CPC Applies To Election Petitions Only Subject To RP Act; 'Proper Parties' Cannot Be Added Beyond Statute: J&K&L High Court

The Jammu & Kashmir and Ladakh High Court has held that the procedure prescribed under the Code of Civil Procedure is applicable to the trial of election petitions only, subject to the provisions of the Representation of the People Act, 1951. The Court clarified that anything contained in the CPC which is contrary to the provisions of the Act of 1951 cannot be made applicable to the trial of election petitions.The Court was hearing an election petition filed by Ex MLA Harsh Dev Singh, wherein a preliminary issue was raised regarding misjoinder of parties. The petitioner had impleaded not only the contesting candidates but also officials and officers against whom allegations of impropriety were levelled. Respondents contended that, as per Section 82 of the Representation of the People Act, 1951, only contesting candidates could be impleaded as parties to an election petition.The bench of Justice Sanjay Dhar observed, “The procedure prescribed under the Code of Civil Procedure is applicable to trial of election petitions only subject to the provisions of the Act of 1951. Thus, anything contained in the Code of Civil Procedure which is contrary to the provisions of the Act of 1951 cannot be made applicable to trial of election petitions.”Background:In the instant case, the petitioner filed an election petition challenging the election of returned candidates. He impleaded not only the contesting candidates but also respondents No. 1 to 9, who were officials and officers, against whom allegations of impropriety were leveled. Respondent No. 10 raised a preliminary objection that there was misjoinder of parties, contending that under Section 82 of the Act of 1951, only contesting candidates could be impleaded. The petitioner, on the other hand, relied upon Section 87 of the Act, which makes the procedure under the CPC applicable to election petitions, and argued that all necessary and proper parties must be impleaded. He also relied upon Section 99(1)(a)(ii) of the Act, which requires naming of all persons proved guilty of corrupt practice.Court's Observation:The Court examined Sections 82, 86, 87 and 99 of the Representation of the People Act, 1951. Section 82 provides that a petitioner shall join as respondents: (a) all contesting candidates where a further declaration of being duly elected is claimed, or all returned candidates where no such declaration is claimed; and (b) any other candidate against whom allegations of corrupt practice are made. The Court noted Section 86(4) enables any candidate not already a respondent to be joined upon application andSection 87(1) states that every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the CPC to the trial of suits, but this is expressly made subject to the provisions of the Act and any rules made thereunder.The Court relied upon the Supreme Court judgment in Jyoti Basu v. Debi Ghosal, 1982 (1) SCC 691, wherein it was held that the contest of an election petition is designed to be confined to the candidates at the election, and all others are excluded. The Supreme Court observed that the concept of “proper parties” is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents who are mentioned in Section 82 and Section 86(4), and no others, the Court underscored. The Court held that the provisions of the CPC are applicable to the trial of election petitions only to the extent they are not contrary to the specific provisions of the Act of 1951. Since Section 82 provides a complete code as to which persons are to be impleaded as respondents, anything contrary to Section 82 contained in the CPC cannot be invoked to implead a person as a party who otherwise cannot be impleaded under Section 82, the Court maintained. Regarding the contention based on Section 99(1)(a)(ii), which provides for naming persons proved guilty of corrupt practice at the time of making the final order, the Court referred to the Supreme Court's observation in Jyoti Basu that the right of such a person is limited to show cause against being “named” at the end of the trial, and does not extend to participation at all stages as a party. The stage of impleading such persons would come only after the trial of the case, not at the time of filing the election petition.Applying these principles, the Court found that the petitioner had impleaded respondents No. 1 to 9, who were officials and officers not contesting candidates, in violation of Section 82. Thus, there was misjoinder of parties.On the effect of misjoinder, the Court relied upon B.S. Yadiyurappa v. Mahalingappa, 2002 (1) SCC 301, where the Supreme Court held that an election petition not complying with Section 82 does not necessarily entail its dismissal, and can be amended by striking out the additionally impleaded parties.Accordingly, the Court held that preliminary issue No. 1 (misjoinder...

CPC Applies To Election Petitions Only Subject To RP Act; 'Proper Parties' Cannot Be Added Beyond Statute: J&K&L High Court

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CPC Applies To Election Petitions Only Subject To RP Act; 'Proper Parties' Cannot Be Added Beyond Statute: J&K&L High Court

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