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PETITIONER: DR. P. NALLA THAMPY THERA.

       Vs.

RESPONDENT: B.L. SHANKER & OTHERS

DATE OF JUDGMENT28/10/1983

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH BHAGWATI, P.N. SEN, AMARENDRA NATH (J)

CITATION:  1984 AIR  135            1984 SCR  (1) 687  1983 SCALE  (2)717

ACT:      Representation of the People Act 1951 Sections 87 & 109 (1)      Election   Petition-Trial   of-Applicability   of   the provisions of the Code of Civil Procedure-When arises.      Omission of  a prayer from an election petition-Whether amounts to with drawn of an election petition.      Petitioner  failing  to  prosecute  election  petition- Whether election  petition could be dismissed-Restoration of a  dismissed  election  petition-Whether  could  be  at  the instance of any person other than the election petition.      Code of Civil Procedure 1908 Order IX Rule 9      Election Petition  dismissed for default-Restoration of petition-Whether   permissible at instance of a person other than election petition.      Procedure      Election Petition-Trial  of-Default  of  appearance  or non-prosecution  whether   can  be   treated  on   par  with withdrawal of abatement.      Interpretation of Statutes.      Presumption that  legislature  takes  notice  of  court decisions-Court not to fill up lacuna in legislation.

HEADNOTE:      Respondent  No.   2  who   was  one  of  28  candidates participating in  an  election  to  a  Lok  Subha  seat  was declared elected.  One of the contenders, (Respondent No. 1) filed an Election Petition for setting aside the election of Respondent  No.   2,  under  section  100  (1)  (b)  of  the Representation  of  the  People  Act,  1951,  and  declaring Respondent No.  5 of  the  Election  Petition  as  the  duly elected  candidate,   and  also   for  an   order  declaring Respondent Nos.  2, 3  and  4  as  been  quilty  of  corrupt practices under sections 123. The returned candidate as also all  other   contesting  candidates  and  3  outsiders  were impleaded as 688 respondents. Respondent  No. 29  of  the  Election  Petition filed  his   written  statement   as  also   a  petition  of recrimination under  section 97  against Respondent  No.  5. Respondent No. 19 in the Election Petition (Appellant in the

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appeal) filed his written statement. The Election Petitioner (Respondent No.  1 in  the appeal)  applied to the court for deleting prayer  (c) in  the election petition regarding the declaration of  Respondent No.  5 as the returned candidate, and the  court allowed the deletion. Later Respondent No. 29 filed  a   memorandum  for   withdrawal  of  the  prayer  of recrimination against  Respondent No.  5.  After  the  court allowed  withdrawal   of  the   recrimination  petition  the appellant objected  to the  request. Written  statement  was filed on  behalf of  Respondent No.  1, issues were settled, documents directed  to be  filed and  the case adjourned for trial. The  election petitioner wanted an adjournment on the date the  case was  posted for  trial. The court gave a last chance and fixed the trial peremptorily having regard to the statutory mandate under section 86 (7) requiring an election petition to  be disposed of within 6 months from the date of presentation. On  the date when the case was fixed for trial the election  petitioner neither filed his list of witnesses nor list  of documents  and prayed  for an  adjournment. The court refused  the adjournment  and dismissed  the  Election Petition.      On the  same day, Respondent No. 19 made an application praying for  recall of  the order  of dismissal and also for permission to  prosecute the  election petition,  submit his evidence, and  that he  may be  substituted to  continue the proceedings  of   the  Election   Petition.   The   original Respondent No. 1 objected and contended that the application was not maintainable and that Respondent No. 19 had no locus standi to ask for restoration. It was further contended that there was  no provision  for transposition  when an election petition was  dismissed and Respondent No. 19 who could have filed an  independent  Election  petition  within  the  time admissible under  the Act, and not having done so, could not ask for transposition.      The High Court rejected the application.      In the  appeal to this Court it was contended on behalf of the  appellant that:  (1) the  earlier order  of the High Court by  which prayer (c) was allowed to be deleted and the order by which Respondent No. 29 was allowed to withdraw his prayer for  recrimination as against original Respondent No. 5 were  in the  nature of partial withdrawal of the election petition and  the statutory  provision for withdrawal having not been  followed, the  order was  a nullity  and no  party would be  entitled to rely on them; (2) an election petition once filed  does not mean a contest only between the parties there  to  but  continues  for  the  benefit  of  the  whole constituency and  cannot come  to an end merely by withdrawn by the  petitioner or  by his  death  or  by  the  death  or withdrawal of opposition of the respondent, but is liable to be continued by any person who might have been a petitioner. An election  petition cannot  be dismissed  for default  and when the  appellant applied  for permission  to continue the case, the  High Court  should have  given the opportunity to continue the  election petition; and (3) that the view taken in some  cases  by  this  Court  that  except  in  cases  of withdrawal and abatement, the special provision contained in the Act for 689 notifying to  the constituency  so that any other person may apply for  being allowed  to continue the election petition, are not applicable.      Dismissing the appeal: ^      HELD: 1  (i) An  election  petition  is  liable  to  be dismissed for  default in  situations covered by Order IX or

