{"id":260835,"date":"2010-08-06T00:00:00","date_gmt":"2010-08-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-surendra-budhaji-borkar-vs-mr-narayan-tatu-rane-on-6-august-2010"},"modified":"2018-01-09T13:00:47","modified_gmt":"2018-01-09T07:30:47","slug":"mr-surendra-budhaji-borkar-vs-mr-narayan-tatu-rane-on-6-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-surendra-budhaji-borkar-vs-mr-narayan-tatu-rane-on-6-august-2010","title":{"rendered":"Mr. Surendra Budhaji Borkar vs Mr. Narayan Tatu Rane on 6 August, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mr. Surendra Budhaji Borkar vs Mr. Narayan Tatu Rane on 6 August, 2010<\/div>\n
Bench: Anoop V.Mohta<\/div>\n
                                                       1                                 EP34.09\n\n                 IN THE  HIGH COURT OF JUDICATURE AT BOMBAY\n                     ORDINARY ORIGINAL CIVIL JURISDICTION\n                       ELECTION PETITION NO. 34 OF 2009\n\n\n\n\n                                                                                      \n    Mr. Surendra Budhaji Borkar\n    R\/o. Bazar Peth, Dodamarg,\n\n\n\n\n                                                              \n    Dist. Sindhudurg. MS\n    doddamarg12@rediffmail.com.                                        ....Petitioner.\n\n           Vs.\n\n\n\n\n                                                             \n    Mr. Narayan Tatu Rane\n    Falshiyewadi, Fanasnagar,\n    Taluka Kankawali,\n\n\n\n\n                                                \n    Dist. Sindhudurg. MS.                                              ....Respondent.\n                               \n    The Petitioner in person absent.\n    Mr. Yatin R. Shah with Mr. Bharat Punekar for the Respondent. \n                              \n                                   CORAM : ANOOP V. MOHTA, J.\n<\/pre>\n
                                    DATE    : 6th August, 2010\n\n    ORAL JUDGMENT:-\n          \n\n\n    1      The Petitioner, was one of the \"Candidate\" as defined under Section \n       \n\n\n\n<\/pre>\n
    79(b) of the Representation of the People Act<\/a>, 1951 (for short, the Act) has <\/p>\n
    challenged   the   election   of     the   Respondent,   a   returned   candidate   as <\/p>\n
    contemplated   under   Section   67   of   the   Act   of   the   Kudal   Assembly <\/p>\n
    Constituency to the Maharashtra Legislative Assembly.\n<\/p>\n
    2      The   Respondent,   as   alleged,   verified   and   notarized   an   affidavit   at <\/p>\n
    Malvan District Sindhudurg on 21\/09\/2009 and submitted along with the <\/p>\n
    nomination   papers   on   22\/09\/2009.   The   Petitioner   filed   his   nomination <\/p>\n
    papers in person in the office of Returning Officer.   After due scrutiny of <\/p>\n
    nomination papers in presence of candidates and their election agents, and <\/p>\n
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\n                                                       2                                 EP34.09<\/p>\n
    after   taking   note   of   objection   and   challenged   so   raised,   accepted   the <\/p>\n
    nomination papers on 25\/09\/2009.  The Returning Officer on 29\/09\/2009 <\/p>\n
    declared a list of contesting candidates including of the Petitioner and the <\/p>\n
    Respondent.  The election was held accordingly. On 22\/10\/2009, the result <\/p>\n
    was declared.\n<\/p>\n
    3      Form 21E of the Conduct of Elections Rules, 1961 (for short, Rules) <\/p>\n
    reads as under:-\n<\/p>\n
                “Election to the Maharashtra Legislative Assembly from the
\n                            269- KUDAL Assembly Constituency.<\/p><\/blockquote>\n
