Shrilal Janva v. Udairam Dhakad — 1980 DIGILAW 413 (RAJ)

S.K. Mal Lodha, J.—By this order, the application under section 5 of the Limitation Act (No. XXXVI of 1963) (for short the Act) read with S. 151 of the Code of Civil Procedure supported by the affidavit of Shri Virdhichand Jain, Advocate filed on behalf of the election-petitioner on October 22, 1980 will be disposed of. 2. The election-petitioner filed the election petition under Ss. 80 and 81 of the Representation of the People Act, 1951 (hereinafter referred to as the Act of 1951) on July 16. 1980 with a prayer that the election of the respondent may be declared void. The respondent filed the written statement on September 20, 1980 contesting the election petition Rejoinder to the reply was filed on October 7, 1980 Issues were framed on October 10. 1980 and it was ordered that the parties shall file the list of witnesses within 7 days from that day. The respondent filed the list of the witnesses on October 13, 1980. This list was within the time fixed by the Court. The election-petitioner, however, filed the list of witnesses along with an application under S. 5 of the Act read with S. 151 C.P.C. on October 22,1980 praying therein that the delay caused in filing the list of witnesses may be condoned and the list of witnesses may be taken on record and that a direction for summoning the witnesses may be made. It may be mentioned that October 17, 1980 to October 20, 1980 were holidays and the Court was closed. No written reply to the application was filed on behalf of the respondent. 3. I have heard Mr. R. Mehta, learned counsel for the election-petitioner and Mr R.C. Maheshwari, learned counsel for the respondent. 4. Learned counsel for the election-petitioner submitted that under S.5 of the Act, delay caused in not filing the list of witnesses within 7 days as ordered by this Court on October 10, 1980 may be condoned, for. the reasons given in the application which is supported by the affidavit of Shri Virdhi Chand Jain, Advocate, constitute sufficient cause. On the other hand, Mr. R.C. Maheshwari, learned counsel for the respondent argued that S. 5 of the Act cannot be invoked in this case and that the period of 7 days provided in r. 745-M of the Rajasthan High Court Rules, 1952 (for short the Rules, hereinafter) cannot be extended. On the other hand, Mr. R.C. Maheshwari, learned counsel for the respondent argued that S. 5 of the Act cannot be invoked in this case and that the period of 7 days provided in r. 745-M of the Rajasthan High Court Rules, 1952 (for short the Rules, hereinafter) cannot be extended. It was also submitted that even if S.5 of the Act is held to be applicable, in the facts and circumstances of this case, the reasons narrated by the election-petitioner in the application under S.5 of the Act read with S. 151 C.P.C. are not adequate to hold that there was sufficient cause as required by S.5 of the Act for condoning the delay. 5. I have bestowed my most careful and thoughtful consideration to the rival contentions raised by the learned counsel for the parties. 6. At this juncture, it will be useful to consider the relevant provisions of the Act, the Act of 1951 and the Rules. 7. Section 5 of the Act lays down that an application to which the section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. According to S.2 (j) of the Act period of limitation means the period of limitation prescribed for any suit, appeal or application by the Schedule appended to the Act and the "prescribed period" means the period of limitation computed in accordance with the provisions of the Act. Section 29 of the Act deal with Savings and sub-section (2) of S.29 reads as under : "S. 29(2). Section 29 of the Act deal with Savings and sub-section (2) of S.29 reads as under : "S. 29(2). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (in clusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law " Section 81 of the Act of 1951 lays down that an election petition calling in question any election may be presented by any candidate at such election or any elec-tor within 45 days from but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election are different the later of these two dates. Section 81 of the Act thus provides for the period of limitation for presentation of the election petition. Section 86 of the Act of 1951 deals with trial of election petitions. Under sub-section (4) of Section 86 of the Act of 1951 any candidates 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. The Explanation to sub section (4) of Section 86 provides that 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. Section 116-A of the Act of 1951 provides for preferring of the appeals to the Supreme Court and the period prescribed therein is 30 days from the date of the order of the High Court under Section 98 or Section 99. Section 116-A of the Act of 1951 provides for preferring of the appeals to the Supreme Court and the period prescribed therein is 30 days from the date of the order of the High Court under Section 98 or Section 99. It also makes mention that the Supreme Court may entertain the appeal after the expiry of the said period if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. Section 87 of the Act of 1951 lays down that subject to the provisions of the Act of 1951 and of any rules made therein, 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 the suits. 