K. KAMARAJA NADAR versus KUNJU THEVAR AND OTHERS

Citation: [1959] 1 S.C.R. 583 · Decided: 22-04-1958 · Supreme Court of India · Bench: NATWARLAL HARILAL BHAGWATI · Disposal: Appeal(s) allowed

Judgment (excerpt)

S.C.R. 
SUPREME COURT REPORTS 
583 
I11deed the course of conduct evidenced by these letters 
1958 
shows that Andiappa Pillai who holds the maximum 
f 
d 
1 h 
h 
The Erin Estate, 
number o indivi ua s ares as purported to act for 
Ga/ah. Ceylon 
the partnership and usually gave instructions in regard 
v. 
to the conduct and management of the firm's affairs. The Commissioner 
On the record we sec no trace of any protest against, 
of Income-Tax. 
or disagreement with, this cor!duct of Andiappa Pillai. 
Madras 
Besides, it was never suggested during the course of G . d -dk 
the enquiry before the Income-tax Officers that the a;en raga 
ar J. 
directions given by Andi11.ppa Pillai were not valid or 
effective and had not been agreed upon by the remain-
ing partners. That is why we think this technical point 
raised by Mr. Kolah must fail. 
The result is the appeal fails and must be dismissed 
with costs . 
• 
Appeal disrnissed. 
K. KAMARA.JA NADAR 
v. 
KUN JU TREV AH, AND OTHE1~S 
(and connected appeals) 
(BHAGWATI, J. L. KAPUR and A. K. SARKAR JJ.) 
Election Petition-Claim fvr seat-Candidate retiring from con-
test, whether a necessary party-vVithdrawal of claim for seat, if 
cures defect of parties-Provisions relating to security deposit, if 
mandatory-Representation of the People Act, I95I (43 of I95I), 
SS. 82 and IIJ. 
There were seven candidates duly nominated for election, and 
four out of them withdrew their candidature by the due date. 
The names of the remaining three were placecl on t11e list of con-
testing candidates prepared by the Returning Officer under s. 38 
of the Representation of the People Act, 195r. Out of the three 
candidates one Pillai retired from the contest under s. 55A(2) of 
the Act leaving the appellant and the second respondent to con-
test the• election. After the appellant was declared duly elected 
the first respondent, an elector in the constituency, filed an. 
, 
election petition praying that the election of the appellant be 
declared void and further that the second respQndent be decl<JJ"ed 
April 22. 
584 
SUPREME COURT REPORTS 
[1959] 
1958 
duly elected. 
The appellant and the second 
respondent 
were impleaded as parties to the petition but Pillai was not-.o 
J(amaraja Nadar impleaded. The appellant applied to the Election Tribunal to 
v. 
dismiss the election petition under s. 90(3) on the grounds (i) that 
J(itnju Thevar 
Pillai was a contesting candidate and the failure to join him as a 
.party amounted to a non-compliance with the provisions of s. 82 
of the Act, and (ii) that the proper and complete head of account 
had not been mentioned in ,the treasury receipt by which the 
security deposit of Rs. r ,ooo had been made nor had the deposit 
been made in favour of the Secretary, Election Commission as 
laid down in s. rr7 of the Act. 
The first respondent also applied 
to the Tribunal for an amendment of the petition by deletion of 
the claim for the seat. The Tribunal rejected the applications 
for dismissal of the petition holding that Pillai was no longer a 
contesting candidate and it \vas not necessary to join him as a 
party to the petition, and that there was no defect in the treasury 
receipt. It also allowed the amendment prayed tor : 
Held, that the election petition was liable to be diimissed 
under s. 90(3) for failure to implead Pillai as a party. A contest-
ing candidate V.'hose name was included in the list prepared under. 
s. 38 but who retired from the contest -under s. 55A(2) continued 
to be a contesting candidate for the purposes of the Act and it 
was incumbent upon the election petitioner under s. Sz to join 
him as a party to the election petition where a claim for the seat 
'vas made, 
l''urther, the Tribunal had no power to grant an 
an1endn1ent, whether by withdr<il.\val or abandonment of a part of 
the clairr1 or otherwise, once an election petition had been pre-
sented to the Election Comn1ission clai1ning the further declara-
tion for the seat. The defect of non-joinder could not be cured 
by such amendment. 
Htld, further, that there \vas sufficient compliance \vith the 
provisions of s. 117 aud the election petition could not be dis-
missed on the ground of failure to comply therewith. 
The words 
"in favour of the Secretary to the Election Commission " used in 
s. r 17 were directory and not mandatory in their character and 
no literal compliance \vith the terms of s. 117 v"as necessary. 
\Vhat \Vas of the essence of the provisions of s. 1

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