Appeal No 1801 of 1967
Appeal under section 116 A of the Representation of the People Act 1951 from the judgment and order dated October 10 1967 of the Rajasthan High Court in Election Petition No 13 of 1967
RM Hazarnavis and BRAgarwala for the appellant
SV Gupte Sardar Bahadur Saharya Vishnu Bahadur Saharya and Yogindra Khusalani for respondent No 1
HK Puri for respondent No 2
The Judgment of the Court was delivered by Hidayatullah CJ
This is an appeal by the unsuccessful election petitioner against the judgment of the High Court of Rajasthan dated October 10 1967
The election petition was filed to challenge the election of the first respondent at the Pali Parliamentary Constituency in the Fourth General Elections
At that election seven nomination papers were filed
Two of the candidates withdrew
Amongst them was one RD Periwal
There were thus only five contesting candidates
of these the first respondent obtained 147509 votes
His closest rival respondent No 2 now deceased obtained 121438 votes
The remaining candidates got a little over thirty thousand votes between them
The election petitioner appellant here is an elector of Pali
In his petition he joined the returned candidate and the other four contesting candidates
Many grounds were urged in the petition
The first ground was that the returned candidate or his election agent prompted hatred against the Congress appealed to religion and sent persons dressed as Sadhus preaching that if Congress was returned to power there would be go hatya and took pledges or oaths from the voters
The second was that the returned candidate and his election agent were guilty of suppression of true expenses and filed false returns
The third ground was that the candidate or his election agent obtained the services of Government servants in furthering the election of the returned candidate
6 3 2 The last ground was that the returned candidate and his election agent and other persons with the consent of the returned candidate paid and offered bribes between January 13 1967 to February 14 1967 to induce the electors directly or indirectly to vote for the returned candidate
The petition was scrutinised and was found to be in order
The returned candidate entered appearance on May 15 1967 and filed a written statement a month later
He took the objection that the allegations were vague and lacking in necessary particulars
The High Court thereupon ordered better and fuller particulars on July 2 1967
The election petitioner was asked to file an application for amendment and a draft of the amended petition
This was done but there were objections
The objections were decided on August 1 1967
Some of the allegations of corrupt practices were deleted for want of sufficient particulars
The other amendments were allowed
16 of the petition in the amended form read as follows That the respondent No 1 and his election agents Messrs RD Penwal and Shri Lunia and other persons with the consent of the respondent No 1 paid and offered bribes between 13 1 67 to 20 2 67 with the object of inducing directly or indirectly electors to vote for respondent No 1
The following amongst other are some of the instances Instances were mentioned On August 24 1967 written statement was filed in which an objection was taken that as RD Periwal against whom corrupt practices had been alleged was not joined as a party the petition was liable to be dismissed under section 86 1 of the Representation of the People Act
This preliminary objection was heard by the Judge on August 29 1967
Same day an application for amendment of the election petition was fled
It was stated in the election petition that the election petitioner had gathered the impression that Inder Kumar Lucia was the election agent from a telegram sent by Lunia that the name of RD Periwal in paragraph 16 crept in because of uncertainty and inadvertence  and the reference to election agent came to be made in an omnibus manner 
What this statement means is not very clear
However it was pointed out that there was no intention to make any allegation against RD Periwal but two or three allegations of corrupt practice were imputed to Lunia
A request was therefore made that the reference to election agent  in all the paragraphs charging corrupt practices should be deleted and it was specifically prayed that
the name of RD Periwal in paragraph 16 should also be 633 deleted
In short it was intended to withdraw allegations against Periwal
This application was not separately considered by the High Court but the election petition itself was dismissed under section 861 since Periwal who was a duly nominated candidate who withdrew later had to be compulsorily joined under section 82b if allegations of corrupt practice against him were made
It will be noticed therefore that in the original election petition allegations were made against the returned candidate or his election agent
Two of the allegations of corrupt practice were against the returned candidate and his election agent
They were charges of taking assistance of Government servants and bribing voters
In connection with the bribery charge no names were mentioned
In his reply to the petition the returned candidate denied the charges in respect of himself and his election agents using the plural
In the amended petition in one place the returned candidate and his election agent were mentioned with Lunia as the election agent and in another
which we have quoted earlier two election agents
Lunia and Periwal were mentioned by name
The returned candidate in reply denied that Lunia was the election agent
In the second application for amendment filed on August 29 1967 attempt was made to withdraw allegations against the election agent and to delete all references to Periwal