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Order XVII  of the  Code of  Civil  Procedure  and  for  its restoration an  application under  Rule 9,  Order IX  of the Code  would   be  maintainable   but  such  application  for restoration can be filed only by the election petitioner and not by any respondent. [705 E-F]      In the  instant case,  at the instance of the appellant the application  for restoration  was not maintainable. [708 B]      (ii) Elections  and election  disputes are  a matter of special nature  and though  the right to franchise and right to office  are involved  in an election dispute, it is not a lis at common law nor an action in equity. Election disputes are strictly statutory proceedings. [694 H, 697 A]      N.P.  Ponnususami   v.  Returning   Officer   Nanmakkal Constituency &  Ors.[1952] S.C.R. 218; Jagan Nath v. Jaswant Singh &  Ors. [1954]  S.C.R. 892  at 895; Charan Lal Sahu v. Nand kishore  Bhatt & Ors. [1974] 1 S.C.R. 294 at 296; Jyoti Basu &  Ors v. Debi Ghosal & Ors [1982] 3 S.C.R. 318 at 326- 327; Arun  Kumar Bose v. Mohl. Furkan Ansari & Ors. [1984] 1 SCR 118 referred to.      (iii) An election petition once filed does not remain a contest only  between the  parties there  to but  becomes  a dispute in  which the  whole constituency is interested. The Representation  of  People  Act  makes  provisions  to  meet certain eventualities  in the  course of  trial of  election petitions in  Chapter IV  of Part  VI. Two  situations which have  been   covered  by  the  statute  are  withdrawal  and abatement of  election petitions.  Sections 109 and 110 deal with withdrawal  of election petitions, and Sections 112 and 116 deal  with the eventuality of death and non-substitution leading to  abatement. Even  in the  case of  death and non- substitution, the  Court is required to publish a notice, in the official gazette. [693 C-698 E, 699 F]      (iv) Sub-section (1 of s. 109 provides that an election petition can  be withdrawn  only by leave of the High Court. Omitting a  prayer from the election petition strictly would not amount to withdrawal of the election petition. [700 B]      In  the  instant  case,  prayer  (c)  in  the  election petition was  concerned with  the declaration  of Respondent No. 5 as duly elected from the constituency. This relief was asked to be deleted. No objection was raised to its deletion and in  due course  the Court  allowed  this  prayer  to  be omitted. In  opposition to  the claim  made in  this prayer, recrimination was  filed by  one of  the respondents  in the election petition.  But once  prayer (c)  was  dropped,  the relief of recrimination could no more stand. [799 G-700 A] 690      2(i) Non-prosecution  or abandonment  is certainly  not withdrawal Withdrawal  is a positive and voluntary act while non-prosecution or abandonment may not necessarily be an act of volition.  It may  spring from  negligence, indifference, inaction or  even incapacity  or inability  to prosecute. In the case  of withdrawal  steps are  envisaged  to  be  taken before  the   Court  in   accordance  with   the  prescribed procedure. In  the case  of non-prosecution  or abandonment, the election petitioner does not appear before the court and obtain any orders. [701 H-702 A]      (ii) The  Act  is  a  self-contained  statute  strictly laying down  its own procedure and nothing can be read in it which is  not there  nor can  its provisions  be enlarged or extended by  analogy. The terms of sec. 87 clearly prescribe that if  there by  no provision  in the Act to the contrary, the provisions  of the  Code of  Civil Procedure would apply and that  would include  Order IX  Rule 8,  under  which  an election petition  would be  liable to  be dismissed  if the

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election  petitioner   does  not  appear  to  prosecute  the election petition. [702 B]      (iii) Dismissal  of an election petition for default of appearance of  the petitioner  under the provisions of Order IX or Order XVII of the Code would be valid and would not be open to challenge on the ground that these provisions do not apply. [704 D]      Jugal Kishore  v. Dr. Baldev Parkash. AIR 1968 Punjab & Haryana 152 at 158-159; Duryodhan v. Sitaram & Ors. AIR 1970 All. 1. approved.      Sunderlal  Mannalal  v.  Nandramdas  Dwarkadas  &  Ors. A.I.R. 1958  M.P. 260  Rajendra Kumari  Bajpai v.  Ram Adhar Yadav & Ors [1976] 1 S.C.R. 255 at 260; referred to.      (iv) Order  IX, Rule  9 (and not Rule 13 relied upon by the  appellant)   would  be   the  relevant   provision  for restoration of  an election  petition, and it can be invoked in an  appropriate case  by the election petitioner only and not by a respondent. [704 E]      In the instant case the election petitioner and not the appellant could  have asked  for the  relief of restoration. [704 G]      3. The  consensus of judicial opinion in this Court has always been  that the  law in  regard to elections has to be strictly applied  and to  the extent  provision has not been made, the  Code would  be applicable. The Court had occasion to point  out that the Legislature had not thought it fit to make any  provision in the Act permitting intervention of an elector of the constituency in all contingencies of failures of the  election petition  either due  to the  collusion  or fraud of  the original election petitioner or otherwise. The legislature could  have removed  the lacuna  by amending the Act, particularly  when many  amendments have been made. The fact that  has been done leaves an impression that the Court had not  misread the  situation. It  is not for the Court to fill up any lacuna in the legislation. [707 B-C; F-G]      Dhoom Singh  v. Prakash  Chandra Sethi  & Ors. [1975] 3 S.C.R. 595 at 599; Sheodhan Singh v. Monan Lal Gautam.[1969] 3 S.C.R 416 at 421. referred to. 691

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2922 of 1981.      Appeal by  Special leave  from the  Judgment and  Order dated the  23rd June,  1981 of  the Karnataka  High Court in Misc. Petition  No. 1 of 1981 in Election Petition No. 76 of 1978.      Petitioner in person.      P.R. Mridul,  H.R. Bhardwaj,  N. Nettar, G.S. Narayana, S.N. Bhatt and Hemant Sharma for the Respondent.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. This  appeal by  special leave  is directed against the order dated June 23, 1981 passed by the Karnataka High  Court in  Miscellaneous No. 1/81 arising out of Election Petition No. 76 of 1978.      On November  5, 1978, polling took place for electing a member to  the Lok Sabha from No. 20 Chikmaglur Constituency and the  result of  the election was declared on November 8, 1978. Respondent  No. 2  was declared  elected.  In  all  28 candidates had  participated in  the election.  One  of  the contenders for  the seat  filed Election  Petition No. 76 of 1978 before  the Karnataka  High Court  on December 20, 1978 impleading the  returned candidate  as all  other contesting

