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PETITIONER: HUKUMDEV NARAIN YADAV

       Vs.

RESPONDENT: LALIT NARAIN MISHRA

DATE OF JUDGMENT21/12/1973

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN DWIVEDI, S.N. GOSWAMI, P.K.

CITATION:  1974 AIR  480            1974 SCR  (3)  31  1973 SCC  (2) 133

ACT: Representation  of  the People Act (43 of 1951) Ss.  81  and 86--Presentation  of  election  petition  beyond  prescribed period   of limitation--Whether court has power  to  condone delay. Limitation  Act, (36 of 1963), Ss. 4, 5 and 29  (2)  Whether delay  in filing election petition can be condoned under  s. 5--Applicability of section to election  petitions--Saturday last  day  of limitation--Filing on next  Monday--If  within limitation.

HEADNOTE: Under s. 80A of the Representation of the People Act.  1951, the  High  Court  is  given  jurisdiction  to  try  election petitions.  Section 81 Prescribes the period of 45 days from the  date  of the election of a returned candid-ate  as  the period within which an election petition calling in question any  election on one or more of the grounds specified in  s. 100 (1) or s. 101 has to be presented.  If the provisions of s  of S. 81 are not complied with, s. 86 requires  that  the High Court shall dismiss the petition.  Rules 6 and 7 of the Election Rules framed by the Patna High Court provided,  (i) that  the  petition must, first, be presented to  the  stamp Reporter  (ii)  The Stamp Reporter has  to  certify  thereon whether   it  is  in  time  and  in  conformity   with   the requirements  of the Act and the rules in that behalf or  is defective;  (iii)  the petition should be  returned  to  the petitioner  for removing the defects if any and  for  formal presentation  to the judge in open Court after removing  the defects; (iv)if the judge who is designated to entertain and try  election  petitions  is absent the  petition  shall  be presented  before the Bench hearing civil  applications  and motions;  and (v) the date of presentation before the  Judge or Bench, as the case may be, shall be deemed to be the date of  the  filing  of the election petition  for  purposes  of limitation. In  the  present case, the election petition  was  filed  on Monday  instead  of on the previous Saturday which  was  the last  day  of limitation, and the High Court  dismissed  the petition as time-barred. In appeal to this Court, on the questions: (1) Is the  Court

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closed  on  Saturday because Judges do not sit, and  (2)  by virtue  of  s. 29 (2) Of the Limitation Act, 1963.  are  the provisions  of  ss.  4  to 24 and especially  s.  5  of  the Limitation  Act applicable to election petitions,  so  that, the  petitioner could show sufficient cause for  not  filing the petition within time, HELD:     (1)  (a) Under s. 4 of the Limitation Act,  it  is Provided  that  where tile prescribed period for  any  suit, appeal  or  aPPlication expires on a day when the  court  is closed,  the suit, appeal or application may be  instituted, preferred  or made on the day when the court reopens.   Even if  s.  4 of the Limitation Act does not apply  to  election petitions  s.  10 of the General Clauses  Act,  1897,  would certainly  apply  to  election petitions.   Under  both  the provisions where the prescribed period of limitation expires on  a  day when the Court is closed the  petition  could  be filed on a day when the court next reopens.  But a court  is not  closed notwithstanding the fact that judges do not  sit on any day if otherwise the court is open on that-day. [34H; 35C-F] H.  H. Raja Harinder Singh v. S. Karnil Singh [1957] S.C.R., 208, Lachmeshwar Prasad Shakul v. Girdhari Lal Chaudhury, I. L. R. 19 Pat. 123, Nachiyappa Mudali and others v.  Ayyasami Ayyar  1. L. R. (1882) 5 Mad, 189 at 192, In re  Thokkudubi- vyanu  Immaniyelu and Others, (1948) 1 M. L. J.  49,  Dwarka prasad and another V.Union of India, A. 1. R. 1954 Pat.  384 and  Sajjan  Singh and another v. Bhogilal pandya A.  1.  R. 1958 Raj. 307, referred to. (b)  Rules 6 and 7 of the Elections Rules of the Patna  High Court should be read subject to r. 24 of the same Rules; and so read, in so far as they are not inconsistent wit with the election  rules,  the  Patna High Court  Rules  shall  apply mutatis mutandis 32 to all election petitions.  Rules 26 of the Patna High Court Rules  provides  for the presentation of the  memorandum  of appeal  or  application to the Registrar when  no  Bench  is sitting, and after certification by him for presentation  to a  Bench  on the next subsequent day on which the  Bench  is sitting.   Rule 26 applies to an election petition also  and is not inconsistent with r. 7, Election Rules.  Rule 7  does not provide for a contingency where a Judge or Bench is  not sitting on a day when the court is not closed.  The practice of  the  High Court is that Judges do not sit  for  judicial work  on Saturdays and there are no Benches sitting on  that day and consequently any provision made to deal with such  a contingency  could not be said to be inconsistent  with  the Election  Rules.  That contingency is provided for by r.  26 of  the High Court Rules.  Further, it would be  incongruous that  a  Court  is  open on  Saturday  for  presentation  of appeals, applications, plaints or decrees etc. mentioned  in r.  13  of the High Court Rules even though Judges  are  not sitting on that day, but the Court is closed on the same day for presentation of election petitions.  Therefore,  reading rr.  6  and 7 of the Election Rules with r. 26 of  the  High Court Rules there is no doubt that an election petition  can be presented, on the last day of the limitation even  though the  Judges  are  not sitting to  receive  or  entertain  an election  petition, to the Registrar or, in his absence,  to the other officers specified in r.26. [38H-39D] (2)  (a)  Section  29  (2)  of  the  Limitation  Act,  1963, provides that the provisions contained in Ss. 4 to 24  shall apply  in so far as and to the extent to which they arc  not expressly excluded by such special or local law.  The  words ’expressly  excluded’  could  not mean that  there  must  be

