MANOHAR JOSHI Vs. BHAURAO RAGOJI PATIL

JUDGEMENT

(1.) Special leave is granted.

(2.) This appeal has been preferred against the order dated 5th August, 1991 of the Bombay High Court on miscellaneous applications made in Election Petition on No. 24 of 1990. The appellant was elected to the Maharashtra Legislative Assembly from the Sadar Constituency. One Bhaurao Ragoji Patil filed Election Petition No. 24 of 1990 challenging the said election. He, however, died on 4th June, 1991. He being the sole petitioner, the election petition consequent upon his death abated under sub-section (1) of Section 112 of the Representation of the People Act, 1951 (hereinafter referred to as the Act). This fact was published as contemplated by sub-section (2) of Section 112 of the Act. Upon the said publication four applications including one each by the respondents were made under sub-section (3) of Section 112 of the Act for being substituted in place of the deceased petitioner. The applications made by the respondents were allowed by the order appealed against whereas the other two applications were dismissed with certain observations.

(3.) The appellant who was the successful candidate at the election has in the present appeal challenged the order substituting the respondents in the election petition in place the deceased petitioner. In support of this appeal learned counsel for the appellant has urged two grounds. Firstly, it has been submitted that a direction requiring the respondents to furnish security as contemplated by sub-section (3) of Section 112 as a condition precedent should have been given before ordering them to be substituted and the High Court committed an error in holding that the question of providing security would arise only after an order for substitution is made. The second submission made by learned counsel for the appellant is that even though the respondents have been required to forthwith deposit in court towards security as sum of Rs. 2000/ - each, that part of the order has been made only after first directing them to be substituted in place of the original petitioner. According to learned counsel the respondents could have been directed to be substituted only after they had actually deposited the amount of security. The order appealed against having been passed according to learned counsel in breach of the mandatory requirement of sub-section (3) of Section 112 of the Act is liable to be set aside.