KAILASH versus NANHKU AND ORS.

Citation: [2005] 3 S.C.R. 289 · Decided: 06-04-2005 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Appeal(s) allowed

Cited by 17 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

-
--
KAILASH · 
A 
v. 
NANHKU AND ORS.· 
. APRIL 6, 2005 
[R.C. LAHOTI, CJ., D.M. DHARMADHIKARI AND P.K. 
B 
BALASUBRAMANY AN, JJ.] 
Representation of the People Act, 1951 : 
Sections 86 and. 87-Election Petition-'Trial '-Commencement of- C 
limitation for filing written statement-Applicability of Order VIII, Rule /-
Extension of time beyond 90 days-Held, trial of an election petition commences 
from the date of receipt of election petition and continues till date of its 
decision -Receiving written statement being part of trial, time can be 
extended-This power emanates from the Act itself and the Rules framed for D 
the purpose of the Act and resort to provisions ofCPC is not called for-Even 
otherwise, power of Court to extend time for filing written statement beyond 
the time schedule provided by Order VIII Rule I is not completely taken 
away-Constitu:fion of fndia-,Article 225-Code of Civil Procedure, 1908-
Section 129, Order Vlll, Rule I. . 
.. 
Code of Civil Procedure, 1908 : 
E 
Order Vil/, Rule I, proviso-Time schedule to file written statement-
Power qf Court to extend the time-Held, the provision is directory and not 
mandatory-Jn exceptional circumstances, on a written prayer, Court, for 
reasons to be recorded in writing, has power to extend the time to avoid grave F · 
injustice. 
An election petition challenging "the election of the returned 
candidate, the appellant, was filed in the High Court under Section 80 of 
the Representation of the People Act, 1951. Written statement was filed 
with an application for condonation of delay. The High Court rejected the G 
application and refused to .take the written statement on record as it was 
filed after 90 days from the date of service of summons, i.e., beyond the 
period of limitation as provided by Rule I of Order VIII of the Code of 
Civil Procedure, 1908. Aggrieved, the returned candidate filed the present 
2~ 
H 
290 
SUPREME COURT REPORTS 
[2005] 3 S.C.R. 
A appeal. 
On the questions : 
(I) When does the 'trial' of an election petition commence? and 
whether Order VIII Rule I is applicable to the trial of an election petition 
B under Chapter II of the Representation of the People Act; 
c 
D 
(2) Whether the rules framed by the High Court governing the trial 
Of election petitions would override the provisions of CPC and permit a 
written statement being filed beyond the period prescribed by Order VIII 
Rule 1 of the CPC; and 
(3) Whether the time limit of 90 days as prescribed by the Proviso 
appended to Rule I of Order VIII of the CPC is mandatory or directory 
in nature; 
Allowing the appeal, the Court 
.HELD : 1.1. The trial of an election petition commences from the 
date of the receipt of the election petition by the Coqrt and continues till 
the date of its decision. The filing of pleadings is one stage in the trial of 
an election petition. The power vesting in the High Court to adjourn the 
trial from time to time (as far as practicable and without sacrificing the 
E expediency and interests of justice) includes power to adjourn the hearing 
in an election petition affording opportunity to the defendant to file written 
statement. The availability of such power in the High Court is spelled out 
by the pro.visions of the Represerita.tion of the People Act, 1951 itself and 
Rules made for purposes of that Act and a resort to the provisions of the 
F CPC is not called for. [310-C-D) 
Duryodhan v. Sitaram and Ors., AIR (1970) Allahabad 1 FB and Hari 
Vishnu Kamath v. Election Tribunal, Jabalpur andAnr., AIR (1958) MP 168, 
approved. 
' 
_1.' 
G 
Harish Chandra Bajpai v. Triloki Singh, [1957) SCR 370; Om Prabha 
Jain v. Gian Chand and Anr., [1959) Supp. 2 SCR 516 and Dipak Chandra 
Ruhidas v. Chandan Kumar Sarkar, 12003) 7 SCC 66, referred to. 
1.2. Sub-section (6) of Section 86 of the Act would empower the High 
Court trying an election petition to adjourn the trial beyond the following 
H day if necessary and for reasons to be recorded. The filing of a written 
-
I 
........... 
KAILASH v. NANHKU 
291 
statement being a stage in the trial of an election petition, this provision A 
would empower the High Court to grant a reasonable time for filing of a 
written statement though for reasons to be recorded. In view of Rules 5 
and 12 framed under Article 225 for purposes of the special Act, the High 
Court is not powerless to extend the time for filing the written statement 
simply because the time limit for filing the written statement within th

Excerpt shown. Read the full judgment & AI analysis in Lexace.