1. This is yet another case where the Election Petition has to be dismissed in limine under Section 86(1) of the Representation of the people Act. This time it is a case of non-compliance with the requirement of Section 82(b) of the Representation of the people Act. The facts bearing on the question are few and may be shortly stated.
2. In the recent general elections for Guntur Parliamentary constituency held on February 21, 1967, six persons were duly nominated as candidates for election. Of these only four, including the petitioner Shri N. V. L. Narasimha Rao and the 1st respondent, Shri Kotha Raghuramayya seem to have contested for the seat. Sri Gullapalli Venkata Punnaiah Sastri who was also a duly nominated candidate did not choose to contest. He withdrew his candidature within the prescribed period. Eventually as a result of poll the 1st respondent was returned from the constituency. His election has now been called in question by the petitioner by means of Election Petition No. 11 of 1967. The grounds on which it is challenged are many. Commission of various corrupt practices by himself, through his agents and other persons have been alleged in the petition. I need not refer to all of them for, at this stage, I am concerned only with the allegations contained in the petition in relation to Gullapalli Venkata Punnaiah Sastri, who is not a party to this proceeding.
3. At page 8 of the Annexure to the petition the petitioner in this behalf stated thus:-
'The first respondent with a view to split the votes among the Brahmins in Guntur Town induced Punnaiah Sastry to stand for this Parliamentary seat, apprehending that all the Brahmins would solidly vote for the petitioner. He was given Rs. 500/- by the first respondent for his deposit. Sri Punnaiah Sastry accepted the offer and filed his nomination. Two days after the nominations were filed, first respondent spent about Rs. 300/- and arranged a tea party in Brodipet and invited the voters of that locality. This function of treating some voters expressed their displeasure at this strategy of the first respondent (sic). Thereupon apprehending some violent reaction, the first respondent induced Punnaiah Sastry to withdraw from the contest offering him a reward of Rs. 500/- which he gave him towards his deposit.'
4. Again in his amendment petition which was filed after the issues were framed, he stated thus : -
'An amount of Rs. 1116/- and Rs 600/- and Rs. 500/- given on different dates to G. V. Punnaiah Sastry by the first respondent were intended to induce him to stand as candidate and withdraw his candidature subsequently for his own purposes. The first respondent used him as well as his agent for procuring votes for his election. First respondent is guilty of corrupt practice under S. 123(1)(A)(b) of the R. P. Act.'
Then in para 4 of the Annexure to the petition, he stated thus: -
'The first respondent apprehending that his application will be thrown out by the Selection Committee approached Shri G. Punnaiah Sastri, the President of Guntur Town Congress Committee, to recommend him to the said Selection Committee and canvass support for his candidature in consideration whereof he promised a bribe of Rs. 1,116/-. The said Punnaiah Sastri without hastening to act on the mere promise waited till the first respondent issued a cheque for the said amount. He thereupon promised his vote and all kinds of support and sent a glorious report to the President of the A. P. C. starting that the 1st respondent alone had every chance of success and the chances of success of Smt. Parvati Devi are few and far between. The first respondent had given him again a cheque of Rs. 600/- and thereby not only procured his vote but also his services in canvassing for votes of others.'
Again at page 15 of the Annexure Part IV to the petition he stated thus:-
'A car was placed at the disposal of Sri G. Punnaiah Sastry. The first respondent allotted 3 or 4 cars for each Assembly constituency and each of them was given not less than Rs. 10,000/- for canvassing and procuring votes not only for themselves but also for himself, as his agents.'
Then in para 2 of the amendment petition which was allowed to be added at page 7 part 1 para 5 of the Annexure to the election petition, he stated thus:-
'All the signatories headed by Sri G. V. Punnaiah Sastry constituted themselves as committee of hosts and issued invitation to felicitate the first respondent, were entrusted with Rs. 50,000/- by the first respondent to be distributed among the scheduled caste voters and Communist voters in Guntur Town including Israilpet, Kankaragustam Venkataraopet, Romireddithota, Arundalpet, Sangadigupta, Sanjeeva Reddi Nagar. Sajneevaiah Nagar, Nehrunagar and they procured votes for the respondent by paying them at the rate of Rs. 5/- each. The first respondent himself through his agents distributed on the day of Election, Rs. 5/- each to the voters of Bangarala Boodu where Communist voters predominate and procured their votes.'
