# SHIV CHAND v. UJAGAR SINGH & ANR

- **Citation:** [1979] 1 S.C.R. 520
- **Court:** Supreme Court of India
- **Decided:** 1978-08-31
- **Bench:** V. R. Krishna Iyer, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shiv-chand-v-ujagar-singh-anr-7589
- **Pages:** 7

## Headnote

Election Petition-Joinder of parties-Whether an Election Co11rt c111: reject
an application made under s. 86(4) of the Representation of the Peorlz Act,
1951 by a duly nominated candidate who has retired froni the conte:.;t-Public
policy behinds. 82(b) of the Apt-In a petition alleging corrupt practice, randidatt:s alleged of corrupt practice must be arraye<l a.f respondents-U'ord\' ru~d
phrases s.a candidate'' in s. 86(4) includes a ri.onlinated candidate.
In the electiDn petition the appellant, a defeated candidate in the G;;neral
Elections held in. June, 1977, challenged the election of Respon<len~ Ne. l
making, inter alia, allegations constituting a corrupt practice against the returned candidate and also Respondent No. 2 a duly nominated candidate v,.ho y,·as
one among those retired from the contest.
An interlocutory application 1nadc
by the petitioner/appellant under Order 1 Rule 10(2), Order 6 Rule 17 and
S. 151 of the Civil Procedure Ccxle seeking to implead Respondent !\o. '2 or 10
the alternative permission for deletion of the allegation of corrupt practice
against Respondent No. 2 <.6 well as the motion made by Respondi:nt No. 2
under s. 86(4) of the Act to implead him as a respondent were rejected by the
High Court.
The Election Petition was also dismissed for non-joinder ct Respondent No. 2 as a necessary party at -the first instance and before the pr-:liminary objection was raised in the written statement.
Allowing the appeal by speci<l'l leave the Court,
1-IELD ~ ( 1) When the text is plain, in the absence of compelling r.!a.son'i,
,there is no ju.stification for truncating its sense.
Section 82(b) requir.:s the
·presence of every candidate against whom a corrupt practice has been alleged.
What is imperative is the presence as a respondent of such a candid<Lte. not ho\v
or at whos~ instance he has been joined as a respondent [523 c·~D]
Tht) purpose is two fold. When injurious averments are made against a
candidate natural justice ne~itates his being given an opportunity to
meet
those charges, because the consequence of such averments being upheld may
be disastrous for such candidate. Secondly, in the absence of the party against
who1n charges have been levelled the reality of the. adversary system \~·ill be
n1issed. Above all, the constituency is vitally concerned with the invl!stigation
into the proof or disproof of corrupt practices· of candidates at elections. Thus,
the public policy behind s. 82(b) is the compulsive presence of a candidate
against whom corrupt practice has been imputed.
It is of no
consequence
\Vhethcr he has been joined at his own instance or by the election petitioner.
f523 E-F]
(2) "Any candidate ..... shall .... be entitled to be joined as a respondent",
in the clear wording of s. 86(4) of the Act, entitles respondent No. ~ t..:i be
joined as a respondent, he. being a candidate in the General Elections. H: is a
necessa-ry party since a corrupt practice was imputed to him. [522 G. 523 .8-C]
(3) S. 86(1) states that the High Court shall dismiss an election petition
~:hich does not comply with the provisions of s. 82. The test is wheth:r tht;
'
•
-
SHIV CHAND v. UJAGAR SINGH (Krishna Iyer, J.)
521
eh,ction petition complies with the provisions of s. 82, not whether the election
A
petitioner has failed to comply with s. 82. The substance of the matter must
govern, because hypertechnicality, when the public policy of the statute is ful·
filled, cannot be permitted to play the procedural tyrant to defeat a vital judicial
process, namely, investigation into the merits of the case. If respondent No.
2 is in1pleaded, the election petition, in this case cannot be dismissed under
s. 86( I) of the Act. [523 H, 524 A-BJ
( 4) The refusal of the Court to implead Sri Mal Singh is illegal and based
on a misinterpretation of the provisions of the sections, of the Act. [524 C]
B
~ ~ ) ...
(a) S. 86(4) cannot be read down to cover any such candidates as are not
•
required to be implcaded as respondents und

## Text

A
B
c
D
E
G
H
520
SHIV CHAND
v.
