S. Shekhar Vs. Commissioner and Returning Officer, Bangalore City Corporation, Bangalore and Others - Court Judgment

Excerpt:
- section 16: [k.ramanna,j] suit for specific performance of agreement for sale of immovable property time was essence of contract -plaintiff purchaser had not taken any steps for furtherance of agreement for a period of 1 year held, it shows purchaser was not willing and ready to perform his contract. also, no material was produced to prove that defendant sought to extend stipulated time for one year to execute regular sale deed. breach of contract committed by purchaser. plaintiff is not entitled to relief. section 22: [k.ramanna,j] refund earnest money agreement for sale of immovable property - breach of contract by purchaser held, defendant-seller is not entitled to forfeit earnest money in the absence of forfeiture clause in agreement. however earnest money was allowed to be.....acts/rules/orders:code of civil procedure, 1908 - order 1, rule 9 - order 1, rule 10 - order 3, rules 1 and 4(1) - order 4, rule 1 - order 33, rule 3;representation of the people act, 1950 - section 2(5), 14, 16, 25, 26, 27, 30, 32, 33, 35, 70, 81, 82, 86, 87, 100, 101 and 117(1);constitution vide (seventy-fourth) amendment act, 1992;karnataka general clauses act - section 10;indian limitation act, 1908 - section 5;karnataka municipal election rules - rule 77(4)cases referred:siddaiah v. returning officer, corporation of the city of bangalore, 1987(2) kar. l.j. sh. n. 315, ilr 1987 kar. 595;k. kamaraja nadar v. kunju thevar and others, air 1958 sc 687;b. okkadakatti v. h.g. dwarkanath khadju, ilr 1980 kar. 334;suresh krishnaji and others v. shankarappa and another, 1983(1) kar. l.j. 404,.....

Judgment:
Acts/Rules/Orders:

Code of Civil Procedure, 1908 - Order 1, Rule 9 - Order 1, Rule 10 - Order 3, Rules 1 and 4(1) - Order 4, Rule 1 - Order 33, Rule 3;Representation of the People Act, 1950 - Section 2(5), 14, 16, 25, 26, 27, 30, 32, 33, 35, 70, 81, 82, 86, 87, 100, 101 and 117(1);Constitution vide (Seventy-fourth) Amendment Act, 1992;Karnataka General Clauses Act - Section 10;Indian Limitation Act, 1908 - Section 5;Karnataka Municipal Election Rules - Rule 77(4)

Cases Referred:

Siddaiah v. Returning Officer, Corporation of the City of Bangalore, 1987(2) Kar. L.J. Sh. N. 315, ILR 1987 Kar. 595;K. Kamaraja Nadar v. Kunju Thevar and Others, AIR 1958 SC 687;B. Okkadakatti v. H.G. Dwarkanath Khadju, ILR 1980 Kar. 334;Suresh Krishnaji and Others v. Shankarappa and Another, 1983(1) Kar. L.J. 404, AIR 1983 Kant. 226;Heera Bai Genda Lal v. Bhagirath Ramchandra and Co,pany, AIR 1946 Bom. 174;Nawab Khan v. Vishwanath Shastry, AIR 1993 All. 104;Mohan Singh v. International Airport Authority of India, (1997)1 SCC 533;Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa and Others, AIR 1958 SC 698;Dhartipakar Mandan Lal Agarwal v. Rajiv Gandhi, aIR 1987 SC 1577;Azhgar Hussain v. Rajiv Gandhi,. AIR 1986 SC 1253;B. Sundara Rami Reddy v. Election Commission of India and Others, 1991 Supp. (2) SCC 624;Jypti Basu and Others v. DFebi Ghosal and Others, AIR 1982 SC 9873;K. Venkateswara Rao and Another v. Bekkam Narasimha Reddi and Others, AIR 1969 SC 872;Subhan Khan v. J.H. Patel and Others, 1995(3) Kar. L.J. 559, AIR 1996 Kant. 167;Hukumdev v. Narayan Yadav, AIR 1980 SC 480;Charan Lal Sahu v. Nandkishore Bhatt and Others, AIR 1973 SC 2464;M. Karunanidhi v. H.V. Handa and Others, AIR 1983 SC 558

JUDGEMENT

1. The appellant filed this appeal assailing judgment of the XV Additional City Civil Judge, Bangalore City, dismissing the election petition filed by the appellant challenging the validity of the election of the respondent 2 as a Councillor in respect of Ward No. 27 of the Gandhinagar, Bangalore City Corporation, and declaring him as elected as a Councillor from that Ward.

