Punjab-Haryana High Court
Gurmesh Bishnoi vs Bhajan Lal on 23 April, 2002
Equivalent citations: AIR2003P&H268, (2003)134PLR534, AIR 2003 PUNJAB AND HARYANA 268, (2003) 4 CIVLJ 473, (2003) 2 RECCIVR 416, (2003) 2 PUN LR 534
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Shri Gurmesh Bishnoi presented this election petition challenging the election of Shri Bhajan Lal to the Haryana Vidhan Sabha from Adampur Assembly constituency and prayed that this election be declared void and he be disqualified from seeking election for a period of six years in accordance with law on the grounds of corrupt practices of booth capturing etc. The election petition was seriously contested by the parties to the petition.
2. Vide order dated 18.11.1996 the Court framed as many as seven issues and directed Issue No. 1 to be treated as preliminary issue. The preliminary issue was answered by the Court vide order dated 22.8.1997 and parties were directed to file the list of witnesses and summon the witnesses for the date fixed. As many as 20 witnesses were examined by the petitioner in addition to production of voluminous record while the respondents examined 12 witnesses, The case was then fixed for arguments.
3. On 24.7.2000, learned counsel for the petitioner in the presence of the petitioner stated that he wishes to withdraw from the case and prayed for an adjournment. As the petitioner had no objection, the counsel was permitted to withdraw from the petition and adjournment prayed for was granted. The case was fixed by the registry on 12,9.2000 on which date the petitioner was not present nor any counsel appeared on his behalf. In the interest of justice, the Court directed the registry to inform the petitioner for the next date of hearing. On 28.11.2000 none appeared on behalf of the petitioner despite the fact that the case was called out twice. However, an application was filed by one Shri Kurda Ram on 25.11.2000, which was also listed before the Court on that date. In this application Shri Kurda Ram prayed for his impleadment/substitution as "petitioner" in the present petition.
4. Notice of this application was issued to the non-applicant/respondent and the registry was also directed to send registered notice to Shri Gurmesh Bishnoi-the petitioner. No reply to this application has been filed despite the fact that notice issued by the Court had been served upon Mr. Bishnoi, the petitioner. The matter was adjourned for direction and to consider the effect of continuous non-appearance of the petitioner despite notice.
5. The learned counsel appearing for the non-applicant/respondent did not fife any reply to the application but prayed that the matter to be listed for arguments on the application for impleadment/substitution.
6. The applicant Mr. Kurda Ram has stated that he is resident of village Balsamand and is a registered voter/elector in that village at Sr. No. 372 Part 103 of the Voters List. Village Balsamand is part of Adampur Assembly Constituency. Paragraph No. 3 of the application reads as under:-
"That according to the reliable information of the applicant, the election-petitioner Shri Gurmesh Bishnoi has joined hands with the returned candidate-Shri Bhajan Lal respondent in the above mentioned election petition and, as such, is no more interested in pursuing the above mentioned election petition which pertains to 79-Adampur Assembly Constituency of Haryana Vidhan Sabha."
According to the applicant he is entitled to be substituted as a petitioner for the afore-stated reasons. According to the petitioner, under the Representation of Peoples Act, 1951 and the Rules framed thereunder, hereinafter referred to as the Act and the Rules respectively, the petition cannot be dismissed for non-prosecution or default and the applicant ought to be substituted as the election petitioner is a petition on behalf of the whole constituency.
7. As already noticed, the facts averred in the application have not been disputed by filing any reply. However, learned counsel for the non-applicant contended that there is no provision in the Act or the Rules for impleadment of a third party. The concept of necessary and/or proper party, as known to civil law, is not applicable to an election petition. In fact the application under Order 1 Rule 10 of Civil Procedure Code, 1908, hereinafter referred to as the Code, is not maintainable.
8. On the basis of the arguments raised on behalf of the parties, two basic questions arise for consideration:
i) Whether the Court has jurisdiction to dismiss an election petition on the ground of non-prosecution or default of appearance by the election petitioner?
ii) Whether in the facts and circumstances of this case, the Court can direct impleadment of an elector in place of the original petitioner?
