# K. VENKATESWARA RAO AND ANR v. BEKKAM NARASIMHA REDDI & ORS

- **Citation:** [1969] 1 S.C.R. 679
- **Court:** Supreme Court of India
- **Decided:** 1968-08-13
- **Bench:** M. Hidayatullah, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-venkateswara-rao-and-anr-v-bekkam-narasimha-reddi-ors-4466
- **Pages:** 12

## Headnote

Representation of the People Act, 1951, ss. ?9(b), 82(b) & 86(1)-
Corrupt practice alleged against candidate who had withdrawn from contest-Such c..·andUlate not impleaded during period of limitation of election petition-Petition liable to be dismissed-Application for condonation
of delay whether permissibl~ApplicabiJity of s. 29(2) and s. 5 of Limi·
tion Act, 1963-Candidate who withdraws from conte•t whether a candi·
date within meaning of s. ?9(b) ands. 82(b) of Representation of the
People Act-Procedure under s. 99 of Act whether applicable to such
candldate.
The election of the first respondent to the Andhra Pradesh Legislative
Assembly at the General Election held in 1967 was challenged by the
appellants in an election petition. Various cdrrupt practices were alleged
therein to hav~ been committed by the first respondent, his agenll; and
·supporters. One of these was that the first respondent paid a bribe to one
R who had also filed nomination papers, in order to secure his withdrawal
as a candidate.
After the issues were framed the appellants made an
application to the Court for impleading R but it was dismissed. The first
respondent then filed an application under s. 86(1) praying for the dismissal of the election petition on the ground that there had been noncompliance with s. 82(b) of the Representation of the People Act, 1951
inasmuch as R against whom corrupt practice had been alleged had not
been made a party.
The appc.Ilant'i filed an application seeking to withdraw the allegation against R and in the alternative to implead him as a
respond-ent.
They
also prayed for condonation of delay in making the
application.
The learned Judge of the High
Court trying the election
petition dismissed the aforesaid applicarions and refused to condone the
delay.
Th~ appellants came to Lhis Court. The contentions in the appeal
were :
(i) that the allegation against R did not amount to an illegation
of corrupt practice, (ii) that s. 5 and s. 29(2) of the Limitation Act.
1963 were applicable to the case and the High Court and this Court had
power to condone the delay made by the election petitioner in impleading
a necessary party, (iii) that R, having withdrawn from the, contest was
not a 'candidate'. and (iv) that the procedure under s. 99 ought to have
been followed in respect of R.
HELD : (i) The raint of illegal gratification attaches not only to the
payer but also to the payee.
It could not therefo'rc be accepted that the
allegation against R that h·2 had received illegal
gratification
did
not
amount to corrupt practice. [682 C-D]
(ii) The plea for condonation of delay in impleading R could not be
accepted.
It is \Veil settled that amendments to a petition in ~ civil proceeding
and the addition of parties to su·ch a proceeding ate generalJy possible
subject to the law of limitation.
But an election petition stands on a
different footing.
The trial of such a petition and the powe'rs of' the
court in respect thereof are all circum·scribed by the Representation of the
People Act. The Indian Limitation Act of 1963 is an Act to consolidate
and amend the law of limitation of suits and other proceedings and for
679
680
SUPREME COURT REPORTS
[1969] I SCR
parposcs connected thcrcwitll.
The provision' of this Act will apply to
all ci••il p·roccedings and ~omc ~pl->claJ criminal proceedings \Vhich can be
taken in a court of la\\' unless the application thereof has been excluded
by some enactment:
the extent of such
application is governed by
s. 29(2) of the I .. imilation Act. Ho\\'Cver the L1mi1a1ion Act cannot apply
to proceedings like an election petition inasmuch ai; thi: Representation of
the People-Act is a complete and sclf~ontained code which doc~ not admit
of the introduction of the principles or the provi~ions of the 1aw contained in the Indian I.imitation Act. [686 11·687 BJ
Kanu2rajc;, /\'aclar v. K:ai;u Thcrar, [19591 S.C.R. 583 and Basappa v.
Ayyappa, [1959] S.C.R. 611. applied.
