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Judgment
Jeevan Reddy, J.—Heard the counsel for the parties. Leave granted.
This appeal raises the question whether Section 5of the Limitation Act, 1963 is applicable to a recrimination notice given u/s 97of the Representation of the Peoples Act, 1951. The learned Single Judge of the Karnataka High Court has held that it does not. His view is questioned by the returned candidate (first Respondent in the election petition) before us.
The first Respondent in the Election Petition who shall hereinafter be referred to as "appellant", was declared elected from Koppal Parliamentary Constituency during the general election held for the 10th Lok Sabha. He contested on the Congress (1) ticket. The election Petitioner, referred to hereinafter as "the first Respondent" had also contested from the said constituency on the ticket of Janata Dal. Having lost the election, the first Respondent filed an election petition No. 8 of 1991 for a declaration that the election of the Appellant from the said parliamentary constituency was void and for a further declaration that he himself has been duly elected therefrom. Since the Appellant and some other Respondents to the election petition could not be served in the ordinary course, the High Court directed publication of notice in a Kannada Daily Newspaper. It was so published on 4.11.1991 fixing the date of appearance of the Respondents on 25.11.1991. The Appellant (first Respondent in the election petition) appeared before the High Court on 4.11.1991 and sought time for filing his written statement which he did on 6.11.1991. Thereafter, on 21.1.1992 he submitted the recrimination notice u/s 97of the Act. By the said notice, the Appellant expressed his intention to give evidence to prove that the election of the first Respondent would have been void if he had been the returned candidate and a petition had been presented calling in question his election. Along with the recrimination notice he filed an application u/s 5of the Limitation Act requesting the High Court to condone the delay in filing the same for reasons stated therein. According (sic) the provision to Section 97(1), notice of such intention should have been given to the High Court "within 14 days from the date of commencement of trial". Admittedly, the Appellant gave notice u/s 97(1) beyond the period of 14 day and hence the application u/s 5.
For a proper appreciation of the question arising herein, it would be appropriate to notice the relevant provisions of the Representation the Peoples Act besides Section 29 (2) of the Limitation Act, 1963. First the provisions of the Representation of The Peoples Act. Section 97reads as follows:
Recrimination when seal claimed.- (1) When man election petition a declaration that any candidate other the returned candidate has been duly elected is clamed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition has been presented calling in question his election:
Provided that the returned candidate or such other part as aforesaid shall not he entitled to give such evidence unless, he has, within fourteen days from the date of commencement of the trial, given notice to the high Court of his intention to do so and has also given the security and the further secure referred to in Sections 117 and 118 respectively.
(2) Every notice referred to in Sub-section (1) shall to accompanied by the statement and particulars required by Section 83in the case of an election petition and shall be signed and verified in like manner.
Sub-section (1) of Section 97permits the returned candidate or any other party to give evidence (in an election petition seeking a declaration, that any candidate other than the returned candidate has been duty elected) to prove that the election of such candidate would have been void if he had been the returned candidate and petition had been presented calling in question his election. Sub-section (2) says that such notice shall be accompanied by a statement and particulars required by Section 83in the case of an election petition and shall also be signed and verified in the same manner. Provision to Sub-section (1) says that such a notice shall be given with in fourteen days lion the date of "commencement of trial" and the security and further security referred to in Sections 117 and 118 respectively is furnished. The expression "commencement of trial" has been defined in Explanation to Sub-section (4) of Section 86. The Explanation reads:
For the 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.
According to the said definition, the notice of the recrimination should have been given in this case within fourteen days of 4.11.1991. Admittedly, it was submitted beyond the said period. Section 83deals with "contents of petition". According to Sub-section (1), an election petition (a) shall contain a concise statement of the material facts on which the Petitioner relies; (b) shall setforth particulars of any corrupt practice that the Petitioner alleges including as full a statement as possible of all the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each of such practice and (c) shall be signed by the Petitioner and verified in the manner said down in the Code of Civil Procedure, 1908 for the verification of pleadings. The provision to Sub-section (1) says that where a Petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such practice and particulars there in. Sub-section (2) says that any schedule or annexure to the petition shall also be signed by the Petitioner and verified in the same manner as the petition. Section 117 requires the election Petitioner to deposit in the High Court, at the time of presenting an election petition, a sum of Rs. 2,000/- as security for the costs of the petition in accordance with the rules of the High Court. Section 118 says that no person shall be entitled to be joined as a Respondent under Sub-section (4) of Section 86unless he has given such security for costs as the High Court may direct. Section 86 (1) declares that "the High Court shall dismiss an election petition which does not comply with the provisions of Section 81or Section 82or Section 117."