\n                              \n                                       Return of Election\n\n              Sr.         Name of Candidate        Party affiliation     Number of \n              No.                                                        votes polled\n          \n\n\n               1     NAIK VAIBHAV VIJAY                Shivsena                 47666\n       \n\n\n\n                     NARAYAN TATU RANE             Indian National  \n               2                                      Congress                  71921\n                     RAVINDRA                       Bahujan Samaj  \n                     HARISHCHANDRA                      Party\n\n\n\n\n\n               3     KASALKAR                                                     1503\n                     BORKAR SURENDRA                  Rashtriya \n               4                                    Samaj Paksha                  1427\n                     DR.   PRASAD   JANARDAN         Independent\n\n\n\n\n\n               5     WAINGANKAR                                                   1948\n\n        Total number of electors                 - 186624 (General Voters - 1,86,105\n                                                                + Service Voters - 519)\n\n<\/pre>\n
        Total number of valid votes polled   – 124465
\n        Total number of rejected votes      – 1
\n        Total number of tendered votes        – 2<\/p>\n
        I declare that-\n<\/p><\/blockquote>\n
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                                                         3                                  EP34.09\n\n\n        NARAYAN TATU RANE (Name)\n<\/pre>\n
        of At\/Post Fanashiyewadi, Fanasnagar, Tal-Kankavali, Dist-Sindhudurg  <\/p>\n
        (Address) has been duly elected to fill the seat.”\n<\/p><\/blockquote>\n
    4      The Petitioner verified and lodged the Petition on 07\/12\/2009, under <\/p>\n
    objections.   The matter was listed on board again on 11\/01\/2010.   The <\/p>\n
    Petitioner appeared in person.  The Court has ordered as under:-\n<\/p>\n
           “1    The Petitioner is present in person.\n<\/p>\n
           2<\/span><\/p>\n
                 The   matter   was   listed   earlier   on   04.01.2010   for
\n                 admission\/notice.  It was adjourned for one week as the
\n                 petitioner wanted to file an affidavit for condonation of  <\/p>\n
                 delay.  Accordingly, it was filed on 05.01.2010.\n<\/p>\n
           3     The matter is listed today again on board.\n<\/p>\n
           4     The   petitioner   wants   to   correct   the   affidavit   dated
\n                 05.01.2010 again.\n<\/p>\n
           5     Time as sought is granted for four weeks.\n\n           6     The   office   to   verify   and   endorse;   whether   the   Election \n\n\n\n\n\n<\/pre>\n
                 Petition   is   within   limitation   or   not;   and   all   the
\n                 necessary\/proper   parties   are   joined   or   not.     Office
\n                 objection be noted within one week.  Place the matter on
\n                 board   subject   to   removal   of   office   objection,   if   any,
\n                 thereafter.\n<\/p>\n
           7     As   requested   by   the   Petitioner,   S.O.   to   11.02.2010.”\n<\/p>\n
    5      The matter was listed on 01\/02\/2010. The Petitioner was present in <\/p>\n
    person.   This Court issued notice keeping all points open i.e. jurisdiction, <\/p>\n
    limitation   and   non-joinder   of   parties   and   made   it   returnable   on <\/p>\n
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\n                                                           4                                  EP34.09<\/p>\n
    05\/04\/2010.\n<\/p>\n
    6     On   05\/04\/2010,   this   Court,   in   presence   of   the   Petitioner,   has <\/p>\n
    observed as under:-\n<\/p>\n
          “1     As per the office endorsement dated 5th  April, 2010, after
\n          the order passed by this Court on 1st  February, 2010, the office  <\/p>\n
          informed   the   Petitioner,   who   appeared   in   person,   about   the
\n          specimen of draft notice and for making the necessary changes in
\n          the said  draft notice.    The Petitioner   came to  the office  on  5th
\n          February, 2010 and submitted a draft notice. However, as noted,  <\/p>\n
          the necessary changes were not carried out which as told to him
\n          on 3rd February, 2010 itself.\n<\/p><\/blockquote>\n
          2       After 15 days in the middle of the March, 2010, one person
\n          on behalf of  the Petitioner, stated  to  be his clerk, came  to the  <\/p>\n
          office   and   the   office   again   informed   that   the   necessary
\n          amendment\/corrections were not carried out in the draft notice.