A. Sree11i1.:asan v. l:.-lcctio11 Tribunal, M

## Text

A
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K. VENKATESWARA RAO AND ANR.
v.
BEKKAM NARASIMHA REDDI & ORS.
August 13, 1968
[M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.J
Representation of the People Act, 1951, ss. ?9(b), 82(b) & 86(1)-
Corrupt practice alleged against candidate who had withdrawn from contest-Such c..·andUlate not impleaded during period of limitation of election petition-Petition liable to be dismissed-Application for condonation
of delay whether permissibl~ApplicabiJity of s. 29(2) and s. 5 of Limi·
tion Act, 1963-Candidate who withdraws from conte•t whether a candi·
date within meaning of s. ?9(b) ands. 82(b) of Representation of the
People Act-Procedure under s. 99 of Act whether applicable to such
candldate.
The election of the first respondent to the Andhra Pradesh Legislative
Assembly at the General Election held in 1967 was challenged by the
appellants in an election petition. Various cdrrupt practices were alleged
therein to hav~ been committed by the first respondent, his agenll; and
·supporters. One of these was that the first respondent paid a bribe to one
R who had also filed nomination papers, in order to secure his withdrawal
as a candidate.
After the issues were framed the appellants made an
application to the Court for impleading R but it was dismissed. The first
respondent then filed an application under s. 86(1) praying for the dismissal of the election petition on the ground that there had been noncompliance with s. 82(b) of the Representation of the People Act, 1951
inasmuch as R against whom corrupt practice had been alleged had not
been made a party.
The appc.Ilant'i filed an application seeking to withdraw the allegation against R and in the alternative to implead him as a
respond-ent.
They
also prayed for condonation of delay in making the
application.
The learned Judge of the High
Court trying the election
petition dismissed the aforesaid applicarions and refused to condone the
delay.
Th~ appellants came to Lhis Court. The contentions in the appeal
were :
(i) that the allegation against R did not amount to an illegation
of corrupt practice, (ii) that s. 5 and s. 29(2) of the Limitation Act.
1963 were applicable to the case and the High Court and this Court had
power to condone the delay made by the election petitioner in impleading
a necessary party, (iii) that R, having withdrawn from the, contest was
not a 'candidate'. and (iv) that the procedure under s. 99 ought to have
been followed in respect of R.
HELD : (i) The raint of illegal gratification attaches not only to the
payer but also to the payee.
It could not therefo'rc be accepted that the
allegation against R that h·2 had received illegal
gratification
did
not
amount to corrupt practice. [682 C-D]
(ii) The plea for condonation of delay in impleading R could not be
accepted.
It is \Veil settled that amendments to a petition in ~ civil proceeding
and the addition of parties to su·ch a proceeding ate generalJy possible
subject to the law of limitation.
But an election petition stands on a
different footing.
The trial of such a petition and the powe'rs of' the
court in respect thereof are all circum·scribed by the Representation of the
People Act. The Indian Limitation Act of 1963 is an Act to consolidate
and amend the law of limitation of suits and other proceedings and for
679
680
SUPREME COURT REPORTS
[1969] I SCR
parposcs connected thcrcwitll.
The provision' of this Act will apply to
all ci••il p·roccedings and ~omc ~pl->claJ criminal proceedings \Vhich can be
taken in a court of la\\' unless the application thereof has been excluded
by some enactment:
the extent of such
application is governed by
s. 29(2) of the I .. imilation Act. Ho\\'Cver the L1mi1a1ion Act cannot apply
to proceedings like an election petition inasmuch ai; thi: Representation of
the People-Act is a complete and sclf~ontained code which doc~ not admit
of the introduction of the principles or the provi~ions of the 1aw contained in the Indian I.imitation Act. [686 11·687 BJ
Kanu2rajc;, /\'aclar v. K:ai;u Thcrar, [19591 S.C.R. 583 and Basappa v.
Ayyappa, [1959] S.C.R. 611. applied.
A. Sree11i1.:asan v. l:.-lcctio11 Tribunal, Madras,
11
E.L.R.
278
and
Tippmrry ccse, (1875) 3 O'M & II. 19, referred to.
