K VUNGZALIAN Vs. J F RATHANGLIANA

JUDGEMENT

(1.) The election petitioner Shri K.Vungzalian has challenged the Manipur Legislative Assembly Election result declaring the respondent No. 1 to be the returned candidate from 58-Churachandpur (ST) Assembly Constituency. The election was held by the end of the year 1984 and the result declaring the respondent No. 1 as elected member of Manipur Legislative Assembly was announced on 31st December, 1984. According to the Manipur Gazette Notification dated 20th Nov. 1984, Nov. 27, 1984 was the last date for making nominations; Nov. 28, 1984 was the last date for scrutiny of nominations; Nov. 30, 1984 was the last date for withdrawal of candidature; and Dec. 27, 1984 was the date for poll. Along with the petitioner, several candidates submitted their nominations and they are arraigned as respondent Nos. 1 to 8 in this election petition. The petitioner presented this election petition in this Court on 11th Feb. 1985 through a learned counsel. On scrutiny of the petition, the registry of this Court placed the matter before the Hon'ble Chief Justice for necessary orders. On 4-3-85 the Hon'ble Chief Justice entrusted the trial of the case to my learned brother Justice Dr. T.N. Singh. Thereafter the trial proceeded. As my learned brother Justice Dr. T.N. Singh was transferred to Madhya Pradesh High Court, the matter was placed before the Hon'ble Chief Justice by the registry of this Court on 23-5-85 for further orders. On 5-6-85 the Hon'ble Chief Justice entrusted the trial of the case to me and accordingly the case was taken up for trial. On 17-6-85 the case was posted for orders, but as nobody appeared on behalf of the parties, the next date was fixed on 15-7-1985. On 15-7-85 Mr. Charugopal, learned counsel who appeared on behalf of the election petitioner prayed for time to take steps to amend the petition. The prayer was allowed and the case was directed to be posted on 5-8-85 for orders. On 5-8-85, the contesting respondent filed written statement and also filed an objection against the petition for amendment and Mr. Charugopal Singh, learned counsel for the election petitioner prayed for time to file rejoinder. The next date was fixed on 28-8-85 for rejoinder as well as for framing of issues and also for hearing the amendment petition. On 29-8-85 Mr. Charugopal Singh, learned counsel for the petitioner appeared and submitted draft issues for consideration which were provisionally accepted subject to further modification. On 18-9-85 Mr. Charugopal Singh, learned counsel for the petitioner appeared and submitted documents as per list and also furnished the list of witnesses desired to be examined by the petitioner. The learned counsel also filed a petition praying to call for some documents at the time of taking evidence. The matter was further posted for 7-10-85 on which date Mr. Charugopal Singh, learned counsel for the petitioner submitted that the election petitioner did not like to press the amendment application which was accordingly dismissed being not pressed. On 19-12-85 the election petitioner prayed to call for certain records whereupon an order was passed for issuance of notice to the officer concerned to produce the relevant records and in the event of any objection to produce such records, to file objection on 5-2-86. On 5-2-86 the matter was directed to be transmitted to Imphal Bench. Accordingly the matter was posted on 17-3-86 at Imphal Bench. But as nobody appeared, it was put up again on 19-3-86. On that day also nobody appeared and as such the case was posted for next session. On 8-7-86 Mr. Charugopal Singh, learned counsel for the election petitioner filed a petition stating that as he had no instruction from the petitioner he desired to withdraw from the case. It was submitted by Mr. Charugopal Singh that he was disengaged by the petitioner to conduct the case. Therefore, the prayer of the learned counsel was allowed as a consequence of which Mr. Charugopal Singh, learned counsel withdrew from conducting the case on behalf of the election petitioner. However, a notice was directed to be issued upon the petitioner either to appear in person or through his counsel to conduct the case on 2nd September, 1986. A notice was accordingly issued to the petitioner on 30-7-86 as it appears from the office note. As this notice was not returned after service, the first reminder was directed to be issued. Accordingly, the first reminder notice was issued to the election petitioner which was sent by registered post on 5-9-86. It is revealed from the office note dated 18-9-86 that acknowledgement due card of the first reminder was received back after service. But as no appearance was made by the petitioner, the second reminder notice was issued by the office on 14-11-86. But neither the petitioner nor his counsel appeared to conduct the trial of the election petition. However, on 12-9-86 this Court passed an order adjourning the case till 28-11-86 giving a last chance to the election petitioner to appear and to take steps in the case with a direction that if the petitioner fails to appear or take steps appropriate orders would be passed in this regard. On 18-11-86 as the petitioner did not appear the case had to be posted for this session as prayed for by the learned counsel for the respondent. This was done to give the petitioner further chance to appear and conduct his case if he so desired. On 19-1-87 the matter was put up for orders. But as the petitioner remained absent without any step, Mr. A. Nilamani Singh, learned counsel for the contesting respondent No. 1 submitted that the case may be dismissed for non-prosecution. The learned counsel has submitted that as the provisions of Civil Procedure Code is applicable in this election case there is no bar to dismiss the case for non-prosecution. It is further submitted by the learned counsel for the respondent that the Court cannot wait for uncertain period for convenience or inconvenience of the parties as the election dispute is to be decided expeditiously. In support of the contention relating to dismissal for non-prosecution the learned counsel has placed several decisions of various Courts including the decision of the Supreme Court.

(2.) However, there is no provision under the Representation of the People Act, 1951 to dismiss a case for default though under S.109 of the Act there is provision for withdrawal of the election petition and the procedure for such withdrawal has also been prescribed. Now the question arises as to whether for non-appearance of the election petitioner or failure on his part to take steps for further progress of the case in spite of several notices issued upon him and several adjournments granted by the Court, the case can be dismissed for non-prosecution. In Jugal Kishore v. Doctor Baldev Prakash as reported in AIR 1968 Punj and Hary 152 a Full Bench of the said Court while dealing with the procedure relating to withdrawal and abatement of the election petition under the provisions of the R.P. Act also discussed about the applicability of the provisions of the Civil Procedure Code under O.9 and O.17 of the Code. It was held -

(3.) This view was supported by a Full Bench of Allahabad High Court in Duryodhan v. Sitaram as reported in AIR 1970 All 1. While dealing with various provisions of the R.P. Act, the Full Bench of the Allahabad High Court, following the decision of the Supreme Court in Chandrika Prasad's case, as reported in AIR 1959 SC 827 and also following a Division Bench decision of the Patna High Court as reported in AIR 1965 Pat. 378 (Sawalia Behari Lall v. Tribik Ram Deo Narain Singh) held that the provisions of Orders 9 and 17 of the Code of Civil Procedure are also applicable to the trial of an election petition under Representation of the People Act. The Full Bench decisions of Allahabad High Court as well as Punjab High Court dissented from the views rendered in Dina Nath Kaul (AIR 1960 J and K 25) (FB) (supra) by the High Court of Jammu and Kashmir and in that view of the matter I would also respectfully dissent from the decision rendered in Dina Nath (supra). Following the decision in "Keshari Lal Kavi v. Narain Prakash" as reported in AIR 1969 Raj 75. I agree with respect, with the opinion expressed by the Full Bench of the Punjab High Court and hold that the High Court has power to dismiss an election petition for non-prosecution of the election petitioner and in that view of the matter the procedure as laid down under S.111 of the R.P. Act is not attracted as because the provisions of Ss.109, 110 and 116 of the R.P. Act apply only in the cases of withdrawal or abatement of the election petition and not in the case of the order of dismissal for non-prosecution.