ORDER
R.K. Patra, J.
1. In this petition, election of respondent No. 1 from 105 -- Boudh Assembly Constituency to the Orissa Legislative Assembly is under challenge.
2. General election to the Orissa Legislative Assembly took place in the month of March, 1995. Polling for the constituency in question took place on 9-3-1995. The petitioner contested the ejection as Congress candidate with the symbol 'Hand'. Respondent No. 1 was a candidate of the Janata Dal with the symbol 'Chakra'. Respondents 2 to 9 filed their nominations as candidates from different political parties and/or as independent candidates. Counting of votes took place on 11-3-1995. The petitioner secured 41,932 valid votes in his favour whereas respondent No. 1 got 44,423 valid votes in his favour. As respondent No. 1 secured the highest number of votes, he was declared elected. Being feltaggrieved by such declaration, the petitioner has filed the present petition praying to:--
(i) order inspection, scrutiny and recount of all ballot papers polled;
(ii) declare the election of respondent No. 1 void; and
(iii) declare the petitioner to have been duly elected.
The allegation of the petitioner in the election petition is that respondent No. 1 was the sitting member of the Assembly at the time of election and at that time his party was in power in the State and taking advantage of such position, he mobilised the officials in manhandling the ballot papers. According to the petitioner, there was erroneous counting of valid votes which resulted in reception/ rejection of valid votes cast in his favour which materially affected the result of the election. The petitioner claims that as a matter of fact he received majority of valid votes in his favour but because of careless and haphazard counting and manipulation by the counting-officers, respondent No. 2 was illegally declared to have obtained the highest number of valid votes in his favour.
3. Notice being issued, respondent No. 1 entered his appearance through his counsel and filed written statement denying the allegations made in the election petition. Respondents 2 to 5 and 7 to 9 despite valid service of notice on them have not appeared in the case. The name of respondent No. 6 was deleted on the basis of a memorandum filed on behalf of the petitioner. On perusal of the pleadings, this Court framed issues on 24-11-1995 and directed the contesting parties to file list of witnesses and documents. The petitioner as well as respondent No. 1 filed their respective list of witnesses to be summoned and examined in the case. Counsel for the petitioner and respondent No. 1 submitted that none of them has any list of documents to be filed. On 5-4-1995 prayer was made on behalf of the parties for adjournment of the case on the ground that officers would be busy for the Lok Sabha election and it would not be possible to secure their attendance and this Court would also be closed for summer vacation from 18-5-1996 to 16-6-1996. Accordingly, the matter was adjournd to 18-6-1996 for fixing a date of hearing. On that day (18-6-1996), a memorandum was filed by the counsel for the petitioner saying that the petitioner does not want to pursue the matter. On the request of the counsel, the case was adjourned to 21-6-1996 for consideration of the said memo. On the adjourned date (21-6-1996) at the request of the learned counsel for the petitioner, the case was again adjourned to today (28-6-1996). Today, despite repeated calls, neither the petitioner appears nor any of his counsel. No step has also been taken on his behalf in the case. Shri Braja Mohan Patnaik, learned counsel for respondent No. 1, is present.
4. The question that arises for consideration is whether an election petition can be dismissed for default of appearance of the petitioner. A 'look' at different provisions of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') would show that it is a complete and self-contained Code. Dispute regarding elections have been dealt with in Part VI of the Act. On what ground an election petition may be presented and who can present it are mentioned in Section 81 of the Act. Section 82 provides as to who are to be joined as respondents to the petition. Chapter III of Part IV deals in detail with regard to trial of election petitions. Section 86 states that an election petition is liable to be dismissed if it does not comply with the provisions of Section 81, or Section 82 or Section 117. Section 93 provides about the kind of order of the High Court shall make at the conclusion of the trial of an election petition. Section 109 speifically states that an election petition may be withdrawn only by leave of the High Court and the procedure for withdrawal is indicated in Section 110. In spite of such clear and distinct provisions in the Act dealing with different matters, there is no specific provision as to what happens on the non-appearance of the petitioner on the date of hearing of the case. The pointer, however, seems to be in Section 87 which provides that subject to the provisions of the Act and any rules made thereunder, every election petition shallbe tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 totrial of suits.
5. This very question came up for consideration before the Supreme Court in Dr. P. Nalla Thampy Thera v. B. L. Shanker, AIR 1984 SC 135. In that case it was argued that once an election petition is filed, it cannot be dismissed for default. Rejecting the said argument, R. N, Misra, J. (as he then was) in paragraph 16 of the judgment held as follows :
'There is no support in the statute for the contention of the appellant that an election petition cannot be dismissed for default. The appellant contended that default of appearance or non-prosecution of the election petition must be treated as on par with withdrawal or abatement and, therefore, though there is no clear provision in the Act, the same principle should govern and the obligation to notify as provided in Section 110 or 116 of the Act should be made applicable. We see no justification to accept such a contention. Non-prosecution or abandonment is certainly not withdrawal. Withdrawal is a position and voluntary act while non-prosecution or abandonment may not necessarily be an act of volition. It may spring from negligence, indifference, inaction or even incapacity or inability to prosecuteAfter considering in detail the Full Bench decision of the Punjab and Haryana High Court in Jugal Kishore; Dr Baldev Prakash, AIR 1968 Punj & Har 152, decision of the Madhya Prasesh High Court in Sunderlal Mannalal v. Nandramdas Dwarkadas, AIR I958 Madh Pra 260, Full Bench decision of the Allahabad High Court in Duryodhan v. Sitaram, AIR 1970 All 1 and that of the Supreme Court in Rajendra Kumari Bajpai v. Ram Adar Yadav, (1976) 1 SCR 255, the Court concluded as follows:
'..... It, therefore, follows that the Code isapplicable in disposing of an election petition when the election petitioner does not appear or take steps to prosecute the election petition. Dismissal of an election petition fordefault of appearance of the petitioner under the provisions of either Order IX, or Order XVII of the Code would, therefore, be valid.'
I may mention here that learned single Judge of the Gauhati High Court in K. Vungazalian v. J. F. Rathangliana, AIR 1988 Gau 30 has taken the view that the High Court has power to dismiss an election petition for non-prosecution although no reference has been made to the judgment of the Supreme Court in Dr. P. Nalla Thampy (supra).
6. As already noted, today despite repeated calls, there is no appearance by or on behalf of the petitioner. The filing of the memorandum earlier on behalf of the petitioner to prosecute the election petition has to be taken as precursor. In the circumstances, I hereby dismiss the election petition for non-prosecution with costs which is assessed at Rs. 1,000/-. Shri B. M. Patnaik, learned counsel for respondent No. 1 is entitled to withdraw the said cost from out of the security deposited by the petitioner in this Court.