8. In exercise of the powers conferred by Section 46 of the Rajasthan High Court Ordinance, 1949 read with Article 225 of the Constitution of India and all other powers enabling it in that behalf, the High Court of Judicature for Raj. made the Rules in regard to election petitions under the Act of 1951. Rule 745-M which occurs in Chapter XXIX- A reads as under— "745-M. Issues will then be settled and the election petition will be posted for hearing. Within seven days of the settlement of issues, parties shall file a list of witnesses and pay the process-fees and the travelling allowance and the diet allowance for those of them who are required to be summoned. No party shall produce or obtain process to enforce the attendance of witnesses other than those contained in the above list: Provided that it will be in the discretion of the Judge to allow a party to produce witnesses in rebuttal not included in the list, on such terms as he may deem fit to impose, if there are sufficient reasons to do so." Under this rule within a period of 7 days of the settlement of issues, the par-tries are required to file the list of witnesses. It is also provided in the rule that no party shall be entitled to produce or obtain process to enforce the attendance of witnesses other than those contained in the above list. It is also provided in the rule that no party shall be entitled to produce or obtain process to enforce the attendance of witnesses other than those contained in the above list. According to proviso to r. 745-M, a discretion has been given to the Judge to allow a party to produce witnesses in rebuttal not included in the list on such terms as it may deem fit to do so. The Centra) Government has been empowered under Section 169 of the Act of 1951 after consulting the Election Commission by notification in the Official Gazette "to make rules for carrying out the purposes of the Act of 1951 by issuing a notification in the Official Gazette. Subsection (2) of Section 169 of the Act of 1951 provides that in particular and without prejudice to the generality of the foregoing power, the rules which may be framed by the Central Government may provide for all or any of the matters enumerated in clauses (a) to (l) of sub section (2) of Section 169 of the Act of 1951. Under the Act of 1951, there is no specific provision for framing of the rules in regard to the trial of election petitions and according to Section 87 of the Act of 1951, as stated above, subject to the provisions of the Act of 1951 and all the rules made thereunder, the High Court is to try the election petition in accordance with the procedure applicable under the Code of Civil Procedure, 1908 9. The question that, arises is whether the provisions contained in Section 5 of the Act apply so as to enable the Court to extend the period of 7 days provided in rule 745-M of the Rules for filing the list of witnesses. 10. Mr. Rajendra Mehta, learned counsel for the election-petitioner has placed reliance on Union of India Vs. Ram Kanwar (1). Mangu Ram vs. Delhi Municipality (2) and Pt. Bhonreylal Vs. Kunj Beharilal (3). 11. While agreeing with Punjab Co-op. Bank Vs. P.C. Press Co. (4), it was held in Union of Indias case (1) that rule 4 in Chapter I of the Punjab High Court Rules and Orders, Vol. Ram Kanwar (1). Mangu Ram vs. Delhi Municipality (2) and Pt. Bhonreylal Vs. Kunj Beharilal (3). 11. While agreeing with Punjab Co-op. Bank Vs. P.C. Press Co. (4), it was held in Union of Indias case (1) that rule 4 in Chapter I of the Punjab High Court Rules and Orders, Vol. V, framed by the High Court in exercise of the legislative power conferred upon the said High Court under clause 27 of the letters Patent is a law made in respect of special law covered by it and is a special law within the meaning of S. 29(2) of the Act. 12. Bhagwati, J. speaking for the Court in Mangurams case (2) in para 7 made the following observations: "There is an important departure made by the Limitation Act, 1963 in so far as the provision contained in Section 29, sub-section (2) is concerned. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29, sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of section 5, that it would stand displaced." 13. A learned Single Judge of this Court in Pt. Bhonreylals case (3) held that no period of limitation is prescribed under the Act for making applications under O.XVI, r. 1 but 3o days period is prescribed under r. l of O.XVI as amended by the Rajasthan High Court. This was a different period from the period prescribed under the Schedule within the meaning of Sec. 29(2) of the Act. The learned Judge was of the view that O.XVI, r.1 is a special law and prescribes a different period from the period prescribed by the Schedule and as such it falls under S. 29(2) and S. 5 of the Act applies. In this view of the matter, the learned Judge held that the court has got power to extend the period of limitation prescribed under O.XVI, r.1 if it is satisfied that there was sufficient cause for not making such application within the prescribed period. 