After the amendment of the Representation of the People Act in
1966 there is IlO\V no section in the Act Ylhich equates an order n1adc
by the High Court under s. 98 or s. 99 to a decree passed by a civil court
subordina:e to the l-figh Court.
An appe-.il hcing a creature of statute,
the tights conferred on the appellant
must be found
within
the
four
corners of the Act. Suh-..,. (2) oJ the present s. 116-A expressly gives this
Court the discretion and authority to cntcrlain an appeal a{1cr the expiry
of the period of thirty <l11ys. No right is however given to the Jligh Court
to entertain a petition \vhich does not comply with the provisions of s. 81,
s. 82 or s. 117.
Any h~rdship rc5ulting from this situation is a matter
'vhich can be set right only by the Lcgisla1urc.
The
Legislature
in its
\Visdom ha~ made the ohscr,·ancc of certain formalities and provisionc; obligatory and f<iilurc in that rc~pcct can only be visited \\'ith a dismissal o'f
the petition. 168811-689 CJ
Vidyacharan Shak!a v. Kliubchan<i !Jaglit•I.
[1964]
6 S.C.R.
129.
distinguic;hcd.
0 bitter: Even though the
IndiJ.n Limitation
Act. 1963 does
not
apply to an election petition provisiott'i like s. 9 and s. 10 of the General
Clauses Act, l 897 providing for computation of time which are In pari
111czJeria 'A·ith ss. 12 (1) and 4 of the Limiration 1\ct y • .-ould npply
to such
a petition. [ 689 E]
(iii) A candidate \vho ha'i
,~·ithdrJ\Vn from the eh .. 'Ction remains a
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'candidate• within the meaning of s. 79(b)
and s. 82(b) of the Act.
F
[689 FJ
liar Swarup v. /Jrij Rhusf1aJ1.
ll 967) tS.C.R.
342.
A1olu1n Singlr
v.
Bhanwarlal. [1964] 5 S.C.R. 12 and Ami11 Lal v. Hrr11"" Mal [1965] 1
S.C.R. 393. died on.
(iv) Scclilln 99 onlv enjoins upon lhe High Court to give an opportunity to a person sought to be held guilty of a corrupt practice if he was
not a p3r1Y to the petition. hut does not ~1pply to a
pl'rson
who is a
necessary party. !690 C-DJ
C!v1L APPELl.ATF. JuR1smcnoK: Civil Appeal No. 1864 of
1967.
Appeal under s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated August 21, 1967
of the Andhra Pradesh High Court in Election Petition '.'lo. 13 of
1967.
P. Ram Reddy and A. V. V. Nair. for the appellants.
G
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VENKATESWARA v. NARAS!MHA (Mitter, J.)
68 I
A
D. Narsaraju, R. V. Pillai and A. Sitarama Reddy, for responB
dent No. 1.
G. Narayana Rao, for respondent No. 2.
The Judgment of the Court was delivered by
Mitter, J.
On April 6, 1967 the appellants before us, filed
an Election Petition in the High Court of Andhra Pradesh challenging the election of the first respondent, B. N. Reddi, to fh:e
Andhra Pradesh Legislative Assembly from the Kollapur Consl:ltuency inter alia on the ground of corrupt practices committed by
him, his election agent, polling agents and other workers mentioned in the schedule to the petition with his consent and praying for
c · a declaration that the second .respondent, K. Ranga Das, was
"'1ly elected from the said constituency.
The third respondent
was another candidate who had contested the election but had
fared very badly.
The first respondent secured 25,321 votes at
the election overtopping the votes polled by the second respondent
by approximately 1600. The petitioners stated in paragraph 5
of the petition that one V. K. Reddi who had filed his nomination
paper had been made to withdraw his candidature by the first
respondent on payment of an illegal gratification of a sum of
Rs. 10,000/-. This allegation was repeated in paragraph 10. The
first respondent was also charged with other corrupt practices in
diverse other paragraphs of the petition.
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The first 'respondent put in his written statement on 28th June,
1967; the second respondent put in his counter affidavit on June
26, 1967.
The issues were settled on July 24, 1967. On
August 4, 1967 the petitioners filed Application No. 161/1967
for impleading V. K. Reddi.
