# MOHAN RAJ v. SURENDRA KUMAR TAPARIA & ORS

- **Citation:** [1969] 1 S.C.R. 630
- **Court:** Supreme Court of India
- **Decided:** 1968-08-12
- **Case number:** Election Petition No. 13 of 1967
- **Bench:** M. H!DAYATULLAll, Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohan-raj-v-surendra-kumar-taparia-ors-4459
- **Pages:** 7

## Headnote

Representation of tlie People A.ct (43 of 1951), sr, 79, 82(b) and
86(1 )-'Candidate', if includ·?S a candidate who hes withdrawn-Code of
Civil Procedure (Act V of 1908), OJ. r. 10 and O.V!. r. 17-Non-joinder
of necessary party lo election petition-Wht!tlter petition can be saved by
amendment or striking out parties.
Seven candidates were duly nominated for election from a ParliamenA
B
tary constituency, but cwo of the candidates withdrew. The fir.it r<sPoDC
deat, who was one of the
remaining five
contesting candidates. was
declared elected.
His election was challenged on variou• grounds by the
appellant who was an elector. To the petitioo, only the returned candidate (first respondent) and the other four contesting candidates were
made parties. On the first respondent's objection that the allegations were
vague, the appellant amended his petition. In his amended petition, v.ith
respect to one of the grounds, namely, offering bribes lo voters, the appellant gave instances of hribes having hccn offered or paid by the firsr
D
respondent, his election agents. and others. Two persons were referred
to as the c1cction agents of the first respondent.
One of them wa.c; one
of the candidates who had withdrawn and who was not made a party
to the election petition.
The first respondent in his written statement
contended that the petition should be dismissed under s. 86(1) of the
Rcpn-"SCntation of the People Act, 1951, as the candidate again<t whom
cdrrupr practices were alleged and who was a necessary party under s.
E
X2(h) \\'a." not made a party to the election pcti1ion. The appelhint then
filed an application for amendment of his petition wherein he stated that
by 'election agent' he never meant tbe candidate who had w'tbdrawn. that
there v,;as never any intenrion to make any allegation." against that candidate and that his name may be deleted from the petition, as be was not
:he first respondent's election agent and reference to him was made by
inadvertence. The High Court dismissed
the election
petition under
s. 86(1).
..
Jn appeal to this C<>urt,
HELD : (I)
A candidate who is duly nominated continues to be
a candidate fdr purpOSC'i of s. 82(b) in •i>ite of withdrawal, and if he is
not joined as a party when alle-.gations of corrupt practice are made agninst
him, the election petition shall be di.missed under s. 86(1). [634 D, F;
635 FJ
Amin/al v. Jfunna Mal. [1965] 1 S.C.R. 393 and Har Swarup v. Brij
flhushan Saran, [1967] I S.C.R. 342, followed.
Chat11rbl111j v. Election Tribunal, Kanpur,
(1958)
15 E.L.R.' 301.
approved.
(2) The record showed that allegations of corrupt practice were made
again;t !he candidate who had withdrawn.
It could not be contended by
the appellant that the allegations were made against him not as a candidate
hut in the character of an election agent, becatLo;e, the appellant had him.<elf
stated :n his application for amendment that the candidate who had withdra\\'n \Vas not the election agent of the first respondent.
'Therefore, the
G
H
•
\ .
"
A
B
MOHAN v. SURENDRA (Hida:yatu/lah, C.J.)
631
allegations were made against an individual who was a candidate within
the meaning of s. 82(b) and who had to be joined as a necessary party
to the election petition. [634 B.C; 636 F-Ol
(3) The Cou'rt cannot use 0. VI, r. 17 or 0. I, r. 10 of the Ovil
Procedure Code to avoid the consequences of non-joinder for which a ,
special provision, namely s. 86, is foUDd in the Act. The Civil Pro~~
Code applies to the trial of election petitions only subject to the proVISIOO
of the Representation of the People Act and the rules, made thereUDder.
When the Act makes a person a necessary party and provides that the
petition shall be dismissed if he is not joined, ·the power in the Code, of
amendment or to strike out parties. cannot be used at all. If the deletion
prayed for by the appellant was granted, every election petition can be
saved by amendment and the provisions of s. 86(1) and the policy of the
law will be defeated. [636

## Text

630
MOHAN RAJ
v.
SURENDRA KUMAR TAPARIA & ORS.
