DR. P. NALLA THAMPY THERA. v. B.L. SHANKER & OTHERS

Citation: [1984] 1 S.C.R. 687

Court: Supreme Court of India

Bench: P.N. BHAGWATI, AMARENDRA NATH SEN, RANGANATH MISRA

Case summary

The earlier orders dated Noveinber ·16, 1979,- September 12, 1980, and September 30, 1980; are not open to challenge. cases of withdrawal and abatement, the special provisions contained in the Act for notifying to the· constituency so that any · other person may apply for...

Judgment text

·, . 687 · DR. P. NALLA THAMPY THERA. · . , . '· . . __;-· \ B. L. SHANKER & O'J'HERS October 28, 1983 [P. N. BHAGWATI, AMARENDRA NATH SiJN AND RANGANATH MISHRA, JJ. ] Representation ofthe People Act 1951 Sections 87 & 109(1) Election Petition-Trial of-Applicability ofthe provisions of the Code of . -. ~ . Civil Procedure-When ariset. Omission ofa prayer from an election petition-Whether amounts to wlth- . . drawai ofan election petition.. Petitionerfalling to prosecute election petitfon-Whrther election peJition • could be dismissed-Restoraiion ofa dismisse_d el~ction petition-Whether coufd be at the instance ofan_y person --. On November 23, 1979, a memorandum w·as filed for the deletion of respondents 5 to 31. On July 23, 1980, on his own prayer respondent 2 of the election petition was deleted. Simultaneously·the names of the two other outsiders to the election petition being respondents 3 and _~ .. of the election petition were also deleted.

Respondent 29 filed a memorandum on August 1, 1980 for withdrawal of the prayer for recrimination as against Shri Virendra Patil. This was a necess;uy sequel of the deletio·n of prayer (c) 'of the election petition. On September 12, 1980 the High Court directed that names of respondents 5 to 31 . excepting respondents 13 and 19 tci the election petition would. stand · dropped. Thus, in· all three respondents were left in the election petition being original respondents 1, 13 and 19. . On September 30, 1980 the Court directed withdrawal of the recrimination. petition· as against Shri Virendra ·Patil by allowing the memorandum dated Au5ust 1, 1980. The present appellant had objected to the request for withdrawal of the recriminatory petition. Separate orders, viz. , the order dated. November 16, 1979 allowing deletion . of prayer (c) of the election.

p~tition, ·the order dated September 12, 1980 deleting all° the respondents excepting respondents 1, 13 and 19 of the election petition from the recora,· and the order dated September 30, 1980, premitting withdrawal of the recrimination petition, were all allowed to becomC'iinal_in the. absence of any. challetlge. · Qn November 23, 1980 written statement was filed on behalf 'of original respondent 1 and issues were settled on January 5, 1981. The Court indicated a trial schedule by requiring the documents to . 4 be filed on February 16, 1981 and recording of evidence was also ~ ·directed to begin from the date and the trial was· to proceed day ·to · day. On Feburary 16, 1981, the election petit10ner wanted adjournment. The High Court was justified in . giving only one adjournment as a last chance .

and fixing the tri~l on March 9, 1981, in·view of the statutory mandate ·that an election petition shall be disposed of as far as practicable within six months from the date of presentation of H. .. / the ele~tion petition as required by s. 86 (7) of the Act. On March 9, 1981, the election petiti9ner again asked for adjournment. The High· Court declined the. prayer for adjournment and said' : "On P,N,T. THERA v; 1i. I. :. SHANKAR (iianganath Miiro, J,) 693 the previous· occasion, i. e. Feburary 16, 1981, it was posted for commencement of evidence but n. either the petitioner nor his -witnesses. were. present. However, at the reque$t •of the petitoner's counsel the matter was adjourned to today -as a last chance. The list of witnesses. and list of documents·were also at the request of. the petitioner's counsel_ p,ermitted to be filed . before February 2, 1981 with noiice to respondents. This has not been done.

