that  the learned  Judges,  having rightly conceded the power  of  the Election Tribunal to amend the pleadings under 0. VI, r. 17, Civil  Procedure Code, went wrong in limiting that power  in the  way they did, and that the reason advanced by  them  in

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limiting  that power equally applies to the pleadings  in  a suit,  for,  it is said, under the  Indian  Limitation  Act, every suit filed beyond the prescribed period of  limitation shall  be dismissed although limitation has not been set  up as  a  defence.   There  is no  doubt  some  force  in  this contention, but this argument was presumably advanced before the learned Judges and was negatived on the following ground stated at p. 392: " The Tribunal sought to get over this difficulty by relying on   the  principle  well-established  with   reference   to amendments  under 0. VI, r. 17 that the fact that a suit  on the claim sought to be raised would be barred on the date of the  application  would be a material  element  in  deciding whether it should be allowed or not but would not affect the jurisdiction of the court to grant it in exceptional circum- stances  as laid down in Charan Das v. Amir Khan  (1).   But this  is to ignore the restriction imposed by s. 90(2)  that the procedure of the court under the Code of Civil Procedure in  which 0. VI, r. 17 is comprised, is to apply subject  to the provisions of the Act and the rules, and there being  no power  conferred  on the Tribunal to extend  the  period  of limitation  prescribed, an order of amendment  permitting  a new ground to be raised beyond the time limited by s. 81 and r.   119  must  contravene  those  provisions  and  is,   in consequence,  beyond the ambit of authority conferred by  s. 90(2)." This passage indicates that the learned Judges were aware of the  argument now advanced and, for the reason mentioned  by them, namely, that unlike a civil suit wherein the Court can extend  the  period  of limitation in  a  proper  case,  the Tribunal has no such power, rejected the argument.  We  ,are bound by this decision, (1)  (1920) L.R. 47 I.A. 255. 304 As   this  stage,  we  must  guard  against   one   possible misapprehension.  Courts and Tribunals are constituted to do justice between the parties within the confines of statutory limitations,   and  undue  emphasis  on  technicalities   or enlarging  their  scope would cramp their  powers,  diminish their  effectiveness and defeat           the  very  purpose for which they are constituted.  We must make it clear  that within the limits prescribed by the decisions of this  Court the discretionary jurisdiction of the Tribunals to amend the pleadings  is  as extensive as that of a civil  Court.   The same  well-settled  principles laid down in  the  matter  of amendments  to the pleadings in a suit should also  regulate the exercise of the power of amendment by a Tribunal..  This aspect  has not been ignored by this Court in the  aforesaid decision, and the Court observed, at p. 394: "  It  is  no doubt true that pleadings should  not  be  too strictly  construed,  and that regard should be had  to  the substance of the matter and not the form." The  foregoing discussion yelds the following  results:  (1) Sub-cls.  (i) and (iv-) of s. 100(11)(d) of the Act  provide for two distinct grounds the former for the case of improper acceptance  of  any nomination, and the latter for  that  of non-compliance with the provisions of the Constitution or of the  Act, or of any rules or orders made under the Act;  (2) when  the candidate appears to be properly qualified on  the face  of the electoral roll and the nomination paper and  no objection is raised to the nomination, the acceptance of the said  nomination by the Returning Officer must be deemed  to be  proper  acceptance  ;  (3) even if  there  is  a  proper acceptance,  it  is open to the petitioner to  question  the validity  of the election -under s. 100(1)(d)(iv)  on  other

