Full Judgment Text
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PETITIONER:
RAJENDRA KUMARI BAJPAI
Vs.
RESPONDENT:
RAM ADHAR YADAV & OTHERS
DATE OF JUDGMENT06/08/1975
BENCH:
ACT:
Representation of the People Act, (43 of 1951), S. 87-
Applicability of o. Xl C.P.C. to trial of election
petitions.
HEADNOTE:
An application for delivery of interrogatories is one
of the logical steps in aid of the prosecution of an
election petition and is fully covered by s. 87 of the
Representation of the People Act, 1951. C(1)
(1) Order XI, C.P.C., forms part of the trial of suits
and is not a special procedure. Order X relates to the
procedure for examination of parties by the Court and o. XI,
is a part of it, because, it provides for examination
through interrogatories, when personal appearance is not
possible. [262A-B]
(2) Before Act 47 of 1966 amended the Representation of
the People Act, 1951, the power to try election petitions
was conferred on the Erection Tribunal. That Tribunal was
not a Civil Court but was deemed to be a Civil Court. Though
s. 90, as it then stood, provided that every election
petition shall be tried, as nearly as may be, in accordance
with the procedure under the C.P.C., in order to avoid
doubts, the special powers under O. Xl, C.P.C., were
conferred on the Tribunal by s. 92. When Parliament has
expressly conferred the powers contained in O.XI on the
Tribunal, it could not be contended that the principles
contained therein are excluded from the trial of election
petitions, on the basis of English Law. [257F-H]
(3) After the amendment of 1966, as election petitions
are to be tried by the High Court, a Court of Record, s. 87,
which is based on the repealed s. 90, is sufficient to
contain the entire procedure to be adopted by the High Court
in trying election petitions. Section 87 is of widest
amplitude so as to cover the entire procedure mentioned in
the Code of Civil Procedure with only two exceptions, (a)
when the Act contains express provision for certain matters
which are inconsistent with the procedure prescribed by the
Code; and (b) when a particular provision of the Code is
either expressly or by necessary intendment excluded by the
Act. That is why a provision like the repealed s. 92 is
unnecessary; and it cannot be contended that since
Parliament repealed that section, Parliament intended that
the provisions of O. XI, C.P.C., should not apply to
election petitions tried by the High Court. [258A-E; 269C-D]
Sitaram Hirachand Birla vs. Yograisingh Shankarsingh
Parihar and others, AIR 1953 Bom. 293, Durvodhan v. Sitaram
and others AIR 1970 All. 1; Jugal Kishore v. Dr. Baldev
Prakash AIR 1968 Punj.. 152 (F.B.) and Keshari Lal Kavi and
another v. Narain Prakash and others, AIR 1969 Raj. 75,
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referred to.
Dr. Jagjit Singh v. Giani Kartar Singh and others
A.I.R. 1966 S.C. 773, and V. K. Sakleha v. Jagjiwan [1972] 1
S.C.C. 826, followed.
(4) Merely because in Inamati Mallappa Basappa v. Desai
Basavaraj Ayyappu and others [1959] S.C.R. 611 it was held
that the procedure contained in O. 23, r. 1 C.P.C. does not
apply to election petitions it could not be contended that
O. XI: C.P.C., would not also be applicable to election
petitions. Order 23, r. 1 cannot be equated with the
provisions of O. XI. Having regard to the nature of an
election petition which is a matter of moment and concern to
the entire constituency the notion of abandonment of the
claim or withdrawal is absolutely foreign to the scope of
such proceedings and must, therefore, be held to be excluded
by the necessary intendment of s. 87 itself. [260H-261 B, D-
E]
256
^
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 104 of
1975
Appeal by special leave from the judgment and order
dated the 12th December, 1974 of the Allahabad High Court in
Application Paper No. A-53 in Election Petition No. 30 of
1974.
Yogeshwar Prasad and Rani Arora, for the appellant
K C. Agarwala and K. M. L. Srivastava, for respondent
no. 1.
