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Tentu Lakshmi Naidu Vs. Vaisreddi Verda Rama Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberApplication Nos. 60, 62, 63 and 111 of 1978
Judge
Reported inAIR1980AP62
ActsRepresentation of the People Act, 1951 - Sections 112 and 112(3); Code of Civil Procedure (CPC), 1908 - Order 3, Rules 1 and 4 - Order 29, Rule 1
AppellantTentu Lakshmi Naidu
RespondentVaisreddi Verda Rama Rao and anr.
Appellant AdvocateKoti Reddy, Adv.
Respondent AdvocateE. Ella Reddy, Adv.
Excerpt:
.....of fact of abatement apply to be substituted subject to terms and conditions imposed by high court - application was filed beyond period of fourteen days - applying strict rule of compliance of section 112 and order 3 rule 1 application filed beyond period of limitation barred by limitation. - - p was duly signed by the decree- holder as well as the pleader who presented it in court. there is a well-known distinction between a case where the direction of the legislature are imperative and a case where they are directory. 1 of the original side rules, is as under every appointment of an advocate to make or do any appearance, application or act, shall be in writing, and shall bear the date of execution, and shall be endorsed with the address for service of the advocate and..........to file the application. but, the main aspect which has to be noted is that the present petitioner field the application under section 112(3) not as the legal representative of the election petitioner but as being an elector as envisaged under section 81 of the act. when such is the position, o. xxii, c. p. c. cannot be applicable notwithstanding the fact that section 87 of the act, provides for the applicability of the civil p. c. as nearly as may be to the trail of the election petition. yet from another aspect, it is to be noted that the act is a special measure and continuity of the election petition not by the legal representative of the election petitioner but by an elector is being maintained as a matter of public policy. in these circumstances, the provisions of section 112 of.....
Judgment:
ORDER

1. The sole petitioner in the Election petition died on 21st July, 1978. By order dated 24th July, 1978 the Election petition was held to have been abated. The office was directed to caused the publication to be made in two daily newspaper and the state Government Gazette. The two daily newspaper are Enaadu of Visakhapatnam edition and Indian Express of Vijayawada edition in which the directions contained in sub-section (3) of section 112 of the Representation of the people Act (hereinafter referred to as the Act) were published. The present petitioner in Application 111 of 1978 happens to be an elector in the 12 Therlam Assembly constituency and registered elector at serial number 779 of 1977 of the Elector al Roll of Therlam Assembly constituency, part 47, Mugunda village. He is, incidentally also the son of the deceased in Election petition 9 of 1978. The petitioner filed the above Application to permit him to be substituted in the place of the deceased and continue the proceedings. The Application although dated 12-8- 1978, was field in the High court on 21- 8- 1978. In the counter affidavit field by the respondent it is averred that Application 111 of 1978 is barred by limitation as it has been field beyond the period of fourteen days permitted by section 112(3) of the Act. According to the counter- affidavit citations were published in Indian Express, Vijayawada edition on 8-8- 1978, in Ennadu of Visakhapatnam edition on 13080 1978. Although the Application appears to have been field on 21- 8- 1978 and as such within fourteen days of the publication, nevertheless. it is contended that the Application field on 21- 8- 1978 cannot be considered to have been field according to law and, therefore, it cannot be said that the Application is within limitation. what is contended is that this Application was not presented by the petitioner in his personal capacity which he could have done as per the law. The Application was field by Mr. I. Koti Reddi, who on the date when the Application was field on 21- 8-1978 , the office raised as manu as six objection and returned the Application for compliance on 1-9-1978. The petitioner complied with five objections and represented the

Application of 4-9- 1978 undertaking to comply with the sixth objections before 11- 9--1978 which he die by filing the Vakalat on 11- 9-1978. Therefore, it is submitted that Application 111 of 1978 should be considered to have been field properly and in accordance with law only on 11- 9-1978. If that is so, then it would be beyond the period of fourteen days provided for under the Act and as such it is liable to be dismissed.

2. In order to prove that Application 111 of 1978 was field by Mr. I. Koti Reddy and not by the petitioner himself, and Mr. Kote Reddy was not holding the Vakalat on 21- 8- 1978, the respondent relied upon the application which has been signed by Mr. I. Koti Reddy himself and not by the petitioner. Mr. I. Koti Reddy states that his clerk and the petitioner himself filed the Application. I regret that this is not borne out from the S. R. Register. A perusal of S. R No 68631 dated 21- 8-1978 would show that it was Mr. I. Koti Reddy who had field the said Application. Thus it can safely be found that Application 111 of 1978, appears to have been field on 21- 8- 1978, was not field by the petitioner him self but by Mr. I. Koti Reddy was not holding Vakalat for the petitioner , Hence , I find that on 21- 8- 1978 Application 111/ 78 was field by Mr. I. Koti Reddy who was not holding any Vakalat for the petitioner on that day, but the Vakalat was field on 11- 9-1978. In these circumstances, it is now to be seen, in the light of the relevant provisions of law as to whether the Application could be considered to have been legally and properly field on 21- 8-1978. Section 112 of the Act provides:

'Abatement of Election petitions: (1) An election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners.