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grounds,  namely,  that the candidate whose  nomination  was accepted was not qualified at all or could not be deemed  to be duly nominated as a candidate for the reason that he  did not  comply with the provisions of s. 33(3) of the Act;  and (4)  if the second ground in substance is not taken  in  the petition-substance is more important than form-the  Tribunal has  no power after the prescribed period of limitation  for the filing 305 of the petition to allow an amendment introducing the second ground. With  this  background we shall proceed  to  scrutinize  the pleadings  in  the  light of  the  rival  contentions.   The election  petition  contains seven paragraphs.   The  relief claimed  is  that  the election of the  appellant  from  the parliamentary  constituency  No. 331,  Kanpur,  be  declared void.   The  first paragraph  gives the credentials  of  the petitioner to enable him to file the petition.  Paragraphs 2 and  3  give  the  sequence of events  which  ended  in  the declaration  of  the  appellant as  duly  elected  from  the constituency to the Parliament.  Paragraph 5 states that the election  of the appellant is void and is liable to  be  set aside  on the ten grounds, among others, specified  therein. Paragraph  6 states that the cause of action accrued to  the petitioner on or about January 29, 1957, when the nomination papers  were  filed for the said  election,  and  subsequent thereto.  Now coming to the grounds in sub-para(a), (b)  and (c)  of  para 5, it is stated that the ,appellant  had  been dismissed   by  Government  from  service  on   charges   of disloyalty and gross misconduct on January 24, 1956, but  he did not submit to the aid order and filed a writ petition in the  High Court at Calcutta questioning the validity of  the said  order,  that  under the circumstances,  he  should  be deemed to be a Government servant and, therefore, he was not competent  to  be nominated as a candidate for  election  to Parliament.    Sub-paragraph  (d)  is  the  most   important paragraph  to  the present enquiry and therefore it  may  be extracted in full.  It reads: " That apart from the above mentioned reasons the nomination paper of the respondent was also improperly accepted by  the Returning Officer, in-asmuch-as, the respondent having  been dismissed   from  Government  Service  did  not   obtain   a certificate  in  the  prescribed manner  from  the  Election Commission to the effect that he had not been dismissed  for corruption or disloyalty to the State." This sub-paragraph in clear and unambiguous terms raises the ground of improper acceptance of the nomination paper by the Returning Officer i.e., the ground 306 covered  by  s.  100(1)(d)(i) of the Act.   The  reason  for sustaining the said ground is stated to be that, having been dismissed    from   Government   service,   he    did    not obtain  a  certificate  in the prescribed  manner  from  the Election   Commission.    Ex   facie   this    sub-paragraph does  not refer to s. 33(3) or to the contents of that  sub- section.   A  nomination  paper  may  be  accepted  by   the Returning Officer in spite of one or other of the  following two  defects: (i) the candidate who has been  dismissed  may have   filed  the  nomination  -paper  without   its   being accompanied by a certificate issued in the prescribed manner by  the  Election Commission to the effect that he  has  not been dismissed from service for corruption or dis loyalty to the  State: vide s. 33(3); and (ii) the candidate  has  been disqualified  for  being chosen as a member  of  Parliament: vide s. 9(3).  In this subparagraph in support of the ground

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that   the  nomination  of  the  appellant  was   improperly accepted, reference was made to the second defect and not to the  first.  That this must have been the intention  of  the respondent is also made clear from the circumstance that  in sub-para  (i) reference was made to the  latter  sub-section but not to the former.  The argument that the opening  words of  sub-para  (d), " That apart ", indicate that this  is  a ground in addition to the ground based on the  non-obtaining of  a certificate in the prescribed manner, and,  therefore, should only refer to the non-accompaniment of a certificate, has no force; for, sub-paras (a), (b) and (c), which precede sub-para  (d)  raise a different point  altogether,  namely, that  notwithstanding  the dismissal, as the  appellant  had filed a petition in the High Court questioning the  validity of the order of dismissal, he was still a Government servant on  the crucial date.  Be it as it may, the important  point to  be  noticed is that sub-paragraph (d)  raises  a  ground under sub-cl. (i) and not under subcl. (iv) of s.  100(1)(d) of  the  Act, and even if the facts  mentioned  therein  are disannexed   from  the  ground,  they  refer  only  to   the disqualification  of the appellant to stand as  a  candidate for the election and not to the procedural defect covered by s. 33(3) of the Act.  Subparagraphs (e), (f) and (g)  relate to the objections 307 which  are  not  material for  the  present  inquiry.   