SHIV CHAND Vs. UJAGAR SINGH

JUDGEMENT

(1.) An election petition became an infant casualty because of an alleged non-joinder of a necessary party as visualised by S. 82 (b) of the Representation of the People Act, 1951 (the Act, hereafter). That premature dismissal, by-passing investigation into the merits, has driven the petitioner-appellant to this Court where he has urged that the ends of law and justice have been stultified by the strangely technical view taken by the High Court in its dismissal order.

(2.) A few facts, and then, a brief discussion, the point being res integra so far as this Court is concerned. The appellant before us is the election petitioner, having been a defeated candidate in the General Elections held in June, 1977. There were quite a few candidates, including one Shri Mal Singh, who appears to have retired from the contest for the seat although duly nominated as a candidate. The respondent was returned as the successful candidate and the disappointed petitioner challenged the election by filing a petition wherein, inter alia, he made allegations constituting a corrupt practice against the returned candidate and Shri Mal Singh. To such a pleading S. 82 is attracted. That provisions states that a petitioner shall join as respondent to his petition any candidate against whom allegations of any corrupt practice are made in the petition. By this mandate, the petitioner was bound to implead as respondent Shri Mal Singh. But he omitted to do so initially. The respondent, in his written statement, raised a preliminary objection that the failure to join Shri Mal Singh as a respondent entailed dismissal of the election petition. The case was adjourned for arguments on the preliminary issue to September 15, 1977. In the meanwhile, on September 8, 1977, an interlocutory application was filed by the election petitioner under O. 1, R. 10 (2), O. 6, R. 17 and S. 151, Code of Civil Procedure, seeking to implead as respondent No. 2, the said Mal Singh. In the alternative, he prayed for deletion of the allegation of corrupt practice against Shri Mal Singh. On the same day, Shri Mal Singh filed an application under Section 86 (4) of the Act praying that he be impleaded as respondent to the election petition. Thus, there was a motion for impleadment by the election petitioner as well as by Shri Mal Singh and they were disposed of together by an order which is under appeal.

(3.) It is fairly clear that Shri Mal Singh was a necessary party since a corrupt practice was imputed to him. He made an application to be impleaded as respondent exercising the procedural right he had under S. 86 (4) of the Act which reads thus: