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SHANKAR PRASAD JAISWAL versus ELECTION COMMISSION & OTHERS

High Court of Judicature at Allahabad

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Shankar Prasad Jaiswal v. Election Commission & Others - ELECTION PETITION No. 7 of 2004 [2004] RD-AH 214 (15 April 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 48

Election Petition No.  7 of 2004

  Shankar Prasad Jaiswal ....................................Petitioner

Versus

  Election Commission of India

  and others................................................Respondents.

******

Hon'ble S.P.Mehrotra, J.

Pursuant to the order dated 4th March 2005, the case is listed today.

Sri K.R. Singh, learned counsel for the petitioner and S/Sri M. Islam and Himanshu Singh, learned counsel for the Respondent No.4 are present.

By the order dated 4th March 2005, Sri K.R.Singh, learned counsel for the petitioner was granted one week's time for supplying copy of the Election Petition for issuance of notice by Ordinary Process to the Respondent No.18, as per the directions given in the order dated 17-12-2004.

It was further directed in the said order dated 4th March 2005 that notice would be issued to the Respondent No. 18 fixing the next date fixed in the matter.

` Again, by the said order dated 4th March 2005, it was, inter-alia, directed that fresh notices by Ordinary Process be issued to the Respondent Nos. 3, 9 and 13.

It was, inter-alia, directed in the said order dated 4th March 2005 that the said notices by Ordinary Process would be issued to the Respondent Nos. 3, 9 and 13 fixing the next date fixed in the matter.

Further, by the said order dated 4th March 2005, Civil Misc. Application No. 86198 of 2005 filed on behalf of the petitioner under Order 1 Rule 10 of the Code of Civil Procedure read with Section 82 of the Representation of the People Act, 1951, was allowed, and the petitioner was permitted to delete the name of Election Commission of India as the Respondent No.1 in the Election Petition.

It was, inter-alia, further directed by the said order dated 4th March 2005 that necessary amendments pursuant to the said application (namely, Civil Misc. Application No.86198 of 2005) having been allowed, be made in the Election Petition within two weeks.

The office has submitted today its report dated 15th April, 2005. It is, inter-alia, stated in the said Office Report that the learned counsel for the petitioner has not taken requisite steps till date as per the directions given in the said order dated 4th March 2005.

It is, inter-alia, further stated in the said Office Report that the learned counsel for the petitioner has not so far deleted the name of Election Commission of India  (Respondent No.1) from the array of parties in the Election Petition.

Civil Misc. Application No.... of 2005, under Section 148 read with Section 151 of the Code of Civil Procedure, 1908, has been filed today on behalf the petitioner. The application is supported by an affidavit sworn on 15th April, 2005 by D.K. Srivastava, stated to be registered Clerk to Sri V.C. Tripathi, Advocate, High Court, Allahabad.

Registry is directed to give appropriate number to the aforesaid application.

It is, inter-alia, prayed in the aforesaid application that two weeks' time be granted to the petitioner for taking necessary steps including supplying copy of the Election Petition as also for carrying out the necessary amendments in the Election Petition, as per the directions given in the said order dated 4th March, 2005.

It is, inter-alia, stated in the affidavit accompanying the aforesaid application that the said D.K. Srivastava, registered Clerk to Sri V.C. Tripathi, Advocate, also looks after the work of Sri K.R. Singh, learned counsel for the petitioner; and that due to inadvertence on the part of the said D.K. Srivastava, necessary steps could not be taken within the time allowed by this Court, nor could the necessary amendments be carried out within the time granted by this Court.

It is, inter-alia, further stated in the said affidavit that copy of the Election Petition also could not be supplied due to inadvertence.

It is, inter-alia, further stated in the said affidavit that copy of the Election Petition is ready to be supplied on behalf of the petitioner ; and that the necessary steps pursuant to the directions given in the said order dated 4th March, 2005 shall be taken within two weeks, and the amendments will also be carried out within the said period.

It is, inter-alia, further stated in the said affidavit that there was no deliberate fault or mistake on the part of the petitioner, and it was only due to inadvertence on the part of the office of the counsel for the petitioner that the directions given in the said order dated 4th March 2005 could not be carried out within the time granted by this Court.

I have heard Sri K.R. Singh, learned counsel for the petitioner and Sri M. Islam, learned counsel for the Respondent No.4, and have perused the averments made in the aforesaid application and its accompanying affidavit.