There is no provision in the Representation of the Peoples Act, 1951 making all or any of the provisions of the Limitation Act applicable to the proceedings under the Act. The Appellant, however, relies upon Section 29 (2)of the Limitation Act. According to him by virtue of the said provision, all the provisions contained in Sections 4 to 24(both inclusive) apply to the proceedings under the Act including the recrimination notice u/s 97. Sub-section (2) of Section 29, which alone is relied upon before us reads:
Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3snail apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24(inclusive) shall apply only insofar as and to the extent to which, they are not expressly excluded by such special or local law.
In Hukumdev Narain Yadav Vs. Lalit Narain Mishra, this Court held that the words "expressly excluded' occurring in Section 29 (2) of the Limitation Act do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the Limitation Act, the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the Limitation Act arc necessarily excluded then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act. That too was a case arising under the Representations of the Peoples Act and the question was whether Section 5of the Limitation Act is applicable to the filing of the election petition. The test to determine whether the provisions of the Limitation Act applied to proceedings under Representation of the People Act by virtue of Section 29 (2) was stated in the following words:
The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing 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 Section 29(2) of that Act.
On an examination of the provisions of the Representation of the Peoples Act and the earlier decisions of the Court, it was held that the Representation of the Peoples Act is a self-contained code and accordingly, it was concluded that "the provisions of Section 5of the Limitation Act do not govern the filing of an election petitions or their trial."
This decision, in our view, practically concludes the question before us inasmuch as the Act equates a recrimination notice to an election petition. The language of Section 97makes the said fact abundantly clear. The relevant words are: "the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election." The proviso to Sub-section (1) applies the provisions of Sections 117 and 118 to such a recrimination notice. It may be noticed that for non-compliance with the requirement of Section 117 an election petition is liable to be dismissed by virtue of Sub-section (1) of Section 86. Sub-section (2) of Section 97further says that the "notice referred to in Sub-section (1) shall be accompanied by the statement and particulars required by Section 83in the case of an election petition and shall be signed and verified in like manner." We may also say that the provision to Sub-section (1) of Section 97which requires such a notice to be given to the High Court within fourteen days of the "date fixed for the Respondents to appear before the High Court to answer the claim or claims" (reading the definition of "commencement of trial" into it) had also a particular meaning and object behind it. The idea is that the recrimination notice, if any, should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. If Section 5does not apply to the filing of an election, it does not equally apply to the filing of the recrimination notice.
In view of the above position, we do not think it necessary to deal with the several decisions cited before us relating to the interpretation of Sub-section (2) of Section 29of the Limitation Act.
The counsel for the Appellants brought to our notice a decision of this Court holding that the provisions of Section 12 (2) of the Limitation Act, 1908 are applicable to an appeal u/s 116 (A) of the Representation of the Peoples Act, 1951 viz. Vidyacharan Shukla Vs. Khubchand Baghel and Others, . It is also brought to our notice that certain High Courts have taken the view that both Section 5and Section 12 (2) of the Limitation Act are applicable to the proceedings under the Act. Reference is to 1968 Rajasthan 145, 1968 Calcutta 69 and 1976 89 Madras Law Weekly 32. So far as the decision of this Court in V.C. Shukla is concerned, it is a decision dealing with the ability of the provision in Section 12(2) of the Limitation Act to an appeal preferred u/s 116 (A) and not with the filing of an election petition. The said decision was considered and distinguished in H.N. Yadav on the above Basic At page 42 of the S.C.R., the Division Benen which decided H.N. Yadav distinguished the decision in V.C. Shukla the following words:
Vidyacharan Shukla's case (supra) is one which deal with an appeal under the Act while what we have to consider is whether the Limitation Act is al all applicable to election petitions under the Act. Thirdly, Section 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 Section 5would now apply where Section 29(2) 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 Section 5is excluded from application in such petitions.
The Division Bench then proceeded to examine whether the applicability of Section 5excluded in the matter of filing of an election petition and came to the conclusion that it was so excluded. This aspect has already been deal with here in above, So far as the decisions of the High Courts are concerned, we cannot agree with them in so far as the applicability of Section 5to filing of an election petition and/or recrimination notice is concerned in view of the decision of the Court in H.N. Yadav.
For the above reasons, the appeal fails is accordingly dismissed with costs.