TMI Blog1980 (7) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... a Reddy, (Respondent 7 herein), being a voter for 198 Amarchinta Assembly Constituency in Mahabubnagar District filed an election petition in the High Court to get the election of the first respondent declared void on the ground that on the date of filing the nomination paper as well as on the date of the election, this respondent had subsisting contracts with the Government of Andhra Pradesh and as such, he was under Section 9A of the Representation of the People Act, 1950 (hereinafter referred to as the Act) disqualified to be chosen to fill the seat. All the candidates who had filed their nominations, were joined in the election petition as respondents. The appellant was impleaded as original respondent 5. The election petition was contested by respondent 1, (K. Veera Reddy) only. The appellant (i.e. original Respondent 5) did not file any written statement. He did not lead any evidence, nor did he cross-examine the witnesses produced by respondent 1 or the Election-Petitioner. He did not participate even in the arguments. A preliminary objection has been raised by the learned counsel for respondent 1. It is submitted that Shri Thammanna is not competent to maintain this appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings who feels aggrieved, is entitled, in accordance with the principle underlying Sections 108 and 109 of the Act, to file an appeal, even if the original Election-Petitioner neglects or abstains from doing so. Shri Nair further submits that the High Court has wrongly stated that the appellant (being original respondent 5) was also proceeded against ex-parte; that, in fact, the appellant was present in the High Court on most of the dates of hearing, although he remained quiescent. In the alternative, it is submitted that if it is assumed that the appellant was proceeded against ex-parte in the High Court, the final determination in the impugned judgment will be deemed to be in the nature of an ex-parte decree against him. In that view of the matter also, according to the learned counsel, the appellant has the necessary locus to maintain this appeal, against that exparte determination. In support of his contention, Shri Nair has referred to K. K. Kamaraja Nadar v. Kunju Thevan and Ors(1), Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa Ors.(2), A. Sreenivasan v. Election Tribunal, Madras(3) and Adi Pherozshah Gandhi v. H. M. Seervai, Advocate-General of Maharashtra, Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It may be seen that although Section 116A confers a right of appeal from an order made under Section 96 or 99, and Section 116C from any final order passed by the High Court in proceedings in an election-petition, neither of these two sections mentions or catalogues the person or persons who have a right of appeal against such orders. Barring the exceptional provision in Section 116A, which marks a departure from the Code of Civil Procedure, Section 116C is substantially analogous to Section 96(1) of the Code of Civil Procedure, 1898 which provide Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court authorized... Just as the term decree in Section 96(1) of the Code means an adjudication which conclusively determines all or any of the matters in controversy in the suit , the expression any final order as used in Section 116C of the Act contemplates a conclusive determination of all or any of the matters in controversy in the election-petition between the parties. Clauses (a), (b) and (c) of Section 98 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication within the time prescribed, in compliance with Section 86(4) of the Act, the Court would have been bound to join him as a respondent. But the question of Section 86 (4) coming into play never arose as the Election-Petitioner had already impleaded the appellant as Respondent 5 in the electionpetition. Even so, Respondent 5 did not join the controversy. He neither joined issue with the contesting respondent 1, nor did he do anything tangible to show that he had made a common cause with the Election-Petitioner against Respondent 1. In fact, the only parties between whom the matters in controversy were at issue, were the Election- Petitioner and Respondent 1. The other respondents, including the appellant, did not participate or side with either contestant in that controversy. Although the meaning of the expression person aggrieved may vary according to the context of the statute and the facts of the case, nevertheless, normally a person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to somethi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection Commission. Section 112(1) provides for abatement of election-petition on death of the sole petitioner. Sub-section (2) requires the fact of abatement to be published. Sub-section (3) entitles any person who might himself have been a petitioner to apply and be substituted in place of the deceased to continue the proceeding upon such terms as the High Court may think fit. Section 116 makes a similar provision on the death of a respondent. As pointed out in Bijayananda Patnaik v. Satrughna Sahu(1), the principle behind these provisions is that an election-petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public of the constituency also is substantially interested in it, as an election is an essential part of the democratic process. That is why provision is made in election law circumscribing the right of the parties thereto to withdraw. Another reason for such provision is that the citizen s at large have an interest in seeing and they are justified in insisting that all elections are fair and free and not vitiated by corrupt or illegal practices. That is why provision is made for substituting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-compliance with the provisions of Section 82 of the Act. S went in appeal under Section 116-A to the High Court. Subsequently, S applied for withdrawal of the appeal but the High Court refused to permit withdrawal, holding that it had to be guided by the principles of Sections 109 and 110 of the Act in considering the application for withdrawal. In appeal by special leave, this Court held that S had an absolute right to withdraw the appeal and the High Court was bound to grant him permission to do so. In this connection, the observations made by Wanchoo, J. (as he then was), speaking for the Court, at page 547 of the Report, are apposite and may be extracted : When sub-section (2) says that the powers, jurisdiction and authority of the High Court is subject to the provisions of the Act, it means that the provision must be an express provision in the Act or such as arises by necessary implication from an express provision.........There is however, no express provision in Chap. IV-A dealing with appeals, which deals with the question of withdrawal of appeals under that Chapter. Nor do we think that ss. 109 and 110 necessarily imply that an appeal also cannot be withdrawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appeal unconditionally, and if he is to make such application, the High Court has to grant it. If an appellant, who is an aggrieved person under Section 116-C of the Act, has got a right to withdraw or abandon his appeal unconditionally, a fortiori, he has every right not to file an appeal against the dismissal of his Election-Petition, much less has any other respondent who never joined the contest in the Election-Petition, a right to file an appeal if the aggrieved party does not do so. In other words, the principle that an Election-Petition is a representative action on behalf of the whole body of electors in the constituency, has a very limited application to the extent it has been incorporated in Sections 109 to 116 of the Act, and its application cannot be extended to appeals under the Act. In the instant case, the appellant or any other elector did not make any application or complaint at the trial of the Election-Petition in the High Court, that the electionpetitioner has abandoned the prosecution of the petition or withdrawn from it and that the applicant be substituted for the election-petitioner to continue the proceeding under Section 110(3) (c) of the Act. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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