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candidates and  three outsiders asking for setting aside the election  of   respondent  2   under  s.  100(1)(b)  of  the Representation of  the People  Act, 1951  (’Act’ for short), declaring Shri  Virendra Patil, respondent 5 of the election petition,  as   the  duly   elected   candidate   from   the constituency and for an order declaring respondents 2, 3 and 4 of  the election  petition to  have been guilty of corrupt practices within  the meaning  of s. 123 of the Act. In view of the  reliefs claimed  it became  necessary to implead all the contesting  candidates as  required under  s. 82  of the Act. On  March 26,  1979,  respondent  29  of  the  election petition filed  his written  statement as also a petition of recrimination within  the meaning  of s.  97 of  the Act  as against respondent  5 whom the election petitioner wanted to be declared  as the  duly elected  candidate. On  October 4, 1979 the  present appellant  who was  respondent 19  in  the election petition  filed his written statement. The election petitioner who  is respondent 1 in the appeal applied to the Court for deleting the 692 prayer in  regard to  the declaration of Shri Virendra Patil as the  returned candidate.  On November 16, 1979, the court allowed the  application and  prayer  (c)  of  the  election petition under  which the declaration of Shri Virendra Patil as the  returned candidate  was asked  for was  deleted. The order of  the High  Court shows that there was no opposition to the  request  for  deletion.  On  November  23,  1979,  a memorandum was  filed for  the deletion  of respondents 5 to 31. On  July 23, 1980, on his own prayer respondent 2 of the election petition  was deleted.  Simultaneously the names of the two  other outsiders  to  the  election  petition  being respondents 3  and 4  of the  election  petition  were  also deleted. Respondent  29 filed a memorandum on August 1, 1980 for withdrawal  of the  prayer for  recrimination as against Shri Virendra  Patil. This  was a  necessary sequel  of  the deletion  of   prayer  (c)  of  the  election  petition.  On September 12,  1980 the  High Court  directed that  names of respondents 5  to 31  excepting respondents 13 and 19 to the election petition  would stand  dropped. Thus,  in all three respondents  were   left  in  the  election  petition  being original respondents 1, 13 and 19. On September 30, 1980 the Court directed  withdrawal of  the recrimination petition as against Shri Virendra Patil by allowing the memorandum dated August 1,  1980. The  present appellant  had objected to the request  for   withdrawal  of  the  recriminatory  petition. Separate orders,  viz., the  order dated  November 16,  1979 allowing deletion  of prayer  (c) of  the election petition, the  order   dated  September  12,  1980  deleting  all  the respondents excepting  respondents  1,  13  and  19  of  the election petition  from the  record,  and  the  order  dated September   30,   1980,   permitting   withdrawal   of   the recrimination petition,  were all allowed to become final in the absence of any challenge.      On November  23, 1980  written statement  was filed  on behalf of  original respondent  1 and issues were settled on January 5,  1981. The  Court indicated  a trial  schedule by requiring the documents to be filed on February 16, 1981 and recording of  evidence was  also directed  to begin from the date and  the trial  was to  proceed day to day. On February 16, 1981,  the election  petitioner wanted  adjournment. The High Court was justified in giving only one adjournment as a last chance  and fixing  the trial on March 9, 1981, in view of the  statutory mandate that an election petition shall be disposed of as far as practicable within six months from the date of presentation of the election petition as required by

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s. 86  (7) of  the Act.  On  March  9,  1981,  the  election petitioner again  asked  for  adjournment.  The  High  Court declined the prayer for adjournment and said: "On 693 the previous occasion, i.e. February 16, 1981, it was posted for commencement  of evidence but neither the petitioner nor his witnesses  were present.  However, at the request of the petitioners counsel  the matter  was adjourned to today as a last chance.  The list  of witnesses  and list  of documents were  also  at  the  request  of  the  petitioner’s  counsel permitted to be filed before February 2, 1981 with notice to respondents. This  has not  been  done.  However,  when  the matter was  called today  the petitioner  is absent; none of his  witnesses  is  also  present.  Shri  K.  Channabasappa, learned counsel  for petitioner  wanted to  file the list of documents and  witnesses today  in Court and stated that the matter may  be adjourned  for trial  to some  other date. In view of the circumstances that petitioner is absent in spite of the  fact that this is the second date fixed for trial of the petition,  I have  no  option  except  to  dismiss  this petition for  non-prosecution.  This  election  petition  is accordingly   dismissed.    There   are   three   contesting respondents in this election petition viz., R-1, R-13 and R- 19 Respondent  1 and  R-13 are  represented by  Shri  G.  V. Shanta Raju, and Sri Vyas Rao respectively. R-19 who appears in person is however absent..."      On the  same day respondent 19 to the election petition made an  application praying  for "recall of the order dated 9th March 1981 with reference to Election Petition No. 76 of 1978, and  this respondent no. 19 may please be permitted to prosecute  this   election  petition,   and  to  submit  his evidence, and  this respondent may please be permitted to be substituted and to continue the proceedings of this election petition". Respondent  19 amended this application and asked for restoration  of  the  election  petition.  The  original respondent 1  filed objection to the request for restoration contending that  the application  for  restoration  was  not maintainable and  that respondent  19 had no locus standi to ask for  restoration of the case. There was no provision for transposition when  an election  petition was dismissed and, therefore, respondent 19 who could have filed an independent election petition  within the  time admissible under the Act could not  ask for transposition. On June 23, 1981, the High Court rejected the application after negativing the stand of respondent  19  that  an  election  petition  could  not  be dismissed for  default and that a case of abandonment should be treated  at par  with abatement  and  withdrawal  of  the election petition.  On September  14, 1981,  a petition  for special leave  was filed  and upon leave being granted, this appeal by  respondent  19  has  come  before  us  for  final hearing. 694      At  the  hearing  the  appellant  appeared  in  person. Respondent 1  who was the election petitioner and respondent 3 who  was respondent  13 before  the  High  Court  did  not appear. Thus  the appellant  has been  heard in  person  and respondent 2 has been heard through counsel.      The appellant  contended: (1) the earlier orders passed by the High Court, namely, the order dated November 16, 1979 by which  prayer (c) was allowed to be deleted and the order dated September  30, 1980 by which respondent 29 was allowed to withdraw his prayer for recrimination as against original respondent 5, are in the nature of partial withdrawal of the election petition and the statutory provision for withdrawal having not  been followed,  it must  be held that the orders

