Orissa High Court
Hemanta Kumar Mohanty vs Nalinikanta Patra & Ors. .... ... on 23 February, 2024
Author: B. P. Routray
Bench: B. P. Routray
Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Designation: Sr.Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 05-Mar-2024 11:39:07
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 32033 of 2023
Hemanta Kumar Mohanty .... Petitioner
Mr.G.Agarwal, Advocate
-versus-
Nalinikanta Patra & Ors. .... Opp.Parties
Mr.S.K.Nayak, Advocate for O.P.1
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
23.02.2024 Order No.
06. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Agarwal, learned counsel for the Petitioner and Mr.Nayak, learned counsel for Opposite Party No.1.
3. The impugned order dated 4th September, 2023 of learned Civil Judge(Jr.Division) Aul, Kendrapara (the Tribunal) passed in Election Misc Case No.2 of 2022 has been challenged by the returned candidate. He filed a petition dated 1st July, 2023 under Order 6 rule 16 and Order 7 Rule 11 of the CPC with prayer to strike off certain pleadings and further, to reject the election petition.
Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: AuthenticationLocation: High Court of Orissa, Cuttack Date: 05-Mar-2024 11:39:07
4. Learned Civil Judge while dismissing said petition of the returned candidate held that the provisions in the Civil Procedure Code, other than the provisions for trial of the proceedings, are not applicable to the election dispute.
5. This court in a recent judgment dated 06th February 2024 passed in WP (C) No. 1086 of 2023 have observed that, such provisions of the C.P.C., which are not inconsistent with the provisions of the OGP Act, would be in addition to the provisions of Section 37 of the OGP Act. The relevant observation is as follows:-
"7. If the provisions of Section 37 and 35 will be read cumulatively, it would be clear that subject to provisions contained in Section 37, the provisions of the CPC shall be applicable for trial for the election dispute cases under the OGP Act as nearly as may be possible. The words 'subject to .. ..' appearing in section 35 mean that such provisions in the CPC not inconsistent with the provisions of the OGP Act would be applicable in election dispute cases. Section 87 of the Representation of the People Act, 1951 contains similar provisions to that of section 35 of the OGP Act. This court in Tilottama Bhola @ Tilotama Bhol vs- Collector 2013(II) OLR 820, have observed that, most of the provisions relating to election and election petition in the laws governing Panchayats are in pari materia with the provisions contained in the Representation of the People Act, 1951, yet the procedural laws relating to panchayat elections and election petitions cannot be allowed to be interpreted with too much of rigidity and by indulging in hair- splitting.
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Location: High Court of Orissa, Cuttack Date: 05-Mar-2024 11:39:07
11. Further, a thorough reading of the provisions in Section 35 shows that the provisions of the CPC beyond the matters described in section 37 and not contrary to any of the provisions of the OGP Act are in addition to such provisions applicable in election dispute cases. Therefore, the conclusion would be that, such provisions of the C.P.C., which are not inconsistent with the provisions of the OGP Act, particularly Order 11 Rule 1 relating to interrogatories would be in addition to the provisions of Section 37 of the OGP Act. So, what is contended by Mr. Rath that the provisions of Order 11, Rule 1 would not be applicable in the present case is not found correct."
6. In Dr Rajendra kumara Bajpai vs- Ram Adhar Yadav and Others (1975) 2 SCC 447, the Hon'ble Supreme Court have held that;
"12. The matter, however, seems to be concluded by a recent decision of this Court in Virendra Kumar Saklecha v. Jagjivan, (1972) 1 SCC 826 where the Chief Justice speaking for the Court interpreted Section 87 of the Act and observed as follows:
Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Under Section 102 of the Code the High Court may make rules regulating their own procedure and the procedure of the civil courts subject to their supervision and may by such rules vary, alter or add to any of the rules in the First Schedule to the Code.
The relevant part of Section 87 runs thus:
(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits:
A bare perusal of this section leads to the irresistible conclusion that election petitions shall have to be tried in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. In other words, election petitions would be tried like ordinary civil suits.