Thereafter they wanted to withdraw that application when the examination of witnesses had
commenced.
On August 7, 1967 this application was dismissed.
On August 8, 1967 the first respondent filed Applic!ltion No.
169/1967 praying for dismissal of the petition on the ground that
although V. K. Reddi had been charged with corrupt practice<'! he
had not been impleaded as a party to the petition which was
liable to be dismissed under the provisions of section 82(b) of
the Representation of the People Act, 1951 (hereinafter referred
to as the 'Act') in compliance withs. 86(1). The election petitioners filed Application No. 187 of 1967 for withdrawing the
allegations against V. K. Reddi, or, in the alternative, to implead
him as a respondent.
They also filed Application No. 186/1967
for condoning the delay in seeking to inlplead V. K. Reddi in
Application No. 187/1967. The second respondent filed a:
number of applications of which it is necessary to take note of a
few only.
Application No. 174/1967 was filed for condoning
the delay in seeking to implead V. K. Reddi in Application No.
175/1967.
Application No. 175/1967 was for the purpose of
682
SUPREME COURT REPORTS
[ 1969] l S.C.R.
iropleading V. K. Reddi as a party respondent to the election
petition.
The learned trial Judge held that the allegat1ons contained in
!:he election petition amounted to an imputation of corrupt practice lo V. K. Rcddi and although of the view that the prayer in
Applicaion No. 169/1967 for condonation of delay was allowable in suitable cases, he felt himself bound by the decision of
Kumarayya, J. in Application.' Nos. 150-155/1967 in Election
Petition No. 11 of 1967 and dismissed the amendment application No. 169/1967.
Before us a faint attempt was made to argue that the allegation against V. K. Reddi did not amount to a charge of corrupt
practice but that ii wa' the Jirst respondent who was guilty of
such a practice by making the payment of illegal gratification.
Tho argument has only to he set down to be rejected.
In paragraph 5 of the petition, the definite avenuent was that V. K. Reddi
had been made to withdraw his candidature by
the first
respondent on payment of an illegal gratification of Rs. I0,000/-.
If the payment of R,. I 0,000/- an1ounls to an illegal graulication
the taint attaches not only to the payer, the first respondent, but
also to the payee. V. K. Rcddi.
The second point urged was that the learned Chief Justice's
view in regard to the power of condonation of delay in impleading V. K. Reddi was correct and although he could not give etfect
to his own view b.:cause he felt himself bound by the decision of
Kwnarayya. J. we ought to accept the appeal and uphold M
view.
This argument was developed as follows.
An election
petition wa'. in essence an application to the High Court for the
purpose of the Indian Limitation Act and as such s. 29(2) of the
Act of 1963 was applicable to such petitions drawing in
its
chain the applicability of section 5 of the Act giving the court
the power tCl' admit the same if it was satisfied that the applicant
had sufficient cause for not preferring the application within the
prescribed period of limitation.
Th«i< Act as it now stands provides by s. 80A that the court
having jurisdiction to try an election petition shall be the High
Court.
Under s. 81 (I) "an election petition calling in question
any election may be presented on one or more of the ground'
specified in sub-s. (I) of s. 100 ands. 101 to the High Court by
any candidate at such election or any elector within
forty-five
days, but not earlier than, the date of election of the roturned
candidate ...... ..
S. 82 runs as follows :-
"A petitioner shall join as respondents to his
petitionA
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VENKATESWARA v. NARASIMHA (Mitter, J.)
68 3
(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 declarallon 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 practice are made in the petition."
Section 83 lays down inter a/ia that an election petition shall
set forth full particulars o.f any corrupt practice that the petitioner
alleges, including as full a statement as possible of the names of
the parties alleged to have committed such corrupt practice and
the date and place of the commission of such practice.
Section 86 (1) provides that :
"The High Court shall dismiss an election pelltion
which does not comply with the provisions of section
81, or section 82 or section 117 ."
The last mentioned section relates to the giving of secunty for
costs.
Sub-s. ( 4) of s. 86 gives any candidate not already a respondent, a right to be joined as one upon application 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. Under sub-s. ( 5)
"The High Court may, upon such terms as to costs
and otherwise as it may deem fit, allow the particulars
of any corrupt practice alleged in the petition to be
amended or amplified in such manner as may in its
opinion be necessary for ensuring a fair and etfective
trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously
alleged in the petition."
