1983 (10) TMI 276 - SC - Indian Laws

Summary

Issues Involved:
1. Validity of earlier orders allowing deletion of prayer (c) and withdrawal of recrimination.
2. Whether an election petition can be dismissed for default.
3. Whether a respondent can apply for restoration of an election petition dismissed for default.

Summary:

Validity of Earlier Orders:
The appellant contended that the earlier orders by the High Court, specifically the order dated November 16, 1979, allowing the deletion of prayer (c) and the order dated September 30, 1980, permitting the withdrawal of the recrimination petition, were in the nature of partial withdrawal of the election petition. The appellant argued that these orders are a nullity as the statutory provision for withdrawal u/s 109 and 110 of the Representation of the People Act, 1951 ('Act') was not followed. However, the Court found that omitting a prayer from the election petition does not amount to withdrawal of the election petition. The earlier orders were not challenged in a timely manner and had become final. Therefore, these orders could not be regarded as a nullity.

Dismissal of Election Petition for Default:
The appellant argued that an election petition concerns the entire constituency and cannot be dismissed for default. The Court, however, found no statutory support for this contention. The Act is a self-contained statute, and the provisions of the Code of Civil Procedure (CPC) apply where the Act is silent. Therefore, an election petition can be dismissed for default under Order IX, Rule 8 of the CPC if the election petitioner does not appear to prosecute the petition.

Application for Restoration by a Respondent:
The appellant, who was not the original election petitioner, sought to apply for the restoration of the dismissed election petition. The Court held that under Order IX, Rule 9 of the CPC, only the election petitioner can apply for restoration. The provisions relating to withdrawal and abatement u/s 109 and 116 of the Act cannot be extended to allow a respondent to apply for restoration. The Court concluded that a respondent does not have the right to seek restoration of a dismissed election petition.

Conclusion:
The Supreme Court dismissed the appeal, confirming the High Court's order and holding that the application for restoration by the appellant was not maintainable. The Court emphasized the strict statutory nature of election disputes and the applicability of the CPC provisions in the absence of specific provisions in the Act. The appeal was dismissed with each party bearing their respective costs.