2. Brief facts of the case are that the Ward No. 27 was reserved for backward class 'A' category for the election of the Municipal Councillor held in the year 1996. The respondent 2 is a Gujarathi Brahmin played a fraud on the Tahsildar, Bangalore North Taluk, in obtaining a certificate to the effect that he belonged to Vishwa Brahmin caste and thus he was able to file nomination claiming himself to be backward class 'A' category.

3. The appellant presented the election petition on 2-12-1996 at 11.45 p.m. through his Advocate at the residence of the Registrar of the Court. The successful candidate and the Commissioner/Returning Officer were only the respondents in the original petition at the time of filing. Subsequently, an application was filed under Order 1, Rule 10 of the CPC and Order 6, Rule 17 of the CPC on 7-12-1996 seeking to implead other candidates who contested in the election. Interlocutory Application Nos. 1 and 2 were allowed and consequently election petition was amended impleading respondents 3 to 14.

4. The respondents 1, 2, 5, 6 and 13 and others filed the objections except respondents 3, 6 and 11 who remained ex parte. In the objections apart from the merits of the case following objections regarding maintainability of election petitions were raised by the respondents:

(i) It has been contended that election petition is not maintainable since the petitioner has not complied with the mandatory requirement of Section 33(2) of the KMC Act, 1976;

(iv) The petition is not maintainable and is bad for non-deposit of the required security deposit amount in the Court, at the time of filing of the parties.

5. The Court below has framed totally eight issues and tried issues 2, 4 to 6 as preliminary issues and held against the appellant and dismissed the election petition as not maintainable. Against that present appeal is filed.

6. The learned Counsel for appellant contended that the Court below erred in interpreting the word 'may' in the Section 33(2) of the Karnataka Municipal Corporations Act (the 'Act', for short) is a mandatory one relying on the provisions of Representation of the People Act ('R.P. Act' for short). The Court below erred to note application of the R.P. Act was specifically excluded vide Constitution 74th Amendment by incorporating Articles 243-ZA, 243-ZF and 243-ZG(b).

7. Learned Counsel for respondent 2 contended that the provisions providing procedure for filing and disposal of the election petition has to be strictly complied with as it is a special statute prescribing the procedure which is mandatory. Therefore word 'may' has to be read as 'shall'. The contention that the principle laid down while interpreting the provisions of the R.P. Act are excluded in view of the Constitutional 74th Amendment is not tenable.

8. In view of the above contentions important points of law which arise for consideration are:

(1) Whether election petition is properly presented when it is presented by an Advocate without proper vakalath?

(2) Whether the application of R.P. Act is excluded by incorporation of Chapter IX-A in the Constitution of India vide 74th Amendment to the Constitution?

9. To appreciate the above contentions it is relevant to refer some of the provisions of the Act.

Section 2(5) defines the term 'Commissioner'. 'Commissioner' means the Commissioner appointed under Section 14 and includes a person appointed to act as Commissioner under Section 16.

Section 2(7) defines 'Councillor', It means a person who is duly elected as a member of the Corporation under this Act.

Section 2(29) defines 'Prescribed'. It means prescribed by rules made under this Act.

Chapter IV of the Act deals with the elections.

Section 25 deals with qualification of the candidates.

Section 26 deals with the general disqualification for becoming a Councillor.

Section 27 deals with corrupt practices entailing disqualification. Section 33 deals with election petition, which is as follows:

'(1) No election of a Councillor shall be called in question except by an election petition presented for adjudication to the District Court having jurisdiction, within thirty days from the date of the publication of the result of election under Section 32.

(2) An election petition may be presented on one or more of the grounds specified in Section 35,--

(a) by any candidate at such election; or

(b) by any voter of the division concerned.

(3) A petitioner shall join as a respondent to his petition all the candidates at the election.

(4) An election petition,--

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) for the verification of pleadings.

(5) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of presentation of the election petition under sub-section (1):

Provided that where the 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 corrupt practice and the particulars thereof.

(6) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition'.

Section 35 provides for grounds for declaring elections to be void.

