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PETITIONER: SHIV CHAND

       Vs.

RESPONDENT: UJAGAR SINGH & ANR.

DATE OF JUDGMENT31/08/1978

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. DESAI, D.A.

CITATION:  1978 AIR 1583            1979 SCR  (1) 520  1978 SCC  (4) 152

ACT:         Election  fetition-Joinder  of  parties-Wherther  an election Counrt  can   reject an  applection made  under  s, 86(4) of  the Representation  of the  people act.  1951 by a duly nominated  candidate who  has retired from the contest- Public    police  behind s.  82(b) of  the Act-in a petition alleging corrupt candidates alleged of corrupt practice must be arrayed  as respondents-Words and phrases a candidate" in s.  86(4) includes a a nominated candidate.

HEADNOTE:      In the  election petition  the  appellant,  a  defeated candidate in  the  General  Eections  held  in  June,  1977, challenged the  election of  Respondent No  1 making,  inter alia allegations constituting a corrupt practice against the returned  candidate   and  also  Respondent  No.  2  a  duly nominated candidated  who one  among those  retired from the contest.  An   interlocutory   application   made   by   the petitoner/appellant under  order 1  Rule 10(2). order 6 rule 17 and S. 151 of the Civil Procedure Code seeking to implead respondent  No  2  or  in  the  alternative  permission  for deletion of  the allegation  of  corrulpt  practicc  against Respondent No.  2 as  well as  the motion made by Respondent No.2 under  s.  86(4)  of  the  Act  to  implead  him  as  a respondent were  rejected by  the High  court. The  Election Petition was  also dismissed  for non-joinder  of Respondent No.2 as  a necessary  party at the first instance and before the  preliminary   objection  was   raised  in  the  written statement.      Allowing the appeal by special leave the Court. ^        HELD:   (1) When the text is plain. in the absence of compelling reasons  there is no justification for truncating its sense.  Section 82(b)  requires the  presence  of  every candidate against whom a corrupt practice haw been : What is imperative is  the  presence  as  a  respondent  of  such  a candidate. not  how or  at whose instance he has been joined as a respondent[ 523 C-D]       The purpose is two fold. When injurious averments. are made against  a candidate  natural justice  necessitates his being given  an opportunity  to meet  those charges, because the consequence  of  such  averments  being  upheld  may  be

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disastrous for  such candidate.  Secondly, in the absence of the party  against  whom  charges  have  been  levelled  the reality of  the adversity  system will be missed. Above all, the constituency is vitally concerned with the investigation into the proof or disproof of corrupt practices of candidate but election. thus, the public policy behind s. 82(b) is the compulsive presence  of a  candidate  against  whom  corrupt practice has  been imputed.. lt is of no consequence whether he has  been joined  at his  own instance or by the election petitioner. [523E-F]        (2) "Any candidate ....... shall....be entitled to be joined as  a respondent" in the clear wording of s. 86(4) of the Act,  entitles respondent  No. 3  to  bed  joined  as  a respondent, he  being a  candidate in the General Elections. He is a necessary party since a corrupt practice was imputed to him. [522 G. 523 B-C]       (3) S. 86(1 ) states that the High Court shall dismiss an  election   petition  which  does  not  comply  with  the provisions of s. 82. The test is whether the; 521 election petition complies with the provisions of s. 82, not whether the election petitioner has failed to comply with s. 82.  The  substance  of  the  matter  must  govern,  because hypertechnicality, when  the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat  a vital  judicial process,  namely, investigation into the  merits  of  the  case.  If  respondent  No.  2  is impleaded, the  election petition,  in this  case cannot  be dismissed under s. 86(1) of the Act. [523 H, 524 A-B]      (4) The  refusal of  the Court to implead Sri Mal Singh is  illegal   and  based   on  a  misinterpretation  of  the provisions of the sections of the Act. [524 C]      (a) S.  86(4) cannot  be read  down to  cover any  such candidates as or not required to be impleaded as respondents under s. 82 of the Act. The grammatical construction of "any candidate" does  not admit  of such  a narrow and artificial meaning. Shri  Mal Singh,  having been  a candidate  is  one entitled to  come within  s. 86(4).  On his  application the Court shall  implead him.  In  this  view  the  question  of substantial compliance  and the mandatory or directly nature of the prescription in s.82(b) does not arise [524 D-E,G]      R. Satyanarayana  & Ors.  v. Saidayya  & Ors., AIR 1969 A.P. 151 dissented to and overruled.      (b)  Procedural   tyranny   compounded   by   lexically unwarranted technically  cannot be tolerated in a Court. The provisions of  the Representation  of the  people Act  where they lay down specific prescriptions must prevail and cannot be frustrated  by importing the Code of Civil Procedure. The provisions of  the Code of Civil Procedure, especially Order 6 Rule  17 and  Order 1  Rule 10  cannot be  used in  such a manner as  to defeat  the procedural  policy  and  statutory imperative of s. 82 of the Act . [524 H, 525 B]      In the instant case, s.86(4) of the Act itself entitles Mal Singh  to be  joined as respondent. That right cannot be defeated and  once he  comes on record as party the petition is  in  order  and  cannot  be  dismissed  for  non-joinder. Moreover once  Mal Singh comes on the party-array, by virtue of s.  86(4), the  fatal infirmity,  if any,  must be judged with reference to the petition as amended by the addition of the new respondent. It is the amended petition consequent on the addition  under s.  86(4) of  Mal Singh  that  has to be tested in  the light  of s.  86(1) read with s. 82(b) of the Act. [525 A-C]      Mohan Raj v. Surendra Kumar Taparia & Ors. [1969] 1 SCR 630, explained.

