Madras High Court
G.Murugendran vs V.Sathiamoorthy on 10 July, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.07.2012
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
Application No.2624 of 2011
in
Election Petition No.1 of 2009
G.Murugendran .. Applicant
Vs.
1.V.Sathiamoorthy
2.Sivakumar @ J.K.Ritheesh
3.Su.Thirunnavukkarasar
4.Priscila Pandian
5.Saleemulla Khan.S
6.Singai Jinnah.S
7.Mohammed Abith Ali.R
8.Kalimuthu K
9.Shanmugaiya Pandian.S
10.Swartz Durai.S
11.Chella Durai
12.Balamurugan
13.Baskaran, P.
14.Jahangeer M.I.
15.The Returning Officer-cum-
District Collector,
Ramanathapuram
16.The Chief Election Officer,
Fort St. George,
Chennai-9.
17.The Chief Election Commission of India,
New Delhi. .. Respondents
Application No.2624 of 2011 is preferred under Order XIV Rule 8 of the High Court O.S. Rules read with Sections 82, 86 and 110 of the Representation of the People Act, 1950 and read with Order I Rule 10 of CPC seeking to substitute the applicant in place of the original petitioner.
For Applicant : Mr.G.Murugendran,
Party-in-person
For Respondents : Mr.AR.L.Sundaresan, SC
for Mr.P.Andiraj and
Mr.A.R.Nambunayagam for R-2
- - - -
ORDER
This is an application filed by the applicant, who is the 13th respondent in the main Election Petition, seeking to substitute his name in the place of the original election petitioner.
2.When the matter came up on 10.6.2011, this court directed the second respondent to file a counter. Accordingly, a counter affidavit, dated 28.6.2011 was filed. No counter affidavit was filed by the first respondent. The first respondent filed the election petition to set aside the election made in favour of the second respondent who was elected to the Lok Sabha from Ramanathapuram Constituency. The Election Petition was filed on several grounds of corrupt practice. The said election petition was numbered as E.P.No.1 of 2009. Subsequently, the second respondent filed an application No.6915 of 2009 under Order XIV Rule 8 of the Original Side Rules read with Order VI Rule 16 of CPC to strike off the election petition filed by the first respondent. The said matter was elaborately argued. This court by an order dated 28.02.2011 (since reported in 2011 (2) CTC 276 [Sivakumar @ J.K.Ritheesh Vs. V.Sathiamoorthy and others) held that the application could not be allowed in its entirety. The allegations relating to citizenship issue, receipt of copy of Compact Disc and Electronic Voting Machines were struck off from the original election petition. In respect of other allegations, it was relegated for proper trial. Therefore, the application was allowed in part and the main matter was directed to be posted for trial.
3.It now transpires that the second respondent had filed an appeal before the Supreme Court in SLP(C)No.13240 of 2011. The Hon'ble Supreme Court was pleased to order notice on 13.05.2011. It is at this stage, the 13th respondent in the original election petition who was a candidate in the election, filed the present application seeking for substituting himself under Order XIV Rule 8 of the O.S. Rules read with Sections 82, 86 and 110 of the Representation of the People Act, 1950 and read with Order I Rule 10 of CPC.
4.The averments made in the applicant was that the first respondent who filed the election petition, had contested the election under the banner of All India Anna Dravida Munnetra Kazhagam. The second respondent who was successful in the election stood on behalf of the Dravida Munnetra Kazhagam. Subsequent to the filing of the election petition, he started seeking adjournments of the election petition. Neither he nor his counsel had appeared before the court. But the first respondent being the election petitioner was not taking any steps effectively in prosecuting the case. It is the applicant who was opposing adjournments. The first respondent never appeared before the Court and never opposed the second respondent's reaction. When this court has finally fixed the case for final argument, the first respondent joined the same political party as that of the second respondent, i.e., Dravida Munnetra Kazhagam. After that he never came to the court. The Election Petition once filed, it cannot be contested only between the petitioner and the contesting respondent. The entire constituency is entitled to avail itself of the remedy. If there are requisite condition, the person who filed the petition can be substituted and such a substituted person can continue the proceedings. Order IX Rule 9 can be the relevant provision for restoration of the election petition in case of default. Hence by substituting the first respondent, no prejudice will be caused.
5.In the counter affidavit filed by the second respondent, it was stated that no unreasonable adjournments were taken. Based upon reasonable request, the court had adjourned the matter depending upon the situation. Even in the application to strike off the pleadings, arguments were addressed on behalf of the first respondent. The circumstances under which substitution can be ordered is provided in the Representation of the People Act, 1950 itself. It is contemplated under Sections 110 and 112 of the Act that in the event of withdrawal of the election petition or abatement, such substitution is possible. There are no other circumstances provided by which a person could have filed an application for substitution. In the absence of any legal provisions, the plea made by the applicant cannot be permitted. Insofar as the election petition is concerned, it is the private right of an individual concerned. The circumstances under which substitution can be ordered do not arise in the facts of this case. If the applicant is so interested in unseating the second respondent, he himself should have filed an election petition. Hence it is prayed for the dismissal of the application.
