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Dr. K.K. Mohamad Koya Vs. P.M. Sayeed - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKerala High Court
Decided On
Case NumberC.M.P. No. 9879 of 1977 in E.P. No. 22 of 1977
Judge
Reported inAIR1977Ker160
ActsRepresentation of the People Act, 1951 - Sections 80A(2), 81(1) and 81(3); Civil Courts Act, 1957 - Sections 19; General Clauses Act, 1897 - Sections 10 and 10(1); Kerala High Court Act, 1959 - Sections 8
AppellantDr. K.K. Mohamad Koya
RespondentP.M. Sayeed
Appellant Advocate P.N.K. Achan, Adv.
Respondent Advocate P.C. Mohisin, Adv.
Cases ReferredDr. Anup Singh v. Abdul Ghani
Excerpt:
- - x x x x x' clause (1) of part ii clearly states thatthe high court will remain closed forthe vacation and holidays......time prescribed by law. the answer of the petitioner is that since the high court was closed for summer vacation he had time till 23-5-1977 to file the election petition. it is common case that by notification no. d6-41831/76(1) dated 19-11-1976 the summer vacation commenced from 11th april 1977 and lasted till 21st may 1977 (both days inclusive). reliance is placed on section 10 of the general clauses act, act 10 of 1897. section 10 reads as follows: '10 (1). where, by any central act or regulation made after the commencement of this act, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is closed on that day or the last day of the prescribed period, the act or proceeding.....
Judgment:
ORDER

N.D.P. Namboodiripad, J.

1. E. P. No. 22/1977 is a petition presented under Section 81 of the Representation of the People Act 1951 challenging the election of the respondent as a member of the House of the People from the Lakshadweep, a Union territory. The petitioner and the respondent were the contesting candidates. Poll was taken on 16-3-1977. The counting of votes took place on 20-3-1977 and on the same day the Returning Officer declared the respondent as elected. The election of the respondent is challenged mainly on the ground that the respondent is guilty of corrupt practices. In answer to the summons from court the respondent entered appearance and filed a written statement traversing the allegations made in the petition, and contending inter alia that the petition is barred by limitation. On the basis of the pleadings issues were raised on 11-7-1977; and issue No. 2 is in the following terms:

'Whether the petition is barred by limitation?'. The respondent filed C. M. P. 9879/77 praying that the issue relating to limitation may be heard before proceeding with the trial of the petition. I am referring to the parties as they figure in the main petition. The petitioner did not object to issue No. 2 being heard preliminarily.

2. The contentions raised by the respondent are two-fold. In the first place it is argued that the relevant petition was filed beyond the period prescribed in Section 81(1) of the Representation of the People Act. According to that provision the petition has to be presented within 45 days from, but not earlier than the date of the election of the respondent. The respondent was declared elected on 20-3-1977. So normally the petition had to be filed on or before 5-5-1977. But the petition was filed in court only on 23-5-1977. So prima facie the petition was laid beyond the time prescribed by law. The answer of the petitioner is that since the High Court was closed for summer vacation he had time till 23-5-1977 to file the election petition. It is common case that by notification No. D6-41831/76(1) dated 19-11-1976 the summer vacation commenced from 11th April 1977 and lasted till 21st May 1977 (both days inclusive). Reliance is placed on Section 10 of the General Clauses Act, Act 10 of 1897. Section 10 reads as follows:

'10 (1). Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:

Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 applies.

(2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887.'

The contention of the respondent is that during the summer vacation there was no closing of the court within the meaning of Section 10(1) of the General Clauses Act. So the crucial question is whether the court could be deemed to have been closed from 11-4-1977 to 22-5-1977. According to the respondent the High Court could not be deemed to have been closed during the summer vacation, and in support of that contention the respondent relied on Section 8 of the Kerala High Court Act. Act 5 of 1959. I may read the provision.

'8 (1) During the adjournment of the High Court the Chief Justice shall nominate a single Judge of the High Court for the hearing of all matters which require to be immediately or promptly dealt with and such Judge shall have all the powers of the High Court, except in cases in which such power must be exercised under the provisions of any law by more than one Judge. xx x x'

According to the respondent during the summer vacation there is only an adjournment of the High Court, and the expression 'adjournment' shall not be understood as the closing of the court. I am unable to accept that argument; and I may refer to Section 19 of the Civil Courts Act, 1957, which reads as follows:

'19 (1). The High Court may permit the civil courts under its control to adjourn from time to time for periods not exceeding in the aggregate sixty days in each year.

(2) During the adjournment of a civil court, the High Court shall have the power to make provisional orders in all urgent matters and for such purpose to receive appeals, plaints and petitions which would ordinarily be presented to such civil court and any such order shall remain in force only until the matter has been heard and decided by the court having jurisdiction.' It is not disputed before me that during the summer vacation. the courts subordinate to the High Court are closed and that no suit, appeal or other proceedings can be instituted in those courts. The expression used in Section 19 also is 'adjournment'. Adjournment during the summer vacation has always been understood and treated as a closing of the court. It is to provide alternative arrangement that a Judge of the High Court is nominated by the Chief Justice in exercise of the powers conferred under Section 8 of the Kerala High Court Act for hearing all matters which require to be immediately or promptly dealt with. Notification No. A1-5419/77 dated 21-3-1977 issued by the High Court may be read in this connection. Part II of the notification is extracted below:

'(1) No plaints, appeals, petitions or other documents except those which require to. be immediately or promptly dealt with will be filed or received in the Registry of the High Court during the periods when the High Court will remain closed for the vacation and holidays. x x x x x'

Clause (1) of Part II clearly states thatthe High Court will remain closed forthe vacation and holidays. Again, it couldbe seen that only documents which required to be immediately or promptlydealt with will be filed or received inthe registry of the High Court. It hasbeen the practice of the courts in thisState inclusive of the High Court totreat the summer vacation as a periodduring Which the courts remain closedexcept with regard to the functioning ofa vacation judge nominated by the ChiefJustice in accordance with Section 8 of theHigh Court Act I cannot, therefore, accept the contention of the respondentthat there is no closing of the HighCourt as such during the summer vacation.

