Sreekumar
Mukherjee Vs. Zuinel Abedin & Ors [1999] INSC 46 (19 February 1999)
K.Venkataswami,
N.Santosh Hegde JUDGEMENT Santosh Hegde. J.
Leave
granted.
This
appeal arises out of an order dated 2.9.1997 in G.A. No. 2410/1997 in Election
Petition No. 7.96 passed by the High Court of Calcutta.
The
appellant herein made an application for the dismissal of the above Election
Petition under Section 86(1) read with Section 82 of the Representation of the
People Act, 1951 (hereinafter referred to as the Act'). The contention of the
appellant in the said application was that in the election petition filed on
21.6.1996. the election petitioner had not impleaded all the necessary parties
as is required under the law and as such the petition was liable to be
dismissed, ignoring an implement application which was filed by Mostiga Molla,
respondent No. 8 herein, which application according to the appellant was
wrongly allowed by the court on 27.8.1996 since the said application was beyond
the period of limitation contemplated under Section 86(4) of the Act.
The
learned Judge who heard the application by a detailed order dismissed the said
application, holding that even assuming the impleaded respondent ought to have
been made a party, initially, since his impleadment application was allowed in
accordance with law. the prayer of the appellant herein could not be granted
and accordingly he dismissed the said application.
Hence
this appeal.
The
facts necessary for deciding this case fall within a narrow compass. The
polling for the election in question was held on 2.5.1996 and the results were
announced on 12.5.1996. The election petition challenging the election of the
appellant was filed within the time stipulated in the Act. In the said election
petition, the court issued notice to the respondents on 2.7.1996, directing
them to appear on 9.7.1996. On that date since the respondent were not served
the court fixed 6.8.98 as the fresh date for appearance of the respondents. On
that date also the respondent were not served. Hence the court fixed 11.8.1996
as the next date for appearance of the respondents. On 27.8.1996, that is
within 14 days of 13.8.1996, respondent No. 8. herein, who was also a candidate
in the election in question, moved an application to be impleaded as a party
respondent to the said election petition under Sec. 86(4) of the act which came
to be allowed. Though there is some controversy in regard to the alleged
consent purported to have been given on behalf of the appellant's counsel, it
is not necessary for us to go into the same in view of the fact that the issue
in question could be decided de hors those controversies.
On
behalf of the appellant, it is firstly contended that since the first
respondent herein was a necessary party to the petition and he was not impleaded
in the original election petition. the same is liable to be dismissed in limine
under Section 86(1) of the Act, in view of the requirements of Section 82 of
the Act.
The
next contention advanced by the appellant is that the High Court erred in
allowing the impleading application of the 8th respondent since the same was
beyond the period of limitation prescribed under Section 86(4) of the Act.
We
will take the second contention first for our consideration. This contention as
stated above is based on the fact that the application of the first respondent
herein was made beyond the time prescribed under sub-Section (4) of Section 86
of the Act, wherein a limitation of 14 days has been contemplated for any
application to be filed for impleadment and that the said limitation of 14 days
commences from the date of commencement of the trial which, according to the
petitioner, commenced on the first date fixed in the notice issued for the
appearance of the respondents in the election petition by the court, namely, on
2.7.1996 and since the application of the eighth respondent for implement was
made only on 27.8.1996, far beyond the 14 days' time prescribed under
sub-section (4) of Sec. 86 the said application ought to have been rejected and
consequently, the election petition itself was liable to be rejected. On behalf
of the contesting respondents, it was pointed out that a perusal of the
Explanation to sub-section (4) of Section 86 would make it clear that the
period of 14 days contemplated under sub-section (4) of Section 86 would start
running only from the date of commencement of the trial which would be a date
fixed by the court for appearance of the respondent before the High Court. On
the basis of this provision of law, it was contended that on 6.8.1996 the court
itself had fixed a fresh date for appearance of the original respondents to
13.8.1996, hence it would be only from that date the period of 14 days would
commence and the impleading application of respondent No. 1 having been filed
on 27.8.96, it was well within the period of limitation prescribed under
sub-section (4) of Section 86 of the Act. It was also pointed out to us from
the court records which were summoned by this Court that as a matter of fact
one of the respondents viz 4th respondent was served with the Court notice to
appear only 4.10.1996. Hence it was contended on behalf of the contesting
respondent that the application filed by his clients was well within the time
contemplated under the Act.