\n          Hence, the office returned back the draft notice to the clerk for
\n          making   the   necessary   changes.   Till   this   date,   neither   the  <\/p>\n
          Petitioner nor his alleged clerk attended the office to finalizing the
\n          said draft notice.  In the result, till this date, the notice could not  <\/p>\n
          be sent by the office.\n<\/p><\/blockquote>\n
          3       It is necessary for the office, in such matters, to see and
\n          finalize   the   draft   as   early   as   possible,   basically   when   the  <\/p>\n
          Petitioner is appearing in person.  The necessary corrections, even
\n          if any,  just cannot be made by the clerk\/third person.  There is
\n          no   concept   of   sending   clerk,   by   a   person   who   is   appearing   in
\n          person in the matter. The office to note all this and should have
\n          made corrections  by calling the person or raising the objection or  <\/p>\n
          listing the matter under objection, instead of keeping the matter
\n          pending for such a long time for issuance of notice, in the Election
\n          Petition.\n<\/p><\/blockquote>\n
          4       However, the Petitioner is present in person submitted that
\n          he is ready to take steps, and he will visit the office and provide
\n          corrected draft of notice on 22nd April, 2010.  The office to take
\n          note   of   this   and   proceed   to   issue   writ   \/   notices   as   ordered,
\n          returnable on 17th  June, 2010.\n<\/p><\/blockquote>\n
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                                                       5                                 EP34.09\n\n\n           5     In the interest of justice and to avoid further complications,  \n<\/pre>\n
           I am granting this time to the Petitioner, as a last chance, as he is  <\/p>\n
           appearing in person.\n<\/p><\/blockquote>\n
           6      If the Petitioner fails to take steps within a prescribed time,  <\/p>\n
           the Court will pass appropriate order, including of dismissal of
\n           this Election Petition for want of prosecution.\n<\/p><\/blockquote>\n
           7      S.O. to 17th June, 2010.”<\/p>\n
    7      The   Respondent   received   the   Court   notice   on   28\/04\/2010.     The <\/p>\n
    matter was listed again on 16\/06\/2010.   Mr. R.Y. Gaikwad, appeared on <\/p>\n
    behalf of the Petitioner and undertook to file Vakalatnama within a period <\/p>\n
    of one week. The matter was adjourned to 22\/07\/2010, at the request of <\/p>\n
    the   Petitioner’s   advocate,   to   take   appropriate   steps\/application.   The <\/p>\n
    Petitioner was absent.\n<\/p>\n
    8      On   22\/07\/2010,   neither   the   Petitioner   nor   his   advocate   appeared <\/p>\n
    even upto 5.00 p.m.. The Respondent’s counsel was present.   The matter <\/p>\n
    was kept on 23\/07\/2010 at 3.00 p.m. in the Court but, none present for the <\/p>\n
    Petitioner though the matter was under the caption “for dismissal”.\n<\/p>\n
    9      To  give   one   more   opportunity,   the   matter   was   again   adjourned   to <\/p>\n
    30\/07\/2010,   under   the   caption   “for   dismissal”,   though   last   chance   was <\/p>\n
    granted on 23\/07\/2010 itself.   Therefore, the matter was directed to be <\/p>\n
    placed “for dismissal\/disposal” on 06\/08\/2010 and accordingly it is listed <\/p>\n
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\n                                                             6                                  EP34.09<\/p>\n
    today.  None appeared for the Petitioner again.\n<\/p>\n
    10     The   learned   counsel   appearing   for   the   Respondent   submitted   to <\/p>\n
    dismiss   the   Election   Petition   on   the   basis   of   plain   bare   reading   of   the <\/p>\n
    defective,   vague   pleading\/   avernments   itself   on   the   various   grounds <\/p>\n
    including of non-appearance,, non-prosecution, limitation and non-joinder <\/p>\n
    of necessary parties.\n<\/p>\n
    11<\/span><\/p>\n
           The learned counsel appearing for the Respondent has relied upon <\/p>\n
    the  judgment  of  the   Supreme   Court, reported  in  1984,  S.C.  135,  Dr. P  <\/p>\n
    Nalla Thampy Thera Vs. B.L. Shanker & Ors., The relevant paragraph 18 <\/p>\n
    is as under:-\n<\/p>\n
           “18. Similar view has been expressed by another Full Bench of  <\/p>\n