3. An alternative contention raised by the respondent is again based on Section 8 of the High Court Act. According to Section 8 the Judge nominated by the Chief Justice under that section 'shall have all the powers of the High Court, except In cases in which such power must be exercised under the provisions of any law by more than one Judge'. The argument advanced on the basis of that provision is that since during the summer vacation Judges were nominated by the Chief Justice and since the Judges so nominated had all the powers of the High Court there was no total prohibition of filing an election petition during the summer vacation. It is common case that in exercise of the powers conferred by Sub-section (2) of Section 80-A of the Representation of the People Act, 1951 the Chief Justice of the High Court of Kerala nominated one Judge of the High Court to try election petitions. It is further admitted by both sides that the Judge so nominated did not function at any time as a vacation Judge and that the Chief Justice nominated during the relevant vacation two other Judges to function as vacation Judges. By Notification No. D1-14606/66 dated 8th February 1971 the High Court of Kerala in exercise of the powers conferred on it under Article 225 of the Constitution of India and Section 122 of the Code of Civil Procedure, 1908, published rules to regulate its own procedure. Rules 207 to 219 (both inclusive) deal with the procedure regarding the trial of election petitions. Rule 207 may be read in this context:

'Definitions.-- In this chapter, (1) 'the Act' shall mean the Representation of the People Act, 1951, and

(2) 'the Judge' shall mean the Judge of the Court who has been assigned by the Chief Justice under Sub-section (2) of Section 80-A of the Act, for the trial of Election Petitions.'

By virtue of Sub-rule (2) of Rule 207 it is clear that for the purpose of trial of election petitions the Judge shall mean a Judge of the High Court who has been assigned by the Chief Justice under Section 80-A(2) of the Act. Since the Chief justice has already assigned one Judge of the High Court to try the election petitions it is not possible to hold that the Judges who functioned during the summer vacation this year had the authority to try election petitions. My conclusion, therefore, is that during the summer vacation the High Court was closed for the purpose of the application of Section 10 of the General Clauses Act. Since the period of 45 days expired during the currency of the vacation the petitioner had time till the reopening date to file the petition. To repeat, the election petition was filed on the reopening date, namely 23-5-1977. Consequently, it cannot be held that the petition is barred by limitation.

4. The respondent urged an alternative contention having a bearing on the question of limitation. According to the respondent there was non-compliance with Section 81(3) of the Representation of the People Act 1951. According to Section 81(3) of the Act every election petition shall be accompanied by as many copies as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The petitioner filed along with the petition the number of copies required in compliance with Section 81(3). All those copies were signed by the petitioner both before and after verification, But the copies were not attested as 'true copy'. The petitioner subsequently filed C. M. P. 7238/77 for accepting additional fresh copies containing the proper attestation. Those copies are dated 28-5-1977, and it appears that the copies served on the respondent were the duly attested copies filed on 28-5-1977. The argument advanced by the respondent is that the copies produced after the last day of limitation, namely 23-5-1977 cannot be accepted and that there is non-compliance with Section 81(3) of the Act. If the copies of the petition filed on 23-5-1977 did not comply with Section 81(3) of the Act then there is authority in support of the respondent's contention that copies subsequently filed cannot be acted upon and that the election petition itself is liable to be dismissed under Section 86(1) of the Act. So the question is whether the copies filed on 23-5-1977 were defective. As referred to earlier, though all the copies were signed by the petitioner just as he signed the original petition there was no attestation that they were true copies. The answer of the petitioner in this respect is that since the copies filed on 23-5-1977 contained his signature there was substantial compliance with Section 81(3) of the Act The petitioner relied on the decision of the Supreme Court reported in Ch. Subbarao v. Member, Election Tribunal, Hyderabad (AIR 1964 SC 1027). In that case also the copies were signed by the petitioner, but there was no attestation in the sense the words 'true copy' were omitted above the signature of the petitioner. The Supreme Court held that as the signature in original was there in the copy, the presence of such original signature in the copy was sufficient to indicate that the copy was attested as a true copy, even though the words 'true copy' were not written above the signature in the copies. The court held that there was substantial compliance with Section 81(3) of the Act and that the petition could not be dismissed under Section 90 (3) of the Act. Almost a parallel case arose for consideration by the Supreme Court in Dr. Anup Singh v. Abdul Ghani (AIR 1965 SC 815). In that case the necessary number of copies were filed and the copies bore the signature of the petitioner concerned. The copies were carbon copies of the original and there was no dispute that they were not true copies thereof. The Supreme Court again held that there is substantial compliance with Section 81(3) of the Act The facts of this case are almost identical with the facts of the two cases decided by the Supreme Court and cited above. I hold that inasmuch as the copies filed on 23-5-1977 contained the signature of the petitioner there was substantial compliance with Section 81(3) of the Act and that the copies filed on 28-5-1977 after the expiry of the period of limitation are not necessary to support the main petition. The second contention of the respondent also is therefore rejected.

5. In the result, it is found that the election petition is not barred by limitation; and issue No. 2 is, answered in favour of the petitioner.


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