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express  reference made in the special or local law  to  the specific  provisions  of  the Limitation Act  of  which  the operation  is  to be excluded. if on an examination  of  the relevant  provisions it is clear that the provisions to  the Limitation  Act are necessarily excluded then  the  benefits conferred  therein could not be called in aid to  supplement the provisions of the Special Act.  Even in a case where the special law does not exclude the provisions of s. 4 to 24 of the  Limitation  Act  by  an  express  reference  it  would, nonetheless  be open to the Court to examine whether and  to what extent the nature of those provisions or the nature  of the  subject matter and schemes of the special  law  exclude their operation.[44C-F] (b)  Section  86  of the Representation of the  People  Act, which is a special law, gives a peremptory command that  the High Court shall dismiss an election petition which does not Comply with the provisions to sections 81, 82 or 117. (e)  If  the  Limitation Act were to apply  to  an  election petition which does not comply     with  s.  81,  it  should equally apply for non-compliance with Ss. 82 and 117. But in Charan  Lal Sahu v. Nandkishore Bhatt and Others,  [1973]  2 S.C.C. 530, it was held that the Court had no discretion  to condone  the delay in non-compliance with the provisions  of Ss.  82 and 117.  If for non-compliance with the  provisions of  Ss.  82  and  117, which  are  mandatory,  the  election petition   has  to  be  dismissed  under  s.  86  (1),   the presentation  of  an  election petition  within  the  period prescribed  in  s. 81 would be equally  mandatory  requiring dismissal of the petition for noncompliance with it. [44G] (d)  On  the terms of s. 29 (2) of the Limitation  Act,  the applicability of Ss. 4 to 24 of the Limitation Act has to be judged  not from the terms of the Limitation Act but by  the provisions of the Representation of the People Act  relating to  the  filing  of  election  petition  and  their   trial. Sections  6  to 24 of the Limitation Act are  not  expressly excluded, but they cannot on that account be made applicable to  proceedings under the Representation of the People  Act, because,  they are, in terms inapplicable.   Therefore,  the Representation  of  the  People Act is a  complete  code  in itself which does not admit of the application of any of the provisions  of the Limitation Act mentioned in s. 29 (2)  of that Act, including s. 5, [45D] (e)  Under s. 86 (5) of the Representation of the People Act the High Court may allow the amendment of the particulars of any  corrupt practice alleged in the petition but  the  High Court  shall not allow any amendment to the  petition  which will have the effect of introducing particulars of a corrupt practice  not previously alleged in the petition.   This  is not  permitted  because it would amount to  a  new  petition being filed after the period of limitation, indicating  that s. 5 of the Limitation Act cannot be attracted. [46G] 33 (f)  It  is also significant that the delay in  presentation of  the election petition under the repealed s. 81 could  be condoned  by the Election Commission in its discretion;  but when the Act was amended in 1966 and jurisdiction was  given to  the  High  Court  to  entertain  and  try  the  election petitions  a similar provisions for condoning delay was  not enacted, showing Parliament’s intention not to confer such a power.   The whole object of the amendment was to provide  a procedure  for  more expeditious disposal  of  the  election disputes by the High Court. [47A] Therefore,  the provisions of s. 5 of the Limitation Act  do not  govern  the  filing of an election  petition  or  their trial. [49D]

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K.Venkateswara  Rao  and Anr. v. Bekkam  Narasimha  Reddi  & Ors.,  [1969].1  S.C.R. 679, N. P. Ponnuswami  v.  Returning Officer Namakkal Constituency and others, [1952] S.C.R.  218 and Krishan Chander v. Ram Lal [1973] 2 S.C.C. 759, referred to. [It  is  true  that  if  the  election  petitions  are  thus dismissed the allegations of serious corrupt practice  could not be enquired into and the purity of the elections  cannot be maintained but that however is a matter which can be  set right only by the legislature.]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 870 of 1973. From the Judgment and Order dated the 26th March 1973 of the Patna High Court in Election Petition No. 1 of 1972. J.   P.  Goyal, Pranab Chatterjee, Santokh Singh and  V.  C. Parashar, for the appellant. S.   V.  Gupte, S. N. Misra, C. M. Oberoi, D. Goburdhan,  K. P. Verma, U.   P. Singh, Virendra Prasad Sinha, D. N. Misra, J.  B. Dadachanji" Ravinder Narain, O. C. Mathur and  J.  B. Jadachanji & Co., for the respondent. The Judgment of the Court was delivered by JAGANMOHAN  REDDY, J.-In the bye-election to the  Lok  Sabha from  Darbhanga Parliamentary Constituency held  on  January 30, 1972, the respondent Lalit Narain Mishra-a candidate  of the  Indian  National  Congress-  was  declared  elected  on February  2, 1972, by a. margin of 91,078 votes against  his rival  Ramsewak Yadava candidate of the Socialist  Party  at that   election.    The  appellant  an   elector   in   that constituency presented an election petition on Monday, March 20, 1972, instead of on Saturday.  March 18, 1972, which was the  last  day of limitation.  The  petition,  however,  was dismissed  by the High Court as being time-barred.   Against that judgment and order this appeal has been filed under  s. 116-A  of  the  Representation  of  the  People  Act,   1951 (hereinafter referred to as ’the Act’). It may be mentioned that s. 80-A was added to the Act by the Amendment  Act  47 of 1966, whereunder the  High  Court  was given   .jurisdiction  to  try  election  petitions.    This jurisdiction  has  to be exercised ordinarily  by  a  Single Judge of that Court and the Chief Justice could from time to time assign one or more Judges for that purpose.  Section 81 prescribes  the  period  of 45 days from the  date   of  the election  of a returned candidate within which  an  election petition  calling  in question any election on one  or  more grounds specified in sub-s. (1) of s. 100 and s. 101 has  to be presented to the High Court.  If the provisions of s.  81 are not complied with, s. 86 requires that the 34 High  Court shall dismiss the petition.  There is  no  doubt that  election  petition  in this case  has  been  presented beyond  the  period  of 45 days and has  necessarily  to  be dismissed. What  we have to consider, however, is that  whether  having regard  to the requirements of Tr. 6 and 7 of the Rules  for the Disposal of Election Petitions framed by the Patna  High Court,  an election petition should only be filed  before  a Judge of the High Court sitting in open Court, and it  could not  be filed on a Saturday when the Judges do not  sit  and hence the filing of that petition on Monday, March 20, 1972, Sunday being a holiday, is in time.  Even if it be held that the filing of the petition was beyond the time prescribed in s.  81,  it  has  further  to  lie  considered  whether  the