The Judgment of the Court was delivered by
FAZAL ALI, J.-This appeal by special leave involves an
interpretation of the scope and ambit of s. 87 of the
Representation of the People Act, 1951, as amended by Act 47
of 1966. The short point that fails for determination in
this appeal is as to whether or not the provision of O. XI
of the Code of Civil Procedure can be applied to the trial
of election petitions in the High Court by force s. 87 of
the said Act. For the purpose of brevity, the Representation
of the People Act, 1951 shall be referred to as the Act of
1951 shall the Representation of the People Act as amended
by Act 47 of 1966 as ’the Act’. The circumstances under
which this appeal arises may be succinctly stated as
follows.
An election for the U.P. Legislative Assembly for 275
Allahabad North Assembly Constituency was held on February
6, 1974 In this election the appellant was a candidate put
up by the Congress Ruling party and his election was
contested by the first respondent Ram Adhar Yadav who was
set up by the Samukta Socialist party. The appellant was
declared duly elected in the said election and the
respondent No. 1 was defeated.
The respondent No. 1 filed an election petition being
Election Petition No. 30 of 1974 in the High Court of
Allahabad some time in April 1974 challenging the election
of the appellant on various grounds. The appellant filed a
detailed written statement denying all the allegations made
by the first respondent in his petition. The election
petition was assigned to J. M. L,. Sinha, J. who framed a
number of issues on October 4, 1974. In October 1974
respondent No. 1 filed all application being Paper No. A/53
under O. XI, r. 1 of the Code of Civil Procedure for grant
of leave to respondent No. 1 to deliver interrogatories in
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writing for the examination of the appellant and filed
certain interrogatories along with his application. The
appellant filed her objections being Paper No. A/54 to the
said application contending, inter alia, that the procedure
prescribed under O.XI relating to interrogatories was not
applicable to the trial of election petitions in the High
Court and was not covered by s. 87 of the Act. The
application filed by the first respondent and the objections
of the appellant came up for consideration before the
learned Single Judge who by his order dated December 12,
1974, held that the provisions of O.XI fully applied to the
election petitions and accordingly rejected the objections
filed by the appellant. Hence this appeal by special leave.
257
It appeals that under the Act of 1951 the power to try
election petitions was conferred on the Tribunal and s. 92
of that Act expressly conferred powers under O.XI of the
Code of Civil Procedure on the Tribunal. The relevant
portions of s. 92 of the Act of 1951 may be extracted thus:
The Tribunal shall have the powers which are
vested in a court under the Code of Civil Procedure,
1908 (Act V of 1908), when trying a suit in respect of
the following matters:
(a) discovery and inspection;
x x x x
(g) issuing commissions for the examination or
witnesses, and may summon and examine suo
motu any person whose evidence appears to it
to be material; and shall be deemed to be a
civil court within the meaning of sections
480 and 482 of the Code of Criminal
Procedure, 1898 (Act V of 1898)."
By the Amendment Act 47 of 1966 this section was, however,
deleted and s. 90 of the Act of 1951 was replaced by s. 87
of the Act which was the same as s. 90 of the Act of 1951.
Mr. Yogeshwar Prasad counsel appearing for the
appellant has submitted two points before us. In the first
place he contended that the provisions regarding inspection
and discovery and interrogatories as contained in O.XI of
the Code of Civil Procedure are not an integral part of the
procedure in a civil suit but are special powers contained
in the Code and cannot, therefore, be made applicable to
election petitions which are proceedings of a special
nature. In simplification of this argument it was argued
that the history of the English Law as also the Election Law
of our country before independence would show that the
procedure contained in O.XI of the Code of Civil Procedure
was not made applicable to the trial of election petitions.
It is, however, not necessary for us to examine the history
of this matter because the Act of 1951 settles the issue.
