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2021 DIGILAW 391 (GAU)

Karikho Kri v. Nuney Tayang

2021-05-03

NANI TAGIA

body2021
JUDGMENT : Nani Tagia, J. 1. Heard Mr. T.T. Tara, learned counsel for the applicant/returned candidate and Mr. D. Mazumdar, learned Senior Counsel for the opposite party/election petitioner. 2. This is an application under Order VIII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908(CPC) seeking leave to admit the written statement filed beyond the period of 90 days [The prayer column of this application having been amended by the order of this Court dated 17.03.2021 in IA(C)42(AP)2021]. 3. The applicant is the respondent No. 1 in Election Petition No. 01 (AP)2019, and a returned candidate as a Member of Legislative Assembly of 44 Tezu (ST) Assembly Constituency in the 2019 General Election held for constitution of the Legislative Assembly in the State of Arunachal Pradesh. 4. The respondent No. 1 as an election petitioner had filed the Election Petition No. 01 (AP) 2019 assailing the election of the applicant as a Member of Legislative Assembly of 44 Tezu (ST) Assembly Constituency in the 2019 General Election held for constitution of the Legislative Assembly in the State of Arunachal Pradesh. The applicant states that he had received the Election petition No. 01(AP)2019 filed by the respondent No. 1/election petitioner on 15.09.2019. After the receipt of the Election petition, as above, on 15.09.2019, the applicant had contacted his Advocates for appropriate legal steps in the matter on 15.10.2019. The counsel for the applicant thereafter, entered appearance by filing a Vakalatnama on 25.10.2019, in the Election petition before this Court along with two Interlocutory Applications, which however, were withdrawn with the leave of the Court. 5. According to the applicant/returned candidate, the written statement in the Election petition ought to have been filed on or before 13.12.2019. The applicant further states that the written statement in the Election petition could not be filed on or before 13.12.2019 and also immediately thereafter as well, as the applicant was busy on his official tour to his constituency to redress the grievances of the public from 08.12.2019 to 16.12.2019.. Thereafter, as the applicant made an attempt to leave Tezu for Itanagar on 17.12.2019 to file the written statement, the applicant, however, could not leave out of Tezu town on account of complete bandh and road blockage in the State of Assam following mass protest against the Citizenship Amendment Bill introduced in the Parliament and the bandh continued till 23.12.2019. Thereafter, as the applicant made an attempt to leave Tezu for Itanagar on 17.12.2019 to file the written statement, the applicant, however, could not leave out of Tezu town on account of complete bandh and road blockage in the State of Assam following mass protest against the Citizenship Amendment Bill introduced in the Parliament and the bandh continued till 23.12.2019. Thereafter, there were series of advisories issued by the District Administration not to travel through the State of Assam during the protest period. Despite the situation, as indicated above, the applicant, however, reached Itanagar on 21.12.2019, and contacted his counsel over phone for filing of the written statement and to hand over the relevant documents for preparation of the written statement by the counsel. The counsel, however, informed the applicant over phone that the engaged counsel was out of station and in view of the fact that the Court was also closed for winter Break from 23.12.2019 to 01.01.2020, the applicant had to come back to Tezu on 23.12.2019. The applicant further states that on 02.01.2020, he had come back to Itanagar and met his counsel on 03.01.2020 and handed over the original documents for preparation of written statement and his counsel, thereafter, took another 4(four) days to prepare the written statement for filing before the Court. On 08.01.2020, he had signed the written statement prepared to be filed before the Court, but due to procedural delay in filing process in the Registry, the written statement for filing could not be tagged along with Election Petition listed on 08.01.2020, on which date the Election Petition was directed to be fixed for submission of draft issue after 3 (three) weeks. The applicant, therefore, contends that on and from 13.12.2019, which was the last date on which the written statement ought to have been filed and 08.01.2020, which was the date the written statement was presented before the Registry of this Court, there has been a delay of 26 days, which had occurred for the reasons stated above and was not intentional, for which the applicant had no control and therefore, the applicant prays for accepting the written statement filed 26 days after the period of 90 days expired from the date of receipt of the notice of Election Petition. 