RAM SWARUP MANGILAL Vs. KAPOORCHAND

JUDGEMENT

(1.) THIS is a miscellaneous appeal under Section 19 (2) of the Rajasthan Town municipalities Act 1951 (Act No. 23 of 1951 ).

(2.) IN connection with the election of the members of the Town Municipal Board of doug, the appellant. Ram Swarup, filed two nomination papers one on 13-1-1954, and the other one on 16-1-1954. His nomination papers were rejected by the returning Officer on 20-1-1954, and when the elections were held on the 31-11954, kapoorchand and Devidas were returned by Ward No, 3 for which the appellant also had been a candidate. The result of the election was declared on 1-2-1954, and an election petition was filed under Section 19 of the Act on 10-21954, in the Court of the District Judge, Bharatpur, on the allegations that his nomination paper had been wrongly rejected and the returning officer had committed a breach of Rule 17 (1) of Rajasthan Town Municipal Election Rules 1951, in not including his name in the list of persons eligible to stand for election and in this manner he was debarred from contesting the elections. The contesting respondent, Kapurchand, took several objections to this petition. It was urged that a candidate was not entitled to file two nomination papers and so the Returning Officer had rightly rejected them. It was submitted that the petitioner had supplied electric bulbs to the municipal Board and was, therefore, disqualified under Section 12 (1) (viii) of the Act. A further objection was taken that a sum of Rs. 50/- as security for costs required to be deposited under Section 19 along with the application was not so deposited by the petitioner The learned district Judge by his judgment of 30-9-1954, held that there was no bar to the filing of two nomination papers and both of them could not be rejected by the returning Officer on that ground alone. He held that the petitioner did supply some bulbs to the Municipal Board but he did not incur the disqualification mentioned in Section 12 (1) (viii ). On the last point he held that the deposit was made on the 12-2-1954, two days after the application was submitted and compliance was not made of Section 19 which required the deposit to be made along with the petition. He accordingly dismissed the petition but directed the parties to bear their own costs.

(3.) THE petitioner, Ram Swarup, has come in appeal under Section 19 (2) as stated above. A perusal of the record shows that the appellant filed an application along with his election petition on the 10-2-1954, expressing his desire to deposit Rs. 50/- and requesting the Court to accept the amount. The Court noted an order on the application that deposit be made according to rules. The rules applicable for deposit are the Civil Rules (Rule No. 255 ). The appellant obtained a tender form, filled it up on the 11th and the foil which is to be kept by the petitioner and produced for perusal today shows that the Munsarim of the Court dealt with it on the same day it was presented. The signature of the District Judge, however, on the order directing the treasury officer to receive the money is dated 12-2-1954. The money was deposited in the Bank of Jaipur which was the treasury for the court on the 12-2-1954. It was argued by the learned counsel for the appellant that his client had tendered the money to the Court on the 10-2-1954, but it was not accepted on that day and he was directed to make the deposit according to rules. He then filed up the tender form and produced the same to the Court on the 11th and the deposit in the treasury was made on receipt of the order of the Court on the 12th, and that in the circumstances of this case the deposit should be deemed to have been made along with the application. Learned counsel for respondent, Kapurchand, urges that there was no proof of the fact that the money was actually produced before the Court on the 10th, The mere filing of an application was not sufficient if the petitioner had no money with him for deposit in Court on that day. It is, however, conceded on the authority of Kishanchand Sharma v. Bishabh Kumar AIR 1950 Nag 208 (A) that if the deposit could be made by a petitioner within the time within which an application could be filed application filed earlier should be deemed to be regularised on the day when the deposit was made. In the present case the result of the election was declared on 1-2-1954, and any such election could be challenged till the 11-2-1954. What is contended by the respondent is that the deposit was actually made on 12th when the election petition had become barred by time. The appellant examined himself as also Nazir, Premchand Singh, but none of them to have been questioned as to whether the money was ready with the petitioner-appellant to be deposited in court on the 10th. The mere application for permission to deposit on the 10th does not, therefore, amount to a deposit in Court on the 12th. On the next day the petitioner-appellant filled up the tender form. The foil on the record of the case shows that the tender form was produced in court on the 11th because the office report of the Munsarim bpars that date. It does not show when this tender form was given back to the appellant but the original foil to be retained by the depositor has been produced today and it shows that the Judge's order to the treasury officer on the tender is dated 12-2-1954. It is obvious that this tender form which was presented on the 11th to the Court was returned to the appellant after proper orders on the next day. The appellant could not, therefore, deposit the amount earlier than the 12th and for no neglect or fault of the appellant. When a litigant proceeds to comply with the rules or direction of law but is unable to comply with the terms strictly owing to some delay not attributable to him, but to the court, it is but just to keep out of consideration the delay which is made by the court and applying that principle to the present case, the deposit by the appellant made on the 12th on the very day when he received the tender form back from the court would be deemed to have been made on the day when he produced the tender form in court, i. e. , 11th of February, 1954. On that day the application challenging the validity of the election was within time. The deposit made by the appellant if considered to have been validly presented on the 11th as aforesaid was still within lime and the application challenging the validity of election does not, therefore, suffer from any defect as aforesaid.