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Hari Om Singh Vs. Dr. Karan Singh - Court Judgment

LegalCrystal Citation
SubjectElection
CourtJammu and Kashmir High Court
Decided On
Case NumberElection Petn. No. 2 of 1980 and Misc. Appln. No. 85 of 1980
Judge
Reported inAIR1980J& K57
ActsRepresentation of the People Act, 1951 - Section 86(4)
AppellantHari Om Singh
RespondentDr. Karan Singh
Appellant Advocate L.K. Sharma, Adv.; R.P. Sethi, Adv.
Respondent Advocate O.N. Tikku,; S.P. Gupta and; H.L. Bhagotra, Advs.
DispositionPetition dismissed
Excerpt:
- .....parliamentary constituency in the year 1980 against the respondent and six other contesting candidates, but he has not been made a respondent in the case. since the applying petitioner knows all the activities of all the contesting candidates and he is also interested and desirous to helping the hon'ble court in arriving at a correct decision and furthermore the petitioner has got a statutory right to be impleaded as a party in these proceedings. the petitioner prays that the petitioner be made party to the above election petition. 3. that the applying petitioner reserves his right to question the jurisdiction and propriety of your lordship to hear the election petition. 4. that hari om singh petitioner who has been set up as a statute by shri devi dass thakur, the defeated.....
Judgment:
ORDER

A.S. Anand, J.

1. Shri Sat Paul has filed this petition under Section 82/86 of the Representation of the People Act, 1951, seeking orders to be made a party in the Election Petition titled 'Hari Om Singh Versus Dr. Karan Singh' and for being arrayed as a respondent.

2. For proper appreciation of the case of the petitioner-applicant, it is desirable to reproduce the exact aver~ ments made in the application:--

'2. That the petitioner who also contested the election in the five Udham-pur Parliamentary Constituency in the year 1980 against the respondent and six other contesting candidates, but he has not been made a respondent in the case. Since the applying petitioner knows all the activities of all the contesting candidates and he is also interested and desirous to helping the Hon'ble Court in arriving at a correct decision and furthermore the petitioner has got a statutory right to be impleaded as a party in these proceedings. The petitioner prays that the petitioner be made party to the above election petition.

3. That the applying petitioner reserves his right to question the jurisdiction and propriety of your Lordship to hear the Election Petition.

4. That Hari Om Singh petitioner who has been set up as a statute by Shri Devi Dass Thakur, the defeated candidate had the full knowledge that the applying petitioner contested the election deliberately withheld the name of the applying petitioner in making him a party. The applying petitioner has information in his possession that the real petitioner who has instituted this petition is Shri Devi Dass Thakur, the defeated candidate, who has been the Judge of this Hon'ble Court and who has also held a portfolio of justice since 1975 and continued to hold Finance now is not only pulling the chain behind the scene, but is the real stage Manager and only wants to keep his identity concealed.'

3. The affidavit which has been filed in support of this petition reads as follows:--

'I solemnly affirm that it is only yesterday that I have learnt that an election petition has been filed by Shri Hari Ram Om Singh against Dr. KaranSingh challenging the election of Dr. Karan Singh as a result of the overwhelming success in the five Udham-pur Parliamentary Constituency.

I solemnly affirm that my name has been intentionally withheld by the petitioner who has full knowledge of mine to contest the five Udhampur Parliamentary Constituency in the General Election of 1980.

I solemnly affirm that the facts stated in my application are true to my knowledge'.

4. Mr. L. K. Sharma learned counsel for the petitioner-applicant submits that under Section 86 Sub-section (4) of the Representation of the People Act, 1951, the applicant, who is a defeated candidate has the statutory right to be joined as a respondent. It is argued that subject to the limitations contained in Sub-section (4) of Section 86, the petitioner applicant cannot be refused permission to be impleaded as a respondent to the election petition.

5. Mr, B. P. Sethi, learned counsel for the non-applicant-election petitioner has argued that the election petitioner has not made any allegations against Shri Sat Paul and since he has not claimed any declaration that the Election Petitioner be declared duly elected, it was not obligatory for him to have impleaded Shri Sat Paul as a respondent. It is further argued that the election petitioner cannot be forced to fight his battle against a person whom he does not wish to fight the battle. It is further urged that the question of addition of parties is a matter of judicial discretion which has to be. exercised in view of al1 the facts of a particular case and that no case had been made out to implead the applicant as a party.