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JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil appeal No. 2199 of 1977.      From the  Judgment and  Decree dated  29-11-1976 of the Allahabad High Court in Special Appeal No. 378 of 1974.      G. B. Pai and O. P. Rana for the Appellant.      R. K.  Garg, V. J. Francis, Madan Mohan, K. P. Aggarwal and Manju Gupta for Respondents 1 and 2.      Manoj Swarup and Lalita Kohli for the Intervener. 522      The Judgment of the Court was delivered by      KRISHNA IYER,  J.-An election petition became an infant casualty because  of an  alleged non-joinder  of a necessary party as visualised by S. 82(b) of the Representation of the People Act,  1951 (the  Act,  here  after).  That  premature dismissal. by-passing  investigation into  the  merits,  has driven the  petitioner-appellant to  this Court where he has urged that  the ends of law and justice have been stultified by the  strangely technical  view taken by the High Court in its dismissal order.      A few  facts, and  then, a  brief discussion, the point being res  integra so  far as  this Court  is concerned. The appellant before  us is the election-petitioner, having been a defeated  candidate in the General Elections held in June, 1977. There  were quite a few candidates, including one Shri Mal Singh,  who appears to have retired from the contest for the  seat  although  duly  nominated  as  a  candidate.  The respondent was  returned as the successful candidate and the disappointed petitioner  challenged the election by filing a petition  wherein,   inter   alia,   he   made   allegations constituting  a   corrupt  practice   against  the  returned candidate and  Shri Mal  Singh. To  such a pleading S. 82 is attracted. That  provision states  that a  petitioner  shall join as  respondent to  his petition  any candidate  against whom allegations  of any  corrupt practice  are made  in the petition. By  this mandate,  the  petitioner  was  bound  to implead as  respondent Shri  Mal Singh. But he omitted to do so initially.  The respondent,  in  his  written  statement, raised a  preliminary   objection that  the failure  to join Shri Mal  Singh as  a respondent  entailed dismissal  of the election petition.  The case  was adjourned for arguments on the  preliminary   issue  to  September  15,  1977.  In  the meanwhile.  On   September   8,   1977,   an   interlocutory application was filed by the election-petitioner under order 1 Rule  10(2), order  6 Rule  17 and  S. 151,  Code of Civil Procedure, seeking  to implead as respondent No. 2, the said Mal Singh. In the alternative, he prayed for deletion of the allegation of  corrupt practice  against Shri  Mal Singh. On the same  day, Shri  Mal Singh filed an application under S. 86(4) of  the Act praying that he be impleaded as respondent to the  election petition.  Thus, there  was  a  motion  for impleadment by  the election  petitioner as  well as by Shri Mal Singh  and they  were disposed  of together  by an order which is under appeal.      It is  fairly clear that Shri Mal Singh was a necessary party since  a corrupt  practice was imputed to him. He made an application  to be impteaded as respondent exercising the procedural right  he had  under S.  86(4) of  the Act  which reads thus:           "86(4) Any  candidate not  already  a  respondent.      shall, upon  application made  by him to the High Court      within fourteen  days from  the date of commencement of

