KISHOR LAL Vs. PARIMAL NATHWANI

JUDGEMENT

(1.) The Petitioner Kishor Lal has brought about the Election Petition under Section 81 of the Representation of the People Act, 1951 calling in question the election of Respondent No. 1 Sri Parimal Nathwani in the Rajaya Sabha elected by the members of Jharkhand Legislative Assembly in biennial election held in the month of March, 2008.

(2.) The Respondent No. 1 Sri Parimal Nathwani and Respondent No. 3 Sri Jay Prakash Narayan Singh appeared in this Election Petition by executing Vakalatnama but in spite of notice sent to the Respondent No. 2 Shri R.K. Anand and thereafter publication of notice in the daily newspaper "Times of India" in the Delhi Edition, calling him to appear, the Respondent No. 2 Shri R.K. Anand did not prefer to enter appearance hence the parties were called upon to suggest issues, accordingly they proposed the issues which were settled on recast. In the meantime, two Interlocutory Applications were filed on behalf of the Respondent No. 1 Shri Parimal Nathwani challenging the maintainability of this Election Petition brought about by the Petitioner herein.

(3.) The Interlocutory Application has been filed by the Respondent No. 1 by raising preliminary issue as to the maintainability of the Election Petition filed by the Petitioner Kishor Lal. The Respondent agitated that the instant Election Petition cannot be heard on merit before deciding the preliminary issue under Order XIV Rule 2 of the Code of Civil Procedure. The issue is that the Election Petition in its present form is barred by limitation. Section 81 of the Representation of People Act, 1951 provides that an Election Petition, calling in question the validity of any election must be filed within 45 days from the date of election of the returned candidate. In the instant case the Respondent No. 1 was declared returned candidate by the Returning Officer on 26.03.2008 and this Election Petition was filed by the Petitioner on 12.05.2008 i.e. on the 48th day of declaration of the result of the election of the returned candidate, as such, there was delay of 3 days in filing the Election Petition. There is no provision under the R.P. Act,1951 for condonation of delay in the matter of Election Petition and therefore, this petition being barred by limitation is liable to be dismissed in limine.