                the Allahabad High Court in Duryodhan V. Sitaram<\/a>, AIR
\n                1970 ALL 1.  A four Judge Bench of this Court in Rajendra
\n                Kumari Bajpai V. Ram Adhar Yadav<\/a>, (1976) 1 SCR 255 at
\n                p.260, referred to the Punjab case, Fazal Ali, J. speaking  <\/p>\n
                on behalf of the Court quoted a portion of the judgment of
\n                Grover, J. which we have cited above and said:\n<\/p><\/blockquote>\n
                           “We fully approve of the line of reasoning adopted
\n                    by the High Court in that case.”\n<\/p><\/blockquote>\n
                    It,   therefore,   follows   that   the   Code   is   applicable   in
\n                    disposing   of   an   election   petition   when   the   election
\n                    petitioner does not appear or take steps to prosecute the
\n                    election   petition.   Dismissal   of   an   election   petition   for
\n                    default   of   appearance   of   the   petitioner   under   the
\n                    provisions   of   either   O.IX   or   O   XVII   of   the   Code   would,
\n                    therefore, be valid and would not be open to challenge on
\n                    the ground that these provisions providing for dismissal of
\n                    the election petition for default do not apply.”\n<\/p><\/blockquote>\n
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                                                         7                                  EP34.09\n\n\n\n\n    12    He has also relied on  Gurmesh Bishnoi Vs. Bhajan Lal, AIR 2003,  \n\n\n\n\n                                                                                        \n<\/pre>\n
    Punjab and Haryana,  268. The relevant paragraph 9 reads thus:-\n<\/p><\/blockquote>\n
          “9     So far as the first question is concerned, it need not detain
\n                 this Court  any  further  as  this  question is no more res-\n<\/p><\/blockquote>\n
                 integra.     It   stands   completely   answered   without   any
\n                 ambiguity  by a Full  Bench  of  this Court in the case of
\n                 Jugal Kishoree V. Dr. Baldev Prakash<\/a>, AIR 1968, Punjab
\n                 and Hary. 152 which was approved by the Hon’ble Apex <\/p>\n
                 Court in the case of Dr. P. Nalla Thampy Thera V. B.L.
\n                 Shanker<\/a>,   AIR   1984   SC   135.    Consequently,   I   have   no  <\/p>\n
                 hesitation   in   coming   to   the   conclusion   that   an   election
\n                 petition   can   be   dismissed   for   default   or   for   non-
\n                 prosecution, as the case may be, if the order is otherwise  <\/p>\n
                 called   for.     The   Court   can   hardly   compel   an   unwilling
\n                 party to prosecute its litigation even if such inaction may
\n                 spring from negligence, indifference or even incapacity or
\n                 inability.   The power to dismissal of election petition is  <\/p>\n
                 inherent power which every Tribunal possesses.  Thus, this
\n                 contention of the applicant is rejected.”\n<\/p><\/blockquote>\n
                                                                  (Emphasis added)<\/p>\n
    13    The mandate, therefore, in view of the above, and even after reading <\/p>\n
    the relevant Sections and Rules of the Act, is very clear that there is no bar <\/p>\n
    to dismiss the Election Petition for want of prosecution and\/or for default.\n<\/p><\/blockquote>\n
    Considering the scheme and purpose of the Act and as the Election Petition <\/p>\n
    needs to be disposed of expeditiously, there is no point in adjourning the <\/p>\n
    matter again as the petitioner is not taking interest in the matter, though <\/p>\n
    ample opportunities have been given to him to take effective steps and to <\/p>\n
    appear before the Court to support the case.\n<\/p>\n
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                                                              8                                 EP34.09\n\n\n\n\n       14     Even   otherwise,   the   date   of   election   of   candidate   as   defined\/ \n\n\n\n\n                                                                                            \n<\/pre>\n
       provided   in   Section   67-A<\/a>   of   the   Act   means   the   date   of   election   of   the <\/p>\n