9. So far as the first question is concerned, it need not detain this Court any further as this question is no more res-integra. It stands completely answered without any ambiguity by a Full Bench of this Court in the case of Jugal Kishore v. Dr. Baldev Parkash, A.I.R. 1968 Punjab and Haryana 152 which was approved by the Hon'ble Apex Court in the Case of Dr. P. Nalla Thampy Thera v. B.I. Shanker and Ors., A.I.R. 1984 Supreme Court 135. Consequently, I have no hesitation in coming to the conclusion that an election petition can be dismissed for default or for non-prosecution, as the case may be, if the order is otherwise called for. The Court can hardly compel an unwilling party to prosecute its litigation even if such inaction may spring from negligence, indifference or even incapacity or inability The power to dismissal of election petition is inherent power which every Tribunal possesses. Thus, this contention of the applicant is rejected.
10. Coming to the second question that arises for determination before this Court, reference to the conduct of the main petitioner can be made with some advantage. The petitioner instituted this petition and contested the same till the case was fixed for arguments with great seriousness and vigour. Every stage of the petition was hotly contested between the parties. When the matter was fixed for arguments, suddenly the attitude of the petitioner changed. Firstly, he made his counsel withdraw from the case and then he stopped appearing before the Court even himself. This sudden change of the attitude in prosecuting the case is a matter of some concern for the Court. The unrefuted averments made by the applicant in paragraph No. 3 of the application, referred above, cannot be totally ignored. They would have to be referred for arriving at a reasonable conclusion for disposal of this application. What prompted the petitioner in a hotly contested election petition to withdraw himself from prosecuting the petition effectively, is a matter which has a serious question mark to it.
11. There is no doubt to the proposition of law that the concept of proper or necessary parties, as known under the civil Code, is not per se applicable to an election petition. Paramount considerations for impleadment of a party to an election petition are statutory status, satisfying other conditions postulated under the provisions of the Act and is entitlement in election law to claim such relief. In that event alone an elector or a candidate could be imp leaded as a petitioner in election petition.
12. The concept of proper party is and must remain alient to an election dispute under the Representation of the People Act, 1951. Only those persons may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4) and no others, However desirable and expedient it may appear to be, none else shall be joined as respondents. Provisions of Civil Procedure Code have, thus, been made applicable to the trial of an election petition to the limited extent as would appear from the expression "subject to the provisions of the said Act." The concept of proper party is unknown to election petition (1991 Supp.(2) Supreme Court Cases 624, V. Sundaramani Reddy v. Election Commission of India and Ors.,).
13. Learned counsel for the respondent placed reliance upon this judgment to contend that as provisions of Order 23 Rule 1 of the Code do not apply to the election petition, the provisions of Order I Rule 10 of the Code are also not applicable to an election petition and the applicant cannot be added or substituted as petitioner.
14. Section 82 of the Act specifies the parties to the petition. The petitioner is obliged to join as respondent in his petition all or any of the returned candidate depending upon the nature of his prayer, all contesting candidates other than the petitioner or any other candidate against whom corrupt practices are pleaded. Who can be the petitioner is provided under Section 81 of the Act. Any candidate at such election or any elector can alone be the petitioner. The explanation to Sub-section (1) of Section 81 explains the word elector which means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. As already noticed, the status essential for a party to the petitioner is that he has to be a contesting candidate in such election or he has to be an elector to the questioned election. This statutory status by necessary implication excludes the application of the general principles controlling the provisions of Order 1 Rule 10 of the Code, as applicable to a civil suit. A party may appear to be proper or even necessary, but essentially may lack the statutory status to an election petition and, therefore, cannot be added. Where the law itself defines a legal character and satisfaction of certain prescribed conditions for impleadment, in that event both these ingredient have to be satisfied.
15. It is settled principle of law that the Act is a self contained Code though provisions of Civil Procedure Code are applicable to if for its conduct and conclusion and subject to the condition that they are in conformity with the provisions of the Act. In other words, the application of the provisions of the Code is not entirely excluded and it had definite, though, limited application to an election petition. An election petition is also not a contest between the two parties but is a petition on behalf of the entire constituency in which every elector has a legal right subject to the limitations provided under the Act. At this stage, reference can be made to the case of Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa and Ors., A.I.R. 1958 S.C. 698. While discussing the powers of Election Tribunal and scope of Election Commission held as under:-
"The above provisions go to show that an election petition once filed does not mean a contest only between the parties thereto but creates a situation which the whole constituency is entitled to avail itself of. Any person who might himself have been a petitioner is entitled to be substituted, on the fulfilment of the requisite conditions and upon such terms as the Tribunal may think fit, in place of the party withdrawing and even the death of the sole petitioner or of the survivor of several petitioner does not put an end to the proceedings, but they can be continued by any person who might himself have been a petitioner. Even if the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondent dies or gives notice and there is no other respondent who is opposing the petition, a similar situation arises and the opposition to the petition can be continued by any person who might have been a petitioner, of course on the fulfilment of the conditions prescribed in Section 116. These provisions therefore show that the election petition once presented continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of opposition by the respondent but is liable to be continued by any person who might have been a petitioner."