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    ’he trial 523      and subject to any order as to security for costs which      may A  be made  by the  High Court,  be entitled  to be      joined as a respondent.      Explanation.-For the purpose of this sub-section and of      section 97,  the trial of a petition shall be deemed to      commence on  the date  fixed  for  the  respondents  to      appear before  the High  Court and  answer the claim or      claims made in the petition.      Shri Mal  Singh did apply within the stipulated period, and a  plain  reading  of  the  provision  just  re-produced entitles him  to be  joined as  a respondent.  Any candidate shall be entitled to be joined as a respondent, on the clear wording of  the section  and  since  Shri  Mal  Singh  is  a candidate he  is entitled to be joined as a respondent. When the text  is plain,  in the  absence of  compelling reasons, there is  no justification for truncating its sense. If Shri Mal Singh  is impleaded on his application then the election petition will  have on the party array the candidate against whom allegations  of corrupt  practice have been made in the petition. That  is to say, S. 82(b) will stand fulfilled. It is obvious  that S.  82(b) requires  the presence  of  every candidate against  whom a corrupt practice has been alleged. What is imperative is the presence as a respondent of such a candidate, not  however at whose instance he has been joined as a  respondent. The  purpose is obvious and two fold. When injurious averments  are made  against a  candidate  natural justice necessitates  his being given an opportunity to meet those charges,  because the  consequence of  such  averments being upheld may be disastrous for such candidate. Secondly, in the  absence of  the party against whom charges have been levelled the reality of the adversary system will be missed. Above all,  the constituency  is vitally  concerned with the investigation  into   and  proof   or  disproof  of  corrupt practices of  candidates  at  elections.  Thus,  the  public policy behind  S. 82(b)  is the  compulsive presence  of the candidate against whom corrupt practice has been imputed. It is of  no consequence  whether he has been joined at his own instance or by the election-petitioner. In the present case, the petitioner  did move  to bring  on record Shri Mal Singh but that  was rejected.  The petitioner alternatively sought to delete  the corrupt  practice imputed  to Shri Mal Singh. That too  was refused,  if we  may say so rightly. The short question is  whether the  court was  right in  rejecting the request of  Shri Mal Singh to be ranked as a respondent when his application was otherwise in order.      We  are   satisfied  that  if  he  is  impleaded  as  a respondent the  election petition  cannot be dismissed under S. 86(1)  of the  Act. That  provision states  that the High Court shall dismiss an election petition which does      17-526 SCI/78 524 not comply with the provisions of S. 82. The test is whether the election  petition complies  with S. 82, not whether the election-petitioner has  failed to  comply with  S. 82.  The substance  of   the  matter   must  govern,  because  hyper- technicality, when  the public  policy  of  the  statute  is fulfilled, cannot be permitted to play the procedural tyrant to defeat  a vital  judicial process,  namely, investigation into the merits of the election petition.      The result of the discussion is that Shri Mal Singh was entitled to  have been  impleaded as respondent. The refusal by  the   court  to   do  so  is  illegal  and  based  on  a misinterpretation. Had  he been  impleaded the  dismissal of

