Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 756 (PAT)

Kiran Devi v. State Of Bihar

2004-07-28

CHANDRAMAULI KR.PRASAD

body2004
Judgment 1. This application has been filed for quashing the order dated 6.12.2001 passed by the Subordinate Judge-ll, Seikhpura in Election Case No. 1 of 2001 whereby the prayer made by the petitioner to dismiss the election petition on the ground of non-joinder of necessary party and defect in verification of the election petition has been rejected. 2. Short facts giving rise to the present application are that the petitioner as also respondent no. 5 besides other persons filed their nomination for election as Member of the Zila Parishad, Seikhpura. Said election was held on 23.4.2001 and the petitioner Kiran Devi, hereinafter referred to as the returned candidate, having secured largest number of votes was declared elected. Respondent No. 5, Saroj Prasad, hereinafter referred to as the election petitioner, was her nearest rival who challenged the election of the returned candidate by filing a petition before Subordinate Judge-ll, Seikhpura which was registered as Election Petition No. 1 of 2001. Subsequent to the election of the petitioner as Member of the Zila Parishad she has also been elected as its Chairperson. In the election petition, although the election petitioner had prayed that he be declared to have been duly elected but did not implead all other persons who were candidates in the said election. While verifying the election petition, the election petitioner has stated that the statements made in the election petition is true to his knowledge. 3. During the pendency of the application, the returned candidate filed application for dismissal of the election petition on the ground of non-joinder of necessary party and defect in verification. By the impugned order her prayer has been rejected and while doing so the learned Judge observed that the election petitioner shall have ample opportunity to implead or struck-off necessary party and unnecessary party and as such the election petition cannot be dismissed at the threshold. The plea of defect in verification also did not persuade the learned Judge to dismiss the election petition. 4. Mr. The plea of defect in verification also did not persuade the learned Judge to dismiss the election petition. 4. Mr. Ganesh Prasad Singh, Senior Advocate appearing on behalf of the petitioner submits that in view of the prayer of the election petitioner that he be declared to have been duly elected as Member of the Zila Parishad, all other contesting candidates were necessary party and as such in the absence thereof the learned Judge ought to have dismissed the election petition on that ground alone, in support of his submission he has placed reliance on a decision of this Court in the case of Md. Zakir Hussain vs. Hareshwar Prasad Singh and Ors. [ 2001(4) PLJR 713 ] and my attention has been drawn to paragraphs 11 and 12 of the judgment, which read as follows: "11. True it is that the general law says that the plaintiff is dominus litis and is entitled to join the party of his own choice but this right of the plaintiff is not absolute. The opposite party in a civil suit can always raise an objection regarding misjoinder or non-joinder of the party. The question relating to misjoinder of the parties cannot be equated with non-joinder of the parties as the same does not affect the jurisdiction of the court and the court at the time of final disposal of the matter may not award any relief to the plaintiff against the pc-rsons unnecessarily joined. But in a case of non-joinder of a person required to be joined as a party, the court would be left with no option but to dismiss the suit because no effective decree or order can be passed in such a matter." "12. In the present case allegation of the election petitioner are that the results of the election were managed. Number of the votes which were undoubtedly cast in favour of the election petitioner were not counted in his favour. It is trite law that in case of corrupt practices, and recounting of the votes, the persons who had contested the election are necessary parties." 5. Mr. S.N. Sharma appearing on behalf of respondent no. Number of the votes which were undoubtedly cast in favour of the election petitioner were not counted in his favour. It is trite law that in case of corrupt practices, and recounting of the votes, the persons who had contested the election are necessary parties." 5. Mr. S.N. Sharma appearing on behalf of respondent no. 5, i.e. the election petitioner, however, contends that as the election petitioner shall have the opportunity to make amendment in the election petition and by that necessary party can be added, the learned Judge did not err in dismissing the application filed by the returned candidate, in support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Jagan Nath vs. Jaswant Singh and others (A.I.R. 1954 S.C. 210) and my attention has been drawn to the following passage from paragraph 19 of the judgment which reads as follows : " ...Various provisions of the Act referred to above show that the election petition does not necessarily abate or fail by reason of the death of the petitioner or any of the respondents or by their ceasing to take any interest in the trial of the petition once that petition has been referred to the Tribunal. On the other hand, any person who could be a petitioner can continue the petition in spite of the death of either the petitioner or the respondents to the petition and on the original parties failing to prosecute it. These provisions have been made to ensure that the election process on which the democratic system of Government is based is not abused or misused by any candidate and that inquiry is not shut out by collusion between persons made parties to the petition or by their respective deaths. It is therefore clear that the provisions of the law relating to the impleading of parties are not necessarily fatal and can be cured. It is for the Tribunal to determine the matter as and when it arises in accordance with provisions of the Code of Civil Procedure "(Underlining mine) 6. In reply Mr. Singh contends that in view of the decision of this Court in the case of Bambhola Rai vs. State Election Commission, Bihar and Ors. It is for the Tribunal to determine the matter as and when it arises in accordance with provisions of the Code of Civil Procedure "(Underlining mine) 6. In reply Mr. Singh contends that in view of the decision of this Court in the case of Bambhola Rai vs. State Election Commission, Bihar and Ors. [2004(2) PUR 400] the Subordinate Judge trying the election petition does not have jurisdiction to allow amendment in the election petition and as such the learned Subordinate Judge ought not to have rejected the application filed by the returned candidate on the ground that election petitioner shall have opportunity to amend and implead the necessary party. My attention has been drawn to paragraph 8 of the judgment, which reads as follows: "8. The instant case has to be governed by the Panchayat Act, 1993 and the Election Rules, 1995. It has already been stated that there is no provision either under the Act, 1993 or the Election Rules, 1995 for amendment of the election petition. Detailed procedure of the Civil Procedure Code will not apply to the instant case except with respect to the manner of hearing of the election petition as has been provided under Rule 111 of the Election Rules, 1995. However, the manner of hearing does not include the amendment of the plaint/pleading/election petition. Moreover, in the instant case the evidence of the witnesses of the plaintiff had already been closed and six witnesses of the defendant-petitioner had been examined before the amendment petition was filed. Thus, in any point of view, the amendment allowed by the Sub-Judge/Tribunal cannot be held to be legal in law." 7. !n the present case, no application for amendment for impleading the candidates who had contested the election has been filed and whether those persons can be impleaded or not has not yet been decided by the Subordinate Judge. In that view of the matter, I am of the opinion that the learned Judge did not err in rejecting the application filed by the election petitioner. However, in case in future the learned Judge, in seisin of the case, passes order for impleading other candidates as party in the election petition, petitioner shall have liberty to assail the same in accordance with law. 8. However, in case in future the learned Judge, in seisin of the case, passes order for impleading other candidates as party in the election petition, petitioner shall have liberty to assail the same in accordance with law. 8. It is relevant here to state that the election petitioner had also sought dismissal of the election petition on the ground that election petitioner had not verified the election petition as provided under Order 6 Rule 15 of the Code of Civil Procedure. According to the returned candidate the stand of the election petitioner in the verification that the statement made in the election petition is true to his knowledge obviously cannot be true. However, there is no denying the fact that the election petitioner had verified the same to be true and whether in fact same is correct or not is not fit to be decided at this stage. 9. In the result, I do not find any merit in the application and it is, accordingly, dismissed but without any order as to cost.