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2010 DIGILAW 4036 (MAD)

A. Lazar v. M. K. Azhagiri

2010-09-06

V.DHANAPALAN

body2010
Judgment :- 1. This Application has been filed, praying to substitute the applicant A. Lazar as Petitioner in place of the deceased Petitioner late P. Mohan and continue the proceedings in the above Election Petition. 2. The case of the applicant is as follows: 2.1 He was the alternative candidate selected by the recognized political party CPI(M) along with P. Mohan for No.32, Madurai Parliamentary Constituency in the 15th Lok Sabha Election held in the year 2009. P. Mohan submitted his nomination. Applicant also submitted his nomination as the alternative candidate. Since the nomination of P. Mohan had been accepted, the applicant withdrew his nomination within the date fixed for withdrawal of nomination. He is interested in the outcome of the Election Petition. He is also aggrieved over the declaration, declaring the first Respondent as the returned candidate in the election in question forming subject matter of the Election Petition. He is ready and willing to continue the Election Petition substituting himself in the place of late P. Mohan, who died on 30.10.2009, based on the allegations and grounds raised in the Election Petition. He is entitled to substitute himself in place of the deceased sole Petitioner in the Election Petition and continue the proceedings as per Section 112 (3) of the Representation of the People Act, 1951 (in short, “the Act”) 2.2 He is an elector of 32, Madurai Parliamentary Constituency. He saw the paper publication in “The Hindu” daily Madurai Edition, dated 14.12.2009, publishing the factum of demise of the Election Petitioner. He is filing this Application within 14 days from the date of publication as contemplated under Section 112(3) of the Act. 2.3 Late P. Mohan has already furnished security as peer Section 117(1) of the Act. He is ready and willing to abide by any orders passed by this `Court under Section 112(3) of the Act, including depositing of another sum of Rs. 2,000/-, if directed. Hence, this application. 3. First Respondent has filed a Counter Affidavit, stating as follows: 3.1 Petitioner is not entitled to continue the proceedings on the basis of the amount deposited by late P. Mohan, the Election Petitioner, and he has no locus standi to take out this application to substitute himself in place of the deceased P. Mohan. Hence, this application. 3. First Respondent has filed a Counter Affidavit, stating as follows: 3.1 Petitioner is not entitled to continue the proceedings on the basis of the amount deposited by late P. Mohan, the Election Petitioner, and he has no locus standi to take out this application to substitute himself in place of the deceased P. Mohan. The moment the applicant withdrew his nomination and he has not participated in the election, he is not entitled to challenges the order of the Returning Officer, declaring him (First Respondent) as the successful candidate. Further, the provision contemplated under Section 112 (3) of the Act does not in any way include the candidates who have withdrawn their nomination papers. It would only accommodate the persons, who have actually contested the election. Not having contested the election, the applicant cannot substitute himself as the applicant in place of the deceased P. Mohan. Also, having quit the election at the threshold itself, the applicant is not entitled to maintain the present Application for substitution on the ground raised by the deceased P. Mohan. The applicant has not made out any ground in the Affidavit to show that apart from being an alternative nominee, the precise fact that would entitle him to substitute himself as Petitioner and continue the proceedings. 3.2 The application for substitution cannot be maintained at the instance of the applicant as the original Petitioner-P. Mohan (deceased) had filed the Election Petition on his alleged personal information and on the information allegedly furnished to him by others. The applicant, who seeks to substitute himself, cannot proceed with the same, as he does not have any personal information on the allegation. 4. Fifth Respondent has filed a counter stating as follows: 4.1. Once a person has withdrawn his nomination, he cannot claim that he is aggrieved of the result declared by the twelfth Respondent. The application is in no way connected to the proceedings and he is a stranger. If he wants to challenge the subject matter of the Election Petition, he has to file an Independent Petition. The applicant has no locus standi to file this Application to substitute himself in the proceedings initiated by the deceased P. Mohan. The Election Petition has already abated and hence the applicant cannot continue the proceedings. If he wants to challenge the subject matter of the Election Petition, he has to file an Independent Petition. The applicant has no locus standi to file this Application to substitute himself in the proceedings initiated by the deceased P. Mohan. The Election Petition has already abated and hence the applicant cannot continue the proceedings. The Original Election Petition itself is not maintainable, because, as per the Act, all the parties to the election have to be made as parties to the proceedings. Hence, the applicant cannot be substituted in the main Election Petition No.2 of 2009 in place of the original Petitioner P. Mohan and the Application has to be dismissed. 5. Ninth Respondent also has filed a counter affidavit, stating as under: 5.1. As per Section 112(1) of the Act, the Election Petition got abated. The mandatory requirements under Section 82 of the Act are not complied with and hence the main Election Petition itself is liable to be dismissed. Once the applicant withdrew his nomination, he relinquishes all his rights and therefore, the Application under Section 112 (3) is no maintainable. The applicant has failed to comply with the requirement of enclosing certified copy of the certificate issued by the Election Officer. The applicant cannot maintain a petition on the basis of security deposit made by the deceased P. Mohan. The matters are within the exclusive knowledge of the deceased Petitioner and cannot be established by the applicant. Therefore, the Application has to be dismissed. 6. Mr. The applicant cannot maintain a petition on the basis of security deposit made by the deceased P. Mohan. The matters are within the exclusive knowledge of the deceased Petitioner and cannot be established by the applicant. Therefore, the Application has to be dismissed. 6. Mr. T.V. Ramanujam, learned Senior Counsel appearing for the applicant, would submit that the applicant has filed this Application under Section 112 of the Act within 14 days of the publication in “The Hindu”, dated 14.12.2009 to substitute him self in place of the deceased Election Petitioner, as he is an elector within the meaning of Section 2(e) read with Section 81 of the Act; the Election Petitioner has already filed documents along with the Election Petition and also made the pleadings in Election Petition, mentioning the names of various persons; thus, it is a matter of evidence to be let in on the merits of the Election Petition; as an elector, the applicant/a third party is competent to substitute himself in place of the deceased Election Petitioner; the fact that the applicant is an elector can be proved by filing an Affidavit; the applicant, has also produced his voters Identity Card in number TN/24/145/0237005, Ration Card, Electoral role and other documents, which are all public documents, to substantiate his claim that he is an elector and hence he is entitled to be substituted in the Election Petition. 