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Madhya Pradesh High Court · body

2015 DIGILAW 634 (MP)

Peeyush Sharma v. Yashodhara Raje Scindhia

2015-06-22

S.K.PALO

body2015
ORDER 1. On 15.6.2015, the counsel for the petitioner has pleaded no instruction on behalf of the petitioner. None appears for the petitioner today, which reflects the petitioner’s intend not to further prosecute the petition. 2. Keeping in mind the provision of sections 109 and 110 of the Representation of People Act, 1951, non-prosecution of election petition or default of appearance by petitioner is examined. 3. Whether the default of appearance or non-prosecution can be treated as on par with withdrawal or abandonment ? 4. There is clear provision in the said Act, 1951. In the opinion of this Court, non-prosecution or abandonment is certainly not withdrawal. Withdrawal is positive or voluntarily act while non-prosecution or abandonment may not necessarily be an act of volition. Non-prosecution or abatement might have caused due to negligence, indifference, inaction or even incapacity or inability to prosecute. But, it cannot be equated to that of withdrawal.Legislature has incorporated or envisaged different steps in case of withdrawal. But in case of non-prosecution or abandonment, if the election petitioner does not appear before the Court, the statute has not provided any prescribed procedure. This Court has hesitation to lay down different procedure, then what has been provided in the statute. Nor the provision of the Representation of People Act, 1951 can be enlarged or extended by analogy. 5. section 87 of the Act, 1951 provides that if there is no provision in the Act to the contrary, provisions of Civil Procedure Code 1908 would apply, which include Order 9 rule 8 Code of Civil Procedure under which the election petition is liable to be dismissed, if the petitioner does not appear to prosecute the petition. As there is no provision, in the Act, 1951 as regard when the petitioner choses to commit default either in appearance or in prosecuting the petition, certainly, the provision of Code of Civil Procedure, 1908 would apply, as is provided under section 87 of the Act, 1951. Therefore, in absence of any express provision, Order 9 rule 8 of the Code of Civil Procedure will apply. This view is fortified by the judgments rendered in Sunderlal Mannalal v. Nandramdas Dwarkadas [ AIR 1958 M.P. 260 ], Full Bench of the Allahabad High Court in Duryodhan v. Sitaram [AIR 1970 Allahabad -1], Rajendra Kumari Bajpai v. Ram Adhar Yadav [ 1976 1 SCR 255 ] and Full Bench decision of “Dr. This view is fortified by the judgments rendered in Sunderlal Mannalal v. Nandramdas Dwarkadas [ AIR 1958 M.P. 260 ], Full Bench of the Allahabad High Court in Duryodhan v. Sitaram [AIR 1970 Allahabad -1], Rajendra Kumari Bajpai v. Ram Adhar Yadav [ 1976 1 SCR 255 ] and Full Bench decision of “Dr. P. Nalla Thampy Thera v. B.L. Shanker and others [ AIR 1984 SC 135 ]. It is not necessary for this Court to express any opinion as to whether the omission to do so by the petitioner is deliberate or inadvertant, but the fact remains that the petitioner has failed to appear and has committed default of appearance or there is non prosecution of the election petition. In view of the above discussion, and looking to the ratio of the decisions mentioned above, the present election petition is hereby dismissed in default.