When the Parliament expressly conferred powers contained in
O.XI on the Tribunal under the statutory provision of s. 92
of the Act of 1951, it must he presumed to have made a
drastic departure from the old law on the subject and
particularly the English Law. In view of this enactment,
therefore, it cannot be said that the provisions of our
Election Law, particularly in regard to s. 92 of the Act of
1951 were in pari materia with the provisions of the
English Law on the subject. In fact s. 92 incorporating the
entire provisions of O.XI of the Code of Civil Procedure was
expressly enacted so that the elected representatives also
may be subjected to the same law of the land such as the
Code of Civil Procedure as any other citizen. In these
circumstances, we are unable to apply the English Law to the
Act in order to hold that the principles contained in O. XI
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of the Code of Civil Procedure are excluded from the trial
of election petitions. The first contention put forward by
counsel for the appellant must, therefore, fail.
258
It was then contended that even though express powers
for inspection and discovery were conferred on the Tribunal
under s. 92 of the Act of 1951, yet by virtue of the
amendment under Act 47 of 1956 this express provision was
deliberately deleted, which shows that the Parliament
intended to give special protection to the elected
representatives so as not to compel them to answer
interrogatories. This is no doubt an attractive argument,
but on closer scrutiny it does not appear to be tenable.
The argument completely overlooks the object of the
Amendment Act 47 of 1966. By virtue of this enactment a
basic change in the trial of election petitions was sought
to be introduced. Before 1966 the power to try election
petitions was conferred on the Tribunal which was not a
civil court and, therefore, special powers had to be
conferred on it. In. fact clause (g) of s. 92 of the Act of
1951 extracted above clearly shows that the Tribunal was
deemed to be a civil court hence there was the necessity of
conferring special powers contained in O.XI of the Code of
Civil Procedure on the Tribunal to avoid further doubts.
After the amendment of 1966 as the election petitions were
to be tried by the High Court, s. 87 of the Act which is
based on s. 90 of the Act of 1951 was considered sufficient
to contain the entire procedure to be adopted by the High
Court in trying the election petitions which were to be in
accordance with the Code of Civil Procedure as far as
applicable. Since the High Court is a court of record and a
civil court is not, it was not at all necessary for the
Parliament to have enacted a separate section like s. 92 of
the Act of 1951 and that is why s. 92 was considered to be
unnecessary in view of the change of forum and was deleted
under the amended Act. From this it cannot be contended that
the Parliament intended that the provisions of O. XI of the
Code of Civil Procedure 1 should not apply to the election
petitions tried by the High Court under the Act. Counsel for
the appellant was unable to cite any authority directly in
point. On the other hand, the view which we have taken in
this case, is amply supported by number of authorities of
this Court as well as other High Courts.
To begin with, this Court as far back as 1951, while
considering ss. 90 and 92 of the Act of 1951 observed in
Harish Chandra Bajpai v. Triloki Singh(1) thus:
"The second contention urged on behalf of the
appellants is that if the provisions of the Civil
Procedure Code are held to be applicable in their
entirely to the trial of election petitions, then there
was no need to provide under s. 92 that the Tribunal
was to have the powers of courts under the Code of
Civil Procedure in respect of the matters mentioned
therein, as those powers would pass to it under s.
90(2). But this argument overlooks that the scope of s.
90(2) is in a material particular different from that
of s. 92. While under s. 90(2) the provisions of the
Civil Procedure Code are applicable only subject to the
provisions of the Act and the rules made thereunder,
there is no such limitation as regards the powers
conferred by s. 92. It was obviously the intention of
the legislature to put the powers of the Tribunal in
respect of
259
the matters mentioned in s. 92 as distinguished from
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the other provisions of the Code on a higher pedestal,
and as observed in Sitaram v. Yograjsingh (A.I.R.
(1953) Bom. 293), they are the irreducible minimum
which the Tribunal is to possess.
(3) It is then argued that s. 92 confers powers on
the Tribunal in respect of certain matters, while s.
