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Anwari Basavaraj Patil And Others v. Siddaramaiah And Others
Factual and Procedural Background
The appellant was the returned candidate from the Koppal Parliamentary Constituency in the 1991 General Elections, having contested on an Indian National Congress ticket. The first respondent (election-petitioner), who had lost the election as a Janata Dal candidate, instituted Election Petition No. 8 of 1991 in the Karnataka High Court seeking (i) a declaration that the appellant’s election was void and (ii) a further declaration that he himself was duly elected.
After ordinary service proved ineffective, the High Court ordered substituted service by publication in a Kannada daily on 4 November 1991, directing respondents to appear on 23 November 1991. The appellant appeared the same day and filed a written statement on 6 November 1992. On 21 January 1992, he lodged a recrimination notice under Section 97 of the Representation of People Act, 1951 (“RPA”), asserting that the election-petitioner’s own election would have been void had he been returned. Because Section 97 requires such notice within fourteen days of “commencement of trial” (deemed in this case to be 4 November 1991), the notice was out of time. The appellant simultaneously filed an application under Section 5 of the Limitation Act, 1963 to condone the delay.
The learned Single Judge of the High Court held that Section 5 of the Limitation Act was inapplicable to a recrimination notice under Section 97 RPA and consequently refused to condone the delay. The present appeal to the Supreme Court challenged that ruling.
Legal Issues Presented
- Whether Section 5 of the Limitation Act, 1963 applies to a recrimination notice filed under Section 97 of the Representation of People Act, 1951.
Arguments of the Parties
Appellant's Arguments
- Invoked Section 29(2) of the Limitation Act to contend that, in the absence of an express exclusion, Sections 4–24 of the Limitation Act (including Section 5) apply to proceedings under the RPA.
- Relied on the Supreme Court decision in V.C. Shukla v. Khubchand Baghel (1964) 6 SCR 129, which applied Section 12(2) of the Limitation Act to an RPA appeal, and on several High Court decisions that had extended Section 5 to election matters.
Respondent's Arguments
- Asserted that the RPA constitutes a self-contained code governing election disputes and expressly prescribes time-limits, thereby excluding Section 5 by necessary implication.
- Placed reliance on H.N. Yadav v. L.N. Misra (1974) 2 SCC 133, where the Supreme Court held that Section 5 does not apply to the filing of election petitions under the RPA.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| H.N. Yadav v. L.N. Misra (1974) 2 SCC 133 | The RPA is a self-contained code; Section 5 of the Limitation Act does not apply to election petitions. | Treated as controlling authority; Court extended the same reasoning to recrimination notices, holding Section 5 inapplicable. |
| V.C. Shukla v. Khubchand Baghel (1964) 6 SCR 129 | Section 12(2) of the Limitation Act applies to RPA appeals under Section 116A. | Distinguished: concerned appeals, not election petitions or recrimination notices; therefore not germane to present issue. |
| Bhogilal Pandya v. Maharawal Laxman Singh AIR 1968 Raj 145 | High Court view that Sections 5 and 12(2) of the Limitation Act can apply to RPA proceedings. | Expressly disapproved insofar as it supports applicability of Section 5 to election petitions/recrimination notices. |
| Bhakti Bh. Mondal v. Khagendra K. Bandopadhya AIR 1968 Cal 69 | Similar High Court view extending Limitation Act provisions to RPA matters. | Not followed; Supreme Court held contrary in light of H.N. Yadav. |
| K. Appa Rao v. P.B. Gramani AIR 1976 Mad 70 | High Court decision supporting applicability of Section 5 to RPA proceedings. | Overruled on this point; Court reaffirmed that Section 5 is excluded. |
Court's Reasoning and Analysis
1. The Court examined Section 97 RPA, noting that a recrimination notice is procedurally equated with an election petition: it must be accompanied by particulars under Section 83, supported by security deposits under Sections 117 and 118, and delivered within fourteen days of the “commencement of trial” (as defined in Section 86(4) Explanation).
2. Relying on H.N. Yadav, the Court reiterated that the RPA is a “complete code in itself” governing election petitions. Under Section 29(2) of the Limitation Act, exclusion of Section 5 can be implied when special legislation provides a self-contained scheme with strict time-limits.
3. Because a recrimination notice is treated on the same footing as an election petition, the rationale excluding Section 5 from election petitions necessarily extends to recrimination notices.
4. The fourteen-day limit in the proviso to Section 97(1) serves a substantive purpose—ensuring that issues raised by way of recrimination are tried concurrently with the election petition—supporting the conclusion that the legislature intended an inflexible period.
