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REGD. NO. D. L. (N) 04/0007/2003—05

1428 GI/2012

(37)

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PUBLISHED BY AUTHORITY

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WEEKLY

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No. 5]

NEW DELHI, APRIL 29—MAY 5, 2012, SATURDAY/VAISAKHA 9—VAISAKHA 15, 1934

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Separate Paging is given to this Part in order that it may be filed as a separate compilation

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PART II—Section 3—Sub-section (iii)

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Orders and Notifications Issued by Central Authorities (other than the Administrations of Union Territories)

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ELECTION COMMISSION OF INDIA

New Delhi, the 23rd April, 2012

O.N. 10—In pursuance of Section 106 of the

Representation of the People Act, 1951 (43 of 1951), the

Election Commission of India hereby publishes the

judgment dated 8th December, 2011 of the High Court of

Punjab and Haryana at Chandigarh in Election Petition

No. 01 of 2009.

In the High Court for the States of Punjab and Haryana

at Chandigarh

Election Petition No. 1 of 2009

Paramjit Singh son of Sh. Hardial Singh, resident of

Daulatpur Road, Shiv Mandir Dhuri, Tehsil Dhuri, District

Sangrur.

. . . .Petitioner

Versus

Vijay Inder Singla, Member Parliament, son of

Late Sh. Sant Ram Singla, resident of Near Samania

Darwaja, Sai Mohalla, Patiala. Second Address : Vijay Inder

Singla, Member Parliament, son of Late Sh. Sant Ram Singla,

resident of C/o S. N. Aggarwal Advocate, Railway Road,

Near LIC Building, Sangrur.

. . . Respondents

Petition under Section 80 read with section 81 of the

representation of People Act, 1951 read with Section

100 and 101 of the said Act for setting aside and

declaring the election of respondent i.e. the returned

candidate as void from (12) Sangrur Parliamentary

Constituency;

AND/Or;

For issuance of any other order or direction, which

this Hon’ble Court may deem fit in the facts and

circumstances of the case.

38

THE GAZETTE OF INDIA : MAY 5, 2012/VAISAKHA 15, 1934

[PART II—SEC. 3(iii)]

opportunity to rectify the said mistake, improperly rejected

the nomination paper.

In the written statement, the respondent has

controverted the aforesaid fact. According to him, neither

the petitioner nor his polling agents were present at the

time of the scrutiny. The petitioner has made false averment

that he made a representation to the Returning Officer for

making correction in his nomination paper. It is averred

that when at the time of scrutiny, the Returning Officer

called the name of the petitioner, no body was there to

respond and none was present to rectify the defect in the

nomination paper filed by the petitioner. It is further averred

that when the Returning Officer did not find the name of

one of the proposers at serial number 810 of the voter list,

nomination paper of the petitioner was rejected, finding

the same not in order in view of first proviso to Section 33

of the Act.

This election petition was filed on June 15, 2009,

well within time. Initially, on July 6, 2009, the Registry

raised certain objections in filing of the petition. Vide order

dated July 28, 2009, counsel for the petitioner was given

time to remove the objections in accordance with law. The

case was adjourned thrice for the said purpose and

ultimately, after removal of all the objections by the

petitioner, vide order dated March 22, 2010, notice of this

petition was issued to the respondent. On May 12, 2010,

when no body was present on behalf of the petitioner, the

respondent put in appearance and sought time to file written

statement, which was filed within time provided. Thereafter,

none remained present on behalf of the petitioner on three

consecutive dates, i.e., on August 20, October 01 and

November 26, 2010. Accordingly, on November 26, 2010,

the following order was passed by this Court :

“After March 22, 2010, neither the petitioner nor his

counsel appeared on May 12, 2010, August 20, 2010

and October 01, 2010. Even today, no body is present

on behalf of the petitioner. Learned counsel for the

respondent, while placing reliance upon a decision

of the Hon’ble Supreme Court in Dr. P. Nalla Thampy

Thera V. B.L. Shanker and others, 1984 (Supp)

Supreme Court Cases 631, submits that in such a

situation, the election petition should be dismissed

in default.

