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Uttarakhand High Court · body

2009 DIGILAW 323 (UTT)

SHAMIM ALAM v. DINESH AGARWAL

2009-06-22

B.S.VERMA

body2009
JUDGMENT This recall/review application (No. 276 of 2009) has been filed by the election-petitioner (applicant) to recall the order dated 8-4-2009 passed by this Court on the adjournment application. 2. In this petition, on 25-3-2009, the petitioner moved an application for adjournment. The application was opposed by the respondent. The order was passed on 25-3-2009 to the following effect:- “The application is allowed on payment of Rs. 1,000/- (Rupees one thousand) as cost. The cost shall be deposited by the learned counsel for the petitioner in the account of High Court Legal Aid Committee before the next date fixed in the petition. List on 8th of April, 2009 at the consent of the learned counsel for the parties.” 3. On 8-4-2009, the election petition was taken up and on that application for adjournment was moved on behalf of the petitioner, which was opposed by the learned counsel for the respondent. This Court passed an order to the following effect:- “The adjoumment application is allowed on payment of Rs.2,000/- (Rupees two thousand) as cost. The cost shall be deposited by the learned counsel for the petitioner in the account of High Court Legal Aid Committee. If the cost imposed on earlier date i.e. 25-03-2009 and today is not deposited within a week from today, the election petition shall stand dismissed without reference to the Court.” List on 27th of April, 2009 for orders.” 4. It reveals from a perusal of the endorsement made by the Registry of this Court that the order dated 8-4-2009 was not complied with by the election petitioner, therefore, the record was ordered to be consigned to the record room in compliance of the Court’s order. Thus, apparently the petitioner failed to comply the order within the time stipulated in the order, which culminated in dismissal of petition for default. 5. The present application has been moved by the election petitioner for recall/review of the aforesaid order dated 8-4-2009 on the ground that due to some inadvertence and some misunderstanding the cost could not be deposited within the stipulated time as ordered by this Court on 8-4-2009. It has been stated in the application that the election petitioner was present in the Court on 27-4-2009, but the petitioner, on inquiry having been made, came to know that the election petition has been treated to be dismissed. It has been stated in the application that the election petitioner was present in the Court on 27-4-2009, but the petitioner, on inquiry having been made, came to know that the election petition has been treated to be dismissed. It is further stated that the petitioner was present in the Court along with the requisite bank drafts to be deposited in compliance of the Court’s order dated 8-4-2009 and in the interest of justice, the same may be accepted and the order dated 8-4-2009 be recalled, else the petitioner would suffer irreparable loss and injury for dismissal of the election for default. In support of the recall application, an affidavit duly sworn in by the petitioner has been filed. 6. On 30-4-2009 the matter came up before the Court and on that date, the respondent prayed for seven days time to file objection against the recall/review application. The matter was adjourned to 6-5-2009 for disposal of the said application. 7. On 6-5-2009, objection has been filed on behalf of the respondent contending that the recall/review application is not legally maintainable; that- there is no provision in the Representation of Peoples Act 1951 for recall/review of any order. It has also been contended that the provisions of the Code of Civil Procedure are not applicable for review/recall in respect of election petitions. It is also contended that the applicant had not complied with the order intentionally hence there is no question of any misunderstanding. It has been further contended that the case of the applicant is not covered under Order 47, Rule 1 of the C.P.C. 8. I have heard learned counsel for the parties at length and perused the entire material placed before the Court. 9. Learned counsel for the election petitioner firstly contended that the provisions of the Code of Civil Procedure are applicable as nearly as may be where there is no specific provision under the Representation of the People Act, 1951 (for short the Act). The learned counsel has submitted that in the case at hand, this Court passed a conditional order and in default of the same, the election petition has been ordered to stand dismissed. As no such provision is contained in the Act, therefore, the provisions of the Code of Civil Procedure would apply for recall of the order. The learned counsel has submitted that in the case at hand, this Court passed a conditional order and in default of the same, the election petition has been ordered to stand dismissed. As no such provision is contained in the Act, therefore, the provisions of the Code of Civil Procedure would apply for recall of the order. In support of his contention, the learned counsel for the applicant-election petitioner has placed reliance upon the Apex Court judgment in the case of Dr. P.Nalla Thampy Thera vs. B.L. Shanker and others [AIR 1984 Supreme Court, 135] wherein it has been observed by the Apex Court that the Civil Procedure 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 9 or Order 17 of the C.P.C., would, therefore, be valid and would not be open to challenge on the ground that these provisions providing for dismissal of the election petitioner for default do not apply. Relevant portion of paragraph no. 17 of the judgment reads as under :- “17. In many cases it has been held that an election petition can be dismissed for default. A Full Bench of the Punjab High Court in Jugal Kishore v. Dr. Baldev Parkash, AIR 1968 Punj 152 at pp. 158-159, had occasion to consider this question when Grover, J. delivering the judgment of the Court spoke thus : “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 Ss. 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. 