Bombay High Court
Jaywantrao Pundalikrao Jadhav ... vs Shivaji Laxman Sahane & Ors on 16 August, 2013
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
RECRIMINATION PETITION NO. 1 OF 2013
IN
ELECTION PETITION NO. 1 OF 2012
Jaywantrao Pundalikrao Jadhav ....Recrimination
Petitioner.
Vs.
Shivaji Laxman Sahane & Ors. ....Respondents.
Mr. S.G. Aney, Senior Advocate with Mr. Vijay Nair i/by Mr. Prashant P.
Kulkarni for the Recrimination Petitioner. (Respondent No. 6 in
Election Petition)
Mr. Mahesh Jethmalani, Senior Advocate with Mr. Pravin B. Gole with
Ms. Chaitra Pawar with Mr. S.S. Deshmukh for Respondent No.1.
None for Respondent Nos. 2 to 5.
CORAM: ANOOP V. MOHTA, J.
DATE : 16 AUGUST 2013
P.C.:-
Heard the learned senior counsel appearing for the parties, on the following preliminary issue.
(1) Whether the Recrimination Petition is barred by limitation?
2 Following are the basic events for the purpose of testing the present issue.
The result of the Biennial Election held for Nashik Local 1/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 2 2-rpe1.13.sxw Authorities Members Constituency was declared on 28 May 2012.
The Recrimination Petitioner was declared as Returned Candidate.
Election Petition No. 1 of 2012 filed on 19 June 2012, challenging the election of the Returned Candidate by the Petitioner.
3 On 23 July 2012, this Court passed the following order:-
"Admit.
2. Issue notice to all the Respondents for final disposal, returnable on 3rd September, 2012.
3. Hamdast is allowed."
4 The office-Registrar issued notice in the following terms:-
"To
1. Election Commissioner, .......Respondent No.1, Election Commission of India, Nirvachan Sadan, Ashok Road, New Delhi-110 001.
2. Chief Electoral Officer, .......Respondent No.2, Mantralaya, Mumbai-400 032.
3. The Returning Officer, .......Respondent No. 3, Nashik Local Authorities Constituency, Office of District Collector, Nashik.
4. Mr. P. Velarasu .......Respondent No.4, 2/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 3 2-rpe1.13.sxw Acted as Returning Officer, Last known address Office of District Collector, Nashik.
5. The Assistant Returning Officer,....Respondent No.5, Nashik Local Authorities Constituency, Office of District Collector, Nashik.
6. Mr. Jayant Pundalik Jadhav,......Respondent No.6, Shivneri, Ramdas Swami Nagar, behind Gandhinagar, Nashik -422 006.
Re: High Court, O.O.C.J.,
Election Petition No. 1 of 2012
Shivaji Laxman Sahane ...Petitioner
V/s.
Election Commissioner And Ors., ...Respondents ..........................
Sir, I have to inform you that the abovementioned Petition came up before the Hon'ble Shri Justice Anoop V. Mohta, on 23rd July, 2012, when His Lordship pass the following order:
P.C. "Admit.
2. Issue notice to all the Respondents for final disposal, returnable on 3rd September, 2012.
3. Hamdast is allowed."
A copy of the Order dated 23 rd July, 2012 and copy of Petition are enclosed herewith for your information.3/23 ::: Downloaded on - 27/08/2013 21:18:19 :::
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PLEASE TAKE NOTICE that the
abovementioned Petition is now fixed for "Final Disposal" on Monday, the 3rd September, 2012 at 11.00 O'Clock. You are therefore, directed to remain present before the Hon'ble Court, in Court Room No. 54, Second Floor, High Court Main Building, Bombay, either in person or through an Advocate entitled to practice on the Original Side of this Hon'ble Court, and shall continue to remain present during hearing on all subsequent dates, till the proceedings is finally disposed off by the Order of the Court.