       candidate i.e. 22\/10\/2009.  The mandate of Section 81<\/a> of the Act is that an <\/p>\n
       election petition calling in question any election should be filed within 45 <\/p>\n
       days from, but not earlier than, the date of election of returned candidate, <\/p>\n
       or if there are more than one returned candidate at the election and dates <\/p>\n
       of their election are different from the later of those two dates.\n<\/p>\n
       15     As noted above, the Petition was verified and lodged on 7\/12\/2009.\n<\/p>\n
       The last date to file the Petition was 5th December, 2009, which was one of <\/p>\n
       the High Court working Saturday.\n<\/p>\n
              Election result declared               -       22\/10\/2009\n          \n\n\n\n              22\/10\/2009 to 31\/10\/2009               -       10 days\n\n              November, 2009                         -       30 days\n\n\n\n\n\n              December, 2009                         -         5 days\n\n              45 days over on                        -       05\/12\/2009\n\n<\/pre>\n
              The Petition should have been lodged on that date itself.  However, it <\/p>\n
       was lodged on (Monday)  7th December, 2009.\n<\/p>\n
    16  Another important aspect is non-joinder of necessary parties, as contemplated <\/p>\n
    under   Section   82<\/a>   of   the   Act   and   even   otherwise,   as   required   for   proper <\/p>\n
    adjudication   and  for   expeditious   disposal   of  the   Election  Petition.    Section  82<\/a> <\/p>\n
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\n                                                            9                                  EP34.09<\/p>\n
    deals with the aspect of parties of the Petition as under:-\n<\/p>\n
             “[Section 82<\/a>. Parties of the Petition.- A petitioner shall join
\n             as respondents to his petition-\n<\/p><\/blockquote>\n
             (a)   Where the petitioner, in addition to claiming declaration
\n             that the election of all or any of the returned candidates is void,
\n             claims   a   further   declaration   that   he   himself   or   any   other  <\/p>\n
             candidate has been duly elected, all the contesting candidates
\n             other than the petitioner, and where no such further declaration
\n             is claimed, all the returned candidates; and<\/p>\n<\/blockquote>\n
             (b) any   other   candidate   against   whom   allegations   of   any
\n             corrupt practice are made in the petition.]”\n<\/p><\/blockquote>\n
       17    The prayers in the Election Petition are:-\n<\/p>\n
             “A)    Call   for   record   and   proceedings   of   scrutiny   meeting   of  <\/p>\n
                    Returning Officer, Kudal, Sindhudurg.\n<\/p><\/blockquote>\n
             B)     Quash and set aside Order dated 26.09.2009 of Returning
\n                    Officer reject the Nomination papers of Respondent, declare
\n                    the   election   of   returned   candidate   void,   and   declare   to
\n                    Petitioner as elected candidate.\n<\/p><\/blockquote>\n
             C)     Allow   the   said   Original   Objection   Application   dated
\n                    26.09.2009   filed   before   Returning   Officer,   and
\n                    disqualifying the Respondent election as prayed for, in the
\n                    interest of justice;\n<\/p><\/blockquote>\n
             D)     Award cost of this Petition to Petitioner from respondent;\n<\/p><\/blockquote>\n
             E)     Pass   any   other   order   and   or   directions   as   this   Hon’ble
\n                    Court may deem fit and proper.”\n<\/p><\/blockquote>\n
       18    On the face of the record, undisputed position emerges is that the <\/p>\n
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\n                                                         10                                 EP34.09<\/p>\n
    Petitioner has not joined Returning Officer who has passed the impugned <\/p>\n
    order,   rejecting   the   Petitioner’s   objections.   He   has   not   joined   other <\/p>\n
    candidates   whose  names   were  published  by  the  Returning  Officer  firstly, <\/p>\n
    after scrutiny of nomination papers and lastly, while declaring the result of <\/p>\n
    the election as quoted earlier.\n<\/p>\n
    19     The effect of provisions of Section 82<\/a> of the Act is very clear that the <\/p>\n