16. Their Lordships of the Supreme Court in the case of Dr. P. Nalla Thampy Thera v. B.L. Shanker and Ors., A.I.R. 1984 S.C. 135 commented upon the applicability of the provisions of Civil Procedure Code to an election petition and its extent. Their Lordships, while approving the Full Bench decision of this Court, in the case of Jugal Kishore v. Dr. Baldev Parkash, A.I.R. 1968 Punjab 152, held as under:-
"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 of 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 be governed and the obligation to notify as provided in Sections 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 violation. 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 lying 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."
"It is relevant to note the observations of Hidayatullah, C.J. in Sunderlal Mannalal v. Nandramdas Dwarkadas, (A.I.R. 1958 Madh.Pra. 260) where he indicated (para 5):
"Now the Act does not give any power of dismissal. But is it axiomatic that no Court or Tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. The dismissal, therefore, is an inherent power which every Tribunal possess..."
Further while holding that an election petition which was dismissed in default for non-appearance could not be restored on an application of the respondent.
"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. But 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 is logical 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."
"These provisions cannot be extended to an application under Order IX, Rule 9 of the Code and at the instance of a respondent, or any other elector a dismissed election petition cannot be restored."
17. In the case of Chandra Kishore Jha v. Mahavir Prasad and Ors., (1999)8 S.C.C. 266 while their Lordships referred to the well settled solitary principle i.e. if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, (referred : Rao Shiv Bahadar Singh v. State of U.P., A.I.R. 1954 S.C. 322 and State of U.P. v. Singhara Singh, A.I.R. 1964 S.C. 358) and clearly stated that complying this principle, a party is not expected to do the impossible. The petition which was strictly not presented in accordance with the rules of Patna High Court, relating to election petition, their Lordships held that the rule should be literally construed and in the facts of the case, presentation of the petition to the Bench Clerk or to the Registrar was not proper and subsequently presented in the open Court was considered proper presentation of the petition.
18. The applicant in the present case is an elector and had actually voted in the election, subject matter of the present election petition. In the application he had stated that he satisfies the legal requirements of the Act and, thus, should be impleaded/substituted as a petitioner. The applicant could be a petitioner with the aid of Section 81 of the Act, but he had to present the petition in his own right within 45 days but not earlier than the date of election of the returned candidate. The situation did not arise in the present case because a defeated candidate Sh. Gurmesh Bishnoi was the petitioner who had filed the petition and prosecuted the same vigorously for number of dates. He disassociated himself and neglected to pursue the petition despite notice of the Court. No order dismissing the petition was passed by the Court either for default of appearance or for non-prosecution. On the day the application was filed by the applicant for being impleaded/substi-tuted as a petitioner. The petition was fixed for arguments and all that the applicant prays that he be impleaded as a party on the basis of the same evidence and submits that the petition be decided on merits. Such a request has to be viewed in a reasonable and fair manner as sudden dis-interest and no-prosecution by the petitioner Mr. Gurmesh Bishnoi, at least prima-facie dpes not appear to be bona fide and apparently is for ulterior motive.
