JUDGMENT

A.K.PARICHHA, J. — In this application, the petitioner, who is the elected member of Zone No.26 of Puri Zilla Parishad, has challenged the order dated 3.4.2004 (Annexure-4) passed by the learned District Judge, Puri in Election Misc. Case No.70 of 2002 allowing the amendment of the election petition.

2. Petitioner was elected as a Member of Zone No.26 of Puri Zilla Parishad in the election held in the month of Febru¬ary, 2002. Opposite party No.1, who was a candidate for the said Zone and was defeated in the election, filed an election dispute bearing Election Misc. Case No. 70 of 2002 before the learned District Judge, Puri challenging the validity of election of the present petitioner on the ground that he resorted to corrupt practice by illegally utilizing the Government machinery for putting pressure on the voters; distributing huge amount of money and materials through agents to allure the voters, obstructed the voters of their rival candidates by use of physical force and intimidation and also tampered with the ballot papers, which had been kept in sealed packets. During pendency of the election dispute, opposite party No.1 filed a petition on dated 25.2.2003 for amendment of the election petition to incorporate further that the present petitioner is a defaulter in repayment of loan incurred by him on 30th June, 1996 from the Laxmi Narayan Samanga Service Co-operative Society. Petitioner raised objection to that prayer with the plea that the amendment would introduce a new plea, which has already become barred by limitation. Learned District Judge, Puri, after hearing the parties, passed the impugned order dated 3.4.2004 allowing the said amendment. Ag¬grieved, the petitioner has filed the present application to quash the said order invoking the power under Articles 226 and 227 of the Constitution of India.

3. Mr.Ashok Kumar Mohanty, learned Senior Counsel appear¬ing for the petitioner submitted that the amendment not only changes the nature and character of the election petition, but also introduces a new plea, which was already barred by limita¬tion. According to him, when the ground that the petitioner was disqualified from contesting the election being a defaulter in the Co-operative Society was not taken in the original election petition, addition of the said plea brings out a new case. Ac¬cording to him, such new plea cannot be entertained after the expiry of the period of limitation provided for filing the elec¬tion petition. In support of the contention, he cited the cases of Samant N.Balakrishna etc. v. George Fernandoz and others, AIR 1969 SC, 1201, Ram Dayal v. Brijraj Singh and others, AIR 1970 SC, 110, Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi, AIR 1987 S.C., 1577.

4. Mr.Manoj Mishra, learned counsel appearing for opposite party No.1, on the other hand, contended that the present oppo¬site party No.1 had already alleged in the election petition that the petitioner adopted mal practice and corrupt methods to get himself elected and so, the plea in the amendment that he was also a defaulter in repayment of loan in the Co-operative Socie¬ty, where he is a member, does not change the nature and charac¬ter of the election petition as it simply elaborates how the petitioner concealed his legal disability and got the nomination passed. Mr. Mishra further submitted that since opposite party No.1 had no knowledge about the above said default of the peti¬tioner, he could not incorporate the plea in the original elec¬tion petition. According to him, the period of limitation will begin from the date of knowledge of opposite party No.1 about the default of the petitioner and because the amendment was filed soon after such knowledge, it was not at all barred by limita¬tion. In support of his plea, Mr. Mishra cited the case of Surekha Dash v. Civil Judge (Junior Division), Jajpur and others, 1998 (II) OLR 43.

5. In the case of Samant N.Balakrishna (supra), the apex Court while analysing the scope of amend