Aadi Sreenivas, Karimnagar Dist. vs Ramesh Chennamaneni, Karimnagar ...
2023 Latest Caselaw 134 Tel

      THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO



            Application No.25 of 2015 in E.P.No.5 of 2014




ORDER:

This application has been filed invoking Section 10 CPC to stay all further proceedings in E.P.No.5 of 2014.

2. The 1st respondent herein had filed E.P.No.5 of 2014

challenging the election of petitioner herein as the returned

candidate of No.28-Vemulawada Assembly Constituency in the

General Election held on 30-04-2014, the results of which are declared on

16-05-2014 on the ground that he was a not a citizen of India on

the date of election and so, he was not qualified to be chosen to

fill the seat in Legislature of the State of Telangana under Articles 173 and Sec.16 of the Representation of the People Act, 1950 and to declare his election to be void under Section 100(1)

(a) of the Representation of People Act, 1951.

3. It is not in dispute that the petitioner herein had also got elected in the bye-election held on 27-07-2010 to the same

constituency and this had been questioned by 1st respondent

herein in E.P.No.1 of 2010 on the same ground i.e. the petitioner was not a citizen of India on the date of election.

4. After contest, by order dt.14-08-2013, this Court had allowed

the said E.P., and declared that the petitioner was not a citizen of India. The petitioner had questioned the same in Civil Appeal

Nos.8431-8432 of 2013 in the Supreme Court of India. The said Court admitted the appeals and granted interim orders on 07-10-

2013 and the said appeals are pending adjudication before the Supreme Court.

5. In the present application, the petitioner contends that the

issue raised by 1st respondent in the present Election Petition

No.5 of 2014 and also in the earlier E.P.No.1 of 2010 is one and

the same and since the appeal before the Supreme Court against the order dt.14-08-2013 in Civil Appeal Nos.8431-8432

of 2013 is still pending, the proceedings in E.P.No.5 of 2014 be

stayed/deferred till the Supreme Court adjudicates the Civil Appeals mentioned supra.

6. The 1st respondent filed a counter-affidavit opposing grant of

any relief to petitioner in this application. He contended that the

cause of action in E.P.No.1 of 2010 was the election held on 27-07-2010 whose result declared was on 30-07-2010, whereas

in the present Election Petition filed by 1st respondent, the cause

of action arose on 30-04-2014 when the election was held and

on 16-05-2014 when the results were declared. He therefore

contended that the provisions of Section 10 CPC are not applicable to the present case. He also contended that the

Election Petition is not a suit and therefore the provisions of

Section 10 CPC cannot be applied. He further contended that an

order in an Election Petition is not a judgment in rem and an adjudication therein is only a statutory challenge on the question

whether election of a successful candidate is liable to be

avoided on any of the grounds available under Section 100 of the Representation of the People Act, 1951; that every election

furnishes a fresh cause of action for challenge; and adjudication of a prior Election Petition cannot be conclusive in a subsequent

proceeding and does not operate as res judicata. He relied upon the judgment of the Supreme Court in C.M.Arumugam Vs.

S.Rajgopal and others and Satrucharla Vijaya Rama Raju Vs.

Nimmaka Jaya Raju and others.

7. I have noted the submissions of both sides.

8. I n C.M.Arumugam (1 supra), an election was held in the

year 1967 to the Mysore Legislative Assembly to a seat reserved for Scheduled Castes. The respondent in the Supreme

Court claimed to be such a Scheduled Caste and claimed to be belonging to Adi Dravida caste professing Hindu religion and on

that basis he filed his nomination for the said Constituency. The appellant before the Supreme Court contested against him in the

said election. The 1st respondent was declared as elected. The appellant thereupon filed E.P.No.4 of 1967 before the Mysore