19. The legislative mandate under Section 108 to 110 of the Act places an obligation upon the Court to decline even an application for withdrawal of an election petition if such application is induced by any bargain or consideration which ought not to be allowed. Though there is no application for withdrawal of the petition in writing but the Court is ever duty bound to protect the process of law, keeping in view the legislative intent and avoid frustration of law by an unscrupulous litigant. The Legislature in its wisdom under Section 190(1) of the Act has referred to withdrawal of an election petition. It is stated that an election petition may be withdrawn only by the leave of the High Court. Leave by the High Court pre-supposes proper application of mind by the court and for valid ground. The net effect of inaction on the part of the petitioner would practically be synonymous to that of withdrawal. The demeanour on the part of the petitioner in prosecuting the petition is void of bonafide and bases entirely on unexplained record. If this action of the petitioner is indicative of intention of the petitioner to withdraw this petition for ulterior motive, then the Court is obliged not to permit such action. The expression "withdrawal" is of wide connotation and must be liberally construed in its true sense. Withdrawal can be an act by writing or by conduct. The significant parameter would be an action of the party and not the language per se would be a concluding factor in such determination. Webster's Encyclopedic Unabridged Dictionary defines the word withdrawal as "to retract or recall; to withdraw a remark; to withdraw an untrue charge, while The Chambers Dictionary defines withdrawal as "to draw back or away; to take back or away; to cause (troops) to retire; to take (money, savings etc.) from deposit or investment; to remove (with from); to cancel or discontinue (as service, offer, etc.); to deflect, turn aside (rara); to recall, retract, uneasy.
20. The above meaning of the expression sufficiently indicates that intention coupled with the conduct would be the criteria for determination and deciding the action of a party, When an application is moved under Sub-section (2) of Section 109, Section 110 comes into play. In absence of such a written application, court is duty bound to pass appropriate orders as it is not only the option available with the Court but to dismiss the petition for default or otherwise. The Court may be well justified to decide the matter on merits as the case is fixed for final arguments.
21. Even if for the sake of arguments it is assumed that such conduct on the part of the petitioner in face of the averments made by the applicant does not amount to an act of withdrawal, even then the Court is not compelled to dismiss the petition for default of appearance and can pass appropriate orders in exercise of its inherent powers to achieve the ends of justice and to further the object of the statute and provisions of the Act to which provisions of the Code are admittedly applicable.
22. The scheme of the legislative provisions of this Act read in light of the afore-referred judgment of the Apex Court clearly mandates that individual or self interest should not be permitted to prevail over larger public interest. Attainment of the object of the Act in light of the principles above enunciated is essence of any free and fair democratic system. Thus, a caution is casted upon Court and wide discretion is also vested in it to prevent abuse of this special process regulating election law. Such petition cannot be treated like an ordinary suit or action in common law. To ensure purity of election process and its result the legislature has provided different checks and balances in the Act itself at various stages. One of such checks is that the person for improper bargain and self-interest should not be permitted to frustrate or defeat an election petition which, in fact,is a petition on behalf of the constituency itself. These protections are implicit and have to be read into various provisions of the Act. I have already noticed that the Court is not bound to dismiss the petition for default particularly when such in action on the part of the petitioner is malicious or intending to frustrate the due process of law. In the present case, there were averments and it has been vehemently argued that the non-prosecution by the petitioner is for ulterior motive and is result of an unfair settlement between the petitioner and the respondents. In those circumstances it would neither be mandatory nor obligatory on the part of the court that it must dismiss the petition for default particularly when the matter is fixed only for final arguments on the petition. Such limitation can neither be placed on the powers of the Court nor law admits such limitations. Even under the procedural law it is not mandatory for the Court that in all events the Court must dismiss the suit or proceedings in default or for non-prosecution. It can always pass other appropriate orders in the facts and circumstances of the case.
23. The Act does not contain any provision under which a petition can be dismissed in default. However, the Hon'ble Apex Court in the case of Dr. P. Nala Thampy Thera (supra) has held that a Court while exercising its inherent powers can dismiss an election petition for default or non-prosecution. This view has been taken by the Hon'ble Apex Court despite the fact that there is no such statutory provision in the Act pertaining to this aspect. In this very case it was also held that it is axiomatic that no Court or Tribunal is supposed to continue the proceedings before it in which the party is not interested and dismissal was held to be an inherent power, which every Tribunal or Court possesses. These observations are obviously in addition to the powers vested in a Court under Section 151 of the Code. Subject to the limitations of the Act the provisions of the Code are applicable to the proceedings under the Act under Section 87 of the Act. At this stage, it may be appropriate to refer to the decision of the Apex Court in Dr. P. Nalla Thampy Thera's case (supra) where their Lordships held as under:-
"Those decisions were not concerned with the question as to whether an election petition can be dismissed for default. The consensus of judicial opinion in this Court has always been that the law in regard to decisions has to be strictly applied and to the extent provision has not been made, the Code would be applicable. About eight years back this Court had occasion to point out that if the intention of the legislature was that a case of this type should also be covered by special provision, this intention was not carried out and there was a lacuna in the Act."