    election Petition has to be arrayed of all the contesting candidates specially <\/p>\n
    in case the Petitioner makes a claim to be declared as  a winning candidate.\n<\/p>\n
    The   special   provisions   in   the   election   statutes   with   regard   to   this   are <\/p>\n
    mandatory and cannot be waived.  It should prevail.\n<\/p>\n
    20     After considering the provisions of Section 81<\/a> to 86<\/a> and 99<\/a> of the Act, <\/p>\n
    it is cleared that the mandate of the special Act needs to be respected for all <\/p>\n
    the   purposes   and   there   is   no   question   to   consider   the   provisions   of <\/p>\n
    Limitation Act<\/a>, 1963 and specially Section 5<\/a> to 29(2)<\/a> for condoning the <\/p>\n
    delay   in   election   petition   of   any   kind.     Madhya   Pradesh   High   Court <\/p>\n
    referring to various Supreme Court Judgments,   in   Abhimanyu Rath Vs.  <\/p>\n
    Virendra Pandey, AIR 1978 Madhya Pradesh, 112,  has also observed the <\/p>\n
    same.\n<\/p>\n
    21     The prayers as recorded above, speak for itself, as the Petitioner has <\/p>\n
    prayed for declaring the election of the Respondent as void and at the same <\/p>\n
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\n                                                          11                                 EP34.09<\/p>\n
    stroke   prayed   to   declare   the   Petitioner   as   elected   candidate.     In   such <\/p>\n
    matters, it is necessary that all other candidates including the contesting <\/p>\n
    Respondent,   who   scored   highest   vote,   than   that   of   other   3   candidates, <\/p>\n
    should have been joined as a party.  Even otherwise, for proper adjudication <\/p>\n
    it is necessary to join all the parties\/candidates as Respondents under the <\/p>\n
    Act   which   in   the   present   case   has   not   been   done,   though   vague <\/p>\n
    unsupported   allegations   are   made   only   against   the   Respondent.   The <\/p>\n
    Petition stands today, no allegations and averments are made against other <\/p>\n
    candidates,   that   itself   can   not   be   the   reason   to   overlook   the   above <\/p>\n
    mandatory provisions of the Special Act<\/a> (See  Krishan Chander Vs. Ram  <\/p>\n
    Lal, (1973) 2 SCC 759. ) <\/p>\n
    22     The Apex Court in Mohan Raj Vs. Surendra Kumar Taparia & Ors.,  <\/p>\n
    AIR   1969   S.C.   677,  while   dealing   with   the   Act,   observed   as   under   in <\/p>\n
    paragraph 10:-\n<\/p>\n
           “10. It is argued that the Civil Procedure Code applies and O.6
\n           R.17 and O.1 R.10 enable the High Court respectively to order
\n           amendment   of   a   petition   and   to   strike   out   parties.     It   is
\n           submitted, therefore, that both these powers could be exercised  <\/p>\n
           in this case by ordering deletion of references to Periwal.  This
\n           argument   cannot   be   accepted.     No   doubt   the   power   of
\n           amendment is preserved to the Court and O.1 R.10 enables the
\n           Court to strike out parties but the Court cannot use O.6 R.17 or
\n           O.1 R.10 to avoid the consequences of non-joinder for which a
\n           special provision is to be found in the Act.  The Court can order
\n           an   amendment   and   even   strike   out   a   party   who   is   not
\n           necessary.  But when the Act makes a person a necessary party
\n           and provides that the petition shall be dismissed if such a party
\n           is not joined, the power of amendment or to strike out parties  <\/p>\n
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\n                                                           12                                 EP34.09<\/p>\n
          cannot be used at all.  The Civil Procedure Code applies subject
\n          to the provisions of the Representation of the People Act<\/a> and any
\n          rules made thereunder (See S. 87<\/a>).   When the Act<\/a> enjoins the  <\/p>\n
          penalty of dismissal of the petition for non-joinder of a party
\n          the provisions of the Civil  Procedure Code cannot be used as
\n          curative means to save the Petition. <\/p><\/blockquote>\n
                                                                    (Emphasis added)<\/p>\n
          The Apex Court has reiterated such mandate and purpose of the Act <\/p>\n
    in  Krishan Chander Vs. Ram Lal (Supra).\n<\/p>\n
