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2004 DIGILAW 166 (PNJ)

Rabinder Singh Sohil v. Harnam Dass Johar

2004-02-13

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition filed under Sections 80, 80-A, 81, 98 read with Sections 100 and 101 of the Representation of Peoples Act, 1951 (for brevity, the Act) challenges the election of the returned candidate i.e. the respondent from 58 - Ludhiana West Assembly Constituency to Punjab Legislative Assembly. A prayer has also been made for setting aside and declaring the election of returned candidate as void. 2. Notice of the petition was issued. The returned candidate-respondent has appeared on numerous dates of hearing. A perusal of the order sheets shows that an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for brevity the Code) was also filed by the petitioner which was allowed subject to payment of Rs. 10,000/- as costs on 19.5.2003. Thereafter, number of adjournments have been sought. On 5.9.2003 one more adjournment was sought to enable the counsel for the petitioner to get instructions from his client and the case was adjourned to 21.11.2003, on which date the Court was not held and the case was adjourned to 5.12.2003. On 5.12.2003 also the case could not be taken up for paucity of time and it was adjourned to 18.12.2003. On the adjourned date, counsel for the petitioner did not appear. However, he appeared on 20.12.2003 when the following order was passed:- "Learned counsel for the petitioner states that he had already sent a number of letters including a registered letter to the petitioner but no reply has been received. The registered letter he had sent has been received back undelivered to the petitioner. In view of the above, the learned counsel for the petitioner requests for a short adjournment to enable him to send another letter to the petitioner. On the request of counsel for the petitioner, the case is adjourned to February 13, 2004. The petitioner shall be liable to pay Rs. 2500/- as costs, for todays adjournment." 3. The counsel has not appeared again nor the cost has been paid as stated by learned counsel for the respondent. The cost has to be imposed for unnecessary adjournment taken by the petitioner on 20.12.2003. 4. Learned counsel for the respondent has argued that the Code is fully applicable in election matters and, therefore, under Order IX read with Order XVII of the Code, this petition is liable to be dismissed. The cost has to be imposed for unnecessary adjournment taken by the petitioner on 20.12.2003. 4. Learned counsel for the respondent has argued that the Code is fully applicable in election matters and, therefore, under Order IX read with Order XVII of the Code, this petition is liable to be dismissed. He has placed reliance on a judgment of the Supreme Court in the case of Dr. P.Nalla Thampy Thera v. P.L. Shanker and Ors., A.I.R. 1984 S.C. 135 and argued that in case of non appearance of the petitioner, the Court is clothed with the power to dismiss the petition for non prosecution under Order IX read with Order XVII of the Code. 5. I have thoughtfully considered the submission made by the learned counsel and am of the view that the claim of the respondent is meritorious. A Full Bench of this Court in the case of Jugal Kishore v. Dr. Ved Parkash, A.I.R. 1968 Punjab and Haryana 152 has concluded that the provisions of the Code are fully applicable. In this regard the observations of the Full Bench read as under:- "It has been repeatedly said that an election petition once filed is not a contest only between the parties thereto but continues for the benefit of the whole constituency. It is for that purpose that in the Representation of the People Act, 1951, provisions have been made in Sections 109 and 110 relating to withdrawal of an election petition and Sections 112 and 116 relating to abatement of such a petition the effect of which is that the petition cannot come to an end by the withdrawal thereof (or) by the death of the petitioner or by the death or withdrawal of opposition by the respondent, but is liable in such cases to be continued by any person who might have been a petitioner. There is nothing in the entire Act providing or indicating that a similar procedure is to be followed in the event of a petitioner failing to prosecute the petition. Such failure can be due to various causes. The petitioner can by force of circumstances be genuinely rendered helpless to prosecute the petition. For instance, he may find that his financial condition has suddenly worsened and that he can no longer afford the expenses of litigation. Such failure can be due to various causes. The petitioner can by force of circumstances be genuinely rendered helpless to prosecute the petition. For instance, he may find that his financial condition has suddenly worsened and that he can no longer afford the expenses of litigation. He may even owing to exigencies of business or vocation or profession, have to go to such a distant place from the seat of the High Court where the election petition is being tried that he may find it impossible to prosecute the petition in a proper manner. There would be two courses open to him and that will depend entirely on his volition. He can either file an application for withdrawal of the petition disclosing the circumstances which have brought about such a situation in which case there would be no difficulty in following the procedure laid down in Sections 109 and 110 of the Act, or he may choose to simply absent himself from the Court or cease to give any instructions to the counsel engaged by him or fail to deposit the process-fee and the diet money for witnesses or take the necessary steps for summoning the witnesses in which case the Court will have no option but to dismiss the election petition under the provisions of the Code of Civil Procedure which would be applicable to the election petitions in the absence of any express provisions in the Act. The dismissal will have to be under the provisions contained in 0.9 or 0.17 of the Code." ........ "It is quite clear that there is no distinct provision in the Act laying down any particular or special procedure which is to be followed when the petitioner chooses to commit default either in appearance or in production of evidence or generally in prosecuting the petition. The provisions of the Code of Civil Procedure would, therefore, be applicable under Section 87 of the Act. I am further of the opinion that any argument which could be pressed and was adopted for saying that the inherent powers of the Court could not be exercised in such circumstances would be of no avail now as the High Court is a Court of Record and possesses all (he inherent powers of a Court while trying election petitions. " 6. " 6. In Rajendra Kumar Bajpai v. Ram Adhar Yadav, (1975)2 S.C.C. 447 similar observations have been made and the ratio of the Full Bench judgment of this Court in Jugal Kishores case (supra) has been approved by observing as under- "We fully approve of the line of reasoning adopted by the High Court in that case." It, therefore, follows that the Code is applicable in disposing of an election petition when the election petitioner does not appear or take steps to prosecute the election petition. Dismissal of an election petition for default of appearance of the petitioner under the provisions of either Order IX or Order XVII of the Code would, therefore, be valid and would not be open to challenge on the ground that these provisions providing for dismissal of the election petition for default do not apply." 7. The aforementioned observations have further been approved by the Supreme Court in P. Nalla Thampys case (supra). Therefore, it can be taken as well settled that the provisions of the Code in such like situation would be fully applicable even in the disputes relating to election arising under the Act, 8. According to the provisions of Order XVII of the Code, the Court while adjourning the case is required to make such orders relating to costs as occasioned by the adjournment or such higher costs as the Court may deem fit. Such costs can also be imposed under Section 35-B(1)(b) of the Code. According to the provisions of Order XVII of the Code, the Court while adjourning the case is required to make such orders relating to costs as occasioned by the adjournment or such higher costs as the Court may deem fit. Such costs can also be imposed under Section 35-B(1)(b) of the Code. The provisions of Section 35-B(1) and Order XVII of the Code read as under:- "35-B. Costs for causing delay.- (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit- (a) fails to take the step which he was required by or under this code to be taken on that date, or (b) obtains an adjournment for taking such step or for producing evidence on any other ground, the Court may, for reason to be recorded, make an order requiring such patty to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of- (a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs, (b) the defence by the defendant, where the defendant was ordered to pay such costs. Explanation.- Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs." ORDER XVII ADJOURNMENTS I, Court may grant time and adjourn hearing.- [(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.] (2) Costs of adjournment. In every such case the Court shall fix a day for the further hearing of the suit, and [shall make such orders as to costs occasioned by the adjournment or such higher costs as the Court deems fit]: [Provided that,- (a) when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary, (b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party, (c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment, (d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time, (e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.]" 9. A conjoint perusal of Section 35-B read with Order XVII of the Code would show that the Court is under an obligation to impose costs in a case where sufficient cause is not shown and may adjourn the hearing of the case. The total number of adjournments is restricted to three during the hearing of the whole case. According to Section 35-B(1) of the Code, the payment of costs on the date next following the such order, has been made a condition precedent for further prosecution of the case. The total number of adjournments is restricted to three during the hearing of the whole case. According to Section 35-B(1) of the Code, the payment of costs on the date next following the such order, has been made a condition precedent for further prosecution of the case. A Full Bench of this Court in the case of Anand Parkash v. Bharat Bhushan Rai and Anr., (1981)83 P.L.R. 555 (F.B.) : A.I.R. 1981 Punjab and Haryana 269 has taken the view that failure to pay costs on the date next following the date of order directing payment of costs would attract the application of the principles concerning non-prosecution and the party failing to pay costs cannot be allowed to prosecute his/its case any further. Speaking for the Full Bench, Honble S.S. Sandhawalia, The Chief Justice observed that the use of word shall in Section 35-B(1) of the Code makes the intention of legislature absolutely clear that the provisions are mandatory in nature. Rejecting the argument to the contrary, the learned Chief Justice observed as under:- "It was contended by Mr. Goel, learned counsel for the respondent, that though word shall has been used in the Section but by user of that word the power of the Court for granting more time for paying the costs is not taken away. I am afraid, I am, unable to agree with the contention of the learned counsel for the respondent. There might have been some merit in the contention of Mr. Goel if the word shall had been used alone as in that even the judgments cited for the proposition that mere use of word shall may not make a statute mandatory, would have been of some relevance. But in the instant case, a bare scrutiny of the provisions of Section 35-B would show that the