# KUMARANAND v. BRIJ MOHAN LAL

- **Citation:** [1965] 1 S.C.R. 116
- **Court:** Supreme Court of India
- **Decided:** 1964-08-24
- **Case number:** Civil Appeal No. 644 of 1964
- **Bench:** P. B. Gajendragadkar, J. C. Shah, N. Rajagopala Ayyangar Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kumaranand-v-brij-mohan-lal-3289
- **Pages:** 7

## Headnote

Repusentation of the People Act. 195 I ( 43 of l 95 I). s. 119-A-El«-
tion Petition-Appeal-Securiry deposit-Deposit with Registrar's Of/W of
the High COKrt Instead of Governmenl Treasury-Wherher appeal to be
dismissed.
On a petition by lhe reswndent. challenging the election of the appellant to the State Legislative Assembly, the Election Tribunal declared the
election void under s. 100( I )(b) of the Representation of the People Act.
Against lhe order of the Tribunal, the appellant appealed to the High
Court.
Instead of enclosing with the memorandum of appeal a Govllmment Treasury receipt showing that a deposit of Rs. 500 bad been made
in favour of the Election C<immission, the appellant through his Advocale
tendered the amount in the office of the Registrar ·of the High Court.
The amount tendered was accepted and was duly credited in the name
of the appellant as "security deposit" .. At the hearing of the appeal if
was contended by the respondent, inter a/ia, that the appellant had failed
to enclose with the memorandum of appeal a Government Treuury
Receipt showing that a deposit of five hundred rupeC3 had been made
by him in favour of the Election Commission as security of the com of
the appeal, and bis appeal was, on that account, not maintainable. 1be
High Court held that the appellant had failed to comply with the provisions
of 1. 119-A of the Act and on that account the appeal filed by him was
inrompetent, and dismissed the appeal. In appoal by special leave :
HELD : The failure to comply with the requirements of s. 119-A docs
not necessarily result in the dismissal of the appeal, for the Act impooes
no express penalty for non-compliance with the requirements of that
section. The Court had therefore jurisdiction having regard to the circumltallCCS, either to permit rectification of the mistake. or to decline to
proceed with the appeal which did not comply with the statutory requirements. Jn the present case the High Court erred in not taking into consideration the conduct of the office of the Regist'ar in accepting the deposit
of costs and also a defecth·e presentation of the appeal whieb contributed
to the irregularity of the procedure adopted by the appellant. [ 1228-D].
lagan Nath v. Jaswant Singh, (1954] S.C.R. 892, referred to.
CivlL APPELLATE JURISDICTION : Civil Appeal No. 644 of
1964.
Appeal by special leave from the judgment and order dat.cd
FebrullI)' 25, t 964, of the Rajasthan High Court in D. B. Election
Appeal No. 93 of 1963.
R. K. Garg, for the appellant.
B. D. Sharma, for respondent No. 1.
A
B
c
D
E
F
G
H
' >
KUMARANAND v. BRIJ MOHAN (Shah J.)
117
A
. The Judgment of the Court was delivered by
·Sbah J.
At the last general elections held in February
1962 the appellant Kumaranand contested a seat in the Rajasthan
Legislative Assembly from the Beawar constituency and was
declared elected.
Brij Mohan Lal who was a candidate at the
B election then presented a petition challenging .the election of the
appellant on the ground that the appellant l)ad in the course of
the election committed corrupt practices within the meaning of
s. 123 ( 4) of the Representation of the People Act, 1951, by
publishing a poem containing false statements of fact relating to
the personal character and conduct of the applicant Brij Mohan Lal
c and which were highly prejudicial to his election prospects. The
Election Tribunal declared the appellant's election void under
s. 100 (1 )(b) of the Act. Against the order of the Tribunal, the
appellant appealed to the High Court of Rajasthan at Jodhpur.
At the hearing of the appeal it was contended by the respondent
Brij Mohal Lal, lnter alia, that the appellant had failed to enclose
D with the memorandum, of appeal a Government Treasury receipt
showing that a deposit of five hundred rupees had been made by
him in favour of the Election Commission. as security for the costs
of the appeal, and his appeal ·was, on that account, not maintainable. The High Court held that the appellant had faile

## Text

KUMARANAND
v.