7. One more point raised by the learned Senior Counsel for the applicant is that as per sub-section (3) of Section 112, they used he words “any person” and “apply”. ‘Apply means, one has to file an Application. In a pending Election Petition ‘apply’ means, one has to file an Application under relevant rules. The relevant rule is Madras High Court Election Petition Rules, 1967. As per the Oxford Dictionary, “apply” means, make application; “application” means, making of a request and “applicant” means one who applies. Thus, the Section uses the word “apply”, which means, the applicant/a third party is to file an application and he is not filing the Election Petition, but, instead, he is only filing an Application in the already filed and admitted Election Petition. Thus, the Section uses the word “apply”, which means, the applicant/a third party is to file an application and he is not filing the Election Petition, but, instead, he is only filing an Application in the already filed and admitted Election Petition. According to the learned Senior Counsel, even as per the Judicial Dictionary, “apply” means, the word apply understood as to make a formal request or Petition is usually in writing to a Court for granting of some favour which is within the power of the Court. “Application” means, a request, a notice to a Court of Judge. Also, as per Black’s Law Dictionary, the meaning for “application” is a request or petition to or before a person; or the act of making a request for something. Thus, Section 112 (3) contemplates filing an Application to make a request to substitute. Accordingly, the applicant has filed the present Application. 8. In support of hi submissions, learned Senior Counsel for the applicant has relied on the following decisions of the Supreme Court: (i) a decision reported in the case of Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa and others, AIR 1958 SC 698 : “16. The above provisions go to show that an Election Petition once filed does not mean a contest only between the parties thereto but creates a situation which the whole constituency is entitled to avail itself of. Any person who might himself have been a Petitioner is entitled to be substituted, on the fulfillment of the requisite condition and upon such terms as the Tribunal may think fit, in place of the party withdrawing and even the death of the sole Petitioner or of the survivor of several Petitioners does not put an end to the proceedings, but they can be continued by any person who might himself have been a Petitioner. Even if the sole Respondent dies or gives notice that he does not intend to oppose the Petition or any of the Respondents dies or gives such notice and there is no other Respondent who is opposing the petition, a similar situation arises and the opposition to the Petition can be continued by any person who might have been a Petitioner, of course on the fulfillment of the conditions prescribed in Section 116. These provisions, therefore, show that the Election Petition once presented continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the Petitioner or even by his death or by the death or withdrawal of opposition by the Respondent but is liable to be continued by any person who might have been a Petitioner.” (ii) A judgment reported in the case of Shev Sadan Singh v. Mohal Lal Gautam, 1969 (1) SCC 408 : “10. The law relating to withdrawal and abatement of Election Petitions is exhaustively dealt with in Chapter IV of Part VI of the Act. In deciding whether a petition has abated or not we cannot travel outside the provisions contained in that chapter. There is no provision providing for the dropping of an Election Petition for any reason other than those mentioned therein. The Act doe not provide for the abatement of an Election Petition either when the returned candidate whose election is challenged resigns or when the Assembly is dissolved. As the law relating to abatements and withdrawal is exhaustively dealt with in the Act itself, no reliance can be placed on the provisions of the Civil Procedure Code nor did the learned Counsel for the Respondent bring to our notice any provision in the Civil Procedure Code under which the Election Petition can be held to have abated.” (iii) a decision reported in the case of Manohar Joshi v. Bhaurao Ragoji Patil, AIR 1992 SC 1 (iii) a decision reported in the case of Manohar Joshi v. Bhaurao Ragoji Patil, AIR 1992 SC 1 449: “6. Before the High Court it was urged on behalf of the Appellant that since the Respondents had not deposited any amount as security for the costs of the petition as contemplated by Section 117 of the Act their applications were liable to dismissed. It is while repelling this submission that the High Court made the aforesaid observation namely, that the question of providing security would arise only after an order for substitution is made. The High Court, in our opinion, does not appear to have committed any error in holding that simultaneous deposit of any amount as security for cost at the time of presentation of the Applications for substitution was not necessary. The High Court, in our opinion, does not appear to have committed any error in holding that simultaneous deposit of any amount as security for cost at the time of presentation of the Applications for substitution was not necessary. On a plain reading of Section 117 the said requirement is applicable at the time of presenting an Election Petition. An application for substitution made under sub-section (3) of Section 112 consequent upon the death of the Election Petition cannot be put at par to the presentation of an Election Petition. It is to be noticed in this behalf that sub-section (3) of Section 112 does not contain the requirement of depositing any amount of security for cots at the time of presenting the Substitution Application. It permits a person who might himself have been a Petitioner to apply to be substituted as Petitioner within fourteen days of the publication made under sub-section (2). The applicant however, becomes entitled to be so substituted only “upon compliance with the conditions, if any, as to security”. In other words, the right to apply to be substituted accrues on fulfillment of two conditions: (i) that the person making the Application should be one who might himself have been a Petitioner and (ii) that the application is made within fourteen days of the publication made under sub-section (2) of Section 112. He, however, becomes entitled to be substituted only upon compliance with the conditions, if any, as to security. The Applications made by the Respondents could not, therefore, be dismissed on the ground that no amount was deposited as security for costs at the time of presenting the said Applications. It is true that the observations referred to above were made by the High Court while repelling the submission made on behalf of the Appellant on the basis of Section 117 but to us it appear that the observation as made is rather too wide. Sub-section (3) of Section 112, in our opinion, contemplates simultaneous application of mind by the High Court on the question as to whether the applicant should be substituted or not and also on the question as to what amount of security for costs, if any, is to be deposited by the person who is to be ordered to be substituted. Sub-section (3) of Section 112, in our opinion, contemplates simultaneous application of mind by the High Court on the question as to whether the applicant should be substituted or not and also on the question as to what amount of security for costs, if any, is to be deposited by the person who is to be ordered to be substituted. The observation that “the question of providing security will arise only after an order for substitution is made” does not obviously conform with the requirement of sub-section (3) of Section 112 of the Act. Unlike Section 117 of the Act sub-section (3) of Section 112 uses the words “if any” between the words “upon compliance with the conditions” and “as to security”. While considering therefore, an Application for substitution the Court has also to consider as to whether any deposit is to be made or not as security for costs and if it is to be made what is the amount which has to be deposited. If the Court comes to the conclusion on the facts of a given case that no amount is to be deposited as security on the facts of a given case that no amount is to be deposited as security for costs an order of substitution simpliciter would be sufficient. The fact that no deposit as security is to be made with reason therefore would, however, have to be simultaneously stated in the order of substitution. On the other hand, if the Court comes to the conclusion that some amount has to be deposited by the applicants who are proposed to be substituted, as security for cots the amount should be simultaneously specified in the order of submission and the entitlement of such applicant to be substituted should be made subject to compliance with the condition of depositing the amount so specified. This, in our opinion, is the true import of sub-section (3) of Section 