Section 36 says procedure provided in the CPC, 1908, in regard to suits shall be followed by the Court as far as it can be made applicable, in the trial and disposal of an election petition under this Act.

Rule 70 of the Act provides that every election petition under Section 33 shall be accompanied by deposit of two hundred rupees as security for costs'.

10. By reading Section 33, it is manifest that an election petition may be presented on one or more of the grounds specified in Section 35 by any candidate at such election or by any voter of the division concerned. A petitioner shall join as a respondent to his petition all the candidates at the election. An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall set forth full particulars of any corrupt practice that the petitioner alleges and 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. Where corrupt practices are alleged the petition shall be accompanied by the affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

11. The election petition was presented by an Advocate by name N. Shamsundar Kumbley on 2-12-1996 at 11.45 p.m. at the residence of the Registrar of the Court. The endorsement made by the Registrar of Court does not show the petition was presented in person by the petitioner. It is not disputed that vakalath filed by the petitioner was not signed by the appellant. Later on a petition is filed seeking permission by the Advocate of the appellant to affix his signature on the vakalath or to permit him to file fresh vakalath. Thus, it is confirmed the vakalath was not signed by the petitioner when the same was filed along with the election petition. The endorsement made by the Registrar on the file shows that the election petition was not filed by the petitioner in person, on the other hand it was filed by an Advocate without affixing his signature on the vakalath. Therefore, it is clear that the election petition is not filed as contemplated under Section 33 of the Act. Order 3, Rule 1 of the CPC provide that any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person. Order 3, Rule 4(1) as per Karnataka Amendment says that no pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document subscribed with his signature in his own hand by such person or by his recognised agent or by some other person duly authorised by or under a power of attorney to make such appointment and the appointment has been accepted in writing by the pleader.

12. The above provision makes it clear that no pleader shall act for any person in any Court or proceeding unless he accepts the assignment in writing. The Order 3, Rule 4(2) as per Karnataka Amendment contemplates that every such appointment will continue until the end of the proceedings unless it is terminated with the leave of the Court or until the client or pleader dies.

13. In this case admittedly either the vakalath was signed by the appellant or the appellant personally filed the election petition. Therefore,the election petition is not presented in the manner and method prescribed under Section 33(2)(a) of the Act.

14. The learned Counsel for the appellant contended that it is a curable irregularity. In order to ascertain whether it is a curable irregularity or not we shall refer to some of the decisions.

15. In Siddaiah v Returning Officer, Corporation of the City of Bangalore, this Court held that principles interpreting the provisions of the R.P. Act are applicable to election petition filed under the Act or Rules framed thereunder. It has been further observed that the principles laid down by the Apex Court as to why an election petition is not an action at law, or a suit in equity, but is purely statutory proceeding unknown to common law and the Court possesses no common law power. The Court relying on the decision of the Supreme Court in K. Kamaraja Nadar v Kunju Thevar and Others, observed as follows:

'An election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public also are substantially interested in it and this is not merely in the sense that the election has news value. An election is an essential part of the democratic process. An election petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested'.

16. The Supreme Court has discussed about the election petition involving interpretation of the relevant provisions of the R.P. Act. Therefore, the provisions contained in Section 33(2) of the Act which is almost analogous to the Section 81 of the R.P. Act has to be interpreted on the same lines requiring strict adherence of provisions. In the case of B. Okkadakatti v H.G. Dwarkanath Khadju, dealing with the question of presentation of a revision petition by an Advocate without fresh vakalath, it has been held that, where the Advocate who was appearing for a party in the Trial Court, file a revision petition in the High Court without vakalathnama in the High Court, but by filing a memo of appearance, same is not duly authorised and hence it is not maintainable, Though this is not an election petition matter, the principle that when the revision is not signed by the party and only signed by Advocate and duly authorised vakalath is not filed it was held that petition is not maintainable. The same analogy applies to the facts of the present case as the petitioner has not presented election petition nor vakalath is signed by the Counsel.

17. Learned Counsel for the appellant further contended that Order 4, Rule 1 provides that every suit shall be instituted by presenting a plaint to the Court of such officer as it appoints in this behalf and he argued that similarly the Section 33 of the Act provides for presentationof election petition which also does not specifically state that the petition shall be presented by the candidate or the voter. In a decision of Madhya Pradesh High Court, reported in 1978 MPLJ 399, their Lordships dealt with the election petition under Section 81 of R.P. Act. Section 81(1) of the R.P. Act is also pari materia with Section 33(2) of the KMC Act, as far as the presentation of the petition is concerned which is as follows:

'Election petition calling in question in election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or in. ... within 45 days from. . . .'.