6. 6. The respondent No. 1/election petitioner has filed an objection, whereby it has been contended that as the applicant/returned candidate had received the notice/summon of the Election Petition on 15.09.2019, as per his one admission, the written statement ought to have been filed within 30 days thereafter, and in any case within the outer limit of 90 days from 15.09.2019. However, the applicant/returned candidate did not file his written statement within 30 days from 15.09.2019 as required under Rule 1 Order VIII of the Code of Civil Procedure, 1908 nor the applicant/returned candidate took any steps to file the written statement within the stipulated period of 30 days. It was only after the expiry of stipulated period of 30 days from the date of receipt of summons in the Election Petition that the applicant admittedly contacted his counsel for taking steps in the matter, which according to the respondent No. 1/election petitioner is not an acceptable explanation whatsoever for not filing his written statement within the stipulated period of 30 days or within the outer limit of 90 days. The respondent No. 1/election petitioner further contends that the delay in filing the written statement is not merely 26 days, but is a continuing one since the date of receipt of the summon of the Election petition by the applicant/returned candidate. Rule 1 of Order VIII of the Code of Civil Procedure, 1908 mandates that a written statement shall not be allowed to be filed later than 90 days from the date of service of the summons. As such, the respondents No. 1/Election petitioner contends that the applicant/returned candidate may not be permitted to file his written statement and the same may not be accepted by this Court. 7. Mr. T.T. Tara, learned counsel for the applicant/returned candidate, by relying on the decision of the Hon'ble Supreme Court in Kailash Vs. Nanhku, reported in (2005) 4 SCC 480 has contended that as Order VIII Rule 1 of the Code of Civil Procedure, 1908 have been held to be directory in the case referred to hereinabove, the applicant/returned candidate may be allowed to file the written statement in the instant Election Petition despite the same would be beyond the 90 days, as prescribed in Order VIII Rule 1 of the CPC, 1908 on the explanation/justification/ground mentioned herein in this application. 8. Mr. 8. Mr. Mazumdar, learned Senior Counsel for the opposite party/election petitioner, on the other hand, by relying on the decisions of the Hon'ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, reported in (2005) 6 SCC 344 and Atcom Technologies Ltd. Vs. Y.A. Chunawal & Co. & Ors., reported in (2018) 6 SCC 639 , contends that though, provision of Order VIII Rule 1 of the CPC, 1908 have been held to be not mandatory and directory by the Hon'ble Supreme Court, yet, the written statement sought to be filed after the expiry of 90 days, as prescribed in Order VIII Rule 1 of the CPC, 1908 should not be allowed in a routine manner, so to nullify the period fixed by Order VIII Rule 1 of the CPC, 1908, but should only be allowed in exceptionally hard cases. 9. Rival contentions advanced by the learned counsels appearing for the contesting parties have received due consideration of this Court. 10. Section 87(1) of the Representation of People Act, 1951, in so far it is relevant, reads as under: "87. Procedure before the High Court.-(1) Subject to the provisions of this Act and of any rules made there under, 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...." 11. Order VIII Rule 1 of the Code of Civil Procedure, 1908 reads as follows: "Written Statement.-The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety, days from the date of service of summons." 12. Section 87(1) of the Representation of People Act, 1951 provides subject to the provisions of this Act and of any rules made there under, 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 to the trial of suits. 13. Section 87(1) of the Representation of People Act, 1951 provides subject to the provisions of this Act and of any rules made there under, 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 to the trial of suits. 