Rafi Ahmed Mir Vs. Abdul Rehman Bhat - Court Judgment

Excerpt:
- ordersyed bashir-un-din, j.1. despite passing a detailed order on last date which reads as under :--'the matter is being deferred and adjourned for last over one year, on request of some advocate appearing for petitioner's counsel to seek instructions. yet instructions are not reported nor the case is being prosecuted. the effective proceedings are withheld, because petitioner appears not interested. however, mr. m. a. qadri, advocate, submits that he may be given just one weeks time to report the instructions and to make a statement before the court whether petitioner is at all to prosecute the writ petition. list next week.'neither the petitioner nor his counsel has appeared to prosecute the petition. it appears to be a case of thorough default in prosecution.2. in dr. p. nalla thampy.....

Judgment:
ORDER

Syed Bashir-Un-Din, J.

1. Despite passing a detailed order on last date which reads as under :--

'The matter is being deferred and adjourned for last over one year, on request of some advocate appearing for petitioner's counsel to seek instructions. Yet instructions are not reported nor the case is being prosecuted. The effective proceedings are withheld, because petitioner appears not interested. However, Mr. M. A. Qadri, Advocate, submits that he may be given Just one weeks time to report the instructions and to make a statement before the Court whether petitioner is at all to prosecute the writ petition. List next week.'

Neither the petitioner nor his counsel has appeared to prosecute the petition. It appears to be a case of thorough default in prosecution.

2. In Dr. P. Nalla Thampy Thera v. B. L. Shanker, AIR 1984 SC 135 (para 20) a three Judge bench of the Apex Court speaking through his Lordship Ranganath Misra, J. observed :--

'We therefore conclude that an election petition is liable to be dismissed for default in situations covered by Order IX, or Order XVII of the Code and for its restoration an application under Rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.'

Election petition in terms of Section 95 of the Jammu and Kashmir Representation of the People (Amendment) Act 1997, subject to provisions of the Act, is to be tried like an ordinary suit in accordance with the provisions of Code of Civil Procedure, as applicable to the trial of Civil suits. There being no repugnant provision in the above Representation of the Peoples Act, forbidding dismissal of Election Petition for default. Therefore, the provisions of the Civil Procedure Code including Order IX and Order XVII would apply to the trial of Election petition.

Dismissed.