PLEASE TAKE FURTHER NOTICE that if you fail to remain appear before the Hon'ble Court on the aforesaid date and time the Hon'ble Court will be passed the appropriate order in the aforesaid matter, even in your absence.
PLEASE TAKE FURTHER NOTICE that no further intimation shall be given to you in case the said matter stands adjourned for whatsoever reason, unless it is ordered by the Hon'ble Court.
Yours faithfully,"
The office dispatched the notice of Election Petition on 27 July 2012 and duly served upon the real brother of Recrimination Petitioner on 1 August 2012.
5 It is relevant to note that the copy of the order and the copy of the Petition with the prayers enclosed which were received by the contesting Respondent. There was no objection of any kind about 4/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 5 2-rpe1.13.sxw the defective notice and/or prescribed summons.
6 The Returned Candidate appeared on 31 August 2012 before this Court but filed an Application for dismissal of the Election Petition on the ground that "He is not the person against whom the Election Petition is filed". It was resisted by the Election Petitioner and an Application was filed for amendment/correcting the name stating it to be a typographical error. Both the Applications were heard and by order dated 30 November 2012, Application No.5 of 2012 was dismissed by observing as under:-
"24 Strikingly the applicant has described him as "Jadhav Jaywantrao Pundlik", which supports the averments and the relevant documents. This itself means that no one else can dispute the facts as well as the documents to show that the Applicant is the same person who has participated, contested and got elected in the election in question."
"28 It is relevant to note that though Application is taken out for dismissal of the present election petition by the applicant, who has not filed even Vakalatnama and/or if he is an independent person and/or not concerned with the election in question, he cannot be said to be aggrieved party in such election petition so filed and if so allowed after the due trial, again of respondent No.6. Application No. 06/2012 so filed itself shows so also the documents placed on record that the Applicant/Petitioner is the person who is concerned with the election petition being the elected candidate. Here at this stage, these reasoning are only for the purpose of adjudication of these two applications."5/23 ::: Downloaded on - 27/08/2013 21:18:19 :::
ssm 6 2-rpe1.13.sxw On the same date/order, the original Petitioner's Application for amendment (Application No. 6 of 2012) was allowed.
The amendment was carried out, accordingly.
7 The matter listed on 14 December 2012 and ordered to issue "summons", returnable on 1 February 2013. The office issued summons as contemplated under Rule 9 of Rules framed by the High Court of Judicature at Bombay in regard to Election Petitions under the Representation of People Act (for short, the High Court Rules).
8 The relevant Rule is as under:-
"9. Immediately after the time fixced for the removal of objections, the petition shall be placed before the Judge for such orders as may be required to be passed under section 86 of the Act. If the petition is not dismissed under section 86(1) of the Act, a summons, on the direction of the Judge, shall be issued to the respondents to appear before the High Court on a fixed date and answer the claim or claims made in the petition. Such date shall not be earlier than three weeks from the date of the issue of the summons. The summons shall be for written statement and settlement of issues and shall be served on the respondents through the sheriff in Greater Bombay, and through the District Judges in the rest of the State in the manner provided for the service of summons. The Prothonotary and Senior Master and the District Judges will make their best endeavour to serve the summons on the respondents and make a return of the service of the summons with the greatest expedition.
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9 The contesting Respondent- the Recrimination Petitioner,
quoting the prayers of the Election Petition, called upon to answer the same on 1 February 2013. The relevant extract of the summons are as under:-
"AND WHEREAS the above Election Petition was called out for direction before the Hon'ble Justice A.V. Mohta on 14 th day of December, 2012, when His Lordship directed this office to issue Sumons to the Respondent, returnable on 01.02.2013.
YOU ARE HEREBY SUMMONED to appear in this Hon'ble High Court before the Court presided over by the Hon'ble Justice Anoop V. Mohta either in person or through an Advocate duly instructed and able to answer all material questions relating to the Petition or who shall be accompanied by some person able to answer all such questions on 01.02.2013 at 3 O'clock in the forenoon to answer the claim.
