Case: Shiv Chand Vs. Ujagar Singh and Another

2. A few facts, and then, a brief discussion, the point being res integra so far as this Court is concerned. The appellant before us is the, having been a defeated candidate in the General Elections held in June, 1977. There were quite a few candidates, including one Shri Mal Singh, who appears to have retired from the contest for the se at although duly nominated as a candidate. The respondent was returned as the successful candidate and the disappointed petitioner challenged the election by filing a petition wherein, inter alia, he made allegations constituting a corrupt practice against the returned candidate and Shri Mal Singh. To such a pleading S. 82 is attracted. That provision states that a petitioner shall join as respondent to his petition any candidate against whom allegations of any corrupt practice are made in the petition. By this mandate, the petitioner was bound to implead as respondent Shri Mal Singh. But he omitted to do so initially. The respondent, in his written statement, raised a preliminary objection that the failure to join Shri Mal Singh as a respondent entailed dismissal of the election petition. The case was adjourned for arguments on the preliminary issue to September 15, 1977. In the meanwhile. On September 8, 1977, an interlocutory application was filed by ther under order 1 Rule 10(2), order 6 Rule 17 and S. 151,Code of Civil Procedure, seeking to implead as respondent No. 2, the said Mal Singh. In the alternative, he prayed for deletion of the allegation of corrupt practice against Shri Mal Singh. On the same day, Shri Mal Singh filed an application under S. 86(4) of the Act praying that he be impleaded as respondent to the election petition. Thus, there was a motion for impleadment by the election petitioner as well as by Shri Mal Singh and they were disposed of together by an order which is under appeal.

Reasoning:
It is fairly clear that Shri Mal Singh was a necessary party since a corrupt practice was imputed to him3. Shri Mal Singh did apply within the stipulated period, and a plain reading of the provision justd entitles him to be joined as a respondent. Any candidate shall be entitled to be joined as a respondent, on the clear wording of the sectio n and since Shri Mal Singh is a candidate he is entitled to be joined as a respondent. When the text is plain, in the absence of compelling reasons, there is no justification for truncating its sense. If Shri Mal Singh is impleaded on his application then the election petition will have on the party array the candidate against whom allegations of corrupt practice have been made in the petition. That is to say, S. 82(b) will stand fulfilled. It is obvious that S. 82(b) requires the presence of every candidate against whom a corrupt practice has been alleged. What is imperative is the presence as a respondent of such a candidate, not however at whose instance he has been joined as a respondent. The purpose is obvious and two fold. When injurious averments are made against a candidate natural justice necessitates his being given an opportunity to meet those charges, because the consequence of such averments being upheld may be disastrous for such candidate. Secondly, in the absence of the party against whom charges have been levelled the reality of the adversary system will be missed. Above all, the constituency is vitally concerned with the investigation into and proof or disproof of corrupt practices of candidates at elections. Thus, the public policy behind S. 82(b) is the compulsive presence of the candidate against whom corrupt practice has been imputed. It is of no consequence whether he has been joined at his own instance or by the. In the present case, the petitioner did move to bring on record Shri Mal Singh but that was rejected. The petitioner alternatively sought to delete the corrupt practice imputed to Shri Mal Singh. That too was refused, if we may say so rig htlyWe are satisfied that if he is impleaded as a respondent the e lection petition cannot be dismissed under S. 86(1) of the Act. That provision states that the High Court shall dismiss an election petition which does not comply with the provisions of S. 82. The test is whether the election petition complies with S. 82, not whether ther has failed to comply with S. 82. The substance of the matter must govern, because hypertechnicality, when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat a vital judicial process, namely, investigation into the merits of the election petition4. The result of the discussion is that Shri Mal Singh was entitled to have been impleaded as respondent. The refus al by the court to do so is illegal and based on a misinterpretation. Had he been impleaded the dismissal of the election petition would have been illegalThe argument which has appealed to both the courts is the same and we regard it as fallacious. We do not propose to examine the discretionary dismissal of the application by ther under order 1 Rule 10, et al, to implead Shri Mal Singh. We confine ourselves to S. 86(1) and S. 86(4) of the Act. According to the learn ed Judge, S. 86(4) has to be read down to cover only such candidates as are not required to be impleaded as respondents under S. 82 of the Act. For one thing, the grammatical construction of "any candidate" does not admit of such a narrow an d artificial meaning. The reason given by the court hardly impresses us. Indeed, we are not able to conceive easily of a case where a candidate who is neither the returned candidate nor one against whom corrupt practices are imputed would care to implead himself as respondent. He serves no purpose by getting so impleaded except the teasing and gaining experience of being a litigant. The mere assertion by the trial court that S. 86(1) would be rendered nugatory by a candidate like Mal Singh taking recourse to the provisions ofn (4) of s. 86 does not carry conviction nor are we able to glean into the intention of the legislature as the learned Judge states. Shri Mal Singh, having been a candidate, is one entitled to come within s. 86(4). On his application the court shall implead him. In this view, the question of substantial compliance and the mandatory or directory nature of the prescription in S. 82(b) do not arise.Shri Mehta relied upon Mohan Raj (Mohan Raj v. Surendra Kumar Tap aria &ors. [1969] 1 SCR 630  ) heavily. The question raised there was whether the provisions of theCode of Civil Procedure, especially order 6 Rule 17 and order 1 Rule 10 could be used in such a manner as to defeat the procedural policy and statutory imperative of A S. 82 of the Act. Obviously that cannot be done because the provisions of the Representation of the People Act where they lay down specific prescriptions must prevail and cannot be frustrated by importing theCode of Civil Procedure. Here, however, S. 86(4) of the Act itself entitles Mal Singh to be joined as respondent. That right cannot be defeated and once he comes on record as p arty the petition is in order and cannot be dismissed for nonjoinder. Procedural tyranny compounded by lexically unwarranted technicality cannot be tolerated in a court. Moreover, once Mal Singh comes on the party array by virtue of S. 86(4) the fatal infirmity, if any, must be judged with reference to the petition as amended by the addition of the new respondent. It is the amended petition consequent on the addition under S. 86(4) of Mal Singh that has to be tested in the light of S. 86(1) read with S. 82(b) of the Act6. Several decisions have been cited before us by both the sides to buttress up their respective stances but we find only marginal relevance for those decisions and do not burden this judgment with the citations7. In this view, issue No. 2 was wrongly decided by the High Court. We hold that Shri Mal Singh should have been impleaded as a respondent. Since he has applied in this Court also for the same relief we direct him to be joined as a respondent to the election petition. We are not impressed with the submission of Shri Mehta for the respondent that there are suspicious features suggestive of collusion between ther and Shri Mal Singh and that for that reason the petition to implead filed by Shri Mal Singh should be dismissed. It is quite conceivable that Shri Mal Singh against whom serious allegations have been made in the election petition would have sought to be impleaded so that he could clear the as persions made against him, to the satisfaction of the constituency through an adjudication in the court. Even assuming that there was an element of collusion that would not deprive him of his entitlement under S. 86(4) of the Act. Per haps the respondent (successfu candidate) may well rely on these and other features when enquiry is made into the merits of the matter and seek to persuade the court that when the petitioner himself was willing to abandon the allegations and Shri Mal Singh appeared on the scene under coincidentally dubious circumstances, the charge was liable to be disbelieved. It is not for us in this Court to express any opinion, one way or the other, on the matter except to point out that even as suming Shri Mehtas assumption of mala fides or collusion it has no bearing on the right of Shri Mal Singh to be joined as a respondent.