Ram Saroop vs Election Commissioner and Others

This petition has been made by respondent No.3{of the election petition) under the provisions of 0.47 R 1 & 2 read with section 151 CPC, and

the relief sought is review of the order passed on June 26, 1998 by this court. This relief is sought on the follwoing grounds:i). There is a mistake of

the fact and law on the face of the order.

ii). Mr. V.R.Wazir, counsel for respondent No.3 on Oct. 6,1997 had made a statement in the court while labouring under some mistake and his

statement should not be taken into account.

iii). The provisions of 0.8 R 8A and 0.13 R1 CPC cannot be applied in the proceedings of the electionpetition in the same manner and with same

force as they are applied to the proceedings before a civil court.

The counsel for the petitioner (of election petition) who has been impleaded as respondent No.3 herein) has filed objections to this petition. The

preliminary objection regarding the maintainability of this petition has been raised at the first instance. It is pleaded that the remedy of ""review"" is

statutory one and not provided under the provisions of the J&K Representation of Peoples Act {hereinafter to be referred to as ""the Act""). The

provisions of the code of Civil Procedure have been made applicable for the trial of the election petition for the regulation of the proceedings and

they do not create any substantive right in favour of respondent No. 3. The controversy in an election petition is not a lis as contemplated under the

common law as well as it does not relate to any enforcement or violation of civil rights of the contesting parties.

On facts, it is pleaded that the review petition has been made only with the sole purpose of prolonging the proceedings of the election petition.

The order in question does not suffer from any illegality either of fact or of law. The counsel of respondent No.3 (Mr. V.R.Wazir) had consciously

made the statement in the court on 6.10.1997 wherein he had admitted that his client would not place on record any document which was in his

possession or power.

Heard the arguments.

It has been contended by Mr. Salaria that the state legislature enacted the Act in the year 1957 and at that time Rule 8A under 0.8 as well as

Rule 1 under order 13 CPC were not on the statuteBook but they were inserted therein in the year 1983. The provisions of CPC are only hand

maid for the aid of the trial of election petition and they cannot dilute the mandatory duty cast upon the court to follow the mandates of section 94

of the Act, Rigorously and vigorously. Section 94 casts a duty on the court to dismiss an election petition which suffers from the vice of

noncompliance of the provisions of sections 89, 90 or 125 of the Act. Respondent No.3 from the very beginning (when he filed the written

statement) had pleaded that the petition had not been drafted in accordance with the provisions of sections 89, 90 and 125 of the Act. On the

basis of this plea, issue No.1 was raised. Order 13 Rule l CPC embraces every type of documentary evidence in its sweep which is in the

possession or power of the parties on which they intend to rely and which has not already been filed in the court. It also applies to all documents

which the court had ordered to be produced. The counsel further contends that the copy of the election petition stood already filed in the court by

the petitioner at the time when the election petition was presented by him and on this admitted factual position it cannot be said that it was in the

possession or power of respondent No. 3 and he was required to produce the same at or before the time of framing the issues. On this factual

position, Rule 1 of Order 13 CPC had no application to the fats of the case and as such Rule 2 of Order 13 CPC could not produce any effect.

He has also taken the plea that the provisions of the old Civil Procedure Code govern these proceedings and there can be no bar for the

production of the copy of the election petition as its genuinity is not doubtful. The order sought to be reviewed has not covered the above stated

factual and legal aspects which omision amounts to a mistake or error apparent on the face of the record and can be a sufficient reason for

reviewing the order. The remedy of review as available under 0.41 Rule 1 & 2 CPC is not in conflict with the provisions of the Act so it is available

in proceedings of an election petition.

In rebuttal, the counsel appearing for the petitioner has contended that the remedy of reviewing the order in question is not altogether available in

these proceedings. He has contended that section 114 CPC deals with the matter where the review is allowed. Section 114 CPC runs as under:

ReviewSubject as aforesaid, any person considering himself aggrieved

a), by a decree or order from which an appeal is allowed by this code, but from which no appeal has been preferred, b). by a decree or order

from which no appeal is allowed by this Code,

c). by a decision on a reference from a court of small causes, may apply for a review of judgment to the court which passed the decree or made

the order, and the court may such order thereon as it thinks fit.

