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PETITIONER: ANWARI BASAWARAJ PATIL AND ORS.

       Vs.

RESPONDENT: SIDDARAMAIAH AND ORS.

DATE OF JUDGMENT27/01/1993

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) KULDIP SINGH (J)

CITATION:  1994 AIR  512            1993 SCR  (1) 313  1993 SCC  (1) 636        JT 1993 (1)   328  1993 SCALE  (1)235

ACT: Representation of the People Act, 1951 : Section  97-Recrimination notice-Delay in filing  of-Whether Section 5 of the Limitation Act, 1963 applicable. Limitation Act, 1963: Section  5-Whether applicable to recrimination notice  under Representation of the People Act, 1951.

HEADNOTE: The  first  respondent,  a  defeated  candidate,  riled   an election  petition before the High Court for  a  declaration that  the  election of the appellant was void  and  that  he himself  had been duly elected.  Since the notice could  not be  served on the appellant, and some other  respondents  in the ordinary course, it was published in a vernacular  daily newspaper, as directed by the High Court, fixing the date of appearance  of  the  respondents  therein.   The   appellant appeared before the High Court on the date of publication of the notice and sought time for filing the written. statement and  after doing so submitted a recrimination  notice  under Section 97 of the Representation of People Act, 1951.  Along with the recrimination notice he flied an application  under Section 5 of the Limitation Act requesting the High Court to condone  the delay in filing the same, since  the  appellant had given notice beyond the period of 14 days from the  date of  commencement of trial, prescribed under the  proviso  to Section 97(1). The High Court held that Section 5 of the Limitation Act was not applicable to a recrimination notice. Aggrieved, the appellant riled the appeal, by special leave, before  this  Court.   It was contended that  by  virtue  of Section  29(2)  of the Limitation Act,  all  the  provisions contained  in sections 4 to 24 (both inclusive) of  the  Act applied  to the proceedings under the Representation of  the People  Act, 1951, including the recrimination notice  under Section 97. 314 Dismissing the appeal, this Court, HELD  : 1.1. There is no provision in the Representation  of People  act 1951 making all or any of the provisions of  the Limitation  Act placable to the proceedings under  the  Act.

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[318A] 1.2.  The Act equates a recrimination notice to an  election petition.  The  language of Section 97 makes the  said  fact abundantly  clear.  It provides that returned candidates  or any other party may give evidence to prove that the election of  such candidate would have been void If he had  been  the returned candidate and a petition had been presented calling in  question his election.  The proviso to  sub-section  (1) applies  the  provisions of Sections 117 and 118 to  such  a recrimination   notice.    For   non-compliance   with   the requirement of Section 117 an election petition is liable to be  dismissed  by virtue of sub-section (1) of  Section  86. Sub-section  (2)  of Section 97 further  provides  that  the notice referred to in sub-section (1) should be  accompanied by  the statement and particulars as required by Section  83 in the case of an election petition and should be signed and verified in like manner. [319C-E] 1.3. The  proviso  to sub-section (1) of  Section  97  which requires such a notice to be given to the High Court  within 14  days  of the date fixed for the  respondents  to  appear before the High Court to answer the claim or claims (reading the definition of ’commencement of trial’ into it) has  also a particular meaning and object behind it.  The idea is that the  recrimination  notice, if any, should be filed  at  the earliest  possible time so that both the  election  petition and  the  recrimination notice are tried at the  same  time. [319F] The  recrimination notice is thus comparable to an  election petition.  If Section 5 of the Limitation Act, 1963 does not apply  to  the filing of an election petition, it  does  not equally  apply  to the filing of the  recrimination  notice. [319G] H.N Yadav v. L.N. Misra, [1974] 3 S.C.R. 31, relied on. VC.   Shukla v. Khubchand Baghel and Ors., [1964]  6  S.C.R. 129, distinguished. Bhogilal   Pandya  v.  Maharawal  Laxman  Singh,  AIR   1968 Rajasthan   145,   Bhakti  Bh.   Mondal   v.   Hhagendra   K Bandhopandhya, 1968 Calcutta 315 69, overruled.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 313 of 1993. From the Judgment and Order dated 9.10.1992 of the Karnataka High Court in Election Petition No. 8 of 1991. P.N. Misra for the Appellants. R.N.  Narasimha Murthy, E.C. Vidyasagar and Gopal Singh  for the Respondents. The Judgement of the Court was delivered by B.P.  JEEVAN  REDDY, J. Heard the counsel for  the  parties. Leave granted. This  appeal  raises the question whether Section 5  of  the Limitation Act, 1963 is applicable to a recrimination notice given under Section 97 of the Representation of People  Act, 1951.  The learned Single Judge of the, Karnataka High Court has  held that it does not.  His ,view is questioned by  the returned   candidate  (first  respondent  in  the   election petition) before us. The  first  respondent in the Election  Petition  who  shall hereinafter  be  referred to as  "appellant’,  was  declared elected  from Koppal parliamentary constituency  during  the general elections held for the 10th Lok Sabha.  He contested on  the  Congress  (1)  ticket.   The   election-petitioner,