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provisions  of  s. 5 of the Limitation Act 36  of  1963  are applicable to such petitions and whether the petitioner  has shown  sufficient cause in the petition which has  now  been filed before this Court for not filing the petition in  time to  enable  the  Court  to admit  it  after  the  prescribed period.. Three questions which require determination are-                Is  the  Court closed on Saturday,  when  the               Judges do not sit (1)     for   the   purposes               either of s. 10 of the General Clauses Act, or               s. 4 of the Limitation Act?               (2)   By virtue of s. 29(2) of the  Limitation               Act, are the provisions of ss. 4 to 24 of  the               said Act applicable to election petitions?               (3)   If they are, and s. 5 of the  Limitation               Act  is applicable, do the facts of  the  case               warrant condonation of delay? On the question whether the petitioner could have filed  the petition on Saturday, March 18, 1972, what has to be seen is whether  the  Court  can be said to  be  closed  within  the meaning.  of either s. 4 of the Limitation Act, 1962, or  s. 10 of the General Clauses Act, 1897, because under both  the provisions where the prescribed period of limitation expires on  a  day when the Court is closed the  petition  could  be filed  on a day when the Court re-opens.   Where,  however,. the provisions of the, Limitation Act apply, the proviso  to s.  10(1)  of the General Clauses Act in  terms  makes  that provision itself inapplicable.  Under s. 4 of the Limitation Act it is provided that where the prescribed period for  any suit  appeal or application expires on a day when the  Court is  closed the suit appeal or application may be  instituted preferred  or made on the day when the Court re-opens.   The Explanation  thereof states that a Court shall be deemed  to be  closed on any day within the meaning of that section  if during  any  part  of its normal working  hours  it  remains closed on that day.  It was sought to be contended that even if  the limitation Act applies s. 4 would not apply  because an election petition is neither a suit, nor an appeal nor an application, notwithstanding the definition of "application" contained  in s. 2(b) of the Limitation Act as  including  a petition.   It  is, in our view unnecessary to  examine  the submission  in  this  context because even if s.  4  of  the Limitation Act does not apply, S. 10 of the General  Clauses Act will certainly apply to election petit-ions to be  filed under 35 the Act as held by this Court in H.H. Raja Harinder Singh v. S. Karnail Singh(1).  In that case an election petition  had to be filed under r. 119(a) ’of the Election Rules not later than  fourteen  days  from the  terminus  a  quo  prescribed therein,  but  as the day on which it could be filed  was  a Sunday  be filed it on the next day.  The contention of  the Solicitor-General was that s. 10 of the General Clauses  Act "can apply on its own terms only when the act in question is to  be  done  "within a prescribed period",  that  under  r. 119(a)  of the Election Rules the petition has to  be  filed "not later than" fourteen days, that the two expressions  do not  mean the same thing, the words of the Rule  being  more peremptory,  and-  that  accordingly s. 10  of  the  General Clauses Act cannot be invoked in aid of a petition presented under r. 119, later than fourteen days".  This argument  was rejected  as  being erroneous because "Broadly  stated,  the object  of the section is, to enable a person to do what  he could  have  done  on a holiday, on the  next  working  day. Where, therefore, a period is prescribed for the performance

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of an act in a Court or office, and that period expires on a holiday,  then  according to the section the act  should  be considered  to have been done within that period, if  it  is done  on the next day on which the Court or office is  open. For that section to apply, therefore, all that is  requisite is that there should be a period prescribed, and that period should  expire  on  a holiday." Of course s.  10(1)  of  the General Clauses Act does not speak of a holiday, but  refers to  the Court or office being closed on the last day of  the prescribed period to enable a party to do an act or take any proceedings on ascertain day or within a prescribed  period, as  the next day on which the Court or office is  open.   If the  Court is closed on the day when limitation expired,  s. 10(1)  of the General Clauses Act enables the filing on  the next working day of the Court.  But is the Court closed on a Saturday when the Judges do not sit though the office of the High Court is open? A  long  course of decisions have held that a Court  is  not closed  notwithstanding the fact that Judges do not  sit  on any  day  if  otherwise  the Court  is  open  on  that  day. Harries,  C.J.,  during  the  course  of  the  arguments  in Lachmeshwar  Prasad  Shukul  v.  Girdhari  Lal  Chaudhuri(2) observed that "Saturday" is a court day although the  Judges are not sitting on that day.  The learned Chief Justice  and Fazl  Ali,  J., as he then was, (Agarwala,  J.,  dissenting) went to the extent of holding that even in the vacations the Court  is  not closed and money can be  deposited.   Turner, C.J., speaking for himself, Kernan, Kindersley and Muttusami Ayyar,  JJ., (Innes, J., dissenting) observed in  Nachiyappa Mudali  and  others  v.  Ayyasami  Ayyar(3).  "The  Judicial sittings  of the Court may be adjourned; but the offices  of the  Court  may still remain open for  the  presentation  of pleading,-.. The Court may be open for this purpose although the  Judge  is not engaged in judicial functions or  is  not present  in the Court-house or in the place where the  Court is  held."  A  Bench  of the Madras High  Court  in  In  re. Thokkudubiyyanu  Immaniyelu  and  OtherS(4)  dealt  with   a similar  practice which is followed by all High  Courts  and this. (1)  [1957] S.C.R. 208 (3)  I.L.R. (1882) 5 Mad. 189 at 192. (2)  I.L.R. 19 Pat. 123. (4)  (1948) I. M. L. J. 49. 36 Court  for the summer vacation when the Courts  close.   The notifications  in respect thereof specify a  period  between Monday  to Friday both days inclusive as the vacation.   The Court  reopens on a Saturday, but judicial work starts  only on the following Monday.  It was held that the first day  of the  Court  was a Saturday which was the day  for  receiving papers  though the Judges actually sat for judicial work  on Monday,  as  such an application, for which  the  prescribed period  of limitation expired on Saturday the 5th  when  the Court was open and was not filed on that day, but on  Monday the 7th, was held to be barred.  See also Dwarka Prasad  and another v. Union of India(1) and Sajjansingh and another  v. Bhogilal Pandya & Anr.(2). It is, however, contended that having regard to rr. 6 and  7 of  the  Election Rules made by the Patna High  Court  under which an election petition has to be presented to a Judge or a Bench sitting ill open Court, and since Judges do not  sit on  a  Saturday there is no Court on that day  to  which  an election petition could be presented.  We have to deal  with this aspect. At  one stage the power of the High Court to  make  election

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rules  was  canvassed, but ultimately the  validity  of  the Election  Rules  as such was not seriously  challenged,  and hence  it  is not necessary for us to express our  views  in this  regard.   Even on the assumption that the  High  Court could  make the Election Rules and they are valid, do rr.  6 and  7 of those Rules warrant the submission that the  Court is closed on the day when the Judges do not sit, though  the office  of  the  High Court is open?  Rules 6  &  7  of  the Election Rules are as follows :               "6. Subject always to the orders of the Judge,               before  a formal presentation of the  election               petition  is made to the Judge in open  Court,               it shall be presented to the Stamp Reporter of               the Court, who shall certify thereon if it  is               in   time   and   in   conformity   with   the               requirements of the Act, and the rules in this               behalf,  or is defective and shall  thereafter               return  the  petition to  the  petitioner  for               making the formal presentation after  removing               the defects if any;               Provided that if on any Court day the Judge is               not available on account of temporary  absence               or  otherwise, the petition may  be  presented               before  the Bench hearing  Civil  applications               and motions."               "7. (1) The date of presentation to the  Judge               or  the Bench as mentioned in the  proviso  to               rule  6 shall be deemed to be the date of  the               filing  of  the  election  petition  for   the               purposes of limitation.               "(2)  Immediately after it is  presented,  the               petition   shall  be  entered  in  a   special               register  maintained for the  registration  of               election petitions."               (1)   A.I.R. 1954 Pat. 384.               (2) A.I.R. 1958 Raj. 307. 37 A  reading  of  the  above rules  would  show  that-(1)  the petition must first be presented to the Stamp Reporter;  (2) the  Stamp Reporter has to certify thereon whether it is  in time and in conformity with the requirements of the Act  and the rules in that behalf or is defective; and thereafter (3) the  petition  shall be returned to the petitioner  for  re- moving  defects  if any, and for formal  presentation  after removing the defects; (4) if the Judge who is designated  to entertain and try election petitions is absent, the petition shall   be   presented  before  the  Bench   hearing   Civil applications  and motions; and (5) the date of  presentation before  the Judge or Bench, as the case may be, as  provided in  the proviso to r. (6) shall be deemed to be the date  of filing the election petition for the purposes of limitation. It  would  appear  from the above that the  date  of  formal presentation to the Judge or the Bench, as the case may  be, is.  the  actual date of filing the petition.  what  happens when on the last day of the expiry of limitation for  filing the  petition,  though  a  working day  for  the  Court,  if peradventure  none  of the Judges sit?  Though  in  a  Court which  has  a number of Judges, such a contingency  may  not occur, but in a High Court which consists of only one  Judge such  as is envisaged in the proviso to s. 80-A of  the  Act and  that  High Court has rules similar to rr. 6 and  7,  it would,  if we accept the contention of the learned  Advocate for the appellant, create an anomaly when the only Judge  of the High Court is absent due to illness or some other  cause and  the petition cannot be presented even though the  Court

