Darshan Singh vs Karamjit Singh and Others

L.N. Mittal, J.—Elected candidate Darshan Singh has filed this revision petition under Article 227 of the Constitution of India assailing order dated 06.10.2010 (Annexure P-1), passed by Election Tribunal, Ludhiana. Karamjit Singh - election petitioner (respondent No. 1 herein) earlier filed election petition No. 24 of 2008, challenging the election of Darshan Singh (petitioner herein) as Member Panchayat, which was held on 26.05.2008. The said election petition was dismissed by the Election Tribunal vide order dated 01.12.2009 (Annexure P-2) on the ground of non-joinder of other candidates in the election, who were necessary parties to the election petition. However, election petitioner was given liberty to file fresh petition, if so desired, by complying with all the provisions of the Punjab State Election Commission Act, 1994. FAO No. 1638 of 2010, preferred against order Annexure P-2 of the Election Tribunal by election petitioner Karamjit Singh, was dismissed by this Court vide order dated 05.04.2010 (Annexure P-3). Thereafter, election petitioner filed fresh election petition dated 04.05.2010 (Annexure P-4). Elected candidate moved application (Annexure P-5) for dismissal of election petition (Annexure P-4) as second election petition on the same cause of action was not maintainable and also because the second election petition was filed after long delay.

Election petitioner, by filing reply (Annexure P-6), resisted application (Annexure P-5) moved by the elected candidate.

Learned Election Tribunal, vide impugned order (Annexure P-1), dismissed application (Annexure P-5) moved by the elected candidate. Feeling aggrieved, elected candidate has filed this revision petition.

I have heard Learned Counsel for the parties and perused the case file.

In so far as contention of elected candidate that the second election petition is not maintainable on the same cause of action after dismissal of first election petition, is concerned, the same cannot be accepted because while dismissing the first election petition, the election Tribunal, vide order (Annexure P-2), specifically gave liberty to the election petitioner to file fresh petition. The said order has attained finality. Consequently, second election petition cannot be said to be not maintainable on this ground.

Counsel for the petitioner contended that instant second election petition (Annexure P-4) is barred by limitation, having been instituted after expiry of limitation period of 45 days from the date of election.

Counsel for the election petitioner, however, contended that period spent in prosecuting the first election petition and first appeal in that case has to be excluded in view of Section 14 of the Limitation Act, 1963 and by excluding the said period, the instant election petition is within limitation. It was also contended that election petition (Annexure P-4), having already been entertained by the Election Tribunal, delay in filing the election petition is deemed to have been condoned.

I have carefully considered the rival contentions.

Election was held on 26.05.2008. Election petition (Annexure P-4) was instituted on 04.05.2010. Limitation period for filing the election petition is admittedly 45 days. Consequently, the election petition (Annexure P-4) has been filed long after expiry of limitation period. Question of implied condonation of delay in filing the election petition does not arise because delay in filing the election petition cannot be condoned even expressly, much less impliedly. Even otherwise, without adjudicating the question of limitation or condonation of delay, by no stretch can it be said that the delay in filing the election petition is deemed to have been condoned. There is not even power with the Election Tribunal to condone any delay in filing the election petition.

Section 14 of the Limitation Act is not attracted to this case because the said provision applies when a suit is prosecuted in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain the suit. In the instant case, Election Tribunal, before which the first election petition had been instituted, had jurisdiction to entertain the same and there was no defect of jurisdiction or other cause of a like nature. Misjoinder of parties or causes of action is also deemed to be a cause of a like nature with defect of jurisdiction in view of explanation (c) to Section 14 of the Limitation Act. In the instant case, however, first election petition was dismissed on account of non-joinder of necessary parties and not on account of misjoinder of parties or causes of action. Non-joinder of necessary parties cannot be said to be cause of a like nature with defect of jurisdiction stipulated in Section 14 of the Limitation Act. Consequently, benefit of Section 14 of the Limitation Act is not available to the election petitioner.

However, even giving the benefit of Section 14 of the Limitation Act to the election petitioner, instant second election petition (Annexure P-4) cannot be said to be within limitation. Only the period actually spent in prosecuting the first election petition and the first appeal can be excluded u/s 14 of the Limitation Act. First election petition was filed on 03.07.2008 and decided on 01.12.2009. FAO No. 1638 of 2010 was instituted on 17.03.2010 and decided on 05.04.2010. Second election petition (Annexure P-4) was instituted on 04.05.2010. Thus, even excluding the period actually spent in prosecuting first election petition and the aforesaid appeal filed in that case, the instant second election petition (Annexure P-4) has been instituted much beyond the limitation period of 45 days computed from the date of election i.e. 26.05.2008.

In view of the aforesaid, there is no escape from the conclusion that election petition (Annexure P-4) is barred by limitation. Consequently, impugned order (Annexure P-1) of the Election Tribunal is unsustainable being perverse and illegal. The said order suffers from jurisdictional error because the Election Tribunal refused to exercise jurisdiction which vested in it to dismiss the election petition. Accordingly, the instant revision petition is allowed. Impugned order (Annexure P-1) passed by Election Tribunal is set aside. Application (Annexure P-5) moved by the elected candidate (petitioner herein) is allowed. Election petition (Annexure P-4) moved by the election petitioner (respondent No. 1 herein) stands dismissed being time barred.