BHAGABAT BEHERA v. SITAKANTA MISRA — 1997 DIGILAW 82 (ORI)

P. K. MISRA, J. ( 1 ) THIS application has been filed by the respondent No. 1 to take up Issue No. 1 for preliminary hearing and to dismiss the election petition for non-compliance with the provisions of Sections 81 and 83 of the Representation of the People Act (hereinafter called, 'the Act') and Rule 94 of the Conduct of Elections Rules, 1961 (hereinafter called, 'the Rules' ). ( 2 ) IN the election petition, the election of respondent No. 1 has been challenged inter alia on the ground that the respondent No. 1 has resorted to corrupt practice. After filing of written statement issues have been framed. Issue No. 1 framed by order dated 7-2-1996 relates to the question of maintainability of the election petition. The present application purporting to be one under Order 7, Rule 11 and Order 6, Rule 16 of the Code of Civil Procedure (hereinafter called, 'the Code') read with Sections 83 ad 86 of the Act and Rule 94a of the Rules has been filed on 3-3-1997 after evidence of a few witnesses had been recorded. In the present petition, it is mainly contended that the affidavit in support of the allegations relating to corrupt practice is not in accordance with Rule 94a and Form No. 25 prescribed thereunder. It has been asserted in the petition that though under Section 81 (3) of the Act a true copy of the petition including the affidavit sworn under Rule 96a is to be served, the copy of affidavit served on respondent No. 1 does not bear the "name and designation" of the Notary and also it does not contain the endorsement made under the signature of the Notary which finds place in the original affidavit. It has been further asserted that the copy of the affidavit served on the respondent No. 1 not contain the same endorsement of the Notary about the affirmation before him". It is further contended that respondent No. 1 has not been served with a true copy of the petition which is in contravention of the provisions of the Act and Rules. It is further contended in the petition that the allegations of corrupt practice in the election petition are vague and general violating the mandatory provisions of Sections 81 and 83 of the Act and Rule 94a of the Rules. It is further contended in the petition that the allegations of corrupt practice in the election petition are vague and general violating the mandatory provisions of Sections 81 and 83 of the Act and Rule 94a of the Rules. It is further claimed that in pages 25 and 26 of the election petition served upon the respondent No. 1 have not been signed by the election petitioner and further that the election petition has not been verified by any Advocate and the particulars of the Notary and Oath Commissioner before whom the affidavit had been sworn had not been stated in page 26 of the election petition. It has been submitted that in view of the aforesaid defects the election petition is liable to be preliminarily dismissed and Issue No. 1 should be taken up as preliminary issue for hearing under Section 86 of the Act. ( 3 ) IN the counter affidavit, the assertions made in the application filed by respondent No. 1 have been refuted. The plea of respondent No. 1 has been characterised as belated, false and absurd. The maintainability of such an application, specially after the commencement of actual trial by way of recording of evidence has been questioned. The election petitioner has not admitted the assertion that copy of the affidavit served on the respondent No. 1 is not in compliance with the provision of Rule 94a read with Form No. 24. It has been stated that ". . . It is absolutely untrue to state that a true copy of the petition has not been served on the respondent No. 1. . . . " It has been further asserted that even assuming that a true copy of the affidavit has not been served, the application filed at a belated stage should not be entertained since such a question has not been raised in the written statement and it must be taken that respondent No. 1 has not been prejudiced in any manner. ( 4 ) DURING the course of hearing of this petition, the counsel for respondent No. 1 has produced the two copies of the election petition alleged to have been served on respondent No. 1. However, the learned Counsel for the election petitioner is not prepared to accept that the two copies filed by the counsel for respondent No. 1 are indeed the copies actually served on respondent No. 1. However, the learned Counsel for the election petitioner is not prepared to accept that the two copies filed by the counsel for respondent No. 1 are indeed the copies actually served on respondent No. 1. ( 5 ) SECTION 87 of the Act provided that subject to the provisions of the Act and the Rules made thereunder every election petition shall be tried as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure. Section 86 (7) of the Act provides that every election petition should be tried as expeditiously as possible and endeavour should be made to conclude the trial