Sub-ss. ( 6) and (7) aim at the speedy disposal of the election
petitions. Section 87 ( 1) provides that :
"Subject to the provisions of this Act and of any
rules made therennder, 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 : "
The proviso to the sub-section gives the High Court discretion
t~ refuse, for reasons to be recorded in writing, to examine any
wttness.
Sub-s. (2) makes the provisions of the Indian Evidence
68 .j
SUPREME COCRT REPORTS
[1969J I S.C.R.
Act applicable m all respects to the trial of an election petition.
Section 98 shows the nature of the order to be made by the High
Couq at the conclusion of the trial of an election petition. Section
99 makes it obligatory on the High Court while making an order
under s. 98 in cases where any charge is made in the petition of
any corrupt practice having been committed at the election, to
record a finding whether any corrupt practice has or has not been
proved to have been committed at the election and the nature of
that corrupt practice as also the names of all persons, if any, who
have been proved at the trial to have been guilty of any corrupt
practice and the nature of that practice. There is a proviso to the
section which lays down that a person who is not a party to the
petition shall nor be so named unless he has been given notice to
appear before the High Court and to show cause to the contrary.
In case he does so, he is further given the right to cross-examine
any witness already examined hy the High Coult and to give evidence in his defence.
Entry 72 of List l of the Seventh Schedule vest~ in Parliament
the exclusive power to make laws with respect to elections to
Parliament, to the Legislatures of States and to the offices of President and Vice-President as also the Election Commission. Under
Art. 329(b)
"Notwithstanding anything in this Constitution-
( a)
I b) no election to either House of Parliament or to
the House of either House of the Legislature of
a State shall be called in question except by an
election petition pre!.ent.:d
to
such authority
and in such manner as may be provided for by
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or under any law made by the appropriate
F
Legislature."
In order to detennine whether an election petition launched
for the purpose of contesting the validity of an election is an
application within the meaning of the Indian Limitation Act, it is
necessary to exallline the nature of the right' and liabilities involved therein and of the provisions of law which govern such deterG
mination.
The right of citizens to elect rcpre.,cntativcs of their
choice either to the House of the People or to a Legislative
Assembly of a State. the process of election beginning from the
notification of general elections and the nomination of candidates.
the general procedure at elections. taking of the poll and counting
of votes and the publication of election results are all matters
H
dealt with and covered by different provisions of the Act.
The
right to elect is statutory and so arc all the processes connectoo
with the election.
TI1~re is no element Df any ~OllllllOll law ;tght
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VENKATESWARA v. NARAS!MHA (Mitter, J.)
68 5
in the process of election. Part VI of the Act deals with dispute>
regarding election.
The second chapter of this Part shows how
elections may be called in question, which courts have jurisdiction
to try election petitions, how such a petition is to be presented,
who are to be parties to the petition, what are to be the contents
of the petition as also the relief which may be claimed by the
petitioner.
The third chapter of this Part deals with the trial of
election petitions.
The first section of this group makes it incumbent on the High Court w dismiss an election petition straightaway if it does not comply with certain statuto1y requirements.
The next section is a guide to the procedure to be adopted by the
High Court in the trial of an election petition.
This section does
not equate an election petition with a suit but merely shows that
subject to the provisions of the Act and of any rules made thereunde:r, the trial is to conform asi nearly as possible to the trial of a
suit under the Code of Civil Procedure.
This means that (a)
the contestants have a right to file written statements, ( b) both
parties must disclose the documents on which they reply; ( c)
they must examine witnesses orally, if necessary, to substantiate
the charges levelled or the defences raised in the petition; and ( d)
the evidence to be adduced must comply with the requirements of
the Indian Evidence Act.
There arc however certain limitations
as to the. questions which may put to a witness contained in ss. 94
and 95; the returned candidate has a right to recriminate under the
provisions of s. 97.
The High Court does not pass a decree as
in the case of a suit but has to make an order in terms of s. 98
which gives the nature of the orders to be made.