In para 9 of the amendment petition added at the end of para 5 of the main petition, the petition referred to the fact that the 1st respondent willfully suppressed certain items of expenditure including the amount paid to Punnaiah Sastry, viz., Rs. 1,116/- Rs. 600/-, Rs. 500/- and Rs. 4000/-
5. The case of the 1st respondent is that the above allegations made in the petition (whether in its original or even amended form) are virtually allegations of bribery against Punnaiah Sastri within the meaning of Section 123(1)(A)(b) and Sec. 123(1)(B)(a) and (b) of the Act, and therefore Punnaiah Sastri ought to have been joined as a respondent to the election petition as required under Section 82(b) of the Act and that as he was not so joined, the petition is liable to be dismissed in limine under Section 86(1) of the Act. Of course, such a plea was not taken in the written statement nor at the time when the respondent had opposed the amendment. It was raised at a late stage by way of Application No. 150 of 1967, after the case was set down for trial. In this application a fresh plea of non-compliance with Section 82(2) has been raised. Of course, there are other pleas also but they are covered by the issues already settled, and the learned Counsel Sri Lakshmaiah confined his argument only to the fresh pleas taken.
6. The election-petitioner in his counter to this application contended that since the respondent never took any objection at any time before the petition was posted for trial, he should be deemed to have waived such an objection if any in view of the provisions of Order I, Rule 13, C. P. C. and his application, therefore, should be dismissed in limine. That apart, the allegation of bribing Punnaiah Sastri and of including him to stand as a candidate and later to withdraw his candidature are not interdependent offences. They are two distinct offences for which two distinct issues have been framed. As in the main petition the offence of bribing Punnaiah Sastri is alleged to have been committed by the petitioner, on that account Punnaiah Sastri need not be made a party. He further contended that the respondent in para 9 of his written statement had averred that Punnaiah Sastri had of his own volition and discretion filed his nomination as what he regarded as a guard nomination and the respondent never induced him nor requested him to file his nomination or withdraw the same and that as the nomination was intended to be guard nomination, it was naturally withdrawn as a matter of course in due time. The petitioner contends that in view of this averment also Punnaiah Sastri cannot be deemed to be a candidate within the meaning of Section 79(b). Further, Punnaiah Sastri never held himself out as a candidate at any time, nor did he in fact even wish to stand or continue as a candidate.
7. In his additional statement which the election-petitioner was called upon to file to clarify his position in relation to the status of Punnaiah Sastri, he stated thus:-
'Sri G. V. Punnaiah Sastri was not a candidate within the meaning of Section 79(b) of the Representation of the People Act, for the following among other grounds:-
(a) Punnaiah Sastri's nomination does not seem to be a valid nomination nor was he dully nominated. The person who is duly nominated or claims to be duly nominated will not be a candidate unless he began to hold himself out as a prospective candidate. He has to satisfy two requirements. Firstly, he must hold himself out as a candidate as from the time of the election in prospect. Secondly, he must be validity nominated. Even assuming without admitting that he was duly nominated, he did not hold himself out as a candidate at any time.
(b) The first respondent (the petitioner herein) averred in his written statement that Punnaiah Sastri was only a Guard Nomination. It cannot therefore be said that Punnaiah Sastri held himself out as a prospective candidate at any time.
(c) Punnaiah Sastri's name was not found in the list of contesting candidates published under Section 38 of the R. P. Act.
(d) Unless the petitioner herein, by positive evidence establishes that Punnaiah Sastri is a candidate within the meaning of Section 79(b) of the Act, satisfying both the requirements mentioned therein, this application must be dismissed.'
8. Even though the petitioner in his election petition stated that the 1st respondent had induced Punnaiah Sastri to stand as a candidate and thereafter to withdraw as such, now he seems to take the stand that he was not a candidate at all, that he never filed a nomination paper nor was he duly nominated. A certified copy of the list of validly nominated candidates obtained by the respondent, has been filed. When shown to the petitioner, he did not dispute the correctness of the said list.
9. After filing his counter, the election-petitioner filed another petition (Application No. 155/1967) with a request to implead Punnaiah Sastri in the election petition on the ground that the omission to implead him was due to some misapprehension as to the exact status of Punnaiah Sastri. This petition was opposed by all the three respondents. Respondents 2 and 3 in the main petition took the same stand as respondent No. 1.
10. The points that fall for determination in view of these two applications are:-
(1) Whether the election petition contains allegations of corrupt practice against Punnaiah Sastri ?
(2) Whether Punnaiah Sastri is candidate within the meaning of Section 82(b) ?