However, when the matter was called today the petitioner is absent; none of his witnesses is also present. Shri K. Cbannabasappa, learned coup. sel for petitip~er wanted to file the list of documents and witnesses today in. Court anci stated.. that the matter may be adjourned for trial to some other date. .. In view of the _circumstances that petitioner is absent in·spite ·of the fact that this is the second date fixed ·for trial of the petition, I ha:-'e no option except to dismiss this . petition for non-prosecution. 'This election 11etition is according~y dismissed. . There are three co1itesting re,pondents. in this election petition· viz. , R-1, R·l3 and R-19• Respondent·] and R·l. 3 are represented by Shri G. V. Shanta Raju, and Sri Vyas Rao respecii- · ~ely. R-19 wl10 appears in pers·on-is iwwever absent ... " · On the same day respondent :t 9 to the election petition made an application praying for "recall of the order dated 9th March i98l with reference to Eleciion Petition No.

76 . of 1978, and this respon· dent 0o. 19 . may plea~e be permitted to prosecute this election petition, . ~nd to submit his -evidence, and this responden\ may please . be permitted to be substituted and to ,continue the proceedings of this election petition". Rcspontlent 19 amended this application and asked for restoration of the election petition. The original respondent l filed objection to the request for restoration contending t~at . the application for restoration was not maintainable and that respondent 19 had no locus standi to ask for restoration of the case. ). There was no provision for tran. sposition when an election petition was dismissed and, ·therefore, respondent 19 who could have filed an· . . • independent election petition within tlu; time admissible tinder the . · Act could not ask f9r transposition. On June 23, 1981,.

the High Court rejected the application after negativjng the stand of 'respon' dent 19 that an election petition could not be dismissed for default and that a case ofabanaoment should be treated. at par WJth abatement and withdra~al of the election petition. On September 14, 1981, a petition for special leave was filed and upon leave being granted,_ this appeal by respondent 19 bas come before us for final hearing. ' ' 694 SUPREMB CQURT REPORTS (1984] l s. c. R. At the hearing the appellant appeared in person. Respondent l who was the eleciion petitioner and respondent 3. who was respondent 13 before the High Court did not appear. Thus the appellant has been heard in person and respondent 2 has been heard through counsel. · .. The appellant contended : (1) the earlier orders passed .

by the High Court, namely, the order date secution of the election petition must· be treated as on par with with- · drawal or abatement and therfore, through there is no clear provislon in the Act, the same principle should govern and the ·obligation to notify as provided _in s. s: 11? or! 16 of the Act should be made appli~ cable; We see no Just1ficat1on to accept such a contention. Non-pro· secut10n or abandonment is cert~inly not withdrawal. WithdralVal is a positive and volun~ary act ·while non-prosecution or abandonment. may not necessarily be an act of volit_ion. It may spring from ne lige_nce, indifference, inaction or even incapaCity or inability gto prose. cute. In the case of withdrawal steps are . envisaged to be taken A / ' 702 . before the Court· iri accordance with ,the prescribed procedure. In ·~ the case of non-prosecution oc· abandonment, the 'election petitioner does not appear before the Court and obtain any orders.

We have already indicated that the Act is a self-contained statute strictly lay- __, ing down its own procedure and nothing can be read in it which is \. ·not there nor can its provisions be enlarged 'or extended by analogy; ~ ·1n· fact, the terms of s. 87 of the Act clearly prescribe that if there be I • no provision in the Act to the contrl! ry, the provisions of the Code · would. apply and that would include Order 9, Rule 8 of the Code, under which an election petition would be liable to be dismissed if. the . election petitioner does not appear to prosecute the election petition. In"many cases it has been held that an election petition can be ~ dismissed for default. A full Bench of the Punjab High Court in Jugo/ Kishore y. Dr Ba/dev Prakash,(') )lad occasion to consider this question when Grover, J.

