SHRILAL JANVA Vs. UDAIRAM DHAKAD

JUDGEMENT

(1.) BY this order, the application under section 5 of the Limitation Act (No. XXXVI of 1963) (for short 'the Act') read with S. 151 of the Code of Civil Procedure supported by the affidavit of Shri Virdhichand Jain, Advocate filed on behalf of the election-petitioner on October 22, 1980 will be disposed of.

(2.) THE election-petitioner filed the election petition under Ss. 80 and 81 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act of 1951') on July 16. 1980 with a prayer that the election of the respondent may be declared void. THE respondent filed the written statement on September 20, 1980 contesting the election petition Rejoinder to the reply was filed on October 7, 1980 Issues were framed on October 10. 1980 and it was ordered that the parties shall file the list of witnesses within 7 days from that day. THE respondent filed the list of the witnesses on October 13, 1980. This list was within the time fixed by the Court. THE election-petitioner, however, filed the list of witnesses along with an application under S. 5 of the Act read with S. 151 C. P. C. on October 22,1980 praying therein that the delay caused in filing the list of witnesses may be condoned and the list of witnesses may be taken on record and that a direction for summoning the witnesses may be made. It may be mentioned that October 17, 1980 to October 20, 1980 were holidays and the Court was closed. No written reply to the application was filed on behalf of the respondent.

(3.) SECTION 5 of the Act lays down that an application to which the section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. According to S. 2 (j) of the Act 'period of limitation' means the period of limitation prescribed for any suit, appeal or application by the Schedule appended to the Act and the "prescribed period" means the period of limitation computed in accordance with the provisions of the Act. SECTION 29 of the Act deal with Savings and sub-section (2) of S. 29 reads as under : "s. 29 (2 ). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (in clusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law " SECTION 81 of the Act of 1951 lays down that an election petition calling in question any election may be presented by any candidate at such election or any elec-tor within 45 days from but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election are different the later of these two dates. SECTION 81 of the Act thus provides for the period of limitation for presentation of the election petition. SECTION 86 of the Act of 1951 deals with trial of election petitions. Under sub-section (4) of SECTION 86 of the Act of 1951 any candidates not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court be entitled to be joined as a respondent. The Explanation to sub section (4) of SECTION 86 provides that the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition. SECTION 116-A of the Act of 1951 provides for preferring of the appeals to the Supreme Court and the period prescribed therein is 30 days from the date of the order of the High Court under SECTION 98 or SECTION 99. It also makes mention that the Supreme Court may entertain the appeal after the expiry of the said period if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. SECTION 87 of the Act of 1951 lays down that subject to the provisions of the Act of 1951 and of any rules made therein, every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of the suits.