5. Consequently, Section 5 of the Limitation Act cannot be invoked to condone delay in filing a recrimination notice. The High Court’s refusal to apply Section 5 was therefore correct.
Holding and Implications
The appeal is dismissed with costs.
Immediate consequence: the appellant’s delayed recrimination notice remains barred, and the Karnataka High Court’s decision stands. Broader implication: the Supreme Court reaffirms that Section 5 of the Limitation Act is inapplicable not only to election petitions but also to recrimination notices under Section 97 of the Representation of People Act, 1951, thereby reinforcing strict adherence to statutory time-limits in election litigation without extending any equitable discretion to condone delay.
B.P Jeevan Reddy, J.— Heard the counsel for the parties. Leave granted.
2. This appeal raises the question whether Section 5 of the Limitation Act, 1963 is applicable to a recrimination notice given under Section 97 of the Representation of People Act, 1951. The learned Single Judge of the Karnataka High Court has held that it is not. His view is questioned by the returned candidate (first respondent in the election petition) before us.
3. The first respondent in the election petition who shall hereinafter be referred to as “appellant”, was declared elected from Koppal parliamentary constituency during the general elections held for the Tenth Lok Sabha. He contested on the Congress (I) ticket. The election-petitioner, referred to hereinafter as “the first respondent” had also contested from the said constituency on the ticket of Janata Dal. Having lost the election, the first respondent filed an Election Petition No. 8 of 1991 for a declaration that the election of the appellant from the said parliamentary constituency was void and for a further declaration that he himself has been duly elected therefrom. Since the appellant and some other respondents to the election petition could not be served in the ordinary course, the High Court directed publication of notice in a Kannada Daily Newspaper. It was so published on November 4, 1991 fixing the date of appearance of the respondents on November 23, 1991. The appellant (first respondent in the election petition) appeared before the High Court on November 4, 1991 and sought time for filing his written statement which he did on November 6, 1992. Thereafter, on January 21, 1992 he submitted the recrimination notice under Section 97 of the Act. By the said notice, the appellant expressed his intention to give evidence to prove that the election of the first respondent would have been void if he had been the returned candidate and a petition had been presented calling in question his election. Along with the recrimination notice he filed an application under Section 5 of the Limitation Act requesting the High Court to condone the delay in filing the same for the reasons stated therein. According to the proviso to Section 97(1), notice of such intention should have been given to the High Court “within 14 days from the date of commencement of trial”. Admittedly, the appellant gave notice under Section 97(1) beyond the period of 14 days and hence the application under Section 5.
4. For a proper appreciation of the question arising herein, it would be appropriate to notice the relevant provisions of the Representation of People Act besides Section 29(2) of the Limitation Act, 1963. First the provisions of the Representation of People Act. Section 97 reads as follows:
“97. Recrimination when seat claimed.— (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election:
Provided that the returned candidate or such other party, as aforesaid, shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in Sections 117 and 118 respectively.
(2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner.”
5. Sub-section (1) of Section 97 permits the returned candidate or any other party to give evidence (in an election petition seeking a declaration that any candidate other than the returned candidate has been duly elected) to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. Sub-section (2) says that such a notice shall be accompanied by a statement and particulars required by Section 83 in the case of an election petition and shall also be signed and verified in the same manner. Proviso to sub-section (1) says that such a notice shall be given within fourteen days from the date of “commencement of trial” and the security and further security referred to in Sections 117 and 118 respectively is furnished. The expression “commencement of trial” has been defined in Explanation to sub-section (4) of Section 86. The Explanation reads:
“For the purposes of this sub-section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.”
6. According to the said definition, the notice of the recrimination should have been given in this case within fourteen days of November 4, 1991. Admittedly, it was submitted beyond the said period. Section 83 deals with “contents of petition”. According to sub-section (1), an election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of all the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each of such practice and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. The proviso to sub-section (1) says that where a petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such practice and particulars therein. Sub-section (2) says that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Section 117 requires the election petitioner to deposit in the High Court, at the time of presenting an election petition, a sum of Rs 2000 as security for the costs of the petition in accordance with the rules of the High Court. Section 118 says that no person shall be entitled to be joined as a respondent under sub-section (4) of Section 86 unless he has given such security for costs as the High Court may direct. Section 86(1) declares that “the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117”.
7. There is no provision in the Representation of People Act, 1951 making all or any of the provisions of the Limitation Act applicable to the proceedings under the Act. The appellant, however, relies upon Section 29(2) of the Limitation Act. According to him by virtue of the said provision, all the provisions contained in Sections 4 to 24 (both inclusive) apply to the proceedings under the Act including the recrimination notice under Section 97. Sub-section (2) of Section 29, which alone is relied upon before us reads:
“Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.”