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the election petition would have been illegal.      Let us  examine the  reasons given by the learned Judge for the  course he  has adopted. Counsel for the respondent, in supporting the reasoning of the High Court, has relied on a ruling  in R. Satyanarayana & ors. v. Saidayya and ors.(1) The argument  which has  appealed to  both the courts is the same and  we regard  it as  fallacious. We do not propose to examine the  discretionary dismissal  of the  application by the election-petitioner  under order  1 Rule  10, et  al, to implead Shri Mal Singh. We confine ourselves to S. 86(1) and S. 86(4)  of the  Act. According  to the  learned Judge,  S. 86(4) has  to be  read down to cover only such candidates as are not  required to be impleaded as respondents under S. 82 of the  Act. For  one thing, the grammatical construction of "any  candidate"  does  not  admit  of  such  a  narrow  and artificial meaning.  The reason  given by  the court  hardly impresses us.  Indeed, we are not able to conceive easily of a case  where  a  candidate  who  is  neither  the  returned candidate nor one against whom corrupt practices are imputed would care  to implead  himself as  respondent. He serves no purpose by  getting so  impleaded  except  the  teasing  and gaining experience  of being  a litigant. The mere assertion by the  trial court that S. 86(1) would be rendered nugatory by a  candidate  like  Mal  Singh  taking  recourse  to  the provisions of  sub-section (4)  of  s.  86  does  not  carry conviction nor  are we  able to  glean into the intention of the legislature as the learned Judge states. Shri Mal Singh, having been  a candidate,  is one entitled to come within s. 86(4). On  his application  the court  shall implead him. In this view,  the question  of substantial  compliance and the mandatory or  directory nature  of the  prescription  in  S. 82(b) do not arise.      Shri  Mehta  relied  upon  Mohan  Raj(2)  heavily.  The question raised there was whether the provisions of the Code of Civil  Procedure,  especially order 6 Rule 17 and order 1 Rule 10 could be used in such      (1) AIR 1969 A. P. 151.      (2) Mohan Raj v. Surendra Kumar Taparia & ors. [1969] 1 SCR 630 525 a manner  as to  defeat the  procedural policy and statutory imperative of  A S.  82 of the Act. Obviously that cannot be done because  the provisions  of the  Representation of  the People Act  where they  lay down specific prescriptions must prevail and  cannot be  frustrated by  importing the Code of Civil Procedure.  Here, however,  S. 86(4) of the Act itself entitles Mal  Singh to  be joined  as respondent. That right cannot be  defeated and once he comes on record as party the petition is  in order  and  cannot  be  dismissed  for  non- joinder.  Procedural   tyranny   compounded   by   lexically unwarranted technicality  cannot be  tolerated in  a  court. Moreover, once  Mal Singh comes on the party array by virtue of S. 86(4) the fatal infirmity, if any, must be judged with reference to  the petition as amended by the addition of the new respondent. It is the amended petition consequent on the addition under  S. 86(4)  of Mal Singh that has to be tested in the light of S. 86(1) read with S. 82(b) of the Act.      Several decisions have been cited before us by both the sides to  buttress up  their respective  stances but we find only marginal  relevance for  those  decisions  and  do  not burden this judgment with the citations.      In this  view, issue  No. 2  was wrongly decided by the High Court.  We hold  that Shri  Mal Singh  should have been impleaded as  a respondent.  Since he  has applied  in  this Court also for the same relief we direct him to be joined as

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a respondent  to the election petition. We are not impressed with the  submission of  Shri Mehta  for the respondent that there  are   suspicious  features  suggestive  of  collusion between the  election-petitioner and Shri Mal Singh and that for that  reason the  petition to  implead filed by Shri Mal Singh should be dismissed. It is quite conceivable that Shri Mal Singh against whom serious allegations have been made in the election  petition would  have sought to be impleaded so that he  could clear the aspersions made against him, to the satisfaction of  the constituency through an adjudication in the court.  Even assuming  that  there  was  an  element  of collusion that  would not  deprive him  of  his  entitlement under  S.   86(4)  of   the  Act.   Perhaps  the  respondent (successful candidate)  may well  rely on  these  and  other features when  enquiry is made into the merits of the matter and seek  to persuade  the court  that when  the  petitioner himself was  willing to abandon the allegations and Shri Mal Singh appeared  on the  scene under  coincidentally  dubious circumstances, the  charge was  liable to be disbelieved. It is not  for us in this Court to express any opinion, one way or the  other, on  the matter  except to point out that even assuming Shri  Mehta’s assumption of mala fides or collusion it has  no bearing  on the  right of  Shri Mal  Singh to  be joined as a respondent. 526      The upshot  of the  above discussion is that the appeal has to  be allowed,  that Shri Mal Singh has to be impleaded as respondent  No. 2, that the finding on Issue No. 2 should be set aside and the election petition remanded to the trial court to  be restored  to file  for  expeditiousdisposal  on merits. We  allow the appeal but in the circumstances direct the parties to bear their costs throughout. S.R.                                          Appeal allowed 527