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has  not been closed.  The appellant in these  circumstances would  have  us  say that the Court  is  closed.   But  this contention  has no validity, because as is submitted by  the learned Advocate for the respondent that rr. 6 and 7 of  the Election Rules should be read subject to r. 24 of ’the  same Rules and if so read, the Patna High Court Rules, in so  far as  they are not inconsistent with the said Election  Rules, shall  apply mutatis mutandis to all election petitions.   A reference  to  r. 26 of Chapter VII Part II of  these  Rules which regulate.the procedure and practice before  admission, would  show  what  provision has been made  in  cases  where appeals or applications have to be presented to a Bench  and no Bench is sitting on the day when the limitation is due to expire.  Rule 26 provides:               "On any Court day on which no Bench is or  has               been  sitting,  any memorandum  of  appeal  or               application which might be barred by time  and                             which  is entertainable only by a Benc h may  be               presented to the Registrar, or, in his absence               from   Court  on  that  day  to   the   Deputy               Registrar,   or  in  their  absence   to   the               Assistant Registrar, who shall certify thereon               that such memorandum of appeal or  application               was on that day presented to him               "Provided always that no such presentation  to               the Registrar, Deputy Registrar, or  Assistant               Registrar, shall be of any effect, unless such               memorandum   of  appeal  or   application   be               presented  to a Bench on the  next  subsequent               day on which a Bench is sitting 38 It  was, however, contended by the learned Advocate for  the appellant,  though  on a farther consideration  he  did  not think that he could sustain it, that r.26 makes a  reference to an application and not to a petition : as such that  rule is  in applicable to an election petition Since it has  been raised,  we  can  only say that such an  argument  would  be misconcieved because r. 1 of Chapter III Part 11 states that every  application to the High Court shall be by a  petition written in the English language, rr. 2 to 10 further require what the petition should state, that it should be  verified, how  it  should be entitled, what it should  be  accompained with etc.  By these rules which have been made applicable to election  petitions by r. 2 of the Election Rules,  whenever an application has to be made to a High Court, it should  be made  by  a petition, so that there is no  warrant  for  the submission  that  r. 26 does not deal with a  petition,  but only with an application. It is further submitted that r. 26 has no application as  it is inconsistent with r. 7 because under the latter rule  the date  of presentation to a Judge or a Bench is deemed to  be the  date  of the filing of the election  petition  for  the purpose   of  limitation,  but  r.  26  provides   for   the presentation  to the Registrar etc. and after  certification it is to be presented to a Bench on. the next subsequent day on  which  the  Bench is sitting.  If that is  the  day  for limitation,  the learned advocate submits then no other  day on which it is not presented to a Judge can be considered to be  the day for limitation.  If so, the presentation  before the Registrar would be inconsistent with the requirements of r.  7. In our view, there is nothing inconsistent in  rr.  6 and  7  of the election Rules and r. 26 of  the  Patna  High Court  Rules,  because  r.  7(1)  does  not  provide  for  a situation  where  the  Judges  do not  sit  and  the  period

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prescribed is deemed to expire on that day.  It may be  that the presentation to the Jadge will be the date of filing for the  purposes  of  limitation, but that does  not  excuse  a different procedure for filing in a case where limitation is about  to  expire,  when the conditions  prescribed  in  the proviso  to  r. 6 of the Election Rules cannot  be  complied with.  If r. 7(1) of the Election Rules had stated that  the date of presentation to the Judge shall be deemed to be  the date of the filing of the election petition for the  purpose of determining whether the petition is barred by time,  then such a provision could be said to be inconsistent with r. 26 of  the  High Court Rules.  But that is not the  case  here. What r. 7(1) provides if that the date of presentation to  a Judge  or a Bench as mentioned in the proviso to r. 6  which contemplates the presentation of. a petition before a  Bench hearing Civil applications and motions on a court day,  when a Judge is not available on account of temporary absence  or otherwise, but it does not provide for a contingency where a Judge or a Bench sitting on any other day when the Court  is not closed.  That contingency is provided for by r. 26.   In our  view, there is nothing inconsistent in rr. 6 and  7  of the Election Rules and r. 26 of the High Court Rules.  If as the practice of the High Court is that Judges do not sit for judicial work on a Saturday, there are no Benches sitting on that  day and consequently any provision made to  deal  with such a contingency could not be said to be inconsistent with the  Election Rules.  This conclusion is further  reinforced by  a reference to r. 13 of Chapter 11 part I of  the  Patna High Court Rules whereun- 39 der  the  Registrar  has power to receive  an  appeal  under clause  10 of the Latters Patent, to receive an  application for  probate or Latters of Administration or for  revocation of  the  same  and to issue notices thereon,  to  receive  a plaint  or  an  appeal  from  the  decree  or  order  of   a Subordinate  Civil  Court  etc.  Rule 27  provides  for  the contigency  when the Registrar is absent on the last day  of limitation  when  such documents have to  be  filed.   These Rules  are consistent with the postulate that the  Court  is not in fact closed on a Saturday even though the Judges  may riot sit on that day.  It would, in our view be  incongruous that  a  Court  is  open on  Saturday  for  presentation  of appeals, applications,  plaints or decrees etc.mentioned  in r.13  of part I of Chapter ll referred to above even  though the  Judges are not sitting on that day, and yet  closed  on that same day for presentation of election petition.  In our view,  therefore, reading rr. 6 and 7 with r. 26, there  can be  no  manner  of doubt that an election  petition  can  be presented on the last day of limitation even when the Judges are not sitting to receive or entertain an election petition to  the  Registrar or in his absence to the  other  officers specified  in  r.26. Infact the Patna High Court had,  on  a similar point, held nearly seven years ago in Md.  Gwais and others v. Phul Bibi and others, (1) a copy of which has been placed  before us, that where under r. 13 Part  11,  Chapter VII,  it  is provided that application for  review  must  be presented  by  way of notice in open court to the  Bench  of whose  judgment a review is sought, it could be filed  on  a Saturday  if it is the last day of limitation.  An  argument similar  to that addressed by the learned Advocate  for  the appellant  was  rejected on the ground that Saturday  was  a working  day and that r.26 clearly refers to a  Saturday  on which no Benches sit. Now  that we have held that the Court is not closed and  the petition  could  have  been presented to  the  Registrar  on