18. In the decision cited supra, Madhya Pradesh High Court has held as follows:

'And where the manner of presentation is prescribed in the election law, its scope cannot be extended or enlarged by importing into the provisions something from the Code or from the generallaw.

In this view of the matter, the presentation of the election petition ought to have been made by the candidate himself. Though the words himself or 'personally' have not been incorporated in the body of the section, the intention of the legislation is clear enough. The candidate at such election particularises the person as such. If the legislature intended that the presentation could be done by an authorised agent, the provisions of Order 3, Rule 1 of the Code were very much within their knowledge, and it could be so expressed. Even in the provisions of Order 3, Rule 1, the general rule of appearance or acting by the recognised agent or a legal petitioner could be curtailed. The words 'except where otherwise provided' curtail the absolute operation of the general rule. As an illustration, the presentation of a plaint by a pauper under Order 33, Rule 3 has to be made by the pauper-plaintiff in person.

The mode of presentation implies delivery of the document to the Court or to its officer. There are three recognised modes of the CPC: Presentation by the party in person, or by his recognised agent, or by his pleader. And where the express provision, as contained in Section 81, is presentation by a candidate, the meaning is implicit that the presentation has to be made by the candidate in person, though the words 'in person' are not in the body of the section'.

19. By analysing the principles laid down in the above judgment it is manifest that in a proceeding in a Civil Court, the failure to file vakalath or sign vakalath is a mere irregularity. A special mandatory procedure is provided in an enactment providing method of presentation of election petition strict adherence is required. Where there is a defect it amounts to violation of the provision. In the present case there is no duly signed vakalath authorising the Advocate to file election petition nor appellant filed it himself as contemplated under Section 33(2) of the Act. Therefore, there is inherent defect and election petition cannot besaid to be filed properly as required under Section 33(2) of the Act. Therefore, we do not see any grounds to differ with the conclusion arrived at by the Court below.

20. The second important Constitutional question that arose for our consideration is whether by incorporation of Chapter IX-A in the Constitution vide Seventy-fourth amendment to the Constitution excludes application of the principle laid down in interpreting provisions of the R.P. Act for interpretation of the provisions of the KMC Act. Chapter IX-A of the Constitution was incorporated in the Constitution vide (Seventy-fourth) Amendment Act, 1992, which came into force from 1-6-1993. The Chapter IX-A deals with the Municipalities, Article 243-P deals with the definitions, Articles 243-Q, 243-R, 243-S, 243-T, all deals with Constitution of Municipalities, Composition of Municipalities, Constitution and composition of Wards Committees, etc. and Reservation of seats for SCs and STs, Article 243-U deals with the Duration of Municipalities, Article 243-V deals with Disqualifications for membership, Article 243-W deals with Powers, authority and responsibilities of Municipalities, etc., Article 243-X deals with Power to impose taxes by, and Funds of the Municipalities, Article 243-Y deals with Finance Commission, Article 243-Z deals with Audit of accounts of Municipalities, Article 243-ZA deals with Elections to the Municipalities, which is relevant to extract here, which is as follows:

'(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in Article 243-K.

(2) Subject to the provisions of this Constitution, the legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities'.

21. By examining the sub-clause (2) of Article 243-ZA it is manifest that the State Legislature is empowered to make law with respect to all matters relating to or in connection with, elections to Municipalities. The power of the State to legislate in respect of the election to Municipalities is now a constitutional power conferred on the State. Article 243-ZF provides that the existing laws will continue even if they are contrary to the provisions of the Constitution, Chapter IX-A for a period of one year or until they are repealed, whichever is earlier. Article 243-ZG bars the interference of Courts in electoral matters.

22. By reading the above constitutional provisions nothing comes out suggesting exclusion of the applicability of the principles of interpretation of the provisions of the R.P. Act to the provisions of KMC Act dealing with elections.