BRIJ MOHAN LAL
August 24, 1964
(P. B. GAJENDRAGADKAR, C.J., J. C. SHAH AND N. RAJAGOPALA
AYYANGAR JJ.J
Repusentation of the People Act. 195 I ( 43 of l 95 I). s. 119-A-El«-
tion Petition-Appeal-Securiry deposit-Deposit with Registrar's Of/W of
the High COKrt Instead of Governmenl Treasury-Wherher appeal to be
dismissed.
On a petition by lhe reswndent. challenging the election of the appellant to the State Legislative Assembly, the Election Tribunal declared the
election void under s. 100( I )(b) of the Representation of the People Act.
Against lhe order of the Tribunal, the appellant appealed to the High
Court.
Instead of enclosing with the memorandum of appeal a Govllmment Treasury receipt showing that a deposit of Rs. 500 bad been made
in favour of the Election C<immission, the appellant through his Advocale
tendered the amount in the office of the Registrar ·of the High Court.
The amount tendered was accepted and was duly credited in the name
of the appellant as "security deposit" .. At the hearing of the appeal if
was contended by the respondent, inter a/ia, that the appellant had failed
to enclose with the memorandum of appeal a Government Treuury
Receipt showing that a deposit of five hundred rupeC3 had been made
by him in favour of the Election Commission as security of the com of
the appeal, and bis appeal was, on that account, not maintainable. 1be
High Court held that the appellant had failed to comply with the provisions
of 1. 119-A of the Act and on that account the appeal filed by him was
inrompetent, and dismissed the appeal. In appoal by special leave :
HELD : The failure to comply with the requirements of s. 119-A docs
not necessarily result in the dismissal of the appeal, for the Act impooes
no express penalty for non-compliance with the requirements of that
section. The Court had therefore jurisdiction having regard to the circumltallCCS, either to permit rectification of the mistake. or to decline to
proceed with the appeal which did not comply with the statutory requirements. Jn the present case the High Court erred in not taking into consideration the conduct of the office of the Regist'ar in accepting the deposit
of costs and also a defecth·e presentation of the appeal whieb contributed
to the irregularity of the procedure adopted by the appellant. [ 1228-D].
lagan Nath v. Jaswant Singh, (1954] S.C.R. 892, referred to.
CivlL APPELLATE JURISDICTION : Civil Appeal No. 644 of
1964.
Appeal by special leave from the judgment and order dat.cd
FebrullI)' 25, t 964, of the Rajasthan High Court in D. B. Election
Appeal No. 93 of 1963.
R. K. Garg, for the appellant.
B. D. Sharma, for respondent No. 1.
A
B
c
D
E
F
G
H
' >
KUMARANAND v. BRIJ MOHAN (Shah J.)
117
A
. The Judgment of the Court was delivered by
·Sbah J.
At the last general elections held in February
1962 the appellant Kumaranand contested a seat in the Rajasthan
Legislative Assembly from the Beawar constituency and was
declared elected.
Brij Mohan Lal who was a candidate at the
B election then presented a petition challenging .the election of the
appellant on the ground that the appellant l)ad in the course of
the election committed corrupt practices within the meaning of
s. 123 ( 4) of the Representation of the People Act, 1951, by
publishing a poem containing false statements of fact relating to
the personal character and conduct of the applicant Brij Mohan Lal
c and which were highly prejudicial to his election prospects. The
Election Tribunal declared the appellant's election void under
s. 100 (1 )(b) of the Act. Against the order of the Tribunal, the
appellant appealed to the High Court of Rajasthan at Jodhpur.