However, in the interest of justice, one more

opportunity is granted to the petitioner to pursue

this election petition. Registry is directed to issue

the actual date notice of this election petition to the

petitioner for December 10, 2010. If on that day also,

no body appears on his behalf, the submission made

by learned counsel for the respondent will be

considered.”

Thereafter, on December 10, 2010, learned counsel

for the petitioner came present and sought time to file

replication. However, on January 28, 2011, he submitted

Respectfully Showeth

1. That the petitioner is the resident of Dhuri,

District Sangrur. The petitioner is the elector of Sangrur

Lok Sabha Constituency and he also filed the nomination

for (12) Lok Sabha Constituency Sangrur. So the petitioner

being the elector from (12) Sangrur Lok Sabha

Constituency is competent to file the present election

petition.

2. That through the present election petition, the

petitioner is challenging the rejection of his nomination

paper, which were arbitrarily rejected by the Deputy

Commissioner-cum-Returning Officer without giving an

opportunity to rectify the error, which was totally a clerical

mistake.

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Election Petition No. 1 of 2009

Date of Decision : 8-12-2011

Paramjit Singh

...Petitioner

Versus

Vijay Inder Singla

...Respondent

Coaram :—Hon’ble Mr. Justice Satish Kumar Mittal

Present : Mr. Nandan Jindal, Advocate, for the Petitioner.

Mr. Sudershan Goel, Advocate for the respondent.

Satish Kumar Mittal, J.

Paramjit Singh, a resident of Dhuri, District Sangrur,

has filed the instant Election Petition under Section 80

read with Section 81 of the Respresentation of the People

Act, 1951 (hereinafter referred to as ‘the Act’) for setting

aside and declaring the election of sole respondent Vijay

Kumar Singla from Sangrur Parliamentary constituency as

void.

In this petition, election of the respondent has been

challenged only on one ground, i.e. under Section 100

(1)(c) of the Act, that the nomination paper of the petitioner

was wrongly and improperly rejected by the Returning

Officer, without providing him an opportunity to rectify a

clerical mistake in his nomination paper. In this case, the

Returning Officer rejected the nomination paper of the

petitioner on the ground that name of one of the proposers,

namely Malkiat Singh, did not find mention in the

concerned voter list at serial No. 810, as mentioned by the

petitioner in his nomination paper.

It is the case of the petitioner that by mistake, he

mentioned the serial number of the aforesaid proposer in

the voter list as 810 instead of 804, and this clerical error

in his nomination paper could have been got rectified by

the Returning Officer at the time of scrutiny. Though the

petitioner and his polling agents were very much present

at the time of the scrutiny and they had also requested the

Returning Officer to rectify the said clerical mistake, but

the Returning Officer, without granting them an

¹Hkkx IIó[k.M 3(iii)º

Hkkjr dk jkti=k % ebZ 5] 2012@oS'kk[k 15] 1934

39

that he does not want to file replication. As such, the case

was adjourned to April 08, 2011, for framing of issues. On

April 8 and May 13, 2011, the case was adjourned on the

joint request of counsel for the parties. On May 18, 2011,

none was present on behalf of the petitioner. On May 19,

2011, the issues were framed and the case was adjourned

for evidence of the petitioner. Learned counsel for the

petitioner was granted one week time to submit the list of

witnesses and deposit the diet money. On July 22, 2011,

learned counsel for the petitioner stated that the petitioner

did not contact him, therefore, neither the list of witnesses

could be filed nor the diet money was deposited.

No witness was present on behalf of the petitioner.

Accordingly, the case was adjourned to September 23,

2011 for evidence of the petitioner and last opportunity

was granted to the petitioner to do the needful. On

November 11, 2011, the, following order was passed :

“On May 19, 2011 issues were framed and the case

was adjourned for petitioner’s evidence. Petitioner

was also directed to submit the list of witnesses on

the next date i.e. 22-7-2011. Neither any list of

witnesses was submitted nor any witness of the

petitioner was present. On that date the case was

adjourned for 23-9-2011 for evidence of the

petitioner and last opportunity was granted to the

petitioner to lead evidence. Thereafter on 23-9-2011

the case could not be taken as the Court time was

over but it is a fact that by that time the list of

witnesses was also not filed. Till date neither any

list of witnesses has been filed and even today no

witness of the petitioner is present.

Counsel for the petitioner seeks short adjournment.