23. This Court in Siddaiak's case, supra, held that the principles interpreting provisions of R.P. Act are applicable to election petitions filed under KMC Act or the rules framed thereunder. Therefore, the contention of the learned Counsel for the appellant that the principle ofinterpretation of the provisions of R.P. Act is excluded for interpreting the provisions and the rules concerning the elections under the KMC Act after introduction of Chapter IX-A of the Constitution is not tenable. Learned Counsel for the appellant relied on a decision in Suresh Krishnaji and Others v Shankarappa and Another, wherein it is held that the presentation of petition without signing vakalathnama is a mere irregularity which does not go to the root of the matter and does not vitiate the proceedings. Learned Counsel for the appellant also relied on Heera Bai Genda Lal v Bhagirath Ramchandra and Company, wherein it is held that failure to comply with the provisions regarding presentation of a plaint is a mere irregularity but does not oust the jurisdiction of the Court. In such cases the Court should have discretion to cure the irregularity.

24. Basing on the above decisions the learned Counsel for appellant contended that it is a curable irregularity and principles laid down in the above judgments are to be followed.

25. It is further contended that Section 36 of the Act provide that Civil Procedure Code, 1908 in regard to suit shall be followed by the Court as far as it can be made applicable in the trial and disposal of the election petitions. It is to be noticed that Section 36 of the Act does not specifically make the provisions of the Civil Procedure Code applicable for presentation of the plaint in Civil Court or for institution of the suit as provided under Order 4, Rule 1, CPC. The impugned Act provided a special procedure for presentation of election petition. Therefore, by implication the application of provisions to the Civil Procedure Code in that regard are excluded. The above judgments relied by appellant deal with only presentation of plaint under Civil Procedure Code but not under any special enactment. Hence the dicta laid down in those judgments will not apply to facts of this case. The learned Counsel further relied on the decision in Nawab Khan v Vishivanath Shastry, where it was dealing with the propriety of the presentation of election petition to the Registrar of High Court and as per the facts and circumstances of the case, the Court held that the presentation of the election petition to the Registrar of High Court under Rule 3, Chapter 15-A of Allahabad High Court rules is a valid mode of presentation. This decision in no way helps the appellant as the point involved in that case was one of presenting of election petition before Registrar of High Courts is proper or not.

26. Under both the provisions it is provided that election petition may be presented on one or more of the grounds specified under respective sections of the two Acts.

27. It is thirdly contended that the petition is not bad for non-joinder of necessary parties.

28. In the inception when the election petition was filed, only respondent 1 and respondent 2 were made parties and respondents 3 to 14 were not made as parties to these proceedings and they have been impleaded later by filing a petition under Order 1, Rule 9 and Order 6 and Rule 17 of CPC.

29. Learned Counsel for appellant contended that the impleading petition is allowed, permission was also given to amend the election petition and the same was carried on. There is no defect in the election petition and as the defect has been cured, the non-compliance no more exists.

30. To appreciate above contention it is relevant to extract sub-section (3) to Section 33 of the Act, which reads as under:

'The petitioner shall join as respondent to his petition, all the candidates at the election'.

31. By reading the above provision it is clear that it is mandatory to join all the candidates at election as respondents to the election petition. In the present case it is not disputed when the election petition was filed on 2-12-1996 the respondents 3 to 14 were not parties, therefore there is breach of mandatory provisions. It is to be noticed that word 'shall' is used in the sub-clause indicating mandatory nature of the application. Therefore, at the time of filing the petition, the petition was in breach of the said provision. The question is whether the provision is mandatory or directory. The Supreme Court in Mohan Singh v International Airport Authority of India, explained how the provision of law becomes mandatory or directory. This aspect of the matter has also been discussed in two other decisions already referred, supra, reported in Inamati Mallappa Basappa v Desai Basavaraj Ayyappa and Others and Siddaiah's case, supra. It is not necessary to reiterate the same.

32. It is contended by the learned Counsel for the appellant that Section 30 of the Act has been amended and the words 'Returning Officer' appointed by or on behalf of the State Election Commission shall be substituted for the word 'Commissioner' in that section. Formerly under Section 30, the Commissioner was the Competent Authority to decide by drawing lots which candidate shall be deemed to have been elected. But, by way of amendment now the Returning Officer appointed by or on behalf of the State Election Commission has become competent to decide and declare the election. It is not disputed that the Assistant Revenue Officer of the Bangalore City Corporation ('B.C.C.', for short) has been appointed as the Returning Officer of the State Election Commission. Therefore, it was necessary for the appellant to implead Assistant Revenue Officer as the respondent. Whereas the Returning Officer is made as respondent and not Assistant Revenue Officer.

