TARUN PRASAD CHATTERJEE Vs. DINANATH SHARMA

JUDGEMENT

(1.) The short question involved in the present appeal is whether in computing the period of limitation as provided in Sec. 81 (1) of the Representation of the People Act, 1951 (hereinafter mentioned as "R.P. Act, 1951"), the date of election of the returned candidate should be excluded or not.

(2.) The appellant and the respondent herein contested the election of the Legislative Assembly held on 25-11-1998 from 127, Raipur Gramin Assembly Constituency of Madhya Pradesh. The appellant was declared elected on 28-11-1998. The respondent filed an Election Petition under Sec. 81 (1) of the R.P. Act, 1951 challenging the election of the appellant. That Petition was filed on 12-1-1999. The appellant filed an application under Order 7, Rule 11, CPC read with Sec. 81 of the R.P. Act, 1951, praying that the Election Petition was liable to be dismissed at the threshold as not maintainable as the same had not been filed within 45 days from the date of election of the returned candidate. The respondent contended that in view of Sec. 9 of the General Clauses Act, 1897, the Election Petition was filed in time. The plea of the respondent-Election Petitioner was accepted by the learned single Judge and that decision is assailed before us.

(3.) We heard both Mr. P. P. Rao, the learned Senior Counsel on behalf of the appellant and Mr. B.S. Banthia, learned Counsel on behalf of the respondent. The contention of the appellant's Counsel is that in view of the specific language used in Sec. 81 (1) of the R.P. Act, 1951, Sec. 9 of the General Clauses Act, 1897 has no application and it was argued that the mandate of Sec. 81 of the R.P. Act provides that the Election Petition should be filed within 45 days of the date of election and not a single day beyond that, whereas the learned Counsel for the respondent contended that Sec. 9 of the General Clauses Act, 1897 is applicable and the date of election of the returned candidate is to be excluded in view of the application of Sec. 9 of the General Clauses Act, 1897.