MANI C. KAPPEN Vs. SUNNY JOSEPH

JUDGEMENT

(1.) The Election Petition is filed challenging the election of the first respondent from 093 Pala Assembly Constituency, alleging that the election was vitiated by undue influence and corrupt practices, as defined in the Representation of People Act, 1951 [hereinafter referred as 'the Act']. The first respondent in the Election Petition [returned candidate] preferred the above interlocutory application under Order VII Rule 11(d) of the Code of Civil Procedure, seeking rejection of the Election Petition, as barred by limitation. Petitioner in the I.A.[first respondent in the Election Petition] would allege that the Election Petition was preferred beyond the time stipulated in Sec. 81 of the Act, which prescribes an outer limit of 45 days from the date of election of the returned candidate, which, in the present facts was on 2/5/2021. The period of 45 days expired on 16/6/2021, whereas, the Election Petition was filed only on 13/7/2021. The petition is therefore hopelessly barred by limitation is the submission. The orders passed by the Honourable Supreme Court extending the period of limitation in the wake of wide spread of COVID-19 pandemic will not apply to a proceeding under the Act. The original order of the Honourable Supreme Court applies only to the period of limitation prescribed for any suits, appeals, applications or proceedings, which was subsequently extended to the proceedings under various other special Acts, however, not to the Representation of the People Act. The special Acts to which the benefit of orders of the Supreme Court extending the period of limitation are those, where there is no provision to condone the delay. Although the Supreme Court was aware of elections being conducted to the Legislative Assemblies, the period of limitation prescribed in the Act was not relaxed. On such premise, the petitioner [returned candidate] seeks dismissal of the Election Petition under Order VII, Rule 11(d), as barred by limitation.

(2.) The first respondent in the interlocutory application [petitioner in the Election Petition] filed a counter affidavit, contending that the order of the Honourable Supreme Court in the matter of "In Re: cognizance for extension of limitation" applies to all suits, petitions, applications, which takes within its sweep a proceeding under the Representation of the People Act as well. Explanation for the delay in filing the Election Petition has been specifically averred in paragraph no.39 of the Election Petition. The order of the Honourable Supreme Court extending the period of limitation stipulated under any general or special Acts is the law of the land, binding on all Courts of India. The instant interlocutory application seeking rejection of the Election Petition is wholly without any bonafides and the same is filed experimentally, to protract the matter. The first respondent would seek dismissal of the I.A. on the above premise.

(3.) Heard Sri.Krishnanunni, learned Senior Counsel, instructed by Sri.Deepu Thankan, learned counsel for the petitioner and Sri.P.Viswanathan, learned Senior Counsel, instructed by Adv.Shibu Joseph, learned counsel appearing for the first respondent, Adv.Tom Jose Padinjarekara, learned counsel appearing for the second respondent and Adv.Sebastian Joseph, Adv.Elizabeth George and Emmanual Cyriac, learned counsel appearing for the 8th respondent. Perused the records.