UJAGAR SINGH & ANR.
August 31, 1978
(V. R. KRISHNA IYER AND D. A. DESAI, JJ.]
Election Petition-Joinder of parties-Whether an Election Co11rt c111: reject
an application made under s. 86(4) of the Representation of the Peorlz Act,
1951 by a duly nominated candidate who has retired froni the conte:.;t-Public
policy behinds. 82(b) of the Apt-In a petition alleging corrupt practice, randidatt:s alleged of corrupt practice must be arraye<l a.f respondents-U'ord\' ru~d
phrases s.a candidate'' in s. 86(4) includes a ri.onlinated candidate.
In the electiDn petition the appellant, a defeated candidate in the G;;neral
Elections held in. June, 1977, challenged the election of Respon<len~ Ne. l
making, inter alia, allegations constituting a corrupt practice against the returned candidate and also Respondent No. 2 a duly nominated candidate v,.ho y,·as
one among those retired from the contest.
An interlocutory application 1nadc
by the petitioner/appellant under Order 1 Rule 10(2), Order 6 Rule 17 and
S. 151 of the Civil Procedure Ccxle seeking to implead Respondent !\o. '2 or 10
the alternative permission for deletion of the allegation of corrupt practice
against Respondent No. 2 <.6 well as the motion made by Respondi:nt No. 2
under s. 86(4) of the Act to implead him as a respondent were rejected by the
High Court.
The Election Petition was also dismissed for non-joinder ct Respondent No. 2 as a necessary party at -the first instance and before the pr-:liminary objection was raised in the written statement.
Allowing the appeal by speci<l'l leave the Court,
1-IELD ~ ( 1) When the text is plain, in the absence of compelling r.!a.son'i,
,there is no ju.stification for truncating its sense.
Section 82(b) requir.:s the
·presence of every candidate against whom a corrupt practice has been alleged.
What is imperative is the presence as a respondent of such a candid<Lte. not ho\v
or at whos~ instance he has been joined as a respondent [523 c·~D]
Tht) purpose is two fold. When injurious averments are made against a
candidate natural justice ne~itates his being given an opportunity to
meet
those charges, because the consequence of such averments being upheld may
be disastrous for such candidate. Secondly, in the absence of the party against
who1n charges have been levelled the reality of the. adversary system \~·ill be
n1issed. Above all, the constituency is vitally concerned with the invl!stigation
into the proof or disproof of corrupt practices· of candidates at elections. Thus,
the public policy behind s. 82(b) is the compulsive presence of a candidate
against whom corrupt practice has been imputed.
It is of no
consequence
\Vhethcr he has been joined at his own instance or by the election petitioner.
f523 E-F]
(2) "Any candidate ..... shall .... be entitled to be joined as a respondent",
in the clear wording of s. 86(4) of the Act, entitles respondent No. ~ t..:i be
joined as a respondent, he. being a candidate in the General Elections. H: is a
necessa-ry party since a corrupt practice was imputed to him. [522 G. 523 .8-C]
(3) S. 86(1) states that the High Court shall dismiss an election petition
~:hich does not comply with the provisions of s. 82. The test is wheth:r tht;
'
•
-
SHIV CHAND v. UJAGAR SINGH (Krishna Iyer, J.)
521
eh,ction petition complies with the provisions of s. 82, not whether the election
A
petitioner has failed to comply with s. 82. The substance of the matter must
govern, because hypertechnicality, when the public policy of the statute is ful·
filled, cannot be permitted to play the procedural tyrant to defeat a vital judicial
process, namely, investigation into the merits of the case. If respondent No.
2 is in1pleaded, the election petition, in this case cannot be dismissed under
s. 86( I) of the Act. [523 H, 524 A-BJ
( 4) The refusal of the Court to implead Sri Mal Singh is illegal and based
on a misinterpretation of the provisions of the sections, of the Act. [524 C]
B
~ ~ ) ...
