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TMI Blog1967 (6) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ents Nos. 3 and 4 herein) and counsel for the respondent No. 1. This morning I was told by the petitioner's counsel that he did not wish to press the application for condonation of delay and was desirous of having my decision on the merits of the point raised by him, namely, that the petition was within time. I, accordingly, gave direction that there would be no order on the application for condonation of delay and no order as to costs of that application as well. I was proceeding to express my views on the principal point of the petitioner's counsel that the petition was not barred by limitation. At this stage the petitioner himself intervened. He said to me that his Counsel had withdrawn the application for condonation of delay without his instructions. He asked for my leave to discharge all his Advocates and submitted to me that he should be given permission to argue his case in person on condonation of delay. For ends of justice I have heard his arguments appearing in person. I would now express my views both on the merits and on the issue of condonation. 3. The petitioner's counsel first drew my attention to Section 81 of the Representation of the People Act, 1951 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a candidate in an election is declared by the Returning Officer to be elected. Indeed, in part V of the Conduct of Election Rules a form has been prescribed for grant of "Certificate of Election of Returned Candidate" under Rule 66. This is known as form No. 22 and I set it out as it appears at page 470 of the Manual of Election Law (Fifth Edition) published by the Government of India. The form is as follows:-- "Form 22 Certificate of Election (See Rule 66) I, Returning Officer for the ...... Parliament/Assembly Constituency in the State of. .... hereby certify that I have on the ........day of .... 19 .... declared Shri .....of ..... duly elected by the said Constituency to be a member of the House of the People/Legislative Assembly and that in terms thereof I have granted to him this Certificate of Election. ................... Returning Officer for the .... Parliament/Assembly Constituency. Place ...... Date ...... 9. In the Instant case the Returning Officer declared the respondent No. 1 elected to the West Bengal Legislative Assembly on the 23rd February 1967. The Election Petition should have been filed on or before the 10th April 1967, 9th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otwithstanding anything contained fn any other law for the time being in force, an appeal shall lie to the Supreme Court on any question (whether of law or fact) from every order made by a High Court under Section 98 or Section 99. (2) Every appeal under this Chapter shall be preferred within a period of 30 days from the date of tha order of the High Court under Section 98 or Section 99 : Provided that the Supreme Court may entertain an appeal after the expiry of the said period of 30 days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period " The argument is that in cases of appeals to the Supreme Court power has been expressly conferred on the Supreme Court to entertain an appeal after the expiry of the prescribed period provided that sufficient cause is shown. But in the case of the High Court no such power has been given. In fact, it is urged, the power that the Election Commission had under the Representation of the People Act, 1951, as it initially stood, has been expressly taken away in the case of a High Court. Reliance was placed on Section 85 of the Representation of the People Act prior to its amendments. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those mentioned in Section 29(2) are applicable to proper cases and I do not see why they should not apply to election petitions. I am of opinion, therefore, that Section 29(2) can be relied on for condonation of delay in filing election petitions. 16. The second argument is based on Section 29(2) itself. It is contended that Section 29(2) consists of two parts and these two parts must be read conjunctively. The Supreme Court in Vidya Charan v. Khub Chand has said that the second part of Section 29(2) is not independent of the first part. The result is that if a period of limitation is prescribed for a suit, appeal or application in a special or local law which is different from the period prescribed by the Limitation Act, Section 29(2) would apply. In the instant case, argues learned Counsel for the respondent No. 1, for election petitions no period or limitation is prescribed in the Limitation Act at all. And the result is that Section 29(2) cannot conceivably be attracted. I do not accept this argument either. I think Article 137 which is the residuary article for "any other application for which no period of limitation is provided elsewhere in this Division" can be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the prescribed period in certain cases does not apply to suits at all. It is meant for appeals and applications only. To test this contention on behalf of the respondent No. 1 let us consider the exact provisions of Section 87 which run thus : "87. Procedure before the High Court. --(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits: Provided that the High Court shall have discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay proceedings." 18. This section lays down that an election petition is to be tried as nearly as may be in accordance with the procedure applicable to trial of suits under the Code. The Court, in other words, has to follow as far as possible the rules of procedure app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dum of Appeal be returned to the appellant for presentation to the Chief Court. The appellant, thereupon, went to the Chief Court of Oudh. The appeal being time-barred a prayer for extension of time was made under Section 5 of the Limitation Act. The application for extension was dismissed on the ground that counsel did not exercise due care and attention and acted with gross negligence in the matter. The appellant thereafter came before the Judicial Committee. The Privy Council held that the counsel could not be deemed to have been negligent in valuing the appeal nor should his action be described as "gross negligence". The facts therefore, according to the Judicial Committee, disclosed a "sufficient cause" within the meaning of Section 5. At page 278 the Privy Council observes:-- "Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the Section though there is certainly no general doctrine which saves parties from the results of wrong advice." At page 277 it is observed :-- "The Chief Court's refusal to admit the appeal was based on the view that counsel 'di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been entertained by a competent person exercising reasonable skill. 26. Bearing the above principles in mind, we have to examine the averments in the present petition for condonation of delay. The averments are as follows:- "(1) That your petitioner filed an election petition on April 17, 1967, being 45 days from the date of the election of the returned candidate, namely, respondent No. 1, as required under S. 81 of the Representation of the People Act, 1951, as amended by Act 47 of 1966. (2) That your petitioner met his counsel... on April 6, 1967 for the purpose of filing an election petition; but he was advised by his counsel of file the election petition on April 17, 1967, as according to the petitioner's counsel, 45 days are to be counted from the date of the election of the returned candidate as duly elected under Section 67 and not Section 67A of the Representation of the People Act, 1951, as amended by Act 47 of 1966, which has referred to the date of the election of a candidate but not the returned candidate. (3) That assuming 45 days are to be counted in terms of Section 67A of the Representation of the People Act, 1951 and the Election Petition w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledge). But assuming that this view is not correct, the petitioner submits, the delay should be condoned inasmuch as an erroneous advice was given to him. In my opinion, a petition for condonation of delay cannot be made in this form. If the petitioner wants that the delay should be condoned, he should frankly admit that the petition is barred; but he should be excused for the delay owing to a wrong advice given by a competent lawyer who had exercised reasonable care and skill in giving the advice, on a matter which was capable of more than one interpretation. The averments in the petition before me, however, are of an altogether different nature. 29. Lastly, besides the principles discussed above, I cannot ignore the fact, while considering whether or not there is 'sufficient cause in the instant case, that the petitioner in his affidavit affirming the petition describes himself as a legal practitioner. When he argued in person, it seemed to me that he was a fairly experienced lawyer. I am reluctant to accept that he was not aware of the relevant provisions of the Representation of the People Act, 1951, particularly when he was a candidate in a hotly contested election and ..... 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