delivering the judgment of the Court spoke thus : "It has been repeat~dly said that an election petition once filed is no( a contest only between the parties thereto but continues for the benefit of the whole constituency. · It ls for that purpose that in the· Representation of the · People Aci, 1951, provisions have been made in sections I09 and I IO relating to withdrawal of an election petition and sections 112andI16 relating to abatement of such a . petition. the effect of . which is t. hat the petition cannot come to an end by the withdrawal there of by the death Of the petitioner or by the death or ~ithdrawal of oppos·ition by the respondent, ·but is liable in such cases to be 'continued by any person who might have been a petitioner. There is nothing in the entire Act providing or indicating that a similar procedure is to be followed in the event of a petitioner failing to prosecute the petition. such failure can be due to various causes.

The petitioner ,can, by force of circumstances, be genuinely rendered helples. s . I . to prosecute the petition. For instance, he may find that his financial condition has suddenly worsen'ed and that he can no longer afford . the expenses of litigation. He may even, owing to exigencies ·of. business or vocation or -'(i)Aii J96S-Puojab & Haryaoa 152 at 158-159, '' . P. N. T. THERA v. B. L. SHANKER (Rangahath Misra, J. ) . 703 profession, have to go to such a distant place from the seat of the High Court where the election petition is being tried that he may find it impossible to prosecute the petition in a proper manner. · There would be two cour$es open to him and that will depend entirely on his volition.

He can either file an application for withdrawal of the petition disclosing the circumstances which have brought about such a situation in which case there would be no difficulty in following the procedure laid down in sections 109 and 110 of the Act; or he may choose to simply ~bsent himself from the Court or cease to give any instructions to the counsel engaged by him· or fail to deposit the process-fee and the diet money for witnesses or take·· the necessary steps for summouing the witnesses in which case the Court will have. no option but to dismiss the elec. tion petition under the provisions of the Code· of . Civil · Procedure which would be applicable to the election petitions in the absence of any express provisions in the Act.. The dismissal will have to be under the provisions contained in Order 9 or Order 17 of the Code....... ' It is quite clear that there js no distinct provision in the Act laying down.

any particnlar or special procedure which is to be followed when the petitioner chooses to commit default either in appearance or in production of evidence or generally in· prosecuting the petition. The provisions of the Code of Civil Procedure would, . herefore, be applicable under section 87 of tbe Act. I am . further of the opinion that ·any argument which could be pressed and was adopted.. for saying that the inherent powers of the Court could not be exercised in such circumstances would be ofno avail now as the High Court is a Court of Record . and possesses all the inherent powers of a Court while trying election petitions. " It is relevant to note the observations of Hidayatullal\, CJ in 1 Sunder la/ Manna/a/ v. ·. Nandramdas Dwarkadas & Ors.. ( ) where he indicated : "Now the Act does not give- any power of dismissal.

But it is axiomatic that· no Court or tribunal is supposed to contiaue a proceeding before it when the party who has moved it has not appeared ·nor cared to remain • ·• (! ) A. I. R. 1958 Madhya Pradesh 260, ' . present. The' dismissal, therefore, is an inher~nt power which every tribunal possesses....... " Similar view· has been expressed by another Full· Bench of the Allahabad High Court in Duryodhan v. Sitaram & Ors. (') A four · Judge Bench of this Court in Rajendra Kumari Bajpai v. Ram Adhar · YOdav & Ors. (') ref~rred ·to the ·Pu11jab case. Faial•Ali, J; speakln_g on behalf of the Court quoted a portion of the judgment of Grover, J. which we have cited above and said : "We fully approve of the line of reasoning adopted • by the HighCourt in that case. " . (:. . . . It, t)lerefore, follows that the ! ;ode is applicable in disposing of- an· election petition when the.