6.The applicant / 13th respondent in the election petition, in support of his submission referred to a judgment of the Supreme Court in Dhoom Singh v. Prakash Chandra Sethi reported in (1975) 1 SCC 597. But, however it is not clear as to how the said judgment will have any relevance. To understand the full import of the judgment, it is necessary to refer to the following passages found in paragraphs 8,9 and 12, which reads as follows :
"8.Chapter II of the Act containing Sections 80 to 84 deal with presentation of election petitions. Chapter III starting from Section 86 is headed Trial of Election Petitions. Then comes Chapter IV incorporating Sections 109 to 116 providing for the procedure to be followed in case of withdrawal and abatement of election petitions. Under sub-section (1) of Section 109 an election petition may be withdrawn onlyby leave of the High Court. When such an application is made notice is to be given not only to the parties to the election petition but it is to be published in the Official Gazette also. Sub-section (2) of Section 110 enjoins upon the High Court not to allow the withdrawal application if it has been induced by any bargain or consideration which ought not to be allowed. If the withdrawal application is granted then Section 110(3)(c) permits a person who might himself have been a petitioner in the election petition to apply to be substituted as petitioner in place of the party withdrawing within 14 days of the date of the publication of the notice in the Official Gazette. Similarly on the abatement of an election petition on the death of the petitioner or petitioners as the case may be any person who might himself have been petitioner can apply to be substituted under sub-section (3) of Section 112. It is difficult to accept the contention put forward on behalf of the appellant that in substance and in effect the action of Respondent 3, even assuming it was collusive or fraudulent, had the effect of withdrawing his election petition by him. It may also be added that there was no such stand taken by the appellant in his petition filed in the High Court on January 23, 1973. None of the provisions relating to withdrawal of election petition was attracted in this case.
9.The legislature in its wisdom has 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 of the constituency in all contingencies of failures of the election petition either due to the collusion or fraud of the original election petitioner or otherwise. It is not necessary for this Court to express any opinion as to whether the emission to do so is deliberate or inadvertent. It may be a case of casus omissus. It is a well-known rule of construction of statutes that A statute, even more than a contract, must be construed, ut res magis valeat quam pereat, so that the intentions of the legislature may not be treated as vain or left to operate in the air. A second consequence 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 pp. 69 and 70 of Craies on Statute Law 6th Edn.
12.In Duryodhan v. Sitaram2 one of the learned Judges constituting the Full Bench in his separate judgment pointed out at p. 14 of a similar contingency arising in the case of dismissal of an election petition for default of appearance of the election petitioner. The argument that in such a situation the intention of the legislature that a petition should not fail by reason of any bargain or collusion between the election petitioner and the successful candidate would be frustrated.
was repelled on the ground There is undoubtedly a lacuna in the Act, because it makes provision when an election petitioner is allowed to withdraw, but makes no such provision if he just refuses to prosecute it. But that reason would not, as pointed out by Grover, J. in Jugal Kishore case3 be a sufficient reason to construe the provisions beyond the purview of their language.
This is another type of contingency, where if thought necessary, it is for the legislature to intervene. The Court is helpless."
7.He thereafter referred to a judgment of the Supreme Court in P.Nalla Thampy Thera v. B.L. Shanker reported in 1984 Supp SCC 631= AIR 1984 SC 135. In that case, the Supreme Court after following Dhoom Singh's case (cited supra), in paragraphs 19 and 20 had held as follows :
"19......The ambit of the provisions relating to withdrawal and abatement cannot be extended to meet other situations. Specific provisions have been made in the Act to deal with the two situations of withdrawal and abatement and a person hitherto not a party or one of the respondents who was entitled to file an election petition 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 9 Rule 9 of the Code and at the instance of a respondent or any other elector a dismissed election petition cannot be restored.
20.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 partition the position of the plaintiff and that of the defendant is interchangeable. So long 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 defendant. 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 the respondent's position in an election petition would not be higher than that. We, therefore, conclude that an election petition is liable to be dismissed for default in situations covered by Order 9, or Order 17 of the Code and for its restoration an application 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 respondent."
Even this case will not help the case of the petitioner.
8.The applicant further referred to a judgment of the Supreme Court in Gajadhar Ramsingh Rathod Vs. Subhash Pandharinath Thakre and others reported in (1999) 9 SCC 38. But that case related to the impleadment of party in the election petition and not transposing the petitioner and substituting the contesting respondent as the petitioner.