In the interest of justice, adjourned to 8-12-2011,

subject to payment of Rs. 25,000/- as costs to be

paid with the High Court Legal Services Committee.”

In spite of the said order, the petitioner neither

submitted the list of witnesses nor deposited the diet

money. Even the costs, imposed on the last date of

hearing, were not paid by the petitioner.

Today, learned counsel for the petitioner states that

in spite of information given by him to the petitioner, he is

not responding to pursue his case. Learned counsel has

placed on record copy of a letter dated 22-11-2011, sent by

him to the petitioner by registered post, which reads as

under :

“To

Parmjit Singh,

S/o Sh. Hardyal Singh,

R/o Daulatpur Road, Shiv Mandir, Dhuri,

Tehsil Dhuri, Distt. Sangrur.

IInd Address :

Paramjit Singh son of Hardial Singh,

resident of Village Katron,

Tehsil Dhuri, District Sangrur.

Subject : Regarding information for non-pursuing the

case.

This is to inform you that regarding the Election

Petition No. 1/2009 titled as “Paramjit Singh Vs. Vijay lnder

Singla” pending before the Hon’ble High Court, it was

earlier informed to you on 20-4-2011 that you are not

pursuing your case and thereafter issues has been framed

by the Hon’ble High Court and now the case is fixed for

evidence on 22-7-2011 with the further order of submitting

the list of witnesses.

The undersigned have already informed to you

through letters as well as telephonic information to supply

the list of witnesses, however, you failed to comply with

the orders/remarks and on seeing your attitude, the

Hon’ble High Court was pleased to give last adjournment

to you for supplying the list of witnesses on or before

8-12-2011 and witness be produced before the Court on

8-12-2011 itself. But this order was passed by the Hon’ble

High Court subject to the payment of depositing cost of

Rs. 25000/- failing which your election petition should be

dismissed on the next date of hearing.

Therefore come present in the case on the date fixed

i.e. On 8-12-2011 along with list of witnesses and the

witnesses and with the amount of Rs. 25000/-, for

depositing in the Hon’ble High Court.

This is for your information.

Sd/-

(NANDAN JINDAL)

Advocate

Note : 1. Copy of the order dated 11-11-2011 is annexed

herewith for your perusal.

2. Copy of the letter is retained in my office for

further necessary action and records.”

In view of this position, learned counsel for the

petitioner states that he is unable to assist this Court and

prosecute this petition on behalf of the petitioner.

In the aforesaid situation, learned counsel for the

respondent prays that this petition be dismissed for

non-prosecution, as in such like situation, the Court is left

with no other option, except to dismiss the case for non-

prosecution, in exercise of its inherent powers and under

Order IX of the Code of Civil Procedure, which, in view of

Section 87 of the Act, is applicable in these proceedings. In

this regard, learned counsel for the respondent has relied

upon a decision of the Hon’ble Supreme Court in

Dr. . P. Nalla Thamp Thera Versus B.L. Shanker and

others. 1984 (Supp) Supreme Court Cases 631 and the Full

Bench decision of this Court in Jugal Kishore Versus Doctor

Baldev Parkash. AIR 1968 Punjab & Haryana 152.

Learned counsel for the petitioner neither opposed

the prayer of the respondent nor could cite any contrary

decision. However, with the assistance of learned counsel

40

THE GAZETTE OF INDIA : MAY 5, 2012/VAISAKHA 15, 1934

[PART II—SEC. 3(iii)]

for the parties, I have considered the prayer made by

learned counsel for the respondent.

Under Chapter IV of Part VI of the Act, various

provisi ons have been made for withdrawal and abatement

of the election petitions. Section 109 of the Act provides

that an election petition may be withdrawn only by leave

of the High Court. When such an application is made, the

Court is required to issue notice of the same to all other

parties to the petition and to publish the same in the

Official Gazette. Section 110 further provides procedure

for withdrawal of the election petitions. Sub-section (1)