(3) Whether there was non-compliance with the provisions of Section 82(b) and the election petition is therefore liable to be dismissed under Section 86(1) ?
(4) Whether Punnaiah Sastri can now be impleaded as a party-respondent
11. In order to attract Section 82(b) of the Representation of the people Act, it is essential that there should be allegations of corrupt practice against the candidate in the petition. What is meant thereby is that the allegations must suggest and indicate that the candidate has committed a corrupt practice or is guilty thereof. It is immaterial whether he has done the same in his own interest or as a candidate. Even if it is done as an agent, the case will be covered by the provision. There is ample authority in support of those propositions. In S. B. Adityan v. S. Kandaswami, AIR 1958 Mad 171 it was held by the Madras High Court that the expression 'any candidate who is alleged to have committed corrupt practice' employed in Section 82(b) must mean any candidate who is alleged to have committed corrupt practices and that there is no scope for importing any concept of vicarious liability under Section 82(b), In S. B. Adityan v. S. Kandaswami, : 1SCR368 the Supreme Court held that when Section 82(b) talks of allegations of corrupt practice against a candidate it means allegation that a candidate has committed a corrupt practice. Similar was the view taken in Amin Lal v. Hunnamal, : 1SCR393 .
12. So then it is to be seen whether there are any allegations of corrupt practices against Punnaiah Sastri in the sense that he has committed them. Whatever may be said of other allegations, there are indeed two allegations categorical enough which far from being merely narrative of sequence of facts that took place in connection with the election, positively show that the charge of commission of corrupt practice was made against punnaiah Sastri. At one place in the amended petition, at page 7, it has been said that all the signatories headed by Sri Punnaiah Sastri were entrusted with Rs. 50,000/- to be distributed among the scheduled caste voters and Communist voters in Guntur Town, including various specified areas, and they procured votes for the respondent by paying them at the rate of Rs. 5/- each. Obviously enough it is a specific charge of corrupt practice coming under Section 123(1)(A)(b) against Punnaiah Sastri as well. That is the indisputable position which even the petitioner on being asked could not disown. Then there is an allegation at page 8 of the Annexure to the petition, to which also reference has been made in the earlier part of this order. Therein the petitioner has shown that Punnaiah Sastri, induced to stand as candidate, was given Rs. 500/- by the 1st respondent. What he actually stated thereafter is this:-
'Sri Punnaiah Sastri accepted the offer and filed his nomination.' Again in the same para he stated thus:- 'thereupon apprehending some violent reaction the first respondent induced Punnaiah Sastri to withdraw from the contest offering him a reward of Rs. 500/- which he gave him towards his deposit.'
13. If the said amount constituted gratification or reward, there is little doubt that receipt of the said amount as a motive or a reward for standing or withdrawing from being a candidate, is well within the ambit of the amended provision of Section 123(1)(B)(a) and is a corrupt practice. It is clear from allegation in the petition that the receipt of Rs. 500/- constituted a motive for standing and a reward thereafter for withdrawal. As the law stood before the amendment of Section 123 receipt of bribe was not a corrupt practice but as a result of the amendment, not only giving but also receiving (bribe) is equally an offence and is a corrupt practice, within the meaning of Section 123 of the Representation of the People Act. Thus it is manifest that there are allegations of corrupt practices against Punnaiah Sastri in the election petition, as it stood before the amendment and also thereafter. Of course, in the election petition there are a large number of other corrupt practices alleged to have been committed by the 1st respondent and his agents and other persons on his behalf but that is not a matter of consideration for the purposes of the present application. The point for consideration would be simply whether or not there are allegations of correct practices in the petition against a candidate who is not made a party respondent. The correctness or otherwise of the said allegations need not now come up for consideration for it is sufficient if there are allegations to that effect. As we have already seen, there are such allegations in the election petition.