112 of the Act.” (iv) a judgment reported in the case of Kashinath Sajan Patil v. Dr. Deshmukh Hemant Bhaskar and others, 1993 Supp. (2) SCC 349: “It has been urged that in this view an appeal may be withdrawn even where withdrawal has been induced by bargain or consideration which ought not be allowed and this would interfere with purity of elections. Deshmukh Hemant Bhaskar and others, 1993 Supp. (2) SCC 349: “It has been urged that in this view an appeal may be withdrawn even where withdrawal has been induced by bargain or consideration which ought not be allowed and this would interfere with purity of elections. As the statute stand it seems that the intention was that the provisions about withdrawal and abatement would apply to a petition only when it is before the commission or the Tribunal. It may have been intended that only one proceeding should be specially provided for and that would ensure the purity of elections. If it was intended that Sections 109 and 110 should also apply to an Appeal for which provision was made by Section 116-A, that intention has not been given effect to by proper language. In any case, the position is not the same when an Appeal is being withdrawn for generally speaking at that stage a trial has taken place before the Tribunal which would ordinarily safeguard such purity. We therefore see no reason to import the principles of Sections 109 and 110 into withdrawal of appeals on this ground.” (v) a judgment reported in Ram Prasad Ram Prasad Sarma v. Mani Kumar Subha and others, 2003 (1) SCC 289 : “23. The only other point which remains to be considered is that in the Election Petition the name of Respondent 11 has been indicated a “Shri abdul Khyer” Nij Biswanath, Biswanathghat, District Sonitpur, Assam,” According to Respondent 1 Abul Khayer is the person who had contested the election but he has not been impleaded as a party instead some Abdul Khyer has been impleaded. The submission is that all the candidates who contested the election have thus not been impleaded as mandatorily required under Section 82 of the Act i.e., in cases where the Petitioner prays for being declared as a successful candidate in the election. The High Court rejected the contention holding that the Petitioner intended to implead Abdul Khayer as Respondent 11 to the election Petition but it was only a mistake in spelling by reason of which he has been described as Abdul Khayer. Reliance was placed upon a decision of the Orissa High Court reported in Morsingh Tripathy v. Gurubaru Majhi. 24. The High Court rejected the contention holding that the Petitioner intended to implead Abdul Khayer as Respondent 11 to the election Petition but it was only a mistake in spelling by reason of which he has been described as Abdul Khayer. Reliance was placed upon a decision of the Orissa High Court reported in Morsingh Tripathy v. Gurubaru Majhi. 24. It may be noted that in para 1 of the Election Petition it has been mentioned that the Respondents were the contesting candidates from 9, Tezpur Parliamentary Constituency, that is to say, that Respondent 11 was also impleaded as one who had contested the election from the said constituency. There was every intention to implead such a person as a Respondent. It may then be noted that along with the Election Petition, copy of return of election is required to be filed in Form 21-E under Rule 64 of the Conduct of Election Rules, 1961. It contains the result of the election as well as the list of candidates. The said list is on record as Annexure I to the Election Petition filed by the Petitioner and the name of Abdul Khayer is indicated at Serial No. 7 having contested as an independent candidate. It is thus evident that it is not as if the correct name is not available on the record of the case. Apparently, it seems to be a case of spelling mistake. Instead of Abul, letter ‘d’ got added extra hence typed as Abdul in the array of parties and the spelling of Khayer as “Khyer” omitting ‘a’ after ‘kh’. It is to be noted that address of Respondent 11 is also indicated in the Petition. It is not disputed that it is the address of the person who contested the election. In this Court there is an office report of service of notice on Respondent 8 prepared on the basis of the report received from the Gauhati high Court. So far as the wrong spelling of Khyer is concerned, it is of little consequence. Both words “Khyer” and “Khayer” would produce almost the same sound. Technically there may be difference but by way of example some may spell “Banerjee” as “Baneji” or “Saksena” as “Saxena” or the like. Therefore, such difference in spelling of Khayer is but to be ignored. Both words “Khyer” and “Khayer” would produce almost the same sound. Technically there may be difference but by way of example some may spell “Banerjee” as “Baneji” or “Saksena” as “Saxena” or the like. Therefore, such difference in spelling of Khayer is but to be ignored. There is certainly some difference in “Abdul” and “Abdul” but there is ample material on record to indicate that the same person who had contested election was meant to be impleaded e.g. the address of the person, the averment that Respondents 7 to 18 had contested the election as well as the form of election return indicating names of all those who had contested the election and the names with correct spelling is on the record, namely, “Abul Khayer”. The Respondent therefore gets no advantage out of the abovenoted point sought to be made out. The parties have however placed reliance on certain decisions on the point. On behalf of Respondent 1 reliance has been placed on Gore Lal Shakya v. Maharaj Singh Yadav, 1995 Supp (3) SCC 407, wherein Respondent 10 was shown an Sanjay Kumar whereas the correct name should have been Sanjiv Kumar. Similar argument seems to have been advanced that notice was not served on the correct Respondent and the person who ought to have been impleaded, has not been impleaded. The High Court dismissed the Petition for non-compliance with Section 82(a) of the Act. This Court upset the decision o the High Court observing that the High Court had made a mountain out of a molehill as it was a mere typographical mistake. Then this Court noted that in the body of the petition at one place his name was indicated as Sanjiv Kumar and at another place his name was indicated as Sanjay Kumar. It is submitted that in the present case no Application for correcting the name was moved nor was any written objection filed to indicate that it was a typing error. We feel that absence of any such Application will not adversely affect the Petition for the reasons we have already indicated earlier. Another case relied upon by the learned Counsel for the Respondent is reported in K. Kamaraja Nadar v Kunju Thevar, AIR 1958 SC 687 . This is a case relating to non-joinder of necessary parties. We are not concerned here with such a point. Another case relied upon by the learned Counsel for the Respondent is reported in K. Kamaraja Nadar v Kunju Thevar, AIR 1958 SC 687 . This is a case relating to non-joinder of necessary parties. We are not concerned here with such a point. This case, therefore, would be of no help to the Respondent. The learned Counsel for the Appellant relies upon a case reported in Shiv Chand v. Ujagar Singh, 1978 (4) SCC 152 , to indicate the approach which the Court may adopt while dealing with a case under Section 86(1) of the Act. It is observed that the test is whether the Election Petition complies with provisions of Section 82, not whether the Election Petitioner has filed to comply with Section 82. The substance of the matter must govern, be cause hypertechnicality when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat the vital judicial process, namely, investigation into the merits of the case. We find no force in this point too raised by Respondent 1. No other point has been urged.” (vi) a judgment reported in the case of Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raja and others, 2006 (1) SCC 212 : “8. But, we do not think it necessary to rest our decision on that ground alone. Even otherwise, the plea that the earlier adjudication operated as re judicata is difficult of acceptance. The First Respondent herein, the Petitioner in the present Election Petition, was not a party to the prior Election Petition. This Court in C.M. Arumugam v. S. Rajagopal, 1976 (1) SCC 863 , has held that every election furnishes