within six months from the date of presentation of the election petition. In view of the provision contained in Section 87, there is no doubt that the provisions contained in Order 14, of the Code are applicable subject to any provision contained in the Act as well as the Rules made thereunder. Order 14, Rule 2 (1) requires that the Court should pronounce judgment on all issues subject to the provisions contained in Order 14, Rule 2. Order 14, Rule 2 envisages that where an issue of law pertaining to the jurisdiction of a Court or bar to the suit created by any law arises, the Court may postpone the settlement of other issues and deal with the suit on the issue of law only pertaining to jurisdiction of the Court or bar to the suit under any law. Considering the scope of Order 14, Rule 2, it has been held by a Division Bench of this Court in the decisions reported in AIR 1988 Orissa 35, Madhabananda Ray v. M/s. Spencer and Company Ltd. that if the question of jurisdiction or bar under any law as contemplated in Order 14, Rule 2 (a) and (b) is a pure question of law, then only such issue shall be tried as a preliminary issue; but where the issue is mixed question of fact and law, it should be tried along with other issues. ( 6 ) IT is, however, contended by the learned Counsel for respondent No. 1 that the aforesaid principle contained in Order 14, Rule 2, should give way to the specific provisions contained in Section 86 (1) of the Act which contemplates dismissal of an election petition for non-compliance with the provision of Section 81, Section 82 or Section 117. ( 6 ) IT is, however, contended by the learned Counsel for respondent No. 1 that the aforesaid principle contained in Order 14, Rule 2, should give way to the specific provisions contained in Section 86 (1) of the Act which contemplates dismissal of an election petition for non-compliance with the provision of Section 81, Section 82 or Section 117. It has been contended that under Section 81 (3) of the Act every election petition should be accompanied by as many copies thereof as there are respondents in the petition. It is further contended that in view of the well-settled principle that "copy" means "true copy", it is obligatory on the part of the election petitioner to file the required number of true copies and since the copy served on respondent No. 1 cannot be characterised as true copy, the election petition, and at any rate, the allegations relating to corrupt practice should be excluded from consideration and the question of maintainability of the election petition on the ground of contravention of Section 81 (3) read with Section 83 of the Act should be taken up first before taking up other issues and if need be, parties may be permitted to adduce evidence on such issues alone before adducing evidence on other issues. In this connection, it is also pointed out out that unnecessary pleadings relating to corrupt practice may be struck off keeping in view the provisions contained in Order 6, Rule 16 of the Code. In this connection, the learned Counsel has relied upon the decision reported in AIR 1996 SC 169; (Dr. (Smt.) Shipra, etc. etc. v. Shanti Lal Khoiwal etc. etc.) wherein the Court while dealing with a case of similar nature has observed at page 1695 :". . . . . . Sections 81, 83 (1) (c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read, if the Court finds on an objection, being raised by the returned candidate, as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objection. In case the Court does not uphold the same, the need to conduct trial would arise. When so read, if the Court finds on an objection, being raised by the returned candidate, as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objection. In case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objections, the election petition would result in dismissal at the threshold, as the Court is left with no option except to dismiss the same. "the learned Counsel for respondent No. 1 has relied upon a subsequent decision of the Supreme Court reported in AIR 1996 SC 3350 , Harcharan Singh Josh v. Hari Kishan as well as the decision dated 18-11-1996 of this Court in Misc. Case Nos. 57, 58, 59, 69 and 70 of 1996 arising out of Election Petition No. 3 of 1995 (Minakshee Nayak V. Bijayshree Routray and others), wherein the principle laid down in the decision reported in AIR 1996 SC 1691 had been followed and the election petition had been rejected at the threshold, or the allegations relating to corrupt practice had been (sic ). ( 7 ) APART from the above decision cited by respondent No. 1, there are several other decisions where similar views had been expressed. In the decision reported in AIR 1958 SC 687 Kamaraja Nadar v. Kunju Theyar, the question was relating to one of non-joinder of party in an election petition. The Supreme Court observed that in view of the provisions contained in Sections 82 and 85 of the Representation of the People Act, 1951, the election petition was bound to be dismissed. It