Sub- paragraph   (h)  contains  a  general  statement  that   the appellant  was disqualified to be chosen to fill the  parli- mentary  seat.  Sub-paragraph (i) specifically refers to  s. 9(3)  of  the  Act.   We are not  also  concerned  with  the allegations in -sub-para (j). The foregoing analysis of the allegations in the petition so far  as they are relevant to the question raised,  discloses the  following two circumstances : (i) the ground  taken  in the  petition was that there was an improper  acceptance  of the  nomination  covered by s. 100(1)(d)(i) for  the  reason that  the appellant, having been dismissed  from  Government service,  did  not obtain a certificate  in  the  prescribed manner; and (ii) there was no ground which would fall  under sub-cl.  (iv)  of s. 100(1)(d) of the Act.  viz.,  that  the appellant  was  not to be deemed to be duly nominated  as  a candidate  as his nomination paper was not accompanied by  a certificate issued in the prescribed manner by the  Election Commission to the effect that he had not been dismissed  for corruption  or disloyalty to the State.  In the  application for amendment which was filed after the prescribed period of limitation,  two amendments were asked for-one  to  sub-para (i)  of para 5 and the other to sub-para (d)  thereof.   The former was for substituting the figure " 33 " for the figure "  9  "  and the latter to introduce  a  statement  in  that paragraph  to the effect that the nomination paper  was  not accompanied  by the prescribed certificate.  The  subsequent petition,  as we have already noticed, sought for  the  same amendment  to para (5)(d) in an abbreviated form.  But  what is  important to notice is that even the proposed  amendment sought  to bring in the said statement under the  ground  of "improper  acceptance" and not under s. 100(1)(d)(i) of  the Act.  The appellant filed a counter-affidavit opposing  both the  amendments.  The Tribunal noticed the judgment of  this Court-and  applied the principles laid down therein  to  the facts   before-it.   It  also  considered  in   detail   the allegations  in  the petition and arrived at  the  following findings:  (i) " All what has been urged throughout is  that the respondent was a Government servant or a 308

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dismissed Government servant and no certificate having  been obtained from the Election Commission   about his  dismissal not being for corruption or disloyalty, he was not  eligible for election as a candidate   to the House of the People  ", and  (ii)  sub-section (3)  of s. 33 which  is  a  provision laying down a certain procedure was never in the mind of the petitioner while the petition was being drafted or prepared, and that is why we find no reference to the certificate  not being  filed  with the nomination paper." He  concludes  his discussion thus : "It  would  thus be seen that the amendment  sought  by  the petitioner offends against the conditions laid down by their lordships  of the Supreme Court in Harish Chandra Bajpai  v. Triloki  Singh (1) relating to the application of Order  VI, rule 17 of the Civil Procedure Code to proceedings before an Elettion Tribunal.  It has been specifically laid down  that an  amendment will not be allowed if the effect of it be  to permit  a new ground or charge to be raised or to  so  alter its  character  as to make it in substance a  new  petition. That would exactly be the effect of the amendment sought  by the petitioner It will be seen, therefore, that the Tribunal has put before itself  the  correct  principles  governing  its  powers  of amendment and found, on a construction of the allegations in the petition, that by the proposed amendment, the respondent was  seeking to introduce a new ground after the  period  of limitation.   This  order was made by the  Tribunal  in  the exercise  of  its discretion in strict conformity  with  the principles laid down by this Court. The next question is whether the High Court was justified in setting  aside  that order.  It was argued before  the  High Court that the amendment application was wrongly refused and that  even  as  the  election  petition  stood  without  the amendment it contained sufficient averment of facts to  make out  a ground under s. 100(1)(d)(i) of the Act, and  in  the alternative that it made out a ground under s. 100(1)(d)(iv) of the (1)  (1957) S.C.R.370. 309 Act.   