Holding

Section 5 of the Limitation Act does not apply to a recrimination notice under Section 97 of the Representation of the People Act, 1951.

Summary

The first respondent, a defeated candidate, filed an election petition challenging the election of the appellant. The appellant filed a recrimination notice under Section 97 of the Representation of the People Act, 1951, but did so beyond the 14‑day period prescribed, and sought condonation of the delay under Section 5 of the Limitation Act, 1963. The Karnataka High Court held that Section 5 of the Limitation Act did not apply to a recrimination notice. On appeal, the Supreme Court examined whether Section 29(2) of the Limitation Act makes its provisions, including Section 5, applicable to proceedings under the Representation of the People Act. The Court concluded that the Representation of the People Act is a self‑contained code; a recrimination notice is treated as an election petition and the Limitation Act, particularly Section 5, is expressly excluded. Consequently, the appeal was dismissed with costs.

Issues considered

Whether Section 5 of the Limitation Act, 1963 applies to a recrimination notice filed under Section 97 of the Representation of the People Act, 1951.

Legislation cited

Code of Civil Procedure, 1908
Limitation Act, 1963s. 10, s. 11, s. 12, s. 13, s. 14, s. 15, s. 16, s. 17, s. 18, s. 19, s. 20, s. 21, s. 22, s. 23, s. 24, s. 29(2), s. 3, s. 4, s. 5, s. 6, s. 7, s. 8, s. 9
Representation of the People Act, 1951s. 117, s. 118, s. 83, s. 86, s. 97

Subjects

election petitionrecrimination noticeLimitation ActSection 5Representation of the People Actprocedural lawcondonation of delayself‑contained code

Judgment

A_ ANWAR! BASAWARAJ PATIL AND ORS. A
v.
SIDDARAMAIAH AND ORS.

JANUARY 27, 1993

[KULDIP SINGH AND B.P. JEEVAN REDDY, JJ.] B

Representation of the People Ac4 1951 :

Section 97-Recrimination notice-Delay in filing of-Whether Section .
5 of the Limitation Ac4 1963 applicable.
c
Limitation Ac4 1963:

Section 5-Whether applicable to recrimination notice under Repre-
sentation of the People Act, 1951.

The first respondent, a defeated candidate, filed an election petition D
before the High Court for a declaration that the election of the appellant
was void and that he himself had been duly el"CCted. Since the notice could
not be served on the appellant, and some other respondents in the ordinary
course, it was published in a vernacular dally newspaper, as directed by
the High Court, fixing the date of appearance of the respondents therein. E
The appellant appeared before the High Court on the date of publication
of the notice and sought time for filing the written. statement and after
doing so submitted a recrimination notice under Section 97 of the Repre-
sentation of People Act, 1951. Along with the recrimination notice be filed
an application under Section 5 of the Limitation Act requesting the High
Court to condone the delay in filing the same, since the appellant had given F

~·
notice beyond the period of 14 days from the date of commencement of
trial, prescribed under the proviso to Section 97 (l).
_I The High Court held that Section 5 of the Limitation Act was not
applicable to a recrimination notice.
G
Aggrieved, the appellant filed the appeal, by special leave, before this
Court. It was contended that by virtue of Section 29(2) of the Limitation
Act, all the provisions contained in sections 4 to 24 (both inclusive) of the
Act applied to the proceedings under the Representation of the People Act,
1951, lnclnding the recrimination notice under Section 97. H
313
314 SUPREME COURT REPORTS (1993) 1 S.C.R.
A Dismissing the appeal, this Court,

HELD : 1.1. There is no provision in the Representation of People
Act, 1951 making all or any of the provisions of the Limitation Act
applicable to the proceedings under the Act. (318A]

