Madras High Court
The Election vs Sesha Aaiyar on 18 September, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18/09/2012 CORAM THE HON'BLE MR.JUSTICE K.VENKATARAMAN O.A.No.735 of 2012 in E.L.P.No.12 of 2011 ORDER
The election petitioner has come up with the present application for grant of interim injunction restraining the 5th respondent (Returned Candidate) from functioning and acting as a Member of Legislative Assembly at 78, Rishivanthiyam Assembly Constituency and as well as the Leader of Opposition to Tamil Nadu Legislative Assembly till the disposal of the election petition in E.L.P.No.12 of 2011.
2. It is the case of the applicant that she has filed the election petition to declare the order of the Returning Officer dated 28.3.2011 rejecting her nomination as improper, invalid and illegal and also to set aside the election of the 5th respondent, the Returned Candidate from the Rishivanthiyam Assembly Constituency. The further case of the applicant is that she made out a strong and sufficient ground in her election petition and if her election petition is allowed, the entire functioning of the Returned Candidate and his function as Leader of opposition to the Tamil Nadu Legislative Assembly are liable to be questionable and voidable. Therefore, it has become necessary for her to seek an order of interim injunction restraining him from functioning and acting as Member of the Legislative Assembly as well as the Leader of Opposition.
3. Counter affidavit has been filed on behalf of the 5th respondent / Returned Candidate. The following statements are made in the counter affidavit:-
(a) The election petitioner has no locus standi to seek an order of interim injunction. It is a clear abuse of process of this Court.
(b) There is a specific bar under Section 84 of the Representation of the People Act, 1951. The said section contemplates that the petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected. Therefore, the applicant cannot seek interim injunction against him.
(c) An application under Order 39 Rule 1 and 2 C.P.C. is not applicable to the Representation of People Act, 1951. Even assuming that the election petition is a suit, it cannot be said that it is a suit for restraining the 5th respondent from committing any breach of conduct or other injury of any kind. Interim injunction as provided under Order 39 Rule 1 and 2 C.P.C. can be granted only if the suit is for restraining the defendant from committing breach of contract or other injury of any kind. Therefore, the application under Order 39 Rule 1 and 2 C.P.C. is not applicable to the election petition.
(d) The election petition was not aimed at restraining the opposite party from committing the breach of contract.
Thus, counter affidavit seeks for the dismissal of the present application.
4. On the above pleadings, I have heard the applicant / party-in-person and the learned Senior Counsel appearing for the Returned Candidate.
5. The first and foremost submission that was made by the learned counsel appearing for the Returned Candidate is that the application under Order 39 Rule 1 and 2 C.P.C. to restrain the Returned Candidate from functioning and acting as a Member of Legislative Assembly as well as the Leader of Opposition to Tamil Nadu Legislative Assembly is not maintainable. In support of this contention, the learned counsel appearing for the Returned Candidate relied on the following judgments:-
(i) AIR 1924 MADRAS 797 Venkatasubbiah Chettiar vs. Sesha Aaiyar.
(ii) AIR 1963 ALLAHABAD 518 Rameshwar Dayal vs. Sub Divisional Officer, Ghatampur and others.
(iii) AIR 1972 GOA, DAMAN & DIU 14 G.Y. Bhandare vs. Erasmo de Jesus Jack Sequiers and others.
(iv) AIR 1958 SUPREME COURT 698 Inamati Mallappa Basappa vs. Desai Basavaraj Ayyappa and others.
(v) AIR 1967 BOMBAY 317 Jagannath Pundlik Date and others vs. Sukhdeo Onkar Wankhede and others.
(vi) (1994) 106 PLR 671 Sukhdev Singh v. Executive Magistrate And Ors.
(vii) (1980)2 GLR 1 Somabhai Kacharadas Patel vs. Patel Becharbhai Shambhubhai and ...
(viii) (2011) 11 SUPREME COURT CASES 786 Kalyan Singh Chouhan vs. C.P.Joshi.
(ix) (2005) 4 SUPREME COURT CASES 480 Kailash vs. Nanhku and others.
(X) AIR 1958 SUPREME COURT 687 K.Kamawraja Nadar vs. Kunju Thevar and others.
