Case: Dr. P. Nalla Thampy Thera Vs. B.L. Shanker &amp; Others

by any respondent.21. This Court in Dhoom Singh v. Prakash Chandra Sethi ((1975) 3 SCR 595 , 599 : (1975) 1 SCC 597 , 601-02 : AIR 1975 SC 1012 ), held : (SCC pp. 601-02, paras 9, 10)The Legislature in its wisdom has chosen to make special provisions for the continuance of the election petition only in case of its withdrawal or abatement. It has yet to thought it fit to make any provision in the Act permitting intervention of an elector of the constituency in all contingencies of failures of the election petition either due to the collusion or fraud of the original election petitioner or otherwise. It is not necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent. It may be a case of casus omissus. It is a well-known rule of construction of statutes that "A statute, even more than a contract, must be construed, it res magis valeat quam pereat, so that the intentions of the Legislature may not be treated as vain or left to operate in the air." A second consequence of this rule is that "a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made" - See pages 69 and 70 of Craies on Statute Law - 6th edition.It seems plain the High Court is enjoined to dismiss an election petition which doses not comply with the provision of Section 81 or Section 82 or Section 117 of the Act. In the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collision between the election petitioner and the returned candidate the High Court is fraudulent misled to act under Section 86(1). Even in such a situation we find no provision in the Act under which the High Court could permit a person like the appellant to intervene in the matter or to substantiate his allegations of fraud or collusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in the matter. It there be any necessity of avoiding any such situation as the present one was said to be it is for the Legislature to intervene and make clear and express provision of law for the purpose.22. The ratio of this decision as also the observations in Basappa case (1959 SCR 611 , 624 : AIR 1958 SC 698 : 14 ELR 296), the appellant contends, are wrong in view of the earlier decisions of this Court taking the view that an election dispute involves the entire constituency because of the paramount necessity of having purity of an election in a democracy safeguarded. We do not think the appellants contention can be accepted. The earlier decisions of this Court do not in any way militate against the views taken in Dhoom Singh case ((1975) 3 SCR 595 , 599 : (1975) 1 SCC 597 , 601-02 : AIR 1975 SC 1012 ) and the observations made in Basappa case (1959 SCR 611 , 624 : AIR 1958 SC 698 : 14 ELR 296). Those decisions were not concerned with the question as to whether an election petition can be dismissed for default. The consensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied an to the extent provision has not been made, the Code would be applicable. About eight years back this Court had occasion to point out that if the intention of the Legislature was that a case of this type should also be covered by special provision, this intention was not carried out and there was a lacuna in the Act. We find that even earlier in Sheodhan Singh v. Mohan Lal Gautam ((1969) 3 SCR 417 , 421 : (1969) 1 SCC 408 , 411 : 41 ELR 146), this Court had stated : (SCC p. 411, para 9)From the above provisions it is seen that in an election, petition, the contest is really between the constituency on the one side and the person or persons complained of on the other. Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not allowed to avoid the consequences of their misdeeds.23. We must assume that the Legislature takes notice of the decisions of this Court and if it was of the view that its true intention had not been carried out or that a lacuna remained in the statute it could have removed the lacuna by amending the Act making its intention clear and manifest, particularly when many amendments have subsequently been made. The fact that nothing has been done leaves an impression in our mind that this Court had not misread the situation. At any rate it is not for the Court to fill up any lacuna in the legislation and as the law stands, the appellant has no right to contend that the view taken by this Court is not tenable in law. We may recall the observation of Lord Denning in Seaford Court Estates Ltd. v. Asher ((1949) 2 All ER 155 : (1949) 2 KB 481 (CA)) :A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.