At the hearing of the appeal it was contended by the respondent
Brij Mohal Lal, lnter alia, that the appellant had failed to enclose
D with the memorandum, of appeal a Government Treasury receipt
showing that a deposit of five hundred rupees had been made by
him in favour of the Election Commission. as security for the costs
of the appeal, and his appeal ·was, on that account, not maintainable. The High Court held that the appellant had failed to comply
with the provisions of s. 119A of the Act and on that account
E
the appeal filed by him was incompetent. The High Court declined
to accede to the request made by the appellant to condone the
delay, if any, in the filing of the appeal under the proviso to
s. l l 6A(3) and to rectify the defect arising from the appellant's
failure to enclose a Government Treasury receipt for Rs. 500 as
required bys. l 19A, and dismissed the appeal. With special leave,
F this appeal has been preferred by the appeUant.
The facts bearing O!J the plea which has found favour with
the High Court of Rajasthan .and the relevant provisions of the ,
Representation of the People Act in force at the material time
may be briefly stated. Section 119A of the Act which was added
G bys. 6.4 of Act 27 of 1956 and was further amended by Act 58
of 1958 reads as follows :
H
"Every person who prefers an appeal under Chapter
IV A shall enclose with the memorandum of appeal a Govel'runent Treasury receipt showing that a deposit of five
hundred rupees has been made by him eith(ll" in a Government Treasury or in the Reserve Bank of India in favour Of.
the Election Commission as security for the costs .(If the
appeal."
·
I 18
SUPREME COT.:RT llLPORTS
[ 1965] I S.C.R.
Jnstcad of enclosing with the memorandum of appeal a Go'l'CmA
ment Treasury receipt showing that a deposit of Rs. SOO bad
been made in favour of the Election Commission, the appellant
through hi~ Advocate Vi jay Chandra Mehta tendered on Ocroller
2 I, 1963, the amount of Rs. 500 in the office of the Regimar af
the High Court. The amount tendered was accepted and waa duly
credited in the name of the appellant as "security deposit". Tiie
B
tender form for payment into Court of the security for com, as
completed by the office of the Registrar. High Court, Rajasthu, was
as follows :
"Original tender : 771/21-10-63
R.R.D. No. 239/31-10-63.
In the High Court of Judicature for
Rajasthan at Jodhpur
Jaipur Bench
1 nstruction to applicant.
--- ---------
I. Name of party on whose
behalf the money is tender
ed
Fill up accurately columns 1 10 4.
Shri Kumaranand.
c
D
2. Name of parties and number of the suit
E
Kumaranand v. Brij Mohan
3. Nature of payment
4. Amount tendered
5. Office report
Sd./-Vijay Chandra Mehta
Dated
Lal D. B. Election appeal/63.
Security ~its.
R~. 500 (Rs. Five h1111dri:d
only).
: May be deposited.
Sd/- Illegible
21-10-63
Signature of Cashier
Stamp
Dated
G
Receipt acknowledged in Register No. R.R.D. No. 239/
31-10-63 only by credited, dated to S.B. Ch. No. 1S7/S4/
•
21-10-63.
Sd/- Mohammed R•ji H
31-11).63
Signature of Receiving Ofncer
KUMAiiANAND V. BRIJ MOHAN (Shah J.)
119
A N.B.-To be filed with the record.
Sd/- Prem Raj
31-10
Signature of Accountant."
It is clear from the terms of the tender that the amooot was
B
depOsited in !he High Court on behali of the appellant Kumaranand
as "security deposit" in the proceeding "Election appeal Kumaranand v. Brij Mohan Lal", and the cashier endorsed on the tender
form that the amount paid "may be deposited". The receipt was
then. entered in !he Register and it was ordered by the Accountant
that it may be filed with the record. This deposit of Rs. 500 in the
C
High Court manifestly did not comply with the requirements of
s. 119A of the Act. The tender form did not indicate that !he
deposit was at the disposal of the Election Commission or that it
was to be utilised in the manner authorised by law. Even it did
not recite that the Election Commission had control over the
D
amount or was payable on proper application being made in that
behalf.
Section 121 of the Act, insofar as it is material, by sub-s. (l )
provides that if any direction for payment of costs by any patty
to any person is made under Part VI such costs shall be paid in
full out of the security deposit and the further security depollit,
E
if any, made by such party, on an application made in writing
in that behalf to the Election Commission by the person in whoee
fa'vour the costs have been awarded.
