HUKUMDEV NARAIN YADAV Vs. LALIT NARAIN MISHRA

JUDGEMENT

(1.) In the bye-election to the Lok Sabha from Darbhanga Parliamentary Constituency held on January 30, 1972. the respondent Lalit Narain Mishra - a candidate of the Indian National Congress - was declared elected on February 2, 1972, by a margin of 91,078 votes against his rival Ramsewak Yadav - a candidate of the Socialist Party - at that election. The appellant an elector in that constituency presented an election petition on Monday, March 20, 1972, instead of on Saturday, March 18, 1972, which was the last day of limitation. The petition, however, was dismissed by the High Court as being time-barred. Against that judgment and order this appeal has been filed under S. 116-A of the Representation of the People Act, 1951 - (hereinafter referred to as Rs. the Act').

(2.) It may be mentioned that S. 80-A was added to the Act by the Amendment Act 47 of 1966, whereunder the High Court was given jurisdiction to try election petitions. This jurisdiction has to be exercised ordinarily by a Single Judge of that Court and the Chief Justice could from time to time assign one or more Judges for that purpose. Section 81 prescribed the period of 45 days from the date of the election of a returned candidate within which an election petition calling in question any election on one or more grounds specified in sub-s. (1) of S. 100 and S. 101 has to be prevented to the High Court. If the provisions of section 81 are not complied with, S. 86 requires that the High Court shall dismiss the petition. There is no doubt that election petition in this case has been presented beyond the period of 45 days and had necessarily to be dismissed.

(3.) What we have to consider, however, is that whether having regard to the requirements of Rr. 6 and 7 of the Rules for the Disposal of Election Petitions framed by the Patna High Court, that an election petition should only be filed before a Judge of the High Court sitting in open Court, and it could not be filed on a Saturday when the Judges do not sit and hence the filing of that petition on Monday, March 20, 1972, Sunday being a holiday, is in time. Even if it be held that the filling of the petition was beyond the time prescribed in S. 81, it has further to be considered whether the provisions of S. 5 of the Limitation Act 36 of 1963 are applicable to such petitions and whether the petitioner has shown sufficient cause in the petition which has now been filed before this Court for not filing the petition in time to enable the Court to admit it after the prescribed period.