K. VENKATESWARA RAO AND ANR. versus BEKKAM NARASIMHA REDDI & ORS.

K. VENKATESWARA RAO AND ANR.

BEKKAM NARASIMHA REDDI & ORS.

August 13, 1968

[M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.J

Representation of the People Act, 1951, ss. ?9(b), 82(b) & 86(1)-Corrupt practice alleged against candidate who had withdrawn from con-test-Such c..·andUlate not impleaded during period of limitation of elec-tion petition-Petition liable to be dismissed-Application for condonation of delay whether permissibl~ApplicabiJity of s. 29(2) and s. 5 of Limi· tion Act, 1963-Candidate who withdraws from conte•t whether candi· date within meaning of s. ?9(b) ands. 82(b) of Representation of the People Act-Procedure under s. 99 of Act whether applicable to such candldate.

The election of the first respondent to the Andhra Pradesh Legislative Assembly at the General Election held in 1967 was challenged by the appellants in an election petition. Various cdrrupt practices were alleged therein to hav~ been committed by the first respondent, his agenll; and ·supporters. One of these was that the first respondent paid bribe to one R who had also filed nomination papers, in order to secure his withdrawal as candidate. After the issues were framed the appellants made an application to the Court for impleading R but it was dismissed. The first respondent then filed an application under s. 86(1) praying for the dis-missal of the election petition on the ground that there had been non-compliance with s. 82(b) of the Representation of the People Act, 1951 inasmuch as R against whom corrupt practice had been alleged had not been made party. The appc.Ilant'i filed an application seeking to with-draw the allegation against R and in the alternative to implead him as respond-ent. They also prayed for condonation of delay in making the application. The learned Judge of the High Court trying the election petition dismissed the aforesaid applicarions and refused to condone the delay. Th~ appellants came to Lhis Court. The contentions in the appeal were : (i) that the allegation against R did not amount to an illegation of corrupt practice, (ii) that s. 5 and s. 29(2) of the Limitation Act. 1963 were applicable to the case and the High Court and this Court had power to condone the delay made by the election petitioner in impleading necessary party, (iii) that R, having withdrawn from the, contest was not 'candidate'. and (iv) that the procedure under s. 99 ought to have been followed in respect of R.

HELD : (i) The raint of illegal gratification attaches not only to the payer but also to the payee. It could not therefo'rc be accepted that the allegation against R that h·2 had received illegal gratification did not amount to corrupt practice. [682 C-D]

(ii) The plea for condonation of delay in impleading R could not be accepted.

It is \Veil settled that amendments to petition in ~ civil proceeding and the addition of parties to su·ch proceeding ate generalJy possible subject to the law of limitation. But an election petition stands on different footing. The trial of such petition and the powe'rs of' the court in respect thereof are all circum·scribed by the Representation of the People Act. The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for

parposcs connected thcrcwitll. The provision' of this Act will apply to all ci••il p·roccedings and ~omc ~pl->claJ criminal proceedings \Vhich can be taken in court of la\\' unless the application thereof has been excluded by some enactment: the extent of such application is governed by s. 29(2) of the I .. imilation Act. Ho\\'Cver the L1mi1a1ion Act cannot apply to proceedings like an election petition inasmuch ai; thi: Representation of the People-Act is complete and sclf~ontained code which doc~ not admit of the introduction of the principles or the provi~ions of the 1aw con-tained in the Indian I.imitation Act. [686 11·687 BJ

Kanu2rajc;, /\'aclar v. K:ai;u Thcrar, [19591 S.C.R. 583 and Basappa v. Ayyappa, [1959] S.C.R. 611. applied.

A. Sree11i1.:asan v. l:.-lcctio11 Tribunal, Madras, 11 E.L.R. 278 and Tippmrry ccse, (1875) 3 O'M & II. 19, referred to. After the amendment of the Representation of the People Act in 1966 there is IlO\V no section in the Act Ylhich equates an order n1adc by the High Court under s. 98 or s. 99 to decree passed by civil court subordina:e to the l-figh Court. An appe-.il hcing creature of statute, the tights conferred on the appellant must be found within the four corners of the Act. Suh-..,. (2) oJ the present s. 116-A expressly gives this Court the discretion and authority to cntcrlain an appeal a{1cr the expiry of the period of thirty <l11ys. No right is however given to the Jligh Court to entertain petition \vhich does not comply with the provisions of s. 81, s. 82 or s. 117. Any h~rdship rc5ulting from this situation is matter 'vhich can be set right only by the Lcgisla1urc. The Legislature in its \Visdom ha~ made the ohscr,·ancc of certain formalities and provisionc; obli-gatory and f<iilurc in that rc~pcct can only be visited \\'ith dismissal o'f the petition. 168811-689 CJ

Vidyacharan Shak!a v. Kliubchan<i !Jaglit•I. [1964] 6 S.C.R. 129. distinguic;hcd.

