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Gauhati High Court · body

1999 DIGILAW 67 (GAU)

V. Weapon Zimik v. M. Horam and Ors.

1999-03-01

H.K.SEMA

body1999
By this petition under section 80A of the Representation of People Act, 1951, petitioner has challenged the election of the respondent No. 1 as returned candidate from 45 Chingai (ST) Assembly Constituency uHhe General Assembly Election held on 16.2.95, on the ground of alleged corrupt practices and for improper reception of void and or invalid votes in favour of the returned candidate. 2. In the aforesaid election, petitioner and 6 (six) other respondeimcontested the election representing different political parties. It may be mentioneothat the candidature of the petitioner was sponsored by the Manipur Hills People Convention (MHPC). The respondent No. 1 (returned candidate) was sponsored by Indian National Congress. Respondent No.2 was a candidate of Samata Party, respondent Nos 3 an 4 were Independent candidates, respondent No.5 was a candidate of Janata Dal, and the respondent No.6 was a candidate of Janata party. 3. Counting of votes started on 21.2.95, and the result was declared on 23.2.95. The result sheet issued by the Returning Officer on 23.2.95 shows the following valid votes were polled by the petitioner and respondents; (1) Petitioner V. Weapon Zimik polled 2,440 votes (2) Respondent No. 1 (Returned candidate) Dr. Masang Horam polled 8,716 votes (3) Respondent No.2, David NK Shimray, polled 5,054 votes (4) Respondent No.3, S. Kapow polled 984 votes (5) Respondent No. 4, Khathing polled 2,984 votes (6) Respondent No.5, RV Mingthing, polled 1,687 votes (7) Respondent No. 6, P. Rattling polled 1,129 votes 4. In order to appreciate the problems, few basic facts may be noted. This petition was filed on 7.4.95. The Hon'ble Chief Justice, in exercise of power conferred by section 80A (2) of the Representation of the People Act, 1951 (in short the Act), has assigned me the duties of exercising the jurisdiction of the High Court in regard to the trial of this election petition by an order dated 20.5.95. Thereafter, the file was placed before me on 19.6.95. After completing the service and other formalities, issues were framed on 18.9.97., 10.11.97 was fixed for filing list of witnesses and documents on behalf of the petitioner. Although it was stated by learned counsel for the petitioner that the list of witnesses and documents have already been filed, it was later proved to be incorrect. This shows that the petitioner has not filed list of witnesses and documents on 10.11.97. Although it was stated by learned counsel for the petitioner that the list of witnesses and documents have already been filed, it was later proved to be incorrect. This shows that the petitioner has not filed list of witnesses and documents on 10.11.97. On 18.11.97, at the prayer of counsel for the petitioner he was directed to file list of witnesses and documents within two weeks as a last chance. It again came up on 19.1.98, and at the prayer of the counsel for the petitioner, the matter was listed again 27.1.98. It was taken up on 28.1.98, and on that day also petitioner has not taken any steps for filing of list of witnesses and documents, and at the prayer of counsel for the petitioner, the matter was adjourned to 3.2.98 to file list of witnesses and documents as a last chance. On that day the Court also observed that if the list of witnesses and documents are not filed on the stipulated day, law will take its own course. It is only on 3.2.98 the petitioner has filed list of witnesses and documents. 5. As already stated, this petition was filed on 7.4.95 and the petitioner has filed list of witnesses and documents only on 3.2.98, after lapse of about more than 2 years. On 3.2.98, this Court also directed petitioner to take steps for service of notice upon the witness No. 12 for appearing on 12.2.98. Petitioner did not take any steps for service of notice and it was adjourned to 18.2.98 as prayed for. At the prayer of counsel for the petitioner, it was further adjourned to 19.2.98 at 2 PM. Petitioner examined himself as PW 1 on 20.2.98. On 20.3.98, the cross-examination of the petitioner by the counsel for the respondent No.7 was completed, but he did not sign the portion of his cross examination by counsel for the respondent No.7 in spite of repeated reminders. 6. 21.4.98 was fixed for further examination of PWs. On that day Mr. NPC Singh, counsel for the petitioner submits that due to personal difficulties the petitioner shall not be in a position to produce the witnesses till 2nd week of May, 1998 and it was posted on 18.5.98 for examination of PWs on 18.5.98, a junior counsel of Mr. 6. 21.4.98 was fixed for further examination of PWs. On that day Mr. NPC Singh, counsel for the petitioner submits that due to personal difficulties the petitioner shall not be in a position to produce the witnesses till 2nd week of May, 1998 and it was posted on 18.5.98 for examination of PWs on 18.5.98, a junior counsel of Mr. NPC Singh expressed his inability to produce any witness on behalf of the petitioner due to non-cooperation of the petitioner, and it was fixed on 25.5.98 for examination of PWs. In the meantime, PWs 2 and 3 have been examined and cross examined, and thereafter, examination of PWs was fixed on 16.2.99, by an order dated 27.1.99. 