1 IN THE HIGH COURT OF BOMBAY AT GOA APPLICATION IN ELECTION PETITION NO. 15 OF 2007 IN ELECTION PETITION NO. 5 OF 2007 Mr. Umesh Suka Narvekar. ... Applicant versus Farmeena P. Khaunte, Major of age, r/o H.No.628, Near Kadamba Depot Road, Porvorim, Bardez, Goa. ... Respondent CORAM : N. A. BTITTO, J. DATE : 25TH APRIL, 2008. ORAL ORDER Heard learned Counsel on behalf of both the parties. 2. The Applicant herein is Respondent No.16 in an Election Petition filed by Smt. Fermina P. Khaunte, a defeated candidate, for declaring the election of Respondent No.1, the returned candidate, as void, on the allegation that the said Respondent No.1 had indulged in certain corrupt practices. 3. There is no dispute that the applicant as respondent No.16 was served with notice by registered post on 16-8-2007 and by ordinary mode on 21-8- 2007. The present application has been filed by the applicant on 29-11-2007 after 2 expiry of more than 90 days, after service and after the applicant was ordered to proceed ex-parte by order of this Court dated 5th October, 2007. The application has been filed in terms of Order VII, Rule 11, C.P.C. r/w Section 86 of the Representation of the People Act, 1951. 4. The applicant has sought for the summary dismissal of the election petition, for non compliance of certain provisions of the said Representation of the People Act, 1951, particularly the provisions of Sections 83(2) and 81(3) r/w Rules 9 and 10 of the Rules framed by this Court in regard to Election Petitions under the Representation of the People Act, 1951. The Applicant has also sought for striking out certain paragraphs of the Election Petition in terms of Order VI, Rule 16 r/w Order VII, Rule 11, C.P.C. 5. Needless to observe, sub-section (2) of Section 83 provides that any schedule or annexure to the petition is required to be signed by the Petitioner and verified in the same manner as the petition. Sub-Section(3) of Section 81 provides that every election petition shall be accompanied by as many copies thereof as there are Respondents mentioned in the petition and every such copy shall be attested by the Petitioner to be true copy of the petition. Rules 9 and 10 refer to the manner in which the service is required to be done. 6. The Petitioner has taken a preliminary objection stating that the application is not maintainable. 3 7. As per the Petitioner, the applicant has lost his opportunity to file his written statement to the Election Petition. That apart he is being proceeded ex- parte. Moreover 90 days expired on 20-11-2007 since the applicant was served with the Election Petition. The law permits a maximum period of 90 days for a Respondent to file his written statement and since the applicant chose not to avail of the said opportunity and no written statement was filed by raising his defence the applicant is debarred from raising any defence under the guise of filing the purported application under Section 86 of the Representation of the People Act, 1951 r/w Order VII, Rule 11, C.P.C. The Petitioner has also stated that the application filed by the applicant has got every trappings of a W.S. and filing the same in the manner it has been done is nothing but a crafty and unfair practice adopted by the applicant which needs to be deprecated. It is also stated that the applicant has copied down the pleadings of Respondent No.1. 8. As already stated, the application under consideration has been filed not only after the applicant has been ordered to proceed ex-parte but also after the outer limit to file the W.S. has expired. 9. At the time of hearing of the application, learned Counsel on behalf of the Petitioner in support of the plea taken by her, has placed reliance on the decision of the Apex Court in the case of Ramesh Chand Ardawatiya v. Anil Panjwani((2003) 7 SCC 350) and has contended that subsequent pleadings on 4 behalf of the applicant ought not to be entertained from the applicant upon his failure to file the W.S. 10. After the amendment of the Code of Civil Procedure, 1908, w.e.f. 1-7-2002 Order 8, Rule 1 now provides that the Defendant shall, within 30 days from the date of service of summons on him, present a written statement of his defence. The proviso further stipulates that where the Defendant fails to file the written statement within the said period of 30 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 from 90 days from the date of service of summons. Incidentally, it may be mentioned that the Applicant has made no attempt whatsoever to seek leave to file written statement nor to set aside the ex-parte order made against him. 11. There is no doubt that the Applicant, in the absence of defence being filed, would be entitled to participate in the trial of the petition, and, this is in the light of the law laid down by the Apex Court in Arjun Singh v. Mohindra Kumar(AIR 1964 SC 993) wherein the Apex Court observed as follows: “If a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. But, though he has the right to appear at an adjourned hearing, he has no right to set back the 5 hands of the clock. Order IX, Rule 7, makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in”. 