Before  the High Court the learned  Counsel  for  the respondent  withdrew  his prayer for the amendment  of  sub- para(1) of para 5 of the election petition; with the  result the  only  paragraph  on which reliance was  placed  by  the respondent  was sub-para (d) of para 5. The High Court  also noticed  the  judgment  of  this  Court  in  Harish  Chandra Bajpai’s  Case (1) and posed the following question for  its decision: "  The important thing is whether in substance the  petition contains the particular ground of attack or not." It proceeded to consider whether the original subpara (d) of para 5 contained any ground and if so, what?: and whether  a new  ground  was  sought  to be raised in  the  garb  of  an amendment.   After reading the said sub-para,  it  expressed the  view that the ground, in its opinion, would fall  under s. 100(1)(d)(i) of the Act; and that conclusion was based on the  allegations  in  the said sub-para that  there  was  an improper acceptance of the nomination and that the appellant had not obtained the necessary certificate from the Election Commission.  It has stated that in the circumstances of  the case the respondent meant to state that, as the  certificate had  not  been obtained, it could not have  accompanied  the nomination  paper.   The learned Judges of  the  High  Court concluded their discussion thus: " We also think that the Tribunal should have permitted  the amendment because the ground of attack had been clearly made

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out and the only mistake committed by the appellant was  not to put it in proper words," In short, the view of the High Court was that sub. para  (d) contained  the ground under s. 100(1)(d)(i) of the  Act  and what  was  asked  for  by  way  of  amendment  was  only   a clarification of that ground. The  High  Court,  in our view, has missed  the  real  point raised before it.  We have already pointed out that, in view of the judgment of this Court in Durga Shankar Mehta’s  Case (2)there was no improper (1) (1957) S.C.R. 370.   (2) (1955) 1 S.C.R. 267.      40 310 acceptance of the nomination paper by the Returning Officer. for, the nomination paper ex facie did’ not  disclose    any defect  or  disqualification.  The  petition  for  amendment asked  for inserting a statement in sub-para (d) of  para  5 under  the ground of improper acceptance of  the  nomination paper,  viz.,  that  the  prescribed  certificate  did   not accompany the nomination paper of the candidate, and that at the appellate stage the other proposed amendment based  upon s.  33(3) of the Act was given up.  The result was  that  no relief  for  raising the ground under s.  100(1)(d)(iv)  had survived  and that the ground under s. 100(1)(d)(i) was  not open to the respondent.  In the circumstances, the amendment would  be  foreign  to the scope of the  enquiry  under  the ground governed by s. 100(1 )(d)(i) of the Act. That  apart,  could  it  be said that  the  High  Court  was justified  in  the circumstances of this case  to  interfere with the discretion of the Tribunal ? An appellate Court has no doubt an unquestioned right to review or modify the order made by a subordinate Court; but it is undesirable to do  so when the subordinate Court made an order in the exercise  of its  discretion without exceeding the limits of  its  power, unless it acted perversely or unless the view taken by it is clearly wrong.  In this case, the Election Tribunal  neither exceeded  its  powers nor acted perversely; and  indeed  its order  advanced  the cause of justice in that it  helped  to maintain the election of a candidate who was duly  qualified and who secured a large majority of votes over all the rival candidates.   We have carefully considered the ’reasons  set out  in  the judgment of the High Court in  support  of  its decision that the amendment should have been allowed by  the Tribunal,   and  in  our  opinion  the  said   reasons   are unsatisfactory  and  on  some  points  farfetched.   In  the circumstances,  we do not see any justification,  after  the entire  petition  was  disposed of, for the  High  Court  to interfere with the said discretion.  We therefore set  aside the order of the High Court. It  is  represented  to us by the learned  counsel  for  the appellant that in the High Court the only 311 point argued was that the amendment should have been allowed and no other point was pressed.  The learned counsel for the respondent   does   not  accept  this  position.    In   the circumstances,  we  have no other option but to  remand  the case to the High Court for disposal in accordance with  law. The respondent will pay the costs to the appellant. Appeal allowed.