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R.D. Paranjpe Vs. Ram Jethmalani and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberElection Petn. No. 2 of 1977
Judge
Reported inAIR1978Bom356
ActsRepresentation of the People Act, 1951 - Sections 37, 40, 77, 77(1), 77(3), 79, 81, 81(1), 82, 86, 86(1), 100, 100(1), 101, 117, 123, 123(2) and 123(6); Conduct of Election Rules, 1961 - Rules 12 and 12(1) and 90; Evidence Act, 1872 - Sections 63(5) and 65; Code of Civil Procedure (CPC), 1908 - Order 1, Rule 10 - Order 6, Rule 17
AppellantR.D. Paranjpe
RespondentRam Jethmalani and ors.
Appellant AdvocateParty in person
Respondent AdvocateS.G. Shah and ;P.S. Parekh, Advs.
Excerpt:
a) the candidate who, was duly nominated for election, withdrew his nomination within the time provided - the court ruled that he would continue to be candidate, in view of section 82(b) of the representation of people act, 1951, in spite of his withdrawal and his subsequently acting as election agent.;b) the court ruled that in the copy of form 8, which was to be retained by the returning officer, the seal and signature of the returning officer was not required.;c) the court adjudged that when the representation of the people act, 1951 enjoins the penalty of dismissal of the petition for non-joinder of a party, the provisions of the civil procedure code cannot be used as curative means to save such petition. - - 1 as well as his election agent, who was prof. as the petitioner has.....order1. this election petition arises out of the election in respect of the seat for the lok sabha from bombay north-west constituency no. 18 in the election held in march 1977. there were six contesting candidates including the petitioner and respondents nos. 1 and 2 in respect of this seat. as per the results declared by the returning officer, respondent no. 1, ram jethmalani secured 2,46,446 votes, respondent no. 2, h.r. gokhale secured 1,52,947 votes and the petitioner secured 1,721 votes. the other candidates secured a smaller number of votes than these three. the returning officer, therefore, declared respondent no. 1 to have been duly elected. in this petition, the petitioner has prayed, inter alia, that the election of respondent no. 1 be declared to be null and void, that.....
Judgment:
ORDER

1. This election petition arises out of the election in respect of the seat for the Lok Sabha from Bombay North-West Constituency No. 18 in the election held in March 1977. There were six contesting candidates including the petitioner and respondents Nos. 1 and 2 in respect of this seat. As per the results declared by the Returning Officer, respondent No. 1, Ram Jethmalani secured 2,46,446 votes, respondent No. 2, H.R. Gokhale secured 1,52,947 votes and the petitioner secured 1,721 votes. The other candidates secured a smaller number of votes than these three. The Returning Officer, therefore, declared respondent No. 1 to have been duly elected. In this petition, the petitioner has prayed, inter alia, that the election of respondent No. 1 be declared to be null and void, that respondent No. 2 be declared as disqualified and the petitioner be declared to have been duly elected and returned to the Parliament from the Bombay North-West Constituency No. 8 (hereinafter referred to as 'the said Constituency').

