V. Weapon Zimk vs M. Horam (DR.) and Others

H.K. Sema, J.—By this petition u/s 80A of the Representation of People Act, 1951, Petitioner has challenged the election of the Respondent No. 1 as Returned candidate from 45-Chingai(ST), Assembly Constituency in the general Assembly election held on 16.2.95, on the ground of alleged corrupt practices and for improper reception of void and or invalid votes in favour of the returned candidate.

In the aforesaid election, Petitioner and 6 (six) other Respondents contested the election representing different political parties. It may be mentioned that the candidature of the Petitioner was sponsored by the Manipur Hills People Convention (MHPC). The Respondent No. 1 (Returned candidate) was sponsored by Indian National Congress, Respondent No. 2 was a candidate of Samata party, Respondents No. 3 and 4 were independent candidates, Respondent No. 5 was a candidate of Janata Dal, and the Respondent No. 6 was a candidate of Janata Party.

Counting of votes started on 21.2.95, and the result was declared on 23.2.95. The result sheet issued by the Returning officer on 23.2.95 shows the following valid votes were polled by the Petitioner and Respondents;

(1) Petitioner v. Weapon Zimik polled -2,440 votes.

(2) Respondent No (Returned candidate)

Dr. Mashangthei Horam, polled -8,716 votes.

(3) Respondent No. 2,

David NK Shimmy, polled -5,054 votes

(4) Respondent No. 3, S. Kapow polled -984 votes.

(5) Respondent No. 4, Khathing polled -2984 votes.

(6) Respondent No. 5,

R.V. Mingthing, polled , -1,687 votes.

(7) Respondent No. 6, P. Rathing polled-1,129 votes.

In order to appreciate the problems, few basic facts may be noted. This petition was filed on 7.4.95. The Hon''ble Chief Justice, in exercise of power conferred by Section 80A(2) of the Representation of the People Act, 1951 (in short the Act), has assigned me the duties of exercising the jurisdiction of the High Court in regard to the trial of this Election petition by an order dated 20.5.95. Thereafter, the file was placed before me on 19.6.95. After completing the service and other formalities, issues were framed on 18.9.97. 10.11.97 was fixed for filing list of witnesses and documents on behalf of the Petitioner. Although it was stated by learned Counsel for the Petitioner that the list of witnesses and documents have already been filed, it was later proved to be incorrect. This shows that the Petitioner has not filed list of witnesses and documents on 10.11.97. On 18.11.97, at the prayer of counsel for the Petitioner he was directed to file list of witnesses and documents within two weeks as a last chance. It again came up on 19.1.98, and at the prayer of the counsel for the Petitioner, the matter was listed again 27.1.98. It was taken up on 28.1.98, and on that day also Petitioner has not taken any steps for filing of list of witnesses and documents, and at the prayer of counsel for the Petitioner, the matter was adjourned to 3.2.98 to file list of witnesses and documents as a last chance. On that day the court also observed that if the list of witnesses and documents are not filed on the stipulated day, law will take its own course. It is only on 3.2.98 the Petitioner has filed list of witnesses and documents.

As already stated, this petition was filed on 7.4.95 and the Petitioner has filed list of witnesses and documents only on 3.2.98, after lapse of about more than 2 years. On 3.2.98, the court also directed Petitioner to take steps for service of notice upon the witness No. 12 for appearing on 12.2.98. Petitioner did not take any steps for service of notice and it was adjourned to 18.2.98 as prayed for. At the prayer of counsel for the Petitioner, it was further adjourned to 19.2.98 at 2 P.M. Petitioner examined himself as P.W. 1 on 20.198. On 20.3.98, the cross examination of the Petitioner by the counsel for the Respondent No. 7 was completed, but he did not sign the portion of his cross examination by counsel for the Respondent No. 7 inspite of repeated reminders.

21.4.98 was fixed for further examination of P.Ws. On that day Mr. NPC Singh, counsel for the Petitioner submits that due to personnel difficulties the Petitioner shall not be in'' a position to produce the Witnesses till 2nd week of May, 1998 and it was posted on 18.5.98 for examination of P.W. son 18.5.1988, ajunior counsel of Mr. N.R.C. Singh expressed his inability to produce any witness on behalf of the Petitioner due to non-co-operation of the Petitioner, and it was fixed on 25.5.98 for examination of P.Ws. In the meantime, P.Ws. 2 and 3 have been examined and cross-examined, and thereafter, examination of P.Ws. was fixed on 16.2.99 by an order dated 27.1.99.

