http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: SREEKUMAR MUKHERJEE

       Vs.

RESPONDENT: ZUINEL ABEDIN & ORS.

DATE OF JUDGMENT:       19/02/1999

BENCH: K.Venkataswami, N.Santosh Hegde

JUDGMENT:

JUDGEMENT Santosh Hegde. J.

       Leave granted.

       This appeal arises out of an order dated 2.9.1997 in G.A. No. 2410/1997 in Election Petition No. 7.96  passed  by the High Court of Calcutta.

       The  appellant  herein  made  an application for the dismissal of the above Election Petition under Section 86(1) read with Section 82 of the  Representation  of  the  People Act, 1951  (hereinafter  referred  to  as  the  Act’).   The contention of the appellant in the said application was that in the election petition filed on 21.6.1996.   the  election petitioner had not impleaded all the necessary parties as is required  under  the law and as such the petition was liable to be dismissed, ignoring an implement application which was filed by Mostiga Molla, respondent  No.    8  herein,  which application  according  to the appellant was wrongly allowed by the court on 27.8.1996 since  the  said  application  was beyond  the  period of limitation contemplated under Section 86(4) of the Act.

       The learned Judge who heard  the  application  by  a detailed  order dismissed the said application, holding that even assuming the impleaded respondent ought  to  have  been made  a  party, initially, since his impleadment application was allowed in accordance with  law.    the  prayer  of  the appellant  herein  could  not  be granted and accordingly he dismissed the said application.

       Hence this appeal.

       The facts necessary  for  deciding  this  case  fall within a  narrow  compass.   The polling for the election in question was held on 2.5.1996 and the results were announced on 12.5.1996.    The  election  petition   challenging   the election   of  the  appellant  was  filed  within  the  time stipulated in the Act.  In the said election  petition,  the court   issued   notice  to  the  respondents  on  2.7.1996, directing them to appear on 9.7.1996.  On  that  date  since the respondent were not served the court fixed 6.8.98 as the fresh date  for appearance of the respondents.  On that date also the respondent were not served.  Hence the court  fixed 11.8.1996   as   the   next   date  for  appearance  of  the respondents.  On  27.8.1996,  that  is  within  14  days  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

13.8.1996, respondent No.    8.    herein,  who  was  also a candidate in the election in question, moved an  application to  be  impleaded as a party respondent to the said election petition under Sec.  86(4) of  the  act  which  came  to  be allowed.   Though there is some controversy in regard to the alleged consent purported to have been given  on  behalf  of the  appellant’s  counsel,  it is not necessary for us to go into the same in view of the fact that the issue in question could be decided de hors those controversies.         On behalf of the appellant, it is firstly  contended that since the first respondent herein was a necessary party to  the  petition  and  he was not impleaded in the original election petition. the same is liable  to  be  dismissed  in limine  under  Section  86(1)  of  the  Act,  in view of the requirements of Section 82 of the Act.

       The next contention advanced  by  the  appellant  is that  the  High  Court  erred  in  allowing  the  impleading application of the 8th respondent since the same was  beyond the  period  of limitation prescribed under Section 86(4) of the Act.

       We will take the second  contention  first  for  our consideration. This  contention as stated above  is based on the fact that the application of the first respondent herein was made beyond the time prescribed under sub-Section (4) of Section 86 of the Act, wherein a limitation of 14  days  has been  contemplated  for  any  application  to  be  filed for impleadment  and  that  the  said  limitation  of  14   days commences  from the date of commencement of the trial which, according to the petitioner, commenced  on  the  first  date fixed  in  the  notice  issued  for  the  appearance  of the respondents in the election petition by the  court,  namely, on   2.7.1996  and  since  the  application  of  the  eighth respondent for implement was made  only  on  27.8.1996,  far beyond the 14 days’ time prescribed under sub-section (4) of Sec. 86 the said application ought to have been rejected and consequently,  the election petition itself was liable to be rejected. On behalf of the contesting  respondents,  it  was pointed out that a perusal of the Explanation to sub-section (4)  of Section 86 would make it clear that the period of 14 days contemplated under sub-section (4) of Section 86  would start  running  only  from  the  date of commencement of the trial  which  would  be  a  date  fixed  by  the  court  for appearance  of  the respondent before the High Court. On the basis of this provision of law, it  was  contended  that  on 6.8.1996  the  court  itself  had  fixed  a  fresh  date for appearance of the original respondents to  13.8.1996,  hence it  would be only from that date the period of 14 days would commence and the impleading application of respondent No.  1 having  been filed on 27.8.96, it was well within the period of limitation prescribed under sub-section (4) of Section 86 of the Act. It was also pointed out to  us  from  the  court records  which  were summoned by this Court that as a matter of fact one of the respondents viz 4th respondent was served with the Court notice to appear only 4.10.1996. Hence it was contended on behalf of the contesting  respondent  that  the application  filed  by  his clients was well within the time contemplated under the Act.