election petitioner does not appear or fake steps to prosecute the election petition· Dismissal of an election petition. for default of appearance of the petitioner under the provisions of either Or. der IX or Order XVII of the Code would, therefore,. be valid and would not be open to . challenge on the ground that these- provisions providing for dismiS&al of the election . petition for default do not apply. The appellant wos not the election pctJ(Joner. Order IX, rule 9 of the Code (and noirule 13 ;. elied upon by'thc appellant) would be the relevant pro~ision for restoration of an election petition. That can be invoked in an appr'li':iate case by the election petitioner only and . · not by a respondent. By its own language, rule 9· provi_des that where · a suit is wholly or partly dismissed under rule 8, 1he plaintiff shall be . :precluded from bringing a· fresh suit but he may apply for an order to se!

the dismissal aside, Under this rule, _therefore; an application· for restoration can be made only by the petitioner. Since it is a pro" · vision. for restoration, it is . logical that the provision sbciiild be appli· . cable only when the party on account of whose default in appearance the petition was dismissed makes an application to. revive the petition to its former stage 'prior to dismissal. In th. e instant case the election petitioner arid not respondent 19 who. is in appeal before us, could have asked. for the relief of restoration. The appellant contended that the statutory scheme authorises an elector at whose instance an election petition could have been filed to get substituted in the ~vent ------------ ,_(I) AIR ! 970All. 1.. (2) (1976] I S. C. R. 255 at 260. • P. N. T. THERA v. B. L. SHANKER (J!. anganath Misra, J. ) 70? of withdrawal or abatement and applying that analogy, he urged that · a petition for restoration would also lie at the· instance of a re;pon· dent.

Tl)e ambit of the provisiol! _s relating to withdrawal and abate- · · men! cannot be extended to meet other situations. Specific provisions have been made. in the Act to deal with the two situations withdrawal •, . * . . and abatement and a person . hitherto not a party or one 6( the respondents who was entitled to file. an election peiition ·has been . permitted to substitute himself in the election . petition and to pursue the ·same in accordance with law. These provisions .. cannot be extended to an application under Order. IX, rule 9 of the Code and at the· . instance ofa respondent or any other elector a dismissed . election ·petition cannot be restored.. The fallacy in the logic advanced by the appellant in this behalf is manifest when we refer to a suit for· partition. In a suit for parti• tion the position of the plaintiff and. that of the defendant is int~r changeable. So Jong as the suit is pending a defendant can ask the Court to transpose him as a plaintiff.

and a plaintiff can' also ask for . being transposed as a dpfendant. The possibility of transposition. during . the pendency of the· suit would not permit a defendant to apply for restoration of a suit for partition which· is dismissed for· default and the right to apply for transposition would certainly come to an end when the suit is no more alive. in our opinion ihe· respondent's position in an election petition would not be higher than·that. We. therefore, conclude that an . election petition is liable to . be dfs· missed for default in situ:ati0ns covered by Order IX, or Order XVII of the Code and for its restoration an applicatioμ. under rule 9, Order · IX of the Code would be maintainable but such application· for restoration can be filed only by the election petitioner and not by any respo1ident. This Court in Dhoom Singh v. Prakash Chandra Sethi & Ors. ,(') ~: . "The legislature in.

its wisdom bas chosen to make special provisions for the continuance of the election petition only in ·case of its withdrawal or abatement. It has yet not thought it fit to make any provision in the Act permitting intervention of an elector oft. he consti·. tuency in all contingencies offailures of the election peti· tion eith~r ·dμe to the collusion . or,fraud of the original •. ~. ) 11975) 3 S. C. R. j95 at S99, .. election petitioner or otherwise. It is not necessary for this . Cour. t to express any opinion as to whether the omission to do so is deliberate or inadv_! 'rtent. It may l:ie a case of • casus omissus. It-is a \veil-known rule of construction of statutes that"A statute, even mor'l. than a contract, must . · be construed, ut res magis 1•a/eat quam pereat, so that the . intentions of the legislature may nc:>t be treated as vain . B or ·1eft to operate In the air"c A second consequent of. this rule is that "a statute .