2. As the petition is being disposed of on a preliminary issue, it will be sufficient to set out only such averments in the petition and the written statements and such facts as are relevant for determination of the preliminary issue. In the petition it has been, inter alia, alleged by the petitioner that respondents Nos. 1 and 2 have filed statements of account of election expenses incurred or authorised by them or by their election agents in the sums of Rs. 14,169.08 and Rs. 21,'663 respectively. It is further alleged in the petition that respondents Nos. 1 and 2 and their election agents convened several meetings for propaganda and used hand bills, loud speakers etc. to attract voters to their meetings and used jeeps and motor cars for propaganda. The expenses incurred in respect of these were election expenses, but respondents Nos. 1 and 2 have omitted to mention them as such. It has been alleged in the petition the respondents Nos. 1 and 2 and their election agents arranged for big cloth banners, wall paintings and posters to attract voters to vote for respondents Nos. 1 and 2 in the said Constituency. In paragraph 5 of the petition it is alleged that respondents Nos. 1 and 2 have incurred or authorised by themselves of which are set out in the said para. (sic). The total of those expenses in respect of respondent No. 1 comes to Rs. 75,910 and in respect of respondent No. 2 comes to Rs. 616,260, It has been alleged that respondents Nos. 1 and 2 have spent Rs. 75,910 and Rs. 66,260 respectively for their election and thus exceeded the maximum limit of Rs. 35,000 as laid down in Section 77 of the Representation of the People Act, 1951 (hereinafter referred to as 'the said Act') and that by doing so respondents Nos, 1 and 2 have committed a corrupt practice under Section 123(6) of the said Act. In the written statements filed by the respondents Nos. 1 and 2 it has been; inter alia, contended that the petition as filed is not maintainable by reason of non-compliance with the provisions of Section 82 of the said Act. It has been alleged by respondents Nos. 1 and 2 that one Prof. Sadanand Varde had filed his nomination papers seeking election to the Lok Sabha from the said constituency. The nomination of Prof. Varde was accepted and, therefore, he was duty nominated as a candidate from the said constituency. Prof. Varde was, therefore, a candidate as denned in Section 79(b) of the said Act. The said Prof. Varde later withdrew his nomination before the last date fixed for such withdrawals. Respondent No. 1 appointed Prof. Varde as his election agent under the provisions of Section 40 of the said Act. It was incumbent on the petitioner to join the said Prof. Varde as respondent under the provisions of Section 82(b) of the said Act as the petitioner had made allegations of corrupt practice against respondent No. 1 as well as his election agent, who was Prof. Varde. As the petitioner has failed to do so, the petition is liable to be dismissed under the provisions of Sec, 36 (1) of the said Act.

3. On 5th September 1977 respondent No. 2 took out a Notice of Motion praying that the petition should be dismissed in limine by reason of the failure of the petitioner to implead Prof. Varde, who was a candidate and was an election agent of respondent No. 1 and that this issue may be tried as a preliminary issue. On 27th September 1977 at the hearing of the aforesaid Notice of Motion, the following issue was directed to be tried as a preliminary issue:

'Whether the petition is liable to be dismissed under the provisions of Section 86 of the Representation of the People Act, 1951, read with Section 82(b) of the said Act on account of the failure of the petitioner to join Prof. Sadanand Varde as a party to the petition?'

On 15th October 1977 when the petition reached hearing, it was conceded by the petitioners that Prof. Sadanand Varde was duly nominated as a candidate for the Bombay North-West Parliamentary Constituency at the said election and that he duly withdrew his nomination on the last day fixed for the withdrawal of nominations. It was stated on that day that it was agreed between the Advocates of respondents Nos. 1 and 2 and the petitioner that, in view of this, the only surviving dispute relevant to the determination of the preliminary issue raised was whether Prof. Sadanand Varde was duly appointed as the election agent of respondent No. 1 for the election in question and whether he continued to be such election agent till the result of the said election was announced.

4. Since the controversy turns, to a large extent, on some of the provisions of the said Act, it would be useful to take note of the same at this stage. Part V of the said Act deals with the conduct of elections. Chapter II of the said Part deals with the candidates and their agents. Section 40, which is included in the said Chapter IT, runs as follows:--

'Election agents:-- A candidate at an election may appoint in the prescribed manner any one person other than himself to be his election agent and whenany such appointment is made, notice ofthe appointment shall be given in theprescribed manner to the returningofficer.'

Sub-section (1) of Section 77, which isIncluded in Chapter VIII of the saidpart of the said Act, runs as follows:

'Account of election expenses and maximum thereof:-- (1) Every candidate at an election shall either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.'

There are three Explanations to this sec-lion but the same are not of arty direct relevance in this case. Sub-section (3) of Section 77 of the said Act provides that the total of the said expenditure shall not exceed such amount as may be prescribed. It is common ground that under R. 90 of the Conduct of Election Rules, 1961, the maximum permissible election expenses in relation to the State of Maharashtra for a Parliamentary constituency are Rs. 35,000. Part VII of the said Act deals with corrupt practices and electoral offences. Section 123 deals with corrupt parties and the relevant portion of the said section reads thus:

'Corrupt practices:-- The' following shall be deemed to be corrupt practices for the purposes of this Act:

xxxxx

(6) The incurring or authorising of expenditure in contravention of Section 77.'

Part VI of the said Act deals with disputes regarding elections. Section 79,which is included in his part, is definition section. Section 79(b) provides thatin this Part (Part VI) and in Part VIIIunless the context otherwise requires, acandidate means a person who has beenor claims to have been duly nominatedas a candidate at any election. Section 62,which is also included in this part, runsas follows:--

'Parties to the petition:-- A petitioner shall join as respondents to his petition (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration isclaimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition.'

