Manipur High Court
Shri Lorho S. Pfoze vs Houlim Shokhopao Mate @ Benjamin ... on 29 September, 2022
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Digitally signed
KABOR by
KABORAMBAM
IN THE HIGH COURT OF MANIPUR
AMBAM LARSON
Date:
AT IMPHAL
LARSON 2022.10.01
10:56:06 +05'30'
MC(Election Petion) No.141 of 2022
Ref:- Election Petition No.1 of 2019 (D/C)
Shri Lorho S. Pfoze, aged about 61 years S/O Late A. Sibo
Pfoze, resident of Kayinu Village, P.O. & P.S.-Mao, District-
Senaapati, Manipur-795150.
....... Applicant/s
- Versus -
1. Houlim Shokhopao Mate @ Benjamin aged about 36
years S/O (L) H. Jamkhokhai Mate, resident of Tengnoupal
Village, P.O. & P.S.-Tengnoupal, District-Tengnoupal,
Manipur-795131;
2. Angam Karung Kom, aged about 67 years, S/O Late
Ashong Kom, resident of K.R. Lane, P.O. & P.S.-Porompat,
District-Imphal East, Manipur-795005;
3. Shri Hangkhngpau Taithul, aged about 57 years, S/O Late
T. Doupu, resident of Singngat Hausa Veng, P.O. & P.S.-
Singngat, Churachandpur District, Manipur-795139;
MC(Election Petition) No.141 of 2022
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4. Mr. Ashang Kasar @ Wungnaishang Kasar @ Wungnao
Shang Kasar, aged about 45 years, S/O Ngashathing Kasar,
resident of Chadong Village, P.O. & P.S.-Litan, Kamjong
District, Manipur-795145;
5. Leikhan Kaipu, aged about 56 years, S/O Late Leikhan
Kokan, resident of Heikakpokpi Village, P.O. Pallel P.S-Machi,
Machi Sub-Division, Tengnoupal District, Manipur-795135;
6. Thangminlien Kipgen, aged about 66 years, S/O Late
Thangpu Kipgen, resident of Haipi Village, P.O.-Kalapahar,
Kangpokpi District, Manipur-795122;
7. Shri K. James, aged about 58 years, S/O Late K.
Ngatangmi, resident of Tangkhul Hungdung Khullen, P.O.
Lamlong, P.S.-Litan, Kamjong District, Manipur-795010.
-Presently residing at JIM Blessing Home, Sangaiprou
Mamang Leikai, Airport Road, P.O. & P.S.-Singjamei, Imphaal
West District, Manipur-795008.
.... Respondent/s
MC(Election Petition) No.141 of 2022
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BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Applicant/s : Mr. HS Paonam, Senior Advocate
For the Respondent/s : Mr. A. Mohendro, Advocate
Mr. Ajoy Pebam, Advocate
Date of Hearing &
Judgment & Order : 29.09.2022.
JUDGMENT & ORDER
(ORAL)
This application has been filed by the applicant under Section 116B(1)
of the Representation of People Act, 1951 to stay of the operation of the
judgment dated 23.9.2022 passed in Election Petition No.1 of 2019 till
preferring appeal before the Hon'ble Apex Court.
[2] Heard the argument of Mr. HS Paonam, learned senior counsel for the
applicant and Mr. Ajoy Pebam, learned counsel and Mr. A. Mohendro, learned
counsel for the first respondent.
MC(Election Petition) No.141 of 2022
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[3] Mr. HS Paonam, learned senior counsel for the applicant submitted
that this Court by the judgment dated 23.09.2022 in Election Petition No.1 of
2019 has passed the following order:
"146. In the result,
a) the Election Petition is allowed by declaring the election of the Respondent
No. 1 as Member of 2-Outer Manipur (ST) Parliamentary Constituency to the
17th Lok Sabha, 2019 as null and void;
b) this Court declared that the Petitioner is duly elected as a member of 2-Outer
Manipur (ST) Parliamentary Constituency;
c) both the parties are directed to bear their own cost."
[4] The learned counsel for the applicant submitted that after passing the
judgment, the applicant has filed MC (EP) No.141 of 2022 seeking the following
prayers:
i) allow the present application filed under Section 116B(1) of the
Representation of People Act, 1951;
MC(Election Petition) No.141 of 2022
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ii) stay the operation of the judgment and order dated 23.09.2022 during the
time allowed for preferring an appeal as per Section 116B(1) of the
Representation of People Act, 1951.
[5] When MC (EP) No.141 of 2022 is taken up for hearing on 28.9.2022,
the learned counsel for the first respondent has made his submissions,
however, the learned senior counsel appearing for the applicant sought time to
file an additional affidavit. At the request of the learned counsel for the
applicant, the matter is adjourned to today and today when the Miscellaneous
Case is taken up, the learned senior counsel has filed an additional affidavit.
In the said additional affidavit, the applicant has given reason for seeking stay
of the operation of the judgment dated 23.09.2022 in the following lines:
"2. That the deponent has filed the above referred Misc. Application under
Section 116B(1) of the Representation of People Act, 1951 praying for stay of
operation of the judgment and order dated 23.09.2022 during the time allowed
for preferring an appeal.