0 bitter: Even though the IndiJ.n Limitation Act. 1963 does not apply to an election petition provisiott'i like s. 9 and s. 10 of the General Clauses Act, l 897 providing for computation of time which are In pari 111czJeria 'A·ith ss. 12 (1) and 4 of the Limiration 1\ct y • .-ould npply to such petition. [ 689 E]

(iii) candidate \vho ha'i ,~·ithdrJ\Vn from the eh .. 'Ction remains 'candidate• within the meaning of s. 79(b) and s. 82(b) of the Act. [689 FJ

liar Swarup v. /Jrij Rhusf1aJ1. ll 967) tS.C.R. 342. A1olu1n Singlr v. Bhanwarlal. [1964] 5 S.C.R. 12 and Ami11 Lal v. Hrr11"" Mal [1965] 1 S.C.R. 393. died on. (iv) Scclilln 99 onlv enjoins upon lhe High Court to give an oppor-tunity to person sought to be held guilty of corrupt practice if he was not p3r1Y to the petition. hut does not ~1pply to pl'rson who is necessary party. !690 C-DJ

C!v1L APPELl.ATF. JuR1smcnoK: Civil Appeal No. 1864 of 1967.

Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated August 21, 1967 of the Andhra Pradesh High Court in Election Petition '.'lo. 13 of 1967.

P. Ram Reddy and A. V. V. Nair. for the appellants.

D. Narsaraju, R. V. Pillai and A. Sitarama Reddy, for respon-dent No. 1.

G. Narayana Rao, for respondent No. 2.

The Judgment of the Court was delivered by

Mitter, J. On April 6, 1967 the appellants before us, filed an Election Petition in the High Court of Andhra Pradesh chal-lenging the election of the first respondent, B. N. Reddi, to fh:e Andhra Pradesh Legislative Assembly from the Kollapur Consl:l-tuency inter alia on the ground of corrupt practices committed by him, his election agent, polling agents and other workers mention-ed in the schedule to the petition with his consent and praying for · declaration that the second .respondent, K. Ranga Das, was "'1ly elected from the said constituency. The third respondent was another candidate who had contested the election but had fared very badly. The first respondent secured 25,321 votes at the election overtopping the votes polled by the second respondent by approximately 1600. The petitioners stated in paragraph 5 of the petition that one V. K. Reddi who had filed his nomination paper had been made to withdraw his candidature by the first respondent on payment of an illegal gratification of sum of Rs. 10,000/-. This allegation was repeated in paragraph 10. The first respondent was also charged with other corrupt practices in diverse other paragraphs of the petition. The first 'respondent put in his written statement on 28th June, 1967; the second respondent put in his counter affidavit on June 26, 1967. The issues were settled on July 24, 1967. On August 4, 1967 the petitioners filed Application No. 161/1967 for impleading V. K. Reddi. Thereafter they wanted to with-draw that application when the examination of witnesses had commenced. On August 7, 1967 this application was dismissed. On August 8, 1967 the first respondent filed Applic!ltion No. 169/1967 praying for dismissal of the petition on the ground that although V. K. Reddi had been charged with corrupt practice<'! he had not been impleaded as party to the petition which was liable to be dismissed under the provisions of section 82(b) of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act') in compliance withs. 86(1). The election peti-tioners filed Application No. 187 of 1967 for withdrawing the allegations against V. K. Reddi, or, in the alternative, to implead him as respondent. They also filed Application No. 186/1967 for condoning the delay in seeking to inlplead V. K. Reddi in Application No. 187/1967. The second respondent filed a: number of applications of which it is necessary to take note of few only. Application No. 174/1967 was filed for condoning the delay in seeking to implead V. K. Reddi in Application No. 175/1967. Application No. 175/1967 was for the purpose of

iropleading V. K. Reddi as party respondent to the election petition.