The High Court
has to communicate the substance of its decision to the Election
Commission and the SJ?eaker or the Chairmaru as the case· may be
of the House of ~e People or of the State Legislature.
Chapter
IV deals with withdrawal and abatement of election petitions.
Chapter IV-A deals with appeals from the decisions of the High
Court ,and Chapter V deals with costs and security for costs.
The above brief analysis is sufficient to show that the trial of
an election petition is not the same thing as the trial of a suit.
As
was pointed out by this Court•in the case of Kamaraja Nadar v.
Kunju Thevar(' ), the provisions of the Act
"go to show that an election contest is not an action
at law or a suit in equity but is a purely statutory proceeding unknown to the common law .... .' . "
The Court also emphasised on the. peculiar character of an
election petition by quoting from the observations of A. Sreenivasan v. Election Tribundl, Madras( 2 ). Reference was also made
to the Tipperary case( 3 ) where Morris, J. said :
(I) [1959] S.C.R. 583 at 5%.
(2)
11 E.LR. 278 at 293.
(3)
(1875) 3 0, M & H 19;25.
68 6
SCl'RD!F COURT RHURTS
[1%9] IS.CR.
a petition is not a suiL between two persons,
A
but is a proceeding in which the constituency itself is
the principal party interested."
This aspect of an election petition was emphasised again in the
<:a;e of Basappa v. Ayyappa( 1 ) where it was held that the provisions of 0. 23 r. I of the Code oI Civil Procedure do not apply
to 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.
Even though s. 8 7 ( 1) of the Act lays down that the procedure
.;ipplicahle to the trial of an election petition shall be like that of
the trial of a suit. the Act itself makes important provisions of
1he Code inapplic<ilile to the trial of an election petition.
Under
0. 6 r. 17 C.P.C. a court of Jaw trying the suit has 1·ery wide
powers in the matter of allowing amendments of pleadings and
all <L111endmcnts which will aid the court in disposing of the
matters in dispute between the parties arc as a rule allowed subject to the law of limitation.
But s. 8615) of the Act provides
for re.<trictions on the power of the High Coun to allow amendmenh.
The High Court is n(l( lo allow the amendment of a
petition which will have the effect of introducing particulars of a
corrupt practice not' previously allege<l in
the
petition.
With
regard to the addition nf parties which is possible in the ca~ of a
o;uit under the provisions of 0. 1 r. 10 subject to the added party's
right to contend that the suit as again'! him was baITcd by limitation when he w"s irnple .. dcd. no addition of parties is possible in
the case of an election petition except under the provisions of
sub-s. ( 4) of s. 86.
Section 82 shows who are necessary parties
10 an election petition which must be tiled within 45 days from the
date of election as laid down ins. 81. Under s. 86( I) it is incumbent on the High Court to dismiss an election petition which does
not comply with the provisions of s. 81 or s. 82. Again the High
Court must dismiss an election petition if security for costs be not
given. in terms of s. 117 of the Act.
It is well settled that amendn~nls to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation.
But an election
petition stands on a different fooling.
The trial of such a petition
and the powers of the court in respect thereof are all circumscribed by the Act. The Indian Limitation Act of 1963 is an Ael to
cort<;<>lidate and amend the law of limitation of suits and other
proceedings and for purposes connected therewith.
The provisions of this Act will apply to all civil proceedings and some spc-
<:ial criminal proceedings which can be taken in a court of law
unless the application thereof has been excluded hy any enact-.
(I)
[1959] S.C.R. 611.
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VENKATESWARA v. NARAS!MHA (Mitter, J.)
68 7
A
ment: the extent of such application is governed bys. 29(2) of
the Limitation Act.
ln our opinion however the Limitation Act
cannot apply to proceedings like an election petition inasmuch as
the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation
B
Act.
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Before the recent amendment of the Representation of the
People Act, election petitions had to be presented to the Election.
CoI1llllission and it was the CoI1llllission which was empowered
under section 85 to dismiss the petition if the then provisions of
s. 81, s. 83 and s. 117 were not complied with.
It is only when
the petition was not so dismissed that the Election Commission
had to appoint an Election Tribunal for the trial of the petition.