Sub-section (1) of Section 86 of the said Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the said Act. Section 100 of the said Act, inter alia, provides that subject to the provisions of Sub-section (2) thereof if the High Court is of opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the High Court shall declare the election of the returned candidate to be void.

5. It may also be necessary at this stage to take note of certain decisions which have a direct bearing on the question before me. In Mohan Raj v. Surendra Kumar : [1969]1SCR630 , the Supreme Court has taken the view that Section 86(1) of the said Act is a peremptory provision and admits of no exception. The Court must enforce it strictly if there is a non-compliance with the requirements of Section 82 among others. Section 82(b) makes it incumbent that any candidate against whom a charge of corrupt practice is made must be joined as a party. A candidate who is duly nominated continues to be a candidate for the purpose of Section 82(b) in spite of his withdrawal. In that case allegations of corrupt practices were made in the petition against the returned candidate respondent No. 1 and his election agent, one R. D. Periwal. Periwal was one of the two candidates who withdrew their nominations within the time given by law at the very election at which respondent No. 1 was elected. Certain allegations of corrupt practices made in the petition were in terms against the successful candidate, namely, respondent No. 1 and his election agent. The observations in paragraph 7 of the aforesaid report show that the Court was satisfied that the said Periwal was the person referred to as the election agent of respondent No. 1. It was held that the petition was bad and was liable to be dismissed as the said Periwal, who was a duly nominated candidate and against whom allegations of corrupt practices were made, was not joined as a party. It may be mentioned that in that case, the Supreme Court has further taken theview that although the power of amendment is preserved to the Court and O. 1, R. 10 of the Code of Civil Procedure, 1908 enables the Court to strike out parties, the Court cannot use Order 6, R. 17 or O. 1, R. 10 to avoid the consequences of non-joinder. When the said Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined the power at amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the said Act any rules made thereunder. When the Act enjoins the penalty of a dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition. In Har Swarup v. Brij Bhushan : [1967]1SCR342 it leas been held that if a candidate committed a corrupt practice before the withdrawal of his candidature under Section 37 of the said Act, the provisions of Section 82 (b) would clearly apply and he would be a necessary party. There was no reason why he could not be a candidate for the purpose of Section 82(b) simply because he committed a corrupt practice after his withdrawal. In that case, one Brij Bhushan and Raturi Vaid were two candidates in the election to the U, P. Legislative Assembly. Raturi Vaid withdrew his candidature within the time fixed for withdrawal and Brij Bhushan was eventually elected to the Assembly. After the election, an election petition was filed by two electors seeking to set aside his election, inter alia on the ground that a corrupt practice was committed during the election in that the said Raturi Vaid, after he had withdrawn his candidature had threatened an elector that the elector's bones would be broken it he did not cast his vote for Brij Bhushan and also did not work for him and persuade others to vote for him. The Election Tribunal held that the threat complained of amounted to a corrupt practice within the meaning of Section 123(2) read with the proviso (a) (i) thereof and that as this corrupt practice was allegedly committed by Raturi Vaid, it was necessary to join him as a respondent to the petition. As this was not done the Tribunal dismissed the petition. An appeal to the High Court was also dismissed. On appeal to the SupremeCourt it was held as set out earlier and that appeal was also dismissed by theSupreme Court. In Udhav Singh v. M.R. Scindia : [1976]2SCR246 it has been held by the Supreme Court that the respondent cannot by consent express or tacit, waive the provisions of Section 86 or condone a non-compliance with the provisions of Section 82(b) of the said Act. As soon as the non-compliance with Section 82(b) comes or is brought to the notice of the Court, no matter in what manner and at what stage, during the pendency of the petition, it is bound to dismiss the petition in unstinted obedience to the command of Section 86 of the said Act.