August 12, 1968
[M. H!DAYATULLAll, C.J. AND G. K, MITTER, J.]
Representation of tlie People A.ct (43 of 1951), sr, 79, 82(b) and
86(1 )-'Candidate', if includ·?S a candidate who hes withdrawn-Code of
Civil Procedure (Act V of 1908), OJ. r. 10 and O.V!. r. 17-Non-joinder
of necessary party lo election petition-Wht!tlter petition can be saved by
amendment or striking out parties.
Seven candidates were duly nominated for election from a ParliamenA
B
tary constituency, but cwo of the candidates withdrew. The fir.it r<sPoDC
deat, who was one of the
remaining five
contesting candidates. was
declared elected.
His election was challenged on variou• grounds by the
appellant who was an elector. To the petitioo, only the returned candidate (first respondent) and the other four contesting candidates were
made parties. On the first respondent's objection that the allegations were
vague, the appellant amended his petition. In his amended petition, v.ith
respect to one of the grounds, namely, offering bribes lo voters, the appellant gave instances of hribes having hccn offered or paid by the firsr
D
respondent, his election agents. and others. Two persons were referred
to as the c1cction agents of the first respondent.
One of them wa.c; one
of the candidates who had withdrawn and who was not made a party
to the election petition.
The first respondent in his written statement
contended that the petition should be dismissed under s. 86(1) of the
Rcpn-"SCntation of the People Act, 1951, as the candidate again<t whom
cdrrupr practices were alleged and who was a necessary party under s.
E
X2(h) \\'a." not made a party to the election pcti1ion. The appelhint then
filed an application for amendment of his petition wherein he stated that
by 'election agent' he never meant tbe candidate who had w'tbdrawn. that
there v,;as never any intenrion to make any allegation." against that candidate and that his name may be deleted from the petition, as be was not
:he first respondent's election agent and reference to him was made by
inadvertence. The High Court dismissed
the election
petition under
s. 86(1).
..
Jn appeal to this C<>urt,
HELD : (I)
A candidate who is duly nominated continues to be
a candidate fdr purpOSC'i of s. 82(b) in •i>ite of withdrawal, and if he is
not joined as a party when alle-.gations of corrupt practice are made agninst
him, the election petition shall be di.missed under s. 86(1). [634 D, F;
635 FJ
Amin/al v. Jfunna Mal. [1965] 1 S.C.R. 393 and Har Swarup v. Brij
flhushan Saran, [1967] I S.C.R. 342, followed.
Chat11rbl111j v. Election Tribunal, Kanpur,
(1958)
15 E.L.R.' 301.
approved.
(2) The record showed that allegations of corrupt practice were made
again;t !he candidate who had withdrawn.
It could not be contended by
the appellant that the allegations were made against him not as a candidate
hut in the character of an election agent, becatLo;e, the appellant had him.<elf
stated :n his application for amendment that the candidate who had withdra\\'n \Vas not the election agent of the first respondent.
'Therefore, the
G
H
•
\ .
"
A
B
MOHAN v. SURENDRA (Hida:yatu/lah, C.J.)
631
allegations were made against an individual who was a candidate within
the meaning of s. 82(b) and who had to be joined as a necessary party
to the election petition. [634 B.C; 636 F-Ol
(3) The Cou'rt cannot use 0. VI, r. 17 or 0. I, r. 10 of the Ovil
Procedure Code to avoid the consequences of non-joinder for which a ,
special provision, namely s. 86, is foUDd in the Act. The Civil Pro~~
Code applies to the trial of election petitions only subject to the proVISIOO
of the Representation of the People Act and the rules, made thereUDder.
When the Act makes a person a necessary party and provides that the
petition shall be dismissed if he is not joined, ·the power in the Code, of
amendment or to strike out parties. cannot be used at all. If the deletion
prayed for by the appellant was granted, every election petition can be
saved by amendment and the provisions of s. 86(1) and the policy of the
law will be defeated. [636 A.C, D-E]
c
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1801 of
D
E
F
G
H
1967.
Appeal under s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated October 10, 1967
of the Rajasthan High Court in Election Petition No. 13 of 1967.
R. M. Hazarnavis and B. R. Agarwala, for the appellant.
S. V. Gupte, Sardar Bahadur Saharya, Vishnu Bahadur
Saharya and Yogindra Khusalani, for respondent No. 1.