was further observed that such objection if taken up as a preliminary point should be decided at the threshold. Similar views have been expressed by the Supreme Court subsequently in the decisions reported in AIR 1986 SC 1534 Bhagwati Prasad Dixit 'ghorewala' v. Rajeev Gandhi and AIR 1987 SC 1577 Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi, wherein the Supreme Court while considering the question of lack of material allegations relating to corrupt practice held that the election petition could be dismissed at the threshold if mandatory provisions of Section 81, Section 82 or Section 117 of the Act had not been complied with. ( 8 ) THE learned Counsel appearing for the election petitioner, on the other hand, seeks to distinguish the aforesaid decisions of the Supreme Court and of this Court on the ground that in the aforesaid cases, there was no dispute regarding service of the copy of the election petition containing such defects on the respondent, and as such the question was a pure question of law which did not require any investigation into disputed questions of fact. He has submitted that in the present case, an investigation into disputed questions of fact is necessary relating to service of copy before the question of non-compliance with Sections 81 and 83 can be decided and as such the matter should not be taken up as a preliminary question. It has been further submitted that the question is being raised only after commencement of actual trial. ( 9 ) IN all the aforesaid cases of the Supreme Court, the preliminary objection revolved round a pure question of law where no disputed fact was to be examined. Of course, in the decision reported in AIR 1975 Orissa 184 (Ajit Prasad Narayan Singh v. Smt. Nandini Satpathy, some issues relating to maintainability of the election petition on the ground of non-compliance with mandatory provisions of the Act were taken up by permitting parties to adduce evidence and thereafter the election petition was dismissed on the basis of preliminary objections. The said decision was (sic) prior to amendment of the Code of Civil Procedure, particularly of Order 14, Rule 2 by Act 104 of 1976. Therefore, the question whether in view of the provisions contained in Order 14, Rule 2, mixed question of fact and law relating to jurisdiction or bar contained in any law could be taken up as preliminary point had not directly cropped up for decision in any of the decisions noticed above. However, in the decision reported in AIR 1986 Orissa 105 Bijoyshree Rout Roy v. Madhusudan Panigrahi, it has been held at page 106 :"section 87 of the Act provides that the trial of the Election Petition shall be in accordance with the procedure under the Code of Civil Procedure applicable to the trial of suits as nearly as may be subject to the provisions of the Act. No provision under the Act has been brought to my notice by Mr. No provision under the Act has been brought to my notice by Mr. Misra which would be inconsistent with Order 14, Rule 2, Civil Procedure Code. There-under, Court is to pronounce judgment on all issues. Same is the principle envisaged under S. 98 of the Act. Postponement of the settlement of other issues is possible only where the case or any part thereof may be disposed of on an issue of law only if that issue relates to the jurisdiction of the Court or being barred by law. Order 14, was amended by Act 104 of 1976 to avoid piecemeal trials and where answer to an issue would depend upon consideration of evidence even though it relates to jurisdiction or a bar of suit by any law, the same would be heard along with other issues. "in E. P. No. 5 of 1995 (Rabindra Kumar Mallick v. Panchanan Kanungo, similar question had cropped up and it was decided by order dated 1-11-1995 under Misc. Case No. 16 of 1995 that provisions of Order 14 are applicable and there should not be piece-meal trial of election cases and all the issues should be taken up together. The aforesaid decisions of this Court are binding on me in the absence of any other contrary decision of the Supreme Court on the point. There is nothing in the Supreme Court decisions to indicate that even where such a question will depend upon determination of disputed questions of fact, the same should be decided at the threshold by adducing evidence. In fact, if such a course is adopted, and different issues relating to jurisdiction depending upon question of fact are taken up from time to time, the trial of the election case is likely to be delayed. Section 35 itself envisages that an election case is to be taken up expeditiously. Considering all the above aspects and specially the fact that the application for taking up the issue relating to maintainability of the election petition was filed after examination of a few witnesses, it would be expedient to direct that the issue relating to maintainability should be taken up for hearing along with other issues. ( 10 ) SUBJECT to the aforesaid observation, the Misc. Case is disposed of. Order accordingly.