Important point
The rules of procedure contained in the Civil Procedure Code apply to the trial of election petitions under the Representation of the People Act with flexibility and only as guidelines.

Headnote:(i) Representation of the People Act, 1951—Sections 80, 86, 87 and 169—Civil Procedure Code, 1908—Order VIII Rule 1, proviso as introduced by Act 22 of 2002 w.e.f. 1-7-2002—Trial of election petitions—Filing of written statement beyond the period prescribed by Order VIII Rule 1 of the CPC—Whether Order VIII Rule 1 of the CPC is applicable to the trial of election petition under Chapter II of the Act—(No)—Rules of procedure contained in the CPC apply to trial of election petitions under the Act with flexibility and only as guidelines—Whether the rules framed by the High Court governing the trial of election petitions would override provisions of CPC and permit a written statement being filed beyond the period prescribed by Order VIII Rule 1 of the CPC—(Yes)—Whether the time limit of 90 days as prescribed by the proviso to Rule 1 of Order VIII of the CPC is mandatory or directory in nature—It is directory—Power of Court to extend time for filing the written statement beyond the time schedule is not completely taken away.
       Held : We sum up and briefly state our conclusions as under:-
       (i) The trial of an election petition commences from the date of the receipt of the election petition by the Court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition affording opportunity to the defendant to file written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and Rules made for purposes of that Act and a resort to the provisions of the CPC is not called for.
       (ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in the CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines.
       (iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the Rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the Rules of Procedure contained in the CPC on the other hand, the former shall prevail over the latter.
       (iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away.
       (v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case. (Para 45)
       (ii) Representation of the People Act, 1951—Sections 80, 86, 87 and 169—Civil Procedure Code, 1908—Order VIII Rule 1, proviso as introduced by Act 22—Election petition filed challenging election of appellant—Appellant was served with summons, accompanied by a copy of election petition, requiring his appearance before the Court on 6-4-2004—On the appointed day, appellant sought for one month’s time for filing the written statement—Court allowed time till 13-5-2004—On 13-5-2004, appellant again filed an application seeking further time—Court adjourned the hearing on 3-7-2004 as, in between, from 13-5-2004 to 2-7-2004, High Court was closed for summer vacation—However, written statement could be filed on 8-7-2004 with an application for condonation of delay in filing the written statement—High Court refused to take the written statement on record as the same was filed beyond a period of 90 days from the date of service of summons—Whether provisions of the Civil Procedure Code in their entirety apply to the trial of election petition—(No)—Rules have been framed by Allahabad High Court relating to the trial of election petitions which would override provisions of the Civil Procedure Code.
       Held : Order VIII, Rule 1 is a provision contained in the CPC and hence belongs to the domain of procedural law. Another feature noticeable in the language of Order VIII Rule 1 is that although it appoints a time within which the written statement has to be presented and also restricts the power of the Court by employing language couched in a negative way that the extension of time appointed for filing the written statement was not to be later than 90 days from the date of service of summons yet it does not in itself provide for penal consequences to follow if the time schedule, as laid down, is not observed. From these two features certain consequences follow. (Para 32)
       Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. (Para 41)
       In the case at hand, the High Court felt satisfied that the reason assigned by the defendant-appellant in support of the prayer for extension of time was good and valid. However, the prayer was denied because the High Court felt it had no power to do so. The written statement has already been filed in the High Court. We direct that the written statement shall now be taken on record but subject to payment of Rs. 5000/- by way of costs payable by the appellant herein to respondent No.1 i.e. the election petitioner in the High Court, within a period of 4 weeks from today. (Para 46)

Judgement Key Points

Key Points: - The judgment holds that CPC procedures apply to election petitions "as nearly as may be" and subject to the Act and High Court rules; in case of conflict, the Act prevails over CPC (!) (!) (!) . - It declares that Order VIII Rule 1 CPC is a procedural, directory provision for extension of time, not strictly mandatory, and may be extended by the court in exceptional circumstances with reasons recorded (!) (!) (!) (!) (!) . - It holds that High Courts may frame rules under Article 225 and Section 169 CPC, and such rules can govern trial procedure, potentially harmonizing with or overriding CPC where there is conflict (rules vs CPC) (!) (!) (!) (!) . - The Court endorses allowing written statements filed beyond 90 days where exceptional circumstances exist, with costs or conditions, and directs taking the statement on record subject to costs in the case at hand (!) (!) . - The decision clarifies the meaning of "trial" in election petitions to include proceedings from petition presentation to decision, guiding the application of Section 86 and related provisions (!) (!) (!) . - It concludes that Order VIII Rule 1 is directory, not mandatory, and departure therefrom is allowed only as an exception with justification (!) (!) . - It highlights objective to expedite trials yet ensure justice and prevents denial of defence due to rigid procedure (!) (!) . - The Allahabad High Court’s Chapter XV-A rules are to be harmonized with Act provisions; in conflict, Act prevails (!) - (!) .

