An election petition becomes infructuous when the Lok Sabha is dissolved before the petition is decided.

The record was put up today for hearing on the petition of objection filed on behalf of respondent no.1 under Order 7 Rule 11 of the Code of Civil Procedure read with Section 86 of the R.P. Act, 1951. A rejoinder was also filed on behalf of the petitioner and the points raised in this petition have been disputed. However, when the matter was taken up it was pointed out by the learned counsel for respondent no.1 that the present election petition has become infructuous in view of the fact that 12th Lok Sabha, to which the present election petition relates, stands dissolved by the proclamation of the President of India dated 26.4.1999. It is submitted that since there is no allegation of corrupt practice in this case and the petition has been filed challenging the election of respondent no.1 only on the ground of mistake in calculation at the time of declaration of result of the Lok Sabha from the constituency in question and since the Lok Sabha has been dissolved, the election petition has become infructuous and it will be futile to hear it. So far as the allegation of corrupt practice is concerned, it is admitted that there is no such allegation in the election petition and the election petition has been mainly filed on the ground that there was mistake in calculation of the votes cast in favour of the respective candidates at the time of preparation of the final result sheet for the constituency. In this regard it has been admitted that actually the prayer of the election petitioner is that the election of respondent no.1, the declared candidate, be set aside and the petitioner be declared elected from the constituency for the election. So, if this petition is heard and the election petition is allowed, the petitioner shall have to be declared elected, but he cannot take seat in the Lok Sabha because it has already been dissolved and according to Article 99 of the Constitution of India for becoming a Member of Parliament the winning candidate should take oath of office which is impracticable in the present situation.

2. In this regard, learned counsel for respondent no.1 has cited a decision reported in AIR 1974 S.C. 505 (Loknath Padhan vs. Birendra Kumar Sahu). It was a case in which the election petition in question was allowed by High Court and the appeal was preferred before the Hon'ble Supreme Court, but while the appeal was pending the assembly in question was dissolved and, therefore, the question was raised there whether the appeal should be allowed to continue or it should be dismissed. Their Lordships in this connection discussed the situation and observed :

"The argument of the respondent was that unless there is a living issue between the parties the Court would not proceed to decide it. It would not occupy its time by deciding what is purely an academic question which has no sequitur so far as the position of the parties is concerned. Here, contended the respondent, even if the appellant was able to satisfy the Court that on the date of the nomination, the respondent was disqualified under Section 9-A, it would be futile exercise, because the Orissa Legislative Assembly being dissolved the setting aside of the election of the respondent would have no meaning or consequence and hence the Court should refuse to embark on a discussion of the merits of the question arising in the appeal. We think there is great force in this preliminary contention urged on behalf of the respondent. It is a well settled practice recognised and followed in India as well as England that a Court should not undertake to decide an issue, unless it is a living issue between the parties. If an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties it would be waste of public time and indeed not proper exercise of authority for the Court to engage itself in deciding it."

Taking this view their Lordships ultimately held in the case under reference that :

"We are, therefore, of th