14. In this view of the matter, the learned Judge held that the court has got power to extend the period of limitation prescribed under O.XVI, r.1 if it is satisfied that there was sufficient cause for not making such application within the prescribed period. 14. In Harish Chandra vs. Triloki Singh (5), it was ruled that the provisions of Chapter HI read as a whole clearly show that trial is used as meaning the entire proceedings before the Tribunal from the time when the petition is transferred to it under S. 86 of the Act of 1951 until the pronouncement of the award. 15. In K.K. Rao vs. B.N. Reddi (6), on which, reliance was placed by Mr. Maheshwari, learned counsel for the respondent, it was held that an analysis of the provisions of the Act of 1951 is sufficient to show that the trial of an election petition is not the same thing as the trial of a suit. In para 14 of the report, it was further observed as under : "It is well settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation. But an election petition stands on a different footing. The trial of such a petition and the powers of the Court in respect thereof are all circumscribed by the Act. The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a Court of law unless the application thereof has been excluded by any enactment: the extent of such application is governed by Section 29(2) of the Limitation Act. In our opinion however the Limitation Act cannot apply to proceedings like an election petition in as much as the Representation of the People Act is a complete and self-contained code which does not admit of the introducement of the principles or the provisions of law contained in the Indian Limitation Act." After comparing the provisions of Ss. In our opinion however the Limitation Act cannot apply to proceedings like an election petition in as much as the Representation of the People Act is a complete and self-contained code which does not admit of the introducement of the principles or the provisions of law contained in the Indian Limitation Act." After comparing the provisions of Ss. 81, 82 and 117 and 116A of the Act of 1951, their Lordships of the Supreme Court were of the opinion that there is no section in the Act of 1951 which equates an order made by the High Court under S.98 or S.99 to a decree passed by a civil court subordinate to the High Court and that an appeal being a creature of a statute the rights conferred on the appellant must be found within the four corners of the Act of 1951 and further that sub-section (2) of S.116-A expressly gives the Supreme Court the discretion and authority to entertain an appeal after the expiry of the period of thirty days. However, no right has been given to the High Court to entertain an election petition which does not comply with the provisions of S.81, S 82 or S.117. In para 20 of the report, it was observed as under: "It is to be noted however that even though the Indian Limitation Act, 1963 does not apply to an election petition provisions like sections 9 and 10 of the General Clauses Act, 1897 providing for computation of time which are in pari materia with sections 12(1) and 4 of the Limitation Act would apply to such a petition." 16. The other authority on which strong reliance was placed by the learned counsel for the respondent is Hukumdev vs. Lalit Narain (7). What was held in that case was that S.5 of the Act does not apply to an election petition under the Act of 1951. The other authority on which strong reliance was placed by the learned counsel for the respondent is Hukumdev vs. Lalit Narain (7). What was held in that case was that S.5 of the Act does not apply to an election petition under the Act of 1951. The reason given in that case is that if the scheme of the special law and the nature of the remedy provided therein amounts to complete code itself which alone is intended by the legislature to govern the matters provided in the special law, then the provisions of the Act must be held to be necessarily excluded and on the basis of that reasoning, it was held that the provisions of S. 5 of the Act do not govern the filing of the election petition or the trial. In Vidyacharan vs. Khubchand (8), the provisions of sub-section (3) of S.116A of the Act of 1951 and S.29(2) of the Act came up for consideration and in that connection, it was observed as follows: "The contention that sub S. (3) of S. 116A of the Act not only provides a period of limitation for an appeal, but also the circumstances under which the delay can be excused, indicating thereby that the general provisions of the Limitation Act are excluded thereby is not correct. There are two answers to this argument. Firstly, S. 29 (2)(a) of the Limitation Act speaks of express exclusion but there is no express