14. Then the only other point to be considered for the purposes of Section 82 is whether Punnaiah Sastri is a candidate within the meaning of that provision. The petitioner now chooses to deny that he was a candidate. It is not easy to understand why the petitioner in the face of his clear averments in the election petition to the contrary has chosen now to contend that Punaiah Sastri was not a candidate. His averments in the petition are categorical that Punnaiah Sastri was induced to stand as a candidate, that he accepted the offer Rs. 500/- towards deposit which was, in fact, paid by the 1st respondent to him, and then again he was successfully induced to withdraw from the contest. The very expression 'withdrawal from the contest' implies that he was a duly nominated candidate who as such alone could withdraw from the contest under Section 37 of the Representation of the People Act. Had he not gone through the process of filing nomination paper, which must be in order, and come out successful in the scrutiny by the Returning Officer his name would not have found a place in the list of validly nominated candidates prepared under Section 36(8) of the Representation of the People Act. The petitioner could not remain unaware of the fact that Punnaiah Sastri was a duly nominated candidate for himself being a candidate it was in his interests to know about all the candidates so that he may raise objection in relation to the various nomination papers filed. Besides he must have necessarily looked into the list of validity nominated candidates for he was a person directly interested in that matter. He could not help himself to remain ignorant of all these events. He must also have been aware of the later list of contesting candidates prepared under Section 38 after withdrawal of candidates if any. His assertion that he is not aware and his denial to Punnaiah Sastri's filing nomination paper or his having been duly nominated or his withdrawal after due nomination, cannot be acceptable. At any rate, the certified copy of the list of validly nominated candidates, prepared under S. 36 (8) and filed in Court bears standing testimony to the fact that Punnaiah Sastri was duly nominated. This list has been shown to the petitioner who could not deny the truth thereof. All that he contends, thereafter is that as the respondent himself had said in his written statement that he did not induce Punnaiah Sastri to stand or withdraw as a candidate but that the nomination of Punnaiah Sastri was intended to be guard nomination, it must follow that his candidature was not real or effect but was a mere make-believe or showy matter and as he never held himself out also as a prospective candidate, he cannot be regarded as a candidate. Stress is laid on the words 'began to hold himself out' used in Sec. 79(b) of the Representation of the People Act. That section defines candidate in the following terms:
'Candidate means a person who has been or claims to have been dully nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when with the election in prospect, he began to hold himself out as a prospective candidate'.
15. It would appear from the language of the definition that it has concerned itself not only with the meaning of `a candidate' but also the time from which a person will be deemed to be a candidate. While the first part of the definition gives the meaning of the term `candidate' the second part introduce a legal fiction by providing that a person coming within the meaning clause may be regarded as a candidate as from the time with the election in prospect, he began to hold himself out as a prospective candidate. The second clause will not be applicable unless the condition of the first clause is satisfied. To come within the meaning clause he must be a person who must have been duly nominated as a candidate or at least who claims to have been duly nominated though not actually nominated which may happen in cases where the nomination paper was rejected but the person claims it was wrongly rejected. So then unless a person files his nomination paper in accordance with the law in force, he cannot possibly be regarded as a candidate. Even if he files his nomination paper but the same is rejected and the acquiesces therein and does not claim to have been duly nominated he will not be within the meaning of Sec. 79(b). Thus he should either be duly nominated or must claim to have been duly nominated in order to come within the definition of candidate. The question of holding out arises only if the above two conditions are satisfied, and even that only for purposes of determining the starting period of his candidature. Though as a matter of fact he can be a candidate only when duly nominated or an occasion has arisen by reason of which he can claim to have been duly nominated, his candidature may relate back to the time from which he started holding himself out to be a prospective candidate with the election in prospect. Thus the significance of holding out lies in determining the starting time of candidature and that only if he satisfies the conditions of the first clause. He holding out may yet be of no avail if that was not done with the election prospect. The contention, therefore of the petitioner that unless it is proved that Punnaiah Sastri has held himself out as a prospective candidate, he cannot be held to be a candidate, even though he might have filed his nomination paper and was validly nominated and his name appeared in the list of validly nominated candidates, cannot be tenable in view of the terms of Section 79(b).
16. The only other point to be considered then is that since the term candidate as defined in Section 79(b) shall continue to have that meaning in other provisions unless the context otherwise requires as is clear from the opening Clauses of Section 79, whether there is sufficient context in Section 82 which may give a different meaning to that may give a different meaning to that term. We may read here the provision of both Sections 82 and 86(1), which are in the following terms: -
'82 A petitioner shall joint 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 is claimed, all the returned candidates and (b) any other candidate against whom allegations of any corrupt practices are made in the petition.
* * * * * 86 (1), The High Court shall dismisses an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.'
