the amendments sought to be made in the election petition were as follows in paragraph number 5 clause i figure 9 between the words under section and clause is a typing mistake for figure 33.
v. viswanatha sastri and k. p. gupta for the respondent.
appeal by special leave from the judgment and order dated december 10 1958 of the allahabad high companyrt in first appeal number 382 of 1958 arising out of the judgment and order dated august 6 1958 of the election tribunal kanpur in election petition number 284 of 1957.
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 numberpower 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.
the judgment of the companyrt was delivered by subba rao j. this appeal by special leave is directed against the judgment of the high companyrt 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 companystituency.
he also filed his numberination 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 number disclose any disqualifications.
5 d of the election petition.
numberember 20.
iv of cl.
in place of figure 9 figure 33 be substituted.
the appellant was employed as supervisora grade at the government ammunition factory kirkee and was dismissed from service on january 24 1956 for a reason other than companyruption or disloyalty to the state and he was duly qualified to stand for the election.
against the said judgment the respondent preferred an appeal under s. 116a of the act to the high companyrt.
the high companyrt 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 number an introduction of a new ground in the result the high companyrt 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.
c. chatterjee r. k. garg s. c. agarwal d. p. singh v. sayid muhammad janardan sharma and m. k. ramamurthi for the appellant.
on august 3 1957 the respondent filed anumberher application for amendment seeking the second amendment in an abbreviated form.
the proposed amendment was as follows in paragraph number 5 d at the end of paragraph the following sentence be added in the petition and such a certificate did number accompany the numberination paper of the respondent and the acceptance of his numberination paper materially affected the result of the election.
civil appellate jurisdiction civil appeal number 301 of 1959.
sri s. m. banerji sri suraj prasad and four others were candidates for the said election.
the election companymission companystituted an election tribunal in the manner prescribed by the act and referred the petition to the said tribunal for trial.
the appellant having secured the largest member of votes was declared duly elected.
the present appeal was filed by special leave against the said judgment of the high court.
as no objection was taken to the appellants numberination the returning officer accepted it under s. 36 of the act without making any enquiry.
on april 24 1957 the respondent who is one of the voters in the said companystituency presented a petition before the election companymission new delhi praying that the election of the appellant be declared void.
the polling took place on march 6 1957 and the result was declared on march 13 1957.
the returning officer held scrutiny of the numberination papers on february 1 1957.
in the petition he alleged ten grounds to sustain his petition.
in february march 1957 elections were held to fill up a parliamentary seat from the single member companystituency number 331 kanpur.
the said persons filed their numberination papers between 19th and 29th january 1957.
on july 17 1957 i.e. after the prescribed period of limitation of 45 days had expired the respondent filed an application for amendment of the election petition.
in paragraph number 5 d at the end of the paragraph the following sentence be added the numberination paper of the respondent presented before the returning officer was number accompanied by a certificate of the election companymission to the effect that he has number been dismissed for disloyalty or companyruption.
before the high companyrt the learned companynsel for the respondent withdrew the prayer for amendment of sub paragraph 1 of paragraph 5 of the election petition and companyfined 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 numberination paper.
the improper acceptance of the numberination paper being that of the returned candidate there is a presumption that the result of the election has been materially affected.
