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SUPREME COURT OF INDIA
R.S. SARKARIA AND P.S. KAILASAM, JJ.
Thammanna, Appellant
Versus
K. Veera Reddy and others, Respondents.
Civil Appeal No. 1950 of 1979, D/ 23-7-1980.
Advocates appeared
Mr. Govindan Nair, Sr. Advocate, (Mr. A. Subba Rao Advocate with him), for Appellant; Mr. P. P. Rai Sr. Advocate 117 (M/s. T. Ramachandran, K. Ramkumar and Venkataramani Advocates with him), for Respondent No. 1.
– Section 116C of the Act makes the Code of Civil Procedure applicable to the hearing and determination of the appeal filed under the Act. Since the substance and principle embodied in Section 96(i) of the Code is not in consistent with anything in the Act, we may legitimately look for guidance to Section 96(1) and other provisions of the Code and also the general principle which govern the right of appeal thereunder. This being the position, the basic conditions and postulates which given the right of appeal under Section 96(1) of the Code, will apply to an appeal under Section 116C of the Act also. As a general proposition, therefore, it may safely be stated that before a person is entitled to maintain an appeal under Section 116C all the conditions mentioned below, must be satisfied.
(1) That the subject matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy, between the parties in the election petition.
(2) That the person seeking to appeal has been a party in the election petition.
(3) That he is a “person aggrieved” that is party who has been adversely affected by the determination.
– it is equally clear from the language, setting and scheme of the provisions in Sections 109 to 116, that they do not, either in terms, or, in principles apply to appeals or the procedure to be followed at the appellate stage before the Supreme Court. These provisions are to be found in Chapter IV under the main Caption. “Withdrawal and Abatement of Election Petitions”. Then, the provisions of these sections, also repeatedly refer to the “withdrawal or abatement of election petitions” and also to procedure in respect thereof before the High Court. The provision relating to Appeals in Sections 116A, 116B and 116C have been included separately, in Chapter IVA, captioned. “Appeals”. Section 116C, enjoins upon the Supreme Court to hear and determine every appeal under this Act in accordance with the provisions of the Code of Civil Procedure and the Rules of the Court. No doubt, this is “subject to the provisions of the Act and the Rules if any, made thereunder.” But this clause only means that the provisions of the Code and the Rules of the Court in hearing an appeal to the Supreme Court will apply except to the extent their application has been excluded expressly or by necessary implication by any provision of the Act. There is no provision in Chapter IV A of the Act analogous to Sections 109 to 116 of the Act, which curtails, restricts or fetters an appellants right to withdraw an appeal. Nor is there any such provision in the Code or the Rules of this Court in which does so. If the intention of the legislature was that the provisions of Sections 109 to 116 which apply to the withdrawal of appeals, there was no difficulty in inserting similar provisions in Section 116C or elsewhere in Chapter IVA. This view taken in the case of Thammanna v. K. Veera Reddy, AIR 1981 SC 116, is fortified by the decision in Bijaynanda Patnaki v. Satrughna Sahu, AIR 1963 SC 1566 = 1964(2) SCR 638.
The appeal is against the High Court's dismissal of an election petition challenging the returned candidate's election on grounds of disqualification under Section 9A of the Representation of the People Act, 1950. (!) [1000188980001][1000188980002]
All candidates, including the appellant (who secured only 822 votes), were impleaded as respondents in the election petition, but the appellant did not file a written statement, lead evidence, cross-examine witnesses, or participate in arguments before the High Court. [1000188980001][1000188980002]
Preliminary objection raised: The appellant lacks locus standi to appeal as he is not a "person aggrieved" since no relief was claimed against him, he was impleaded formally, did not participate, and was not adversely affected by the dismissal. [1000188980003]
Argument in reply: As a party under Section 86(4), the appellant is entitled to appeal if aggrieved; election petitions are representative actions, allowing any aggrieved party, including respondents, to appeal akin to Sections 109/110 provisions. [1000188980004][1000188980005][1000188980006]
Section 87(1) applies Code of Civil Procedure (CPC) to election petition trials where consistent with the Act; Section 98 lists possible High Court orders (dismissal, voiding election, or declaring another elected). [1000188980007] (!) (!) (!) [1000188980008]
Section 116A allows appeals to Supreme Court from High Court orders under Sections 98/99; Section 116C mandates hearing appeals per CPC as for civil appeals, subject to the Act. [1000188980009] (!) [1000188980010] (!) [1000188980011]
Right to appeal under Section 116C requires: (1) conclusive High Court determination of rights in controversy; (2) appellant was a party; (3) appellant is "person aggrieved" (adversely affected). [1000188980012][1000188980013][1000188980014] (!) (!) (!)