B 1.2. The Act equates a recrimination notice to an election petition.
The language of Section 97 makes the said fact abundantly clear. It
provides that returned candidates or any other party may give evidence to
prove that the election of such candidate would have been void if be had
been the returned candidate and a petition bad been presented calling in
question his election. The proviso to sub-section (1) applies the provisions
c of Sections 117 and 118 to such a recrimination notice. For non-compliance
with the requirement of Section 117 an election petition is liable to be
dismissed by virtue of sub-section (1) of Section 86. Sub-section (2) of
Section 97 further provides that the notice referred to in sub-section (1)
should be accompanied by the statemtnt and particulars as required by
D Section 83 in the case of an election petition and should be signed and
verified in like manner. [319C-E]

1.3. The proviso to sub-section (1) of Section 97 which requires such
a notice to be given to the High Court within 14 days of the date fixed for
the respondents to appear before the High Court to answer the claim or
E claims (reading the definition of 'commencement of trial' into it) has also
a particular meaning and object behind it. The idea is that the recrimina·
lion notice, if any, should be filed at the earliest possible time so that both
the election petition and the recrimination notice are tried at the same
time. [319F)
F
The recrimination notice is thus comparable to an election petition.
Ir Section 5 of the Limitation Act, 1963 does not apply to the filing of an
election petltinn, it does not equally apply to the filing of the recrimination
notice. [319G]

G H.N Yadav v. L.N. Misra, (1974] 3 S.C.R. 31, relied on.

V.C. Shukla v. Khubchand Baghel and Ors., (1964] 6 S.C.R. 129,
dlstlngnlsbed.

Blwgilal Pandya v. Maharawal Laxman Singh, AIR 1968 Rajasthan
H 145, Bhakti Bh. Monda/ v. Khagendra K. Bandhopandhya, 1968 Calcutta
ANWAR! PATIL v. SIDDARAMAIAH [REDDY, J.] 315
69, overruled. A
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 313 of 1993.

From the Judgment and Order dated 9.10.1992 of the Karnataka
High Court ii! J>lection Petition No. 8 of 1991. ·
B
P.N. Misra for the Appellants.

R.N. Narasimha Murthy, E.C. Vidyasagar and Gopal Singh for the
Respondents.

The Judgement of the Court was delivered by c
B.P. JEEVAN REDDY, J. Heard the counsel for the parties. Leave
granted.

This appeal raises the question whether Section 5 of the Limitation
Act, 1%3 is applicable to a recrimination notice given under Section 97 of D
the Representation of People Act, 1951. The learned Single Judge of the.
Karnataka High Court has held that it does not. ~IP· view is questioned by
the returned candidate (first respondent in the election petition) before us.

The first respondent in the Election Petition who shall hereinafter be
referred to as 'appellant', was declared elected from Koppal parliamentary E
constituency during the general elections held for the 10th Lok Sabha. He
contested on the Congress (I) ticket. The election-petitioner, referred to
hereinafter as 'the first respondent' had also contested from the said
constituency on the ticket of Janata Dal. Having lost the election, the first
respondent filed an election petition No. 8 of 1991 for a declaration that F
the election of the appellant from the said parliamentary constituency was
void and for a further declaration that he himself has been duly elected
therefrom. Since the appellant and some other respondents to the election
petition could not be served in the ordinary course, the High Court
directed publication of notice in a Kannada Daily Newspaper. It was so
published on 4.11.1991 fixing the date of appearance of the respondents on G
75.11.1991. The appellant (first respondent in the election petition) ap-
peared before the High Court on 4.11.1991 and sought time for filing his
written statement which he did on 6.11.1992. Thereafter, on 21.1.1992 he
submitted the recrimination notice under Section 97 of the Act. By the said
· notice, the appellant expressed his intention to give evidence to prove that H
316 SUPREME COURT REPORTS
-
(1993] 1 S.C.R.
A the election of the first respondent would have been void if he had been ""-..
the returned candidate and a petition had been presented calling in ques-
tion his election. Along with the recrimination notice he filed an applica-
tion under Section 5 of the Limitation Act requesting the High Court to
condone the delay in filing the same for the reasons stated therein. Ac-
B cording to the proviso to Section 97(1), notice of such intention should have
been given to the High Court "within 14 days from the date of commence-
ment of trial". Admittedly, the appellant gave notice under Section 97{1)
beyond the period of 14 days and hence the application under Section 5.