High Court challenging the election of 1st respondent on the

ground that 1st respondent was not an Adi Dravida professing

Hindu religion on the date when he filed his nomination and was, therefore, not qualified to stand as a candidate for the reserved

seat from 68 KGF constituency. The Mysore High Court, by an

order dt.30-08-1967, held that 1st respondent had converted to Christianity in 1949 and on such conversion, he ceased to be an Adi Dravida, and therefore, at the material date, he could not be

said to be a member of a Scheduled caste community, nor did he profess Hindu religion, and he was consequently not eligible for being chosen as a candidate for election from a reserved

constituency. This was questioned in Civil Appeal No.1553 of 1967 in the Supreme Court under Section 116A of the Representation of People Act, 1951. The Supreme Court upheld

the decision of the High Court. It held that on reconversion to Hinduism, a person can become a member of the same caste in

which he was born and to which he belonged before having been converted to another religion. If the members of the caste accept the reconversion of a person as a member, it should be

held that he does become a member of that caste, even though he may have lost membership of that caste on conversion to

another religion.However on facts, it held that 1st respondent did not give evidence to satisfy the requirements laid down above

and failed to establish that he became a member of the Adi Dravida Hindu caste after he started professing the Hindu religion. The next General Election to the Mysore Legislative

Assembly took place in the year 1972 again. The appellant before the Supreme Court filed his nomination as a candidate

and so did the first respondent before the Supreme Court. The

nomination of the 1st respondent was, however, objected to by

the appellant on the ground that 1st respondent was not an Adi Dravida professing Hindu religion on the date of filing his nomination and he was, therefore, not qualified to stand as a

candidate for the reserved seat from this constituency. The

Returning Officer rejected the nomination of 1st respondent and

the appellant was declared elected. The 1st respondent then filed Election Petition No.3 of 1972 challenging the election of the appellant in the High Court of Mysore on the ground that his

nomination was improperly rejected. The Supreme Court held

that although in its earlier judgment it had held against 1st

respondent that on embracing Christianity in 1949, the 1st respondent ceased to be a member of the Adi Dravida, this decision given in a case relating to 1967 General Election on the basis of the evidence led in that case, cannot be

res judicata in the subsequent case which relates to the 1972 General Election where fresh evidence has been adduced on behalf of the parties. More so, when all the parties in the present

case are not the same as those in the earlier case. It therefore held that that it was competent for it to consider whether, on the evidence on record in E.P.No.3 of 1972, it can be said to have

been established that, on conversion to Christianity in 1949, the

1st respondent ceased to belong to Adi Dravida caste. It went on

to appreciate the evidence on record and held in favour of the 1st respondent. It agreed with the High Court that the nomination of

1st respondent was improperly rejected by the Returning Officer

and this event invalidated the election under Section 100(1)(c) of the Representation of the People Act, 1951. It confirmed the

decision of the High Court setting aside the election of 1st respondent and declared it as void.

9. This principle was followed in Satrucharla Vijaya Rama Raju (2 supra). In that case also the appellant had successfully contested State Assembly Elections in 1999 from No.8 Naguru

(ST) Assembly Constituency in the State of Andhra Pradesh. His

election was challenged by 1st respondent therein in Election Petition No.13 of 1999 under Section 80 of the Representation of the People Act, 1951 read with Sections 5 and 100(1)(d)(i) of the

Act. It was contended by 1st respondent that the appellant was not qualified to contest from a constituency reserved for the

Scheduled Tribes since the appellant was a 'Kshatriya" and was not eligible to contest from the constituency reserved for the

Scheduled Tribes. The 1st respondent contended that the claim of appellant that he belongs to 'Konda Dora' tribe was not true; he was ineligible to contest from the constituency; and his election is liable to be declared void and set aside. The appellant

on the other hand contended that he belongs to the 'Konda Dora' tribe which was a notified Scheduled Tribe. He pleaded that his earlier election from the same constituency was challenged by a voter in Election Petition No.13 of 1983 on the very same ground that he did not belong to the "Konda Dora"

tribe; that the said Election Petition was dismissed; and the said decision barred a fresh enquiry into the same question in the present Election Petition and the decision therein was conclusive on his status. The High Court, after appreciation of evidence, took the view that the appellant did not belong to "Konda Dora" community, a Scheduled Tribe and was

consequently ineligible to contest the election from a constituency reserved for the Scheduled Tribes. It held that the judgment dt.16-01-1984 in E.P.No.13 of 1983 did not operate as res judicata on the status of the appellant as far as the present Election Petition is concerned; that the judgment in E.P.No.13 of