6. Coming to the case before me, as I have already pointed out, it is conceded that Prof. Varde was duly nominated as a candidate for the said constituency at the said election and that he duly withdrew his nomination on the last date fixed for the withdrawal of nominations. In view of the decisions, which I have already referred to, it cannot be disputed that, in these circumstances, for the purposes of Section 82 of the said Act, he must be regarded as a candidate at the election, although he had withdrawn his nomination within the time provided, It is equally clear that if allegations of corrupt practice are made in the petition against Prof. Varde, the provisions of Section 82(b) of the said Act require that he should have been joined as a party to the petition and if this has not been done, the petition would be bad and is liable to be dismissed under the provisions of Section 86 of the said Act. The question, therefore, is whether allegations of corrupt practice have been made in the petition against Prof Varde. In this regard, it must be noted that there can be no dispute that allegations are there in the petition to the effect that respondent No. 1 and his election agent either incurred or authorised expenditure in excess of the maximum amount prescribed by Section 77 of the said Act and thereby committed a corrupt practice as denned in Section 123(6) of the said Act. I may point out here that although in the petition it has been often stated that the expenses were incurred or authorised or the acts set out therein were committed by respondent No. 1 or his election agent, it is quite clear in the context that the allegation is that these expenses were incurred or authorised or the acts were committed by respondent No. 1 'and/or' his election agent. The allegations areclearly not against respondent Ho. 1alone and in the alternative against his election agent the against both of them, This position has not been controverted by the petitioner. What has, therefore, to be really considered is whether it was Prof. Varde who was intended to be referred to, when reference has been made to the election agent of respondent No. 1 in the petition. It is for this purpose that it will have to be examined whether Prof. Varde was the election agent of respondent No. 1 at the said election.

7. The provisions of Section 40 of the said Act show that a candidate at an election may appoint only one person as his election agent that this appointment has to be made in the prescribed manner and notice of the appointment must be given in the prescribed manner to the Returning Officer. Rule 12 of the Conduct of Election Rules, 1961 deals with appointment of an election agent. Sub-rule (1) of Rule 12 runs as follows:--

'(1) Any appointment of an election agent under Section 40 shall be made in Form 8 and the notice of such appointment shall be given by forwarding the same in duplicate to the returning officer who shall return one copy thereof to the election agent after affixing thereon his seal and signature in token of his approval of the appointment.'