(xi) 2008 (2) CTC 51 Dr.M.Thirunavukarasu vs. Indian Psychiatric Society Tribunal, rep. by its Chairman, Prof. Shridhar Sharma and others.
6. However, it is contended by the applicant / party-in-person that an application under Order 39 Rule 1 and 2 C.P.C. will be applicable to the election cases. In this connection, she has relied on the judgment of the High Court of Kerala at Ernakulam in the case of Prahladan vs. Varkala Kahar, made in Election Petition No.8 of 2011 dated 21.8.2012 and the judgment reported in AIR 1972 GOA, DAMAN & DIU para 14 G.Y.Bhandare v. Erasmo de Jesus Jack Sequeira and others.
7. The first question that requires to be answered is, whether the provisions of Civil Procedure Code would be applicable to election cases or not.
8. The said question was considered by the Hon'ble Apex Court in the judgment reported in AIR 1987 SUPREME COURT 1577, Dhartipakar Madan Lak Agarwal vs. Shri.Rajiv Gandhi, and it has been held that the procedure contemplated under Civil Procedure Code is applicable to the election petitions as far as possible. Paragraph 8 of the said judgment is usefully extracted here under:-
" Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the 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 to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, Order VI Rule 16 and Order VI Rule 17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. On a combined reading of Sections 81, 83, 86 and 87 of the Act, it is apparent that those paragraphs of a petition which do not disclose any cause of action are liable to be struck off under Order VI Rule 16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI Rule 16 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VI Rule 11."
9. In yet another decision reported in (2009) 10 Supreme Court Cases 541, Ram Sukh vs. Dinesh Aggarwal, the Hon'ble Apex Court in Paragraph No.18, has held as follows:-
" 18. Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order VI Rule 16 and Order VII Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the Electorate have reposed confidence in him. The submission, therefore, must fail....
10. Further, before answering the said question, it would be useful to extract Section 87 of the Representation of the People Act, 1951, (hereinafter referred to as the Act) and the same is extracted hereunder:-
" 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 the Act, be deemed to apply in all respects to the trial of an election petition."
In view of the said provision and also in view of the judgments referred to above, I am of the considered view that the procedure contemplated under Civil Procedure Code is applicable to the election cases as far as possible.
11. The next question that arises for consideration is, whether an application under Order 39 Rule 1 and 2 C.P.C., is maintainable in the election petition.
12. The prayer sought for by the applicant / party-in-person is for grant of interim injunction restraining the Returned Candidate from functioning and acting as a Member of Legislative Assembly at 78, Rishivanthiyam Assembly Constituency and as well as the Leader of Opposition to Tamil Nadu Legislative Assembly till the e disposal of the election petition.
13. In the judgment reported in 1963 Allahabad 518, which was relied on by the learned Senior Counsel appearing for the Returned Candidate, the question that arose for consideration is, whether the Sub Divisional Officer, who is hearing the election petition, has got powers conferred upon Civil Courts by Sections 94 and 151 and also Order 39 and Rule 41 C.P.C. It has been held therein that he has no such power. Paragraph 8 of the said judgment is thus, usefully extracted hereunder:-
"8. Section 151 expressly speaks of 'power' to make orders. Whatever may be said in respect of orders of a procedural nature, orders regarding matters not covered by the Code are not orders regarding procedure but are an exercise of power. Injunction is a relief according to Sections 52 and 53 of the Specific Relief Act, and a relief is a matter of power, not procedure. We are, therefore, of the opinion that a Sub-Divisional Officer hearing an election petition has not the powers conferred upon Civil Courts by Sections 94 and 151 and Orders 39 and 41 C.P.C."
14. In paragraph 13 of the said judgment, it has been further held as follows:-
"13. In the result we find that even if the Sub-Divisional Officer had all the powers that are conferred by the C.P.C., he could not grant the interim relief sought for."