H. K. Puri, for respondent No. 2.
The Judgment of the Court was delivered by
Hidayatullah, CJ.
This is an appeal by the unsuccessful
election petitioner against the judgment of the High Court of
Rajasthan dated October 10, 1967. The election petition was
filed to challenge the election of the first respondent at the Pali
Parliamentary Constituency in the Fourth General Elections.
At
that election seven nomination papers were filed.,
Two of the
candidates withdrew.
Amongst them was one R. D. Periwal.
There were thus only five contesting candidates.
Of these, the
first respondent obtained 1,4 7 ,509 votes.
His closest rival respondent No. 2 (now deceased) obtained 1,21,438 votes.
Tue
remaining candidates got a little over thirty thousand votes between them.
The election petitioner (appellant here) is an elector of Pali.
In his petition he joined the returned candidate and the other four
contesting candidates. Many grounds were urged in the petition.
The first ground was that the returned candidate or his election
agent prompted hatred against the Congress, appealed to religion
and sent persons dressed as Sadhus preaching that if Congress was
returned to power there would be go-hatya and took pledges or
oaths from the voters. The second was that the returned candidate and his election agent were guilty of suppression of true expenses anct filed false returns. The third ground was that the
candidate or his election agent obtained the services of Government servants in furthering the election of the returned candidate.
632
SUPREME COURT REPORTS
[ 1969) I S.C.R.
The last ground was that the returne<l candidate and his election
A
agent and other persons with the consent of the returned candidate
paid and offered bribes between January 13, 1967 to February
14, 1967 to induee the electors directly or indirectly to vote for
the returned candidate.
Tiie petition was scrutinio;ed and was found to be in order.
1bc returned candidate entered appearance on May 15, 1967 and
filed a written statement a month later.
He took the objection
that the allegations were vague and lacking in necessary parti·
cu.Jars. The High Court thereupon ordered better and fuller particulars on July 2, 1967. The election petitioner was asked to file
an application for amendment and a draft of the amended petition.
This wa' done but there were objections.
The objections were decided on August 1, 1967. Some of the
allegatiom of corrupt practices were deleted for want of sufficient
particulars.
The other amendments were allowed.
Para. 16 of
the petition in the amended form read as follows:
B
c
"That the respondent No. l and his election agents
D
Messrs. R. D. Pcriwal and Shri Lunia and other persons
with the consent of the respondent No.
l paid and
offered bribes between 13-1-67 to 20-2-67 with
the
object of inducing directly or indirectly electors to vote
for respondent No. I.
The following amongst other arc some of the insI
tanccs"
(Instance' were mentioned)
On August 24, 1967 written statement was filed
in which an
objection was taken that as R. D. Periwal, against whom corrupt
practices had been alleged, was not joined as a party, the petition
was liable to be dismissed under s. 86(1) of the Representation
of the People Act. This preliminary objection wa' heard by the
Judge on August 29, 1967. Same day an application for an1endment of the election petition was filed.
It was stated in the election petition that the election petitioner had gathered the impression that lndcr Kumar Lunia was the election agent. from a telegram ~-ent by Lunia; that the name of R. D. Pcrlwal in paragraph
16 crept in because of 'uncertainty and inadvertence' and
the
reference to election agent 'came to be made in an omnibus.
manner'. What this statement means is not very clear. However,
it was pointed out that there was no intention to make any allegation against R. D. Periwal but two or three allegations of corrupt
practice were imputed to Lunia. A request wa~. therefore, made
that the reference to 'election agent' in all the paragraphs charginl!
corrupt practices should be deleted and it was specifically prayed
that the name of R. D. Periwal in paragraph 16 should also be
F
G.
H
>
'·
A
B
c
D
E
F
G
H
MOHAN v. SURENDRA (Hida:yatullah, C.J.)
633
deleted.
In short it was intended to withdraw allegations against
Penwal. This application was not separately considered by the
High Court but the election petition itself. was dismi~ under·
s. 86( 1) since Periwal, who was a duly nommated candidate (who
withdrew later), had to be compulsorily joined under s. 82 (b) if
allegations of corrupt practice against him were made.
It will be noticed therefore, that in the original election petition alleoations were 'made against the returned candidate or his
election ~gent. Two of the allegations of corrupt practice were
against the returned candidate and his election agent. They :W~re
charges of taking assistance of Govermnent servants and bnbmg
voters.