The learned trial Judge held that the allegat1ons contained in !:he election petition amounted to an imputation of corrupt prac-tice lo V. K. Rcddi and although of the view that the prayer in Applicaion No. 169/1967 for condonation of delay was allow-able in suitable cases, he felt himself bound by the decision of Kumarayya, J. in Application.' Nos. 150-155/1967 in Election Petition No. 11 of 1967 and dismissed the amendment applica-tion No. 169/1967.

Before us faint attempt was made to argue that the allega-tion against V. K. Reddi did not amount to charge of corrupt practice but that ii wa' the Jirst respondent who was guilty of such practice by making the payment of illegal gratification. Tho argument has only to he set down to be rejected. In para-graph 5 of the petition, the definite avenuent was that V. K. Reddi had been made to withdraw his candidature by the first res-pondent on payment of an illegal gratification of Rs. I0,000/-. If the payment of R,. I 0,000/- an1ounls to an illegal graulication the taint attaches not only to the payer, the first respondent, but also to the payee. V. K. Rcddi. The second point urged was that the learned Chief Justice's view in regard to the power of condonation of delay in implead-ing V. K. Reddi was correct and although he could not give etfect to his own view b.:cause he felt himself bound by the decision of Kwnarayya. J. we ought to accept the appeal and uphold M view. This argument was developed as follows. An election petition wa'. in essence an application to the High Court for the purpose of the Indian Limitation Act and as such s. 29(2) of the Act of 1963 was applicable to such petitions drawing in its chain the applicability of section 5 of the Act giving the court the power tCl' admit the same if it was satisfied that the applicant had sufficient cause for not preferring the application within the prescribed period of limitation.

Th«i< Act as it now stands provides by s. 80A that the court having jurisdiction to try an election petition shall be the High Court. Under s. 81 (I) "an election petition calling in question any election may be presented on one or more of the ground' specified in sub-s. (I) of s. 100 ands. 101 to the High Court by any candidate at such election or any elector within forty-five days, but not earlier than, the date of election of the roturned candidate ...... ..

S. 82 runs as follows :-"A petitioner shall join as respondents to his petition-

(a) where the petitioner, in addition to 'claiming declaration that the election of all or any of the returned candidates is void, claims further declarallon that he himself or any other candidate has been duly elected. all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates: and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition."

Section 83 lays down inter a/ia that an election petition shall set forth full particulars o.f any corrupt practice that the petitioner alleges, including as full 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 such practice.

Section 86 (1) provides that :

"The High Court shall dismiss an election pelltion which does not comply with the provisions of section 81, or section 82 or section 117 ."

The last mentioned section relates to the giving of secunty for costs. Sub-s. ( 4) of s. 86 gives any candidate not already res-pondent, right to be joined as one upon application to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs. which may be made. Under sub-s. ( 5)

"The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring fair and etfective trial of the petition, but shall not allow any amend-ment of the petition which will have the effect of intro-ducing particulars of corrupt practice not previously alleged in the petition."

Sub-ss. ( 6) and (7) aim at the speedy disposal of the election petitions. Section 87 ( 1) provides that :

"Subject to the provisions of this Act and of any rules made therennder, every election petition shall be tried by the High Court, as nearly as may be, in accor-dance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits : "

The proviso to the sub-section gives the High Court discretion t~ refuse, for reasons to be recorded in writing, to examine any wttness. Sub-s. (2) makes the provisions of the Indian Evidence

Act applicable m all respects to the trial of an election petition. Section 98 shows the nature of the order to be made by the High Couq at the conclusion of the trial of an election petition. Section 99 makes it obligatory on the High Court while making an order under s. 98 in cases where any charge is made in the petition of any corrupt practice having been committed at the election, to record finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice as also the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice. There is proviso to the section which lays down that person who is not party to the petition shall nor be so named unless he has been given notice to appear before the High Court and to show cause to the contrary. In case he does so, he is further given the right to cross-examine any witness already examined hy the High Coult and to give evi-dence in his defence.

Entry 72 of List l of the Seventh Schedule vest~ in Parliament the exclusive power to make laws with respect to elections to Parliament, to the Legislatures of States and to the offices of Presi-dent and Vice-President as also the Election Commission. Under Art. 329(b)

"Notwithstanding anything in this Constitution-

I b) no election to either House of Parliament or to the House of either House of the Legislature of State shall be called in question except by an election petition pre!.ent.:d to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature."