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3. That it is humbly stated that after hearing the parties on 08/06/2022,
09/06/2022, 17/06/2022, 11/07/2022, 13/07/2022, 09/07/2022, 22/07/2022,
25/07/2022 and on 26/07/2022, the Hon'ble High Court of Manipur passed the
judgment and order on 23.09.2022, allowing the Election Petition No. 1 of 2019,
thereby declaring the election of the present applicant as Member of 2-Outer
Manipur (ST) Parliamentary Constituency to the 17 th Lok Sabha, 2019 as null
and void and also declaring that the election petitioner (present respondent No.
1) is duly elected as a member of 2-Outer Manipur (ST) Parliamentary
Constituency.
4. That the deponent humbly submits that he got a copy of the judgment and
order dated 23.09.2022 only in the evening of the of the same day around 6:00
pm through one of his counsel as the deponent, being the sitting Member of
Parliament, was staying in New Delhi, and upon discussion for preferring an
application under Section 116(B) of the RP Act before preferring an Appeal
before the Hon'ble Supreme Court of India being a remedy available as
provided by law, the deponent flew down to Imphal from New Delhi on 25 th
September, 2022 for preferring an application before the Hon'ble High Court of
Manipur under Section 116(B)(1) of the Representation of People Act, 1951,
which was proposed to be filed on 27th September, 2022. Mention may be made
MC(Election Petition) No.141 of 2022
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that the judgment and order dated 23.09.2022, passed in Election Petition No.1
of 2019, was delivered on Friday and the above referred application could be
filed only on 27th September, 2022 as High Court was closed on 24 th
September, 2022 being a Saturday, 25th September, 2022 being a Sunday and
26th September, 2022 being a holiday due to Mera Chaoren Houba.
5. That it is humbly stated that counsel for the deponent could apply for a
certified copy of the judgment and order dated 23.09.2022 only on 27 th
September, 2022 under urgent category and the certified copy of the said
judgment and order is yet to be delivered as such pending before the High
Court.
6. That it is also stated that the Hon'ble Supreme Court of India will be on
holiday from 3rd October, 2022 till 8th October, 2022 on the occasion of
Dussehra Holidays and the proposed appeal under the RP Act will be filed on
the reopening of the Hon'ble Supreme Court.
7. That under the present circumstances, if the judgment and order dated
23.09.2022 is given effect to the deponent/applicant shall suffer irreparable loss
and preferring an appeal as provided by the statute would be rendered
MC(Election Petition) No.141 of 2022
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meaningless, These being sufficient cause in preferring the above referred
application is filed for consideration by this Hon'ble Court since interim stay for
a limited period in any circumstances will not cause any prejudice the Election
Petitioner in any manner during the intervening period in the event this Hon'ble
Court consider passing of limited stay as the deponent is allowed by the statute
to approach the Hon'ble Supreme Court by an appeal within a period of thirty
days from the date of judgment, an order for stay of operation of the judgment
and order dated 23.09.2022, passed in the above referred Election Petition No.
1 of 2019, is called for during the time allowed for preferring an appeal as per
Section 116B(1) of the Representation of People Act, 1951."
[6] Highlighting the averments set out in the additional affidavit, the learned
senior counsel prays for allowing of MC (EP) No.141 of 2022, thereby staying
the operation of the judgment dated 23.9.2022 passed in Election Petition No.1
of 2019.
MC(Election Petition) No.141 of 2022
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[7] Opposing the application for stay and the additional affidavit, the learned
counsel for the first respondent has filed written objection by raising the issue
of maintainability of the additional affidavit as under:
"(I) For that, the proceeding for trial of the Election Petition is as per the Code
of Civil Procedure, 1908 and there is no such provision for filing the Additional
Affidavit for modification or any other additional pleading of an Misc.
Application;
(II) For that, if the Applicant would like to add the additional pleading in his
M.C.(E.P.) No.141 of 2022, the Applicant should file an application under Order
VI Rule 17 of the C.P.C., 1908;
(III) For that, the present Additional Affidavit dated 28/09/2022 is not
maintainable as the Applicant file with a malafide intention to fill up the lacuna
of his Misc. application.
[8] In the written objection, the first respondent has stated as under:
"4. That, with reference to the Para No. 3 of the Additional Affidavit dated
28/09/2022 of the Applicant, the answering Respondent No. 1 begs to submit
MC(Election Petition) No.141 of 2022
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that instead of filing the M.C. (E.P.) No. 141 of 2022, the Applicant could have
filed the Appeal before the Hon'ble Supreme Court of India on 26/09/2022 as
the Applicant has enough time to file if the Applicant is willing to file. However,
the M.C. (E.P.) No. 141 of 2022 is nothing but to delay the matter. It is further
submitted that if the Applicant was staying at Delhi while passing the Judgment
and Order dated 23/09/2022, the Applicant could approach the Hon'ble
Supreme Court of India instead for coming to Imphal and the Applicant has the
enough time to approach the Hon'ble Supreme Court of India by filing Appeal if
the Applicant is really willing to file.