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referred  to hereinafter as "the first respondent" had  also contested from the said constituency on the ticket of Janata Dal.   Having lost the election, the first respondent  filed an  election petition No. 8 of 1991 for a  declaration  that the  election of the appellant from the  said  parliamentary constituency was void and for a further declaration that  he himself   has  been  duly  elected  therefrom.   Since   the appellant  and  some  other  respondents  to  the   election petition  could  not be served in the ordinary  course,  the High Court directed publication of notice in a Kannada Daily Newspaper.  It was so published on 4.11.1991 fixing the date of   appearance  of  the  respondents  on  25.11.1991.   The appellant  (first respondent in the election  petition)  ap- peared  before the High Court on 4.11.1991 and  sought  time for filing his written statement which he did on  6.11.1992. Thereafter,  on  21.1.1992 he  submitted  the  recrimination notice under Section 97 of the Act.  By the said notice, the appellant expressed his intention to give evidence to  prove that 316 the election of the first respondent would have been void if he had been ..he returned candidate and a petition had  been presented calling in question his election.  Along with  the recrimination notice he filed an application under Section 5 of  the Limitation Act requesting the High Court to  condone the delay in filing the same for the reasons stated therein. According  to  the proviso to Section 97(j) notice  of  such intention  should have been given to the High Court  "within 14   days   from  the  date  of  commencement   of   trial". Admittedly,  the appellant gave notice under  Section  97(1) beyond the period of 14 days and hence the application under Section 5. For a proper appreciation of the question arising herein, it would  be appropriate to notice the relevant  provisions  of the  Representation of People Act besides Section  29(2)  of the  Limitation  Act,  1963.  First the  provisions  of  the Representation of People Act.  Section 97 reads as follows:               "97.   Recrimination when seat  claimed.-  (1)               When  in  an election petition  a  declaration               that  any  candidate other than  the  returned               candidate  has been duly elected  is  claimed,               the returned candidate or any other party  may               give  evidence to prove that the  election  of               such candidate would have been void if he  had               been the returned candidate and a petition had               been   presented  calling  in   question   his               election:               Provided  that the returned candidate or  such               other party as aforesaid shall not be entitled               to  give such evidence unless he  has,  within               fourteen days from the date of commencement of               the  trial, given notice to the High Court  of               Ins intention to do so and has also given  the               security and the further security referred  to               in sections 117 and 118 respectively.               (2)Every  notice referred to in  sub-section               (1) shall be accompanied by the statement  and               particulars required by section 83 in the case               of  an election petition and shall  be  signed               and verified in like manner." Sub-section (1) of Section 97 permits the returned candidate or any other party to give evidence (in an election petition seeking  a  declaration that any candidate  other  than  the returned candidate has been duly elected) to 317