Section 82 casts duty on the petitioner to make certain persons specified in Clauses (a) and (b) thereof party-respondents to the petitions as enjoined by the said clauses. It is open under law to a petitioner to claim in his petition only the declaration that the election of all or any of the returned candidates is void. He can as well claim a further declaration that the petitioner himself or any other candidate has been duly elected. Whereas in the former case it is sufficient if he makes a returned candidate or returned candidates, as party-respondents, in the latter case he has to implead as respondents all the contesting candidates i.e., candidates whose names were included in the list of validly nominated candidates and who did not withdraw their candidature within the prescribed period. In this way all the defeated and returned candidates have to be on record. It is significant to note that in case any allegations of corrupt practice are made in the petition against a candidate, be he a contesting candidate or not, he has necessarily to be made party-respondent in either case. The words `other candidate' used in contra-distinction to the words `contesting candidates' employed in clause (a) manifestly show the clear intention of the legislature that all candidates who came within the definition of the candidate as in Section 79(b) and who on account of withdrawal of candidature under Section 37, are not included in the list of contesting candidates prepared under Section 38 of the Representation of the People Act, are within the meaning of that term. Such candidates have necessarily to be made party-respondents if there are allegations against them of any corrupt practice. it is immaterial whether it is a single corrupt practice or many that are alleged in the petition. They are in either case necessary parties to the constitution of the petition. In other words in their absence the petition cannot be tried, but as enjoined by Section 86(1) has to be dismissed in limine. It is no doubt provided in Section 99 that in case any charge of corrupt practice is made in the petition, the High Court shall give a finding at the time of the final disposal of the petition whether the said corrupt practices has been proved at the trial to have been guilty of such corrupt practices and this it has to do only after notice being given them opportunity to meet the case against them as enjoined in clauses (a) and (b) to the proviso to Section 99. The legislature has given special importance to corrupt practices committed by candidates and did not leave it open to the discretion of the petitioner to join such candidates in the petition but made it obligatory under a special provision on him to make them party-respondents to the petition itself on pain of dismissal of the petition so that from the very initial stage the attention of the Court may be centered on these allegations and the enquiry there-into may be made in the presence of those persons. That is the obvious intention of the parliament.
17. It follows, therefore, that Punnaiah Sastri, who was a candidate other than a contesting candidate as he had with-drawn his candidature was a necessary party to the petition as allegation of corrupt practice was made against him in the petition. His non-inclusion is therefore fatal to the petition.
18. This position in law is no longer in doubt and is well settled by authority, including the compelling authority of the Supreme Court. In Chatur Bhuj Chunnilal v. Election Tribunal, Kanpur. : AIR1958All809 the Allahabad High Court after exhaustive discussion on the subject held that sub-clause (b) of Section 82 of the Act must be interpreted as covering cases where a candidate is alleged to have committed a corrupt practice at any time even though he may have ceased to participate in the contest by withdrawing his candidature or may have been incapable of participating in the election because his nomination was rejected but he claims to have been duly nominated. The Bombay High Court in Baburao Tatyaji v. Madho Srihari, : AIR1961Bom29 held to the same effect that a candidate who had withdrawn his candidature under Section 37 after filing his nomination does not cease Sec. 82(b) is concerned must be made a party to the election if allegation of corrupt practice is made against him. It further held that the context in Section 82(b) does not require to construe the word candidate in any other sense than in Section 79(b). The same is the view of the Punjab High Court as expressed in Abhe Singh v. Nihal Singh Ramji Lal, AIR 1964 Punj 209, which has been affirmed in appeal by the Supreme Court in : 1SCR393 . It has been laid down by their Lordships following the decisions in Mohan Singh v. Bhanwarilal, : 5SCR12 , that a person who was duly nominated candidate though he withdrew his candidature within the time prescribed by the rules must for the purpose of Section 82(b) still be regarded as a candidate. When an election petition contained any imputation of corrupt practice against such a person, it cannot be regarded as properly constituted unless he was impleaded as a respondent. It may be remembered that in that case only one of the several grounds set out by the petitioner to set aside the election related to the candidate who was not made a party respondent. Similar was the circumstance of the case in Har Sarup v. Briji Bhushan, : AIR1964All340 . This case went in appeal to the Supreme Court, AIR 1967 SC 836. Their Lordships observed that if purity of election has to be maintained, which is the purpose of Section 123, a person who is a candidate as defined in Section 79(b) will remain candidate even and if he withdraws till election is over and if he commits a corrupt practice whether before or after his withdrawal, he would be a necessary party under Section 82(b).
19. It is unnecessary for me to multiply citations. It is clear that Punnaiah Sastri, who had withdrawn from the contest, was a candidate for the purpose of sub-section (b) of Section 82 and he was a necessary party to the petition. His non-inclusion must entail the penalty under Section 86(1) of the Representation of the People Act.
