The central legal point established in the judgment is the requirement of due diligence for allowing amendments after the commencement of trial.

Ram Surat Ram (Maurya),J.

1. Heard Sri Ram Kumar for the petitioner and Sri J.B. Singh for the respondent-3.

2. The writ petition has been filed against the order dated 28.6.2014 by which amendment application filed by the petitioner to amend the written statement, has been dismissed.

3. Shashi Singh (respondent-3) filed an election petition against the declaration of election result of the petitioner as Pradhan of Gram Panchayat Mohaddinpur, tehsil Mohammadi, district Khiri. The petitioner, who is elected Pradhan, filed her written statement on 10.8.2011. Thereafter the issues in the election petition were framed on 19.1.2012. Earlier the petitioner filed an application for amendment of written statement, which was allowed. Thereafter she filed a subsequent application dated 22.8.2012 for amendment of the written statement, in which she proposed to incorporate paragraph 27 of the written statement to the effect that the respondent -3 had not deposited the amount as required under Rule 3 of UP Panchayat Raj (Settlement of Election Dispute) Rules 1994, in personal ledger account of Gram Panchayat Mohaddinpur and the election petition was liable to be dismissed. The application of the petitioner has been rejected by Election Tribunal on the ground that the amendment application has been filed to delay of hearing the election petition. Hence this writ petition has been filed.

4. The counsel for the petitioner submits that the petitioner has raised the ground relating to the maintainability of the election petition as the compliance of Rule 3 of UP Panchyat Raj (Settlement of Election Disputes) Rules 1994 is mandatory and in the absence of its compliance the election petition was liable to be dismissed. The amendment application ought to have been allowed and such an amendment can be permitted to be made at any stage of the suit. The amendment application has been rejected only on irrelevant consideration that it has been filed to delay the proceeding. The observation made by the Election Tribunal in this respect is based upon conjuncture and surmise also.

5. I have considered the argument of the counsel for the petitioner. A perusal of the election petition shows that in paragraph 9 of the election petition, respondent-3 has disclosed that the required amount has been deposited by her on 4.1.2010, 22.11.2010 and 21.11.2010. The petitioner, in her written statement, has replied this paragraph and stated that the amount deposited by the plaintiff was less than the required amount, thereafter this proposed amendment application has been filed. Under Order VI, Rule 17 C.P.C. a proviso has been added in the year 2002 which causes a rider on the power of the court in allowing the amendment application, to the effect that after commencement of the trial the amendment application cannot be allowed unless the court comes to the conclusion in spite of due diligence, the party could not have raised the matter before the commencement of the trial. In this case the allegation in respect of the deposit has been made by the election petitioner in the election petition. While preparing the written statement a reply of this paragraph has been given, therefore it cannot be said that the proposed amendments were not in the notice of the petitioner earlier and could not be noticed in exercise of due diligence.

6. Order VI Rule 17 C.P.C., as amended in 2002, is quoted below: -

"17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

7. Supreme Cour