KAILASH Vs. NANHKU

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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 as Amicus Curiae. Questions for decisions