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Saturday,  March 18, 1972, the question would be, does s.  5 of the Limitation Act apply to enable the petitioner to show sufficient  cause  for  not filing it on  the  last  day  of limitation, but on a subsequent day?  Whether s.5 is  appli- cable  to  election petitions filed under s. 81 of  the  Act will  depend  upon the terms of s. 29(2) of  the  Limitation Act.  Whether s. 5 could be invoked would also depend on the applicability  of sub-s. (2) of s. 29 of the Limitation  Act to  election  petitions.   Under this  sub-section  where  a special  or  local  law provides for  any  suit,  appeal  or application  a period different from the  period  prescribed therefor  by the Schedule, the provisions specified  therein will apply only in so far as and to the extent to which they are  not  expressly excluded by such special or  local  law. Under  s. 29(2) of the Limitation Act of 1908 as amended  in 1922,  only s. 4, ss. 9 to 18 and s. 22 of that Act  applied ordinarily useless excluded by a special or local law.  Thus unless  s. 5 was made applicable by or under  any  enactment the discretion of the Court to extend time thereunder  would not be available.  Similarly ss. 6 to 8 would not apply  and neither acknowledgement nor payment (under the former  ss.19 and  20)  could give a fresh starting point  of  limitation. Even  s.  5 under the old Act was in terms  inapplicable  to applications  unless the section was made applicable  by  or under  any of the enactment.  The new s. 5 is now  of  wider applicabi- 40 lity  and  as  the objects and  reasons  state  "Instead  of leaving  it  to the different States or the High  Courts  to extend  the application of section 5 to  applications  other than those enumerated in that section as now in force,  this clause  provides  for  the  automatic  application  of  this section to all applications, other than those arising  under Order  21 of the Code of Civil Procedure, 1908, relating  to the  execution of decrees.  In the case of special or  local laws, it will be open to such laws to provide that section 5 will  not  apply."  The  present  section  incorporates  two changes  :  (1) a uniform rule making it applicable  to  all applications  except  those mentioned therein  (by  defining "application" as including a "petition" in s. 2(b); and  (2) to all special and local enactments, unless excluded by  any of them.  The difference in the scheme of the provisions  of sub-s.  (2) of s. 29 under the two Acts will be  discernible if they are juxtaposed as under. s. 29,(2) of old Act Where  any  special or local- law prescribes for  any  suit, appeal or application a period of limitation different  from the  period  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 in so far as. and to the extent to  which,  they are not expressly excluded by such special or local law. (a)  the provisions contained in section     4,  sections  9 to 18, and section 22    shall  apply only in so far as  and to   the extent to which, they are not expressly excluded by such special or local law; and (b)  the remaining provisions of this Act shall not apply. s.   29(2) of new Act Where  any  special or local law prescribes  for  any  suit, appeal or application a period of limitation different  from the  period prescribed therefor by the First  Schedule,  the provisions of section 3 shall apply, as if such period  were

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prescribed  therefor in that Schedule, and for the  purpose, of  determining any period of limitation prescribed for  any suit, appeal or application by any special or local    law. It  will  be noticed that under the 1908 Act there  are  two limbs(1) that where any special or local law prescribes  for any  suit,  appeal  or application a  period  of  limitation different  from the period prescribed therefor by the  First Schedule’,  the  provisions of s. 3 shall apply as  if  such period  were prescribed therefor in that Schedule;  and  (2) 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 s. 4,  ss. 9 to 18 and s. 22 shall apply only in so far as, and to  the extent  to  which, they are not expressly excluded  by  such appeal or local law.  The, remaining provisions of that Act, are by virtue of clause (b) of sub-s. (2) inapplicable.  The two  limbs of sub.s (2) are connected with  the  conjunction "and" and the question 41 has been debated and there has been a cleavage of opinion as to  whether  those two limbs are independent or have  to  be read  cumulative]-,,  and  as  an  integrated  whole.    The decision  of  the  Supreme Court in  Vidyacharan  Shukla  v. Khubchand Baghel and others (1) has by a majority held  that both parts of s. 29(2) of the old Act should be read as  one whole  and  the conjunction "and" would have to be  read  as importing  into  what  follows it, the  conditions  set  out earlier  and that the words following the conjunction  "and" attract the conditions laid down by the opening words of the sub-section.  This case was considering the applicability of s.  12(2)  to appeals under s. II 6A of the Act,  which  had provided  a time limit for filing an appeal, but  the  first Schedule  to the limitation Act had not provided any.   Even the absence of a provision prescribing, a time limit in  the first   Schedule   was  considered,  by  the   majority   as prescribing  a  different  period be cause  when  the  First Schedule  prescribes no time limit for a  particular  appeal but  the  special  law  prescribes  a  time  limit  for  it, prescribes  a period different from that prescribed  in  the former.  Where once the special or local law has provided  a period different from that prescribed in-the Schedule to the limitation  Act,  sub-s.  (2)  of  s.  29  stands   directly attracted  and s. 3 and other section shall apply in so  far as,  and  to  the extent to which, they  are  not  expressly excluded  by  such  special or  local  law.   Though  Sinha, C.J.,and Ayyangar, J., agreed with Subba Rao, J. as he  then was, that even, where the First Schedule did not prescribe a period  of limitation for an appeal which is different  from that prescribed in the special or local law the  sub-section applied, and even if it is assumed that for the  application of  s.29(2) a period that is different has to be  prescribed for  an  identical  appeal,  then  Art.  156  prescribes   a different  period,  they did not agree with  him,  that  the second  limb  of  sub-s(2)  is  ail  independent   provision providing  for  that category of proceedings  to  which  the first limb does not apply.  Sinha, C.J., Rajagopala Ayyangar and  Raghubar Dayal, JJ., by majority held that  the  entire sub-s  (2) of s. 29 of the Limitation Act has to be read  as an  integrated provision and the conjunction "and"  connects the two parts and makes it necessary for attracting cl.  (a) that the conditions laid down by the opening word of  sub-s. (2) should be satisfied.  Raghubar Dayal and Mudholkar, JJ., also  did not agree with the majority that where a right  of appeal  is  given  by, some other law, the  appeal  must  be regarded  as  the  one under the Code  of  Civil  Procedure,

