MOHAN RAJ versus SURENDRA KUMAR TAPARIA & ORS.

Citation: [1969] 1 S.C.R. 630 · Decided: 12-08-1968 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 2 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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86(1 )-'Candidate', if includ·?S a candidate who hes withdrawn-Code of 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 Parliamen-
A 
B 
tary constituency, but cwo of the candidates withdrew. The fir.it r<sPoD-
C 
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 candi-
date (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 appel-
lant 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of the candidates who had withdrawn and who was not made a party 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 candi-
date 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 with-
dra\\'n \Vas not the election agent of the first respondent. 
'Therefore, the 
G 
H 
•
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" 
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. Hazarnavi

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