5. That, with reference to the Para No. 5 of the Additional Affidavit dated
28/09/2022 of the Applicant, the answering Respondent No.1 begs to submit
that the Applicant can approach the Hon'ble Supreme Court without obtaining
the certified copy of the Judgment and Order dated 23/09/2022 by taking leave
of the Hon'ble Supreme Court of India. As such, the present para is not relevant
with the present issue of the case.
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6. That, with reference to the Para No. 6 of the Additional Affidavit dated
28/09/2022 of the Applicant, the answering Respondent No.1 begs to submit
that before Supreme Court's holiday, the Applicant has enough time to
approach the Hon'ble Supreme Court ie. from 26/09/2022 to 30/09/2022.
7. That, with reference to the Para No. 7 of the Additional Affidavit dated
28/09/2022 of the Applicant, the answering Respondent No, 1 begs to submit
that the provision of the Section 116(B\1) of the Representation of People Act,
1951, is very clear that the Applicant should show the sufficient cause for
staying the operation of Order of the Hon'ble High Court but the Applicant fails
to show the sufficient cause for staying the Judgment dated 23/09/2022 in his
pleading. Moreover, the Applicant has committed illegality by giving false
information in filing Form 26 Affidavit dated 21/03/2019 along with his
Nomination paper of the 17th Lok Sabha Election, 2019 and also committed
illegality in maintaining his election expenditures and the said illegalities were
also admitted by the Applicant. As such, there is no such evidence either oral
or documentary in which the Applicant can defence his case and accordingly,
no prime facie case is made out for winning his case in appeal."
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[9] The learned counsel for the first respondent submitted that though the
applicant has enough time to prefer an appeal against the judgment dated
23.9.2022, in order to delay the further process pursuant to the judgment and
enjoy the fruits of the order by the first respondent, the present application MC
(EP) No.141 of 2022 has been filed. Thus, the learned counsel prays for
dismissal of MC (EP) No.141 of 2022.
[10] Admittedly, this Court has passed order dated 23.09.2022 in Election
Petition No.1 of 2019 declaring the applicant who is respondent No.1 in the
Election Petition No.1 of 2019 about his Election as Member of 2-Outer Manipur
(ST) Parliamentary Constituency to the 17 th Lok Sabha, 2019 as null and void.
Therefore, Mr. HS Paonam, learned senior counsel for the applicant has filed
the present application under Section 116B (1) of the RP Act, 1951.
[11] Section 116B of the Representation of Peoples' Act, 1951 provides:-
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"116B. Stay of operation of order of High Court.----(1) An application may be
made to the High Court for stay of operation of an order made by the High Court
under section 98 or section 99 before the expiration of the time allowed for
appealing there from and the High Court may, on sufficient cause being shown
and on such terms and conditions as it may think fit, stay the operation of the
order, but no application for stay shall be made to the High Court after an appeal
has been preferred to the Supreme Court.
(2) Where an appeal has been preferred against an order made under section
98 or section 99, the Supreme Court may, on sufficient cause being shown and
on such terms and conditions as it may think fit, stay the operation of the order
appealed from.
(3) When the operation of an order is stayed by the High Court or, as the case
may be, the Supreme Court, the order shall be deemed never to have taken
effect under sub-section (1) of section 107; and a copy of the stay order shall
immediately be sent by the High Court or, as the case may be, the Supreme
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Court, to the Election Commission and the Speaker or Chairman, as the case
may be, of the House of Parliament or of the State Legislature concerned.
[12] The provision aforesaid empowers grant of stay of operation of the
order of the High Court, if the applicant has given sufficient cause. Section
116B(1) further provides after filing the appeal, the High Court should not invoke
the said provision by granting stay of the operation of the High Court's order.
But, in the case on hand, the applicant has given reason and stated that the
appeal is yet to be filed before the Apex Court.
[13] At this juncture, the learned senior counsel for the applicant submitted
that preparing of appeal before the Hon'ble Apex Court will take some time.
Moreover, pooja holidays for the Hon'ble Apex Court are intervening from
3.10.2022 till 8.10.2022 and the appeal will be filed only after pooja holidays.
[14] Since the applicant has shown sufficient cause in the application for
stay of the operation of the judgment dated 23.9.2022 passed in Election
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Petition No.1 of 2019, in the interest of justice, this Court is inclined to consider
the application of the applicant for a limited period.
[15] Accordingly,
(a) MC(Election Petition) No.141 of 2022 is allowed.
(b) The applicant is granted two weeks' time from today i.e., 29.9.2022 till
13.10.2022 for filing an appeal before the Hon'ble Apex Court.
(c) Till such time, there shall be an order of interim stay of the operation of the
judgment dated 23.9.2022 passed in Election Petition No.1 of 2019.
JUDGE
FR/NFR
-Larson
MC(Election Petition) No.141 of 2022