12. In the case of Ramesh Chand Ardawatiya v. Anil Panjwani(supra) the Apex Court was dealing with the provisions of Order 8, Rule 1, as it stood prior to the amendment of 1-7-2002 and the Apex Court stated that a counter- claim not contained in the original written statement may be refused to be taken on record, if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was not obviously set up in the written statement within the meaning of Rule 6-A. There is no question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counter-claim therein. Equally there would be no question of a counter-claim being raised by way of “subsequent pleading” and there is no previous pleading on record. Considering the facts of that case the Apex Court observed that the Defendant having failed to file any written statement and also having forfeited his right to file the same, the trial Court was fully justified in not entertaining the counter-claim filed by the Defendant-Appellant. The Court further observed that a refusal on the part of the Court to entertain a belated counter-claim may not prejudice the Appellant inspite of the counter-claim 6 having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim. 13. In the case of Rishabh Kumar & Sons v. State of U.P. and others(AIR 1987 SC 1576) on which reliance has been placed, on behalf of the Applicant, the Apex Court has stated that if the Court is satisfied that the Election Petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for the filing of the written statement, instead it can proceed to hear the preliminary objection and strike out the pleadings. If after striking out the pleadings the Court finds that no triable issue remains to be considered, it has power to reject the Election Petition under Order 7, Rule 11. 14. Order 7, Rule 11 provides as follows:- “11. Rejection of plaint.- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp- paper within a time to be fixed by the Court, fails to do so; 7 (d) where the suit appears from the statement in the plaint to be barred by any law; 15. The provisions of Order 8, Rule 1, have been amended so that the trials of the suits are expedited and not delayed. No doubt, the provisions of Order 7, Rule 11 do not stipulate the stage when such an application could be filed, but certainly, the same ordinarily ought not to be entertained with a view to defeat the provisions of Order 8, Rule 1, C.P.C., as amended. If liberty is extended to the parties to file an application under Order 7, Rule 11, after forfeiting their right to file written statement such a step can only delay the trials of the suits. The Apex Court in Ramesh Chand Ardawatiya v. Anil Panjwani(supra) has stated that a counter-claim is not entertainable where there is no W.S. on record. Moreover, although an application under Order 7, Rule 11 strictly cannot be termed as a pleading, in my view, the same ought not to be entertained from a Respondent who has allowed the time to file W.S. to be lost and against whom an order to proceed ex-parte has been made. 16. In this context, it would be apt to refer to the Judgment of the Division Bench of this Court in Nishit M. Prabhu Verlekar v. Chandranath Vinayak Dhume and others(AIR 1986 Bombay 46) wherein the learned Division Bench of this Court stated that once a summons for settlement of issues is served on the Defendants they are bound to file their written statement and there is no provision whatsoever in the Code which provides that a Defendant can 8 raise any objection to the maintainability of the suit by any application before filing his defence. If by piecemeal application they are permitted to take objections, and even assuming that such course does not contravene any procedure of the law, it may, however, lead to undesirable result and a cantankerous Defendant may go on filing one application after other in raising all sorts of objections and inviting the trial Court to decide those applications without filing his written statement. This Judgment of the learned Division Bench will be all the more relevant after Order 8, Rule 1, C.P.C. has been amended fixing the outer limit of 90 days to file the W.S. 17. In the light of the above, the application filed by the Applicant/Respondent No.16 is hereby rejected. N. A. BRITTO, J. RD