9.He also referred to a judgment of the Supreme Court in Sudarsha Avasthi Vs. Shiv Pal Singh reported in (2008) 7 SCC 604. But that was a case where the election petition was dismissed for want of prosecution as no one appeared. It was recorded by the Tribunal that inspite of several adjournments, no one appeared. Therefore, the election petition was dismissed as the petitioner was not serious and his term was also over. Even this case was also not relevant to the case on hand.
10.He also referred to a judgment of Punjab and Haryana High Court in Gurmesh Bishnoi Vs. Bhajan Lal reported in AIR 2003 Punjab and Haryana 268 for contending that the provisions of the CPC will apply insofar as the conduct and conclusion of the proceedings subject to conditions that they are in conformity with the provisions of the Act and that the provisions of the CPC is not totally excluded. In that case it was held that if the election petition is fixed for final arguments and keeping in view of the peculiar circumstances of the case that no prejudice will be caused to either of parties, the applicant may be permitted to continue the proceedings. That is not the case in the present case.
11.Per contra, Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the second respondent placed reliance upon a Full Bench judgment of the Allahabad High Court in Duryodhan Vs. Sitaram and others reported in AIR 1970 Allahabad 1 for contending that for an order dismissing the election petition for default in appearance of the petitioner, the provisions of Sections 109 and 110 of the Representation of the People Act are not attracted as it is not the same as withdrawal of the petitioner and that the lacuna in this regard has been pointed out.
12.The learned Senior Counsel also referred to a judgment of the Supreme Court in P.Nalla Thampy Thera v. B.L. Shanker reported in 1984 Supp SCC 631 for the purpose of contending that default in appearance or non prosecution cannot be treated as on par with withdrawal or abatement. In the absence of any clear provisions under the Representation of the People Act, the same principles will not govern. In paragraphs 16, 19 and 23, it was observed as follows :
"16.There is no support in the statute for the contention of the appellant that an election petition cannot be dismissed for default. The appellant contended that default of appearance or non-prosecution of the election petition must be treated as on par with withdrawal or abatement and, therefore, though there is no clear provision in the Act, the same principle should govern and the obligation to notify as provided in Section 110 or 116 of the Act should be made applicable. We see no justification to accept such a contention. Non-prosecution or abandonment is certainly not withdrawal. Withdrawal is a positive and voluntary act while non-prosecution or abandonment may not necessarily be an act of volition. It may spring from negligence, indifference, inaction or even incapacity or inability to prosecute. In the case of withdrawal steps are envisaged to be taken before the Court in accordance with the prescribed procedure. In the case of non-prosecution or 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 laying 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. In fact, the terms of Section 87 of the Act clearly prescribe that if there be no provision in the Act to the contrary, 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.
19. The appellant was not the election petitioner. Order IX Rule 9, of the Code (and not Rule 13 relied upon by the appellant) would be the relevant provision for restoration of an election petition. That can be invoked in an appropriate case by the election petitioner only and not by a respondent. By its own language, Rule 9 provides that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit but he may apply for an order to set the dismissal aside. Under this rule, therefore, an application for restoration can be made only by the petitioner. Since it is a provision for restoration, it islogical that the provision should be applicable 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 the instant case the election petitioner and 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 event of withdrawal or abatement and applying that analogy, he urged that a petition for restoration would also lie at the instance of a respondent. The ambit of the provisions relating to withdrawal and abatement cannot be extended to meet other situations. Specific provisions have been made in the Act to deal with the two situations of withdrawal and abatement and a person hitherto not a party or one of the respondents who was entitled to file an election petition 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 9 Rule 9 of the Code and at the instance of a respondent or any other elector a dismissed election petition cannot be restored.
23.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 remained in the statute it could have removed the lacuna by amending the Act making its intention clear and manifest, particularly when many amendments have subsequently 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 legislation and as the law stands, the appellant has no right to contend that the view taken by this Court is not tenable in law. We may recall the observation of Lord Denning in Seaford Court Estates Ltd. v. Asher13:
A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.
13.In view of the above, this court is not satisfied that the applicant has any right to substitute the original election petitioner and it is not a case falling under Section 110 or 112 of the Representation of the People Act. Hence the application will stand dismissed. No costs. Post the Election Petition for trial on 13.07.2012 at 02.15 P.M. 10.07.2012 Index : Yes Internet : Yes vvk To
1.The Returning Officer-cum-
District Collector, Ramanathapuram
2.The Chief Electoral Officer, Fort St. George, Chennai-9.
3.The Chief Election Commission of India, New Delhi.
K.CHANDRU, J.
vvk ORDER IN Application No.2624 of 2011 in Election Petition No.1 of 2009 10.07.2012