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are a  nullity and  no party  would be  entitled to  rely on them. The  appellant is,  therefore, free  to  contend  that these orders  must be  ignored and  the High Court should be called upon  to comply with the statutory provision relating to withdrawal  of election  petition before  such permission can be granted; (2) an election petition once filed does not mean  a   contest  only  between  the  parties  thereto  but continues for  the benefit  of the  whole  constituency  and cannot come  to an  end merely  by the withdrawal thereof by the petitioner  or even  by his  death or  by the  death  or withdrawal of  opposition of the respondent but is liable to be continued by any person who might have been a petitioner. Therefore, an  election petition  cannot  be  dismissed  for default and  when the  appellant who was himself entitled to file an election petition applied for permission to continue the  case,   the  High  Court  should  have  given  him  the opportunity to  continue the election petition; (3) the view taken by  this Court  in some  cases that except in cases of withdrawal and  abatement, the  special provisions contained in the  Act for  notifying to  the constituency  so that any other person  may apply  for being  allowed to  continue the election petition, are not applicable.      Apart  from  these  contentions  which  we  propose  to examine, it  is  also  necessary  to  consider  whether  the appellant, not  being the election petitioner, could ask for the restoration  within the ambit of Order IX, Rule 9 of the Code of Civil Procedure (’Code’ for short).      This  Court   has  consistently  taken  the  view  that elections and  election pisputes  are a  matter  of  special nature and  that though  the right to franchise and right to office are  involved in an election dispute, it is not a lis at common law nor an action in equity. As 695 early as 1952 when the first election under the Constitution took place,  a Constitution  Bench of  this  Court  in  N.P. Ponnuswami v.  Returning Officer,  Namakkal  Constituency  & Ors., (1) observed:           "The right  to vote  or stand  as a  candidate for      election is  not a  civil right  but is  a creature  of      statute or  special law  and must  be  subject  to  the      limitations imposed by it." while dealing  with an appeal in an election dispute arising out of the first series of elections under the Constitution, Mahajan, C.J.,  speaking for  a Constitution  Bench of  this Court stated in Jagan Nath v. Jaswant Singh & Ors.(2):           "The  general   rule  is  well  settled  that  the      statutory requirements of election law must be strictly      observed and  that an election contest is not an action      at law  or a  suit in  equity but is a purely statutory      proceeding unknown  to the  common law  and  the  Court      possesses no  common law power. It is also well settled      that it  is a  sound principle  of natural justice that      the success  of a  candidate who has won at an election      should not  be lightly interfered with and any petition      seeking such  interference must strictly conform to the      requirements of the law." In Charan  Lal Sahu  v. Nandkishore  Bhatt &  Ors.,(3)  this Court observed:           "The right  conferred being a statutory right, the      terms of that statute had to be complied with. There is      no question  of any  common law  right to  challenge an      election,  Any  discretion  to  condone  the  delay  in      presentation  of   the  petition   or  to  absolve  the      petitioner from  payment of security for costs can only      be  provided   under  the  statute  governing  election

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    disputes. If  no discretion  is conferred in respect of      any of  these matters,  none can be exercised under any      general law  or on  any principle of equity. This Court      has held that the right to 696      vote or  stand as  a candidate  for election  is not  a      civil right but is a creature of statute or special law      and must be subject to the limitations imposed by it." In N.P.  Ponnuswami’s case  it was pointed out that strictly speaking it  is the sole right of the Legislature to examine and determine  all matters  relating to  the election of its own members  and if  the legislature takes it out of its own hands and  vests in  a special  tribunal an entirely new and unknown jurisdiction,  that special  jurisdiction should  be exercised in  accordance with  the law  which creates it. In Jyoti Basu & Ors. v. Debi Ghosal & Ors.,(1) this Court said:           "A right  to elect,  fundamental though  it is  to      democracy.   is,    anomalously   enough,   neither   a      fundamental right  nor a  Common Law  Right. It is pure      and simple,  a statutory  right. So  is the right to be      elected. So  is  the  right  to  dispute  an  election.      Outside of  statute, there  is no  right to  elect,  no      right  to  be  elected  and  no  right  to  dispute  an      election. Statutory  creations they are, and therefore,      subject to  statutory limitation.  An election petition      is not  an action at Common Law, nor in equity. It is a      statutory proceeding  to which  neither the  common law      nor the principles of equity apply but only those rules      which the  statute makes  and applies.  It is a special      jurisdiction, and  a special jurisdiction has always to      be exercised  in accordance  with the  statute creating      it. Concepts  familiar to  Common Law  and Equity  must      remain strangers  to Election  Law  unless  statutorily      embodied. A  Court has  no right  to resort  to them on      considerations of alleged policy because policy in such      matters, as  those, relating  to the  trial of election      disputes, is  what the  statute lays down. In the trial      of election disputes, Court is put in a straight jacket      Thus the  entire election  process commencing  from the      issuance   of   the   notification   calling   upon   a      constituency to  elect a  member or members right up to      the final resolution of the dispute, if any, concerning      the election  is regulated by the Representation of the      People Act, 1951, different stages of the process being      dealt with by different provisions of the Act." 697 That view  has been  endorsed in  Arun Kumar  Bose v.  Mohd. Furkan Ansari & Ors.,(1) where two of us were parties to the decision.      The legal  position is,  therefore, well  settled  that election disputes are strictly statutory proceedings.      Chapter VI  in Part  III of the Act makes provision for the trial  of election  petitions. Sub-section  (1) of s. 87 provides:           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  (5 of  1908) to the trial of      suits." The same  section makes  provision for  application  of  the Indian Evidence  Act to trial of election petitions, subject to the  provisions of  the Act. Keeping in view the detailed provisions in the Act for the trial of election petitions, a three Judge  Bench in  Inamati  Mallappa  Basappa  v.  Desai