    23    The   Apex   Court   in  Parangrao   Kadam   Vs.   Prithviraj   Sayajirao  <\/p>\n
    Yadav Deshmukh & Ors., (2001) 3, S.C.C. 594, has observed as under:-\n<\/p>\n
                 “The argument that Sampatrao Chavan could have been
\n          impleaded   at   a   later   stage   if   necessary,   under   Section   99<\/a>,   if  <\/p>\n
          accepted,   renders   the   mandatory   requirement   of   Section   82<\/a>
\n          ineffective.”\n<\/p><\/blockquote>\n
    24    This   Court  has   also  in  Comrade  Kallappa  Laxman   Malabade   Vs. <\/p>\n
    Prakash Kallappa Awade, AIR   1996 Bombay 5  referring to Sections 82<\/a> <\/p>\n
    and 86<\/a> of the Act, and the various judgments of the Supreme Court in this <\/p>\n
    regard held as under:-\n<\/p>\n
          “4. The aforesaid  holding of  the Supreme Court leaves no
\n          room   for   doubt   that   the   provisions   of   the   Code   of   Civil
\n          Procedure could not be restored to in order to save a petition
\n          which otherwise is liable to be dismissed for non-joinder of the
\n          parties, which Section 82<\/a> of the Act says must be joined.”\n<\/p><\/blockquote>\n
                                                                  ::: Downloaded on – 09\/06\/2013 16:14:54 :::<\/span><\/p>\n
                                                      13                                EP34.09\n\n    25     The same principles apply to the present facts and circumstances of \n\n<\/pre>\n
    the case, specially to the issue of non-joinder of necessary parties, as it goes <\/p>\n
    to the root of the matter. The defect is incurable.   Besides, the Petitioner <\/p>\n
    scored lesser number of votes than 4 others in the fray.  There were in all 5 <\/p>\n
    contesting candidates.   Therefore, all were necessary parties, specially in <\/p>\n
    view of the prayers so made apart from mandate of Sections 82<\/a> and 86<\/a> of <\/p>\n
    the Act.  <\/p><\/blockquote>\n
    26<\/span><\/p>\n
           The Supreme Court in Anil Vasudev Salgaonkar Vs. Naresh Kushali  <\/p>\n
    Shigaonkar, (2009) 9 S.C.C., 310,  has held that, even if a single material <\/p>\n
    fact is missing that itself is a sufficient to dismiss the Election Petition.  In <\/p>\n
    the present case all the necessary parties are absent.  Such incomplete and <\/p>\n
    defective Election Petition for want of non-joinder of necessary parties and <\/p>\n
    necessary averments, also mean lack of supporting facts and the materials <\/p>\n
    which are necessary for proper and effective trial and expeditious decision <\/p>\n
    in the Election Petition as contemplated under Section 81<\/a> to 86<\/a> of the Act.\n<\/p>\n
    27     The present Petition is defective.   No effective steps were taken in <\/p>\n
    time. There is no scope now for any rectification by invoking a discretionary <\/p>\n
    power   of   the   Court   even   if   any,   which,   in   the   present   facts   and <\/p>\n
    circumstances, now is not available to the Petitioner.     There is no option <\/p>\n
    but to dismiss the Election Petition at this stage itself.   (Mulayam Singh  <\/p>\n
    Yadav Vs. Dharm Pal Yadav & Ors. (2001) 7 S.C.C. 98 ) <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:14:54 :::<\/span>
\n                                                      14                                EP34.09<\/p>\n
    28    Therefore,   considering   over   all   view   of   the   matter,   the   election <\/p>\n
    Petition is dismissed with no order as to costs.\n<\/p>\n
                                                      (ANOOP V. MOHTA, J.) <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:14:54 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mr. Surendra Budhaji Borkar vs Mr. Narayan Tatu Rane on 6 August, 2010 Bench: Anoop V.Mohta 1 EP34.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ELECTION PETITION NO. 34 OF 2009 Mr. Surendra Budhaji Borkar R\/o. Bazar Peth, Dodamarg, Dist. Sindhudurg. MS doddamarg12@rediffmail.com. ….Petitioner. Vs. Mr. Narayan […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-260835","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMr. Surendra Budhaji Borkar vs Mr. Narayan Tatu Rane on 6 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-surendra-budhaji-borkar-vs-mr-narayan-tatu-rane-on-6-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr. Surendra Budhaji Borkar vs Mr. Narayan Tatu Rane on 6 August, 2010 - 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