provides that if there are more petitioners than one, no

application to withdraw an election petition shall be made

except with the consent of all the petitioners. Sub-section

(2) provides that no application for withdrawal shall can

be granted if, in the opinion of the High Court, such

application has been induced by any bargain or

consideration which ought not to be allowed. Sub-section

(3) provides that if the prayer made in such application is

granted, the petitioner has to pay the costs to the

respondent, incurred by him. It is further required that

notice of withdrawal of election petition is to be published

in the Official Gazette; and after the notice, within fourteen

days, a person who might himself have been a petitioner

may apply to be substituted as petitioner in place of the

party withdrawing the petition, and he can be permitted

by the Court to continue the proceedings upon such terms

and conditions as the High Court may deem fit. Section

111 of the Act further requires that a report of withdrawal

of election petition be communicated to the Election

Commission. Section 112 relates to abatement of election

petitions. Sub section (1) provides that an election petition

shall abate only on the death of a sole petitioner or of the

survivor of several petitioners. Sub-section (2) further

provides that where an election petition abates under sub-

section (1), the High Court shall cause the fact to be

published in such manner as it may deem fit. Sub-section

(3) provides that any person who might himself have been

a petitioner may, within fourteen days of such publication,

apply to the court for his substitution as a petitioner and

he is permitted to be substituted as a petitioner, he shall

be entitled to continue with the proceedings. Section 116

of the Act provides for abatement or substitution on death

of respondent. It provides that if before the conclusion of

the trial of an election petition, the sole respondent dies or

gives notice that he does not intend to oppose the petition

or any of the respondents dies or gives such notice and

there is no other respondent who is opposing the petition,

the High Court shall cause notice of such event to be

published in the Official Gazette, and thereupon any

person, who might have been a petitioner may, within

fourteen days of such publication, apply to be substituted

in place of such respondent to oppose the petition, and

shall be entitled to continue the proceedings upon such

terms as the High Court may think fit.

The aforesaid provisions have been made for the

purpose to ensure that if the petitioner chooses to withdraw

the election petition, even a person who might have been

a petitioner shall be entitled to be substituted as petitioner,

so as to prosecute the petition. The basis for these special

provisions is found in well established principle that an

election petition is not a matter in which the only persons

interested are the candidates who strove against each other

at the elections. The public of the constituency is also

substantially interested in it. Thus, these provisions show

that the petitioner in the election petition has not been

given a liberty to withdraw the election petition as a matter

of right. In certain circumstances, as mentioned in sub-

section (2) of Section 110 of the Act, he cannot be

permitted, at all, to withdraw the election petition and in

the other circumstances, discretion has been given to the

court to allow the prayer of the petitioner to withdraw the

petition, subject to giving opportunity to the other persons

to substitute themselves as petitioner. However, there is

nothing in the entire Act providing or indicating that a

similar procedure is to be followed in the event of a

petitioner failing to prosecute the petition. Such failure

can be due to various causes. No provision has been made

in the Act to deal with a situation where the petitioner

does not have any interest to prosecute the election

petition. In such a situation, the question is as to whether

the court has power to dismiss the Election Petition for

non prosecution, in exercise of inherent powers and or by

invoking the procedure of the Code of Civil Procedure.

Precisely, this question was considered by the Full Bench

of this Court in Jugal Kishore’s case (supra), and it was

held as under :

“There is nothing in the entire Act providing or

indicating that a similar procedure is to be followed

in the event of a petitioner failing to prosecute the

petition. Such failure can be due to various causes.

The petitioner can by force of circumstances, be

genuinely rendered helpless to prosecute the

petition. For instance, he may find that his financial

condition has suddenly worsened and that he can

no longer afford the expenses of litigation. He may

even, owing to exigencies of business or vocation

or profession, have to go to such a distant place

from the seat of the High Court where the election

petition is being tried that he may find it impossible

to prosecute the petition in a proper manner. There

would be two courses open to him and that will

depend entirely on his volition. He can either file an

application for withdrawal of the petition disclosing

the circumstances which have brought about such

a situation in which case there would be no difficulty

in following the procedure laid down in Sections

109 and 110 of the Act, or he may choose to simply

absent himself from the Court or cease to give any

instructions to the counsel engaged by him or fail to

deposit the process-fee and the diet-money for

witnesses or take the necessary steps for summoning

¹Hkkx IIó[k.M 3(iii)º

Hkkjr dk jkti=k % ebZ 5] 2012@oS'kk[k 15] 1934

41

the witnesses in which case the Court will have no

option but to dismiss the election petition under the

provisions of the Code of Civil Procedure which

would be applicable to the election petitions in the

absence of any express provisions in the Act. The

dismissal will have to be under the provisions

contained in Order 9 or Order 17 of the Code.”