AND YOU ARE HEREBY directed to file on that day a statement of your defence and to produce on the same day all the documents in your possession or power upon which you base your defence and where you rely on any other documents whether in possession or power or not, as evidence in support of your defence, you shall enter such documents in a list to be annexed to the written statement.
AND TAKE NOTICE THAT in default of your appearance on day before mentioned, the Petition will be heard and determined in your absence.
AND ALSO TAKE NOTICE THAT in default of your filing an address for service on or before the date mentioned you are liable to have your defence struck out.
A copy of Election Petition is enclosed herewith."7/23 ::: Downloaded on - 27/08/2013 21:18:19 :::
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10 This, according to the Returned Candidate for the first
time, the correct summons issued as per the Representation of the People Act (for short "the R.P.Act") and High Court Rules made thereunder. It is stated that on 14 December 2012 when the summons were issued, the contesting Respondent and his counsel were absent.
In the meantime, the amendment order as granted to correct the typographical error is confirmed by the Supreme Court on 8 January 2013. The summons on Recrimination Petitioner was served on 17 January 2013. On 1 February 2013, the Recrimination Petitioner appeared before this Court. On 12 February 2013, the Returned Candidate filed Recrimination Petition No.1 of 2013 alleging corrupt practices against the Election Petitioner. He has also filed written statement to the main Election Petition on 14 February 2013.
11 The relevant Sections of R.P. Act are as under:-
86 Trial of election petitions.- (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.
Explanation.- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a0 of section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by 8/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 9 2-rpe1.13.sxw the Chief Justice for the trial of election petitions under sub- section (2) of section 80-A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation.-For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition."
(5) ....
(6) ....
(7) .....
87. Procedure before the High Court.- (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 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.]
97. Recrimination when seat claimed.-(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to 9/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 10 2-rpe1.13.sxw prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of [commencement of the trial], given notice to [the High Court] of his intention to do so and has also given the security and the further security referred to in sections 117 and 118, respectively.
(2) Every notice referred to in sub-section (1) shall be accompanied by the statement and [***] particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner."
The Court notice to appear is sufficient or the prescribed summons is necessary:-
12 The mandate of filing a proper Election Petition and/or not defective within a prescribed period is not in dispute. It is also cleared that the Recrimination Petition is also governed by the mandate of provisions that it should be filed within 14 days from the date of "commencement of trial". The Returned candidate, should give clear notice to the High Court and/or the other party about his intention to lead evidence in support of the same. There is no provisions referred, read and/or pointed out that this period of 14 days can be extended or enlarged or condoned.
13 The Apex Court while interpreting Section 97(1) proviso,
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1 has
in Anwari Basavaraj Patil & Ors. Vs. Siddaramaiah and Ors.
held that the period of 14 days prescribed under the proviso the Recrimination notice is comparable with the Election Petition and Section 5 of the Limitation Act does not apply to the filing of an Election Petition, it does not equally apply to the filing of the Recrimination Petition also.
The Supreme Court had also elaborated provisions in question in the following words.
"10. ..........We may also say that the proviso to sub section (1) of Section 97 which requires such a notice to be given to the High Court within fourteen days of the "date fixed for the respondents to appear before the High Court to answer the claim or claims" (reading the definition of "commencement of trial" into it) has also a particular meaning and object behind it. The idea is that the recrimination notice, if any, should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. If Section 5 does not apply to the filing of an election petition, it does not equally apply to the filing of the recrimination notice."