exclusion in sub-s. (3) of S. 116A of the Act; secondly, the proviso from which an implied exclusion is sought to be drawn does not lead to any such necessary implication. The proviso has become necessary, because, if the proviso was not enacted, S. 29 (2)(b) of the Limitation Act would have excluded the operation of S. 5 of the Limitation Act with the result that even if a sufficient cause for the delay existed, the High Court would have been helpless to excuse the delay. The proviso has become necessary, because, if the proviso was not enacted, S. 29 (2)(b) of the Limitation Act would have excluded the operation of S. 5 of the Limitation Act with the result that even if a sufficient cause for the delay existed, the High Court would have been helpless to excuse the delay. The proviso to sub-s. (3) of S. 116 A of the Act thus only restores the power denied to the Court under S. 29(2){b) of the Limitation Act." These observations were considered by Jagat Narayan, J. as he then was, in Hakum Ghulam vs. Zahoor (9) and the learned Judge was of the opinion that from the above observations of the Supreme Court, it is clear that exclusion by necessary implication amounts to express exclusion. In that view of the matter, the learned Judge held that S. 14 of the Act is not applicable to a petition under S.9 of the Insolvency Act. An argument was raised before the learned Judge that S.5 of the Act is applicable by virtue of S. 78 of the Insolvency Act The learned Judge was of the opinion that S.5 of the Act was not applicable to a petition under S.9 of the Insolvency Act. 17. In Raja Pande vs. Sheopujan Pande (10), Iqbal Ahmad C.J. and Plowden. J (Dar, J. dissenting) held that if a special or local law is a complete code in the matter of limitation or if the phraseology of the sections enumerated in S.29 (2) of the Act makes those sections inapplicable to proceedings under @ special or local law, the application of those sections to the special or local law must be deemed to have been expressly excluded by the Legislature. 18. Relying on Harish Chandras case (5). K.K. Roas case (6), Hukum-devs case (7) and the aforesaid Allahabad and Lahore decisions and having regard to the provisions contained in Ss. 80, 86 (4) 116A (3) of the Act of 1951 and r. 745 M of the Rules, I am of opinion that S. 5 of the Limitation Act is not applicable to the case in hand and the delay caused in not filing the list within the time fixed by the court under r. 745 M of the Rules cannot be condoned, for, S.5 of the Act is inapplicable to the proceedings under the Act of 1951. 19. 19. Even if I were to hold that S.5 of the Act applies, the election petitioner has failed to make out any sufficient cause for not filing the list of witnesses within 7 days from the date of the settlement of the issues as required by r.745-M of the Rules. In other words, there is no satisfactory explanation for not filing the list of witnesses within the time fixed by the Court. In the application under S. 5. of the Act read with S. 151 C.P.C. which is signed by Shri Birad Mal Singhvi and Shri R. Mehta Advocates for the election petitioner, it has been stated that the petitioners counsel sent a telegram on October 10, 1980 to Shri Virdhi Chand lain, local counsel for the petitioner at Chittorgarh and this telegram was actually received by him on October 16, 1980. After the receipt of the telegram, he gave it to the election-petitioner on October 17, 1980. The petitioner thought that as October 17, 1980 to October 20, 1980 were holidays, he would personally reach Jodhpur on October 21, 1980 i.e. on the reopening day and file the list of witnesses after consulting his counsel. He is said to have fallen ill on October 20, 1980 and was not in a position to undertake the journey from Chittorgarh to Jodhpur. The petitioner could not contact his counsel at Jodhpur on telephone to communicate the list of witnesses and to instruct him to file the same. Shri Vridhichand Jain, Advocate of Chittorgarh was asked to proceed to Jodhpur and to give the list of witnesses to his counsel at Jodhpur on his behalf as he was ill and unable to proceed to Jodhpur. He came to Jodnpur on October 22, 1980 and handed over the list to the counsel for the petitioner, which was filedon that day. This application is supported by the affidavit of Shri Vridhichand Jain, Advocate. He has stated in his affidavit that the petitioner was ill and was unable to undertake the journey from Chittorgarh to Jodhpur and that he received the telegram on October 16, 1980 and handed over the same to the petitioner on October 17, 1980. This application is supported by the affidavit of Shri Vridhichand Jain, Advocate. He has stated in his affidavit that the petitioner was ill and was unable to undertake the journey from Chittorgarh to Jodhpur and that he received the telegram on October 16, 1980 and handed over the same to the petitioner on October 17, 1980. On being asked by the election petitioner on October 22, 1980 to proceed to Jodhpur as on account of his illness, he could not undertake journey to Jodhpur, Shri