8. In this regard several witnesses have given evidence to show that Prof. Varde was duly appointed by respondent No. 1 as his election agent. Bala Ganpat Jadhav has stated that he is a senior clerk to the Returning Officer of the said Constituency viz. Bombay North-West Parliamentary Constituency No. 8, the name of the Returning Officer being C.D. Singh. He has stated that he knows that it was Prof. Varde who was appointed by respondent No. 1 as his election agent. He has also stated that Prof. Varde had filed his nomination as a candidate from the said Constituency at the said election. Respondent No. 1 had filled in and filed Form 8 in duplicate for the appointment of Prof. Varde as his election agent. Jadhav stated that this Form in duplicate was filed with the Returning Officer on 5th March 1977. This Form was brought to the Returning Officer by Prof. Varde who was accompanied by N. B. Samant. Jadhav has deposed that the procedure is that after the Form in duplicate duly filled in is brought to the Returning Officer, theseal and signature of the Returning Officer are put on one of the duplicates in token of the acceptance of the appointment and that Form is returned to the election agent. Jadhav has stated that the signature of respondent No. 1 and Prof. Varde on the said Form were verified. The appointment of Prof. Varde was accepted by the Returning Officer and Jadhav knew this because the Returning Officer put his signature on one of the duplicates of Form 8 brought by Prof. Varde and under the instructions of the Returning Officer Jadhav put his seal on the said duplicate. This seal was a round seal. After the aforesaid signature and seal were put on that duplicate it was returned to Prof, Varde. The Returning . Officer handed over that duplicate in the presence of Jadhav to Prof, Varde. Samant was also present at that time. Jadhav has produced the other duplicate of Form 8 which was retained by the Returning Officer and that duplicate has been marked as Exh. 1. Jadhav has stated that it was by oversight that he put the rubber stamp of the Returning Officer on that duplicate. When the document Ex. 1 was put before the Returning Officer, the Returning Officer pointed out that his signature was not necessary on that document under the rules. Although Jadhav has been cross-examined by the petitioner, the major part of the cross-examination has been directed on the question as to whether Exh. 1 was in fact the duplicate retained by the Returning Officer of which inspection was given to the petitioner, but no challenge has been made to the statement of Jadhav that he saw that the Returning Officer had put his signature oh the duplicate handed over to Prof. Varde or that the seal and rubber stamp of the Returning Officer were put on that duplicate. N.B. Samant, who is a journalist by profession, has deposed that he was supporting respondent No. 1 in connection with the said election. He accompanied respondent No. 1 to the office of the Returning Officer when respondent No. 1 filed his nomination papers. He has stated that Form 8 regarding appointment of Prof. Varde had been filled m by him (Samant) in his handwriting in duplicate and this was signed by respondent No. 1 as the candidate and Prof. Varde as the election agent. This was on 5th March 1977. Thereafter Samant and Prof. Varde went to the office of the Returning .Officer. Prof. Varde hand-ed over Form 8 in duplicate to the Returning Officer. The Returning Officer called Jadhav and told him to put the stamp and seal of the Returning Officer on one of the duplicates. Jadhav carried this out. Thereafter the Returning Officer put his signature on the duplicate on which his seal and rubber stamp had been put and handed it over to Prof. Varde. The other duplicate was retained by the Returning Officer. There is no cross-examination of this witness by the petitioner regarding this evidence at all. Prof. Varde has also given evidence in this regard to the same effect as Samant. Prof. Varde has further deposed that he had kept somewhere in his house the duplicate of Form 8, which had been returned to him by the Returning Officer, and he has not been able to trace it. A little over two weeks ago, Samant telephoned to Prof. Varde and asked him whether he could give Samant the duplicate which was in his house. Prof. Varde made an attempt to trace this duplicate but was unable to trace it. He informed Samant about this. Prof. Varde has further stated that he had been unable to trace the said duplicate even till the date on which he gave evidence. The evidence of Prof. Varde has not been challenged by the petitioner at all. In fact, the petitioner stated that he did not wish to cross-examine Prof. Varde at all. Under the provisions of Rule 12 of the Conduct of Elections Rules 1961. what is required for the valid appointment of an election agent, inter alia, is that the Returning Officer should return one copy of Form 8 duly filled in and signed by the candidate to the election agent after affixing thereon his seal and signature in token of his approval of the appointment. It is true that the best evidence of compliance with this would be the production of the duplicate handed over to the election agent. In the present case the duplicate bearing the seal and signature of the Returning Officer and handed over to Prof. Varde has not been produced in Court. However, the uncontroverted evidence of Prof. Varde shows that this document has been lost by him and could not be traced after reasonable efforts. In view of this, secondary evidence can be led regarding the contents of this document under the provisions of Section 65 of the Indian Evidence Act, 1872. Under Section 63(5) of that Act such secondary evidence can consist of an oralaccount of the contents of the document given by some person who has himself seen it. In the present case, Jadhav, Samant and Prof. Varde have all stated that they had seen the original of the document handed over to Prof. Varde and their evidence established that this document bore the seal and signature of the Returning Officer. Jadhav has stated that this signature was put by the Returning Officer in token of his approval of the appointment of Prof, Varde as the election agent of respondent No. 1. This evidence, in my view, establishes that the requirements of Rule 12 of the Conduct of Election Rules have been complied with. It was contended by the petitioner that for the valid appointment of an election agent not only the duplicate of Form 8 re-. turned to the election agent should be signed by the Returning Officer and bear his seal, but such signature and seal must also be put on the duplicate retained by the Returning Officer. I am unable to accept this contention. On a plain reading of Rule 12 of the Conduct of Election Rules, it is clear that all that is required in this regard is that the copy of Form 8 handed over to the election agent should bear the seal and signature of the Returning Officer in token of his approval of the appointment of the election agent. No such requirement is mentioned regarding the copy of Form 8 to be retained by the Returning Officer. It is true that in the file 'relating to the appointment of election agents in respect of Bombay North-East Parliamentary Constituency No. 7, Exh. D which has been produced by P. P. Deo, Additional Collector of the Bombay Suburban District, at the instance of the petitioner, there are copies of Form No. 8 which have been retained by the Returning Officer and which bear the signature of the Returning Officer. This, however, cannot have any significance regarding the interpretation of Rule 12 of the Conduct of Election Rules. More-Over, it appears from an examination of the file, Exh. A, containing papers regarding the appointment of election agents in respect of the said Constituency viz. Bombay North-West Parliamentary Constituency No. 8, the duplicate copies of Form 8 in that file, which were retained by the Returning Officer, do not contain either the seal or signature of Returning Officer on them. In my view the evidence establishes that Prof.Varde was the duly appointed election agent of respondent No. 1. Prof. Varde has deposed that he continued to be such election agent of respondent No. 1 right till the time the result of the election in the said constituency was declared. Section 40 of the said Act, in terms provides that a candidate can have only one election agent. Reference to the election agent of respondent No. 1 in the petition must, therefore, necessarily be treated as reference to Prof. Varde. In view of this, in my opinion, the petition contains allegations of corrupt practice against Prof. Varde, who was a candidate at the said election for the purposes of Section 82 of the said Act.