90(2) applies the Civil Procedure Code in respect of
matters relating to procedure, that there is a
distinction between power and procedure, and that the
granting of amendment being a power and not a matter of
procedure, it can be claimed only under s. 92 and not
under s. 90(2). We do not see any antithesis between
’procedure’ in s. 90(2) and ’powers’ under S. 92. When
the respondent applied to the Tribunal for amendment,
he took a procedural step, and that, he was clearly
entitled to do under s. 90(2). The question of power
arises only with reference to the order to be passed on
the petition by the Tribunal. Is it to be held that the
presentation of a petition is competent, but the
passing of any order thereon is not ? We are of opinion
that there is no substance in this contention either."
The Court pointed out that the object of s. 92 was merely to
secure powers of the Court in respect of the matters
mentioned therein and that there was no antithesis between
ss. 90(2) and s. 92 of the Act of 1951.
Similarly in Sitaram Hirachand Birla v. Yograjsingh
Shankarsingh Parihar and others,(1) Chagla, C.J., clearly
pointed out that the distinction between the power and
procedure was completely artificial and a distinction
without any difference. The learned Chief Justice speaking
for the Court observed as follows:
"In our opinion, Mr. Kotwal is right, because on
principle it is difficult to make a distinction between
procedure and the powers of a Court as suggested by Mr.
Patwardhan. The whole of the Civil Procedure Code, as
its very name implies, deals with procedure. In the
course of procedure the Court always exercises powers
and when the Court is exercising its powers, it is
exercising them in order to carry out the procedure
laid down in the Code. Therefore procedure and powers
in this sense are really interchangeable terms and it -
is difficult to draw a line between procedure and
powers. The powers conferred under s. 92 is not any
substantive power, it is procedural power, a power
Intended for the purposes of carrying out the procedure
before the Tribunal."
In a recent decision of the Full Bench of the Allahabad
High Court in Duryodhan v. Sitaram and others(2) the Court
held that the matters mentioned in s. 92 appertain to the
procedure for trial, and are also attracted by virtue of s.
90(l). The Court observed as follows:
260
"In my opinion, the matters mentioned in Section
92 appertain to the procedure for trial, and are also
attracted by virtue of Section 90(1). They were
separately stated in Section 92 to make them operate
inspite of any provision to the contrary in the Act or
the Rules, and not with a view to curtail the amplitude
of Sec. 90(1). The provisions of O.9, Rr. 8 and 9,
Civil P.C. even if they deal with powers, would be
procedural powers and be attracted by virtue of Section
90( 1 ) ."
While dealing with the scope and ambit of s.90 of the
Act 1951 this Court in Dr. Jagjit Singh v. Giani
Kartar Singh and others(1) observed as follows .
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"The true legal position in this matter is no
longer in doubt. Section 92 of the Act which defines
the powers of the Tribunal, in terms, confers on it, by
Cl. (a), the powers which are vested in a Court under
the Code of Civil Procedure when trying a suit, inter
alia, in respect of discovery and inspection."
A Full in Bench of the Punjab High Court in Jugal Kishore v.
Dr. Baldev Prakash,(2) while construing the provisions of s.
87 of the Act clearly pointed out that the High Court was a
Court of record and possessed all inherent powers of a Court
while trying election petitions. In this connection, Grover,
J., observed as follows:
"It is quite clear that there is no distinct
provision in the Act laying down any particular or
special procedure which is to be followed when the
petitioner chooses to commit default either in
appearance or in production of evidence or generally in
prosecuting the petition. The provisions of the Code of
Civil Procedure would, therefore, be applicable under
Section 87 of the Act. I am further of the opinion that
any argument which could be pressed and adopted for
saying that the inherent powers of the Court could not
be exercised in such circumstances would be of no avail
now as the High Court is a Court of record and
possesses all inherent powers of a Court while trying
election petitions."
We fuly approve of the line of reasoning adopted by the High
Court in that case. The Rajasthan High Court in Keshari Lal
Kavi and another v. Narain Prakash and others(3) followed
the Punjab case and has taken the same view.
Some reliance was placed by the learned counsel for the
appellant on the decision in Inamati Mallappa Basappa v.