(2) Where an election petition abated under sub-sec. (1), the High court shall cause the fact to bee published in such manner as it may deem fit.

(3) Any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions. if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High court may deem fit.'

3. A perusal thereof would show that the Election petition abates on the death of the sole petitioner, or, in case there are several petitioners, it would abate on the death of the last survivor. According to section 112(2) a duty is cast on the High court to cause publication of the fact of abatement of the election petition in such manner as it may deem fit. In compliance with this provision, citations in Enaadu of Visakhapatnam Edition, Indian Express of Vijayawada edition and the state Government Gazette were ordered to be published, as referred to herein above. Section 112(3) of the Act provides that any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit. The question as to who should be the petitioner is answered in section 81 of the Act which provides that an election petition calling in question and election may be presented on one or more of the grounds specified in subsection (1) of section 100 and section 101 to the High court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election. We are not concerned with the latter limb of section 81. It would thus be seen that an elector also can present an election petition calling in question an election. It is also not in dispute that the present petitioner is an elector and as such is entitled to file the application. But, the main aspect which has to be noted is that the present petitioner field the Application under section 112(3) not as the legal representative of the election petitioner but as being an elector as envisaged under section 81 of the Act. when such is the position, O. XXII, C. P. C. cannot be applicable notwithstanding the fact that section 87 of the Act, provides for the applicability of the civil P. C. as nearly as may be to the trail of the Election petition. Yet from another aspect, it is to be noted that the Act is a special measure and continuity of the Election petition not by the legal representative of the Election petitioner but by an elector is being maintained as a matter of public policy. In these circumstances, the provisions of section 112 of the Act will have to be interpreted strictly because the Act itself is a complete code by itself and although section 87 of the Act provides for the applicability of the code of civil procedure, nevertheless, in several respects the code of civil procedure has no application because certain provision have been made under the Act to regulate certain factors which need not be discussed in this order.

4. It is true that neither the Act nor the Rules provide for the manner in which an application should be field for substitution under section 112 of the Act. Even if resort is had to the provisions of section 87 of the Act. it would be evident that the provisions of O.III of the civil P. C. , it is necessary to note that no rules have been specifically framed with regard to an interlocutory application in an election petition. But Mr. Ella Reddy, the learned advocate appearing for the respondent, brings to my notice the Rules of Regulating the Trial of Election petitions under the Representation of the people Act 1951. It is not necessary to quote Rules 1 to 11 thereof, as they are not relevant to the case on hand. Rule 12 of the above said Rules would show that to a proceeding under the Act expect as provided under the Act, it would be the code of civil procedure, the above rules and the rules of the High court on the Original side that would apply. Expect for Rule 12 the above said Rules are silent with regard to filing of an inter locutory application including an application under section 112 of the Act. It would not be relevant to consider the provisions of O. III, Rr. 1 and 4 of the civil P. C. O. III, R. 1 is as follows:

'Any appearance , application or act in or to any court, required or authorised by law such court, may, expect where other wise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be on his behalf.

provided that any such appearance shall if the court so directs, be made by the party in person.

O. III, R. 4 is as under:

'(1) No pleader shall act for any person in any court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power of attorney to make such appointment.

(2) Every such appointment shall be field in court and shall for the purpose of sub- rule (1), be deemed to be in force until determined with the leave of the court by a writing signed by the client or the pleader, as the case may be, and field in court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.

Explanation: For the purpose of this sub-rule, the following shall be deemed to be proceedings in the suit,-

(a) an application for the review of decree or order in the suit.

(b) an application under section 144 or under section 152 of this code in relation to any decree or order made in the suit.

(c) an appeal from any decree or order in the suit, and

(d) any application or act for the purpose of obtaining copies of documents or return of documents produced of field in the suit or of obtaining refund of moneys paid into the court in connection with the suit.

(3) Nothing in sub- rule (2) shall be construed-

(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or

(b) as authorising service on the pleader of any noticed or document issued by any court other than the court for which the pleader was engaged, expect where such service was expressly agreed to by the client in the document referred to in sub- rule (1).

(4) The High court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has field in court a memorandum of appearance signed by himself and stating -

(a) the names of the parties to the suit,

(b) the name of the party for whom he appears , and

(c) the name of the person by whom he is authorised to appear:

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any other pleader who has been duly appointed to act in court on behalf of such party.'

