LAKSHMI NAIDU Vs. VASIREDDY VARADA RAMA RAO

JUDGEMENT

(1.) 1, The sole petitioner in the Election Petition died on 21st July, 1978 By order dated 24th July 1978 the Election Petition was held to have been abated. The Office was directed to cause the publication to be made in two daily newspapers and the State Government Gazette. The two daily newspaper are Eenadu of Visakbapatnam edition and Indian Express of Vijayawada edition in which the directions contained in Sub-section (3) of Se6tion 112 of the Representation of the People Act (hereinafter referred to as the Act) were published. The present petitioner in Application III of 1978 happens to be an elector in the 12-Therlam Assembly Constituency, and registered elector at serial member 779 of 1977 of the Electoral Roll of Therlam Assembly Constituency, Part 47, Muguda village. He is, incidentally, also the son of the deceased in Election Petition 9 of 1978. The petitioner filed the above Application to permit him to b3 substituted in the place of the deceased and continue the proceedings. The application although dated 12-8-1978, was filed in the High Court on 21-8-1978. In the counter affidavit filed by respondent it is averred that application III of 1978 is birred by limitation as it has been filed beyond the period of fourteen days permitted by Section 112 (3) of the Act. According to the counter-affidavit, citations were published in Indian Express, Vijayawada edition on 8-8-1978, in Eenadu of Visakhapatnam edition on 13-8-1978 and in the State Government Gazette on 17-8-1978. Although the Application appears to have been filed on 21-8-1978 and as such within fourteen days of the publication, nevertheless, it is contended that the Application filed on 21-8-1978 cannot be considered to have been filed according to law and, therefore, it cannot be said that the Application is within limitation. What is contended is that this Application was not presented by the petitioner in his personal capacity which he could have done as per the law. The Application was filed by Mr.I.Koti Reddy, who, on the date when the Application was filed, was not holding any Vakalat for the petitioner. When the Application was filed on 21-8-1978, the Office raised as many as six objections and returned the Application for compliance on 1-9-1978. The petitioner complied with five objections and re-presented the application on 4-9-1978 undertaking to comply with the sixth objection before 11-9-1978 Which he did by filing the Vakalat on 11-9-1878. Therefore, it is submitted. that Application 111 of 1978 should be considered to have been filed properly and in accordance with law only on 11-9-1978. If that is so, then it would be beyond the period of fourteen days provided for under the Act and as such it is liable to be dismissed.

(2.) In order to prove that Application 111 of 1978 was filed by Mr. I. Koti Reddy and not by the petitioner himself, and Mr. Koti Reddy was not holding the Vakalat on 21-8-78, the respondent relied upon the Application which has been signed by Mr. I. Koti Reddy himself and not by the petitioner. Mr. I. Koti Reddy states that his clerk and the petitioner want to the Office and the petitioner himself filed the Application, I regret that this is not borne out from the S.R. Register. A perusal of S.R.No. 68631 dated 21-8-1978 would show that it was Mr. I. Koti Reddy who had filed the said Application. Thus it can safely be found that Application 111 of 1978, appears to have been filed on 21-8-1978, was not filed by the petitioner himself but by Mr. I. Koti Reddy. It is not in dispute that on 21-8-1978 Mr. I. Koti Reddy was not holding Vakalat for the petitioner. Hence, I find that on 21-8-1978 Application 111/78 was filed by Mr. I. Koti Reddy who was not holding any Vakalat for the petitioner on that day, but the Vakalat was filed on 11-9-1978. In these circumstances, it is now to be seen, in the light of the relevant provisions of law as to whether the Application could be considered to have been legally and properly filed on 21-8-1978. Section 112 of the Act provides:

(3.) A perusal thereof would show that the Election petition abates on the death of the sole petitioner, or, in case there are several petitioners, it would abate on the death of the last survivor. According to Section 112 (2) a duty is cast on the High Court to cause publication of the fact of abatement of the election petition in such manner as it may deem fit. In compliance with this provision, citations in Eenadu of Visakhapatnam edition Indian Express of Vijayawada edition and the State Government Gazette were ordered to be published, as referred to hereinabove. Section 112 (3) of the Act provides that any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions. if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit. The question as to who should be the petitioner is answered in Section 81 of the Act which provides that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election. We are not concerned wish the latter limb of Section 81. It would thus be seen that an elector also can present an election petition calling in question an election. It is also not in dispute that the present petitioner is an elector aad as such is entitled to file the application. But, the main aspect which has to be noted is that the present petitioner filed the Application under section 112(3) not as the legal representative of the Election petitioner but as being an elector as envisaged under Section 81 of the Act. When such is the position, Order XXII CPC., cannot be applicable notwithstanding the fact that section 87 of the Act, provides for the applicability of the Code of Civil Procedure as nearly as may be to the trial of the Election Petitions. Yet from another aspect, it is to be noted that the Act is a special measure and continuity of the Election Petition not by the legal representative of the Election petitioner but by an elector is being maintained as a matter of public policy. In these circumstances, the provisions of Section 112 of the Act will have to be interpreted strictly because the Act itself is a complete Code by itself apd although, Section 87 of the Act provides for the applicability of the Code of Civil Procedure, nevertheless, in several respects the Code of Civil Procedure has no application because certain provisions have been made under the Act to regulate certain factors which need not be discussed in this order.