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 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 step for summoning the witnesses in which case the Court will have no option but to dismiss the 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 O. 9 or O. 17 of the Code……It is quite clear 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 Sec. 87 of the Act. The provisions of the Code of Civil Procedure would, therefore, be applicable under Sec. 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 the inherent powers of a Court while trying election petitions.” 10. The Apex Court in paragraph 18 has observed as under :- “18. Similar view has been expressed by another Full Bench of the Allahabad High Court in Duryodhan v. Sitaram, AIR 1970 All 1. A four Judge Bench of this Court in Rajendra Kumari Bajpai v. Ram Adhar Yadav, (1976) 1 SCR 255 at p. 260, referred to the Punjab case. Fazal Ali, J. speaking on behalf of the Court quoted a portion of the judgment of Grover, J. which we have cited above and said : “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 petition 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 O. IX or O. XVII of the Code would, therefore, be valid and would not be open to challenge on the ground that these provisions providing dismissal of the election petition for default do not apply.” 11. In paragraph no. 20, the Apex Court has inter alia observed as under :- “We therefore, conclude that an election petition is liable to be dismissed for default in situations covered by Order IX, or Order XVII of the Code and for its restoration an application under Rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.” 12. Learned counsel for the petitioner has also placed reliance on the case of Kailash Versus Nanhku and others [(2005) 4 Supreme Court Cases 480] while the learned counsel for the respondent-returned candidate has also relied upon the ratio of this judgment, therefore, the bearing of this case-law would be dealt with in the later part of this judgment while dealing with the contentions of the learned counsel for the respondent. 13. The sole contention of the learned counsel for the opposite party-respondent is that once this Court had passed the order dated 8-4-2009 to the effect that “if the cost imposed on earlier date i.e. 25-03-2009 and today is not deposited within a week from today, the election petition shall stand dismissed without reference to the Court” and since this order had not been complied with by the election petitioner, therefore, this Court has become functious officio and cannot interfere with its own order of dismissal. Learned counsel for the respondent- opposite party has further argued that there is no provision in the Act as to the maintainability of the application for review/recall as has been made by the election petitioner. To sum up, the argument of the learned counsel for the respondent is that in the case at hand since the election petition stood dismissed for default of the election petitioner, this Court cannot exercise inherent powers to recall the order of dismissal and to restore the election petition. 14. So far as the contention of the respondent that there is no provision to entertain the review/recall application as has been moved by the applicant-petitioner is concerned, a reference to Section 87 of the Act is necessary, which read as under:- “87. 14. So far as the contention of the respondent that there is no provision to entertain the review/recall application as has been moved by the applicant-petitioner is concerned, a reference to Section 87 of the Act is necessary, which read as under:- “87. Procedure before the High Court.- (1) Subject to the provisions of this Act and of any rules made thereunder, 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 (5 of 1908) to the trial of suits : Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. (2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.” 15. Moreover, in view of the observations made by the Apex Court in the case of Dr. P. Nalla Thampy Thera Vs. B.L. Shanker and others [AIR 1984 Supreme Court, 135 (supra) in paragraph nos. 17, 18 and 20, this Court is well within its competence to invoke the inherent powers possessed by it. It is not disputed that the recall/review application has been moved by the election petitioner himself, which is supported by an affidavit duly sworn in by the election petitioner. 16. Learned counsel for the opposite-party/returned candidate while placing reliance upon the Case of Kailash Vs. Nankhu (supra) has firstly contended that the procedure provided for trial of civil suits under Code of Civil Procedure is not applicable in its entirety to the trial of election petitions. Hence the review/recall application moved by the election petitioner is not at all maintainable in this Court. 17. At the outset, it may be mentioned that the contention of the learned counsel for the appellant before the Apex Court in Kailash Vs. Hence the review/recall application moved by the election petitioner is not at all maintainable in this Court. 17. At the outset, it may be mentioned that the contention of the learned counsel for the appellant before the Apex Court in Kailash Vs. Nankhu case (supra) was that the provisions of C.P.C. do not ipso facto and in their entirety apply to the trial of election petition under Chapter II of the Act. In the alternative, it was submitted that rules have been framed by the Allahabad High Court in that regard which would override the provisions of C.P.C. In the next alternative, it was submitted that the provisions of Order 8 Rule 1 C.P.C. being in the realm of procedural law, the time-limit contained therein should be construed as directory and not mandatory assuming the provision is applicable to the trial of election petition. The following three questions arose for decision before the Apex Court in that case :- “(1) Whether Order 8 Rule 1 CPC is applicable to the trial of an election petition under Chapter II of the Act? (2) Whether the rules framed by the High Court governing the trial of election petitions would override the provisions of CPC and permit a written statement being filed beyond the period prescribed by Order 8 Rule 1 CPC? (3) Whether the time-limit of 90 days as prescribed by the proviso appended to Rule 1 of Order 8 CPC is mandatory or directory in nature?” 18. The controversy involved in the case at hand is not covered by the aforesaid three questions, which were dealt with by the Apex Court for decision. 