O. III, Rr. 1 and 4 of the C. P. C. came up for interpretation before a Full Bench of this court in Nadelia Satyanarayana v. Yamanooru Venkata Subbaiah, (AIR 1957 Andh pra 172). In that case one P. Viswanatha Rao, pleader of the Markapur Bar, field E. P. No. 15 of 1950 in O. S. No. 464 of 1935. That E. P was duly signed by the decree- holder as well as the pleader who presented it in court. But, at that time, he had no Vakalat by the party. Subsequently the pleader got Vakalat from his client and field in the court. The district Munsif held that the presentation of the application was a nullity and consequently dismissed the execution petition. But, the appellate court held that the presentation by the pleader without Vakalat was only an irregularity and it, therefore, set aside the order of the District Munsif and remanded the case for fresh disposal in accordance with law. Consequently, an appeal was preferred to the High Court and finally it was referred to a Full Bench of this court. The question that was referred was whether an application for execution, which is in all other respects in order, could be considered to be a valid act merely because it was presented by a pleader who had not got Vakalat from the decree- holder. It would thus be seen that the Full Bench was interpreting O.III, Rr 1 and 4 of the civil P. C. with reference to XXI, R. 10 of the civil P. C. In doing so, the Full Bench observed:

'The presentation of an application for execution is an act required or authorised by law to be done by a party in person, by his recognised agent or by a pleader duly appointed by him in that behalf. Acting includes applying and a pleader who makes an application on behalf of litigant acts for him and cannot do so unless he is duly authorised in that behalf. But the presentation of an application by a pleader to whom the authority in the prescribed manner under R. 4 of O. 3, C. P. C. was not given is only an irregularity which could be cured at a subsequent stage.'

The Full Bench further observed in para 60 of its judgement:

'................. there is a well-known distinction between a case where the direction of the Legislature are imperative and a case where they are directory. The general rule is that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment is obeyed or fulfilled exactly, but it is sufficient if a directory enactment is obeyed or fulfilled substantially. It has always been held that where no public policy is involved, the provisions of a statue should be held to be directory only and not mandatory................... '

It would thus be seen that while interpreting O. III, Rr. 1 and 4 of the civil P. C. for purpose of O. XXI, R. 10, C. P. C., the Full Bench observed that O. III, Rr. 1 and 4, C. P. C. are directory, but as observed by the Full Bench itself and as stated by me herein above, the Act is a measure which is based on public policy. In the present case, as already observed by me, it is a matter of public policy that an elector is permitted to get himself substituted under section 112 of the Act and to continue the Election petition. When such is the position to my mind, O. III, Rr. 1 and 4 C. P. C., if read in conjuction with section 112 of the Act, should be considered to be mandatory and any slackness by the petitioner with the provisions of section 112 of the Act and O.III, Rr. 1 and 4 C. P. C. can not be considered to be an irregularity which could be rectified; hence those provisions should be interpreted strictly and non- compliance thereof would be held to be illegal.

5. Finally, even the Rules of the High court on the original side viz., O. XXIX, R. 1, are on similar lines as O. III, Rr. 1 and 4 C. P. C. O. XXIX, R. 1 of the original side Rules, is as under

'Every appointment of an advocate to make or do any appearance, application or act, shall be in writing, and shall bear the date of execution, and shall be endorsed with the address for service of the advocate and the said endorsement shall be signed by him.

No advocate shall be allowed to appear, plead or act, in any suit, appeal, or matter, until he has field in court an appointment in accordance with these rules. If the appointment is executed by an agent of the party, the advocate shall, if required, produce the power of attorney authorising the agent to appoint him, and , if required, shall also file in court a copy thereof with the appointment.

An appointment on behalf of a firm may be signed by any partner in the name of the firm.

In cases in which the party is represented by more than one advocate, it shall be necessary for all and each of them to file a joint or separate appointment on his behalf in court in accordance with these rules.'

Hence, I am of the opinion that the provisions of O. III, Rr. 1 and 4 C. P. C., and O. XXIX, R. 1 of the original side Rules of the High Court read in conjunction with the provisions of S. 112 of the Act, should be interpreted strictly in so far as they deal with the enactment involving public policy. I am fortified in my conclusion that the provisions of the Act should construed by the following decisions of the supreme court I. e., in ch. Subbarao v. Member Election Tribunal, : [1964]6SCR213 and K. V. Rao v. B. N. Reddi, : [1969]1SCR679 .

6. Applying the principles of strict interpretation of section 112 of the Act and O. III, Rr. 1 and 4 C, P. C. as also O. XXIX, R. 1 of the original side Rules, I am constrained to hold that Application 111 of 1978 would be deemed to have been field on 11-9- 1978 when Mr. Koti Reddy field his Vakalat on behalf of the petitioner. Since the application has been field beyond fourteen days of the citation in the newspapers it is barred by limitation.

7. Therefore, Application 111 of 1978 is dismissed with costs. Advocate's fee Rs. 500/-.

In view of the orders passed in Application 111 of 1978, Applications 60, 62 and 63 of 1978 are also dismissed.

8. Ordered accordingly.


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