LOOMBARAM Vs. RAMNARAIN

JUDGEMENT

(1.) THE petitioner Loombaram, by his application dated Feb. 13, 1979 has submitted that tinder the provisions of Section 112 of the Representation of the People Act, 1951, (hereinafter referred to as 'the Act') Ramjiwan, who had also applied to be substituted as a petitioner in the above mentioned election -petition in place of the deceased petitioner Umed Ram, should also be substituted as a petitioner on such terms and conditions as to security or otherwise as this Court may deem proper. The allegation of the petitioner Loombaram is that Ramjiwan 'appears to be in hand and glove with the respondent Shri, Ramnarain' and although he was not interested in being substituted as a petitioner in place of late Shri Omedram, yet he filed an application for substitution merely in order to delay the proceedings in this election petition. The aforesaid allegation may co may riot be correct, yet the question Which requires consideration is, as to whether all the persons, who apply for being substituted, as petitioners under Sub -section (3) of Section 112 of the Act, should necessarily be brought on the record, of course, subject to the Imposition of conditions regarding payment of security or otherwise, or it is discretionary with the Court to substitute person such or come of the applicants for substitution as the Court may consider proper?

(2.) WHILE deciding the, application for substitution by my order dated January 12, 1979, I came to the conclusion that the application for substitution submitted by Loombaram on August. 17, 1978 and by Ramjiwan on August 19, 1978 were within time and both of them were electors of the Bilara Assembly Constituency and as such were qualified td be substituted as petitioners in place of late Umedram. But I directed that Loombaram should be substituted as the petitioner considering the fact that he was real brother of the original petitioner; late Shri Umedram and had taken interest in the proceedings for substitution. The application of Ramjiwan was rejected on the ground that he had not taken any interest in the proceedings relating to the substitution of the petitioner and as such he did not appeal to be a serious contender for being substituted as a petitioner in, the election petition. In these circumstances, a further question will also emerge for consideration as to whether the part of the order dated January 12, 1979 rejecting the application of Ramjiwan for substitution as a petitioner in the election petition can be recalled by this Court?

(3.) SO far, there is no controversy between the learned Counsel for the patties that the election contest cannot be allowed to become in fructuous so long as there is a person available who might himself have been the petitioner in the original election petition, provided he applies within the period of fourteen days from the publication of the notice of withdrawal or abatement or upon the death of the sole respondent or contesting respondent. The election contest, therefore, widely differs from an ordinary civil litigation, as it cannot to withdrawn as a result of compromise or collusion between the parties or by abatement on the death of the sole petitioner or a sole surviving petitioner or the sole respondent or a sole contesting respondent, as the entire Constituency may have an interest in either maintaining the status quo or in case the election of the returned candidate is set aside, in setting up some other deserving candidate. It has been observed by their Lordships of the Supreme Court that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding, unknown to the common law and not only the candidate who took part in the election may be interested in the election petition, but the voters of the Constituency are substantially interested in it, because, an election petition is an essential part of the democratic process. Thus, the election petition is not a suit between two persons or parties but it is a proceeding in which the Constituency itself is the principal interested party and a petitioner cannot withdraw or abandon a part of his claim on analogy of Order XXIII VI, CPC no it can abate on the death of the sole petitioner or the sole surviving petitioner or the sole respondent or the contesting respondent in case a person who [might himself have been a petitioner, is ready and willing to be substituted as a petitioner or respondent, as the case may be.