15. Further, in paragraph 17, it has been held that only those Courts which have got inherent power to grant interim injunction, are competent to pass any orders that they consider necessary in the interest of justice, even though they are not covered by express provisions of the laws of procedure. Paragraph 17 of the said judgment is usefully extracted hereunder:-
"17. Sri Gopi Nath's last resort was to the inherent powers. The inherent powers are of a Court and we do not accept that an election tribunal is a Court. Merely because it records evidence, hears parties and decides certain disputes between them, it does not become a Court, which is invested with the power of making any order that it considers necessary in the interest of justice or to prevent abuse of the process of Court. Courts derived authority from the Crown, but election tribunals do not and there is no question of their doing justice regardless of rules of procedure. They are created by the statue to decide certain disputes and are bound to decide them strictly according to law after following the prescribed procedure and have jurisdiction to do only that they are expressly empowered to do. Only those Courts which have the general jurisdiction to do justice are competent to pass any orders that they consider necessary in the interest of justice, even though they are not covered by express provisions of the laws of procedure. ... "
16. However, the Representation of the People Act, 1951 was amended in the year 1966 and Section 92 of the Act prior to the amendment was repealed. The present Section 87 of the Act provides that the High Court subject to the provisions of the Act and of any rules made thereunder shall try election petitions as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. When Section 92 has been repealed, the decision of the Allahabad High Court cited on behalf of the Returned Candidate may not be of any use to him.
17. In AIR 1958 SUPREME COURT 698, the question that came up for consideration was, whether the election tribunal has got power to allow withdrawal or abandonment of part of the claim before them. It was held that the election tribunal has no such power. The said judgment may not come to the rescue of the Returned Candidate.
18. The judgment reported in AIR 1967 BOMBAY 317, which was relied on by the learned Senior Counsel appearing for the Returned Candidate, has not dealt with the question as to whether the injunction application is maintainable or not in the election petition. In paragraph 3 of the said judgment, it has been held as follows:-
"3. Mr.Manohar contends that the Civil Judge acting under the provisions of S.15 of the said Act acts as a persona designata and therefore, he has no power to issue an interim injunction restraining any of the elected members from voting at the election of the Sarpanch. It has been held that the Civil Judge acting under Section 15 is not a Court but merely a persona designata. It is not necessary, however, to decide whether or not he has got all the powers of a Civil Court while holding an enquiry and whether the powers of granting interim injunction are powers which are exercisable during the enquiry by him. For the purposes of this matter we will assume that the Civil Judge has by reason of section 15(2) all the powers of a Civil Court."
Hence, the said judgment may not be of any use to the Returned Candidate to decide the question as to whether an application under Order 39 Rule 1 and 2 C.P.C. could be invoked in election petition.
19. In (1994) 106 PLR 671, in paragraph 4, it has been held as follows:-
"4. ... The Election Tribunal under the provisions of the Punjab Gram Panchayat Act has got limited jurisdiction to deal with election petition and has got no authority whatsoever in passing any interim order restraining a successful candidate from participating in the proceedings of the Gram Panchayat. There is absolutely no provision in the Act authorising the Tribunal to pass restraint orders. The provisions of Civil Procedure Code do apply in general for the purpose of trying an election petition as if it is a suit because evidence has to be produced by the parties. However, the provisions of Order 39 Rules 1 and 2 of Code of Civil Procedure as such have not been made applicable authorising the Tribunal to grant injunction against the successful candidate. If the Legislature intended to vest any such power in the Tribunal, the intention could be demonstrated by enacting a specific provision. In our view, such provision has not been made in the Gram Panchayat Act for obvious reasons. ..."
The said judgment also does not answer the question as to whether the High Court trying election petition, has got jurisdiction to grant injunction as envisaged under Order 39 Rule 1 and 2 C.P.C.
20. Even in the judgment reported in (1980) 2 GLR 1, relied on by the learned Senior Counsel appearing for the Returned Candidate, the question that arose for consideration was not whether the High Court dealing with election petition, has got power to grant injunction as enumerated under Order 39 Rule 1 and 2 C.P.C. but, however, the question that came up for consideration was whether the election tribunal has got power to grant interim injunction and whether an appeal against the grant of interim injunction is maintainable.
21. Even in the judgment reported in (2011) 11 Supreme Court Cases 786, the Hon'ble Apex Court has held in paragraph 13 as follows:-
"13. In Kailash v. Nanhku, this Court held that the trial of an election petition is entirely different from the trial of a civil suit, as in a civil suit trial commences on framing of the issues while trial of an election petition encompasses all the proceedings commencing from the filing of the election petition up to the date of decision. Therefore, the procedure provided for the trial of civil suits under CPC is not applicable in its entirety to the trial of the election petition. For the purpose of the election petition, the word 'trial' includes the entire proceedings commencing from the time of filing the election petition till the pronouncement of the judgment. The applicability of the procedure in the Election Tribunal is circumscribed by two riders: firstly, the procedure prescribed in CPC is applicable only 'as nearly as may be', and secondly, CPC would give way to any provisions of the Act or any rules made thereunder. Therefore, the procedure prescribed in CPC applies to election trial with flexibility and only as guidelines."