14 It is relevant to note that the Apex Court in Sreekumar Mukherjee Vs. Zainel Abedin & Ors. 2 while considering Section 86(4) and 97 of the People Ac has observed as under:-
1 (1993) SCC 636 2 (1999) SCC 558 11/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 12 2-rpe1.13.sxw
11. A plain reading of sub-section (4) of Section 86 shows that the trial of a petition as contemplated in the said sub-
section would start only from the date fixed for the respondents to appear before the High Court. The object of this provision seems to be that on the date on which the original respondents to the election petition appear before the High Court, they would be in a position to acquaint themselves with the pleadings and also the said service would give sufficient information about the election petition to the other persons concerned who are entitled to invoke the provision of sub- section (4) of Section 86 to make an application for impleadment, if they so desired within 14 days from the date so fixed for appearance of the original respondents. This view of ours finds support from the reading of Section 97 of the Act which provides for the filing of recrimination petition by the returned candidate or any other person. If the above argument of the appellant is to be accepted then this right of a person under Sections 86(4) and 97 can be very well defeated by indulging in methods by which service of original notice to the respondents could be delayed beyond 14 days of the date fixed in the original notice.".........
Election Petition commencement of Trial 15 The concept "commencement of trial" is settled but still for the purpose of Election Petition, governed by the R.P. Act and High Court Rules, need to be tested from the specific explanation given in Section 86(4) of the People Act which is applicable to Section 97 also.
As per this explanation, "a trial of the Petition shall be deemed to commence on the date fixed for the Respondents to appear before the High Court and answer the claim and/or claims made in the Petition".
12/23 ::: Downloaded on - 27/08/2013 21:18:19 :::ssm 13 2-rpe1.13.sxw The Respondent's appearance before the High Court is the relevant date which had triggered the period of limitation, so far as the trial is concerned. Therefore, once the Respondent/ Returned Candidate, who appeared before the High Court "the trial of a Petition shall be deemed to commence". Therefore, taking overall view of this Section 86 read with Section 97 and other provisions and as the period so prescribed is mandatory, the appearance of the Returned Candidate/Respondent before the Court, in my view, itself commenced the period of limitation to file Recrimination Petition within 14 days.
Effective service to appear:-
16 The term "to appear" is quite well settled. It is not specifically defined and/or explained under the R.P. Act. The provisions of Code of Civil Procedure (for short, the CPC") as recorded above, are required to be followed for the trial of any Election petition. The provisions of Evidence Act are also similarly applicable.
17 The learned Senior Counsel appearing for the Recrimination Petitioner has strongly relied upon the Rule 9 of the Bombay High Court Rules and contended that no summons were 13/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 14 2-rpe1.13.sxw issued. The summons issued on 14 December 2012 and as served on Respondent on 17 January 2013 to appear before the High Court and therefore, they filed their Recrimination Petition on 12 February 2013, the same is within limitation of 14 days. The submission is also made that the service of summons in formate is mandatory, which is required to be taken as a date of appearance and/or commencement of trial, as the same was fixed by the Court to answer the claim and/or the claims in the Petition. This in my view, is unacceptable submission as section 86(4) itself contemplates the Respondent to appear before the Court as fixed. In the present case, by order dated 23 July 2012 while admitting the Petition, notice was issued to the Respondent for final disposal which was returnable on 3 July 2013. The Hamdast was also allowed. The contesting Respondent received the notice stated to be delivered to his brother who resides with him in the same house. It is clear that, even as per the provisions of CPC the Order 5 Rule 13, the service can be made on any adult member of the family who is residing with him. There is no dispute that his brother resides with Respondent No.6 (Recrimination Petitioner).
18 Both the Senior Counsel appearing for the parties read and
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referred the summons/actual notice issued by the office. The contents of the first Court notice, as recorded above, itself shows that the clear information was given that the matter was listed for final disposal and directed to remain present either in person or through the advocate and also directed to remain present during the hearing in all subsequent dates till the disposal of the matter. In the notice it was made clear that if the party failed to remain present before the Court, the appropriate order would be passed even in their absence. It is also made clear that no further intimation shall be given, unless it is specifically ordered by the Court. The Recrimination Petitioner did appear, raise the objection and even pray to dismiss the Election Petition. It is relevant to note that once the objection so raised regarding the typographical error in the name of Returned Candidate and as noted in the reasoned judgment, the objection now to say that for want of summons as contemplated under Rule 9, there was no proper notice/summons issued "to appear" as contemplated under Section 86(4) explanation and 97, is unacceptable.