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inasmuch  as  the words under the Code  of  Civil  Procedure cannot  be  read  as  meaning "governed  in  the  matter  of procedure  by the Code of Civil Procedure".  Subba  Rao  and Mudholkar,  JJ., held that the second limb of sub-s. (2)  of s.  29  is  wide enough, to include a  suit,  appeal  or  an application under a special or local law which is of a  type for which no period of limitation is prescribed in the First Schedule.   In the result, Sinha, C.J., Subba Rao,  Raghuber Dayal and Rajagopala Ayyangar, JJ., held that the  exclusion of  time  provided  for by s. 12 of the  limitation  Act  is permissible  in  computing-, the period  of  limitation  for filing an appeal in the High Court under s.  116A   of   the Act. It  was  contended  before us  that  the  majority  decision required reconsideration by a larger Bench, because a period of limitation which is (1)  [1964]6 S.C.R. 129. 42 different  from that prescribed in any special or local  law would  mean  ,that the Limitation Act should provide  for  a definite  period which is different from that prescribed  in the  special  or  local  law, a  view  which  was  taken  by Mudholkar, J., in that decision.  We do not think this would be a proper course, because in our view the matter was fully argued  and considered by this Court, and while a  different view can be taken, the need for certainty particularly in  a matter  concerning  limitation where litigants  have  to  be guided,  the legal position should not be in doubt, when  it is  consistent with the view taken by this Court in  ..other cases. Secondly,  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  election 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. It  has already been noticed that Vidyacharan Shukla’s  case has made s. 12(2) applicable to appeals under s. 116A of the Act.   The proviso to that section confers power similar  to that  conferred by s. 5. Even in appeals to the  High  Court under s. 417 of the Code of ’Criminal Procedure it has  been held  in  Lala  Ram v. Hari Ram(1) that s.  12  of  the  new Limitation  Act  will apply.  On the  ratio  of  Vidyacharan Shukla’s  case even where the Limitation Act has  not  pres- cribed  the period of limitation in the  Schedule  different from that prescribed under s. 81 of the Act, sub.-s. (2)  of s.  29  will be attracted and that position is not  any  the less  different under the new Limitation  Act.   Vidyacharan Shukla’s  case is, however, decisive for  attracting  sub-s. (2) of s. 12 to an appeal under s. 116A of the Act as  there was nothing in that section to preclude its application.  In D.P. Mishra v. Kamal Narayan Sharma and Another(2) again  is a case in which the question of application ’of s. 12(2)  of the  Limitation  Act to the ,computation of  the  period  of limitation prescribed in s. 116A of the Act in respect of an order  delivered  by the Election Tribunal on  December  28, 1966,  was considered.  After excluding the time  taken  for obtaining  a certified copy of the order by  the  respondent just  before  the Court closed for the  summer  recess,  the

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memorandum of appeal ’Could only be lodged on the re-opening of  the  Court.   Following  the  ’decision  in  Vidyacharan Shukla’s  case  this Court held that ss. 4 and  ’12  of  the Limitation  Act would apply, because "There is no  provision in  the  Representation  of  the  People  Act,  1951,  which excludes the ,-application of s. 4 of the Limitation Act." In  Lala  Ram’s case(1) to which a reference has  been  made already,  ..a Bench of this Court to which one of us  was  a party (P.  Jaganmohan (1)[1970]2 S.C.R. 898. (2) [1971] 1 S.C.R. 8. 43 Reddy,  J.)  considered the applicability of s.  12  of  the Limitation Act to an application under s. 417(3) of the Code of  Criminal  Procedure.  In that case  an  application  for leave to appeal to the High Court was filed under sub-s. (3) of  s.  417 of the Code. of Criminal  Procedure  against  an order of acquittal by a Magistrate.  It was claimed that two days were necessary for obtaining the certified copy of  the order of the Magistrate and the application would be in time if  these two days were deducted.  The High  Court  accepted the  appeal and convicted the appellant. in appeal  to  this Court  against his conviction the appellant  contended  that the  period  of  60 days mentioned in s. 417(4)  was  not  a period  of  limitation within the meaning of s.  12  of  the Limitation   Act  and  that  the  sub-section   barred   the jurisdiction of the High Court to deal with the  application if  a  period of 60 days bad expired from the  date  of  the order of acquittal.  It was held that the application to the High Court was within time.  It was, however, urged that  s. 417(4) contains a prohibition that no application under sub- s.  (3)  shall be entertained by the High  Court  after  the expiry  of 60 days from the date of the order  of  acquittal and  consequently  the  jurisdiction of the  High  Court  to entertain  such applications for leave to appeal is  barred. The Court rejected the contention and relying on the case of Kaushalya Rani v. Gopal Singh(1) as well as on Anjanabai  v. Yeshwantrao Daulatrao Dudhe(2) observed at p. 901               "It is quite clear that the Full Bench of  the               Bombay High Court and this Court proceeded  on               the assumption that s. 417(4) of the  Criminal               Procedure  Code prescribes a period  of  limi-               tation.    The   learned   counsel,   however,               contends that there was no discussion of  this               aspect.   Be  that as it may, it seems  to  us               that  s. 417(4) itself prescribes a period  of               limitation for an application to be made under               s.  417(3).   It  was not  necessary  for  the               legislature to have amended the limitation Act               and  to have inserted an article dealing  with               applications  under s. 417(3), Cr.   P.C.;  it               was  open  to  it to  prescribe  a  period  of               limitation in the Code itself." The  basis of this decision is that sub-s. (4) of s. 417  of the Code of Criminal Procedure is not in a negative form  as contended for by the learned Advocate in that case, but that it  has  a  positive content for performing an  act  and  it prescribes  a definite period within which an act has to  be done. In K. Venkateswara Rao and Anr. v. Bekkam Narasimha Reddi  & Ors.(3)   to  which  we  shall  refer  more   fully   later, Vidyacharan  Shukla’s  case  (supra)  was  attempted  to  be pressed  into  service,  but this.  Court  repelled  it  and observed at pp. 688-689:               "In  our View, the situation now obtaining  in

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             an  appeal to this Court from an order of  the               High Court is entirely different.  There is no               section  in  the Act as it  now  stands  which               equates an order made by the High Court  under               s. 98 or s. 99 to a decree                (1) [1964] 4 S.C.R. 982.                (2) I.L.R. [1961] Bom.135, 137.                (3)  [1969] 1 S.C.R. 679.               44               passed  by  a Civil court subordinate  to  the               High  Court.  An appeal being a creature of  a               statute, the rights conferred on the appellant               must  be found within the four corners of  the               Act.   Sub-s.  (2)  of  the  present  s.  116A               expressly gives this Court the discretion  and               authority  to  entertain an appeal  after  the               expiry of the period of thirty days.  No right               is   however  given  to  the  High  Court   to               entertain an election petition which does  not               comply with the provisions of s. 81, s. 82  or               s. 117. Though  s.  29(2)  of  the  Limitation  Act  has  been  made applicable  to appeals both under the Act as well  as  under the Code of Criminal Procedure, no case has been brought  to our  notice  where s. 29(2) has been made applicable  to  an election petition filed under s. 81 of the Act by virtue  of which  either ss. 4, 5 or 12 of the Limitation Act has  been attracted.  Even assuming that where a period of  limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed  under s. 81 of the Act, s. 29 (2) would be attracted, and what  we have to determine is whether the provisions of this  section are expressly excluded in the case of an election  petition. It  is  contended  before  us  that  the  words   "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific  provisions of  the  Limitation  Act of which the  operation  is  to  be excluded.  As usual the meaning given in the Dictionary  has been  relied  upon, but what we have to see is  whether  the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that  the Legislature,  intended  it to be a complete code  by  itself which  alone should govern the several matters  provided  by it.   If on an examination of the relevant provisions it  is clear  that  the  provisions  of  the  Limitation  Act   are necessarily  excluded, then the benefits  conferred  therein cannot be called in aid to supplement the provisions of  the Act.  In our view, even in a case where the special law does not exclude the provisions of ss. 4 to 24 of the  Limitation Act by an express reference, it would nonetheless be open to the  Court to examine whether and to what extent the  nature of those provisions or the nature of the subject-matter  and scheme  of  the special law exclude  their  operation.   The provisions  of  s.  3  of the Limitation  Act  that  a  suit instituted, appeal preferred and application made after  the prescribed period shall be dismissed are provided for in  s. 86 of the Act which gives a peremptory command that the High Court  shall  dismiss an election petition  which  does  not comply with the provisions of ss. 81, 82 or 117.  It will be seen that s. 81 is not the only section mentioned in s.  86, and  if  the Limitation Act where to apply  to  an  election petition  under s. 81 it should equally apply to ss. 82  and 117 because under s. 86 the High Court cannot say that by an application of s. 5 of the Limitation Act, s. 81 is complied with  while  no such benefit is available in  dismissing  an