a fresh cause of action for a challenge to that election and an adjudication in a prior Election Petition cannot be conclusive in the subsequent proceeding. Res judicata is nothing but the merger of a cause of action in a decree, transit in rem judicatum. So, even if the cause of action in the earlier Election Petition merged in the final adjudication therein, since according to this Court, the subsequent election furnishes a fresh cause of action, the merger of the earlier cause of action with the decision therein cannot bar the trial of the fresh cause of action arising out of the subsequent election. So, even if the cause of action in the earlier Election Petition merged in the final adjudication therein, since according to this Court, the subsequent election furnishes a fresh cause of action, the merger of the earlier cause of action with the decision therein cannot bar the trial of the fresh cause of action arising out of the subsequent election. It is true that the earlier Election Petition was filed by a voter in the constituency concerned and he had also raised the plea that the Appellant did not belong to the “Konda Dora” community. An Election Petition filed, though it abates on the death of the Petitioner therein, could be pursued by another person coming forward to prosecute that Election Petition as enjoined by Section 112 of the Act. But that does not make an Election Petition a representative action in the sense in which it is understood in law. Therefore, normally, the adjudication in an Election Petition, not inter parties, cannot operate as res judicata in a subsequent Election Petition challenging that subsequent election.” 9. Per contra, Mr. T.R. Rajagopalan, learned Senior Counsel for the first Respondent, would submit that as per Section 112(3) of the Act, any person who might himself have been a Petitioner seeking substitution as an applicant in the abated Election Petition has to take out the Application within 14 days of publication and falling to do so is a violation of the provisions of the Act and it is liable to be dismissed summarily under Section 86(1) of the Act. He would also submit that since the applicant claims to be a voter, he ought to have filed the voter list along with the Application and failure to furnish the same would amount to improper presentation. He would lastly contend that the Application for substitution is not maintainable in law as it is not accompanied by appropriate documents. 10. Mr. K. Sathyabal, learned Counsel for fifth Respondent, would submit that as per the provision of Section 81 of the Act, failure to furnish a copy of the document relied upon by the applicant along with the Application would amount to improper presentation of the application and hence the Application is liable to be dismissed. 11. Mr. 10. Mr. K. Sathyabal, learned Counsel for fifth Respondent, would submit that as per the provision of Section 81 of the Act, failure to furnish a copy of the document relied upon by the applicant along with the Application would amount to improper presentation of the application and hence the Application is liable to be dismissed. 11. Mr. C. Kanagaraj, learned Counsel for ninth Respondent, would submit that the applicant has filed the documents in support of the Application beyond period of 14 days; all the contesting candidates are not made as necessary parties as contemplated under Section 82 of the Act and therefore, the Application is liable for rejection. 12. In support of their contentions, learned Counsel for the Respondents have relied on the follows: (i) a judgment of the Supreme Court reported in the case of K. Kamaraja Nadar v. Kunju Thevar and others, AIR 1958 sc 687 : “29. When we come to the provisions of Part VI of the Act relating to disputes regarding elections, we find that there is no definition given in Section 7 of the expression “contesting candidate”, though there are definitions of “candidate” and “returned candidate” to be found therein. An Election Petition calling in question any election can be presented by any candidate at such election or any elector on one or more of the grounds specified in Sections 100(I) and 101 to the Election Commission and a Petitioner in addition to calling in question the election of the returned candidate or candidates may further claim a declaration that he himself or any other candidate has been duly elected. Where the Petitioner claims such further declaration, he must join as Respondents to his petition all the contesting candidates other than the Petitioner and also any other candidate against whom allegations of any corrupt practices are made in the Petition. The words “other than the Petitioner are meant to exclude the Petitioner when the happens to be one of the contesting candidates who has been defeated at the polls and would not apply where the Petition is filed for instance by an elector. The words “other than the Petitioner are meant to exclude the Petitioner when the happens to be one of the contesting candidates who has been defeated at the polls and would not apply where the Petition is filed for instance by an elector. An elector filing such a petition would have to join all the contesting candidates whose names were included in the list of contesting candidates prepared and published by the Returning Officer in the manner prescribed under Section 38, that is to say, candidates who were included in the list of validly nominated candidates and who had not withdrawn their candidature within the period prescribed. Such contesting candidates will have to be joined as Respondents to such Petition irrespective of the fact that one or more of them had retired from the contest under Section 55-A(2). If the provisions of Section 82 which prescribes who shall be joined as Respondents to the petition are not complied with, the Election Commission is enjoined under Section 85 of the Act to dismiss the Petition and similar are the consequence of non-compliance with the provisions of Section 117 relating to deposit of security of costs. If the Election Commission however does not do so and accepts the petition, it has to cause a copy of the Petition to be published in the Official Gazette and a copy thereof to be served by post on each of the Respondents and then refer the Petition to an election Tribunal for trial. Section 90(3) similarly enjoins the Election Tribunal to dismiss an Election Petition which does not comply with the provisions of Section 82 or Section 117 notwithstanding that it has not been dismissed by the Election Commission under Section 85. Section 90(3) is mandatory and the Election Tribunal is bound to dismiss such a Petition if an Application is made before, it for the purpose.” “33. As regards the amendment of a Petition by deleting the averments and the prayer regarding the declaration that either the Petitioner or any other candidate has been duly elected, so as to cure the defect of non-joinder of the necessary parties as Respondents, we may only refer to our judgment about to be delivered in Civil Appeal No. 76 of 1958, where the question is discussed at considerable length. Suffice it to say here that the Election Tribunal has no power to grant such an amendment, be it by way of withdrawal or abandonment of a part of the claim or otherwise, once an Election Petition has been presented to the Election Commission claiming such further declaration.” “35. This defect could not be cured by any amendment of the Petition seeking to delete the claim for such further declaration and the Election Tribunal was clearly in error in allowing such amendment on the grounds disclosed in I.A. No. 3 of 1957 or otherwise.” “41. We are of opinion that both the Election Tribunal and the High Court were wrong in the view they took. If the preliminary objection was not entertained and a decision reached thereupon, further proceedings taken in the Election Petition would mean a full fledged trial involving examination of a large number of witnesses on behalf of the 2nd Respondent in support of the numerous allegations of corrupt practice attributed by him to the Appellant, his agents or others working on his behalf; examination of a large number of witnesses by or behalf of the Appellant controverting the allegations made against him; examination of witnesses in support of the recrimination submitted by the Appellant against the 2nd Respondent; and a large number of visits by the Appellant from distant places like Delhi and Bombay to Ranchi resulting in not only heavy expenses and loss of time and diversion of the Appellant from his public duty in the various fields of activity including those in the House of the People. It would mean unnecessary harassment and expenses for the Appellant which could certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the Election Tribunal.” (ii) a judgment reported in the case of Mohan Raj v. Surendra Kumar Taparia and other, AIR 1969 SC 677 : “10. It is argued that the Civil Procedure Code applies and Order 6, Rule 17 and Order 1, Rule 10 enable the High Court respectively to order amendment of a Petition and to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of reference to Periwal. This argument cannot be accepted. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of reference to Periwal. This argument cannot be accepted. No doubt the power of amendment is preserved to the Court cannot use Order 1, Rule 10 enables the Court to strike out parties but the Court cannot use Order 6, Rule 17 or Order 1, Rule 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The Court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the Petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the people Act and any rules made thereunder (see Section 87). When the Act enjoins the penalty of dismissal of the Petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the Petition.” (iii) a judgment of the Supreme Court reported in the case of Rahim Khan v. Khurshid Ahmed and others, AIR 16 SC 677: “9. However, we have to remember another factor. An election once held is not to be treated in a light-hearted manner and defeated candidates or disgruntled electors should not get away with it by filing Election Petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the Court to uphold the corrupt practice alleged against the returned candidate is adduced. Indeed Election Petitions where corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof is necessary. Indeed Election Petitions where corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof is necessary. The burden is therefore heavy to him who assails an election which has been concluded.” (iv) a judgment reported in the case of Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744 : ”15. It is common ground that Shiv Pratap Singh was one of the candidates who had withdrawn his nomination papers for election from this constituency, after the same had been found in order by he Returning Officer. There was, thus, no doubt that he was a “candidate” for the purpose of the relevant provisions of the Act. If, therefore, the allegations made in clause (iv) of para 11 of the Petition relate to him and amount to a charge of corrupt practice against him, his non-joinder as a Respondent would be fatal, to the Election Petition. 20. The Respondent cannot by consent, express or tacit, waive these provisions or condone a non-compliance with the imperative of Section 32(b). Even inaction, laches or delay on the part of the Respondent in pointing out the lethal defect of non-joinder cannot relieve the Court of the statutory obligation cast on it by Section 86. As soon as the non-compliance with Section 82(b) comes or is brought to the notice of the Court, no matter in what manner and at what stage, during he pendency of the Petitioner, it is bound to dismiss the Petition in unstituted obedience to the command of Section 86.” (v) a decision reported in the case of Jyoti Basu and others v. Debi Ghosal and others, 1982 (1) SCC 691 : “8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election Petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. Statutory creations they are, and therefore, subject to statutory limitation. An Election Petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a strait-jacket. Thus the entire election process commencing from the instance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in he manner provided by the Representation of the People Act. So the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained Code within which must be found any rights claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an Election Petition. We have already referred to the scheme of the Act. We have noticed the necessity to rid ourselves of notions based on common law or equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say? 9. We have already referred to the scheme of the Act. We have noticed the necessity to rid ourselves of notions based on common law or equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say? 9. Section 81 prescribes who may present an Election petition. It may be any candidate at such election; it may be any elector of the constituency; it may be none else. Section 82 is headed “Parties to the Petition” and clause (a) provides that the Petitioner shall join as Respondents to the petition the returned candidates if the relief claimed is confirmed to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of Section 82 requires the Petitioner to join as Respondent any other candidate against whom allegation s of any corrupt practice are made in the petition. Section 86(4) enables any candidate not already a Respondent to be joined as a Respondent. There is no other provision dealing with the question as to who may be joined as Respondents. It is significant that while clause (b) of Section 82 obliges the petitioner to join as a Respondent any candidate against whom allegations of any corrupt practice are made in the Petition, I does not oblige the Petitioner to join as a Respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a Respondent may seek and, if he so seeks, is entitled to be joined as a Respondent under Section 86(4), any other person cannot, under that provision seek to be joined as a Respondents, even if allegations of any corrupt practice are made against him. It is clear that the contest of the Election Petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the Petitioner and the candidate at the election. If such is the design of the statute, how can the notion of “proper parties” enter the picture at all? It is clear that the contest of the Election Petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the Petitioner and the candidate at the election. If such is the design of the statute, how can the notion of “proper parties” enter the picture at all? We think that the concept of “proper parties” is and must remain alien to an election dispute under the Representation of the People Act, 195. Only those may be joined as Respondents to an Election Petition who are mentioned in Section 82 and Section 86(4) and no others. However desirable and expedient it may appear to be, none else shall be joined as Respondent.” (vi) a decision reported in the case of M. Karunanidhi v. Dr. H.V. Hande and others, 1983 (2) SCC 473 : “31. It was submitted on behalf of the Appellant that there was total and complete non-compliance of the requirements of sub-section (3) of Section 81 and therefore the Election Petition was liable to be dismissed in limine under sub-section (1) of Section 86. The argument to the contrary advance don behalf of the Respondent was that the photograph filed along with the Election Petition had to be treated as a document in proof of the allegations contained in para 18(b) and not as a part of the Election Petition. The submission is that there is a distinction “between a schedule or annexure to the Petition referred to in sub-section (2) of Section 83” and “a document which is merely evidence in the case which is annexed to the Election Petition” and to such a document sub-section (3) of Section 81 is not attracted.” “34. It was observed that the details of averments may be too compendious for being included in the Petition and may be set out in the schedule or annexure to the Election Petition. The Court then gave examples on which it would be apparent that many of the averments of the Election Petition are capable of being put as schedules or annexures. It then went on to ay that such annexures or schedules are treated as integrated with the Election Petition and copies of them must be served on the returned candidate if the requirement regarding service of the Election Petition is to be wholly complied with. It then went on to ay that such annexures or schedules are treated as integrated with the Election Petition and copies of them must be