Case: Mohan Raj Vs. Surendra Kumar Taparia &amp; Ors

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 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 The question raised is that Periwal was not a candidate at the election since he had withdrawn and, in any case this definition need not be read in Section 82 (b) which should be limited to contesting candidates. Under Section 87 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 of under Section 38. It is submitted that S. 82 (b) should be limited to the contesting candidates. It is also submitted that when Ss. 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 83 (1) (b), it is said, can set out particulars of corrupt practices "against parties" and that would include contesting candidates, their 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 It is submitted that a candidate who has withdrawn is no longer a candidate and hence cannot be a party.9. 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. Kamaraj Nadar v. Kunju Thevar, 1959 SCR 583 =(AIR 1958 SC 687 ) but that ruling may not strictly be appropriate since it was based on Section 55A (2) which is now repealed. However, other cases (Amin Lal v. Hunna Mal, 1965-1 SCR 393 = (AIR 1965 SC 1243 ) and Har Swarup v. Brij Bhushan Saran, 1967-1 SCR 342 = (AIR 1967 SC 836 ) ) consider this point.It is there laid down that a candidate who is duly nominated continues to be a candidate for purpose of Section 82 (b) 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, 1958-15 ELR 301 at p. 308 = (AIR 1958 All 809 at p. 812).In that case our brother Bhargava (N. L.Chaturvedi J. concurring) has examined in the Allahabad High Court these provisions from every angle which are presented to us and has adequately answered all the arguments.10. It is argued that the Civil Procedure Code applies and O. 6 R. 17 and O. 1 R. 10 enable the High Court respectively to order amendment of a petition an to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of references to Periwal. This argument cannot be accepted.No doubt the power of amendment is preserved to the Court and O. 1 R. 10 enables the Court to strike out parties but the Court cannot use O. 6 R. 17 or O. l 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 S. 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.11. An attempt is made to distinguish the cases cited by us on the ground that now the provisions of Ss. 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 submitted 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 S. 86 (1). 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 l965-1 SCR 393 =(AIR 1965 SC 1243 ) 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 Pratap, 1965 SCR 175 = (AIR 1965 SC 677 ) since the facts were assumed, cannot be said to record any decision.12. Lastly, it is submitted that Periwal was being charged in his 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 not a candidate at the election since he had withdrawn and, in any case this definition need not be read in Section 82 (b) which should be limited to contesting candidates. Under Section 87 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 of under Section 38. It is submitted that S. 82 (b) should be limited to the contesting candidates. It is also submitted that when Ss. 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 83 (1) (b), it is said, can set out particulars of corrupt practices "against parties" and that would include contesting candidates, their 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.It is argued that the Civil Procedure Code applies and O. 6 R. 17 and O. 1 R. 10 enable the High Court respectively to order amendment of a petition an to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of references to Periwal. This argument cannot be accepted.No doubt the power of amendment is preserved to the Court and O. 1 R. 10 enables the Court to strike out parties but the Court cannot use O. 6 R. 17 or O. l 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 S. 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.11. An attempt is made to distinguish the cases cited by us on the ground that now the provisions of Ss. 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 submitted 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 S. 86 (1). 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 l965-1 SCR 393   =(AIR 1965 SC 1243  ) 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.Lastly, it is submitted that Periwal was being charged in his 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.