22. In (2005) 4 Supreme Court Cases 480, the power of the Court to permit extension of time for filing written statement and the time prescribed under Order 8 Rule 1 C.P.C. and the proviso thereto came in for consideration. Incidentally, it has been held by the Hon'ble Apex Court in paragraph 46, clause (ii) of the said judgment as follows:-
" (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".
Thus, the said judgment does not directly answer the question raised in the present application.
23. Yet another decision relied on by the learned Senior Counsel appearing for the Returned Candidate is reported in AIR 1958 SUPREME COURT 687. Even the said judgment does not touch the issue raised in the present application.
24. However, in AIR 1972 GOA, DAMAN & DIU para 14, it has been held that "when according to Section 87 noted above all the powers under the Civil P.C. can be exercised by the election tribunal it will have to be said that that tribunal has jurisdiction to grant temporary injunction".
25. Thus, considering the provisions of Section 87 of the Act and the decisions of the Hon'ble Apex Court referred to above, I am of the considered view that when the procedure contemplated in Civil Procedure Code is applicable to the election petitions, even an application under Order 39 Rule 1 and 2 C.P.C. is maintainable, if it warrants, that too, in exceptional cases.
26. The next question that has to be considered is, whether the order of interim injunction as sought for by the applicant / party-in-person can be granted or not.
27. In the judgment reported in AIR 1963 Allahabad 518, which was relied on by the learned Senior Counsel appearing for the Returned Candidate, in paragraph 10, it has been held as follows:-
" 10. An election petition, though it is deemed to be a suit, cannot be said to be a suit for injunction; at the most it may be said to be a suit for declaration with consequential relief. In Gur Prasad v. Rameshwar Prasad, AIR 1933 All 344, a Bench of this Court granted temporary injunction in a suit for declaration that the plaintiffs were the directors of a company and not the defendants; it was not disputed in that case that temporary injunction could be granted. Consequently, that case is no authority for the proposition that an election petition is a petition for injunction. Mohamed Ekram Khan v. Mirza Muhammad Bakar, AIR 1935 All 106, also is no authority because the suit there was expressly for injunction. We hold that neither is the election petition a petition for injunction nor are the opposite parties alleged to be committing any injury to the appellant which they might be restrained from committing. Reliance on O.39 R.2, is, therefore, in vain."
28. In the judgment reported in AIR 1967 BOMBAY 317, in paragraphs 4, 5 and 7, it has been held as follows:-
"4. A Civil Court can grant injunction only under Order 39 Rules 1 and 2, Evidently rule 1 has no application, Rule 2 applies only if conditions thereof are satisfied.
The rule 2 so far as relevant reads:-
"In any suit (1) for restraining the defendant from committing a breach of contract or (2) other injury or any kind ... apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of. "
We may assume that though election petition is not a suit it may even be treated as suit. The first party cannot apply for there is no question of contract. In order to bring the case within the second part the applicant must show some legal injury of some kind.
5. In order to prove legal injury the applicant must establish that he has a legal right to do something and the opponent prevents him from the exercise of such right. Unless a right is alleged and / or shown to exist prima facie, there can be no question of any breach of that right. The question then is whether the applicant has a right to do that what he wants to prevent the defendant from doing.
7. Apart from this, it is impossible under the provisions of the above Act to countenance the above contention that elected representatives of the people can be prevented from exercising their right of the voting at a meeting of the Panchayat during the pendency of an election petition under Section 15 of the Act. ..."
29. In the judgment reported in (1994) 106 PLR 671, it has been held in paragraph 8 as follows:-
"8. ... Where in any suit it is proved by affidavit or otherwise:
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, orintends, to remove or dispose of his property with a view to defrauding his creditors, or
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction ...