Under s. 85 the Comi;nission had power to admit a petition presented after the prescribed period if it was satisfied that there was
sufficient canse for the failure. Section 90 ( 4) of the Act oi 1951
empowered the Tribunal to dismiss an election petition even if it
had not been so dismissed by the Election Commission.
The Act as amended in 1966 gives the jurisdiction to try an
election petition to the High Court of a State. The provision for
appeal in s. 116-A was introduced in the Act for th~ first time in
19 56 providing for an appeal from every order of the Tribunal
under s. 98 or s. 99 to the High Court of the State in which the
Tribunal was situate.
By sub-s. (2) of s. 116-A of the Act as
amended in 1956 the High Court was, subject to the provisions
of the Act, to have the same powers, jurisdiction and authority
and was to follow the same procedure with respect to an appeal
under this Chapter (Chapter IV-A) as if the appeal were an
appeal from an original decree passed by a court situate within
the local limits of its civil appellate jurisdiction.
Sub-s. ( 3)
fixed the· time limit for filing the appeal to a period of 30 days
from the date of the order complained of.
The proviso to this
sub-section gave the High Court discretion to entertain an appeal
after the expiry of the period of 30 days if it was sati~fied that the
appellant had sufficient cause for not preferring the appeal within
such period.
This section was amended again in 1966 and s,
116-A ( 1) now provides for an appeal from an order of the High
Court under s. 98 or s. 99 to the Supreme Court on any question,
whether of law or fact.
Sub-s. ( 2) of the new section is on the
same lines as the old sub-s. (3) excepting that the Supreme
Court has been substituted for the High Court and the High Court
for the Tribunal in the old section.
While the Act of 1956 was in force this Court had to go into
the question as to whether s. 29(2) of the Limitation Act of 1908
woald be applicable to an appeal preferred to the High Court
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fl969] I SCR.
from an order of the Tribunal.
In Vitlraclumm Shukla v. Kh11bA
chand Baghel (') the main que>tion before this Court was whether
for the purpose of computing the period of 30 days prescribed
under s. J 16-A ( 3) of the Act. the provisions of s. 12 of the Limitation Act could be invoked.
The High Court had proceeded on
the basis that s. 29(2) applied to th" case of appeals under .s.
1 I 6-A of the Act and on that basis had held that the appeal was
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within tim" if it was computed after making the deductions permitted by s. 12 of the Limitation Act.
There was a good deal of
disctission in the case about the scope and extent of s. 29(2).
We arc not concerned with that in the present appeal.
According to the learned Chief Justice and Ayyangar, J.
"even on the narrowest construction of the words
'different from those prescribed therefor in the
first
schedule' occurring
in the opening part of s. 29(2),
the exclusion of time provided for by Art. 12 of the
Limitation Act would be permissible in computing the
period of limitation for filing the appeal to the High
Court .... "
Subba Rao, J. (as he thm was) took the view thats. J 16-A did
not provide an exhaustive and exclusive code of limitation and
did not exclude the general provisions of the Limitation
Act.
The majority view was that though the right of appeal was conferred bys. I J 6-A of the Act of 1951 it was still an appeal under
the Code of CiYil Procedure and to attract Art. 156 of the First
Schedule to the Limitation Act, it was not necessary for an appeal
to be an appeal under the Code of Civil Procedure in that the
right to prefer the appeal should be conferred by the said Code.
Jn our view, sub-s. (2) of s. 116-A empowered the High Court to
treat an appeal under that section presented to it a-; if it were an
appeal from an original decree passed by a court within the local
limits of its civil appellate jurisdiction.
Consequently, the juri-;-
diction, powers and authority of the High Court would be the
same as in an appeaJ. from an original decree of a lower court.
Jn other words. in entertaining the appeal and disposing of it the
High Court could exercise the same powers as were available to
it in an appeal from a decree of a lower court.
To such an
appeal the powers of the High Court under s. 12 of the Limitation
Act would necessarily oo attracted.
Mr. Ram Reddy attempted to press that decision to service
in the appeal before us.
Jn our view. the situation now obtaining
in an appeal to this Court from an order of the High Court is
entirely different.