13. Under Order VIII Rule 1 of the Code of Civil Procedure, 1908, the defendant is required to file his written statement of defence within 30 days from the date of service of summons on him. If the defendant fails to file the written statement within the said period of 30 days, the Court has the power to allow filing of a written statement after 30 days for reasons to be recorded in writing, which, however, shall not be later than 90 days from the date of service of summons. The aforesaid 2(two) provisions, namely, Section 87 of the Representation of People Act, 1951 and Order VIII Rule 1 of the CPC, 1908 have been interpreted by the Hon'ble Supreme Court in Kailash(supra) to mean that Section 87 of the Representation of People Act, 1951, is a guarded provision which provides that the procedure prescribed by the Code of Civil Procedure, 1908 for trial of the suits is not just adopted as if incorporated into the Act so as to govern the trial of the Election Petition, but the procedure prescribed under the CPC to the trial of suits has been made applicable to the trial of every Election Petition "as nearly as may be" and therefore, the provision of CPC, 1908 will only act as a guide to the trial of Election Petition. While the provision of the CPC, 1908 have been held to be applicable for the purpose of guidance in the trial of Election Petition, the provision of Order VIII Rule 1 of the CPC, 1908 which prescribes 30 days and 90 days respectively, within which time, the written statement is required to be filed, have also been held to be not a mandatory provision and a directory in nature. The High Court, therefore, is not powerless to extend the time for filing the written statement simply because the time limit for filing the written statement within the allowance permitted by the proviso to Order VIII Rule 1 of the CPC has come to an end. 14. The High Court, therefore, is not powerless to extend the time for filing the written statement simply because the time limit for filing the written statement within the allowance permitted by the proviso to Order VIII Rule 1 of the CPC has come to an end. 14. Similar principle of law has been laid down in the case of Salem Advocate Bar Association (supra) as relied on by the learned Senior Counsel for the opposite party/election petitioner stating that in an application for filing of a written statement beyond the period prescribed of 90 days under Order VIII Rule 1 of the CPC, 1908, the Court should not permit filing of such written statement beyond the period prescribed in a routine manner, but may be allowed only in an exceptionally hard cases. 15. On examination of the ratio laid down in both the cases by the Hon'ble Supreme Court in Kailash(supra) as well as Salem Advocate Bar Association(supra), it is noticed that though, procedure prescribed under the CPC, 1908 is to be followed in atrial of an Election Petition, the Code of Civil Procedure, 1908, however, only serves as a guideline in the trial of the Election Petition. In the absence of any other Rules of procedure made either under the Representation of People Act, 1951 or by the High Court, the procedure prescribed in the Code of Civil Procedure would normally have to be followed in the trial of Election Petition. Order VIII Rule 1 of the CPC, 1908 is the provision which prescribes a time limit for filing of a written statement. The said period prescribed under Order VIII Rule 1 of the CPC, 1908 have, however, been held by the Hon'ble Supreme Court in the cases referred to hereinabove, as a directory in nature and the Court in an appropriate case(s) would still have the power to allow the defendant to file the written statement beyond 90 days. 16. In the light of the law as indicated above, in the instant case, it is noticed that the applicant/returned candidate admits to have received the notice of Election Petition on 15.09.2019. 16. In the light of the law as indicated above, in the instant case, it is noticed that the applicant/returned candidate admits to have received the notice of Election Petition on 15.09.2019. After the applicant/returned candidate had received the notice of Election Petition on 15.09.2019, the applicant has stated that his counsel had entered appearance on 25.10.2019 and computing the period of 90 days from 15.09.2019, the written statement by the applicant ought to have been filed on or before 13.12.2019. The applicant further states that he could not file the written statement on or before 13.12.2019 because he was busy attending to the various grievances of the public from 08.12.2019 to 16.12.2019 and thereafter, on 17.12.2019, he could not move out from Tezu town as there was complete bandh and road blockage in the entire State of Assam following mass protest against the Citizenship Amendment Bill which continued till 23.12.2019. He further states that he somehow reached Itanagar on 21.12.2019, but he was informed by one of his counsel over telephone that the engaged counsel in the case was out of station and, in the meanwhile, the Itanagar Bench of Gauhati High Court was closed on and from 23.12.2019 to 01.01.2020, on account