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Basavaraj Ayyappa & Ors.,(2) indicated:           "The  effect   of  all   these  provisions  (which      previously were  included in  certain other sections of      the Act)  really is to constitute a self-contained Code      governing the trial of election petitions."      We have  already found  that an  election petition is a strict statutory  proceeding. An  appeal lies  to this Court under s.  116A of  the Act  both on  questions of law and/or fact from  every order  made by  the High Court under ss. 98 and 99  of the  Act. No  other order is open to appeal under the statute.  When  the  application  of  the  appellant  to restore the  election petition  was rejected, an application under Art.  136 of  the Constitution  for grant  of  special leave was  made. In  that the  petitioner clearly prayed for leave against  the order  dated June  23, 1981.  Leave  has, therefore, been  granted to  him to appeal against the order of the High Court made on that day. The earlier orders dated November 16,  1979, September  12, 1980,  and September  30, 1980, are  not open  to challenge  in this  appeal  and  Mr. Mridul for  the respondent  has rightly contended that these orders 698 have become  final and  cannot be  assailed  at  this  stage unless they  can be  shown to  be nullity. The appellant has taken the  stand that an election dispute is not one between two sets  of parties  who are  before the Court, but it is a dispute concerning  the entire  constituency.  That  is  the pronounced view of this Court. In Inamati Mallappa Basappa’s case this Court observed:           "Once this  process has  been set  in  motion  (an      election petition  has been filed (by the petitioner he      has released certain forces which even he himself would      not be  able to  recall and he would be bound to pursue      the petition to its logical end....." This observation goes to show that an election petition once filed does  not remain  a contest  only between  the parties thereto  but   becomes  a   dispute  in   which  the   whole constituency is interested. The Act makes provisions to meet certain eventualities  in the course of the trial in Chapter IV of Part VI. Two situations which have been covered by the statute are  withdrawal and abatement of election petitions. Sections 109  and  110  deal  with  withdrawal  of  election petitions,  and   sections  112   and  116   deal  with  the eventuality  of   death  and   non-substitution  leading  to abatement. Section 109 provides:           "109. Withdrawal  of election  petitions -  (1) An      election petition may be withdrawn only by leave of the      High Court;           (2) where  an application  for withdrawal  is made      under sub-section  (1), notice  there of  fixing a date      for the  hearing of  the application  shall be given to      all  other   parties  to  the  petition  and  shall  be      published in the official Gazette." Section 110 reads thus:           "110.  Procedure   for  withdrawal   of   election      petition (1) If there are more petitioners than one, no      application to  withdraw an  election petition shall be      made except with the consent of all the petitioners; 699           (2) No application for withdrawal shall be granted      if in  the opinion  of the High Court, such application      has been  induced by any bargain or consideration which      ought not to be allowed;      (3) If the application is granted-           (a)                   X                          X

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X           (b)  the High  Court shall  direct that the notice                of  withdrawal  shall  be  published  in  the                Official Gazette  and in such other manner as                it may specify and thereupon the notice shall                be published accordingly;           (c)  a  person  who  might  himself  have  been  a                petitioner may,  within fourteen days of such                publication,  apply   to  be  substituted  as                petitioner in place of the party withdrawing,                and upon  compliance with  the conditions, if                any, as  to security, shall be entitled to be                so   substituted    and   to   continue   the                proceedings upon such terms as the High Court                may deem fit.      The question  of abatement does not arise in this case. It is, therefore, sufficient to state without extracting the provisions of  ss. 112  and 116 of the Act, that even in the case of death and non-substitution, the Court is required to publish the notice in the official gazette.      Two questions  become relevant  at this stage: firstly, it has  to be  decided whether  the earlier  orders allowing prayer (c)  to be deleted and the relief of recrimination to be omitted  amounted to  withdrawal of the election petition within the  meaning of  ss. 109  and 100  of  the  Act;  and secondly, whether  on that account the orders are a nullity. Prayer (c)  in the  election petition was concerned with the declaration of  respondent 5,  Shri Virendra  Patil as  duly elected from  the constituency  in question. This relief was asked to be deleted. No objection was raised to its deletion and in  due course  the Court  allowed  this  prayer  to  be omitted. In  opposition to  the claim  made in  this  prayer recrimination was  filed by  one of  the respondents  in the election petition.  But once  prayer (c)  was  dropped,  the relief 700 of recrimination  could no  more stand.  Consequently on the prayer of  the recriminator  that relief was also allowed to be omitted.  In view  of the contention of the appellant, it is necessary  to decide whether omission of prayer (c) comes within the ambit of s. 109 of the Act. Sub-section (1) of s. 109 provides that an election petition can be withdrawn only by leave  of the  High Court.  Omitting a  prayer  from  the election petition strictly would not amount to withdrawal of the election  petition. There  would  be  several  instances where not  withstanding the  deletion  of  one  relief,  the election petition as such would continue to be alive. In the cases  which   were  cited   before  us   referring  to  the applicability of  Order XXIII,  rule 1  of  the  Code,  this aspect was  examined with  reference to  withdrawal  of  the election petition.  We do  not think  that  if  one  of  the reliefs claimed  in the  election petition  is asked  to  be omitted, it  would come  within the provisions of sub-s. (1) of s.  109 of the Act. There is no reason why, if even after omission  of  a  particular  relief  the  election  petition survives and  is available  to be  tried in  accordance with law,  that   omission  or  deletion  should  be  treated  as withdrawal of  the election  petition. There  may  be  cases where while  asking for  one definite relief as the main one in a  lis several other reliefs are prayed for and after the pleadings are  closed instances  are not rare when untenable and unnecessary  reliefs are  asked to be omitted. Amendment to omit  such a  relief does  not amount  to  a  prayer  for withdrawal of  the lis  itself. In this case the main relief of the election petitioner was setting aside of the election

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of respondent  2. Along  with it  he had  also  claimed  the relief that the original respondent 5 be declared to be duly elected.      Apart from  the fact  that no objection was raised when the prayer  for deletion  was made,  the appellant  did  not challenge the  order of the Court deleting the other parties and omitting the relief of recrimination and indeed he could not do so, since to the present appeal the other respondents are not  parties and  in their  absence the  validity of the Court’s order  of  deletion  of  the  prayer  for  declaring respondent 5  as duly elected and the consequent deletion of the prayer  for recrimination  as also  the omission  of the other  parties  from  the  category  of  respondent  to  the election petition  could not  be allowed  to be  agitated as that would  be contrary  to rules  of  natural  justice  and likely  to  prejudice  those  parties  without  affording  a reasonable opportunity  to them of being heard. Moreover, it may be  noticed that special leave was obtained only against the subsequent  order of  June 23, 1981, and no challenge at all  was  raised  against  these  previous  orders.  It  is, therefore, clear that the earlier orders 701 of the Court could not possibly be regarded as a nullity and the appellant  is precluded from challenging those orders in this appeal.      When proceed  next  to  examine  whether  the  election petition could  be dismissed  in the absence of the election petitioner and  whether the  appellant could  apply for  its restoration  though   he  himself   was  not   the  election petitioner, The basis of the appellant’s contention that the election petition cannot be dismissed for the absence of the election petitioner  is that  once an  election petition  is filed, it  concerns the  entire constituency.  Purity of the electoral process  in a  democracy, it  is contended,  is of paramount importance  and an  election  petition  cannot  be permitted to be dismissed for default inasmuch as that would lead to  situations brought  about  by  manipulation,  undue influence, fraud or winning over of the election petitioner. The 2nd  respondent’s counsel has not disputed before us and rightly in  our view that purity of the electoral process is paramount in a democracy and an election petition should not be permitted  to be abandoned by undue influence or pressure over the  election petitioner.  It may  be pointed  out that there was  no allegation of undue influence or pressure over the election petitioner to justify his conduct in this case. It is  relevant to  mention that  the 2nd respondent who was the elected  candidate was  expelled from  the Lok  Sabha in December 1978,  and in  August 1979,  the Lok Sabha to which respondent 2  had been  elected was  dissolved. It was after these supervening events that in October 1979 the request to delete prayer  (c) was  made and  the other orders followed. This explanation  given by respondent 2’s counsel to justify the  conduct  of  the  election  petitioner  is  a  relevant feature.      There is  no support  in the statute for the contention of  the  appellant  that  an  election  petition  cannot  be dismissed for  default. The appellant contended that default of appearance  or non-prosecution  of the  election petition must be  treated as  on par with withdrawal or abatement and therefor, through  there is  no clear  provision in the Act, the same  principle should  govern  and  the  obligation  to notify as  provided in  ss. 110  or 116 of the Act should be made applicable.  We see  no justification  to accept such a contention. Non-prosecution  or abandonment is certainly not withdrawal. Withdrawal is a positive and voluntary act while