1983 was not a judgment in rem and could not bind those who were not parties to it and that the said adjudication did not bar the trial of the present Election Petition. The Supreme Court affirmed the view of the High Court. It also reaffirmed the decision in C.M.Arumugam (1 supra) and held that every election furnishes a fresh cause of action for a challenge to that

election and adjudication in a prior Election Petition cannot be conclusive in the subsequent proceedings. It held that the Election Petition in that case was not between the same parties and on that ground also it would not operate as res judicata. It also rejected the submission that the judgment in an Election Petition can be treated as a judgment in rem. It also held that a challenge to an Election Petition is only a statutory challenge

under the Representation of the Peoples Act, 1951 and since the acceptance of the challenge or the rejection of it in a given case would be based on facts and law therein, and since an adjudication therein is not one which comes directly within the purview of Section 41 of the Evidence Act, 1872, the same could not be treated as a judgment in rem. It upheld the decision of the

High Court that the finding given on appreciation of evidence in the earlier Election Petition would have no relevance in the latter Election Petition and the latter Election Petition has to be tried on the pleadings and the evidence available in that case.

10. I am of the considered opinion that these two decisions

squarely apply to the present case.

11. No doubt in E.P.No.1 of 2010 filed by 1st respondent questioning the election of petitioner in the by-election held on 27-07-2010, on the ground that the petitioner

was not a citizen of India on the date of said election, his election was set aside by the High Court. Civil Appeal Nos.8431-8432 of 2013 are pending against the said order. The adjudication in

E.P.No.1 of 2010 in favour of 1st respondent herein was on the basis of appreciation of evidence on record in the said E.P. The said adjudication cannot be treated as a judgment in rem. On this ground there is no need to stay the proceedings in the present E.P. till the Civil Appeals filed by respondent against the judgment in E.P.No. 1 of 2010 are decided.

12. Also the said judgment has not attained any finality because the Civil Appeals referred to above are still pending in the Supreme Court. So the principle of res judicata also will not be

attracted assuming for the sake of argument without conceding that it is attracted.

13. Now I will deal with the contention raised by petitioner relying

on Sec.10 CPC.

14. Section 10 CPC states :

"10. Stay of Suit: No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation: The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action."

15. Therefore to apply Section 10 CPC, the earlier proceeding

as well as the later proceeding must be suits and the further requirement is that the matter is in issue in the latter suit is also directly or substantially in issue in the previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title. No doubt an

Election Petition is a civil trial, but the same cannot be treated as suit.

16. Section 86 (6) of the Representation of the People Act, 1951 states:

" 86. Trial of election Petitions :-

(1) .... ....

(2) .... ....

(3) .... ....

(4) .... ....

(5) .... ....

( 6 ) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded."

17. Section 87 of the Representation of the People Act, 1951

states:

" 87.Procedure before the High Court :-

(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition."

18. The differences between trial of an election petition and trial of a suit have been explained succinctly by the Supreme Court of India in K.V.Rao v. B.V.Reddi in the following terms:

"The next section is a guide to the procedure to be adopted by the High Court in the trial of an election petition. This section does not equate an election petition with a suit but merely shows that subject to the provisions of the Act and of any rules made thereunder, the trial is to conform as nearly as possible to the trial of a suit under the Code of Civil Procedure. This means that (a) the contestants have a right to file written statements, (b) both parties must disclose the documents on which they reply; (c) they must examine witnesses orally, if necessary, to substantiate the charges levelled or the defences raised in the petition; and (d) the evidence to be adduced must comply with the requirements of the Indian Evidence Act. There are however certain limitations as to the questions which may put to a witness contained in Sections 94 and 95; the returned candidate has a right to recriminate under the provisions of Section 97. The High Court does not pass a decree as in the case of a suit but has to make an order in terms of Section 98 which gives the nature of the orders to be made. The High Court has to communicate the substance of its decision to the Election Commission and the Speaker or the Chairman as the case may be of the House of the People or of the State Legislature. Chapter IV deals with withdrawal and abatement of election petitions. Chapter IV-A deals with appeals from the decisions of the High Court and Chapter V deals with costs and security for costs.