What is the scope of applicability of CPC rules to the trial of election petitions under the Representation of the People Act, 1951?

What is the nature (mandatory or directory) of Order VIII Rule 1 CPC in the context of filing written statements in election petitions?

Can the High Court's rules framed under Article 225 or Chapter XV-A override CPC provisions or permit filing of written statements beyond the period prescribed by Order VIII Rule 1?

Judgment

R.C. Lahoti, CJI—

Facts in brief

Elections of Uttar Pradesh Legislative Council were held pursuant to the Presidential notification dated 7.11.2003. The appellant was declared elected. Respondent No.1 filed an election petition under Section 80 of the Representation of the People Act, 1951 (hereinafter ‘the Act’, for short) laying challenge to the election of the appellant.

2. The appellant was served with the summons, accompanied by a copy of the election petition, requiring his appearance before the Court on 6.4.2004. On the appointed day, the appellant appeared through his counsel and sought for one month’s time for filing the written statement. The Court allowed time till 13.5.2004 for filing the written statement. On 13.5.2004, the appellant again filed an application seeking further time for filing the written statement on the ground that copies of several documents were required to be obtained. The Court adjourned the hearing to 3.7.2004 as, in between, from 13.5.2004 to 2.7.2004, the High Court was closed for summer vacation. On 22.6.2004, appellant’s advocate’s nephew expired. However, the written statement was drafted and kept ready for filing. The registered clerk of the advocate was deputed for filing the same in the Court on the appointed day. The clerk reached Allahabad, the seat of the High Court, from Gazipur where the appellant and his advocate resided. On 1.7.2004, that is, two days prior to the day of hearing, the affidavit of the appellant annexed with the written statement, was sworn in at Allahabad. However, (as is later on stated), on account of lack of understanding on the part of the registered clerk, the written statement could not be filed on 3.7.2004 but the same was filed on 8.7.2004 accompanied by an application for condonation of delay in filing the written statement briefly stating the reasons set out hereinbefore. On 23.8.2004, the High Court rejected the application filed by the appellant and refused to take the written statement on record for the reason that the same was filed beyond a period of 90 days from the date of service of summons, the period of limitation as provided by the Proviso to Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter ‘the CPC’, for short), as introduced by Act 22 of 2002 with effect from 1.7.2002. Feeling aggrieved by the said order, the winning candidate i.e. the defendant-respondent before the High Court, has filed this appeal by special leave.

3. We have heard Shri Vijay Hansaria, the learned senior counsel for the appellant, Shri Vijay Kumar, the learned counsel for the respondent (election petitioner), and also Mr. Rakesh Dwivedi, the learned senior counsel, who has on request appeared Amicus Curiae.

Questions for decisions

4. The learned counsel for the appellant submitted that the provisions of the CPC do not ipso facto sand in their entirety apply to the trial of election petition under Chapter II of the Act. Alternatively, he submitted that rules have been framed by the Allahabad High Court making special provisions relating to the trial of election petitions which would override the provisions of the CPC. In the next alternative, the learned senior counsel submitted that the provisions of Order VIII Rule 1 of the CPC being in the realm of procedural law, the time limit contained therein should be construed as directory and not mandatory assuming the provision is applicable to the trial of election petitions. The learned counsel for respondent No.1 has disputed the correctness of the submissions so made and argued in support of the impugned order of the High Court.

5. Three questions arise for decision :-

(1) Whether Order VIII Rule 1 of the CPC is applicable to the trial of an election petition under Chapter II of the Act?

(2) Whether the rules framed by the High Court governing the trial of election petitions would override the provisions of CPC and permit a written statement being filed beyond the period prescribed by Order VIII R

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2005 Supreme(SC) 579

Important pointThe rules of procedure contained in the Civil Procedure Code apply to the trial of election petitions under the Representation of the People Act with flexibility and only as guidelines.

What is the scope of applicability of CPC rules to the trial of election petitions under the Representation of the People Act, 1951?

What is the nature (mandatory or directory) of Order VIII Rule 1 CPC in the context of filing written statements in election petitions?

Can the High Court's rules framed under Article 225 or Chapter XV-A override CPC provisions or permit filing of written statements beyond the period prescribed by Order VIII Rule 1?

Cases Referred (14)

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Important point
The rules of procedure contained in the Civil Procedure Code apply to the trial of election petitions under the Representation of the People Act with flexibility and only as guidelines.