19. The Apex Court has recorded its conclusions in Paragraph 46 and in Para 46 (ii) the following observations have bee made:- “(ii) On the language of Section 87 (1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines.” 20. The ratio of the Apex Court judgment in the Kailash Vs. Nanhku case (supra) cannot be disputed. 21. The rules of procedure contained in CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines.” 20. The ratio of the Apex Court judgment in the Kailash Vs. Nanhku case (supra) cannot be disputed. 21. In the case at hand, this Court with a view to discourage frequent adjournments from the side of the election petitioner and also to expedite the trial of the election petition had put a rider while granting adjournment to the election petitioner on payment of cost as detailed in the earlier part of this order. Since the order dated 8-4-2009 was not complied with by the election petitioner, the dismissal order passed by this Court clearly amounts to dismissal of the petition for non-prosecution. The contention of the learned counsel for the returned candidate that the case of the election petitioner is not covered under Order 47, Rule 1 C.P.C. is not acceptable for the simple reason that the application though captioned as recall/review application is neither moved under the Order 47, Rule 1 C.P.C. nor the application moved by the petitioner is intended to review the order because the intention shown by the election petitioner is that he is ready to deposit the cost now, which could not be deposited due to some inadvertence and some misunderstanding. There is no such prayer at all to modify the order of imposition of cost. There has been default on the part of election petitioner. As the dismissal of the election petition is on account of default, the grant of recall/review application would be nothing but ultimately restoration of the election petition. 22. Learned counsel for the returned candidate has further relied upon that case of B.Sundara Rami Reddy Vs. Election Commission of India and others [1991 Supp. (2) Supreme Court Case 624]. In this case, the Apex Court has observed that the provisions of C.P.C. applies to a limited extent to the election petitions. The ratio of the judgment cannot be disputed but the point involved in the present petition is quite distinct. Therefore, the said case is of no help to the respondent. 23. Learned counsel for the respondent has also placed reliance upon the decision of the Apex Court in case of Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. & others (decided on 12-10-2007). Therefore, the said case is of no help to the respondent. 23. Learned counsel for the respondent has also placed reliance upon the decision of the Apex Court in case of Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. & others (decided on 12-10-2007). In this judgment, there is a reference of the case of “Samarendra Nath Singh and another Vs. Krishna Kumar Nag [(1967) 2 SCR 18] wherein the Apex Court has held as under:- “Now it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention. “Every court,” said Bowen, L.J. in Mellor v. Swire [30 Ch. 239] has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the court so as to carry out its intention and express the meaning of the court when the order was made.” The ratio of the judgment cannot be disputed, but the facts of this case are quite distinct. 24. The learned counsel for the respondent has also contended that this Court cannot invest itself with jurisdiction where it is not conferred by law as has been held by the Supreme Court in the case of Raja Soap Factory Vs. S.P. Shantharaj [AIR 1965 Supreme Court, 1449]. In that case the provision of Section 151 of the C.P.C. was considered by the Apex Court. The ratio of the judgment cannot be disputed. This case law does not help the respondent for the reason recorded hereunder. 25. Section 86 of the Act deals with the trial of election petitions. It is provided in Section 86 that the High Court shall dismiss an election petition, which does not comply with the provisions of section 81 or section 82 or section 117. In any view of the matter, it cannot be said that the order of dismissal of the election petition as per order dated 8-4-2009 is covered as dismissal of the election petition under the provisions of the said sections, referred to above in Section 86 of the Act. In any view of the matter, it cannot be said that the order of dismissal of the election petition as per order dated 8-4-2009 is covered as dismissal of the election petition under the provisions of the said sections, referred to above in Section 86 of the Act. Moreover, the rider of cost upon the election petitioner on the adjournment of the case was just an exercise of discretionary power of the Court so that the trial may be concluded expeditiously. To my mind, in the peculiar circumstances of this case, following the ratio of the Apex Court judgment in the case Dr. P. Nalla Thampy Thera, referred to above, read with the provisions of Section 87 of the Act which provides that 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, the application for recall of the conditional order passed by this Court is fully maintainable before this Court under the provision of the Code of Civil Procedure 1908. 26. For the reasons and discussion above, the recall application as moved by the election petitioner is liable to be allowed subject to payment of costs, which shall be deposited in the High Court Advocate Welfare Fund. 27. The recall application (No. 276 of 2009 filed by the election petitioner is allowed subject to payment of costs of Rs. 5,000/- (Rs. Five thousand), which shall be deposited by the petitioner within a period of one week in the High Court Advocate Welfare Fund bearing Account No. 30789295695 standing with the State Bank of India, High Court Branch at Nainital. The petitioner is also granted one week’s time to comply the Court’s order dated 8-4-2009 within the period of one week and he shall deposit the cost of Rs.3,000/- (Rs. Three thousand) in the account of High Court Legal Aid Committee, as directed earlier. Accordingly, the earlier order dated 8-4-2009 stands modified. 28. After the total cost i.e. Rs. 3,000/- + Rs. 5,000/- = Rs. 8,000 is deposited by the election petitioner as directed above, the election shall stand restored to its original number. 29. List the petition for orders on 2-7-2009.