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

2. On November 5, 1978, polling took place for electing a member to the Lok Sabha from No. 20 Chikmanglur Constituency and the result of the election was declared on November 8, 1978. Respondent 2 was declared elected. In all 28 candidates had participated in the election. One of the contenders for the seat filed Election Petition No. 76 of 1978 before the Karnataka High Court on December 20, 1978 impleading the returned candidate as also all other contesting candidates and three outsiders asking for setting aside the election of Respondent 2 under Section 100(1)(b) of the Representation of the People Act, 1951 (Act for short), declaring Shri Virendra Patil, respondent 5 of the election petition, as the duly elected candidate from the constituency and for an order declaring respondents 2, 3 and 4 of the election petition to have been guilty of corrupt practices within the meaning of Section 123 of the Act. In view of the reliefs claimed it became necessary to implead all the contesting candidates as required under Section 82 of the Act. On March 26, 1979, respondent 29 of the election petition filed his written statement as also a petition of recrimination within the meaning of Section 97 of the Act as against respondent 5 whom the election petitioner wanted to be declared as the duly elected candidate. On October 4, 1979, the present appellant who was respondent 19 in the election petition filed his written statement. The election petitioner who is respondent 1 in the appeal applied to the Court for deleting the prayer in regard to the declaration of Shri Virendra Patil as the returned candidate. On November 16, 1979, the Court allowed the application and prayer (c) of the election petitioner under which the declaration of Shri Virendra Patil as the returned candidate was asked for was deleted. The order of the High Court shows that there was no opposition to the request for deletion. On November 23, 1979, a memorandum was filed for the deletion of respondents 5 to 31. On July 23, 1980, on his own prayer respondent 2 of the election petition was deleted. Simultaneously the names of the two other outsiders to the election petition being respondents 3 and 4 of the election petition were also deleted. Respondent 29 filed a memorandum on August 1, 1980 for withdrawal of the prayer for recrimination as against Shri Virendra Patil. This was a necessary sequel of the deletion of prayer (c) of the election petition. On September 12, 1980 the High Court directed that names of respondents 5 to 31 excepting respondents 13 and 19 to the election petition would stand dropped. Thus, in all three respondents were left in the election petition being original respondents 1, 13 and 19. On September 30, 1980 the Court directed withdrawal of the recrimination petition as against Shri Virendra Patil by allowing the memorandumAugust 1, 1980. The present appellant had objected to the request for withdrawal of the recriminatory petition. Separate orders, viz., the orderdated November 16, 1979allowing deletion of prayer (c) of the election petition, the order dated September 12, 1980 deleting all the respondents excepting respondents 1, 13 and 19 of the election petition from the record, and the order dated September 30, 1980, permitting withdrawal of the recrimination petition, were all allowed to become final in the absence of any challenge.3. On November 23, 1980 written statement was filed on behalf of original respondent 1 and issues were settled on January 5, 1981. The Court indicated a trial schedule by requiring the documents to be filed on February 16, 1981 and recording of evidence was also directed to begin from thatand the trial was to proceed day to day. On February 16, 1981, the election petitioner wanted adjournment. The High Court was justified in giving only one adjournment as a last chance and fixing the trial on March 9, 1981, in view of the statutory mandate that an election petition shall be disposed of as far as practicable within six months from the date of presentation of the election petition as required by Section 86(7) of the Act. On March 9, 1981, the election petitioner again asked for adjournment. The High Court declined the prayer for adjournment and said :"On the previous occasion, i.e. February 16, 1981, it was posted for commencement of evidence but neither the petitioner nor his witnesses were present. However, at the request of the petitioners counsel the matter was adjourned to today as a last chance. The list of witnesses and list of documents were also at the request of the petitioners counsel permitted to be filed before February 2, 1981 with notice to respondents. This has not been done. However, when the matter was called today the petitioner is absent; none of his witnesses is also present. Shri K. Channabasappa, learned counsel for petitioner wanted to file the list of documents and witnesses today in Court and stated that the matter may be adjourned for trial to some other date..... In view of the circumstances that petitioner is absent in spite of the fact that this is second date fixed for trial of the petition, I have no option except to dismiss this petition for non-prosecution. This election petition is accordingly dismissed. There are three contesting respondents in this election petition viz., R-1, R-13 and R-19. Respondent 1 and R-13 are represented by Shri G. V. Shanta Raju, and Sri Vyas Rao respectively. R-19 who appears in person is however absent......".On the same day respondent 19 to the election petition made an application praying for "recall of the orderMarch 9, 1981 with reference to Election Petition No. 76 of 1978, and this respondent 19 may please be permitted to prosecute this election petition, and to submit his evidence, and this respondent may please be permitted to be substituted and to continue the proceedings of this election petition". Respondent 19 amended this application and asked for restoration of the election petition. The original respondent 1 filed objection to the request for restoration contending that the application for restoration was not maintainable and that respondent 19 had no locus standi to ask for restoration of the case. There was no provision for transposition when an election petition was dismissed and, therefore, respondent 19 who could have filed an independent election petition within the time admissible under the Act could not ask for transposition. On June 23, 1981, the High Court rejected the application after negativing the stand of respondent 19 that an election petition could not be dismissed for default and that a case of abandonment should be treated at par with abatement and withdrawal of the election petition. On September 14, 1981, a petition for special leave was filed and upon leave being granted, this appeal by respondent 1 has come before us for final hearing.

Reasoning:
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.