Section ll 9A is enacted
with a view to secure the costs of the successful party and for that
purpose the Legislature has enacted that the deposit should be
made in a Government Treasury in favour of the Election ComF
mission so that the Election Commission would pay the amount
to the person entitled to the costs.
But failure to comply with
the requirements of s. 119 A does not necessarily result in the
dismissal of the appeal, for the Act imposes no express penalty
for non-compliance with the requirements of that section. Under
s~ 90(3) the Tribunal is bound to dismiss an election petition
G
which does not comply with s. 81 or s. 82 notwithstanding that
it had not been dismissed by the Election Commission under
s. 85. No similar penalty is proscribed by th.e Legislature in the
matter of failure to comply with the requirements of s. l 19A.
It may also be observed that by cl. ( 4) of s. 90 as originally
enitcted for failure to comply with tho provisions of ~. 117 of
H
the Act which required a petitioner to enclose with an election
petition a Government Treasury receipt showing that a deposit of
two thousand rupees had been made by him either in a Govern-
120
SUPRE:ME C'.OURT REPORTS
[ 1965) I S.C.R.
ment Treasury or in the Reserve Bank of India in favour of the A
Election Commission as security for the costs of the petition, it
was provided that the Tribunal may dismiss an election petition.
This clause was later modified and renumbered as cl. (3) by Act
27 of 1956, and it was enacted that the Tribunal shall disnrlss
an election petition which does not comply. amongst others, with
the provisions of s. 117. By the amendment made by Act 40 of B
1961, reference to s. 117 was, however, omitted. The Legislature
therefore has deliberately made a distinction between failure to
comply with cenain requirements of the statute.
In respect of
certain defaults the Election Tribunal is obliged to dismiss the
election petition, but for default in complying with the provisions
of s. I 19A no such penalty is imposed.
As observed in Jagan
C
Nath v. Ja.<want Singh and Ors. ( 1 ) by Mahajan, C.J. :
"The general rule is well settled that the
statutory
requirements of election law must be strictly observed and
that an election contest is not an act ion at law or a suit in
equity but is a purely statutory proceeding unknown to D
the common law and the Court possesses no common law
power.
It is also well settled that it is a sound principle
of natural justice that the success of a candidate who ha.<
won at an election should not be lightly interfered with
and any petition ·seeking such inte~ferencc must strictly
conform to the requirements of the law.
None of these
E
propositions however have any application if the special
law itself confers authority on a tribunal to proceed with
a petition in accordance ·with certain procedure and when
it does not state the consequence of non-compliance with
certain procedural requirements laid down by it.
In cases where the election law does not prescribe the
F
consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law.
the jurisdiction of the tribunal entrusted with the trial of
the case is not affected."
The question which then has to be considered is whether in
cao;e of failure to comoly with the requirements of s. I 19A the
G
High Court had .iurisdicti0n to rectify the mistake committed in
making the deposit for costs.
There can be no doubt that an
amount of Rs. 500 was intended to be and was in fact deposited
by the anoellant as security for costs of the resnondent, though it
was described in the tender by the somewhat inappropriate caotion
~security deposit". Jt aopcars that the Advocate apocaring for the ff
ap~Il~nt J~ t~e J:!i~h_ <;~~rt did not ororerlv anrireciate the scope
(I) [1954) S.C.R. 892, 895.
\
KUMARANAND V, BRIJ MOHAN (Shah J,)
121
A of the amendment made in the Act by Act 56 of 1956, which
incorporated s. ll9A. He proceeded as if this was an ordinary
civil appeal in which security for costs was required by law to be
deposited in Court In not acquainting himself with the statutory
provisions applicable to the due lodgment of the memorandum of
appeal, the Advocate undoubtedly acted negligently, and if that
B was the only circumstance governing the disposal of the appeal,
we would not be justified in interfering with the order of the High
Court.
There . are, however, certain other considerations which
have not been given due effect by the High Court before dismissing
the appeal.