(Emphasis added)

Grover, J., while concurring with the judgment, has further

observed as under :—

“But there is no provision whatsoever by which a

respondent who might have been a petitioner can

be compelled or forced by the the Court to prosecute

the petition or adduce evidence in support of it

owing to the default of the original petitioner and on

his refusal to do so notice of such event can be

published in the Official Gazette to enable some one,

who might have been a petitioner, to apply and get

substituted and then prosecute the petition. Nor

can the Court give any decision on the merits worth

the name in a petition which is not being prosecuted

in the absence of any evidence which might have

been adduced by the parties. It is difficult to believe

that the Legislature intended that the Court in such

circumstances should embark suo motu on an

enquiry which it will be impossible to successfully

complete unless some one is ore-pared to provide

the material and the evidence and incur the

expense.”

The observations made in the aforesaid judgment,

particularly the judgment of Grover, J., were approved by

the Hon’ble Supreme Court in Rajendra Kumari Bajpai

V. Ram Adhar Yadav. (1975) 2 SCC 447, where it was

observed that we fully approve the line of reasoning

adopted by the High Court in that case. It, therefore,

follows that the Code is applicable in disposing of an

election petition when the election petitioner does not

appear or take steps to prosecute the election petition.

Dismissal of an election petition for default of appearance

of the petitioner under the provisions of either Order IX or

Order XVII of the Code would, therefore, be valid and

would not be open to challenge on the ground that these

provisions providing for dismissal of the election petition

for default do not apply.

This question again came for consideration before

the Hon’ble Supreme Court in Dr. P. Nalla ThampyThera’s

case (supra). In that case, the trial commenced in the

election petition and the petitioner sought an adjournment.

Since the trial had already taken much time, the High Court

granted last opportunity to the petitioner, in view of the

statutory mandate, to dispose of the election petition

within six months. When the petitioner once again asked

for a further adjournment, the Court rejected the same and

dismissed the election petition. Thereafter, respondent

No. 19 in the election petition made an application before

the High Court for restoration of the petition and for

permission to be substituted for continuing the petition.

The High Court rejected the application. The Hon’ble

Supreme Court, while dismissing the Civil Appeal,

observed as under :

“There is no support in the statute for the

contention of the appellant that an election petition

cannot be dismissed for default. The appellant

contended that default of appearance or non-

prosecution of the election petition must be treated

as on par with withdrawal or abatement and,

therefore, though there is no clear provision in the

Act, the same principle should govern and the

obligation to notify as provided in Section 110 or

116 of the Act should be made applicable. We see

no justification to accept such a contention. Non-

prosecution or abandonment is certainly not

withdrawal. Withdrawal is a positive and voluntary

act while non-prosecution or abandonment may not

necessarily be an act of volition. It may spring from

negligence, indifference, inaction or even incapacity

or inability to prosecute. In the case of withdrawal

steps are envisaged to be taken before the Court in

accordance with the prescribed procedure. In the

case of non-prosecution or abandonment, the

election petitioner does not appear before the Court

and obtain any orders. We have already indicated

that the Act is a self-contained statute strictly laying

down its own procedure and nothing can be read in

it which is not there nor can its provisions be

enlarged or extended by analogy: In fact, the terms

of Section 87 of the Act clearly prescribe that if

there be no provision in the Act to the contrary, the

provisions of the Code would apply and that would

include Order 9, Rule 8 of the Code, under which an

election petition would be liable to be dismissed if

the election petitioner does not appear to prosecute

the election petition.”