9. It was contended by the petitioner that a person who was acting as an election agent of a candidate at a. particular election could never be regarded as a candidate at that election. It is not possible to accept this contention. There is nothing in the provisions of Section 82 of the said Act which would support this contention. Moreover, in the aforementioned case of Mohan Raj v. Surendra Kumar : [1969]1SCR630 it was an election agent who was held to be a candidate for the purposes of Sections 82 and 86 of the said Act. This contention must, therefore, be rejected.

10. In my view, the same result as aforesaid would be arrived at even if Prof. Varde were held not to be the duly appointed election agent of respondent No. 1 he intended to refer to any person other than Prof. Varde. In these circumstances, even if the appointment of Prof. Varde as the election agent of respondent No. 1 is held to be invalid still it must be held that references to the election agent of respondent No. 1 in the petition are references to Prof. Varde and in view of this, allegations of corrupt practice have been made against Prof. Varde in the petition.

11. In my view, as allegations of corrupt practice have been made in the petition against Prof. Varde, who was a candidate at the said election for the purposes of Part VI which includes Sections 82 and 86 of the said Act, he is a necessary party to the petition. As Prof. Varde has not been joined as a party to the petition, the petition is liable to be dismissed under Section 86 of the said Act.

12. Before concluding his arguments the petitioner stated that if I was of theview that Prof. Varde was a necessary party to the petition, the petitioner was making an application for leave to amend the petition by joining Prof. Varde as a respondent to the petition. It is necessary to note, in this connection, that the result of the election in question was declared on 20th March 1977. Under Section 81 of the said Act an election petition calling in question any election on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 of the said Act may be presented to the High Court within forty-five days from the date of election of the returned candidate. It is common ground that the period of limitation prescribed for presentation of an election petition such as the present one is forty-five days as laid down in sub-section (1) of Section 81 of the said Act. As I have already pointed out, in Mohan Raj's case : [1969]1SCR630 the Supreme Court has held that when the said Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties conferred on the Court by the provisions of the Code of Civil Procedure, 1908 cannot be used at all. The Civil Procedure Code applies subject to the provisions of the said Act and the rules made thereunder. When the said Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save such a petition. It appears to me that in view of this decision, the application of the petitioner for amendment must to re-jected. In support of his application the petitioner placed reliance on the decision of the Supreme Court in Amin Lal v. Hunna Mal : [1965]1SCR393 . In my view, this decision does not help the petitioner in any manner. What has been held there is that a party can avail himself of the provisions of O. 1, R. 10 (1) of the Civil Procedure Code subject to the law of limitation. It was further held that assuming that an election tribunal can permit the joinder of parties, under Section 81 of the said Act an election petition has to be presented within forty-five days of the date of the election of the returned candidate. The application under Order 1, Rule 10 made more than eight months after the election of the returned candidate is inordinately late and can, therefore, not be granted.In the first place, this decision nowhere lays down that the election tribunal had the jurisdiction to grant an amendment of the petition which would cure the fatal defect in the petition by way of non-joinder of a necessary party. In any event, this decision clearly takes the view that an application for such amendment cannot be entertained after the period of limitation viz. forty-five days. In view of this, I reject the application of the petitioner for amendment of the petition.

13. In the result, the petition fails and is dismissed. As far as the costs are concerned, the learned Advocates for respondents Nos, 1 and 2 have stated that as the petitioner is a party in person and in view of the fact that both the respondents Nos. I and 2 have stated that as the petitioner is a party in person and In view of the fact that both the respondents are Advocates, who have not had to incur any expenses by way of counsel's fees, they do not press for the costs. There will, therefore, be no order as to costs.

14. Under the provisions of Section 103 of the said Act it is directed that the substance of this decision should be communicated to the Election Commission and the Speaker, Lok Sabha, New Delhi and an authenticated copy of the decision should be sent to the Election Commission.

15. Petition dismissed.


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