There is no section in the Act as it now stands
which equates an order made by the High Court under s. 98 or
s. 99 to a decree passed by a civil court subordinate to the High
(I)
11964) 6 S.C.R. 129.
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VENKATESWARA v. NARASIMHA (Mitter, J.)
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Court.
An appeal being a creature of a statute, the rights conferred on the appellant must be found within the four corners of
the Act.
Sub-s. (2) of the present s. 116-A expressly gives this
Court the discretion and authority to entertain an appeal after the
expiry of the period of thitty days.
No right is however given to
the High Court to entertain an election petition which does not
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comply with the provisions of s. 81, s. 82 ors. 117.
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It was argued that if a petition were to be thrown out merely
because a necessary party had not been joined within the period
of 45 days no enquiry into the corrupt practices alleged to have
been committed at certain elections would be possible.
This is
however a matter which can be set right only by the Legislature.
It is worthy of note that although the Act has been an1ended on
several occasions, a provision like s. 86 ( 1) as it now stands has
always been on the statute book but whereas in the Act of 1951
the discretion was given to the Election Commission to entertain
a petition beyond the period fixed if it was satisfied as to the cause
for delay no such saving clause is to be found now.
The legislature in its wisdom has made the observance of certain formalities
and provisions obligatory and failure in that respect can only be
visited with a dismissal of the .petition.
It is to be noted however that even though the Indian Limitation Act, 1963 does not apply to an election petition provisions
like sections 9 and l 0 of the General Clauses Act, 1897 providing
for computation of time which are m pari materia with sections
12 ( 1) and 4 of the Limitation Act would apply to such a petition.
The last submission of cowJ.Sel for the appellants was that the
failure to itnplead V. K. Reddi did not make the election petition
liable to dismissal under s. 86 ( 1). It was argued that after V. K.
Reddi had withdrawn from contest he was no longer a candidate
within the meaning of s. 79 (b) or 82 (b) of the Act. In our
opinion, it is not open to him to argue that point in view of the
decision of this Court in Har Swarup v. Brij Bhushan( 1 ). It is
to be noted tl)at this decision does not stand by itself.
In Mohan
Singh v. Bhanwarlal(2) an attempt was made to get the election
petition dismissed in limine on the ground that one of the candidates at the election, namely, Himmat Singh, against whom allegations of corrupt practice were made in regard to withdrawal of his
candidature was not joined as a respoQdent.
It was held by this
Court that a mere offer to help in getting employment was not an
offer of gratification within the meaning of s. 123(l)(B) of the
Act.
The Court however observed :
"If therefore the petition contained any imputation
of corrupt practice made against Hinlmat Singh, it could
' (1)
[1967]'1 S.C.R. 342.- -
(2)
[1964] 5 S.C.R. 12.
690
SUPREME COLJRT REPORTS
I I 969] 1 s.c.R.
not be regarded as properly constituted unless he was
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impleadcd as a respondent, for, by the definition of
"candidate" in s. 79(b), the expression
"any other
candidate" in s. 82 ( b) must include a candidate who
had withdrawn his candidature." (see at p. 18).
Reference may abo be made to Amin Lal v. llunna Mal(').
It was however sought to be argued that s. 99 enjoined upon
the High Court to name all persons who had been proved at the
trial to have been guilty of any corrupt practice and where such a
person who not a party to the petition, he was not to be so named
unless he had been given notice to appear before the High Court
and asked to show cause why he should not be so named and if
he chose to appear, he was to be given an opportunity of cr06Scxamining any witness already examined by the High Court and
of calling evidence in his own defence and of being heard.
This
provision, to our mind, only enjoins upon the High Court to give
an opportunity to a person sought to be held guilty of a corrupt
practice if he was not a party to the petition, but it does not apply
to a person who is a necessary party thereto.
An obvious case
for the use of poll'ers under s. 99 would be that of an agent guilty
of commission of a corrupt practice with the consent of the candidate.
Such a person would not be a necessary party to the petition but he mu.st have an opportunity of showing cause and of
being heard before the High Court can name him as guilty of a
corrupt practice while making an order under s. 98.
Jn our opinion. the appeal has
no merits and must be dismissed with costs.
G.C.
Appeal dismissed.
(I) [1965) I S.\.R. 393.
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