Madhya Pradesh High Court

Satyanarayan Patel vs Shri Mahendra Hardia on 21 April, 2022

Author: Anil Verma

1                                                         EP No.3/2019




           IN THE HIGH COURT OF MADHYA PRADESH
                               AT INDORE
                                BEFORE

               HON'BLE SHRI JUSTICE ANIL VERMA

                     ON THE 21st OF APRIL, 2022

                  ELECTION PETITION No. 3 of 2019

     Between:-
     SATYANARAYAN PATEL S/O SHRI RAMESHWAR PATEL ,
     AGED ABOUT 51 YEARS, OCCUPATION: AGRICULTURIST
     R/O    H.NO.    143    BICHOLI      MARDANA    INDORE       M.P.
     (MADHYA PRADESH)
                                                    .....PETITIONER
     (None present for the petitioner)

     AND

     SHRI MAHENDRA HARDIA / R/O H.NO. 6 GALI NO. 1
1. NAVLAKHA           MAIN     ROAD      INDORE    M.P.   (MADHYA
     PRADESH)
     SHRI CHHOTE LAL S/O N/M R/O H.NO LUV KHU
2.
     COMPLEX KALYAN MILL INDORE (MADHYA PRADESH)
     DONGER SIGNG GOYAL S/O N/M H.NO 53 SHANTI SONIA
3.
     GANDHI NAGAR (MADHYA PRADESH)
     KAILASH KUMAWAT S/O N/M 185 MAHADEV TOTLA
4.
     NAGAR INDORE (MADHYA PRADESH)
     ZAHEERUDEEN S/O N/M R/O H.NO 5 AMAN NAGAR
5.
   KHAJRANA (MADHYA PRADESH)
6. PRABHU DAYAL S/O N/M R/ GRAM LASUDIYA MORI
 2                                                            EP No.3/2019




      TEHSIL AND (MADHYA PRADESH)
      BHUPENDRA CHOURASIYA S/O N/M R/O H.BNO 51 SWAMI
7.
      VIVEKANDANDA NAGAR (MADHYA PRADESH)
      MUKESH KUMAR DWIVEDI S/O N/M R/O H.NO 506
8. SHAGUN         RESIDENCY        KANADIYA         ROAD      (MADHYA
      PRADESH)
      SHAILENADRA KUMARI RANAWAT D/O N/M R/O H.NO 76
9. AMBIKA NAGAR KANADIYA ROAD INDORE (MADHYA
      PRADESH)
      SANTOSH MEENA S/O N/M R/O H.NO 55-56 KUKSHWAHA
10.
      SHRI NAGAR (MADHYA PRADESH)
      ASHOK BALKRISHNA S/O N/M R/O H.NO 236 PANCHAM
11.
      KE FAIL (MADHYA PRADESH)
      MOHAMMAD IMTIYAZ KHAN S/O N/M R/O H.NO 1 HAZI
12.
      MADNI BAGH COLONY KHAJRANA (MADHYA PRADESH)
                                                   .....RESPONDENTS
      (SHRI Vishal Baheti Adv. For respondent No.1 )
        This Election Petition coming on for orders this day, the court
passed the following:

                               ORDER

1/ None for the petitioner. Even in the pass over round nobody has appeared on behalf of the petitioner.

2/ This is the 3rd consecutive occasion when nobody has appeared on behalf of the petitioner. On the last date of hearing i.e. 8.3.2022 this Court had issued specific direction that last chance is given to the petitioner to appear and prosecute this petition, but despite the above mandatory direction the petitioner neither appeared before this

Court and nor paid the process fees and produced the correct address of the respondent No.3.

3/ The Hon'ble Apex Court in the case of P. Nalla Thampy Thera Vs. B.L. Shankar reported in 1984 Supp SCC 631 has observed as follows:-

"16. There is no support in the statute for the contention of the appellant that an election petition cannot be dismissed for default. The appellant contended that default of appearance or non- prosecution of the election petition must be treated as on par with withdrawal or abatement and therefor, through there is no clear provision in the Act, the same principle should govern and the obligation to notify as provided in Section 110 or 116 of the Act should be made applicable. We see no justification to accept such a contention. Non-prosecution or abandonment is certainly not withdrawal. Withdrawal is a positive and voluntary act while non- prosecution or abandonment may not necessarily be an act of volition. It may spring from negligence, indifference, inaction or even incapacity or inability to prosecute. In the case of withdrawal steps are envisaged to be taken before the Court in accordance with the prescribed procedure. In the case of non-prosecution or abandonment, the election petitioner does not appear before the Court and obtain any orders. We have already indicated that the Act is a self-contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy. In fact, the terms of Section 87 of the Act clearly prescribe that if there be no provision in the Act to the contrary, the provisions of the Code would apply and that would include Order 9, Rule 8 of the Code, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the election petition"