of winter holidays. The applicant, therefore, also left Itanagar and came back to Tezu on 23.12.2019. The applicant, thereafter, came back to Itanagar on 2.1.2020 and met his counsel on 3.1.2020 and handed over the original documents for preparation of the written statement and after the written statement was prepared, the applicant was asked by his counsel to file the written statement on 8.1.2020. Accordingly, the applicant came down to the High Court premises on 8.1.2020 to sign the affidavit and the application accompanied with the written statement, but due to procedural delay in filing the written statement, the written statement could not be tagged along with Election Petition listed on 8.1.2020, on which date this Court had passed an order in the Election Petition for submission of draft issues. The applicant, thus, seeks leave of this Court to file the written statement. 17. As can be noticed, the applicant has provided some explanation for not filing the written statement in between 13.12.2019 and 08.01.2020. The applicant, thus, seeks leave of this Court to file the written statement. 17. As can be noticed, the applicant has provided some explanation for not filing the written statement in between 13.12.2019 and 08.01.2020. The explanation provided for the period in between 13.12.2019 and 8.1.2020 on account of series of bandh and road blockage in the State of Assam as a mark of protest against the Citizenship Amendment Bill appears to be a plausible one, as the protest launched all over the State of Assam against the Citizenship Amendment Bill in the month of December, 2019 is in the public domain. The applicant, however, has not offered any explanation for the period between 15.9.2019 and 13.12.2019. Though the lack of explanation for the period 15.9.2019 to 13.12.2019, is a serious lapse(s) on the part of the applicant, which may invite rejection of the application, however, in the course of argument advanced by the learned counsel for the applicant/returned candidate, it had appeared to this Court that the applicant/returned candidate did not take any steps for filing of the written statement during the period 15.09.2019 to 13.12.2019 probably on account of a mistaken legal advice given to the applicant/returned candidate that the applicant had a right to file the written statement at any point of time, if the same is filed within 90 days from the date of receipt of notice of the Election Petition. 18. Viewed in that context, the argument advanced by the learned Senior Counsel for the opposite party/election petitioner that permission to file the written statement beyond the period of 90 days may be granted by this Court only in exceptionally hard cases may found to be well placed. 18. Viewed in that context, the argument advanced by the learned Senior Counsel for the opposite party/election petitioner that permission to file the written statement beyond the period of 90 days may be granted by this Court only in exceptionally hard cases may found to be well placed. However, considering the fact that the provision of Order VIII Rule 1 of the Code of Civil Procedure, 1908 have been interpreted by the Hon'ble Supreme Court to be directory in nature and the Court in an appropriate case(s) may still allow the defendant to file the written statement beyond 90 days; and, also by giving the applicant/returned candidate a benefit of doubt that the applicant/returned candidate might have been under a mistaken legal advice for not filing the written statement in between the period 15.09.2019 to 13.12.2019, and also having found the explanation provided by the applicant/returned candidate for the period 13.12.2019 to 08.01.2020 as a plausible one, I am inclined to allow the applicant/returned candidate to file the written statement in Election Petition No. 01(AP)2019 for the ends of justice. 19. The decision of the Hon'ble Supreme Court rendered in Atcom Technologies Ltd. (supra) relied on by the learned Senior Counsel for the opposite party/election petitioner being for condonation of delay of more than 5 (five) years in filing the written statement in a suit filed and not being in the trial of Election Petition, the principle of law applied in Atcom Technologies Ltd. by the Hon'ble Supreme Court would not be applicable in the instant case. 20. Accordingly, the applicant/returned candidate is allowed to file his written statement in Election Petition No. 01 (AP) 2019, within a period of 2(two) weeks from today with an advance copy to the learned counsel for the opposite party/election petitioner, on the condition that if the written statement is not filed within 2(two) weeks from today, same shall not be accepted. The I.A. stands allowed and disposed of, in terms above.