He again contends that the order in question does not fall within the purview of this section because it has not been made? appealable or

nonappealable by any provisions of the Code of Civil Procedure. The learned counsel has also referred the provision of 0.47 Rule 1 CPQ which

lays down grounds when an order can be reviewed. The present order is not covered by any of the grounds. Neither Section 114 not. 0.47 R .1

CPC has any application to these proceedings which primarily are governed by the dictates of section 95 of the Act. The above stated provisions

of Code create a substantive right and they cannot be said governing the procedural aspect of these proceedings. Section 95 of the Act states that

procedural sections of the CPC are applicable for the trial of the election to the extent as ""nearly as possible"". The Act is a special piece of

legislation and self contained. Whereever the legislature had thought fit to confer a statutory right that stood conferred and a party to the election

proceedings cannot look to any other right form other law. The Act has provide the substantive right of appeal under section 123 but has not given

any right to a party of the election petition for getting the order revised or reviewed. This court while trying the election petition is only a Tribunal

and does not have all the trappings of a civil court. In support of this contention, the learned counsel has derived the support from the decision of

the case titled Brij Mohan Lal Vs. Section Tribunal (AIR 1965 All 450).

Regarding the plea of the application of the provisions of old Civil Procedure code, it is contended in rebutal that the amended code of civil

procedure governs these proceedings because the procedural laws always have, retrospective application unless provided otherwise. The election

petition was filed in the year 1996 and at that time amended 0.8 R 8A and 0.13 R 1 CPC were applicable. Section 95 of the act does not contain

any saving clause for the application of the code of Civil procedure which was for the time being in force.

Furthermore, it has been contended that the copy of the election petition was in possession of respondent No.3 as soon as he was served with

the notice pf filing the election petition and that the wording of Rule 1 of order 13 CPC are wide enough to cover every sort of documentary

evidence of any description which is in possession of the parties. Since at the time of either filing the written statement or subsequently before the

settlement of issues the copy of the plaint in question was already in possession of respondent No. 3, so he was required to produce the same

because he is intending to rely upon it for proving the noncompliance of sections 89,90 or 125 of the Act. This court has already adjudicated on

the effect of Rule 2 of Order 13 CPC on these proceedings and through the medium of this review petition the settled position cannot be unsettled.

Lastly, the counsel has referred to the order dated 6.10.1997 when the counsel appearing for respondent No. 3 namely, Mr. V.R. Wazir, had

categorically stated in the court that he had filed the necessary documents and respondent No.3 would not file any more. If the contention raised

by Mr. Salaria has to be accepted then the court has to review its order dated 6.10.1997 which otherwise cannot be done as review petition was

filed beyond the period of limitation. Mr. Wazir has not filed any affidavit to show that he had made the statement by mistake.

Concluding his arguments, the counsel has contended that respondent No.3 is consistently making efforts to get the trial of the election petition

delayed and this is the third attempt made by him. The first application was made of like nature which was rejected vide order dated 26.06.1998.

The second attempt was made by making an application when examination of respondent No.3 was sought as a witness and the production of the

copy of the election petition alongwith other documents was sought and that application was dismissed on 6.08.1998 by imposing a cost of Rs

2000/. Now this is the third attempt which has been made for getting the proceedings prolonged by getting the order dated 26.06"". 1998

reviewed.

After considering the respective contentions of the learned counsel for the parties and going through the relevant provisions of the Act and the

Code of Civil Procedure, it is held that the remedy of review is not available to respondent No.3 because this remedy is not recognized under the

Act which primarily governs these proceedings. The Division Bench of the Allahabad High Court in AIR 1965 All 450 has held as under :

An Election Tribunal constituted under S.86 is not a court. It is a creature of statute. An election contest is not an action at law or a suit in enquiry

but is a purely statutory proceedings unknown to common law and the court (the Tribunal) possesses no common law power. Therefore, an

Election Tribunal has only such powers as are conferred on it by statuteexpressly or by necessary implication. It has node of the inherent powers of

an ordinary court.

Be that as it may, even on facts it cannot be said that the order sought to be reviewed suffers from mistake or error apparent on the face of the

record or for any other sufficient reason.

The copy of the election petition was in the power and possession of respondent No.3 at the time of filing the written statement or even

thereafter before the settlement of issues. In the written statement, he had taken the plea for noncompliance of the mandatory provisions of section

89,90 or 125 of the Act and he was very much relying on the contents of this copy of the election petition. However, in order to prove his

contention he was required to place the copy of the record before the deadline created by Rule 1 of Order 13 CPC. He had failed to produce the

same despite opportunities being granted to him. His counsel Mr. Wazir had made a categorical statement in the court on 6.10.1997 that he had

filed the necessity documents and would not file any more. Respondent No. 3 cannot now retract from this admission. The provisions of the

amended Civil Procedure Code undoubtedly apply to these proceedings to the extent as stated in section 95 of the Act and the argument to the

effect that old Civil Procedure Code governs the proceedings is devoid of any legal force.

In view of the discussion made above, there is found no legal force in this petition which is dismissed.

The counsels for the parties are directed to advance the arguments on preliminary issues No.1 to 6 on 10.9.1998.