served on the returned candidate if the requirement regarding service of the Election Petition is to be wholly complied with. But that this rule was not applicable to documents which are merely an evidence in the case but which, for reasons of clarity and to lend force to a petition, are not kept back but are produced or filed with the Election Petition. The Court added: “They are in no sense an integral part of the averments of the Petition but are only evidence of those averments and in proof thereof.” In that view of the matter the Court held that the pamphlet in question had to be treated as a document and not as a part of the Election Petition so far as the averments were concerned. It said: “It would be stretching the words of sub-section 83 too far to think that every document produced as evidence in the Election Petition becomes a part of the Election Petition proper. In this particular case we do not think that the pamphlet could be so treated.” “41. It is obvious that the photograph was a part of the averment contained in para 18(b). In the absence of the photograph the averment contained in para 18(b) would be incomplete. The photograph referred to in para 18(b) was therefore an integral part of the Election Petition. It follows that there was total non-compliance with the requirements of sub-section (3) of Section 81 of the Act by failure to serve the Appellant with a copy of the Election Petition. In Chapter Subbarao case the Court held that if there is a total and complete non-compliance with the provisions of sub-section (3) of Section 81, the Election Petition could not be treated an “Election Petition presented in accordance with the provisions of this Part” within the meaning of Section 80 of the Act. Merely alleging that the Appellant had put up fancy banner would be of no avail unless there was a description of the banner itself together with the slogan.” (vii) a judgment reported in the case of Gore Lal shakya v. Maharaj singh Yadav and others, 1995 Supp (3) SCC 407: “7. Merely alleging that the Appellant had put up fancy banner would be of no avail unless there was a description of the banner itself together with the slogan.” (vii) a judgment reported in the case of Gore Lal shakya v. Maharaj singh Yadav and others, 1995 Supp (3) SCC 407: “7. Nothing has been brought to our notice as to whether any counter-affidavit has been filed before the High Court refuting the statement made in the Application filed by the Appellant stating that the name of 10th Respondent is correctly mentioned in the body of the Petition Sanjiv Kumar; but by typographical mistake the spelling of the name of Sanjiv Kumar has been mentioned as Sanjai Kumar. The High Court has made about nothing and also made a mountain out of a mole hill. It is very surprising that the First Respondent himself has committed the same typographical mistake in his Application taken up before the High Court seeking dismissal of the Election Petition mentioning the name of “Sanjiv Kumar” at one place as “Sanjay Kumar” and when Counsel for the Respondent was confronter with this mistake in his Application, he states that it is a typographical mistake. In our considered opinion nothing can adversely be inferred against the Appellant since it is now demonstrably shown that the mistake is committed only in the array of parties that too by a typographical error.” (viii) a decision reported in the case of Mulayam Singh Yadav v. Dharam Pal Yadav and others, 2001 (7) SCC 98 : “12. Ordinarily, what is shown upon the video cassette that is mentioned and verified in Schedule 14 would have been set out in the Election Petition and then that video cassette could have been said to be evidence of the allegations made in the Election Petition. As this Election Petition is drafted, there is no description of what is shown on this video cassette except to say that it shows booth-capturing, violence and arson. As to booth-capturing, there are particulars contained in the other schedules but even in that regard the later paragraphs of the Election Petition make reference to Schedule 14 so that even in regard to verified in Schedule 14 are relied upon. So far as the allegations of violence and arson are concerned, there are no particulars in the Election Petition absent the video cassette mentioned and verified in Schedule 14. 13. So far as the allegations of violence and arson are concerned, there are no particulars in the Election Petition absent the video cassette mentioned and verified in Schedule 14. 13. We are, therefore, satisfied that the video cassette mentioned and verified in Schedule 14 is an integral part of the Election Petition and that it should have been filed in Court along with copies thereof for service upon the Respondents to the Election Petition. Whereas 15 copies thereof were filed for service upon the Respondents, the video cassette itself was not filed. The Election Petition as filed was, therefore, not complete.” (ix) a decision reported in the case of Janki Vashdeo Bhojwani and another v. IndusInd Bank Ltd. and others, 2005 (3) CTC 128: “13. In the context of the directions given by this Court, shifting the burden of proving on the Appellants that they have a share in the property, it was obligatory on the Appellants to have entered the box and discharged the burden by themselves. The question whether the Appellants have any independent from their own independent income can be only answered by the Appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the Appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal.” (x) a judgment reported in the case of Umesh Challiyill v. K.P. Rajendran, 2008 (11) SCC 740 : “11. ….Here also the defect as pointed out by the learned Single Judge was that the Appellant had not signed and affirmed in the manner inasmuch as there is no certification of the Notary that it was solemnly affirmed by the Appellant before him. This objection was based on the fact that after the signature of the deponent the only words occurring before the signature of the Notary are, “Before me”. The words, “Solemnly affirmed by Shri Umesh Challiyill at Ernakulam on this the 26th day of June, 2006” occurred above the signature of the deponent. Therefore, it was contended that the affidavit does not bear the certification ought to be by the Notary as to the affirmation by the deponent since such certification ought to be by the Notary after the signature of the deponent. Therefore, it was contended that the affidavit does not bear the certification ought to be by the Notary as to the affirmation by the deponent since such certification ought to be by the Notary after the signature of the deponent. This affidavit was also found to be defective by the learned Single Judge. But in our view, this too is a defect of very minor nature. It may be a bona fide mistake on the part of the deponent as well as the Notary but basically it conveys the sense that the affidavit has been solemnly affirmed by Umesh Challiyill at Ernakulum. This affirmation also does not in any way go to the root of the matter so as to render the entire Election Petition not properly constituted entailing the dismissal of the same. 12. Both the defects which have been pointed out by the learned Single Judge were too innocuous to have resulted in dismissal of the Election Petition on the basis of the preliminary objection. The Courts have to view whether the objections go to the root of the matter or they are only cosmetic in nature. It is true that the Election Petition has to be seriously construed. But that apart the Election Petition should not be summarily dismissed on such small breaches of procedure. Section 83 itself says that the Election Petition should contain material facts. Section 86 says that the High Court shall dismiss the Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. But not of defect of the nature as pointed out by the Respondent would entail dismissal of the Election Petition. These were the defects, even if the Court has construed them to be of serious nature, at least notice should have been issued to the party to rectify the same instead of resorting to dismissal of the Election Petition at the outset. (xi) a decision of the Supreme Court reported in the case of Bhim Sen v. Gopali, 22 ELR 288: “12. It appears that the Petition filed by the Appellant had impleaded Respondent 5, Sheodan Singh, as one of the candidates who contested