A
perusal of sub-section (4) of section 86 of the Act shows that any candidate
who was not already a respondent can make an application to the High Court
within 14 days from the date of commencement of the trial and be entitled to be
joined as a respondent. The actual date of commencement of trial had been fixed
by the statute itself by way of a deeming provision found in Explanation to
sub-section (4) of Section 86 which reads :
"For
the purposes of this sub-section and of section 97, the trial of a petition
shall be deemed to commence on the date fixed for the respondents to appear
before the High Court and answer the claim or claims made in the
petition." A plain reading of sub-section (4) of Section 86 shows the
trial of a petition as contemplated in the said sub-section would start only
from the date fixed for the respondents to appear before the High Court. The
object of this provision seems to be that on the date on which the original
respondents to the election petition appear before the High Court, they would
be in a position to acquaint themselves with the pleadings and also the said
service give sufficient information about the election petition to the other
persons concerned who are entitled to invoke the provision of sub-section (4)
of Section 86 to make an appplication for impledment, if they so desired within
14 days from the date so fixed for appearance of the original respondents. This
view of ours finds support from the reading of Section 97 of the Act which
provides for the fileing of recrimination petition by the returned candidate or
any other person. If the above agrument of the appellant is to be accepted then
this right of a person under Section 96(4) and 97 can be very well defeated by
accepted then this righ of a person under section 96 (4) and 97 can be very
well defeated by indulging in methods by which service of original notice to
the respondents could be delayed beyond 14 days of the date fixed in the
original notice. Therefore, in our opinion, it is not possible to accept the
contention of the appellant that once a notice is issued in an election
petition even if that notice is not served on the original respondents, the
commencement of the period of 14 days beings from the date fixed for trial in
such original notice and the subsequent change of the date of trial by the
court cannot be used as a begining of the period of limitation prescribed under
sub-section 4 of Section 86 of the Act.
This
argument in our opinion would defeat the very object of sub-section(4) of
Section 86 which enables a person entitled to be joined as a party. They period
of 14 days fixed in Section 80, therefore, will have to be construed as
commencing from a date fixed by the High Court for the appearance of the
original respondents in the first instance or from such subsequent dates that
the court may fix for the appearance of those respondents. If so construed, it
is seen in this case the High Court itself had fixed a fresh date for
appearance of the original respondents on 13.8.1996 and the application of the
first respondent for impledment having been filed on 27.8.1996 which is within
14 days from 13.8.96 the said application was within the time prescribed under
sub-section (4) of Section 86 and the court below was justified in rejecting
the application of the appelalnt.
Now we
shall advert to the first contention of the appellant which is that the first
respondent having failed to implead all the contesting candidates in the
original election petition the same is liable to be dismissed in lim in view of
Section 86(1) read with Sec. 82 of the Act.
We are
not inclined to accept this contention as well. If Sec. 86(1) is to be
interpreted so narrowly as the appellant wants us to do then that would make
sub-section (4) of section 86 otiose. It would also mean a right given to a
party under Section 86(4) could be defeated by a deliberate or otherwise act of
an election petitioner, that certainly would not have been the object of Sec
86(1). This view of ours also finds support from the judgment of this Court in
the case of Shiv Chand vs. Ujagar Singh and andother (1979 1 SCR 520). In the
said case in an almost a ssimilar fact situation this court held :
In the
instant case, s. 86(4) of the Act itself entitles Mal Singh to be joined as
respondent. That right cannot be defeated and once he comes on record as party
the petition is in order and cannot be dismissed for non-joinder. Moreover once
Mal Singh comes on the party array, by virtue of s.86(4) the fatal infirmity,
if any must be judged with reference to the petition as amended by the addition
of the new respondent. It is the amended petition consequent on the addition
under s.86(4) of Mal Singh that has to be tested in the light of s.86(1) read
with s.82(b) of the Act." For the reasons recorded herein above this
appeal fails and is hereby dismissed. No. costs.
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