may not be extended to meet a case for which provision has clearly and undoubtedly not. been made" (see Craies on Statute Law). It seems plain that the High Court is -enjoined to dismiss an election petition which does not comply with the provisions of"section 81 or section 82 or section 117 of the Act. In the true cases of non-compliance with the said provisions of law a question of intervention by· 1another· person may not arise. But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between t)\e election petitioner and the returned. candidate the High Court is fraudulently misled to. act under section 86 (! }. Even in such a situation ~e find no provision in the Act tinder which- the Hig~ Court could permit a person.

like the appellant to intervene in the matter or to substantiate his allegations of fraud orcollusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law. governing an election petition as was sought to be done on behalf of the appellant for his intervention in the matter. ff there be any necessity of avoiding any such situation as the present one was said ·-I to be it is for the legislature tointervene and make clear and express provision of law for the . purpose. " The ratio· of ~his decision as also the observations in Basappa's case, the qppellant contends, are wrorig in view of the earlier decisions of this Court taking the view that an election dispute · involves the entire constituency because of the paramount necessity . of having. purity of aq elecUor:i in a democracy safeguarded. We do not think the appellant's contention can be accepted The earlier . . ' ' • P. N. 'f. THERA v. ~. i.. SHAN.

J<ER (Ranganath Mi1ra, J. ) 707 · decisions of this Court do not ·in any way militate against the view taken in Dhoom Singh's case (supra) and the observations made in Basappa's case (supra).. Those decisions were not concerned with the-question as to whether an election petition can be dismissed for default. The concensus of judicial opinion in this Court has. always been that. the law in regard to elections has to bi:strictly applied and to the extent provision has not been . made, the Code would be applicable. About eight ye·ars back this Court had occasion to point out that ii the intention uf the legislature was that a case of this type ·should also qe cove~ed by special provision, "this intention was . · not carried out and there was a la. cuna in the Act. We find that even earlier in S! u! odhan Singh v. Mohan Lal Gautam, (1) this· Court had stated : -"From the above provmons it is seen that in an .

election petition, the contest is really between the consti· tuency ()n the one side and the person or persons com-. plained of on the other. Once the machinery of. the A. ct ·is moved by a candidate or an . elector, tlie carriage of the case does not cntii'cly rest with the petitioner. The reason . for the elaborate provisions noticed by us earlier is to ensure to the extent" possible that tlie persons wh~ offend the election law are not allowed to avoid the consequences of their· misdeeds. " (underlining is ours) ' We must assume that the legislature takes notice of the decisions of this Court and if it was of the view that its true intention· had not been carried out or that a lacuna re111ained in the statute it could • have.. removed . the lacuna by amending the Act making its intention clear and manife~t, particularly when many amendment. s have subse· quently been made..

The fact that nothing has been done leaves an impression in our mind that this Court had not misread the situation. At any rate. it is not for the Court to fill up any lacuna in the le~sla· tion and as the law stand&, the appellant has no right to contend ~hat the view taken by. this Court is not tenable in law. We may recall the observation of Lord Denning in Seaford Estates v. Asher; (') (I) [1969] 3 S. C. R. 416 at 421. . (2) [194912 All B. R. 155. 708 SUPREME coui,lt REPORTS fl984) 1 s. C. R~ . · · · "A judge· ·must' not . alter the material of which the Act is woven, but he can and should iron· ou. t ! he ·creases. " • · All . the three ·contentions advanced on behalf of the appellant - -~ fail, We have already taken the view that at the instance of the appellant the application for restoration · w:! s not maintainable. B Therefore, the appeal cannot be allowed and we cannot direct ·resto· ration of the election petition. Accordingly the appeal fails and is · dismissed and.

the order of tlie High Court is confirmed. We leave the parties to bear their respective costs.. . N. V. K. Appeal dismissed, • ~ .. · ' •