the election. His father’s name was, however, shown as Ram Sarup when in fact it was Nanak Chand. (xi) a decision of the Supreme Court reported in the case of Bhim Sen v. Gopali, 22 ELR 288: “12. It appears that the Petition filed by the Appellant had impleaded Respondent 5, Sheodan Singh, as one of the candidates who contested the election. His father’s name was, however, shown as Ram Sarup when in fact it was Nanak Chand. This clerical mistake was, sought to be corrected by the Appellant by his Application presented on 27.07.1957, and the Tribunal allowed the correction to be made. This order of the Tribunal was challenged before the High Court, but the High court held that in the circumstance the amendment had been rightly allowed. This finding of the High Court is challenged by Mr. Sadhan Gupta on behalf of Respondent 1. He contends that the amendment in question really introduced a new party to the proceedings after limitation had expired, and so the Petition of the Appellant should be dismissed on the ground that the contesting party had not been properly pleaded at the outset. We are not impressed by this argument. It is clear that Respondent 5 Sheodan Singh had been impleaded as a contesting candidate and it had been specifically averred that he had secured 4060 valid votes and 327 invalid votes. Thus there was no doubt about the identity of Respondent 5 and no mistake about it either. The mistake crept in the description of the name of Respondent 5’s father and that mistake which was purely clerical was allowed to be corrected. In our opinion, the High Court and the Tribunal were obviously right in holding that the connection thus allowed did not amount to permitting the Appellant to add a new party at all.” 13. I have heard the learned Counsel for the parties and also gone through the records, coupled with the authorities. 14. In our opinion, the High Court and the Tribunal were obviously right in holding that the connection thus allowed did not amount to permitting the Appellant to add a new party at all.” 13. I have heard the learned Counsel for the parties and also gone through the records, coupled with the authorities. 14. The applicant, who claims to be an alternative candidate of a political party [CPI (M) for No.32 Madurai Parliamentary Constituency, seeks to substitute himself as the Petitioner in the above Election Petition in place of P. Mohan, who moved this Court challenging the election of First Respondent and died on 30.10.200, on the ground that any person who might himself have been a Petitioner may substitute himself to an Election Petition, which shall abate on the death of sole Petitioner within 14 days of publication of the death of the Election Petitioner and upon compliance with the conditions if any as security shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit. The applicant also seeks his substitution on the ground that he is an elector within the meaning of Section 2(e) read with Section 81 of the Act, as the Election Petitioner already filed documents along with the Election Petition and he being the alternative candidate has got the knowledge and therefore, he is having a right to proceed and continue with the Election Petition under sub-section (3) of Section 112 of the Act. 15. The provision which is apt for deciding this Application is Section 112 of the Act, which reads thus: “112. Abatement of Election Petitions.—(1) An Election Petition shall abate only on the death of a sole Petitioner or of the survivor of several Petitioners. (2) Where an Election Petition abates under sub-section (1), the High Court shall cause the fact to be published in such manner as it may deem fit. (3) Any person who might himself have been a Petitioner may, within fourteen days of such publication, apply to be substituted as Petitioner and upon compliance with the conditions, if any, as security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.” 16. (3) Any person who might himself have been a Petitioner may, within fourteen days of such publication, apply to be substituted as Petitioner and upon compliance with the conditions, if any, as security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.” 16. It is clear from the above provision that any person who might himself have been a Petitioner may, within fourteen days of publication, as t the factum of demise of the Election Petitioner, apply to be substituted as Petitioner and upon compliance with the conditions, if any, as security, shall be entitled to be so substituted and to continue the proceedings. 17. Keeping the above provision in mind, if we look at the contention of the Respondents that the application has been filed beyond the period of fourteen days and hence it has to be rejected, it I to be stated that in this case, the date of Notification of the election was 17.04.2009; the date of election was 13.05 2009; and the date of declaration of election of the first Respondent was 16.05.2009. Aggrieved over the said declaration of election of the First Respondent, P. Mohan, who was the next candidate and got defeated at the hands of the first Respondent, filed the Election Petition and he died on 30.10.2009, pursuant to which this Application for substitution has been filed by the applicant. Moreover, the date of publication as to the factum of demise of the original Election Petitioner in the News Papers was 14.12.2009; the date of Application was 16.12.2009 and the same was presented in the Court on 18.12.2009. Hence, the Application was filed well within the time of fourteen days from the of publication, as prescribed under Section 112(3) of the Act. Therefore, the primary contention of the learned Counsel for the Respondents would fail. 18. Coming to the next contention of the Respondents that the documents should be filed along with the Application under Section 112(3), it is to be stated that no where in Section 112(3) it is stated that the Application should be annexed by documents. Therefore, the primary contention of the learned Counsel for the Respondents would fail. 18. Coming to the next contention of the Respondents that the documents should be filed along with the Application under Section 112(3), it is to be stated that no where in Section 112(3) it is stated that the Application should be annexed by documents. What all the Section says is that any person may, within fourteen days of the publication, apply to be substituted as Petitioner and upon compliance with the conditions, if any, as security, shall be entitled to be so substituted and to continue the proceedings. Hence, this contention also has no substance. 19. Even as per Rule 32 of the Civil Rules of Practice, any fact required to be proved upon an interlocutory proceeding shall, unless otherwise provided by these rules, ordered by the Court, be proved by affidavit, but the judge may, in any case, direct evidence to be given orally; and thereupon the evidence shall be recorded and exhibits marked, in the same manner as in a Suit and lists of the witnesses and exhibit shall be prepared and annexed to the judgment. 20. One more contention of the Respondents that the Election Petition itself is defective because the name of Eleventh Respondent is mentioned as Veerapandi instead of Veeradurai cannot also be sustained. This is so, because, it is only a curable defect. The eleventh Respondent received notice in the Election Petition. Since the notice taken on him in the present Application returned unserved, paper publication was ordered by this Court and the same was effected in Tamil Daily “Dinamalar” (Madurai Edition) and English Daily. “The Hindu” (Madura Edition) on 05.05.2010 and 04.05.2010 respectively. In addition, the applicant/a third party can take steps only as per the cause title in the Election Petition at this stage. The address of Eleventh Respondent is admittedly correct. Hence, it can be treated as sufficient service on the Eleventh Respondent. 21. As per Rule 3 of the Madras High Court Election Petition Rules, 1967, every Application in respect of an respect of an Election Petition shall be by Judge’s summons. Rule 12 says that the Rules of High Court, 1956 (Original Side) shall, as far as practicable, be observed in all Edition Petitions and all Applications taken in respect of the Election Petitions. Rule 12 says that the Rules of High Court, 1956 (Original Side) shall, as far as practicable, be observed in all Edition Petitions and all Applications taken in respect of the Election Petitions. What is filed here is only an Application under Order 14, Rule 8 of the Original Side Rules read with Rule 3 and 12 of Madras High Court Election Petition Rules. Hence, this application is perfectly in order. 