Point of Law : Mere aberration of the procedural rules, which is nothing but a handmaid of justice, would not entail dismissal and/or rejection of the interlocutory application.

ORDER :

Heard Mr. D. Saikia, learned senior counsel, assisted by Mr. P. Nayak, learned counsel for the opposite party/petitioner as well as Mr. K.P. Pathak, learned senior counsel, assisted by Mr. A. Baruah, learned counsel for the applicant/respondent.

2. The Opposite Party herein, as the election petitioner, has assailed the election of the applicant, who is the returned candidate from 8 No. Algapur Legislative Assembly Constitution of Assam Legislative Assembly and arrayed as the respondent in the election petition. In this order, for the sake of convenience, the parties are arrayed as per their position in the election petition.

3. The respondent (i.e. the returned candidate) has filed an interlocutory application for rejection of election petition, which has been registered and numbered as I.A.(C) 1609/2021. In the written objection filed by the petitioner, amongst others, has taken a plea that the interlocutory application is not maintainable. Hence, the learned senior counsel for the respondent had submitted that the issue of maintainability be heard first. However, vide order dated 25.01.2022 in I.A.(C) 1609/2021, the Court ordered that the maintainability of the application shall be taken up along with the merit of the application and not as a preliminary issue. The said order led to filing of an interlocutory application, being I.A.(C) 190/2022, by which the respondent had, inter alia, prayed that the preliminary issue be decided first. Thereupon, by order dated 27.01.2022, the Court had proposed to hear the preliminary issue of maintainability first. Thus, as the preliminary objection was from the petitioner, the learned counsel for the petitioner was asked to open his argument first.

4. The learned senior counsel for the petitioner has referred to Rule 10 of Chapter-VIII-A of Part-II of the Gauhati High Court Rules (“GHC Rules” for short), which reads as follows :-

“10. All interlocutory petitions should bear a Court fee stamp of Rs.6.00 thereon and may be filed before the Judge with permission of his Lordship.”

5. Accordingly, the learned senior counsel for the petitioner has submitted that both the interlocutory applications having neither been filed before this Bench assigned to take up the connected election petition, nor filed after obtaining prior permission of the Bench, both these interlocutory petitions were liable to be dismissed at the threshold. It has been urged that an Election Petition is required to be filed before this High Court under the provisions of The Representation of the People Act, 1951 (hereinafter referred to as “1951 Act” for short). It is submitted that as per Section 87 of the said 1951 Act read with the note appended to Rule 4 of Chapter-VIII-A of Part-II of the GHC Rules, it is envisaged that every election petition shall be tried by the High Court, as nearly as may be, in accordance with the CPC. It has also been submitted that in the case of overlapping provisions contained in CPC and GHC Rules, the GHC Rules shall prevail. In support of the said submissions, reliance is placed on the following cases, viz., (i) Chandra Kishore Jha v. Mahavir Prasad, (1999) 8 SCC 266 (para-17), (ii) Kailash v. Nankhu, (2005) 4 SCC 480 (paras 5 to 10), (iii) Maya Mathew v. State of Kerala, (2010) 4 SCC 498 (paras 12 & 13), (iv) Sajjan Sikaria v. Shakuntala Devi Mishra, (2005) 13 SCC 687 (para 3, 4), (v) Paul Roy Paske v. State of Nagaland, 2014 (2) GLT 834 (para 12 & 13).

6. Per contra, the learned senior counsel for the respondent has submitted that the language of the Rule 10 of Chapter-VIII-A of Part-II of the GHC Rules ought to be interpreted as if the filing is to be done before the Registry of the High Court, but with permission of the assigned Bench taking up a particular election petition. It is submitted that the Judge of the Court cannot be expected to carry out ministerial work of registering an interlocutory application, which must be left to be done by the Filing Section of this Court. It is