1980 Supreme(MP) 60

J. S. Verma, J.
Dashrathsingh v. Gargi Shankar Mishra.
Ele. Pet. No. 4 of 1980 (J); Decided on 7-3-1980.

Headnote:(1) Representation of the People Act, 1951 -- Ss. 81 (1), 86 (1) and 117 -- nature of the provisions under -- whether mandatory -- petition not filed within time allowed under S. 81 (1) -- security not deposited as contemplated under S. 117 -- such petition is liable to be dismissed under S. 86 (1) -- delay cannot be condoned -- Limitation Act. 1963 -- S. 5.

        (2) Limitation Act, 1963 -- S. 5 -- election petition filed beyond limitation prescribed -- delay cannot be condoned as provision has no application - Representation of the People Act, 1951 -- S. 81 (1).

        This election petition was presented on 29-2-1980 and is admittedly beyond the time prescribed for filing the same in accordance with section 81 (1) of the Representation of the People Act, 1951. For this reason, an application has been made by the petitioner for condonation or delay under section 5 of the Limitation Act, it being admitted that the petition is time barred. There is one more infirmity in this petition. The petitioner has as yet not deposited a sum of Rs. 2,000 as security for costs as required by section 117 of the R. P. Act, 1951. Another application has been filed by the petitioner praying for grant of two months further time to the petitioner for depositing the required security amount of Rs. 2,000. The question is whether such a petition is liable to be dismissed for these reasons alone.

        In Charanlal v. Nandkishore. AIR 1973 SC 2464, it was definitely ruled that non-deposit of the security along with the election petition as required under section 117 of the Act leaves no option to the Court but to reject the election petition. It was also observed by their Lordships in that decision that the right to file an election petition being a statutory right conferred by the Act, the provisions of that statute had to be complied with, and that there was no discretion in the Court to condone the delay in presentation of the election petition or to absolve the petitioner from payment of the security for costs. Accordingly non-deposit of the security as required by section 117 of the Act, along with the presentation of the election petition was held to be a fatal defect which alone was sufficient for dismissal of the petition, there being no option given to the High Court in such a situation. It is, therefore, clear that no question arises of granting two months further time for making the security deposit as prayed for by the petitioner by inasmuch as non-deposit of the security amount along with the election petition has resulted in a fatal defect which alone is sufficient to attract sub-section (1) of section 86 of the Act, justifying dismissal of the election petition.

        After the decision in Hukumdev v. Lalit Narayan, AIR 1974 SC 480 there can be doubt that the provisions of section 5 of the Limitation Act do not govern filing of election petitions or their trial under the R. P. Act, 1951. That decision leaves no doubt that an election petition presented after the expiry of the period of 45 days, prescribed under sub-section (1) of section 81 of the Act has to be dismissed under sub-section (1) of section 86 for non-compliance with the provisions of section 81 and there is no discretion left to the High Court to condone the delay under section 5 of the Limitation Act, the applicability of which to an election petition is clearly excluded. AIR J973 SC 2464 and AIR 1974 SC 480 followed. Petition dismissed.