22. A person who applies under Section 112(3) of the Act can only aver that he is entitled to file an Application. In this case, the applicant has sworn to the affidavit. All Interlocutory Applications shall be decided based on affidavits. Only if the fact in the affidavit is disputed, it shall be substantiated by producing documents. 23. The Election Petition cannot be touched at this stage, in spite of it containing whatever defects. Once the applicant is substituted as per Section 112(3), he may take steps to cure the defects, if any, in accordance with law. Now, the issue to be decided is not whether the Election Petition is defective or not, but, instead, it is only with regard to substitution of the applicant in the Election Petition. 24. The bottom line contention of the Respondents that the applicant does not have knowledge of the averments and information contained in the Election Petition and that the mandatory requirements of the Act are not complied with in the Election Petition cannot be sustained, as the said issues are to be decided only at the time of final disposal of the Election Petition. 25. An Election Petition once filed does not mean a contest only between the parties thereto but creates a situation which the whole constituency is entitled to avail itself of. A reading of Section 116 makes it clear that an Election Petition once presented continues for the benefit of the whole constituency and cannot come to an end merely by withdrawal thereof by the Petitioner or even by his death or by the death or withdrawal of opposition by the Respondent but is liable to be continued by any person who might himself have been a Petitioner, on fulfillment of the conditions prescribed. Therefore, any person who might himself have been a Petitioner, is entitled to be substituted, on fulfilment of the requisite conditions. Therefore, any person who might himself have been a Petitioner, is entitled to be substituted, on fulfilment of the requisite conditions. In other words, the death of the sole Petitioner doe not put an end to the proceedings, but they can be continued by any person who might himself have been a Petitioner. This is the law laid down by the Supreme Court in Inamati Mallappa Basappa v. Desai Basavarahj Ayyappa and Others, AIR 1958 SC 698 . 26. A reading of the provisions of the Act makes it clear that there is no provision providing for dropping of an Election proceeding for any reason other than those mentioned therein, as the law relating to abatement and withdrawal is extensively dealt with under the provisions of the Act. 27. Section 112 (3) does not contain the requirement of depositing any amount of security for costs at the time of resenting the Substitution Application. It permits a person who might himself have been a Petitioner to apply to be substituted as Petitioner within fourteen days of the publication made under sub-section (2). It can be done upon compliance with the conditions, if any, as to security. To put it otherwise, the right to apply to be substituted accrues on fulfillment of two conditions viz., (i) the person making the Application should be one who might himself have been a petitioner, and (ii) the Application is made within fourteen days of the publication made under sub-section (2) of Section 112. He, however, becomes entitled to be substituted only upon compliance with the conditions if any, as to security. 28. While considering an Application for substitution, the Court has to consider as to whether any deposit is to be made or not as security for costs and if it is to be made what is the amount which has to be deposited. If the Court comes to the conclusion on the facts of a given case that no amount is to be deposited as security for costs, an order of substitution simpliciter would be sufficient. If the Court comes to the conclusion on the facts of a given case that no amount is to be deposited as security for costs, an order of substitution simpliciter would be sufficient. On the other hand, if the Court comes to the conclusion that some amount has to be deposited by the applicant who is proposed to be substituted, as security for costs, the amount should be simultaneously specified in the order of substitution and the entitlement of such applicant to be substituted should be made subject to compliance with the condition of depositing the amount so specified. The above is the law laid down by the Apex Court in Manohar Joshi v. Bhaurao Patil, AIR 1992 SC 1 449. 29. In this present case, the categorically stated in his Application and also submissions that he is prepared to accept any condition as the Court may deem fit. When such is the case, the fulfillment of condition is to be seen, whether the applicant could be directed with an appropriate order of making such a deposit as the Petitioner had made. 30. A plea has been raised by the First Respondent that the name of eleventh Respondent has been mentioned as Veerapandi instead of Veeradurai and therefore the non-joinder of necessary party would be fatal to the Election Petition and as such the Election Petition itself is not maintainable. 31. Technically, there may be some difference, but, it is a matter to be seen on the merits of the Election Petition. The test is whether the Election Petition complies with provisions of Section 82. The substance of the matter must govern, because hypertechnically, when the public policy of the statute is fulfillment, process, namely cannot be permitted to play the procedural tyrant to defeat the vital judicial process, namely, investigation into the merits of the case. This is the proposition laid down by the Supreme Court in Ram Prasad Sarma v. Mani Kumar Subha and Others, 2003 (1) SCC 289. So, the non-joinder of parties as per Section 82 and non-compliance of Section 83(1) that documents are to be accompanied along with the Substitution Application and the difference in the names of the Respondents are all matters for adjudication in the Election Petition, after allowing the Application for substitution. 32. So, the non-joinder of parties as per Section 82 and non-compliance of Section 83(1) that documents are to be accompanied along with the Substitution Application and the difference in the names of the Respondents are all matters for adjudication in the Election Petition, after allowing the Application for substitution. 32. An Election Petition filed, though it abates on the death of the Petition therein, could be pursued by another person coming forward to prosecute that Election Petition as enjoined by Section 112 of the Act. But that does not make an Election petition a representative action in the sense in which it is understood in law. This has been held by the Supreme Court in Satrucharla Vijaya Rama Raju v. Jaya Raju and Others, 2006 (1) SCC 212 . 33. The question as to who are parties to the election dispute and who may be impleaded as parties to the Election Petition is to be examined on the scheme of the Act. The necessity to rid ourselves of notions based on common law or equity and the objects and reason of the Act and also the manner provided to be complied with while filing an Election petition are also to be decided only at the time of adjudication of the Election Petition. Another point that the document which is an evidence should be annexed to the Election Petition is also a matter for consideration in the Election Petition and it cannot be advanced at the stage when the Application for substitution is made. 34. In view of my findings as above, this Application for substitution of the applicant as Petitioner in place of the deceased Petition late P. Mohan in the Election Petition is allowed. With regard to depositing of amount as security for costs, as the original Election Petitioner has deposited a sum of Rs.2,000/- as per Section 117(1) of the Act at the time of presenting the Election Petition, the applicant, who is substituted in this Application is also under an obligation to deposit similar amount. Accordingly, the applicant is directed to deposit a further amount of Rs.2,000/- towards the same. Registry is directed to list the Election Petition after two weeks.