LexDR. P. NALLA THAMPY THERA. versus B.L. SHANKER & OTHERS
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· DR. P. NALLA THAMPY THERA.·
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B.L. SHANKER & O'J'HERS
October 28, 1983
[P.N. BHAGWATI, AMARENDRA NATH SiJN AND
RANGANATH MISHRA, JJ.]
Representation of the People Act 1951 Sections 87 & 109 (1)
.687
Election Petition-Trial of-Applicability of the provisions of the Code of .
Civil Procedure-When ariset.
Omission of a prayer from an election petition-Whether amounts to wlth-
drawai of an election petition . .
Petitioner falling to prosecute election petitfon-Whrther election peJition •
could be dismissed-Restoraiion of a dismisse_d el~ction petition-Whether coufd be
at the instance of an_y person <Jilter than the election petition.
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Code of Civil Procedure 1908 Orda IX Rule 9
Election Petition dismi~sed for default-Restoration of petition-Whether
permissible at instance of a person other than election petition:
Procedure
Election ·Petition-Trial of-Default of app1arance or non-proserntion
whether ran b.e treated on par with· withdrawal of abatement.
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· lnterpretatio:n ~! Statutes . .
Presumption that legislature takes notice of court decisions-Court not to
fill up lacu 11a in legislation.
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_Respondent No. 2 who was one of 28 candidates participating in an
· election to a Lok Subha seat was dClclared. elected. Orie of the contenders.,
(Respondent No I) filed an Election, Petition for setting aside the election of
Respondent No. 2, under section 10.0 (1) (b) of the Representation of the People
Act, 1951, and declaring Respondent No. S of the Election Petition ·as the duly
elected candidate, and also for iln. order declaring Respondent Nos. 2, 3 and 4
as been quilty'of corrupt practices under sections 123. The retu.rned candidate
as also all othei: contesting cao!iidates . and 3 outsiders were. impleaded as
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SUPREME COURT REPORTS
{1984)· 1.s.c.R.
responde'iits. Respondent No: 29 of the Election Petition filed hls written.
statement as also a petition -of recrimination under section 97 against Respon-
dent No. 5. Respondent No. 19 in the E'ltction Petition (Appellant in. the
appeal) filed his written $tate~ent. . The Election .Petitioner (Respondent No. t ·
in the appeal) applied to the court for deleting prayer (c) in tlte election petition
regarding the declara,tion of Respondent No. S as the returned candidate, and
the court aUowcd the deletion. Later Respondent No. 29 filid a memorandum
for withdrawal of the prayer of recrimination against Respondent No. 5.
After
·the court allowed withdrawal of tbe recrimination petition the appellant objec-
ted to the request. Written statement was filed on behalf of Respondent 'J'.!o. t;
issue~ were settled, ·documents dfrected to be filed and .the case adjourned for
trial. The election petitionei wanted an adjourm~cnt on ihe date the case was
postrd· for trial. Tlie court gave a last chance and fixed the trial peremptorily
having regard to the statutory mandate" under section 86. (7) requiring an
ele~io.n petition to be disposed of within
6 month~ from the date of
presentation. On t~e date when the case was fixed for trial the election petiti-
oner neither filed his list of witnesses nor list of documents and prayed for an
. , adjournment. The court -refused .the adjournment .and di~missed the Election
.Petition.
' On the same day. Respondent No. 19· made an applicaton praying for
recall of the order of dismissal and also for permission to prosecute 'the election
petitio'n, submit his evidence, and that lie may be substituted to continue the
·procecdlngs·of the Election Petition. The original Respon.dent No. J objected
and contended that the application was not' maintainable and that Respondent
·No. 19.had no /'ocus standi to ask for restoration. It was further contended that
there w'as· ao provision for trnosposition when an el~ction petition . was dis-
missed and Rcspoadwt No. 19 wbo could ha've flled·an- independent Election
petition within the time · ;1dmi5sible ur.der ihe A~t , and not having do'ae so,
could not ask for transposition.
The High Court. r~jected the appHcation.
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Jn.the appeal to thi» Court it was contended on behalf of the appellant
that : (l) the earlier order of the High Court by which. prayer <c) was allowed
· to be deleted. and the order b.y which Respondent No. 29 was a II owed to with-
draw his prayer for recrimination as against. original ResJlondent No. 5 were"in
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