In connection with the bribery charge, no names were
mentioned. In his reply to the petition the returned candidate
denied the charges in respect of himself and his election agents
(using the plural). In the amended petition, in one place, the
returned candidate and his election agent were mentioned
with Lunia as
the election agent and in another, which
we have quoted earlier, two election agents,.
Lunia and
Periwal were mentioned by name.
The returned candidate in
reply denied that Lunia was the election agent.
In the second
aJIP!ication for amendment filed on August·29, 1967 attempt was
made to withdraw allegations against the election agent and to
delete all references to Periwal.
This was resisted and it was
stated that Periwal was the oilly election agent appointed by the
returned candidate. The question is whether the election petition
was liable to be disntissed for not joining Periwal who was a duly
nominated candidate and against whom charges of corrupt pra~
tk:e were made ?
Mr. Hazamavis contends that the amendments were made in
answer to the order for better and fuller particulars. He submits
that the original petition did not name Periwal although the
amended petition did and the High Court need not have mixed up
the two petitions to find out whether Periwal had to be joined or
llOt. According to him, !he original petition could not be dismissed since it did not name Periwal and the amended petition only
supplied particulars as required by the Judge.
He submits that
even in giving instances of bribery in paragraph 16, although the
name of Periwal was mentioned in the opening part, no instance
was cited with Periwal's name although other names were mentioned.
Therefore, he submits that Periwal was not in the mind
of the election petitioner at all and the mention of Periwal was
merely an error. In reply it is pointed out that all allegations woce
supported by affidavits and that all references to the election agent
and allegations against him were affirmed on personal knowledge
by the election petitioner.
In the original petition no names were
given but when better particulars were ordered a categoric reference to the election agents was made by referring to Lunia and
Periwal and this was again affirmed on personal knowledge by the
634
SUPREME COURT REPORTS
[1969] I S.CR.
petitioner.
It i' pointed out that in the list of workers of the
A
returned candidate Periwal was shown as the election agent and
the returned candidate affirms that Pcriwal wa' the only election
agent. It is shown by way of illustration that the return of election expenses was filed by Periwa! as the election agent and the
allegations of corrupt practice in respect of the election cxpen~es
related to Periwal.
B
On examining the entire record with the assistance of counsel
we arc sati.,fic<l that Periwa! was always meant when the reference
was to an election agent and this was more clearly specified when
the amended petition was filed.
Therefore, the attempt was first
to name him and now to withdraw his name to save the petitio•.
This, in our opinion, could not be done and the High Court was
right in dismissing the election petition and disallowing the last
amendment by implication. We give our reasons briefly :
·
It is necessary to read the Act backwards from s. 86( 1). That
section reads :
"86. Trial of election petitions.-
( I ) The High Court shall dismiss an election petition which does not comply with the provisions
of section 81 or section 82 or section 117.
"
This is a peremptory provision and admits of no exception. The
Court mtLst enforec it strictly if there is a non-compliance with
the requirements of s. 82 among others.
In this connection we
have to read s. 82 ( b) which reads as follows :
"82. Parties to the petition.-
A petition shall join as respondents to his petition-
(a)
( b) any other candidate against whom allegatio!l' of
any corrupt practice arc made in the petition."
This makes it incumbent that any candidate against whom a charge
c
D
I·
F
of corrupt practice is made must be joined as a party. Who is
G
a candidate is laid down in s. 79 ( b).
That provision reads as
follows:
"79. Definitions.-In this Part and m
Part VII
unless the context otherwise requires.
(a)
H
(b) 'candidate' means a person who has been or
claims to have been duly nominated as a candidate at any election, and any such person shall
-
..
B
c
D
E
F
G
H
MOHAN v. SURENDRA (Hidayatullah, C.J.)
635
be deemed to ~ave been a candidate as from the
time when with the election in prospect,
he
began to hold himself out as a prospective
candidate."
Since Periwal was a candidate who was duly nominated at an election he would be .a candidate within the meaning assigned to that
word by this definition. The question raised is that Periw~l was
not a candidate at the election since he had withdrawn and, m any
case this definition need not be read in s. 82 (b) which should be
limited to contesting candidates.
Under s. 37 a candidate may
withdraw and once the notice of withdrawal is given it is final.
After the date of withdrawal passes a list of contesting candidates
is drawn up under s. 38. It is submitted thats. 82(b) should be
limited to the contesting candidates.