Desai Basavarai Ayyappa and others,(4) where this Court held
that the procedure contained in O. 23, r. 1 of the Code of
Civil Procedure did not apply to election petitions and,
therefore, on a parity of reasoning O. C.P.C. also could not
be applicable to the trial of election petitions.
261
We are, however, unable to agree with this argument. The
provision contained in O. 23 r. 1 cannot be equated with the
provisions of o. XI because the election petition being a
matter of moment and concerning the entire costituency there
could be no question of the election petition being
withdrawn by the petitioner who had filed the same. This was
highlighted by this Court in that case when the Court
observed as follows:
"Order 23, r.1, sub-rule (2), provides for liberty
being given by the Court to a party withdrawing or
abandoning a part of his claim to file a fresh suit on
the same cause of action, if so advised. in the very
nature of things such liberty could not be reserved to
a petitioner in an election petition.
x x x x x x
On a due consideration of all these provisions, we
are opinion that the provisions of o. 23, r. 1, do not
apply to the election petitions and it would not be
open to a petitioner to withdraw or abandon a part of
his claim once an election petition was presented to
the Election Commission."
Having regard to the nature of the election Petition, the
notion of abandonment of the claim or withdrawal is
absolutely foreign to the scope of such proceedings and
must, therefore, be held to be excluded by necessary
intendment of s. 87 of the Act itself. This authority
therefor, does not appear to be of any assistance to counsel
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for the appellant.
The matter, however, seams to be concluded by a recent
decision of this Court in Virendra Kumar Saklecha v.
Jagjivan and others(1) where the Chief Justice speaking for
the Court interpreted s. 87 of the Act and observed as
follows:
"Under Section 87 of the Act every election
petition should be tried by the High Court as nearly as
may be in accordance with the procedure applicable
under the Code of Civil Procedure to the trial of
suits. Under Section 102 of the Code the High Court may
make rules regulating their own procedure and the
procedure of the Civil Courts subject to their super
vision and may by such rules vary, alter or add to any
of the rules in the First Schedule to the Code."
The relevant part of s. 87 runs thus :
"(1) Subject to the provisions of this Act and of
any rules made thereunder, every election petition
shall be tried by the High Court, as nearly as may be,
in accordance with the procedure applicable under the
Code of Civil Procedure, 1908 to the trial of suits :"
A bare perusal of this section leads to the irresistible
conclusion that election petitions shall have to be tried in
accordance with the proce-
262
dure applicable under the code of Civil Procedure to the
trial of suits. In other words, election petitions would be
tried like ordinary civil suits.
We are unable to agree with counsel for the appellant
that O. XI does not form part of the trial of suits but is a
special procedure. This is repelled by a oreference to O. XI
of the Code of Civil Procedure itself. It will appear that
O. X relates to the procedure for examination of parties by
the Court and O. XI is a part of that procedure, because it
provides that where witnesses are not able to appear before
the Court personally they are examined through
interrogatories. In these circumstances, therefore, O. XI is
as much a part of the procedure as O. X relating to trial of
suits in matters regarding summoning of witnesses, documents
etc. In these circumstances it cannot be said that s. 87 of
the Act either expressly or impliedly excludes the
application of O. XI of the Code of Civil Procedure. In fact
we are clearly of opinion that s. 87 of the Act is of the
widest amplitude so as to cover the entire procedure
mentioned in the Code of Civil Procedure with only two
exceptions-(i) where the Act contains express provision for
certain matters which are inconsistent with the procedure
prescribed by the Code; and (ii) where a particular
provision of the Code of Civil Procedure is either expressly
or any necessary intendment excluded by the Act. Subject to
these two exceptions, s. 87 is very wide in its connotation
We, therefore, agree with the learned Single Judge who
was trying the election petition that the application for
interrogatories was one of the logical steps in aid of the
prosecution of the petition and was fully covered by s. 87
of the Act. The second contention raised by counsel for the
appellant thus fails.
For the reasons given above, there is no merit in this
appeal which fails and is accordingly dismissed with costs.
V.P.S. Appeal Dismissed.
263