Appellant fails conditions (1) and (3): Did not join controversy, file pleadings, or participate; controversy only between petitioner and returned candidate; not obligatory to implead appellant under Section 82. [1000188980014] (!) [1000188980015]
"Person aggrieved" means one suffering legal grievance, deprived/refused/wrongfully affected in title/right; appellant not adversely affected by dismissal. [1000188980016][1000188980017]
Sections 109-116 (Chapter IV: Withdrawal/Abatement of Election Petitions) apply only to High Court stage, not appeals (Chapter IVA); no analogous restrictions on appeal withdrawal under Section 116C/CPC. [1000188980018] (!) (!) [1000188980019][1000188980020][1000188980021][1000188980022][1000188980023]
Election petition as representative action limited to Sections 109-116; no right for non-aggrieved respondent/elector to appeal if petitioner does not; appellant took no steps under Section 110(3)(c). [1000188980020][1000188980027][1000188980028]
Preliminary objection upheld; appeal dismissed as appellant not "person aggrieved," lacking locus standi under Section 116C. [1000188980029] (!) (!)
Judgment
KAILASAM, J.:- This appeal by Shri Thammanna is directed against a judgment, dated April 24, 1979 of the High Court of Andhra Pradesh, whereby the Election Petition filed by Shri V. Krishna Reddy, respondent 7 herein, against the returned candidate, Shri K. Veera Reddy (Respondent 1 herein) was dismissed. The material facts are these :
2. In the elections held for the Andhra Pradesh Legislative Assembly in February, 1978 respondents 1 to 4, 6, 7 and the appellant filed their nominations for Amarchinta Assembly Constituency. Polling took place on February 25, 1978, and Shri K. Veera Reddy, respondent 1, was declared elected on February 27, 1978. He secured 34727 votes while his nearest rival, respondent 2, got 29,419 votes. The appellant obtained 822 votes only.
3. Shri V. Krishna Reddy, (Respondent 7 herein), being a voter for 198 Amarchinta Assembly Constituency in Mahabunagar 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.
4. 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 appeal, because he does not fulfil the character of a "person aggrieved" by the judgment of the High Court. It is emphasised that it was not necessary for the Election-Petitioner to join Shri Thammanna as a respondent because no relief was claimed against him; that he was impleaded as respondent 5 only as a matter of form, that he did not participate in the proceedings before the High Court; nor joined issue with Respondent 1. It is pointed out that according to the judgment of the High Court, the contest was only between the Election-Petitioner and Respondent 1, while the original Respondents 2 to 7, including Thammanna, were proceeded against ex parte. In short, the objection is that since the appellant could not be said to a party adversely affected by the judgment of the High Court, he has no locus standi to prefer this appeal.
5. In reply, Shri Govindan Nair, learned counsel for the appellant submits that Shri Thammanna was not a mere pro forma respondent but was a person who was entitled to apply and join as a party under Section 86 (4) of the Act within fourteen days from the date of commencement of the trial and subject to any order as to security or costs. Such a person is entitled under the law by virtue of his status as a party respondent to file an appeal against the decision of the High Court, if he feels aggrieved by the same. The very fact that the original respondent 5, has filed this appeal shows that he is a person aggrieved by the decision of the High Court, dismissing the Election-Petition. It is maintained that the mere fact that the appellant did not file any written statement or participate actively in proceedings before the High Court, or that the Election-Petitioner has not joined him as a co-appellant is not sufficient to deny him the status of a "person aggrieved". It is argued that in an Election-Petition, the petitioner is not the dominus litis, but acts as a representative of the whole body of electors in the constituency, that is why an electio
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