COMRADE KALLAPPA LAXMAN MALABADE Vs. PRAKASH KELLAPPA AWADE

JUDGEMENT

(1.) IN this matter, earlier when it was taken up for admission, it was found that the petitioner has joined, as party respondent to the petition, only the returned candidate, whereas a matter of fact at the election to the Maharashtra Legislative Assembly for Ichhalkaranji Constituency No. 278 held in February, 1995 which is the subject matter of this petition, in all 7 persons contested. The petitioner was one of them and the returned candidate was the other of them. The remaining five candidates have not been joined as parties to this petition.

(2.) PRIMA facie, at the admission stage of the petition, it appeared that by virtue of section 86 of the Representation of Peoples Act, 1951 (For short "the Act"), the Court was obliged to dismiss the petition for section 82 of the Act required the petitioner to join to this petition as parties, all contesting candidates other than the petitioners, in view of the fact that the petitioner, in addition to claiming a declaration that the election of the returned candidates is void, has also claimed a further declaration that he be declared as duly elected. That being the clear position, the petitioner through his learned Counsel made a request that he be permitted to delete the prayer contained in paragraph 33 (b) of the petition by which the petitioner also prayed for a declaration that he is duly elected.

(3.) IN support of this request, Mr. Kudle, the learned Counsel for the petitioner relied upon a decision of a Division Bench of Nagpur High Court in the case of (Mahadeo Murlidhar v. Jwalaprasad Mishra and others) reported in A. I. R. 1954 Nagpur, page 26, to support the argument that in an election petition, the election petitioner can withdraw a particular relief in order to get out of the rigours of the provisions of the election law. That view was expressed by Nagpur High Court, of course, after hearing the otherside. Therefore, it was thought fit to issue a notice to the respondent on the question whether the petitioner should be permitted to withdraw the relief contained in Clause (b) of paragraph 33 of the Election Petition. In response to the notice, the respondent has entered appearance. I have heard Mr. Bobde, the learned Counsel appearing for Mr. Ingle and Mr. Patil for the respondent. Mr. Bobde drew my attention to the certain Supreme Court judgments which clearly posit that the Election Tribunal, and for that matter, even the High Court hearing election petition would have no power to permit the withdrawal or abandonment of a relief, which, as it stands on the petition would entail the dismissal of the petition. Mr. Bobde, firstly, relied upon a decision in the case of (Mohan Raj v. Surendra Kumar Taparia and others) reported in A. I. R. 1969 Supreme Court 677. In that case, alongwith the other candidates at the election, one Mr. R. D. Periwal was also a person who had filed his nomination, of course, latter on, he had withdrawn his nomination. However, he acted as an Election Agent of the returned candidate. In the Election Petition that came to be filed, this R. D. Periwal had not been joined as party respondent though, of course, certain allegations of corrupt practices were made against Periwal to the effect that he, as the Election Agent of the returned candidate had indulged in certain corrupt practices. On behalf of the returned candidate, it was canvassed that the petition was liable to be dismissed. At that stage, on behalf of the petitioner, the allegations of corrupt practices levelled against Periwal as also the references to his name in the petition were sought to be withdrawn, and in that context, Their Lordships of the Supreme Court considered the applicability of Order 6, Rule 17 and Order 1, Rule 10 of the Code of Civil Procedure to the Election Petition under the Act. On behalf of the petitioner, it was submitted that by Order 6, Rule 17 and Order 1, Rule 10 of the Code of Civil Procedure, the High Court had powers to permit an amendment and to strike out parties, and in that case, that power should have been exercised. Negativing that argument, the Supreme Court posited as follows :