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non-prosecution or abandonment may not necessarily be an act of volition.  It may  spring from  negligence, indifference, inaction or  even incapacity  or inability  to prosecute. In the case of withdrawal steps are envisaged to be taken 702 before  the   Court  in   accordance  with   the  prescribed procedure. In  the case  of non-prosecution  or abandonment, the election petitioner does not appear before the Court and obtain any orders. We have already indicated that the Act is a  self-contained  statute  strictly  laying  down  its  own procedure and  nothing can  be read in it which is not there nor can  its provisions  be enlarged or extended by analogy. In fact,  the terms  of s.  87 of  the Act clearly prescribe that if  there be  no provision  in the Act to the contrary, the provisions  of the  Code  would  apply  and  that  would include Order 9, Rule 8 of the Code, under which an election petition would  be liable  to be  dismissed if  the election petitioner  does   not  appear  to  prosecute  the  election petition.      In many  cases  it  has  been  held  that  an  election petition can  be dismissed  for default. A full Bench of the Punjab High Court in Jugal Kishore v. Dr Baldev Prakash. had occasion  to   consider  this   question  when   Grover,  J. delivering the judgment of the Court spoke thus:           "It has  been repeatedly  said  that  an  election      petition once  filed is  not a contest only between the      parties thereto  but continues  for the  benefit of the      whole constituency.  It is for that purpose that in the      Representation of the People Act, 1951, provisions have      been  made   in  sections   109  and  110  relating  to      withdrawal of an election petition and sections 112 and      116 relating to abatement of such a petition the effect      of which  is that the petition cannot come to an end by      the withdrawal  there of by the death of the petitioner      or by  the death  or withdrawal  of opposition  by  the      respondent, but is liable in such cases to be continued      by any  person who  might have been a petitioner. There      is nothing  in the  entire Act  providing or indicating      that a similar procedure is to be followed in the event      of a petitioner failing to prosecute the petition. such      failure can  be due  to various  causes. The petitioner      can, by  force of  circumstances, be genuinely rendered      helpless to  prosecute the  petition. For  instance, he      may find  that his  financial  condition  has  suddenly      worsened and  that he can no longer afford the expenses      of litigation.  He may  even, owing  to  exigencies  of      business or vocation or 703      profession, have to go to such a distant place from the      seat of  the High  Court where the election petition is      being tried that he may find it impossible to prosecute      the petition  in a  proper manner.  There would  be two      courses open  to him  and that  will depend entirely on      his volition.  He can  either file  an application  for      withdrawal of the petition disclosing the circumstances      which have brought about such a situation in which case      there would be no difficulty in following the procedure      laid down in sections 109 and 110 of the Act, or he may      choose to simply absent himself from the Court or cease      to give  any instructions to the counsel engaged by him      or fail  to deposit  the process-fee and the diet money      for witnesses or take the necessary steps for summoning      the witnesses  in which  case the  Court will  have  no      option but  to dismiss  the election petition under the      provisions of  the Code  of Civil Procedure which would

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    be applicable  to the election petitions in the absence      of any  express provisions  in the  Act. The  dismissal      will have to be under the provisions contained in Order      9 or  Order 17  of the  Code...It is  quite clear  that      there is  no distinct  provision in the Act laying down      any particular  or special  procedure which  is  to  be      followed when  the petitioner chooses to commit default      either in  appearance or  in production  of evidence or      generally in  prosecuting the  petition. The provisions      of the  Code of  Civil Procedure  would, therefore,  be      applicable under section 87 of the Act. I am further of      the opinion  that any  argument which  could be pressed      and was  adopted for saying that the inherent powers of      the Court  could not be exercised in such circumstances      would be  of no  avail now as the High Court is a Court      of Record  and possesses  all the  inherent powers of a      Court while trying election petitions." It is  relevant to note the observations of Hidayatullah, CJ in Sunderlal  Mannalal v. Nandramdas Dwarkadas & Ors.. where he indicated:           "Now the Act does not give any power of dismissal.      But it  is axiomatic  that  no  Court  or  tribunal  is      supposed to  continue a  proceeding before  it when the      party who  has moved  it has  not appeared nor cared to      remain 704      present. The dismissal, therefore, is an inherent power      which every tribunal possesses......."      Similar view  has been  expressed by another Full Bench of the Allahabad High Court in Duryodhan v. Sitaram & Ors. A four Judge  Bench of this Court in Rajendra Kumari Bajpai v. Ram Adhar  Yadav &  Ors. referred  to the Punjab case. Fazal Ali, J.  speaking on behalf of the Court quoted a portion of the judgment  of Grover,  J. which  we have  cited above and said:           "We fully approve of the line of reasoning adopted      by the High Court in that case." It, therefore,  follows  that  the  Code  is  applicable  in disposing  of   an  election   petition  when  the  election petitioner does  not appear  or take  steps to prosecute the election petition.  Dismissal of  an election  petition  for default of appearance of the petitioner under the provisions of either  Order  IX  or  Order  XVII  of  the  Code  would, therefore, be  valid and  would not  be open to challenge on the ground  that these provisions providing for dismissal of the election petition for default do not apply.      The appellant  was not  the election  petitioner. Order IX, rule  9 of  the Code (and not rule 13 relied upon by the appellant) would  be the  relevant provision for restoration of  an   election  petition.  That  can  be  invoked  in  an appropriate case  by the election petitioner only and not by a respondent.  By its  own language,  rule 9  provides  that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall  be precluded from bringing a fresh suit but he may  apply for an order to set the dismissal aside. Under this rule,  therefore, an application for restoration can be made only  by the  petitioner. Since  it is  a provision for restoration, it  is logical  that the  provision  should  be applicable only  when the  party on account of whose default in  appearance   the  petition   was  dismissed   makes   an application to revive the petition to its former stage prior to dismissal.  In the  instant case  the election petitioner and not respondent 19 who is in appeal before us, could have asked for the relief of restoration. The appellant contended that the  statutory scheme  authorises an  elector at  whose