4/ Full Bench of the Allahabad High Court in the case of Duryodhan Vs. Sitaram and others reported in AIR 1970 Allahabad 1 has held as under:-

"49. In my opinion Order 9 and 17 of the Code of Civil Procedure are applicable to the trial of an election petition both under Section 90(1) as well as Section 92 (e) of the Representation of the People Act."

5/ The coordinate bench of this Court in the case of Peeyush Sharma Vs. Yashodhra Raje Scindhia in Election Petition No.14/2014 vide order dated 22.6.2015 has held as under:-

"Keeping in mind the provision of Section 109 & 110 of the Representation of People Act, 1951, non-prosecution of election petition or default of appearance by petitioner is examined.

Whether the default of appearance or non prosecution can be treated as on par with withdrawal or abandonment?

There is clear provision in the said Act, 1951. In the opinion of this Court, non-prosecution or abandonment is certainly not withdrawal. Withdrawal is positive or voluntarily act while non prosecution or abandonment may not necessarily be an act of volition. Non- prosecution or abatement might have caused due to negligence, indifference, inaction or even in-capacity or inability to prosecute. But, it cannot be equated to that of withdrawal. Legislature has incorporated or envisaged different steps in case of withdrawal. But in case of non-prosecution or abandonment, if the election petitioner does not appear before the Court, the statute has not provided any prescribed procedure. This Court has hesitation to lay down different procedure, then what has been provided in the statute. Nor the provision of the Representation of People Act, 1951 can be enlarged or extended by analogy.

Section 87 of the Act, 1951 provides that if there is no provision in the Act to the contrary, provisions of Civil Procedure Code 1908 would apply, which include Order 9 Rule 8 Code of Civil Procedure under which the election petition is liable to be dismissed, if the petitioner does not appear to prosecute the petition. As there is no provision, in the Act, 1951 as regard when the petitioner chooses to commit default either in appearance or in prosecuting the petition, certainly, the provision of Code of Civil Procedure, 1908 would apply, as is provided under Section 87 of the Act, 1951. Therefore, in absence of any express provision, Order 9 Rule 8 of the Code of Civil Procedure will apply. This view is fortified by the judgments rendered in Sunderlal Mannalal Vs. Nandramdas Dwarkadas (AIR 1958 260), Full Bench of the Allahabad High Court in Duryodhan Vs. Sitaram (AIR 1970 Allahabad -1), Rajendra Kumari Bajpai Vs. Ram Adhar Yadav (1976 1 SCR 255) and Full Bench decision of "Dr. P. Nalla Thampy Thera Vs. B.L. Shanker and others (AIR 1984 SC 135). It is not necessary for this Court to express any opinion as to whether the omission to do so by the petitioner is deliberate or inadvertant, but the fact remains that the petitioner has failed to appear and has committed default of appearance or there is non prosecution of the election petition.

In view of the above discussion, and looking to the ratio of the decisions mentioned above, the present election petition is hereby dismissed in default."

6/ In view of Section 87 of the Representation of People Act, 1951, the provision of Code of Civil Procedure are applicable on the election petition. Though the Act does not give any power for dismissal of election petition for the non prosecution, but no court or tribunal is supposed to continue proceedings before it when a party who has moved it, has not appeared. The Court can hardly compel an unwilling party to

prosecute its litigation, even such inaction may spring from negligence, indifference or even incapacity or inability. In such situation the only option left with the Court to dismiss the election petition under the Code of Civil Procedure. Therefore, this court has no hesitation in coming to the conclusion that an election petition can be dismissed in default or for non prosecution, as the case may be.

7/ In the present case, in spite of several and sufficient opportunities given on 25.1.2022 & 8.3.2022, today also petitioner has not appeared before this Court and he has not done the needful to prosecute this petition. Therefore, it is apparent that he is not interested to prosecute this election petition.

8/ Hence, in view of the foregoing analysis, the present election petition is hereby dismissed in default and also for want of prosecution.

No order as to the cost.

C.C. as per rules.

(Anil Verma) Judge Trilok/-