33. In the case of Dhartipakar Mandan Lal Agarwal v Rajiv Gandhi, it has been held that the Returning Officer should have been made a party to the election petition and for same proposition in Azhar Hussain v Rajiv Gandhi, is also relied upon. In these 2 cases, it has been discussed that it is necessary to hear such matters as a preliminary objection and strike out the pleadings as well as the necessity to hear the preliminary objections at the initial stage instead of waiting till the recording of evidence to reach the ultimate and final decision.

34. The learned Counsel for appellant relied on the judgment of the Supreme Court in , where it has been held that the provision of law relating to impleading of parties are not necessarily fatal and can be cured. It is for the Tribunal to determine the matter as and when it arises. Their Lordships in that case have also agreed that if any proper party is omitted from the lists of respondents and then it is for the Tribunal to decide it. In the present case Section 33(2) mandates that all candidates for the election shall be impleaded as respondents. Our view is fortified by the decision of Apex Court in AIR 1953 SC 133 (sic). He also contended that once amendment is allowed it relates back to the date of filing of petition. It is relevant here to refer the judgment of Supreme Court in K. Kamaraja Nadar's case, supra, stating therein that such preliminary objection should be decided at initial stage and should not be relegated to the stage of final hearing and observed as below:

'Suffice it to say here that the Election Tribunal has no power to grant such an amendment, be it by way of withdrawal or abandonment of a part of the claim or otherwise, once the election petition has been presented to the Election Commission, claiming such further declaration'.

35. In B. Sundara Rami Reddy v Election Commission of India and Others, the Apex Court has held as follows:

'The concept of joining a proper party to an election petition is ruled out by the provisions of the Act. The concept of joinder of a proper party to a suit or proceeding underlined Order 1 of the CPC cannot be imported to the trial of election petition in view of the express provisions of Sections 82 and 87 of the Act'.

36. Further in Jyoti Basu and Others v Debi Ghosal and Others, the Apex Court after referring to the decision in K. Venkateswara Rao and Another v Bekkam Narasimha Reddi and Others , quoted as follows:

'With regard to the addition of parties which is possible in the case of a suit under the provisions of Order 1, Rule 10 speak to the added party's right to contend that the suit as against him wasbarred by limitation when he was impleaded, no addition of parties is possible in the case of election petition except under the provision of sub-section (4) of Section 86'.

37. These decisions laid down that the Election Tribunal in election petition has no power to invoke the provisions of Order 1, Rule 10, CPC to implead parties at a later stage when they were not made parties at the time of filing of election petition, particularly when they are not impleaded within period of limitation.

38. It is contended by the learned Counsel for the appellant that there is a provision in the R.P. Act enabling the Court to dismiss the petition, whereas there is no such provision in the present Act. We have already referred the decision of this Court in Siddaiah's case, supra, wherein this Court held that the provisions of the R.P. Act are applicable to the election to be held under the Act.

39. This Court in a decision of Subhan Khan v J.H. Patel and Others, held that the principle laid down by the Supreme Court in the case of Jyoti Basu, supra, and came to the conclusion that non-joinder of the candidates in the election is not a defect curable by impleading by at a subsequent stage.

40. At the time of filing election petition, respondents 1 and 2 were made as parties and after limitation period was over, respondents 3 to 14 were impleaded. Thus, the election petition against respondents 3 to 14 is said to be barred by limitation. Therefore, the election petition filed without impleading respondents 3 to 14 is bad for non-joinder of necessary parties.

41. Learned Counsel for the appellant contended that as per Section 10 of the Karnataka General Clauses Act, the deposit of Rs. 200/- on the next date of filing of the election petition is proper as the election petition was filed at the night at 11.45 p.m. The limitation prescribed for filing of the election petition as per Section 33(1) of the Act is 30 days from the date of Gazette publication of the results of the elected candidates. Even accepting the contention of the appellant for the sake of argument that 2-12-1996 was the last date for filing petitions, the security deposit amount ought to have been deposited along with the election petition. Section 10 of the General Clauses Act reads as follows:

'Where, by any Mysore Act or Karnataka Act made after the commencement of this Act, any Act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day or the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:

Provided that nothing in this section shall apply to any Act or proceeding to which the Indian Limitation Act, 1908 applies'.

