Gauhati High Court
Shri Amrit Lal Basumatari, ... vs Shri Abdul Muhib Mazumdar And Ors. on 9 July, 1990
Equivalent citations: AIR 1991 GAUHATI 85, (1990) 2 GAU LR 221
ORDER Manisana, J.
1. In election petition No. 23 of 1989, the election petitioner has claimed two reliefs, one under Section 100 for declaration that the election of the respondent-2 Sri Basumatary, the returned candidate, is void, and other under Section 101(1) for declaring respondent-1 Hiteswar Saikia to have been duly elected. The respondent-2 filed a recrimination petition No. 18 of 1989 under Section 97(1) calling in question the election of the respondent-1 Hiteswar Saikia, is, the respondent-1 Hiteswar Saikia in whose favour a declaration is claimed by the election petitioner cannot be said to have been validly elected.
2. The question for determination is whether the recrimination petition is to be heard together along with, the election petition or separately as an independent petition.
3. Mr. B. N. Sen, the learned counsel for the election petitioner, has submitted that on the facts and circumstances of the case the present recrimination petition is to be tried together along with the election petition. Mr. D. N. Choudhury, learned counsel for the respondent 2, has contended that the recrimination petition shall be tried as an independent petition after the question in regard to the validity of the election of the returned candidate is decided. In order to support his contention he has relied on a decision of the Supreme Court in Jabar Singh v. Genda Lal, AIR 1964 SC 1200
4. In Jabar Singh's case (supra), the para 13 of the judgment runs :--
"'If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under Section 100 and the matter proceeds to be tried under Section 101(a). In other words, the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by Section 100(1)(d)(iii) and the latter part of the enquiry which is governed by Section 101(a) will have to be tried on broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under Section 97(1)."
In the above quoted passage, the Supreme Court has laid down the procedural step or machinery for carrying on recrimination petition including evidence and practice, It may be noted that in the above passage, the Supreme Court has used the word 'may' and, therefore, the passage indicates that the recrimination petition may be tried after the question relating to the validity of the election of the returned candidate is decided. But the Supreme Court has not said that the election petition and the recrimination petition cannot be heard together or proceedings in the election petition and the recrimination petition cannot be consolidated. In Jabar Singh's case, at para 11, the Supreme Court has also observed that when the returned candidate recriminates, "he really becomes a counter-petitioner" challenging the validity of the election of the person in whose favour declaration is claimed by the election petition; and that the result of Section 97(1) therefore, is that in dealing with a composite election petition, the Court enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. The observation of the Supreme Court shows that there are cases, where such proceedings are consolidated, as the counterclaim made in the recrimination cannot be enquired into unless it is heard together with the election petition.
5. Section 87 provides that subject to the provision of the RP 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. Under Order 8, Rule 6-A of the Code, counter-claim shall have the effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim, and the counter-claim shall be treated as a plaint and shall be governed by the rules applicable to plaints. Therefore, under Rule 6-A the claim and counter-claim are to be regarded as a unified proceeding and the same are to be disposed of by a single judgment, both on the original claim and counter-claim. However, Rule 6-C provides that the plaintiff may apply to the Court for an order that the counter-claim is an independent suit and that the suit be separated from the counter-claim. In other words, to hear the claim and counter-claim together is the general rule and to hear the counter-claim separately is an exception.
6. As already discussed, the Supreme Court has observed that the returned candidate who recriminates becomes a counter-petitioner making a counter-claim. Therefore, the counter-claim made in the recrimination is a cross-action in the nature of a cross-suit as is provided under Rule 6-A. The Supreme Court in Jabar Singh's case (supra) has laid down the procedural step or machinery for carrying on a recrimination petition, as already stated. But the decision of the Supreme Court relating to the procedure is not helpful for the decision of the present question as the decision was before the Code of Civil Procedure (Amendment) Act, 1976. By the amendment, Rule 6-A to 6-G have been inserted.
7. As regards the procedure and parctice for the trial, apart from Rule 6-A, the trial Court has also inherent power to consolidate the proceedings depending on the facts and circumstances of the case. Although, the exercise of the inherent powers are not controlled by the provisions of the Code, the powers are not to be exercised if the exercise of that powers may override express provision of the Code. These powers are in addition to, or complementary to, the powers conferred under the Code. Under the RP Act or rules framed thereunder, there is no provision that both the election petition and the recrimination petition cannot be heard together or cannot be disposed of by a single judgment. As already stated, the Supreme Court has not said that the election petition and the recrimination petition cannot be heard together or proceedings in the election petition and the recrimination petition cannot be consolidated. The election petition requires quick disposal. On perusal of the election petition as well as the recrimination petition, I am of the view that on the facts and circumstances of the case, if the present election petition and the recrimination petition are heard together and disposed of by a common or single judgment in exercise of the inherent powers or under the provisions of Rule 6-A, in the absence of an order under Rule 6-C, I do not think I would commit any jurisdictional error.
8. For the foregoing reasons, it is ordered that the election petition and the recrimination petition shall be heard together and proceedings shall be consolidated.