8. In H.N Yadav v. L.N Misra (1974) 2 SCC 133, (1974) 3 SCR 31 this Court held that the words “expressly excluded” occurring in Section 29(2) of the Limitation Act do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the Limitation Act, the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the Limitation Act are necessarily excluded then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act. That too was a case arising under the Representation of People Act and the question was whether Section 5 of the Limitation Act is applicable to the filing of the election petition. The test to determine whether the provisions of the Limitation Act applied to proceedings under Representation of People Act by virtue of Section 29(2) was stated in the following words:
“The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petitions and their trial to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of that Act.”
9. On an examination of the provisions of the Representation of People Act and the earlier decisions of the Court, it was held that the Representation of People Act is a self-contained code and accordingly, it was concluded that “the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial”.
10. This decision, in our view, practically concludes the question before us inasmuch as the Act equates a recrimination notice to an election petition. The language of Section 97 makes the said fact abundantly clear. The relevant words are: “the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election”. The proviso to sub-section (1) applies the provisions of Sections 117 and 118 to such a recrimination notice. It may be noticed that for non-compliance with the requirement of Section 117 an election petition is liable to be dismissed by virtue of sub-section (1) of Section 86. Sub-section (2) of Section 97 further says that the “notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner”. We may also say that the proviso to sub-section (1) of Section 97 which requires such a notice to be given to the High Court within fourteen days of the “date fixed for the respondents to appear before the High Court to answer the claim or claims” (reading the definition of “commencement of trial” into it) has also a particular meaning and object behind it. The idea is that the recrimination notice, if any, should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. If Section 5 does not apply to the filing of an election petition, it does not equally apply to the filing of the recrimination notice.
11. In view of the above position, we do not think it necessary to deal with the several decisions cited before us relating to the interpretation of sub-section (2) of Section 29 of the Limitation Act.
12. The counsel for the appellant brought to our notice a decision of this Court holding that the provisions of Section 12(2) of the Limitation Act, 1908 are applicable to an appeal under Section 116(A) of the Representation of People Act, 1951 viz., V.C Shukla v. Khubchand Baghel (1964) 6 SCR 129, AIR 1964 SC 1099. It is also brought to our notice that certain High Courts have taken the view that both Section 5 and Section 12(2) of the Limitation Act are applicable to the proceedings under the Act. Reference is to Bhogilal Pandya v. Maharawal Laxman Singh AIR 1968 Raj 145, 1967 Raj LW 577, Bhakti Bh. Mondal v. Khagendra K. Bandopadhya AIR 1968 Cal 69 and K. Appa Rao v. P.B Gramani AIR 1976 Mad 70, (1976) 89 Mad LW 32. So far as the decision of this Court in V.C Shukla (1964) 6 SCR 129, AIR 1964 SC 1099 is concerned, it is a decision dealing with the applicability of the provision in Section 12(2) of the Limitation Act to an appeal preferred under Section 116(A) and not with the filing of an election petition. The said decision was considered and distinguished in H.N Yadav (1974) 2 SCC 133, (1974) 3 SCR 31 on the above basis. At page 42 of the SCR, the Division Bench which decided H.N Yadav (1974) 2 SCC 133, (1974) 3 SCR 31 distinguished the decision in V.C Shukla (1964) 6 SCR 129, AIR 1964 SC 1099 in the following words:
“Secondly, V.C Shukla case (1964) 6 SCR 129, AIR 1964 SC 1099 is one which dealt with an appeal under the Act while what we have to consider is whether the Limitation Act is at all applicable to election petitions under the Act. Thirdly, Section 29(2) of the new Limitation Act does not now give scope for this controversy whether the two limbs of the old section are independent or integrated. No doubt Section 5 would now apply where Section 29(2) is applicable to even applications and petitions, unless they are expressly excluded. Even assuming that the Limitation Act applies to election petitions under the Act, what has to be seen is whether Section 5 is excluded from application to such petitions.”
13. The Division Bench then proceeded to examine whether the applicability of Section 5 is excluded in the matter of filing of an election petition and came to the conclusion that it was so excluded. This aspect has already been dealt with hereinabove. So far as the decisions of the High Courts are concerned, we cannot agree with them insofar as the applicability of Section 5 to filing of an election petition and/or recrimination notice is concerned in view of the decision of this Court in H.N Yadav (1974) 2 SCC 133, (1974) 3 SCR 31.
14. For the above reasons, the appeal fails and is accordingly dismissed with costs.
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