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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
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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.