19 The Recrimination Petitioner filed this Petition on 12 February 2013 though the notice of Election Petition No. 1 of 2012 15/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 16 2-rpe1.13.sxw duly served upon the brother of the Recrimination Petitioner on 1 August 2012. The Court needs to see whether there was valid service of notice so issued by the Court or not. Once it is permissible to serve the notice and as such there is no bar to accept such notice by the adult family members and as there was no objection raised to that effect, except the objection about the name, and as the same was rejected, I am inclined to hold that the Election Petition was duly served on the Recrimination Petitioner/Returned Candidate on 1 August 2012 itself. Their initial objection as dismissed/rejected, in my view, that goes to the root and confirmed the service about the Election Petition on 1 August 2012 itself. It is settled that once the amendment is allowed, it goes to the root of the date of the Application itself. It is relevant to note even at that time when they moved such amendment Application, there was no such objection with regard to the defective service and/or defective notice. Once, the party appeared and contested the matter even to the extent of praying for dismissal of the Election Petition, to say now that they were not duly served for want of summons as contemplated under Rule 9, in my view, is unacceptable.16/23 ::: Downloaded on - 27/08/2013 21:18:19 :::
ssm 17 2-rpe1.13.sxw The statutory period of 14 days of limitation is unextendable:-
20 The issuance of summons again on 14 December 2012 which was made returnable on 1 February 2013, in no way sufficient to extent the statutory period. They were fully aware of the contents of the Election Petition, as well as, the contents raised therein against them and also the prayers so made.
21 The word "summons" and the concept of "issue and service of summons" is well-known in CPC so also its object and purpose. The notices so issued by the High Court based upon the order passed, was also intended to direct the Respondent to appear before the High Court and answer the claim and/or claims made in the Petition as the copy of the Election Petition was also served. The Recrimination Petitioner's submission now to enlarge the statutory period of 14 days from the date, so contended, of commencement of the trial just cannot be permitted to extend/enlarge by treating all the proceedings which commenced at least from the date of service of the first notice dated 23 July 2012, i.e. on 1 August 2012 in otiose and/or in vacuum.
Section 86 (4) explanation and other provisions required notice to appear. The defective notice, even if any, but as there was no 17/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 18 2-rpe1.13.sxw objection raised by the contesting Respondents and even by the office, as there was no such procedure to issue such notice and/or to admit the Election Petition, now to say that the summons as contemplated in Rule 9, if admittedly not served and therefore the Court must overlook all these technical defects and grant and/or extend the mandatory period of limitation, in my view, is unacceptable mode to extend the period of limitation which is not permissible under the Act and/or Rules made thereunder, specifically when there is nothing to show that such defective notice, for want of "prescribed summons", the Recrimination Petitioner/Returned Candidate suffered any prejudice and/or injustice.
22 The defect in format pursuance to the order passed by the Court, in no way sufficient in the present facts and circumstances of the case to extend the period of limitation, though admittedly the Recrimination Petitioner appeared and participated in the proceedings. The issue of wrong description, even if any, and the amendment so averred in no way changes the position of Returned Candidate (Respondent No. 6/Recrimination Petitioner) as the contention so raised was not accepted by the Court at any point of 18/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 19 2-rpe1.13.sxw time, neither even by the Supreme Court. Therefore, the second issuance of summons, even if any, in the present facts and circumstances, in no way sufficient to accept the case that the trial commenced after 17 January 2013, as the fresh summons were served.
23 It is relevant to note that Rule 10 of Bombay High Court Rules, itself permits the Petitioner to the service of summons would be sent to the Respondent to the address given by the Petitioner by registered post prepaid acknowledgement, such summons can additionally be served by registered post. The defective notice, even if any, as prescribed in Rules 9 and 10, in no way can prevail over the mandate of Sections, whereby it is made clear that the trial of Election Petition deemed to be commenced on the date fixed for Respondent to appear before the High Court. It is not the case that they have not received any notice and/or copy of Petition to answer claim and/or claims made in the Petition or they never appeared earlier.