By reading above section it is evident that where the last date of limitation is holiday, the Court or office is closed on that day, the filing of the petition next date when the office or Court is open will be deemed to be filed within the limitation.

42. It is not the case of the appellant that either on 1-12-1996 or 2-12-1996 were holidays. Therefore, the benefit under Section 10 is not available.

43. Learned Counsel for appellant contended that the election petition is filed on 2-12-1996 and is within time and therefore not time-barred by limitation.

44. Section 33 of the Act provides that no election of a Councillor shall be called in question except by an election petition presented for adjudication to the District Court having jurisdiction within 30 days from the date of publication of the results of the election under Section 32. Therefore, the election petition bas to be filed within 30 days from the date of the election. It has already been settled by the Apex Court in Hukumdev v Narayan Yadav, that the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial. Section 32 of the Act provides that all elections of the Councillors shall be notified by the Government in the Official Gazette and in the present case the election of Councillors has been notified in the Official Gazette on 2-11-1996. That being so, the election petition ought to have been filed within 30 days from 2-11-1996. By reading Section 33(1) it is manifest that the election petition has to be filed within 30 days from the date of publication of Gazette, not after the publication. Therefore, the election petition ought to have been filed within 30 days and said period of 30 days comes to an end on 1-12-1996. So, the election petition filed on 2-12-1996 is barred by limitation. The Election Tribunal has no power to condone delay and therefore it is barred by limitation.

45. Even if we accept the contention of the learned Counsel for the purpose of argument that the petition was filed within the period of limitation, as the security deposit was not made within time, we are forced to hold election petition was not filed within time and hence there is no merit in the appeal.

46. Counsel for the appellant next contended that deposit of costs as security along with election petition is not deposited but it is deposited next day.

The Rule 70 of the Rules framed under the Act reads as follows:

'Every election petition under Section 33 shall be accompanied by a deposit of Rs. 200 as security for costs'.

47. This provision is almost analogous to Section 117(1) of the R.P. Act. Therefore, the decisions given by Supreme Court and other Courts given under Section 117 of the R.P. Act are applicable for interpretation of Rule 70 framed under the Act.

48. In Charan Lal Sahu v Nandkishore Bhatt and Others, the Supreme Court held that there is no provision under the Act empowering the High Court to absolve the petitioner from making any security deposits or to reduce the amount required to be deposited under the Act. There is no provision in the KMC Act also empowering the Court to condone the delay in depositing the security amount for costs.

49. The Apex Court in K. Venkateswara Rao's case, supra, held that the Court has no power to condone delay and the Court must dismiss the election petition if security for costs is not given in terms of Section 117 of the R.P. Act.

50. The Supreme Court in M. Karunanidhi v H.V. Handa and Others, that requirement regarding the making of security deposit is mandatory, non-compliance of each must entail dismissal of election petition in limine.

51. The learned Counsel for appellant contended that in Section 86(1) of the R.P. Act there is a provision providing for dismissal of election petition for non-compliance of certain provisions, whereas no such provision is there in the present Act. In the present Act, Rule 70 makes it mandatory that every election petition shall be accompanied by deposit of Rs. 200/- as security for costs. When the rule itself is mandatory and rule is not complied with and there is no provision condoning the delay for late deposit, it has to be held that the intention of the legislature was to make the deposit of security as mandatory and absence of similar provision that of 86(1) will not change mandatory nature into directory.

52. Therefore, we are not able to agree with the contention of the learned Counsel for the appellant. It is also to be noticed that Rule 77(4) of the Karnataka Municipal Election Rules provide that the petition under sub-rule (1) shall be signed by the petitioner and verified in the manner laid down in CPC, 1908 for verification of the pleadings. However, clause (ii) of sub-rule (4) of Rule 77 provides that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

53. The Court below found on the perusal of the election petition that it has not been verified as required under the Code of Civil Procedure, whereas in the foot of the petition it is stated, what is stated above is true and correct. The same cannot be said that the requirement as laid down in above rules are complied with. This is also one of the infirmity going to the root of the matter.

54. In view of the above reasons we do not see any merits in the appeal and hence it stands dismissed.