(a) S. 86(4) cannot be read down to cover any such candidates as are not
•
required to be implcaded as respondents under s. 82 of the Act. The grammatical constn1ction of "any candidate" does not admit of such a narrow and
artificial meaning. Shri Mal Singh, having been a candidate is one entitled to
C
come within s. 86(4). On his application the Court shall implead him. In
this vie'Mi· the question of substantial compliance and the mandatory or directory
nature of the prescription in s. 82(b) does not arise. (524 D-E, G]
)~. Sa1yanaraya11a & Ors. v. Saidayya & -Ors., AIR 1969 l\.P. 151 dissented
to and overruled.
(b) Procedural tyranny compounded by lexically unwarranted technicalilJ'
cannot be tolerated in a Court. The provisions of the Representation of the
People Act where they lay down specific prescriptions must prevall and cannot
be frustrated by importing the Code of Civil Procedure. The provisions of the
Codt: of Civil Procedure, especially Order 6 Rule 17 and Order 1 Rule 10 cannot
be used in such a manner as to defeat the procedural policy and
statutory
D
imperative of s. 82 of the Act. [524 H. 525 BJ
E
Jn the instant case, s. 86(4) of the Act itself entitles Mal Singh to be joined
as respondent That right cannot be defeated and once he comes on record
as party the :PCtition is in order and cannot bci dismissed
for non-joinder.
l\foreover once Mal Singh comes on the party-array, by virtue of s. 86(4),
the fatal infirmity, if any, must be judged with reference to the petition as
~n1ended by the addition of the new respondent. It is the amended petition
F
consequent on the addition under s. 86(4) of ~fal Singh that has to be tested
in the ligM of s. 86(1) read withs. 82(b) of the Act. [525 A-CJ
Mohan Raj \. Surendra Kunuir Taparia & Ors. { 1969] l SCR_ 630, expla!Iied.
CIVIL APl'HLATE JURISDICTION : Civil Appeal No. 2199 of 1977.
From the Judgment and Decree dated 29-11-1976 of the Allahabad
High Court in Special Appeal No. 378 of 1974 .
G. B. Pai and 0. P. Rana for the ·Appellant.
R. K. Garg, V. J. Francis, Madan Mohan, K. P. Agganval and
Manju Gupta for Respondents I and 2.
Manoi Swarup and Lalita Kohli for the Intervener.
G
H
522
SUPREME COURT REPORTS
[1979] l S.C.R,
A
The Judgment of the Court was delivered by
B
c
D
E
KRISHNA IYER, J.-An election petition became au infant casualty
because of an alleged non-joinder of a necessary party as visualised by
S. 82(b) of the Representation of the People Act, 1951 (the Act, hereafter).
That P!emature dismissal, by-passing investigation into the
merits, has driven the petitioner-appellant to this Court where he has
urged that the ends of law and justice have been stultified by the
strangely technical view taken by the High Court in its dismiSsal order.
A few facts, and then, a brief discussion, the point being res
integra so far as this Court is concerned. The appellant before us is
the election-petitioner, having been a defeated candidate in the General
Elections held in June, 1977.
There were quite a few candidate·s,
including one Shri Mal Singh, who appears to 'have retired from the
contest for the seat although duly nominated as a candidate. The respondent was returned as the successful candidate and the disappointed
petitioner challenged the election by filing a petition wherein, inter alia,
he made allegations constituting a corrupt practice against the returned
candidate and Shri Mal Singh. To such a pleading S. 82 is attracted.
That provision states that a petitioner shall join as respondent to his
petition any candidate against whom allegations of any corrupt practice
are made in the petition. By this mandate, the petitioner was bound
to implead as respondent Sb.ri Mal Singh.
But he omitted to do so
initially. The respondent, in his written statement, raised a preliminary
objection that the failure to join Shri Mal Singh as a respondent entailed dismissal of the election petition.
The case wa:s adjourned for
arguments on the preliminary issue to September 15, 1977. In the
meanwhile, on September 8, 1977, an interlocutory application was
filed by the election-petitioner under Order 1 Rule 10(2), Order 6
F
Rule 17 and S. 151, Code of Civil Procedure, seeking to implead as
respondent No. 2, the said Mal Singh. In the alternative, he prayed for
deletion of the allegation of corrupt practice against Sha-i Mal Singh.
On the same day, Shri Mal Singh filed an application under S. 86( 4)
of the Act praying that he be impleaded as respondent to the election
petition. Thus, there was a motion for impleadment by the electionG
petitioner as well as by Shri Mal Singh and they were disposed of
together by an order which is unde.r appeal.