This was resisted and it was stated that Periwal was the only election agent appointed by the returned
candidate
The question is whether the election petition was liable to be dismissed for not joining Periwal who was a duly nominated candidate and against whom charges of corrupt practice were made  Mr Hazarnavis contends that the amendments were made in answer to the order for better and fuller particulars
He submits that the original petition did not name Periwal although the amended petition did and the High Court need not have mixed up the two petitions to find out whether Periwal had to be joined or not According to him the original petition could not be dismissed since it did not name Periwal and the amended petition only supplied particulars as required by the Judge
He submits that even in giving instances of bribery in paragraph 16 although the name of Periwal was mentioned in the opening part no instance was cited with Periwal s name although other names were mentioned
Therefore he submits that Periwal was not in the mind of the election petitioner at all and the mention of Periwal was merely an error
In reply it is pointed out that all allegations were supported by affidavits and that all references to the election agent and allegations against him were affirmed on personal knowledge by the election petitioner
In the Original  petition no names were given but when better particulars were ordered a categoric refer to the election agents was made by referring to Lunia and Periwal and this was again affirmed on personal knowledge by the 634 petitioner
It is pointed out that in the list of workers of time returned candidate Periwal was shown as the election agent and the returned candidate affirms that Periwal was the only election agent
It is shown by way of illustration that the return of election expenses was filed by Periwal as the election agent and the allegations of corrupt practice in respect of the election expenses related to Periwal
On examining the entire record with the assistance of counsel we are satisfied that Periwal was always meant when the reference was to an election agent and tiffs was more clearly specified when the amended petition was filed
Therefore the attempt was first to name him and now to withdraw his name to save the petition
This in our opinion could not be done and the High Court last right in dismissing the election petition and disallowing the amendment by implication
We give our reasons briefly It is necessary to read the Act backwards from section 86 1 
That section reads 86
Trial of election petitions
 1  The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117
This is a peremptory provision and admits of no exception
The Court must enforce it strictly if there is a non compliance with the requirements of section 82 among others
In this connection we have to read section 82b which reads as follows 82
Parties to the petition
A petition shall join as respondents to his petition a b any other candidate against whom allegations of any corrupt practice are made in the petition
 This makes it incumbent that any candidate against whom a charge of corrupt practice is made must be joined as a party
Who is a candidate is laid down in section 79b
That provision reads as follows 79 Definitions
In this Part and in Part VII unless the context otherwise requires
a b candidate  means a person who has been or claims to have been duly nominated as a candidate at any election
and any such person shall 635 be deemed to have been a candidate as from the time when with the election in prospect he began to hold himself out as a prospective candidate Since Periwal was a candidate who was duly nominated at an election he would be a candidate within the meaning assigned to that word by this definition
The question raised is that Periwal was a candidate at the election since he had withdrawn and in any ease this definition need not be read in section 82b which should be limited to contesting candidates
Under section 37 a candidate may withdraw and once the notice of withdrawal is given it is final
After the date of withdrawal passes a list of contesting candidates is drawn up under section 38
It is submitted that section 82b should be limited to the contesting candidates
It is also submitted that when sections 100 and 123 speak of a candidate they refer to a candidate whose candidature subsists to the time of the election that is to say after the time for withdrawal passes
The petition under section 831 b it is said can set out particulars of corrupt practices against parties and that would include contesting candidates election and other agents and persons other than candidates and their agents
It is submitted that a candidate who has withdrawn is no longer a candidate and hence cannot be a party
The argument cannot be entertained
These questions have already been considered by this Court on more than one occasion
They were first considered in K Kamaraja Nadar V Kunju Thevar and Others1 but that ruling may not strictly be appropriate since it was based on section 55A2 which is now repealed
However other cases Amin Lal V Hunna Mal2 and Har Swarup  Anr
V Brij Bhushan Saran  Ors 3 consider this point
It is there laid down that a candidate who is duly nominated continues to be a candidate for purposes of section 82b in spite of withdrawal
This really decides the question which has been mooted before us
A very detailed examination of the same question is to be found in Chaturbhuj V Election Tribunal Kanpur  Ant4
In that case our brother Bhargava M L Chaturvedi J concurring has examined in the Allahabad High Court these provisions from every angle which is presented to us and has adequately answered all the arguments