6. M/s. O. N. Tikku, S. P. Gupta and H. L. Bhagotra, appearing for the returned candidate, have supported the application filed by Shri Sat Paul.

7. Section 86 Sub-section (4) of the He presentation of the People Act, 1951 which has been pressed into service, reads as follows:--

'(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court,be entitled to be joined as a respondent.

Explanation: for the purposes of this sub-section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondent to appear before the High Court and answer the claim made in the petition.'

8. A bare reading of the section shows that a candidate may be joined as a respondent, if he files an application in the High Court within 14 days from the date of commencement of the trial. The explanation to the section lavs down that the trial of an election petition shall be deemed to commence on the date fixed for the respondent to appear before the High Court and answer the claim or claims made in the petition. Thus, two conditions which must be satisfied are, (1) that the person seeking to be impleaded must have been a candidate and, (2) he must file the application within 14 j days of the commencement of the trial of the election petition. The first condition in this case is satisfied. However, the second condition is not satisfied. The present petition was filed by Shri Sat Paul on 23rd of April, 1980 in the court. After the election petition was registered and summonses were issued to the respondent, as required by law, the respondent appeared in court through M/s. O. N, Tikku and S. P. Gupta on 4th of April, 1980. Time was given to the respondents to file the written statement within four weeks. According to Mr. L. K. Sharma and which stand is supported by M/s, O. N. Tikku, S. P. Gupta and H. L, Bhagotra, the tune of 14 days has to be reckoned from the date when the written statement is filed and not from the date of appearance of the returned candidate in court. I am afraid, I can-not agree. A copy of the summons which was served on the returned candidate stated inter alia: 'You are hereby summoned to appear in this court in person or by duly authorised attorney or agent to answer all material questions relating to the petition, copy enclosed.'

9. The explanation to Sub-section (4)(supra) shows that the trial of an elec-tion petition commences on the * datefixed for the respondent to appear inthe High Court and answer the claim.The legislature did not leave it to theinterpretation of the courts as to when the trial of an election petition would be deemed to commence. It expressly laid down that it would commence 'on the date fixed for the respondent to appear before the High Court and answer the claims.' That date in this case undoubtedly was 4th of April, 1980. The present application having been filed on 23rd of April was clearly beyond the time of 14 days period prescribed by Sub-section (4) of Section 86. The argument that the time should start from the filing of the written statement is wholly fallacious. Can it be contemplated that the 'commencement of the trial' can be delayed at the whims of the returned candidate who has once appeared in the High Court to answer the claims made in the petition? The answer must be an emphatic 'no'. A returned candidate may delay the filing of the written statement and no premium can be put on such delay for the purpose of Section 86(4) of the Act. Thus, the application is beyond the presecribed period and not maintainable.

10. The reliance placed by Mr. L. K. Sharma on AIR 1958 Raj 307 in support of his argument that the period of 14 days shall be reckoned from the date the written statement is filed, is misplaced. In the Rajasthan authority the date had been fixed by the Election Commissioner for the appearance of the parties and not by the court. The time was allowed to run from the date when he appeared or filed the written statement. As I have reproduced the wordings of the summons issued to the respondent, there remains no manner of doubt that he was to answer the claim as set out in the election petition on the date when he first appeared in court. The case is clearly distinguishable.

11. Apart from the above legal infirmity, I find that on merits also the applicant has been unable to make out any case for being impleaded as a respondent. I have read the various paragraphs of the application and the affidavit, reproduced elsewhere in the Judgment, again and again, and I must express my inability to make out as to what the applicant desires to convey through these paragraphs. Not a single averment has been made in the application as to how he is 'interested and desirous' of helping the court, Theonly reason given by him is that 'he knows all the activities of all contesting candidates,' So what! An election trial is not a suit in equity. It is a trial, purely governed by the statute. The entire constituency is interested in the trial of the election petition and not merely the other defeated candidates. Before an election petitioner can be forced to contest his case against a respondent, whom he did not implead in the petition, the court must be satisfied that the application is bona fide. The present application, prima facie, does not appear to be bona fide. Whereas the applicant submits himself to the jurisdiction of this court to be impleaded as a respondent, he says that after he is so impleaded' he reserves his right to question the jurisdiction of this court to try the election petition.' Both the stands, being mutually exclusive, are irreconcilable and create an impression that the application has been filed to delay the proceedings in the election petition.

12. For all that has been stated above, I do not find any merit in this application and accordingly dismiss the same.


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