9. The above brief analysis is sufficient to show that the trial of an election petition is not the same thing as the trial of a suit. As was pointed out by this Court in the case of Kamaraja Nadar v. Kunju Thevar1 the provisions of the Act

"go to show that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law...."

The Court also emphasised on the peculiar character of an election petition by quoting from the observations of A. Sreenivasan v. Election Tribunal, Madras2. Reference was also made to the Tipperary case3 where Morris, J. said:

".... a petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested."

10. This aspect of an election petition was emphasised again in the case of Basappa v. Ayyappa4 where it was held that the provisions of Order 23 Rule 1 of the Code of Civil Procedure do not apply to election petitions and it would not be open to a petitioner to withdraw or abandon a part of his claim once an election petition was presented to the Election Commission.

11. Even though Section 87(1) of the Act lays down that the procedure applicable to the trial of an election petition shall be like that of the trial of a suit, the Act itself makes important provisions of the Code inapplicable to the trial of an election petition. Under Order 6 Rule 17 CPC a court of law trying the suit has very wide powers in the matter of allowing amendments of pleadings and all amendments which will aid the court in disposing of the matters in dispute between the parties are as a rule allowed subject to the law of limitation. But Section 86(5) of the Act provides for restrictions on the power of the High Court to allow amendments. The High Court is not to allow the amendment of a petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. With regard to the addition of parties which is possible in the case of a suit under the provisions of Order 1 Rule 10 subject to the added party's right to contend that the suit as against him was barred by limitation when he was impleaded, no addition of parties is possible in the case of an election petition except under the provisions of sub-section (4) of Section 86. Section 82 shows who are necessary parties to an election petition which must be filed within 45 days from the date of election as laid down in Section 81. Under Section 86(1) it is incumbent on the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82. Again the High Court must dismiss an election petition if security for costs be not given in terms of Section 117 of the Act.

12. It is well settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation. But an election petition stands on a different footing. The trial of such a petition and the powers of the court in respect thereof are all circumscribed by the Act. The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a court of law unless the application thereof has been excluded by any enactment: the extent of such application is governed by Section 29(2) of the Limitation Act. In our opinion however the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act."

19. In Kailash Vs. Nanhku and others, the Supreme Court has

held that the procedure provided for trial of civil suits by CPC is

not applicable in its entirety to the trial of Election Petitions and that the applicability of the procedure is circumscribed by two

riders. Firstly, the CPC procedure is applicable "as nearly as may be"; and secondly, CPC procedure would give way to any provisions of the Act and of any rules made thereunder.

20. In view of the above decisions, I am of the opinion that

Section 10 CPC would not apply to election petitions.

21. Even otherwise, in view of the principle laid down in C.M.Arumugam (1 supra) and Satrucharla Vijaya Rama Raju

(2 supra), every election furnishes a fresh cause of action for a challenge to that election and an adjudication in a prior election

petition cannot be conclusive in the subsequent proceeding. The

evidence in the subsequent election petition needs to be considered and the finding given in the earlier election petition

on the basis of evidence lead therein would not be res judicata and in the subsequent election petition. So the High Court has to

consider the evidence lead in this election petition independently

and come to a decision thereon.

22. Therefore, I am of the opinion that no case has been made out for staying the proceedings in E.P.No.5 of 2014 on the

ground that proceedings in the Supreme Court in Civil Appeal Nos.8431-8432 of 2013 against the judgment dt.14-08-2013 in

E.P.No.1 of 2010 are pending.

23. Therefore, Application No.25 of 2015 is dismissed. No costs.

___________________________________ JUSTICE M.S. RAMACHANDRA RAO

Date : 18-06-2015

Vsv/*