It is argued that the Civil Procedure Code applies and O VI r 17 and O 1 r 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
No doubt the power of amendment is preserved 1 2 19651 1 SCR 393
3  4 636 to the court and O 1 r 10 enables the court to strike out parties but the court cannot use O VI r 17 or O 1 r 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
An attempt is made to distinguish the cases cited by us on the ground that now the provisions of sections 4 to 25 of the Indian Limitation Act are applicable to election petitions and the amendment of the petition and joining of parties can take place at any time
It is subtitled that now the cases must be decided under the amended law
We need not go into this matter
It is doubtful whether these provisions of the Limitation Act apply at all
The petitioner has not asked to join Periwal
He only wants an amendment to delete allegations of corrupt practice against him
This cannot be permitted since it will defeat the provisions of section 861 
Every election petition can be saved by amendment in this way but that is not the policy of the law
The dismissal is peremptory and the law does not admit of any other approach
It is significant that in Amin Lal V Hunna Mal1 although the matter was not gone into from this angle it was said that the amendment for better particulars was not intended to enable the election petitioner to remove the defect in presentation or in the joinder of parties
Sheopat Singh V Ram Pratap2 since the facts were assumed cannot be said to record any decision
Lastly it is submitted that Periwal was being charged in character as an election agent and not as a candidate
This submission runs counter to the amendment petition which says that he was not an election agent and therefore he was really charged in his capacity as an individual and as he was a duly nominated candidate he had to be joined
The argument really contradicts the last amendment petition and cannot be entertained
For the reasons above stated it must be held that the decision of the High Court under appeal was correct
The appeal fails and will be dismissed with costs
VPS Appeal dismissed


Summary:
Seven candidates were duly nominated for election from a Parliamentary constituency but two of the candidates withdrew
The first respondent who was one of the remaining five contesting candidates was declared elected
His election was challenged on various grounds by the appellant who was an elector
To the petition only the returned candidate first respondent and the other four contesting candidates were made parties
On the first respondent s objection that the allegations were vague the appellant amended his petition
In his amended petition with respect to one of the grounds namely offering bribes to voters the appellant gave instances of bribes having been offered or paid by the first respondent his election agents and others
Two persons were referred to as the election agents of the first respondent
One of them was one of the candidates who had withdrawn and who was not made a party to the election petition
The first respondent in his written statement contended that the petition should be dismissed under section 861 of the Representation of the People Act 1951 as the candidate against whom corrupt practices were alleged and who was a necessary party under section 82b was not made a party to the election petition
The appellant then filed an application for amendment of his petition wherein he stated that by election agent  he never meant the candidate who had withdrawn that there was never any intention to make any allegations against that candidate and that his name may be deleted from the petition as he was not the first respondent s election agent and reference to him was
made by inadvertence
The High Court dismissed the election petition under section 861
In appeal to this Court HELD 1 A candidate who is duly nominated continues to be a candidate for purposes of section 82b in spite of withdrawal and if he is not joined as a party when allegations of corrupt practice are made against him the election petition shall be dismissed under section 861
F Aminlal V Hunna Mal  and Har Swarup V Brij Bhushan Saran   followed
Chaturbhuj V Election Tribunal Kanpur 1958 15 ELR 301 approved
2 The record showed that allegations of corrupt practice were made against the candidate who had withdrawn
It could not be contended by the appellant that the allegations were made against him not as a candidate but in the character of an election agent because the appellant had himself stated in his application for amendment that the candidate who had withdrawn was not the election agent of the first respondent
Therefore the 631 allegations were made against an individual who was a candidate within the meaning of section 82b and who had to be joined as a necessary party to the election petition
634 B C 636 F G 3 The Court cannot use O VI r 17 or O I r 10 of the Civil procedure Code to avoid the consequences of non joinder for which a special provision namely section 86 is found in the Act
The Civil procedure Code applies to the trial of election petitions only subject to the provision of the Representation of the People Act and the rules made thereunder
When the Act makes a person a necessary party and provides that the petition shall be dismissed if he is not joined the power in the Code of amendment or to strike out parties
cannot be used at all
If the deletion prayed for by the appellant was granted every election petition can be by amendment and the provisions of section 861 and the policy of frae law will be defeated
636 A C D E