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instance an  election petition  could have been filed to get substituted in the event 705 of withdrawal  or abatement  and applying  that analogy,  he urged that  a petition for restoration would also lie at the instance of  a  respondent.  The  ambit  of  the  provisions relating to  withdrawal and  abatement cannot be extended to meet other situations. Specific provisions have been made in the Act  to deal  with the  two  situations  withdrawal  and abatement and  a person  hitherto not  a party or one of the respondents who  was entitled  to file  an election petition has been  permitted to  substitute himself  in the  election petition and  to pursue  the same  in accordance  with  law. These provisions  cannot be extended to an application under order IX,  rule 9  of the  Code and  at the  instance  of  a respondent  or   any  other  elector  a  dismissed  election petition cannot be restored.      The fallacy  in the  logic advanced by the appellant in this behalf  is  manifest  when  we  refer  to  a  suit  for partition. In  a suit  for partition  the  position  of  the plaintiff and  that of  the defendant is interchangeable. So long as the suit is pending a defendant can ask the Court to transpose him  as a  plaintiff and  a plaintiff can also ask for being  transposed as  a defendant.  The  possibility  of transposition during  the pendency  of the  suit  would  not permit a  defendant to  apply for  restoration of a suit for partition which  is dismissed  for default  and the right to apply for  transposition would certainly come to an end when the suit  is no  more alive. In our opinion the respondent’s position in  an election  petition would  not be higher than that. We  therefore, conclude  that an  election petition is liable to  be dismissed for default in situations covered by Order IX,  or Order XVII of the Code and for its restoration an application  under rule  9, Order IX of the Code would be maintainable but  such application  for restoration  can  be filed only  by  the  election  petitioner  and  not  by  any respondent.      This Court  in Dhoom  Singh v.  Prakash Chandra Sethi & Ors., held:           "The legislature  in its wisdom has chosen to make      special provisions  for the continuance of the election      petition only  in case  of its withdrawal or abatement.      It has  yet not thought it fit to make any provision in      the Act  permitting intervention  of an  elector of the      constituency in  all contingencies  of failures  of the      election petition  either due to the collusion or fraud      of the original 706      election petitioner  or otherwise.  It is not necessary      for this Court to express any opinion as to whether the      omission to  do so is deliberate or inadvertent. It may      be a  case of casus omissus. It is a well-known rule of      construction of  statutes that  "A statute,  even  more      than a contract, must be construed, ut res magis valeat      quam pereat,  so that the intentions of the legislature      may not  be treated  as vain  or left to operate in the      air". A  second consequent  of this  rule  is  that  "a      statute may  not be  extended to  meet a case for which      provision has  clearly and  undoubtedly not  been made"      (see Craies on Statute Law).           It seems  plain that the High Court is enjoined to      dismiss an election petition which does not comply with      the provisions  of section  81 or section 82 or section      117 of  the Act.  In the  true cases  of non-compliance      with  the   said  provisions   of  law  a  question  of

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    intervention by another person may not arise. But there      may be a case, as the instant one was alleged to be (we      are expressing  no opinion  of ours in this regard even      by any  implication whether  this was so or not), where      as a  result of  the fraud  or  collusion  between  the      election petitioner and the returned candidate the High      Court is  fraudulently misled  to act  under section 86      (1). Even  in such  a situation we find no provision in      the Act  under which  the High  Court  could  permit  a      person like the appellant to intervene in the matter or      to substantiate  his allegations  of fraud or collusion      between  the   election  petitioner  and  the  returned      candidate. It  is difficult  to press  into service the      general  principles   of  law   governing  an  election      petition as  was sought  to be  done on  behalf of  the      appellant for  his intervention in the matter. If there      be any  necessity of avoiding any such situation as the      present one was said to be it is for the legislature to      intervene and  make clear  and express provision of law      for the purpose."      The ratio  of this decision as also the observations in Basappa’s case, the appellant contends, are wrong in view of the earlier  decisions of this Court taking the view that an election dispute involves the entire constituency because of the paramount necessity of having purity of an election in a democracy safeguarded.  We  do  not  think  the  appellant’s contention can be accepted The earlier 707 decisions of  this Court  do not in any way militate against the view  taken  in  Dhoom  Singh’s  case  (supra)  and  the observations made in Basappa’s case (supra). Those decisions were not  concerned with  the  question  as  to  whether  an election  petition   can  be   dismissed  for  default.  The concensus of  judicial opinion in this Court has always been that the  law in  regard to  elections has  to  be  strictly applied and  to the  extent provision has not been made, the Code would  be applicable. About eight years back this Court had occasion  to point  out that  if the  intention  of  the legislature was  that a  case of  this type  should also  be covered by special provision, this intention was not carried out and  there was  a lacuna  in the  Act. We find that even earlier in  Shcodhan Singh  v. Mohan  Lal Gautam, this Court had stated:           "From the  above provisions  it is seen that in an      election petition,  the contest  is really  between the      constituency on  the one side and the person or persons      complained of  on the  other. Once the machinery of the      Act is moved by a candidate or an elector, the carriage      of the case does not entirely rest with the petitioner.      The reason  for the  elaborate provisions noticed by us      earlier is  to ensure  to the  extent possible that the      persons who  offend the election law are not allowed to      avoid the consequences of their misdeeds."                                        (underlining is ours)      We must assume that the legislature takes notice of the decisions of  this Court  and if it was of the view that its true intention  had not  been carried  out or  that a lacuna remained in  the statute it could have removed the lacuna by amending the  Act making  its intention  clear and manifest, particularly when  many amendments  have  subsequently  been made.  The  fact  that  nothing  has  been  done  leaves  an impression in  our mind  that this Court had not misread the situation. At  any rate  it is  not for the Court to fill up any lacuna  in the  legislation and  as the  law stands, the appellant has  no right  to contend  that the  view taken by

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this Court  is  not  tenable  in  law.  We  may  recall  the observation of Lord Denning in Seaford Estates v. Asher; 708           "A judge  must not alter the material of which the      Act is  woven, but  he can  and  should  iron  out  the      creases."      All the  three contentions  advanced on  behalf of  the appellant fail.  We have  already taken the view that at the instance of  the appellant  the application  for restoration was  not  maintainable.  Therefore,  the  appeal  cannot  be allowed and  we cannot  direct restoration  of the  election petition. Accordingly  the appeal fails and is dismissed and the order  of the  High Court  is confirmed.  We  leave  the parties to bear their respective costs. N.V.K.                                     Appeal dismissed. 709