DHOOM SINGH Vs. PRAKASH CHANDRA SETHI

JUDGEMENT

(1.) Respondent no. 1 in this appeal was elected a member of the Madhya Pradesh State Legislative Assembly from the Ujjain North Assembly Constituency. The third respondent filed an election petition on 25-4-1972 in the Madhya Pradesh High Court for declaring the election of the first respondent void. After service of the notice of the election petition along with the enclosures thereto, respondent no. 1 made an application on 28-11-1972 to the High Court raising an objection that out of the copies of the election petition, list of Annexures, Annexures and Affidavits served on him, only the Annexures were signed by respondent no. 3 and the rest were not signed by him. Respondent no. 1 submitted to the Court that there was non-compliance with the requirement of subsection (3) of Section 81 of the Representation of the People Act, 1951 - (hereinafter called the Act) and hence the election petition was liable to be dismissed under Section 86 (1):A learned single Judge of the High Court to whom the election petition had been transferred for disposal heard the matter on several dates along with some other miscellaneous petitions filed in the case. Time was granted to learned counsel for respondent no. 3 to resist the prayer of respondent no. 1 for dismissal of the election petition. Eventually learned counsel for respondent no. 3 withdrew from the case and the said respondent presented his case in person to the Court. Several persons in the meantime intervened to say that respondent no. 3 had colluded with respondent no. 1, as a matter of fact there was no non-compliance with the requirement of Section 81 (3) of the Act, and therefore, the election petition could not be dismissed under section 86. They asked the Court to allow them to intervene. Prayer of one such person was refused by the High Court on 12-1-1973. Finally when the order on the objection of respondent no. 1 was going to be made on 23-1-l973, the appellant came forward to make an application for intervention. He stated that respondent no. 3 in collusion with respondent no. 1 had admitted that the copies of the petition were not attested to be true copies and were not signed by him, on enquiries he had come to know that all the copies of the petition and the annexures were duly attested to be true, copies of the petitions and were signed by respondent no. 3, it was not in the interest of justice to dismiss the election petition as a result of the false and collusive stand of respondents 3 and 1. The appellant offered to substantiate his allegations and prayed for a week's time to do the same. In the meantime passing of the order on the petition of respondent no. 1 was asked to be deferred.

(2.) The High Court asked the appellant's counsel who was none else than the counsel of respondent no. 3 and who had withdrawn from representing him, to show under what provision of the Act or any other law an elector of the Constituency as the appellant was, had a right to intervene in the case. Since the appellant's Advocate was unable to show it the prayer of the appellant was rejected by an order passed on 23-1-1973. Later on the same date by a reasoned and long order the objection of respondent no. 1 was allowed on the basis of the copies of the various papers as they were before the Court. It was held that there was non-compliance with the requirement of section 81 (3) of the Act and hence the election petition was dismissed by the separate order passed on 23-1-1973.

(3.) The appellant presented an appeal to this Court under Sec. 11 6A of the Act along with a petition to permit him to file the appeal. In the alternative a prayer was made to treat the petition of appeal as a petition under Article 136 of the Constitution of India for seeking special leave of this Court, to file an appeal from the order refusing the appellant's prayer made in his petition dated 23-1-1973. A Bench of this Court upon hearing counsel for the appellant and respondent no. 1 permitted the converting of the appeal of the appellant into a special leave petition and granted special leave by its order dated 11-10-1973. It also directed the consideration of the question at the time of the hearing of the appeal whether an appeal would lie to this Court in the circumstances of the case.