In order to detennine whether an election petition launched for the purpose of contesting the validity of an election is an application within the meaning of the Indian Limitation Act, it is necessary to exallline the nature of the right' and liabilities involv-ed therein and of the provisions of law which govern such deter-mination. The right of citizens to elect rcpre.,cntativcs of their choice either to the House of the People or to Legislative Assembly of State. the process of election beginning from the notification of general elections and the nomination of candidates. the general procedure at elections. taking of the poll and counting of votes and the publication of election results are all matters dealt with and covered by different provisions of the Act. The right to elect is statutory and so arc all the processes connectoo with the election. TI1~re is no element Df any ~OllllllOll law ;tght

in the process of election. Part VI of the Act deals with dispute> regarding election. The second chapter of this Part shows how elections may be called in question, which courts have jurisdiction to try election petitions, how such petition is to be presented, who are to be parties to the petition, what are to be the contents of the petition as also the relief which may be claimed by the petitioner. The third chapter of this Part deals with the trial of election petitions. The first section of this group makes it in-cumbent on the High Court w dismiss an election petition straight-away if it does not comply with certain statuto1y requirements. The next section is guide to the procedure to be adopted by the High Court in the trial of an election petition. This section does not equate an election petition with suit but merely shows that subject to the provisions of the Act and of any rules made there-unde:r, the trial is to conform asi nearly as possible to the trial of suit under the Code of Civil Procedure. This means that (a) the contestants have right to file written statements, ( b) both parties must disclose the documents on which they reply; ( c) they must examine witnesses orally, if necessary, to substantiate the charges levelled or the defences raised in the petition; and ( d) the evidence to be adduced must comply with the requirements of the Indian Evidence Act. There arc however certain limitations as to the. questions which may put to witness contained in ss. 94 and 95; the returned candidate has right to recriminate under the provisions of s. 97. The High Court does not pass decree as in the case of suit but has to make an order in terms of s. 98 which gives the nature of the orders to be made. The High Court has to communicate the substance of its decision to the Election Commission and the SJ?eaker or the Chairmaru as the case· may be of the House of ~e People or of the State Legislature. Chapter IV deals with withdrawal and abatement of election petitions. Chapter IV-A deals with appeals from the decisions of the High Court ,and Chapter V deals with costs and security for costs.

The above brief analysis is sufficient to show that the trial of an election petition is not the same thing as the trial of suit. As was pointed out by this Court•in the case of Kamaraja Nadar v. Kunju Thevar(' ), the provisions of the Act

"go to show that an election contest is not an action at law or suit in equity but is purely statutory pro-ceeding unknown to the common law .... .' . "

The Court also emphasised on the. peculiar character of an election petition by quoting from the observations of A. Sreeniva-H san v. Election Tribundl, Madras([2]). Reference was also made to the Tipperary case([3 ]) where Morris, J. said : • (I) [1959] S.C.R. 583 at 5%. (2) 11 E.LR. 278 at 293. (3) (1875) 3 0, M & 19;25.

petition is not suiL between two persons, but is proceeding in which the constituency itself is the principal party interested."

This aspect of an election petition was emphasised again in the <:a;e of Basappa v. Ayyappa( [1 ]) where it was held that the provi-sions of 0. 23 r. I of the Code oI Civil Procedure do not apply to election petitions and it would not be open to petitioner to withdraw or abandon part of his claim once an election petition was presented to the Election Commission.

Even though s. 8 7 ( 1) of the Act lays down that the procedure .;ipplicahle to the trial of an election petition shall be like that of the trial of suit. the Act itself makes important provisions of 1he Code inapplic<ilile to the trial of an election petition. Under 0. 6 r. 17 C.P.C. court of Jaw trying the suit has 1·ery wide powers in the matter of allowing amendments of pleadings and all <L111endmcnts which will aid the court in disposing of the matters in dispute between the parties arc as rule allowed sub-ject to the law of limitation. But s. 8615) of the Act provides for re.<trictions on the power of the High Coun to allow amend-menh. The High Court is n(l( lo allow the amendment of petition which will have the effect of introducing particulars of corrupt practice not' previously allege<l in the petition. With regard to the addition nf parties which is possible in the ca~ of o;uit under the provisions of 0. 1 r. 10 subject to the added party's right to contend that the suit as again'! him was baITcd by limi-tation when he w"s irnple .. dcd. no addition of parties is possible in the case of an election petition except under the provisions of sub-s. ( 4) of s. 86. Section 82 shows who are necessary parties 10 an election petition which must be tiled within 45 days from the date of election as laid down ins. 81. Under s. 86( I) it is incum-bent on the High Court to dismiss an election petition which does not comply with the provisions of s. 81 or s. 82. Again the High Court must dismiss an election petition if security for costs be not given. in terms of s. 117 of the Act.

