Judgement

SINGH, J.:- This appeal under S. 116A, Representation of the People Act, 1050 is directed against the order of the High Court of Allahabad (Lucknow Bench) dated 12-10-1981 rejecting the election petition filed by the appellant questioning the election of the respondent as member of the Lok Sabha.

2. A by- election was held on June 14 1981 to fill up the vacancy to the Lok Sabha caused by the death of Sanjay Gandhi in the 25th Amethi Constituency in District Sultanpur in the State of Uttar Pradesh. The appellant, the respondent and 13 other candidates contested the election. On 15th June 1981 Rajiv Gandhi was declared elected having polled 258894 votes while the appellant polled 2728 votes only. The appellant filed an election petition under S.80, Representation of the People Act, 1950, (hereinafter referred to as the Act) questioning the validity of the respondent on a number of grounds, including the allegations of corrupt practice of undue influence, hiring and procuring of vehicles for carrying voters and obtaining the assistance of Government servants and incurring expenses at the election in excess of the permissible limit. The High Court issued notice to the respondent who appeared before it and made an application under O. VI, R. 16, Civil P. C. for striking out the pleadings contained therein as the same were vague, general, unnecessary, frivolous and vexatious which did not disclose any cause of action. Respondent further prayed that the election petition be rejected under O. VII R. 11, C.P.C. read with S. 87 of the Act.

3. A learned single Judge of the High Court before whom the preliminary objections were raised caused service of the copy of the objections on the appellant who was appearing in person and granted time to him to submit his reply. The appellant, however, did not submit any reply to the preliminary objections and in spite of date being fixed for hearing arguments in his presence he did not appear before the Court on the date fixed for arguments. The learned Judge after hearing the. arguments advanced on behalf of the respondent passed an order on 12th October 1981 holding that the various paras contained in the petition were vague and the same did not contain sufficient averments to constitute any corrupt practice and the various paras of the petition were unnecessary, frivolous and vexatious within the meaning of O. VI, R. 16, Civil P.C. The learned Judge struck off paras 2 to 53, 55 to 57 and rejected the petition under O. VII, R. 11 read with S. 87 of the Act on the ground that the election petition did not disclose any cause of action. The appellant has preferred this appeal against the said order.

4. The election under challenge relates to 1981, its term expired in 1984 on the dissolution of the Lok Sabha, thereafter another general election was held in December, 1984 and the respondent was again elected from 25th Amethi Constituency to the Lok Sabha. The validity of the election field in 1984 was questioned by means of two separate election petitions and both the petitions have been dismissed. The validity of respondents election has been upheld in Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 and Bhagwati Prasad v. Rajiv Gandhi (1986) 4 SCC 78 : (AIR 1986 SC 1534). Since the impugned election relates to the Lok Sabha which was dissolved in 1984 the respondents election cannot be set aside in the present proceedings even if the election petition is ultimately allowed on trial as the respondent is a continuing member of the Lok Sabha not on the basis of the impugned election held in 1981 but on the basis of his subsequent election in 1984. Even if we allow the appeal and remit the case to the High Court the respondents election cannot be set aside after trial of the election petition as the relief for setting aside the election has been rendered infructuous by lapse of time. In this view grounds raised in the petition for setting aside the election of the respondent have been rendered aca