On 16.2.99, no witness was produced by the Petitioner. It is submitted by Mr. NPC Singh that the Petitioner has not contacted him for the last 6(six) months, and in this view, he expressed his inability to produce any witnesses. He also stated that it appears the Petitioner has lost interest to prosecute his case.

Mr. T. Nandakumar, counsel for the Respondent No. 1 and Mr Shyamkishore, counsel for the Respondent No. 7 accordingly submits that this petition may be dismissed for non-prosecution. It is in this circumstances that the parties were heard on 16.2.99, and order was reserved.

The sole question posed before this Court for determination is that, whether the election petition can be dismissed by invoking the power under Order IX and Order XVII of the CPC for non-prosecution, in absence of any specific provision for the purpose under the Act.

There is no distinct provision under the Act laying down procedure to be followed when Petitioner commits default either in appearance or in production of evidence or prosecuting the petition. On the other hand, eleborate procedure has been laid u/s 109 and 110 of the Act in the case the Petitioner choses to file an application for withdrawal of the petition.

The full bench of Punjab and Haryana High Court in Jugal Kishore s/o Lal Chand, Petitioner v. Doctor Baldev Prakash Respondent AIR 1968 P& H 37, had held that the provision of CPC as visualised u/s 87 of the Act would be applicable and the election petition can be dismissed for non-prosecution under order IX and Order XVII.

In Sunderlal Mannalal Vs. Nandramdas Dwarkadas and Others, the Division Bench had held the same view. M. Hidayatullah C.J. (as his Lorship then was) speaking for the court observed;

The Act does not give any power of dismissal. But it is axiomatic that no Court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. The dismissal, therefore, is under an inherent power which every tribunal possesses. No express provision in the Act was necessary to empower the court to make the order of dismissal in default

This Court in K. Vungzalian Vs. J.F. Rathangliana and Others, held the same view. I am in respectful agreement with the view taken in the aforesaid decisions, because of the reasons which I shall be dealing presently.

Section 83 of the Act deals with the contents of election petition, and states;

(a) ...

(b) ...

(c) shall be signed by the Petitioner and verified in the manner laid down in the CPC 1908 (5 of 1908) for the verification of pleadings:

Section 87 of the Act deals with the procedure before the High Court and it enjoins that election shall be tried by the High Court as nearly as may be, in accordance with the procedure applicable under the CPC to the trial of suits.

A fascicule reading of Sections 83 and 87 of the Act, would make it amply clear that although no distinct provision for dismissal of the election petition in default has not been provided, since the procedure under the CPC has to be followed before the High Court, the election petition could well be dismissed under Order IX and Order XVII of the CPC This apart, the High Court being a court of records, it has an inherent power to determine its own jurisdiction and procedure to be followed.

Section 86 of the Act, deals with the trial of election petition, Section 86(7) provides that, "Every election petition shall be tried as expenditiously as possible and endeavour shall be made to conclude the trial within six months from the date oh which the election petition is presented to the High Court for trial. It is, therefore, not the intention of the legislature to keep the election petition alive even if the Petitioner commits default in appearance or in production of witnesses. The generic sense that, the litigation must come to an end, is based on sound public policy, so that opposite parties are not vexed for more than necessary. It is a common knowledge that election petition could not be tried as expeditiously as possible and cannot be concluded within six months from the date of election petition as visualises under the Act. Unless the election Petitioner pursued his case diligently and actively by producing witnesses cited by him and by appearing in the court as and when fixed, and by contacting his counsel and render necessary instructions. This apart, the laches and negligence of the election Petitioner in pursuing his election petition exposed the merit of his election petition. In the instant case, the election Petitioner even disowned his own statement by refusing to sign his statement made in cross examination by counsel for the Respondent No. 7, apart from non-appearance and non-production of the material witnesses cited by him. I am told that the next general election in the State of Manipur is due some time in December, 1999.

In the facts and circumstances recited above, I have no alternative but to dismiss this election petition for non-prosecution under Order IX and Order XVII Code of Civil Procedure.

Parties aife asked to bear their own costs.