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

Explanation:
0[ds]16. There is no support in the statute for the contention of the appellant that an election petition cannot be dismissed for default. The appellant contended that default of appearance or non-prosecution of the election petition must be treated as on par with withdrawal or abatement and, therefore, though there is no clear provision in the Act, the same principle should govern and the obligation to notify as provided in Section 110 or 116 of the Act should be made applicable. We see no justification to accept such a contention. Non-prosecution or abandonment is certainly not withdrawal. Withdrawal is a positive and voluntary act while non-prosecution or abandonment may not necessarily be an act of volition. It may spring from negligence, indifference, inacting or even incapacity or inability to prosecute. In the case of withdrawal steeps are envisaged to be taken before the Court in accordance with the prescribed procedure. In the case of non-prosecution or abandonment, the election petitioner does not appear before the Court and obtain any orders. We have already indicated that the Act is a self-contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy. In fact, the terms of Section 87 of the Act clearly prescribed that if there be no provision in the Act to the contrary, the provisions of the Code would apply and that would include Order 9, Rule 8 of the Code, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the electionis quite clear that there is no distinct provision in the Act laying down any particular on special procedure which is to be followed when the petitioner chooses to commit default either in appearance or in production of evidence or generally in prosecution the petition. The provisions of the Code of Civil Procedure would, therefore, be applicable under Section 87 of the Act. I am further of the opinion that any argument which could be pressed and was adopted for saying that the inherent powers of the Court could not be exercised in such circumstances would be of no avail now as the High Court is a Court of Record and possesses all the inherent powers of a court while trying election petitions.The appellant was not the election petitioner. Order IX, Rule 9, of the Code (and not Rule 13 relied upon by the appellant) would be the relevant provision for restoration of an election petition. That can be invoked in an appropriate case by the election petitioner only and not by a respondent. But its own language, Rule 9 provides that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit by he may apply for an order to set the dismissal aside. Under this rule, therefore, an application for restoration can be made only by the petitioner. Since it is a provision for restoration, it is logical that the provision should be applicable only when the party on account of whose default in appearance the petition was dismissal, makes an application to revive the petition to its former stage prior to dismissal. In the instance case the election petitioner and not respondent 19 who is in appeal before us, could have asked for the relief of restoration. The appellant contended that the statutory scheme authorises an elector at whose instance an election petition could have been filed to get substituted in the event of withdrawal or abatement and applying that analogy, he urged that a petition for restoration would also lie at the instance of a respondent. The ambit of the provisions relating to withdrawal and abatement cannot be extended to meet other situations. Specific provisions have been made in the Act to deal with the two situations of withdrawal and abatement and a person hitherto not a party or one of the respondents who was entitled to file an election petition has been permitted to substitute himself in the election petition and to pursue the same in accordance with law. These provisions cannot be extended to an application under Order IX, Rule 9 of the Code and at the instance of a respondent or any other elector a dismissed election petition cannot be restored.20. The fallacy in the logic advanced by the appellant in this behalf is manifest when we refer to a suit for partition. In a suit for partition the position of the plaintiff and that of the defendant is interchangeable. So along as the suit is pending a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can also ask for being transposed as a defendant. The possibility of transposition during the pendency of the suit would to permit a defendant to apply for restoration of a suit for partition which is dismissed for default and the right to apply for transposition would certainly come to an end when the suit is no more alive. In our opinion the respondents position in an election petition would not be higher than that. We, therefore, conclude that an election petition is liable to be dismissed for default in situations covered by Order IX, or Order XVII of the Code and for its restoration an application under Rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.We must assume that the Legislature takes notice of the decisions of this Court and if it was of the view that its true intention had not been carried out or that a lacuna remained in the statute it could have removed the lacuna by amending the Act making its intention clear and manifest, particularly when many amendments have subsequently been made. The fact that nothing has been done leaves an impression in our mind that this Court had not misread the situation. At any rate it is not for the Court to fill up any lacuna in the legislation and as the law stands, the appellant has no right to contend that the view taken by this Court is not tenable in law. We may recall the observation of Lord Denning inSeaford Court Estates Ltd. v. Asher ((1949) 2 All ER 155 : (1949) 2 KB 481 (CA)):A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.