The Civil Judge (Junior Division) has the power to allow amendment of pleadings in election disputes under the Orissa Grama Panchayat Act, 1965, subject to the principles governing amendment of pleadings under the Code of Civil Procedure, 1908.

JUDGMENT :

A. Pasayat, J. - Present writ application involves an interesting question of law, and in fact this application has been entertained only to adjudicate the question whether under the Orissa Grama Panchayat Act/ 1965 (in short, the 'Act') the learned Civil Judge (Junior Division) has power to allow amendment to the pleadings.

2. In view of the limited nature of legal controversy factual details are to be indicated in brief.

Petitioner has been elected as Sarpanch of Badasuara Grama Panchayat. Opposite party Nos. 3, 4, 5 and 6 were contestants in the said election on 16.1.1997. An election dispute has been raised under the Act by opposite party No. 3 which has been numbered as Election Dispute Misc. Case No. 7 of 1997, and the same is pending before learned Civil Judge (Junior Division), Jajpur. During pendency of the election dispute, an application styled as one under Order 6, Rule 17, Code of Civil Procedure, 1908 (in short, the 'Code') was filed by opposite party No.3. Amendment sought for was to the effect that the election petitioner's agents protested against the error and illegality in counting of votes before the Presiding Officers and the Election Officers in respect of Ward Nos. 1 to 12. But they did not pay any heed to the same. The present petitioner filed an objection stating that there is no scope for any amendment of the election petition. It was pointed out that in the objection filed by her to the election petition it was clearly stated that all the formalities were observed, and there were no error and/or illegality, and in any event no objection was raised by the election petitioner's agents before the Presiding Officers and the Election Officers. It is her stand that to get over this stand the amendment has been sought for.

3. Learned Civil Judge (Junior Division) held that the amendment sought for is formal in nature and does not change the nature and character of the dispute. The stand that the amendment is impermissible was held not acceptable in view of applicability of the Code to election disputes. Revision filed by the present petitioner was rejected by learned Additional District Judge, Jajpur on the ground that it was not entertainable.

4. Miss Mira Ghose, learned counsel for the petitioner submitted that the Act lays down the procedure for trial of election petitions. There being no specific provision for amendment, view taken by the Courts below cannot be maintained. It is submitted that u/s 35 of the Act procedure before the Election Tribunal is indicated and its powers are enumerated in Section 37, and a combined reading of Section 35 and Section 37 makes it clear that the prayer for amendment is not to be entertained.

Learned counsel appearing for opposite party No. 3, however, submitted that in view of the provisions of Sub-section (1) of Section 35 of the Act, prayer for amendment can be entertained and therefore, the plea taken by the present petitioner is thoroughly misconceived.

5. Sub-section (1) of Section 35, and Section 37 are relevant for the purpose of adjudication of this case. They read as follows :

"35. Procedure before the Munsif - (1) Subject to the provisions of this Act and the Rules made thereunder every election petition shall be tried by the Munsif as nearly as may be, is accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits.

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"37. Powers of Munsif - The Munsif shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:

(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) granting adjournments;

(f) reception of evidence taken on affidavit;

(g) issuing commissions for the examination of witness and may summon and examine suo motu any person whose evidence app