20. Section 86(1) is express and explicit and enjoins on the Court to dismiss any petition which does not comply with the provisions of Sections 81, 82 and 117. This provisions being mandatory in nature has to be obeyed in full. The Court has no power to condone or dispense with or waive non-compliance.
21. The petitioner, in order to remedy this defect, has filed an application that he may be permitted to implead Punnaiah Sastri as a party-respondent even at this stage as his non-inclusion was based on a bona fide belief that he is not necessary party to the petition.
22. It is urged that it is discretionary with the court even in such circumstances to permit the petitioner in exercise of its powers under Order 1, Rule 10, C. P. C. to add a party to the petition. If is difficult to subscribe to this contention. It is not as though the provisions of the Civil Procedure Code are made applicable without any qualifications. Section 87 of the Representation of the People Act makes the provisions of the Civil Procedure Code available so far as they are not inconsistent with the provisions of the Act. In fact, Section 87 says that subject to provisions of this Act or any rules made thereunder, every election petition shall tried as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code to the trial of the suits. The provisions of the Civil Procedure Code are thus made subordinate to the provisions of the Act and can be followed only when there is no express provision in the Act and only to the extent they mean no inconsistency with it. I may refer in this behalf to the following observations of the Supreme Court in Jagannath v. Jaswant Singh, : 1SCR892 : -
'The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or suit in enquiry but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power.
'It is also well settled that it is a sound principle of natural justice that the success of candidate who has won at an election should not be lightly interfered with and any petition, seeking such interference must strictly conform to the requirements of the law. None of these propositions however has any application if the special law itself confers authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it.
It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices.
In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law the jurisdiction of the Tribunal entrusted with the trial of the case is not affected.'
It is clear from the above that it is only when the special law does not prescribe the consequences of non-compliance with certain procedural requirements that the Court has power to exercise its discretion consistent with the principles of justice. If the consequences of non-compliance are provided in special law the Court would not be justified in ignoring the same or in permitting avoidance of the consequences by adopting procedure which would being about such a result. In this view of the matter it is impossible to hold that the petition which ought to be dismissed under the mandatory provisions of Section 86(1) can at all be kept alive and be proceeded with either by invoking the powers under Order 1 Rule 10, viz., by impleading the necessary party or by permitting the party to delete that portion of the allegations in the petition which necessitate the impleading of Punnaiah Sastri. This proposition again is well settled by chain of authorities, in Kamaraj Nadar v. Kunj Thevar. : 1SCR583 their Lordships while holding that if provisions of Section 82 which prescribe who shall be joined as respondents to the petition are not complied with, the Tribunal is bound to dismiss the petition observed that the defect of non-joinder of necessary parties cannot be cured by amendment inasmuch as the Election Tribunal has no power to grant such amendment, be it by way of withdrawal or abandonment of part of the claim or otherwise. The same principle has been reiterated in Inamati Mallappa v. Desai Basavaraj Ayyapa, : 1SCR611 and : 1SCR393 and some other decisions of the Supreme Court, The petitioner, relaying on the last para of the decision in : 1SCR393 , has argued that the observations contained therein must mean that the Court can notwithstanding the provisions of Section 86(1) direct the necessary party to be impleaded in exercise of its powers under Order 1, Rule 10, C. P. C. The observations of their Lordships are not susceptible of the inference that the petitioner seeks to draw. It was observed there that even if there was power to permit the joinder of parties that could not be exercised at any rate after the time has run against the petitioner. In the present case also the same difficulty would arise if it be assumed that Order 1, Rule 10, C. P. C. was available to remove the defect in Section 82(b) for unless that defect is removed within the period that defect is removed within the period of limitation, the stable infirmity which would warrant dismissal of the petition under Section 86(1) would endure, Judged from any angle the petition for amendment cannot be allowed. On the other hand the application of the 1st respondent must be allowed and the Election Petition must be dismissed in limine.
23. The plea of waiver raised by the Election Petitioner invoking R. 13 of O. 1, Civil Procedure Code, has to necessarily yield to the mandatory provisions of Section 86(1) which leaves no option to the Court but to dismiss the petition.
24. I, therefore, allow Application No. 150 of 1967, disallow Application No. 155 of 1967, and dismiss Election Petition No. 11 of 1967 in limine. The petitioner shall pay the costs of all the three respondents, which are fixed at Rs. 200/- to each.
25. Order accordingly.