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prove  that the election of such candidate would  have  been void  if he had been the returned candidate and  a  petition had  been presented calling in question his election.   Sub- section (2) says that such a notice shall be accompanied  by a  statement and particulars required by Section 83  in  the case  of an election petition and shall also be  signed  and verified  in  the same manner.  Proviso to  sub-section  (1) says that such a notice shall be given within fourteen  days from  the date of "commencement of trial" and  the  security and  further  security referred to in Sections 117  and  118 respectively is furnished.  The expression "commencement  of trial" has been defined in Explanation to Sub-section(4)  of Section 86.  The Explanation 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." According  to  the  said  definition,  the  notice  of   the recrimination  should  have been given in this  case  within fourteen  days  of  4.11.91. Admittedly,  it  was  submitted beyond the said period.  Section 83 deals with "contents  of petition".    According  to  sub-section  (1)  an   election petition  (a)  shall  contain a  concise  statement  of  the material facts on which the petitioner relies; (b) shall set forth   particulars  of  any  corrupt  practice   that   the petitioner alleges including as full a statement as possible of  all the names of the parties alleged to  have  committed such  corrupt  practice  and  the  date  and  place  of  the commission of each of such practice and (c) shall be  signed by  the petitioner and verified in the manner laid  down  in the  Code of Civil Procedure, 1908 for the  verification  of pleadings.  The proviso to sub-section (1) says that where a petitioner alleges any corrupt practice, the petition  shall also  be accompanied by an affidavit in the prescribed  form in   support  of  the  allegation  of  such   practice   and particulars therein.  Sub-section (2) says that any schedule or  annexure  to the petition shall also be  signed  by  the petitioner and verified in the same manner as the  petition. Section  117 requires the election petitioner to deposit  in the  High  Court,  at the time  of  presenting  an  election petition,  a sum of Rs. 2,000 as security for the  costs  of the petition in accordance with the rules of the High Court. Section  118  says that no person shall be  entitled  to  be joined  as a respondent under Sub-section (4) of Section  86 unless  he  has given such security for costs  as  the  High Court may direct.  Section 86(1) declares that "the 318 High Court shall dismiss an election petition which does not comply  with the provisions of section 81 or section  82  or section 117." There  is no provision in the Representation of People  Act, 1951  making all or any of the provisions of the  Limitation Act  applicable  to  the proceedings  under  the  Act.   The appellant,  however,  relies  upon  Section  29(2)  of   the Limitation  Act.   According to him by virtue  of  the  said provision, all the provisions contained in Sections 4 to  24 (both  inclusive)  apply to the proceedings  under  the  Act including the recrimination notice under Section 97.   Sub- section(2) of Section 29, which alone is relied upon  before us reads:               "Where any special or local law prescribes for               any  suit, appeal or application a  period  of               limitation different  from the period

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             prescribed by the Schedule, the provisions               of  Section  3 shall apply as if  such  period               were the period prescribed by the Schedule and               for  the purpose of determining any period  of               limitation prescribed for any suit, appeal  or               application  by any special or local law,  the               provisions  contained  in  Sections  4  to  24               (inclusive)  shall apply only insofar as,  and               to the extent to which, they are not expressly               excluded by such special or local law." In H.N. Yadav v. L.N. Misra, [1974] 3 S.C.R. 31, this  court held  that  the  words  "expressly  excluded’  occurring  in Section  29(2) of the Limitation Act do not mean that  there must  necessarily  be express reference in  the  special  or local law to the specific provisions of the Limitation  Act, the  operation  of which is sought to be excluded.   It  was held that if on an examination of the relevant provisions of the  Special  Act, it is clear that the  provisions  of  the Limitation  Act are necessarily excluded then  the  benefits conferred  by the Limitation Act cannot be called in aid  to supplement the provisions of the Special Act.  That too  was a  case arising under the Representation of People  Act  and the question was whether Section 5 of the Limitation Act  is applicable to the filing of the election petition.  The test to  determine whether the provisions of the  Limitation  Act applied to proceedings under Representation of People Act by virtue of Section 29(2) was stated in the following words               "The  applicability of these  provisions  has,               therefore, to be judged not from the terms  of               the  Limitation Act but by the  provisions  of               the Act relating to the fifing of election               319               petitions and their trial to ascertain whether               it is a complete code in itself which does not               admit  of  the  application  of  any  of   the               provisions of the Limitation Act mentioned  in               Section 29(2) of that Act." On an examination of the provisions of the Representation of People  Act and the earlier decisions of the Court, it.  was held  that  the  Representation of People  Act  is  a  self- contained  code and accordingly, it was concluded that  "the provisions  of s. 5 of the Limitation Act do not govern  the filing of election petitions. or their trial." This  decision,  in  our  view,  practically  concludes  the question   before   us  inasmuch  as  the  Act   equates   a recrimination notice to an election petition.  The  language of  Section  97 makes the said fact abundantly  clear.   The relevant  words  are: "the returned candidate or  any  other party  may give evidence to prove that the election of  such candidate  would have been void if he had been the  returned candidate  and  a  petition had been  presented  calling  in question  his  election."  The proviso  to  sub-section  (1) applies  the  provisions of Sections 117 and 118 to  such  a recrimination  notice.   It  may be noticed  that  for  non- compliance  with the requirement of Section 117 an  election petition is liable to be dismissed by virtue of  sub-section (1)  of section 86.  Sub-section (2) of Section  97  further says  that the "notice referred to in sub-section (1)  shall be accompanied by the statement and particulars required  by Section 83 in the case of an election petition and shall  be signed  and verified in like manner." We may also  say  that the proviso to sub-section (1) of Section 97 which  requires such a notice to be given to the High Court within  fourteen days of the "date fixed for the respondents to appear before the  High Court to answer the claim or claims" (reading  the