It is submitted by Sri K.R. Singh, learned counsel for the petitioner that in view of the facts and circumstances stated in the aforesaid application and its accompanying affidavit, two weeks' further time be granted to the petitioner for complying with the directions given in the said order dated 4th March, 2005.

It is  further submitted by Sri K.R. Singh that it was on account of inadvertence on the part of his office that the needful could not be done pursuant to the directions given in the said order dated 4th March, 2005.

Sri K.R. Singh further submits that under Section 148 read with Section 151 of the Code of Civil Procedure , the Court has power to enlarge the time fixed for taking steps including supplying copy of the Election Petition and for carrying out the amendments pursuant to the said order dated 4th March, 2005.

Sri M. Islam, learned counsel for the Respondent No.4 opposes the prayer made on behalf of the petitioner. It is submitted by Sri M. Islam that in view of the provisions of Order IX Rule 2 of the Code of Civil Procedure, Election Petition is liable to be dismissed as against the Respondent Nos. 3, 9, 13 and 18 in view of the failure on the part of the petitioner to take requisite steps including supplying copy of the Election Petition pursuant to the directions given in the said order dated 4th March, 2005.

In rejoinder, Sri K.R. Singh, learned counsel for the petitioner refers to the provisions of Section 148 of the Code of Civil Procedure and submits that where the time has been fixed or granted by the Court for the doing of any act, it is open to the Court to enlarge such period.

I have considered the submissions made by the learned counsel for the parties.

Order IX Rule 2 of the Code of Civil Procedure, inter-alia, provides that in case, the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the Court Fee or Postal Charges, if any, chargeable for such service or to present copies of the plaint,  as required by Order VII Rule 9 of the Code of Civil Procedure Code, the Court "may make an order that the suit be dismissed".

Hence, in view of the provisions of Order IX Rule 2 of the Code of Civil Procedure, it is open to the Court to dismiss the suit, in case, there is failure on the part of the plaintiff in doing the acts, as mentioned in the said Rule 2. However, Order IX Rule 2 of the Code of Civil Procedure will have to be read with Section 148 of the Code of Civil Procedure. Section 148 of the Code of Civil Procedure, inter-alia, provides that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code of Civil Procedure, the Court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted, may have expired.

Reading Order IX Rule 2 of the Code of Civil Procedure with Section 148 of the Code of Civil Procedure, it is evident that it is open to the Court in appropriate cases to enlarge the period fixed or granted for doing the acts, as mentioned in Order IX Rule 2 of the Code of Civil Procedure.

It is note-worthy that the language of Order IX Rule 2 of the Code of Civil Procedure leaves it in the discretion of the Court to pass order for dismissal of the suit, in case of failure on the part of the plaintiff in doing the acts, as mentioned in the provisions of Order IX Rule 2 of the Code of Civil Procedure. Failure on the part of the plaintiff, as mentioned in the provisions of Order IX Rule 2 of the Code of Civil Procedure, does not necessarily and automatically lead to the dismissal of the suit.

Keeping in view of the aforesaid legal position, let us examine the facts of the present case.

As noted above, the aforesaid application is supported by an affidavit of D.K. Srivastava, who is stated to look after the cases of Sri K.R. Singh, learned counsel for the petitioner.

It is, inter-alia, stated in the said affidavit that due to inadvertence on the part of the said D.K. Srivastava, the needful could not be done as per the directions given in the said order dated 4th March 2005.

Having regard to the averments made in the aforesaid application and its accompanying affidavit, and having considered the submissions made by the learned counsel for the parties, I am of the opinion that failure to do the needful, as directed by the said order dated 4th March 2005, was not deliberate.

It was evidently on account of bona fide and inadvertent mistake on the part of the office of the learned counsel for the petitioner that needful could not be done on behalf of the petitioner, pursuant to the directions given in the said order dated 4th March 2005.

In the circumstances, I am of the opinion that the prayers made in the aforesaid application filed on behalf of the petitioner, deserve to be granted.

Accordingly, the petitioner is granted two weeks' further time for taking the necessary steps including supplying copy of the Election Petition as well as for carrying out the necessary amendments in the Election Petition, as per the directions given in the said order dated 4th March 2005.

Notices will now be issued fixing the next date fixed in the matter. The matter in regard to the service of notice sent by Registered Post AD in respect of Respondent Nos. 3, 9 13 will be considered on the next date fixed in the matter.

List this case on 15th July 2005.

Dt. 15-04-2005/Election Petition No.7 of 2004/AK  


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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