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application for non-compliance with the provisions of ss. 82 and  117 of the Act, or alternatively if the  provisions  of the  Limitation Act do not apply to s. 82 and s. 117 of  the Act, it cannot be said that they apply to s. 81.  Again,  s. 6 of the Limitation Act which provides for the extension  of the  period of limitation till after the disability  in  the case of a person who is either a minor or insane or an idiot is inapplicable to, an election petition.  Similarly, ss.  7 to 24 are in terms inapplicable to the 45 proceedings  under the Act, particularly in respect  of  the filing of election petitions and their trial. It was sought to be contended that only those provisions  of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded,  would be  attracted.   But  this  is not  what  s.  29(2)  of  the Limitation  Act says, because it provides that ss. 4  to  24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.  If none of them are excluded, all of them  would become applicable.  Whether those sections are applicable is not determined by the terms of those sections, but by  their applicability  or inapplicability to the  proceedings  under the  special  or local law.  A person who is a minor  or  is insane  or is an idiot cannot file an election  petition  to challenge an election, nor is there any provision in the Act for  legal  representation  of  an  election  petitioner  or respondent in that petition who dies, in order to make s. 16 of  the  Limitation Act applicable.   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 filing of election 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 s. 29(2) of that Act. A  Full  Bench  of this Court had in  N.  P.  Ponnuswami  v. Returning  Officer,  Namakkal  Constituency  and   Others(1) considered  the provisions of the Act to  determine  whether any thing connected with the elections can be questioned  at an  intermediate  stage.  In that case the  rejection  of  a nomination  of a candidate in an election under the Act  was sought to be challenged by a petition under Art. 226 of  the Constitution.  After examining the various provisions of the Act,  Fazl  Ali, J., observed at p. 231 that "it  should  be noted that there is no provision anywhere to the effect that anything  connected with elections can be questioned  at  an intermediate stage." Again at p. 234 it was observed:               "If  Part XV of the Constitution is a code  by               itself,  i.e. it creates rights  and  provides               for their enforcement by.a Special tribunal to               the exclusion of all courts including the High               Court,  there  can be no reason  for  assuming               that  the Constitution left one small part  of               the  election process to be made the  subject-               matter  of contest before the High Courts  and               thereby  upset’  the  time  schedule  of   the               elections." The observations that the provisions of the Act are a  self- contained  code were also made in the case  of  Venkateswara Rao  referred  to earlier.  In that case, in a trial  of  an election   petition  after  the  issues  were   framed   the appellants  made an application to the Court for  impleading one R but it was dismissed.  The first respondent then filed an  application under s. 86(1) praying for the dismissal  of the election

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(1)  [1952] S.C.R. 218. 46 petition  on the ground that there had  been  non-compliance with s. 82(b) of the Act inasmuch as R against whom  corrupt practice  had been alleged had not been made a  party.   The appellants  filed  an application seeking  to  withdraw  the allegation  against R and in the alternative to implead  him as  a respondent.  It was also prayed that delay  in  making the  application may be condoned.  The learned Judge of  the High  Court  trying  the  election  petition  dismissed  the aforesaid  applications  and refused to condone  the  delay. One of the contentions urged in the appeal was that s. 5 and s. 29(2) of the Limitation Act, 1963, were applicable to the case and the High Court and this Court had power to  condone the  delay made by the election petitioner in  impleading  a necessary  party.   This  plea was  rejected.   Mitter,  J., delivering  the  judgment  of this  Court  for  himself  and Hidayatullah, C.J., after examining the relevant  provisions of the Act in detail at pp. 682-686 observed at pp.  686-687 :               "it  is  well  settled that  amendments  to  a               petition   is  a  civil  proceeding  and   the               addition  of parties to such a proceeding  are               generally  possible  subject  to  the  law  of               limitation.   But an election petition  stands               on  a different footing.  The trial of such  a               petition  and  the  powers  of  the  court  in               respect  thereof are all circumscribed by  the               Act.  The Indian Limitation Act of 1963 is  an               Act  to  consolidate  and  amend  the  law  of               limitation of suits and other proceedings  and               for   purposes   connected   therewith.    The               provisions of this Act will apply to all civil               proceedings   and   some   special    criminal               proceedings which can be ,taken in a court  of               law  unless the application thereof  has  been               excluded by any enactment: the extent of  such               application  is  governed by s. 29(2)  of  the               Limitation  Act.  In our opinion  however  the               Limitation  Act  cannot apply  to  proceedings               like  an  election petition  inasmuch  as  the               Representation of the People Act is a complete               and  self-contained code which does not  admit               of  the introduction of the principles or  the               provisions  of  law contained  in  the  Indian               Limitation Act." It  would  be  a  mere repetition again  to  refer   to  the provisions  which were examined in much detail in that  case except  to notice that sub-s. (5) of s. 86 gives a  latitude to the petitioner upon such terms as to costs and  otherwise as  the High Court may deem fit to amend the particulars  of any corrupt practice alleged in the petition and amplify  it in  such  manner  as may in its  opinion  be  necessary  for ensuring a fair and effective trial of the petition, but the High  Court  shall not allow any amendment of  the  petition which  will have the effect of introducing particulars of  a corrupt  practice  not previously alleged in  the  petition. Now  here  is a definite indication that s. 5 of  the  Limi- tation  Act  cannot  be attracted, because  no  new  corrupt practice  not  previously  alleged in the  petition  can  be allowed  by way of an amendment.  If this is not  permitted, it  is  because  any introduction of new  particulars  of  a corrupt  practice  not previously alleged  in  the  petition would  have altered the structure of the petition and  would amount  to  a new petition being filed after the  period  of