It is well settled that amendn~nls to petition in civil pro-ceeding and the addition of parties to such proceeding are gene-rally possible subject to the law of limitation. But an election petition stands on different fooling. The trial of such petition and the powers of the court in respect thereof are all circumscrib-ed by the Act. The Indian Limitation Act of 1963 is an Ael to cort<;<>lidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provi-sions of this Act will apply to all civil proceedings and some spc-<:ial criminal proceedings which can be taken in court of law unless the application thereof has been excluded hy any enact-.

(I) [1959] S.C.R. 611.

ment: the extent of such application is governed bys. 29(2) of the Limitation Act. ln our opinion however the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is complete and self-con-tained code which does not admit of the introduction of the prin-ciples or the provisions of law contained in the Indian Limitation Act.

Before the recent amendment of the Representation of the People Act, election petitions had to be presented to the Election. CoI1llllission and it was the CoI1llllission which was empowered under section 85 to dismiss the petition if the then provisions of s. 81, s. 83 and s. 117 were not complied with. It is only when the petition was not so dismissed that the Election Commission had to appoint an Election Tribunal for the trial of the petition. Under s. 85 the Comi;nission had power to admit petition pre-sented after the prescribed period if it was satisfied that there was sufficient canse for the failure. Section 90 ( 4) of the Act oi 1951 empowered the Tribunal to dismiss an election petition even if it had not been so dismissed by the Election Commission.

The Act as amended in 1966 gives the jurisdiction to try an election petition to the High Court of State. The provision for appeal in s. 116-A was introduced in the Act for th~ first time in 19 56 providing for an appeal from every order of the Tribunal under s. 98 or s. 99 to the High Court of the State in which the Tribunal was situate. By sub-s. (2) of s. 116-A of the Act as amended in 1956 the High Court was, subject to the provisions of the Act, to have the same powers, jurisdiction and authority and was to follow the same procedure with respect to an appeal under this Chapter (Chapter IV-A) as if the appeal were an appeal from an original decree passed by court situate within the local limits of its civil appellate jurisdiction. Sub-s. ( 3) fixed the· time limit for filing the appeal to period of 30 days from the date of the order complained of. The proviso to this sub-section gave the High Court discretion to entertain an appeal after the expiry of the period of 30 days if it was sati~fied that the appellant had sufficient cause for not preferring the appeal within such period. This section was amended again in 1966 and s, 116-A ( 1) now provides for an appeal from an order of the High Court under s. 98 or s. 99 to the Supreme Court on any question, whether of law or fact. Sub-s. ( 2) of the new section is on the same lines as the old sub-s. (3) excepting that the Supreme Court has been substituted for the High Court and the High Court for the Tribunal in the old section.

While the Act of 1956 was in force this Court had to go into the question as to whether s. 29(2) of the Limitation Act of 1908 woald be applicable to an appeal preferred to the High Court

from an order of the Tribunal. In Vitlraclumm Shukla v. Kh11b-chand Baghel (') the main que>tion before this Court was whether for the purpose of computing the period of 30 days prescribed under s. J 16-A ( 3) of the Act. the provisions of s. 12 of the Limi-tation Act could be invoked. The High Court had proceeded on the basis that s. 29(2) applied to th" case of appeals under .s. 1 I 6-A of the Act and on that basis had held that the appeal was within tim" if it was computed after making the deductions per-mitted by s. 12 of the Limitation Act. There was good deal of disctission in the case about the scope and extent of s. 29(2). We arc not concerned with that in the present appeal. Accord-ing to the learned Chief Justice and Ayyangar, J.

"even on the narrowest construction of the words 'different from those prescribed therefor in the first schedule' occurring in the opening part of s. 29(2), the exclusion of time provided for by Art. 12 of the Limitation Act would be permissible in computing the period of limitation for filing the appeal to the High Court .... "

Subba Rao, J. (as he thm was) took the view thats. J 16-A did not provide an exhaustive and exclusive code of limitation and did not exclude the general provisions of the Limitation Act. The majority view was that though the right of appeal was con-ferred bys. I J 6-A of the Act of 1951 it was still an appeal under the Code of CiYil Procedure and to attract Art. 156 of the First Schedule to the Limitation Act, it was not necessary for an appeal to be an appeal under the Code of Civil Procedure in that the right to prefer the appeal should be conferred by the said Code. Jn our view, sub-s. (2) of s. 116-A empowered the High Court to treat an appeal under that section presented to it a-; if it were an appeal from an original decree passed by court within the local limits of its civil appellate jurisdiction. Consequently, the juri-;-diction, powers and authority of the High Court would be the same as in an appeaJ. from an original decree of lower court. Jn other words. in entertaining the appeal and disposing of it the High Court could exercise the same powers as were available to it in an appeal from decree of lower court. To such an appeal the powers of the High Court under s. 12 of the Limitation Act would necessarily oo attracted.