       A  perusal  of  sub-section (4) of section 86 of the Act  shows  that  any  candidate  who  was  not  already   a respondent  can make an application to the High Court within 14 days from the date of commencement of the  trial  and  be entitled to  be  joined as a respondent.  The actual date of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

commencement of trial had been fixed by the  statute  itself by  way  of  a  deeming  provision  found  in Explanation to sub-section (4) of Section 86 which reads :

               "For the purposes of this sub-section and of         section 97, the trial of a petition shall be  deemed         to commence on the date fixed for the respondents to         appear before the High Court and answer the claim or         claims made in the petition."

       A  plain  reading  of  sub-section (4) of Section 86 shows the trial of a petition as contemplated  in  the  said sub-section  would  start  only  from the date fixed for the respondents to appear before the High Court.  The object  of this  provision  seems  to  be that on the date on which the original respondents to the election petition appear  before the  High  Court,  they  would  be in a position to acquaint themselves with the pleadings and also the said service give sufficient information about the election  petition  to  the other  persons  concerned  who  are  entitled  to invoke the provision of sub-section  (4)  of  Section  86  to  make  an appplication for    impledment, if they so desired within 14 days from the date so fixed for appearance of  the  original respondents.  This  view  of  ours  finds  support  from the reading of Section 97 of the  Act  which  provides  for  the fileing  of recrimination petition by the returned candidate or any other person. If the above agrument of the  appellant is  to be accepted then this right of a person under Section 96(4) and 97 can be very well defeated by accepted then this righ of a  person under section 96 (4) and 97  can  be  very well  defeated  by  indulging in methods by which service of original notice to the respondents could be  delayed  beyond 14 days of the date fixed in the original notice. Therefore, in  our opinion, it is not possible to accept the contention of the appellant that once a notice is issued in an election petition even if that notice is not served on  the  original respondents,  the  commencement  of  the  period  of 14 days beings from the date fixed for trial in such original notice and  the subsequent change of the date of trial by the court cannot be used as a begining of  the  period  of  limitation prescribed  under  sub-section  4  of Section 86 of the Act. This argument in our opinion would defeat the very object of sub-section(4) of Section 86 which enables a person entitled to be joined as a party. They period of  14  days  fixed  in Section   80,  therefore,  will  have  to  be  construed  as commencing from a date fixed  by  the  High  Court  for  the appearance of the original respondents in the first instance or from such subsequent dates that the court may fix for the appearance of those respondents. If so construed, it is seen in  this  case  the High Court itself had fixed a fresh date for appearance of the original respondents on 13.8.1996  and the  application  of  the  first  respondent  for impledment having been filed on 27.8.1996 which is within 14 days  from  13.8.96 the said application was within the time prescribed under  sub-section (4) of Section 86 and the court below was justified in rejecting the application of the appelalnt.

       Now we shall advert to the first contention  of  the appellant  which  is that the first respondent having failed to implead all the contesting  candidates  in  the  original election  petition the same is liable to be dismissed in lim in view of Section 86(1) read with Sec. 82 of the Act.

       We are not inclined to  accept  this  contention  as well.  If Sec. 86(1) is to be interpreted so narrowly as the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

appellant wants us to do then that  would  make  sub-section (4)  of  section 86 otiose. It would also mean a right given to a party under  Section  86(4)  could  be  defeated  by  a deliberate  or otherwise act of an election petitioner, that certainly would not have been the object of Sec 86(1).  This view  of  ours  also finds support from the judgment of this Court in the  case  of  Shiv  Chand  vs.  Ujagar  Singh  and andother  (1979  1 SCR 520). In the said case in an almost a ssimilar fact situation this court held :

               In the instant case, s.  86(4)  of  the         Act  itself  entitles Mal Singh to be joined as         respondent. That right cannot be  defeated  and         once  he  comes on record as party the petition         is  in  order  and  cannot  be  dismissed   for         non-joinder.  Moreover  once Mal Singh comes on         the party array, by virtue of s.86(4) the fatal         infirmity, if any must be judged with reference         to the petition as amended by the  addition  of         the  new respondent. It is the amended petition         consequent on the addition under s.86(4) of Mal         Singh that has to be tested  in  the  light  of         s.86(1) read with s.82(b) of the Act."

       For  the  reasons  recorded herein above this appeal fails and is hereby dismissed. No. costs.