Jain handed over the list to the counsel for the petitioner as per instructions of the election petitioner. No affidavit of the petitioner has been filed in support of the facts stated in the application which were within his knowledge. The application as well as the affidavit of Shri Vridhichand Jain Advocate are conspicuously silent with regard to the particular illness with which the election petitioner was suffering. The telegram which is said to have been sent by the learned counsel for the election-petitioner on October 10, 1980 and which reached on October 16, 1980 has not been placed on record to show that in fact it reached on October 16, 1980. There is no documentary evidence on the record to show that it took 7 days including the date when the telegram is said to have been sent to reach the local lawyer Shri Vridhichand Jain, Advocate at Chittorgarh. The receipt showing that telegram was sent on October 10, 1980 has also not been filed. A perusal of the power filed on behalf of the election-petitioner shows that Shri L R. Mehta, Shri Biradmal Singhvi and Shri Rajendra Mehta were engaged by the election-petitioner to appear, plead and act on his behalf in the election-petition. The application under S.5 of the Act read with S.151 C.P.C. is signed by Shri Biradmal Singhvi and Shri Rajendra Mehta and it was presented by Shri Rajendra Mehta. It is not clear from the application whether the telegram was sent by Shri Biradmal Singhvi or by Shri L.R. Mehta or Shri Rajendra Mehta. In the absence of the necessary details, it is difficult to accept the facts stated in para 6 of the application which are not supported by any affidavit or other documentary evidence. It is not clear from the application whether the telegram was sent by Shri Biradmal Singhvi or by Shri L.R. Mehta or Shri Rajendra Mehta. In the absence of the necessary details, it is difficult to accept the facts stated in para 6 of the application which are not supported by any affidavit or other documentary evidence. Apart from the fact that the necessary details on the basis of which some verification could be made with respect to the facts stated in para 6 of the application, no sufficient cause has been made out for not filing the list of the witnesses within the time fixed by the court. In the absence of sufficient cause, delay in not filing the list of witnesses cannot be condoned. 20. Learned counsel for the election-petitioner next contended that the period of 7 days provided under r. 745-M can be extended under the inherent powers of the court as the provisions of the Civil Procedure Code are applicable as nearly as possible to the trial of the election petition as provided in S. 87 of the Act of 1951. This submission has necessitated the examination of Rajendra Kumari Bajpai vs. Ram Adhar Yadav (11). which was cited by the learned counsel for the petitioner. It was laid down therein that a perusal of S. 87 leads to the irresistible conclusion that election petition 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 should be tried like ordinary civil suits. The question was whether the provisions of O.XI and OX apply to the trial of an election petition or not ? It was held that S. 87 of the Act of 1951 is of the widest amplitude so as to cover the entire procedure mentioned in the Code of C.P. 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 or by necessary intendment excluded by the Act and that subject to these two exceptions, S. 87 is very wide in connotation. This authority is not of any avail to the election petitioner because what I am called upon to decide is whether under S. 151 C.P.C. the period prescribed for filing the list of witn-esses under r. 745-M of the Rules can be extended or not. The rules in regard to election petition were framed in exercise of the powers conferred by S. 46 of the Rajasthan High Court Ordinance and under Article 225 of the Constitution. In Arjun Singh vs. Mohindra Kumar (12), their Lordships of the Supreme Court observed as follows : "It is sufficient if we proceed on the accepted and admitted limitations to the existence of such a jurisdiction. It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates " The powers under S. 151 C.P.C. can only be exercised to secure the ends of the justice or to prevent the abuse of the process of the court. The power is discretionary and no inherent power can be exercised so as to conflict with sound, general principles of law. It will not be proper to travel beyond that under the garb that for securing the ends of justice it has been so necessitated. The inherent powers cannot be invoked for extending the time provided under r. 745-M particularly when S. 5 of the Act has been held to be inapplicable In these circumstances, the period for filing the list of witnesses cannot be extended as prayed for by the election-petition in exercise of the inherent powers under S. 151 C.P.C. 21. For the reasons aforesaid, the application under S. 5 of the Act read with S. 151 C.P.C. filed on behalf of the election petitioner on October 22, 1980 is dismissed.