7. On 16.2.99, no witness was produced by the petitioner. It is submitted by Mr. NPC Singh that the petitioner has not contacted him for the last 6 (six) months, and in this view, he expressed his inability to produce any witnesses. He also stated that it appears the petitioner has lost interest to prosecute his case. 8. Mr. T. Nandakumar, counsel for the respondent No.l and Mr. Shyamkishore, counsel for the respondent No.7 accordingly submits that this petition may be dismissed for non-prosecution. It is in this circumstances that the parties were heard on 16.2.99, and order was reserved. 9. The sole question posed before this Court for determination is that, whether the election petition can be dismissed by invoking the power under Order IX and Order XVII of the CPC for non-prosecution, in absence of any specific provision for the purpose under the Act. 10. There is no distinct provision under the Act laying down procedure to be followed when petitioner commits default either in appearance or in production of evidence or prosecuting the petition. On the other hand, elaborate procedure has been laid under section 109 and 110 of the Act in the case the petitioner chooses to file an application for withdrawal of the petition. 11. The Full Bench of Punjab and Haryana High Court in Jugal Kishore S/o Lal Chand vs. Dr. Baldev Prakash, AIR 1968 P & H 37, had held that the provision of Civil Procedure Code as visualised under section 87 of the Act would be applicable and the election petition can be dismissed for non-prosecution under Order DC and Order XVII. 12. Baldev Prakash, AIR 1968 P & H 37, had held that the provision of Civil Procedure Code as visualised under section 87 of the Act would be applicable and the election petition can be dismissed for non-prosecution under Order DC and Order XVII. 12. In Sunderlal Mannalal vs. Nandaramdas Dwarkadas & others, AIR 1958 MP 260 , the Division Bench had held the same view M. Hidayatullah C.J. (as his Lordship then was) speaking for the Court observed : “The Act does not give any power of dismissal. But it is axiomatic that no Court or Tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. The dismissal, a therefore, is under an inherent power which every Tribunal possessed. No express provision in the Act was necessary to empower the Court to make the order of dismissal in default.” 13. This Court in K. Vungzalian vs. JF Rathangliana & others, AIR 1988 Gauhati 30 held the same view. I am in respectful agreement with the view taken in the aforesaid decisions, because of the reasons which I shall be dealing presently. 14. Section 83 of the Act deals with the contents of election petition, and states: (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:” 15. Section 87 of the Act deals with the procedure before the High Court and it enjoins that election shall be tried by the High Court as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. 16. A fascicule reading of sections 83 and 87 of the Act, would make it amply clear that although no distinct provision for dismissal of the election petition , in default has not been provided, since the procedure under the Code of Civil Procedure has to be followed before the High Court, the election petition could well be dismissed under Order IX and Order XVII of the CPC. This apart, the High Court being a Court of records it has an inherent power to determine its own jurisdiction and procedure to be followed. 17. This apart, the High Court being a Court of records it has an inherent power to determine its own jurisdiction and procedure to be followed. 17. Section 86 of the Act, deals with the trial of election petition, section 86(7) provides that, "Every election petitionshalrbe tried as expeditiously as possible and endeavour shall be^madeToi conclude the trial within six months from the date on whicIjJhe election petition is presented to the High Court for trial. It is, therefbreTnot the intention of the legislature to keep the election petition alive ven if the petitioner commits default in appearance or in production of witnesses. The generic sense that, the litigation must come to an end, is based on sound public policy, so that opposite parties are not vexed for more than necessary. It is a common knowledge that election petition could not be tried as expeditiously as possible and cannot be concluded within six months from the date of election petition as visualises under the Act. Unless the election petitioner pursued his case diligently and actively by producing witnesses cited by him and by appearing in the Court as and when fixed, and by contacting his counsel and render necessary instructions. This apart, the laches and negligence of the election petitioner in pursuing his election petition exposed the merit of his election petition. In the instant case, the election petitioner even disowned his own statement by refusing to sign his statement made in cross examination by counsel for the respondent No.7, apart from non-appearance and non-production of the material witnesses cited by him. I am told that the next General Election in the State of Manipur is due some time in December, 1999. 18. In the facts and circumstances recited above, I have no alternative but to dismiss this election petition for non-prosecution under Order IX and Order XVII CPC. Parties are asked to bear their own costs.