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definition  of "commencement of trial" into it) has  also  a particular  meaning and object behind it.  The idea is  that the  recrimination  notice, if any, should be filed  at  the earliest  possible time so that both the  election  petition and  the  recrimination notice are tried at the  same  time. The  recrimination notice is thus comparable to an  election petition.   If Section 5 does not apply to the filing of  an election  petition, it does not equally apply to the  filing of the recrimination notice. In view of the above position, we do not think it  necessary to deal with the several decisions cited before us  relating to  the interpretation of Sub-section (2) of Section  29  of the Limitation Act. The  counsel  for  the appellant brought  to  our  notice  a decision of this 320 Court  holding that the provisions of the Section  12(2)  of the  Limitation Act, 1908 are applicable to an appeal  under Section  116(A)  of the Representation of People  Act,  1951 viz.,  V.C  Shukla v. Khubchand Baghel and  Ors.,  [1964]  6 S.C.R.129.  It  is also brought to our notice  that  certain High  Courts  have taken the view that both  Section  5  and Section  12(2) of the Limitation Act are applicable  to  the proceedings  under the Act.  Reference is to 1968  Rajasthan 145,  1968 Calcutta 69 and (1976) 89 Madras La.  Weekly  32. So  far  as  the decision of this court  in  V.C  Shukla  is concerned,  it is a decision dealing with the  applicability of  the provision in Section 12(2) of the Limitation Act  to an  appeal preferred under Section 116(A) and not  with  the filing  of  an  election petition.  The  said  decision  was considered  and  distinguished in H.N. Yadav  on  the  above basis.   At page 42 of the S.C.R., the Division Bench  which decided H.N. Yadav distinguished the decision in V.C. Shukla in the following words :               "Vidyacharan  Shukla’s  case  (supra)  is  one               which dealt with an appeal under the Act while               what  we  have  to  consider  is  whether  the               Limitation  Act is at all applicable to  elec-               tion  petitions  under the Act.   Thirdly,  s.               29(2)  of the new Limitation Act does not  now               give  scope for this controversy  whether  the               two  limbs of the old section are  independent               or integrated.  No doubt s. 5 would now  apply               where   s.   29(2)  is  applicable   to   even               applications  and petitions, unless  they  are               expressly  excluded.  Even assuming  that  the               Limitation  Act applies to election  petitions               under the Act, what has to be seen is  whether               s.  5  is excluded from  application  to  such               petitions." The  Division Bench then proceeded to examine  whether  the applicability  of  Section 5 is excluded in  the  matter  of filing  of an election petition and came to  the  conclusion that it was so excluded.  This aspect has already been dealt with  hereinabove.   So  far as the decisions  of  the  High Courts are concerned, we cannot agree with them in so far as the  applicability  of  Section  5  to  filing  on  election petition and/or recrimination notice is concerned in view of the decision of this Court in H.N. Yadav. For  the above reasons, the appeal fails and is  accordingly dismissed with costs. N.P.V.                          Appeal dismissed. 321

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