It is fairly clear that Shri Mal Singh was a necessary party since a
corrupt practice was imputed to him. He made an application to be
impleaded as respondent exercising the procedural right he had under
S. 86(4) of the Act which reads thus:
H
"86 ( 4) Any candidate not already a respondent shall,
upon application made by him to the High Court within
fourteen days from the date of commencement of the trial
•
)
• 1
l.
-l
SHIV CHAND v. UJAGAR SINGH (Krishna Iyer, J.)
523
and subject to any order as to security for costs which may
A
be made by the High Court, /Jle entitled to be ioined as a
respondent.
Explanation.-For the
purpose of this sub-section and of
section 97, the trial of a petition shall be deemed to commence On the date fixed for the respondents to appear before
B
the High Court and answer th!< claim or claims made in the
petition."
Shri Mal Singh did apply within the stipulated period, and a plain
reading of the provision just re-produced entitles him to be joined as a
respondent. Any candidate shall be entitled to be joined as a respondent, on the clear wording of the section and since Shri Mal Singh
is a candidate he is entitled to be joined as a respondent. When the
text is plain, in the absence of compelling reasons, there is no justification for truncating its sense. If Shri Mal Singh is impleaded on his
application then the election petition will have on the party array the
candidate against whom allegations of corrupt practice have been made
in the petition.
That is to say, S. 82(b) will stand fulfilled.
It is
obvious that S. 82 (b) requires the preSence of every candidate against
whom a corrupt practice has been alleged. What is imperative is ihe
presence as a respondent of such a candidate, not however at whose
instance he has been joined as a respondent. The purpose is obvious
and two fold. When injurious averments are made against a candidate
natural justice necessitates his being given an opportunity to meet those
charges, because _the consequence of such averments being upheld may
be disastrous for such candidate. Secondly, in the absence of the party
against whom charges have been levelled the reality of the adversary
system will be missed. Above all, the constituency is vitally concerned
with the investigation into and proof or disproof of corrupt practices
of candidates at elections. Thus, the public policy behind S. 82(b) is
the compulsive _presence of the candidate against whom corrupt practice
has been imputed. It is of no consequence whether he has been joined
at his own instance or by the election-petitioner. In the present case,
the petitioner did move to bring on record Shri Mal Singh but that
wils rejected. The petitioner alternatively sought to de1ete the corrupt
practice imputed to Shri Mal Singh. That too was refused, if we may
say so rightly.
The short question is whether the court was right in
rejecting the request of Shri Mal Singh to be ranked as a respondent
when hi:s application was otherwise in order.
We are satisfied that if he is impleaded as a respondent the election
petition cannot be dismissed under S. 86 (1) of the Act. That provision
states that the High Court shall dismiss an election petition which does
17-526 SCI/78
c
D
E
F
G
R
A
B
•
c
D
E
F
G
ff
524
SUPREME COURT REPORTS
[1979] 1 S.C.R.
not comply with the provisions of S. 82. The test is whether the
election petition complies with S. 82, not whether the election-petitioner
has failed to comply with S. 82.
The substance of the matter must
govern, because hyper-technicality,
when the public policy of the
statute is fulfilled, cannot be permitted to play the procedural tyrant to
defeat a vital judicial process, namely, investigation into the merits of
the election petition.
The result of the discussion is that Shri Mal Singh was entitled to
have been impleaded as respondent. The refusal by the court to do so
is illegal and based on a misinterpretation.
Had he been impleaded
the dismissal of the election petition would have been illegal.
Let us examine the reasons given by the learned Judge for the
course he has adopted. Counsel for the respondent, in supporting the
reasoning of the High Court, bas relied on a ruling in R. Satyanarayana
& On v. Saidayya and Ors.(') The argument which 11as appealed to
both the conrts is the same and we regard it as fallacious. We do not
propose to examine the discretionary dismissal of the application by
the election-petitioner under Order 1 Rule 10, et al, to imp lead Shri
Mal Singh.
We confine ourselve8 to S. 86(1) and S. 86(4) of the
Act.
According to the learned Judge, S. 86(4) has to be read down
to cover only such candidates as are not required to be impleaded as
respondents under S. 82 of the Act.