13. We are unable to agree with counsel for the appellant that Order XI does not form part of the trial of suits but is a special procedure. This is repelled by a reference to Order XI of the Code of Civil Procedure itself. It will appear that Order X relates to the procedure for examination of parties by the Court and Order XI is a part of that procedure, because it provides that where witnesses Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Mar-2024 11:39:07 are not able to appear before the Court personally they are examined through interrogatories. In these circumstances, therefore, Order XI is as much a part of the procedure as Order X relating to trial of suits in matters regarding summoning of witnesses, documents etc. In these circumstances it cannot be said that Section 87 of the Act either expressly or impliedly excludes the application of Order XI of the Code of Civil Procedure. In fact we are clearly of opinion that Section 87 of the Act is of the widest amplitude so as to cover the entire procedure mentioned in the Code of Civil Procedure with only two exceptions-- (i) where the Act contains express provision for certain matters which are inconsistent with the procedure prescribed by the Code; and (ii) where a particular provision of the Code of Civil Procedure is either expressly or by necessary intendment excluded by the Act.
Subject to these two exceptions, Section 87 is very wide in its connotation.
14. We, therefore, agree with the learned Single Judge who was trying the election petition that the application for interrogatories was one of the logical steps in aid of the prosecution of the petition and was fully covered by Section 87 of the Act. The second contention raised by counsel for the appellant thus fails."
7. In Kailash vs- Nankhu and others (2005) 4 SCC 480, it is concluded that;
"46. We sum up and briefly state our conclusions as under:
(i) The trial of an election petition commences from the date of the receipt of the election petition by the court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition, affording opportunity to the defendant to file a written statement.
The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and rules made for purposes of that Act and a resort to the provisions of CPC is not called for.
(ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines.
(iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the rules framed thereunder or the Rules framed by the High Court in exercise of Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Mar-2024 11:39:07 the power conferred by Article 225 of the Constitution on the one hand, and the rules of procedure contained in CPC on the other hand, the former shall prevail over the latter."
8. In Smt Punama Sabara vs- Smt Borso Boni Raito 2013 (Supp- II) OLR 268, it is held as follows;
"7. On the rival contentions of the parties, the questions that arise for consideration by this Court are as follows:
(i) Whether procedure which specifically find place in Section 37 of the Act are applicable for trial of the election petition and not provisions of the CPC ?
(ii) Whether CPC being the common law, it has no application to the G.P. Act, which is a special statute and therefore, the concept of counter claim provided in Order 8 Rule-6A of CPC has no application in trial of election cases under the G.P. Act ?
(iii) Whether in view of Section 30 which provides that only election of a person can be challenged by filing an election petition, elected candidate is not entitled to file election petition and consequentially cannot maintain a counter claim ?
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10. Section 35(1) starts with the expression "subject to the provisions of this Act and the rules made thereunder" every election petition shall be tried by the Civil Judge (Junior Division) as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908. Therefore, if any provision is available under the Grama Panchayat Act and Rules made thereunder there is no need to take aid of CPC. Further, the provisions contained in the Grama Panchayats Act and Rules made thereunder shall prevail over the provisions/procedure of C.P.C. Under Section 37 certain powers exercisable by the Civil Court are specifically vested with the Election Tribunal. If the contention of the petitioner is accepted that the CPC will be applicable only to the extent enumerated under Section 37 then there was no need to enact Section 35 of which would otherwise render redundant.
11. Therefore, conjoint reading of Sections 35 and 37 makes it clear that in addition to powers enumerated under Section 37, the Election Tribunal shall apply the other provisions of CPC, as nearly as may be subject to provisions of Grama Panchayat Act while trying an Election petition.
12. Further contention of Mr. Dhal is that the Grama Panchayat Act being a special statute, the concept of counter claim as provided in CPC has no application for trial of Election petition.
Such a stand cannot be sustainable in law since Section 35(1) of the Grama Panchayats Act itself provides that every election Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Mar-2024 11:39:07 petition shall be tried by the Election Tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, of course subject to provisions of the Grama Panchayat Act.
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25. In view of the above settled legal position of law and in the facts and circumstances of the case, the reasons given by the learned Election Tribunal for rejecting the amendment petition are not legally sustainable. In any event, if the written statement filed by the defendant has already contained counter claim in the light of Order VIII, Rule 6A, the learned Tribunal should have allowed the amendment petition."
9. In the case at hand, the prayer was in respect of the provisions in Order VI rule 16 and Order VII Rule 11 of the C.P.C. Learned civil judge without getting to the merits of the petition has rejected it observing that such petition under Order VI R.16 and Order VII R.11 is not maintainable in the election case. In view of the proposition of law discussed above, the observations of the learned Civil Judge is found unsustainable. The impugned order is set aside and the Civil Judge is directed to consider the petition dated 1st July, 2023 of the returned candidate afresh.
10. The writ petition is accordingly disposed of.
(B.P. Routray) Judge S.Das Page 6 of 6