In the absence of any penalty prescribed by the
Legislature for failure to comply with the requirements of s. 119A
C the jurisdiction of the High Court to entertain the appeal is not
affected or jeopardised. The appellant :-vas it is true not entitled
on that account to ignore the statutory provision requiring that a
Government Treasury receipt for the requisite amount in favour
of the Election Commission as security for the costs of the appeal
0
shall be enclosed. But when there is default in complying with. the
requirement, it is for the Court in each case to consider whether
it will exercise its discretion to proceed with the appeal after rectifying the mistake committed or it will decline to proceed with the
appeal.
In the present case as observed earlier the Advocate failed
E
to acquaint himself about the provisions of s. ll 9A. It is also
somewhat unfortunate that the office of the Registrar of the High
Court shared the ignorance of the Advocate.
The tender form
which was produced before the High Court clearly discloses that
the amount of Rs. 500 was intended to be deposited as security
for costs of the respondent in the Election appeal: Kumaranand v.
F Brij Mohan Lal. Instead of depositing that amount in a Government Treasury or in the Reserve Bank, the amount was deposited
in the High Court. The amount was accepted and the receipt was
filed with the record, and this was regarded as sufficient compliance
with. the requirements of s. 119A. The Deputy Registrar of the
High Court accepted the presentation and numbered the apoeal
G
without raising any objection to the procedure followed.
This
would justify an inference that the office of the Registrar of the
High Court was misinformed, as the Advocate was, ·as to the
statutory requirements imposed by the Representation of the People
Act in the matter of deposit of security for costs of the appeal.
If the memorandum of appeal had not been accepted by the
H
Registrar's office, because it was not accomnanied by a Government Treasury receint as required by the statute,· the defect could
have been cured by the appellant. But the memorandum of appeal
122
SUPREME COt:RT REl'ORTS
[1965] I S.C.R.
was accepted, and was numbered as an appeal, and notice of the A
appeal was issued to the respondent. The objection to the regularity in the procedure was, it appears, brought to the notice of the
Court only at the hearing. That the Advocate for the appellant
was negligent cannot be gainsaid. But the conduct of the office
of the Registrar of the High Court in accepting presentation of the
appeal which did not comply with the requirements of s. ll 9A
B
has largely contributed to the irregularity of the procedure followed.
It is a trite saying that it is duty of the Court to take care that
the act of the Court does no injury to any suitor. The Court is
by statute not obliged to dismiss the appeal for failure to comply
'IVith the requirements of s. l 19A : it has therefore jurisdiction
having regard to the circumstances, either to permit rectification
C
of the mistake, or to decline to proceed with the appeal which docs
not comply with the statutory requirements. In the present case
we think that the High Court erred in not taking into consideration
the conduct of the office of the Registrar in accepting the deposit
of costs and also a defective presentation of the appeal which
D
contributed to the irregularity of the procedure adopted by the
appellant. In our view the High Court should have directed that
the amount which had been deposited under the tender form on
October 21, 1963, be deposited in the Government Treasury ii:
the name of the Election Commission. and a Government Treasury
receipt be obtained in favour of the Election Commission a~ security
E
for costs of the appeal preferred before the High Court.
Accordingly we set aside the order passed by the High Court
and direct that the High Court do give an opportunity to the
appellant to rectify the error committed in the matter of securing
the costs of the appeal in the manner already set out and that the
High Court do proceed to hear the appeal on the merits after the F
Government Treasury receipt in favour of the Election Commission as security for the cost~ of the appeal has been obtained and
filed in the record. We do not think that because of the failure
to file the Government Treasury receipt, the jurisdiction of the
High Court is affected or that the appeal may be regarded as
otherwise barred by the law of limitation.
G
The appeal is allowed. The appellant had acted irregularly
and somewhat negligently and the respondent was justified in
bringing to the notice of the High Court the defect in the presentation of the appeal. Even at the hearing of the appeal he tried to
justify his action. Jn the circumstances the appellant must pay the
cost~ of the respondent of this appeal. Costs in the High Court H
will be costs in the appeal.
A ppea/ alluwed.