For one thing, the grammatical
construction of "any candidate" does not admit of such a narrow and
artificial meaning. The reason given by the court hardly impresses us.
Indeed, we are not able to conceive easily of a case where a candidate
who is neither the returned candidate nor one against whom corrupt
practices are imputed would care to implead himself as respondent.
He serves no purpose by getting so impleaded except the teasing and
gaining experience of being a litigant. The mere assertion by the trial
court that S. 86(1) would be rendered nugatory by a candidate like
Mal Singh taking recourse to the provisions of sub-section ( 4) of s. 86
does not carry conviction nor are we able to glean into the intention
of the legislature as the learned Judge states. Shri Mal Singh, having
Ileen a candidate, is one ·entitled to come within s. 86 ( 4). On his
application the court shall implead him. In this view, the question of
substantial comjlliance and the mandatory or directory nature of the
prescription in S. 82 (b) do not arise.
Shri Mehta relied upon Mohan Raj(') heavily. The question raised
there was whether the provisions of the Code of Civil Procedure,
especially Order 6 Rule 17 and Order 1 Rule 10 could be u·sed in such
(I) AIR 1969 A. P. 151.
(2) Mohan Raf v. Surendra Kumar Taparia & Ors. [1969] I SCR 630
SHIV CHAND v. UJAGAR SINGH (Krishna Iyer, !.)
5 25
a manner as to defeat the procedural policy and statutory imperative of
S. 82 of the Act. Obviously that cannot be done because the provisions
of the Representation of the People Act where they lay down specific
prescriptions must prevail and cannot be frustrated by importing the
Code of Civil Procedure. Here, however, S. 86(4) of the Act itself
entitles Mal Singh to be joined as respondent. That right cannot be
defeated and once he comes on record as party the petition is in order
and cannot be dismissed for non-joinder. Procedural tyranny compounded by lexically unwarranted technicality cannot be tolerated in a court.
M.oreover, once Mal Singh comes on the party array by virtue of
S. 86 ( 4) the fatal infumity, if any, must be judged with reference to
the petition as amended by the adc]ition of the new respondent. It is
the amended petition consequent on the addition under S. 86 ( 4) of
Mal Singh that has to be tested in the light of S. '86 (1) read with
S. 82 (b) of the Act.
A
B
c
Several decisions have been cited before us by both the sides to
buttress up their respective stances but we find only marginal relevance
D
for those decisions and do not burden this judgment with the citations.
In this view, issue No. 2 was wrongly decided by the High Court.
We hold that Shri Mal Singh should have been impleaded as a respondent. Since he has applied in this Court also for the same relief we
direct. him to be joined as a respondent to the election petition. We are
not impressed with the submission of Shri Mehta for the respondent
that there are suspicious features suggestive of collusion between the
election-petitioner and Shri Mal Singh and that for that reason the petition to implead filed by Shri Mal Singh should be dismis'sed. It is
quite conceivable that Shri Mal Singh against whom serious allegations
have been made in the election petition would have sought to be impleaded so that he could clear the aspersions made against him, !O the
satisfaction of the constituency through an adjudication in the court.
Even assuming that there wa:s an element of collusion that would not
deprive him of his entitlement under S. 86 ( 4) of the Act. Perhaps the
respondent (successful candidate) may well rely on these and other
features when ~nquiry is made into the merits of the matter and seek
to persuade the court that when the petitioner himself was willing to
abandon the allegations and Shri Mal Singh appeared on the scene
under coincidentally dubious circumstances, the charge was liable to be
disbelieved. It is not for us in this Court to express any opinion, one
way or the other, on the matter except to point out that even assuming
Shri Mehta's assumption of ma/a {ides or collusion it has no bearing on
the right of Shri Mal Singh to be joined as a respondeQt.
E
F
G
H
A
ll. '
B
526
SUPREME COURT REPORTS
[1979] 1 S.<l.R.
The upshot of the· above discussion is that the appeal has to be
allowed, that Shri Mal Singh has to be impleaded as respondent No. 2,
that the finding on Issue No. 2 should be set aside and the election
petition remanded to the trial court to be restored to file for expeditiousdisposal on merits. We allow the appeal but in the circumstances direct
the parties to bear their costs throughout.
S.R.
Appeal allowed.