Written Statement; Kailash Vs. Nanhku [Supreme Court of India, 06-04-2005]

Representation of the People Act, 1951 – Civil P.C. 1908 – Order VIII Rule 1 – Election Petition – Whether the rules framed by the High Court governing the trial of election petitions would override the provisions of CPC and permit a written statement being filed beyond the period prescribed by Order VIII Rule 1 of the CPC – Whether the time limit of 90 days as prescribed by the Proviso appended to Rule 1 of Order VIII of the CPC is mandatory or directory in nature?

AIR 2005 SC 2441 : 2005 (3) SCR 289 : (2005) 4 SCC 480 : 2005 (3) SCALE 740 : JT 2005 (4) SC 204 : 2005 (3) Supreme 603 : 2005 (3) SCJ 303 : 2005 (3) CTC 355

IN THE SUPREME COURT OF INDIA

R.C. Lahoti (CJI), D.M. Dharmadhikari & P.K. Balasubramanyan, JJ.

06/04/2005

Appeal (civil) 7000 of 2004

Kailash Vs. Nanhku & Ors.

For the Appellant : Rakesh Dwivedi, Sr. Adv., (AC), Vijay Hansaria, Sr. Adv., Gaurav Bhatia, Abhisheek Chaudhary, Mrs. Niranjana Singh, Ms. Vimla Sinha, Gaurav Librehan, Adarsh Upadhyay and Avnish Tiwari, Dr. I.P. Singh, R.K. Singh, Sanjay Kr. Singh and C.D. Singh, Advocates.

For the Respondents: Vijay Kumar, Ms. Mayuri, Vats, Sunil Verma, Sanjeev Chaudhary, Rajanish, Aniruddh P. Mayee, Advocates.

J U D G M E N T

R.C. Lahoti, CJI

Facts in brief Elections of Uttar Pradesh Legislative Council were held pursuant to the Presidential notification dated 7.11.2003. The appellant was declared elected. Respondent No. 1 filed an election petition under

Section 80 of the Representation of the People Act, 1951

(hereinafter ‘the Act’, for short) laying challenge to the election of the appellant.

The appellant was served with the summons, accompanied by a copy of the election petition, requiring his appearance before the Court on 6.4.2004. On the appointed day, the appellant appeared through his counsel and sought for one month’s time for filing the written statement. The Court allowed time till 13.5.2004 for filing the written statement. On 13.5.2004, the appellant again filed an application seeking further time for filing the written statement on the ground that copies of several documents were required to be obtained. The Court adjourned the hearing to 3.7.2004 as, in between, from 13.5.2004 to 2.7.2004, the High Court was closed for summer vacation. On 22.6.2004, appellant’s advocate’s nephew expired. However, the written statement was drafted and kept ready for filing. The registered clerk of the advocate was deputed for filing the same in the Court on the appointed day. The clerk reached Allahabad, the seat of the High Court, from Gazipur where the appellant and his advocate resided. On 1.7.2004, that is, two days prior to the day of hearing, the affidavit of the appellant annexed with the written statement, was sworn in at Allahabad. However, (as is later on stated), on account of lack of understanding on the part of the registered clerk, the written statement could not be filed on 3.7.2004 but the same was filed on 8.7.2004 accompanied by an application for condonation of delay in filing the written statement briefly stating the reasons set out hereinbefore. On 23.8.2004, the High Court rejected the application filed by the appellant and refused to take the written statement on record for the reason that the same was filed beyond a period of 90 days from the date of service of summons, the period of limitation as provided by the

Proviso to Rule 1 of Order VIII of the Code of Civil Procedure, 1908

(hereinafter ‘the CPC’, for short), as introduced by Act 22 of 2002 with effect from 1.7.2002. Feeling aggrieved by the said order, the winning candidate i.e. the defendant-respondent before the High Court, has filed this appeal by special leave.

We have heard Shri Vijay Hansaria, the learned senior counsel for the appellant, Shri Vijay Kumar, the learned counsel for the respondent (election petitioner), and also Mr. Rakesh Dwivedi, the learned senior counsel, who has on request appeared Amicus Curiae.

Questions for decisions The learned counsel for the appellant submitted that the provisions of the CPC do not ipso facto and in their entirety apply to the trial of election petition under Chapter II of the Act. Alternatively, he submitted that rules have been framed by the Allahabad High Court making special provisions relating to the trial of election petitions which would override the provisions of the CPC. In the next alternative, the learned senior counsel submitted that the provisions of Order VIII Rule 1 of the CPC being in the realm of procedural law, the time limit contained therein should be construed as directory and not mandatory assuming the provision is applicable to the trial of election petitions. The learned counsel for respondent No. 1 has disputed the correctness of the submissions so made and argued in support of the impugned order of the High Court.

Three questions arise for decision :-

(1) Whether Order VIII Rule 1 of the CPC is applicable to the trial of an election petition under Chapter II of the Act?

(2) Whether the rules framed by the High Court governing the trial of election petitions would override the provisions of CPC and permit a written statement being filed beyond the period prescribed by Order VIII Rule 1 of the CPC?

(3) Whether the time limit of 90 days as prescribed by the Proviso appended to Rule 1 of Order VIII of the CPC is mandatory or directory in nature?

Relevant Provisions

The Representation of the People Act, 1951 (43 of 1951) has been enacted, as its Preamble indicates, to provide for the conduct of elections and other proceedings relating to such elections, as also for the decision of doubts and disputes arising out of or in connection with such elections. Part VI of the Act deals with ‘Disputes Regarding Elections’. The provisions contained therein are elaborate and detailed. This Part is divided into five Chapters. Chapter I incorporates Section 79 which is an interpretation clause giving definitions of certain words and expressions which are relevant for the purpose of Parts VI and VII of the Act. Chapter II deals with presentation of election petitions to High Courts. The jurisdiction to try election petitions is conferred on the High Courts. Provisions are made as to by whom and in what manner an election petition shall be presented; who will be parties to the petition; what an election petition must contain and the reliefs which an election petitioner may claim. Chapter III makes provision for trial of election petitions; procedure before the High Court and several rules of evidence applicable to trial of an election petition. What directions __ principal and incidental __ can be made and issued by the High Court in its judgment disposing of an election petition and the grounds on which such directions can be founded are provided for. Chapter IV lays down the rules governing the discretion of the court in the matter of permitting withdrawal of election petitions and the procedure relating thereto. Provision is made as to when and subject to what procedure an election petition would abate or substitution would be permitted in case of death of a party to the election petition. Chapter V deals with costs and security for costs. Right of appeal and procedure relating thereto are contained in Chapter IVA.

Two points of significance deserve to be noted and highlighted. On all the subjects, suggested by the titles given to the different Chapters, provisions are already available in the CPC which is a pre-existing law. An election petition is a civil trial and if the Parliament had so wished, all the aspects of trial included in Part VI could have been left to be taken care of by the pre-existing law, that is, the CPC. However, the Parliament has chosen to enact separate and independent provisions applicable to the trial of election petitions and placed them in the body of the Act.

Section 87 of the Act provides as under :-