Thus it is clear that Order 39 Rule 1 of the Code of Civil Procedure can be invoked only if there are disputes as to property and in no other circumstances.
30. In AIR 1972 GOA, DAMAN & DIU para 14, though it has been held that the Courts have got power to grant injunction under Order 39 Rule 1 and 2 C.P.C., but, however, held that election petition is not filed for the purposes mentioned in Order 9 Rule 2 C.P.C. and hence, temporary injunction cannot be granted. Paragraph 2 of the said judgment is usefully extracted hereunder:-
"2. The point now to be determined is whether the petition is fit to be allowed. The petitioner contends that he filed this petition under O.39 R.2 Civil P.C. I am unable to understand how this petition can come under that Rule. Even if it is considered that the election petition is a suit it cannot be said that it is a suit for restraining the respondent from committing any breach of contract or other injury of any kind. Temporary injunction under Order 39 Rule 2 can be granted only if the suit is for restraining the defendant from committing breach of contract or other injury of any kind. The election petition was not filed for that purpose and so this petition which is for granting the temporary injunction cannot be granted. The petition is rejected."
31. The applicant / party-in-person has filed the election petition for the following reliefs:-
" A. Declare the fourth respondent order dated 28.3.2011 rejecting the petitioner's nomination papers filed for contest in 78, Rishivanthiyam Assembly Constituency as improper, invalid and illegal and also set aside the election of the 5th respondent from 78, Rishivanthiam Assembly Constituency of the Tamil Nadu Legislative Assembly.
B. Consequently declare the election of returned candidate namely the 5th respondent herein from No.78, Rishivanthiyam Assembly Constituency, State of Tamil Nadu in the election held on 13.4.2011 and the declaration of result on 13.5.2011 as illegal and null and void."
32. The main grievance of the applicant is against the rejection of her nomination by the Returning Officer. Whether the rejection of her nomination is valid or not, has to be decided in the final hearing after full-fledged trial. While so, it is not justifiable to grant interim injunction restraining the Returned Candidate from functioning and acting as a Member of Legislative Assembly at 78, Rishivanthiyam Assembly Constituency and as well as the Leader of Opposition to Tamil Nadu Legislative Assembly till the disposal of the election petition. One can understand if an allegation of corrupt practice was made against the Returned Candidate, which requires this Court to consider as to whether the Returned Candidate, who is facing certain charges, could be allowed to function as a Member of Legislative Assembly and as well as the Leader of Opposition to Tamil Nadu Legislative Assembly. But, no allegation of corrupt practice was made against the Returned Candidate. Hence, I am of the considered view that granting of interim injunction at this stage restraining the Returned Candidate from functioning as a Member of Legislative Assembly and as well as the Leader of Opposition to Tamil Nadu Legislative Assembly may not be justifiable.
33. The judgment relied on by the applicant, which was set out in the present application and the written arguments in support of her case on the point that the application under Order 39 Rule 1 and 2 C.P.C. is applicable in election petition, will not come to the rescue of the applicant to justify an order of interim injunction restraining the Returned Candidate from functioning as a Member of Legislative Assembly and as well as the Leader of Opposition to Tamil Nadu Legislative Assembly.
34. In view of the discussions made above and the catena of judgments referred to above, I am of the considered view that the relief of interim injunction that has been sought for by the applicant / party-in-person cannot be granted. The applicant, who is sure of success in the election petition on the ground that her nomination has been returned unjustifiably, shall take all endeavour to see to it that the trial of the election petition commences and complete at the earliest, instead of filing applications after applications, which will only stall the furtherance of the trial in the election petition.
35. Thus, the question that requires to be answered is held in the following terms:-
(i) The procedures contemplated under the Code of Civil Procedure are applicable to the election petitions as far as possible.
(ii) The application under Order 39 Rule 1 and 2 C.P.C. for interim injunction is maintainable in the election petitions in exceptional cases.
(iii) Considering the facts of the case set out in the election petition, the prayer sought for by the petitioner viz., to grant an order of interim injunction restraining the Returned Candidate from functioning and acting as a Member of Legislative Assembly at 78, Rishivanthiyam Assembly Constituency and as well as the Leader of Opposition to Tamil Nadu Legislative Assembly till the disposal of the election petition, cannot be granted.
36. In fine, the present application stands dismissed.
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