24. The cumulative effect of the above discussion is that the High Court while trying an election petition under the provisions of the Act is required to apply the provisions of the Code, subject to the limitations of the Act. In other words, inherent powers are vested in the Court and will be used for abridging the gaps which may appear as a result of there being no specific provisions in the Act. But,of course, exercise of such power has to be is in consonance with the settled canons of law and must be intended to achieve the object of the Act. The Act is a self-contained Code and certainly does not admit scope for application of principles of common law or even the ordinary law of the land.
25. Now it is pertinent for this Court to discuss the provisions of Sections 108 to 112 of the Act relating to withdrawal of petition, abatement or substitution. The intention appears to be that an election petition does not come to an end on either of these events and the Court is to issue a notice in the news paper and publish the same in the official gazette and any person who himself might have been a petitioner in an election petition within 14 days of such publication could apply for substitution. In the words a candidate or an elector alone can apply for being substituted. The present application for substitution at best is a pre-mature act to the limited extent that there is no written application for withdrawal of the petition before the court but intentions of the petitioner are certainly not bona fide and are intended to frustrate the process of law and compel the Court to dismiss the petition for default. Court need not come to such malicious pressure as malice of men is to be averted and substantial justice must be done to the parties before the Court.
26. An election petition is a petition under a special law, which is given priority over ordinary actions. A party after having concluded the evidence in large number of hearing and when the matter is fixed for final hearing cannot be permitted to frustrate the purpose of the Act as an election petition is a petition on behalf of the constituency itself. Such petitioner cannot be permitted to play a fraud on the statute or on the Court. At this stage, reference can usefully be made to the observation of the Hon'ble Apex Court in the case of Jagan Nath v. Jaswant Singh and Ors., A.I.R. 1954 Supreme Court 210, where it was held as under:-
"Various provisions of the Act referred to above show that the election petition does not necessarily abate or fail by reason of the death of the petitioner or any of the respondents or by their ceasing to take any interest in the trial of the petition once that petition has been referred to the Tribunal. On the other hand, any person who could be a petitioner can continue the petition inspite of the death of either the petitioner or the respondents to the petition and on the original parties failing to prosecute it. These provisions have been made to ensure that election process on which the democratic system of Government is based is not abused or misused by any candidate and that inquiry is not shut out by collusion between persons made parties to the petition or by their respective death." (emphasis applied by this Court).
27. The learned counsel for the appellant while relying upon the case of Inamati Mallappa Bassappa (supra) contended that provisions of the Code like Order 23 are not applicable to the Act, as such provisions of Order 23 Rule 10 of the Code can also not apply. This contention is misconceived. In this case there was an apparent conflict between the provisions of Order 23 Rule 1 of the Code and the statutory provisions of the Act relating to withdrawal (Sections 108 to 110). Thus, their Lordships held that in the face of the specific provisions of Order 23 Rule 1 of the Code for the purposes of withdrawn or abandon a claim or part thereof once an election petition is presented to the competent forum. In the case of Dr. P. Nalla Thampy Thera (supra) the Apex Court held that where a petition was dismissed in default, which the Court was competent to do, an application by a third party for restoration of the petition could not lie under Order 9 Rule 13 of the Code, inasmuch as such an application can be presented only by a person who is a party to the petition and none else. But their Lordships specifically held in this case that provisions of the Code subject to the limitations of the Act were applicable to prosecution of election petition before the Court. Their Lordships in fact upheld the power of the court to dismiss in default a petition under its inherent powers, though there is no specific provision in the Act itself in this regard. Thus, the reliance placed on these two cases by the learned counsel for the respondent/non-applicant is hardly of any avail to him.
28. For the reasons recorded above, I am of the considered view that this Court has the power to dismiss election petition for default of appearance or for non prosecution, but keeping in view the peculiar facts and circumstances of this case and particularly when the election petition is fixed for final arguments, no prejudice of any kind would be caused to either of the parties if the applicant is permitted to continue the petition on the basis of the same record, At best it would be only assistance rendered to the Court for finally concluding the election petition on merits. It is neither mandatory nor obligatory for this Court to dismiss this petition in default especially when the absence of the petitioner is stated to be for ulterior motives and on the face of lacks bona fides. I allow this application limited to the extent that the applicant is given liberty to address the Court on merits of the petition at the final arguments.
29. List the election petition for final hearing on 17 May, 2002.