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limitation, which is, what is expressly prohibited. 47 It is also significant that delay in the presentation of the election,  petition  under  the  repealed  s.  81  could  be condoned  by  the.  Election Commission  in  its  discretion under  the proviso to the repealed s. 85, of the  Act.   But there  was  nothing in s. 85 which  permitted  the  Election Commission to condone the non-compliance with the provisions of  s.  117 of the Act.  When the Act was  amended  and  the jurisdiction  was given to the High Court to  entertain  and try  election petitions, a provision similar to the  proviso for   condoning  delay  was  not  enacted.   This   omission definitely  expresses Parliament’s intention not  to  confer the  power to condone any delay in the presentation  of  the petition.. The whole object of the amendment in 1966 was  to provide  a  procedure  for a more  expeditious  disposal  of election  disputes,  which experience had shown  had  become dilatory  under the former procedure where  election  trials were’  not  concluded even after five years  when  the  next elections  were  held, notwithstanding the fact  that  every petition  was,  enjoined  to be tried  as  expeditiously  as possible and endeavour was. required to be made to  conclude the  trial  within  six months from the date  on  which  the election petition was presented to the High Court for trial. In Krishan Chander v. Ram Lal(1) two of us (Jaganmohan Reddy and Dwivedi, JJ), while holding that s. 82(b) of the Act was mandatory, the failure to comply with which was fatal to the maintainability of the, petition. said (p. 769):               Apart  from ensuring the purity of  elections,               and   finality  in  regard  to  all   election               matters, one other consideration, seems, to be               the    expeditious   disposal   of    election               petitions.  Before the amendment of Section 82               by  Act 27 of 1956 the unamended section  made               it  incumbent  on  a petitioner  "to  join  as               respondents,  to his petition  all  candidates               who  were  duly nominated  at.,  the  election               other  than himself, if he was so  nominated."               The reason for the amendment of Section 82 has               been  stated  in the notes on clauses  to  the               Amendment Bill No. 33 of’ 1955 to be that  the               section as it stands holds up the trial of  an               election.  petition because of the  difficulty               in serving a notice on all those who have been               nominated.  It is further stated:  "Naturally,               it  is only the returned candidate  who  takes               any   interest  in  contesting  the   election               petition.   Moreover, there is a provision  in               Section  90 which enables any other  candidate               to  join as a respondent.  It  is  accordingly               proposed in this clause that Section 82 should               be revised so that it is necessary to join  as               respondents  only  those  candidates  who  are               interested  prima facie in the outcome of  the               petition".  After the amendment the candidates               under  clause  (b)  of  Section  82  are   not               impleaded merely,, because they are  necessary               parties  in  an election petition in  which  a               declaration is sought that the election of all               or  any of’ the candidate would be  void,  but               are  impleaded as parties. because  there  are               allegations of corrupt practices against  them               in  the  election petition.  Where  action  is               taken under Section 90               (1)   [1973]2 S.C.R. 759.

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             48               an   order  under  Section  98  of   the   Act               dismissing the election petition or  declaring               the  election  of all or any of  the  returned               candidates  to be void and/ or  declaring  the               petitioner or any other candidate to have been               duly elected, would delay the disposal of  the                             election petition, because notice will  have  to               be  given to all the persons named  under  the               proviso  to sub-clause (ii) of clause  (a)  of               sub-section (1) of Section 99.  The provisions               Of Section 82(b) would avoid any such delay as               they make it obligatory for a person filing an               election petition when he makes an  allegation               of  corrupt practice against any candidate  to               make  him  a ’party on pain  of  the  petition               being  dismissed  under Section  86(1)  if  he               omits to do so." It  is  interesting  to  see  that  although  the   Election Commission  ,did  not recommend what provisions of  the  Act should be amended, it nonetheless in its Report on the Third General Elections in India (1962) Volume I (General),  after noticing the several causes of delay reported in its summary of recommendations under the heading ’Election petitions’ at p. 125 as under:               "(i)  The  objective of a  quick  decision  of               election  disputes  can only  be  achieved  by               placing  the  responsibility directly  on  the               high  Courts.  Every election petition  should               be presented to the High Court of the State in               which  the election was held ,and tried  by  a               permanent  Judge on the rota for the trial  of               such petitions.               (ii)  Clause   (1)  of  article  324  of   the               Constitution  should ’be amended  by  omitting               the   words  "including  the  appointment   of               election tribunals for the decision of  doubts               and  disputes arising out of or in  connection               with   election  to  Parliament  and  to   the               Legislatures  of States", simultaneously  with               the  amendment of the election  law  providing               for  the trial of election petitions  directly               by the High Courts." -This  summary  supports  the  above  observations  in   the judgment. In  Charan Lal Sahu v. Nandkishore Bhatt and  others,(1)  it was  held that there is no question of any common law  right to  challenge an election as such 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  tinder the statute governing  election  ,disputes. It  was  observed  that if no discretion  was  conferred  in respect of any of these matters, none can be exercised under any general law or on any principles of equity.  If for non- compliance  with the provisions of ss. 82 and 117 which  are mandatory, the election petition has to be dismissed  tinder s.  86(1) the presentation of election petition ,within  the period prescribed in F. 81 would be equally mandatory,  ;the noncompliance with Which visits the penalty of the  petition being  .dismissed.   The  answer to the  plea  that  if  the petition  were  to  be  dismissed,  allegations  of  serious corrupt practices cannot be required into and the purity  of the  elections cannot be maintained is that given by  Mitter J.,  in  Venkateswara Rao’s case (Supra) where  he  said  at

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P.689 49               "That  is  however a matter which can  be  set               right  only by the Legislature.  It is  worthy               of note that although the Act has been amended               on  several  occasions, a  provision  like  s.               86(1) as it now stands has always been on  the               statute  book but whereas in the Act  of  1951               the  discretion  was  given  to  the  Election               Commission, to entertain a petition beyond the               period  fixed  if it was satisfied as  to  the               cause for delay no such saving clause is to be               found now.  The legislature in its wisdom  has               made the observance of certain formalities and               provisions  obligatory  and  failure  in  that               respect  can only be visited with a  dismissal               of the petition." Since the above decision in Venkateswara Rao’s case  (supra) in   August  1968,  though  Parliament  has   made   certain amendments in s. 8 of the Act in 1969, it has not considered it necessary till now to amend the Act to confer, on persons challenging an election, benefits similar to those available to them under the proviso to the repealed s. 85 of the  Act, for as we venture to think, it did not want delays to  occur in the disposal of election petitions as in the past. For  all these reasons we have come to the  conclusion  that the  provisions of s. 5 of the Limitation Act do not  govern the filing of election petitions or their trial and, in this view,  it is unnecessary to consider whether there  are  any merits in the application for condonation of delay. The  appeal  as  well  as  C.M.P.  No.  7820  of  1973   are accordingly  dismissed  but  in  the  circumstances  without costs. V. P. S.                           Appeal dismissed. 5-M 852 Sup :1/74 50