Legislature had made its intention absolutely clear and beyond the pale of any doubt, that the provisions are mandatory in nature and any non-compliance with the same would result in penal consequences as envisaged therein. When the provisions of Section 35-B are analysed we find that the legislature was not satisfied by using the word shall only and this word shall in the Section is qualified by the words condition precedent. Where a statute declares that doing of a particular thing shall be a condition precedent, then obviously the intention is to make it a peremptory mandate. Where a statute declares that doing of a particular thing shall be a condition precedent, then obviously the intention is to make it a peremptory mandate. A condition precedent is a condition which must be performed. If the Legislature had not intended to make the provisions of the Section mandatory, then it was not at all necessary for the Legislature to have qualified the word shall be using words condition precedent. The Legislature had made its intention absolutely clear by using the words shall be a condition precedent that the provisions of this section are mandatory in nature and that any non-compliance of these provisions would be fatal. To me, the words condition precedent qualifying the word shall appear to be the clincher for interpreting the provisions of Section 35-B as mandatory. As has been observed earlier the costs are ordered to be paid to compensate the other party who for no fault of his has to undergo inconvenience and incur expenses. If an adjournment is sought and the same is granted on payment of costs, then on the next date of hearing the party who sought adjournment is bound to pay the costs. In my view, on the plain language of the section, the Court is only required to see whether the costs have been paid or not and if a party does not pay the costs, then the only course open to the Court is to disallow the prosecution of the suit or the defence any farther. The Court would not go into the question whether the party who sought adjournment has or has not been guilty of delaying the suit or that it was not useful for the party to lead evidence or that the adjournment sought was unnecessary. When a party seeks adjournment, he pays the costs for his own folly or mistake, which results into inconvenience and unnecessary harassment to the other side. He does not do so as act of benevolence. Moreover, a litigant is expected to show full respect to the words of the Court. He cannot be permitted to ignore them or flout them with impunity. In case he opts to disregard the orders of the Court and fails to pay the costs, then he must suffer penal consequences. The duty of paying costs is on the party who has been ordered to pay the costs. He cannot be permitted to ignore them or flout them with impunity. In case he opts to disregard the orders of the Court and fails to pay the costs, then he must suffer penal consequences. The duty of paying costs is on the party who has been ordered to pay the costs. The Court or the party who has to receive costs, is not obliged to remind this delinquent party to perform its duty. The whole purpose of enacting this provision would be frustrated if the same is held to be directory. It may again be emphasised that the Courts are not required to find out as to what was the intention of the party in obtaining adjournment as the moment an adjournment is obtained on the date on which a suit is fixed for hearing or for taking any step therein, then the same results in the delay of the decision of the suit. On the essential requirements for attracting the applicability of this provision is that the date has to be when a suit is fixed for hearing or for taking any step therein. If the date is only for depositing of process fee or for doing some such act: then it cannot be said that the suit was fixed for hearing or for taking any step therein. When once the ingredients of the section are proved, then no other extraneous consideration would be taken into account by the Courts." (emphasis in original) 10 After analysing various judgments and critically examining the law, his Lordship in Anand Parkashs case (supra) observed as under:- "As a result of the aforesaid discussion, I hold that in the event of the party failing to pay the costs on the date next following the date of the order imposing costs, it is mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be, and that no other extraneous consideration would weigh with the Court in exercising its jurisdiction against the delinquent party. However, in cases, where costs are not paid as a result of the circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power under Section 148 of the Code in favour of the defaulting party if a strong case is made out for the exercise of such jurisdiction." 11. However, in cases, where costs are not paid as a result of the circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power under Section 148 of the Code in favour of the defaulting party if a strong case is made out for the exercise of such jurisdiction." 11. The aforementioned view taken in Anand Parkashs case (supra) has also been approved by another Full Bench of this Court in the case of Prem Sagar and Ors. v. Phul Chand and Ors., A.I.R. 1983 Punjab and Haryana 385. 12. 0n the basis of the aforementioned principles and precedents, the facts of the case may now be examined which reveal that cost of Rs. 2,500/- was imposed on 20.12.2003 and the case has been adjourned to this date i.e. 13.2.2004.The tenor of the order shows that the petitioner does not appear to be interested in prosecuting the petition as number of registered letters have been sent by the counsel for the petitioner but no reply has been received. The registered letter has also come back undelivered. Therefore, the provisions of Order IX Rule 9 of the Code would also be attracted and the petition is liable to be dismissed. 13. For the reasons recorded above, this petition fails and the same is dismissed.