It is also submitted that
when ss. 100 and 123 speak of a candidate they refer to a candidate whose candidature subsists to the time of the election, that is
to say, after the time for withdrawal passes. The petition under
s. 83(1) (b), it is said, can set out particulars of corrupt practices
"against parties" and that would include contesting candidates,
their election and other agents and persons other than candidates
and their agents. It is submitted that a candidate who has withdrawn is no longer a candidate and hence cannot be a party.
The argument cannot be entertained. These questions have
already been considered by this Court on more than one occasion.
They were first considered in K. Kamaraja Nadar v. Kunju Thevar
and Others(') but that ruling may not strictly be appropriate since
it was based on s. 55A(2) which is now repealed.
However,
other cases (Amin Lal v. Hunna Mal(') and Har Swarup & Anr.
v. Brij Bhushan Saran & Ors.) (3 ) consider this point. It is there
. laid down th((t a candidate who is duly nominated continues to be
a candidate for purposes of s. 82 {b) in spite of withdrawal. This
really decides the question which has been mooted before us.
A
very detailed exa1nination of the same question is to be found in
Chaturbhuj v. Election Tribunal, Kanpur & Anr.(4 ). In that case
our brother Bhargava (M. L. Chaturvedi, J. concurring) has examined in the Allahabad High Court these provisions from every
angle which is presented to us and has adequately answered all
the arguments.
It is argued that the Civil Procedure Code applies and 0. VI,
r. 17 and 0. 1, r. 10 enable the High Court respectively to order
amendment of a petition and to strike out parties. It is submitted,
therefore, that both these powers could be exercised in this case
by ordering deletion of reference to Periwal. This argument cannot be accepted. No doubt the power of amendment is preserved
(I) [1959] S.C.R. 583.
(2) [1965] l S.C.R. 393.
(3) [1967] 1 S.C.R. 342.
(4) (1958) 15 E.L.R. 301.
636
SUPREME COURT REPORTS
[1969] I S.C.R
to the court and 0. 1, r. 10 enables the court to strike out pa~
but the coun cannot use 0. VI, r. 17 or 0. l, r. IO to avoid the
consequences of non-joindcr for which a special provision is to be
found in the Act. The coun can order an amendment and even
strike out a party who is not necessary. But when the Act makes
a person a necessary party and provides that the petition shall be
dismissed if such a party is not joined, the power of amendment or
to strike out parties cannot be used at all.
The Civil Procedure
Code applies subject to the provisions of the Representation of the
People Act and any rules made thereunder (sees. 87). When the
Act enjoins the penalty of dismissal of the petition for non-joinder
of a party the provisions of the Civil Procedure Code cannot be
used as curative means to save the petition.
An attempt is made to dis1inguish the cases cited by us on the
ground that now the provisions of ss. 4 to 25 of the Indian Lintitation Act are applicable to election petitions and the amendment
of the petition and joining of panics can !alee place at any time.
It is submitted that now the cases must be decided under the
amended law.
We need not go into this matter. It is doubtful
whether these provisions of the Limitation Act apply at all. The
petitioner has not asked to join Periwal. He only wants an amendment to delete allegations of corrupt practice against him. This
cannot be permitted since it will defeat the provision~ of s. 86( I).
Every election petition can be saved by amendment in this way
but that is not the policy of the Jaw. The dismissal is peremptory
and the law docs not admit of any other approach. It is significant that in Amin Lal v. Hurma Mal('), although the matter W3i
not gone into from this angle it was said that the amendment for
better particulars was not intended to enable the election petition~
er to remove the defect in presentation or in the joinder of parti.os.
Sher>pat Singh v. Ram Pratap( 2 ), since the facts were assumed,
cannot be said to record any decision.
Lastly, it is submitted that Periwa! was being charged in his
character as an election agent and not as a candidate. This sui>-
mis.,ion runs counter to the amendment petition which says that
he was not an election agent and therefore he was really charged
in his capacity as an individual and as he was a duly nominated
candidate he had to be joined. The argument really contradicts
the last amendment petition and cannot be entertained.
For the reason~ above stated it must be held that the decision
of the High Coun under appeal was correct.
The appeal fails
and will be dismissed with costs.
V.P.S. ·- ·---·--
(!) 11065] I S.CR. 393.
(2l (1965) I S.C.R. 175.
Appeal dismissd.
A
B
.c
()
E
F
G
H