Mr. Ram Reddy attempted to press that decision to service in the appeal before us. Jn our view. the situation now obtaining in an appeal to this Court from an order of the High Court is entirely different. There is no section in the Act as it now stands which equates an order made by the High Court under s. 98 or s. 99 to decree passed by civil court subordinate to the High

Court. An appeal being creature of statute, the rights con-ferred on the appellant must be found within the four corners of the Act. Sub-s. (2) of the present s. 116-A expressly gives this Court the discretion and authority to entertain an appeal after the expiry of the period of thitty days. No right is however given to the High Court to entertain an election petition which does not comply with the provisions of s. 81, s. 82 ors. 117. It was argued that if petition were to be thrown out merely because necessary party had not been joined within the period of 45 days no enquiry into the corrupt practices alleged to have been committed at certain elections would be possible. This is however matter which can be set right only by the Legislature. It is worthy of note that although the Act has been an1ended on several occasions, provision like s. 86 ( 1) as it now stands has always been on the statute book but whereas in the Act of 1951 the discretion was given to the Election Commission to entertain petition beyond the period fixed if it was satisfied as to the cause for delay no such saving clause is to be found now. The legisla-ture in its wisdom has made the observance of certain formalities and provisions obligatory and failure in that respect can only be visited with dismissal of the .petition.

It is to be noted however that even though the Indian Limita-tion Act, 1963 does not apply to an election petition provisions like sections 9 and l 0 of the General Clauses Act, 1897 providing for computation of time which are m pari materia with sections

12 ( 1) and 4 of the Limitation Act would apply to such petition.

The last submission of cowJ.Sel for the appellants was that the failure to itnplead V. K. Reddi did not make the election petition liable to dismissal under s. 86 ( 1). It was argued that after V. K. Reddi had withdrawn from contest he was no longer candidate within the meaning of s. 79 (b) or 82 (b) of the Act. In our opinion, it is not open to him to argue that point in view of the decision of this Court in Har Swarup v. Brij Bhushan([1]). It is to be noted tl)at this decision does not stand by itself. In Mohan Singh v. Bhanwarlal(2) an attempt was made to get the election petition dismissed in limine on the ground that one of the candi-G dates at the election, namely, Himmat Singh, against whom allega-tions of corrupt practice were made in regard to withdrawal of his candidature was not joined as respoQdent. It was held by this Court that mere offer to help in getting employment was not an offer of gratification within the meaning of s. 123(l)(B) of the Act. The Court however observed :

"If therefore the petition contained any imputation

of corrupt practice made against Hinlmat Singh, it could

not be regarded as properly constituted unless he was impleadcd as respondent, for, by the definition of "candidate" in s. 79(b), the expression "any other candidate" in s. 82 ( b) must include candidate who had withdrawn his candidature." (see at p. 18).

Reference may abo be made to Amin Lal v. llunna Mal(').

It was however sought to be argued that s. 99 enjoined upon the High Court to name all persons who had been proved at the trial to have been guilty of any corrupt practice and where such person who not party to the petition, he was not to be so named unless he had been given notice to appear before the High Court and asked to show cause why he should not be so named and if he chose to appear, he was to be given an opportunity of cr06S-cxamining any witness already examined by the High Court and of calling evidence in his own defence and of being heard. This provision, to our mind, only enjoins upon the High Court to give an opportunity to person sought to be held guilty of corrupt practice if he was not party to the petition, but it does not apply to person who is necessary party thereto. An obvious case for the use of poll'ers under s. 99 would be that of an agent guilty of commission of corrupt practice with the consent of the candi-date. Such person would not be necessary party to the peti-tion but he mu.st have an opportunity of showing cause and of being heard before the High Court can name him as guilty of corrupt practice while making an order under s. 98.

Jn our opinion. the appeal has no merits and must be dis-missed with costs.

Appeal dismissed.