24 In view of admitted position on record and the evidence so recorded above, the Judgments cited in support of their contention 19/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 20 2-rpe1.13.sxw that the Recrimination Petition is within limitation is also of no assistance. The facts and circumstances are totally different and so also the provisions of law. This is not the case of improper service of writ of summons. This is a case of not issuing the summons in the form as prescribed in the Rule. If the party, based upon the due notice appeared in the Court and even raised the objection to dismiss the Election Petition, cannot be permitted later on to say that though they appeared initially based upon the defective notice, the Second summons and/or notice so issued should be treated to appear for commencement of Election trial, is contrary to the clear provisions of law. The citation-(Bengal Chand Co. Vs. Durga Sankar Gouri Sankar) 3 is of no assistance. Once the contention with regard to the service of notice upon the real brother and/or wrong person and/or typographical error is rejected and as it is permissible mode of service of notice/summons, and if the alleged summons were duly served upon the same address and even to the same person in accordance with law, the issue with regard to the non-service and/or improper service and to treat the summons/ notices were not duly served, looses its importance. The citation of (Ramesh Chandra 3 1953 ILR 119 20/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 21 2-rpe1.13.sxw Chakerbutty Vs. Durga Chavan Chakerbutty & Ors.) 4 is also of no assistance on the facts itself. In Jagannath Shindu Rahane Vs. Manisha Manohar Nimkar 5 , the issue was totally different and so also the circumstances, apart from it is not material defects which goes to the root of the Petition, specially when the objection so raised earlier was already dismissed. It is not the case of non-supply of copy of the Petition and/or the documents. The defects, even if any, as noted above of typographical error as corrected, and once it is allowed, that in no way sufficient to accept the case to extend and/or enlarge the statutory period of limitation, failure to file Recrimination Petition from the date of commencement of the trial and/or from the first date of first appearance by the Recrimination Petitioner in the matter. The said Judgment is also therefore, is of no assistance to deal with the issue so raised in the Recrimination Petition in question. The submission that it is a special right conferred under the special law and the Court will have to seek answer to the questions raised within the four corners of the Act and the powers of the Court circumscribed by its provisions, in my view, support the case of the Election Petitioner, as it falls within the mandate of provisions of Act.
4 AIR 1922 Cal. 128
5 1996(5) Bom.C.R. 451
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The Recrimination Petition- Barred by limitation:-
25 The learned Senior counsel appearing for the Election Petitioner has relied on the following paragraphs also, in support of 6 his contentions Kailash Vs. Nanhku and Ors.
"(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 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 the 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 the 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 the power conferred by Article 225 of the Constitution on the one hand, and the rules of procedure contained in the CPC on the other hand, the former shall prevail over the latter."
26 The Court has no choice but to accept the provisions of 6 (2005) SCC 480 22/23 ::: Downloaded on - 27/08/2013 21:18:19 ::: ssm 23 2-rpe1.13.sxw Special law and its mandate including of the limitation so prescribed.
The technicality and/or issue revolving around the technicality of service of summons in prescribed format, in no way sufficient to say that the Court is testing the rights of the parties based upon the common law and/or the general law of CPC. The provisions of the R.P. Act, once are invoked, the general provisions for want of defective service, format of summons, in no way sufficient to accept the case of the Recrimination Petitioner. Therefore, taking overall view of the matter and for the reasons so recorded above, I am inclined to hold that the Recrimination Petition is barred by limitation. The Recrimination Petition is accordingly dismissed. The issue is answered accordingly.
27 In view of above, other issue Nos. 2 and 3 framed in Recrimination Petition, which are consequential to issue No.1, also stand disposed of. There shall be no order as to costs.
(ANOOP V. MOHTA, J.) 23/23 ::: Downloaded on - 27/08/2013 21:18:19 :::