Judgment

SHAH, J. : At the general elections held in February 1967, Brijraj Singh (first respondent in this appeal) was declared elected to a seat in the Madhya Pradesh Legislative Assembly from the Sabalgarh Constituency defeating his rival candidate Raja Pancham Singh by 1706 votes. The appellant Ram Dayal who is a voter in the constituency moved an election petition in the High Court of Madhya Pradesh for an order setting aside the election on two grounds :

(1) that the nomination paper of one Dhani Ram was illegally rejected by the Returning Officer; and

(2) that Brijraj and his agents committed several corrupt practices in relation to the election.

A third ground that Dataram (third respondent in this appeal) when his nomination was accepted was below the age of 25 and was on that account incompetent to stand for election, was sought to be set up an application for amendment of the election petition. The application was disallowed by the High Court. The High Court held that an application for amendment which sought to set up a new ground made after the expiry of the period prescribed for filing an election petition cannot be entertained. On a consideration of the evidence the High Court rejected the other grounds, and dismissed the petition. The appellant has appealed to this Court.

2. An election petition has, under Section 81 (1) of the Representation of the People Act, 1951, to be filed within 45 days of the date of the publication of the result of the election. An application for setting aside the election, that Dataram was below the age of 25 and on that account the election was liable to be set aside under Section 100 (1) (d) (i) of the Act made on August 15, 1967, would plainly have been barred, and by amendment the ground could not be permitted to be added. This Court in Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370 held that the Election Tribunal has power to allow an amendment in respect of particulars of illegal and corrupt practices, or to permit new instances to be included, provided the ground or charges are specifically stated in the petition, but its power to permit amendment of a petition under Order VI, Rule 17 of the Code of Civil Procedure will not be exercised so as to allow new grounds or charges to be raised or the character of the petition to be so altered as to make it in substance a new petition, if a fresh petition on those allegations would on the date of the proposed amendment be barred. By the amendment a new ground for setting aside the election was sought to be introduced and the High Court was right in rejecting the application for amendment.

3. The plea that the rejecting of the nomination paper of Dhani Ram by the Returning Officer was illegal has no substance. On January 19, 1967 Dhani Ram delivered to the Returning Officer two nomination papers signed by him. Each nomination papers bore a thumb impression of one Gokla as the proposer. But the thumb impressions were not authenticated or attested in the presence of the Returning officer or any other officer specified in the Rules. The Returning Officer rejected the nomination papers.

4. Section 33 (1) of the Representation of the People Act, 1951, requires that each candidate shall deliver to the returning officer a nomination paper completed in the prescribed from an signed by the candidate and by an elector of the constituency as prosposer. The expression "sign" is defined in Section 2 (i) of the Act as amended by Act 27 of 1956 as meaning "in relation to a person who is unable to write his name authenticate in such manner as may be prescribed". Rule 2 (2) of the Conduct of Election Rules, 1961 provides :

"For the purposes of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if -

(a) he has placed a mark on such instrument or other paper in the presence of the Returning officer or the Presiding officer or such o