It was further observed that an application for

restoration of the election petition could only be filed by

the election petitioner and not by the respondent, as the

language of Rule 9 of the Code of Civil Procedure clearly

provides that where a suit is wholly or partly dismissed

under Rule 8, the plaintiff shall be precluded from bringing

a fresh suit but he may apply for an order to set aside the

dismissal. Under this Rule, therefore, an application for

restoration can be made only by the petitioner. Since it is

a provision for restoration, it is logical that the provision

should be applicable only when the party on account of

whose default in appearance the petition was dismissed,

makes an application to revive the petition to its former

stage prior to dismissal. In that case, the application for

restoration filed by respondent No.19 was dismissed. The

said respondent raised the contention that the statutory

scheme authorises an elector at whose instance an election

petition could have been filed to get substituted in the

event of withdrawal or abatement. On that analogy, he

42

THE GAZETTE OF INDIA : MAY 5, 2012/VAISAKHA 15, 1934

[PART II—SEC. 3(iii)]

urged that a petition for restoration would also lie at the

instance of a respondent. This contention was rejected

by the Apex Court while observing that the ambit of the

provisions relating to withdrawal and abatement cannot

be extended to meet other situations. Specific provisions

have been made in the Act to deal with the two situations

of withdrawal and abatement and a person hitherto not a

party or one of the respondents who was entitled to file

an election petition has been permitted to substitute

himself in the election petition and to pursue the same in

accordance with law. These provisions cannot be extended

to an application under Order IX Rule 9 of the Code of

Civil Procedure and at the instance of a respondent or any

other elector, a dismissed election petition cannot be

restored.

When the Legislation has not provided for a

situation, where the petitioner fails to prosecute the

petition, in my opinion, the Court cannot further proceed

with the matter, particularly when there is no person to

adduce evidence in support of the petition. It is true, as

has been observed by the Hon’ble Full Bench, that in

certain circumstances, even if the petitioner fails to

prosecute his petition, the Court may be in a position to

proceed with its trial if there is any respondent who is

prepared to continue it and get himself either transposed

to the array of petitioners or adduce evidence in support

of the petition. But in the present case, there is no such

respondent, because in the present case there is only one

respondent against whom the election petition has been

filed and he is not prepared to prosecute the petition. In

such a situation, the court by invoking its inherent power

or provisions of the Code of Civil Procedure is fully

empowered to dismiss the petition for non-prosecution.

In view of Section 87 of the Act, the provisions of

the Code of Civil Procedure are applicable on the election

petition. Though the Act does not give any power of

dismissal of the election petition for non-prosecution, but

no Court or Tribunal is supposed to continue a proceeding

before it when the party who has moved it has not appeared

and not cared to remain present to lead evidence. In such

situation, the only option left with the court is to dismiss

the election petition under the Code of Civil Procedure.

In the present case, in spite of several opportunities

granted, as mentioned in the earlier part of the judgment,

the petitioner neither filed the list of witnesses nor

deposited the diet money. When in spite of sufficient

opportunities granted to the petitioner, he has not done

the needful, then it is apparent that he is not interested to

prosecute his petition. In the absence of any evidence,

the Court is not in a position to proceed with the case

further and decide the same on merit. Section 87 of the

Act provides for the procedure to be followed by the High

Court, while trying the election petition. It lays down that

subject to the provisions of this Act and any of the rules

made thereunder, 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

to the trial of suits. Order XVII Rule 3 of the Code of Civil

Procedure provides that where any party to a suit to whom

time has been granted fails to produce his evidence, or to

cause the attendance of his witnesses, or to perform any

other act necessary to the further progress of the suit, for

which time has been allowed, the Court may,

notwithstanding such default, (a) if the parties are present,

proceed to decide the suit forthwith, or (b) if the parties

are, or any of them is, absent, proceed under Rule 2. Order

XVII Rule 2 provides that where, on any day to which the

hearing of the suit is adjourned, the parties or any of them

fail to appear, the Court may proceed to dispose of the suit

in one of the modes directed in that behalf by Order IX or

make such other order as it thinks fit.

In the present case, this Court, in absence of any

evidence at all, is not in a position to proceed to decide

the petition. Neither the petitioner nor his witnesses are

present. By not filing the list of witnesses and the diet

money, the petitioner has chosen not to prosecute the

case. In such circumstances, this Court is left with no

other option, but to dismiss this election petition for non-

prosecution under Order IX of the Code of Civil Procedure.

Ordered accordingly.

December 08, 2011

Sd./-

( SATISH KUMAR MITTAL) Judge

[No. 82/PB–HP/(01/2009)/2012]

By Order,

SHANGARA RAM, Principal Secy.

Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064

and Published by the Controller of Publications, Delhi-110054.