For a proper appreciation of the question arising herein, it would be
C appropriate to notice the relevant provisions of the Representation of
People Act besides Section 29{2) of the Limitation Act, 1963. First the
provisions of the Representation of People Act Section 97 reads as follows:

"97. Recriminatior. ·,,hen seat claimed.- {1) When in an
election petition a declaration that any candidate other
D than the returned candidate has been duly elected is
claimed, the returned candidate or any other party may
give evidence to prove that the election of such candidate
would have been mid if he had been the returned can-
didate and a petition had been presented calling in ques-
E tion his election:

Provided that the returned candidate or such other
party as aforesaid shall not be entitled to give such
evidence unless he has, within fourteen days from the date
of commencement of the trial, given notice to the High
F Court of lus intention to do so and bas also given the
security and the further- security referred to in sections
117 and 118 respectively.

{2) Every notice referred to 'in sub-section (1) shall be
accompanied by the statement :and particulars required by
G
section 83 in the case of 1111· election petition and shall be
signed and verified in like manner."

Sub-section (1) of Section 97 permits the returned candidate or any
other party to give evidence (in an election petition seeking a declaration that
H any candidate other than the returned candidate has been duly elected) to
ANWAR! PATIL v. SIDDARAMAIAH [REDDY, J.J 317
prove that the election of such candidate would have been void if he had been A
the returned candidate and a petition had been presented calling in question
his election. Sub-section (2) says that such a notice shall be accompanied by
a statement and particulars required by Section 83 in the case of an election
petition and shall also be signed and verified in the same manner. Proviso to
sub-section (1) says that such a notice shall be given within fourteen days
B
from the date of "commencement of trial" and the security arid further
security referred to in Sections 117 and 118 respectively is furnished. The
expression "commencement of trial" has been defined in Explanation· to
Sub-section(4) of Section 86. The Explanation reads:

"For the purposes of this sub-section and of Section 97, c
the trial of a petition shall be deemed to commence on
the date fixed for the respondents to appear before the
High Court and answer the claim or claims made im the
petition. 11
D
According to the said definition, the notice of the recrimination
should have been given in this case within fourteen days of 4.11.91. Admit-
tedly, it was submitted beyond the said period. Section 83 deals with
"contents of petition'. According to sub-section (1) an election petition (a)
shall contain a concise statement of the material facts on which the
petitioner relies; (b) shall setforth particulars of any corrupt practice that E
the petitioner alleges including as full a statement as possible of all the
names of the parties alleged to have committed such corrupt practice and
the date and place of lhe commission of each of such practice and (c) 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. The proviso F
to sub-section (1) says that where a 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 practice and particulars therein.
Sub-section (2) says that any schedule or annexur.e to the petition shall also
be signed by the petitioner and verified in the same manner as the petition.
Section 117 requires the election petitioner to deposit in the High Court, G
at the time of presenting an election petition, a sum of Rs. 2,000 as security
for the costs of the petition in accordance with the rules of the High Court.
Section 118 says that no person shall be entitled to be joined as a respon-
dent under Sub-section (4) of Section 86 unless. he has given such security
for costs as the High Court may direct. Section 86(1) declares that 'the H
318 SUPREME COURT REPORTS (1993] 1 S.C.R.
-
A High Court shall dismiss an election petition which does not comply with
the provisions of section 81 or section 82 or section 117.'
~
There is no provision in the Representation of People Act, 1951
making all or any of the provisions of the Limitation Act applicable to the
proceedings under the Act. The appellant, however, relies upqn Section
B 29(2) of the Limitation Act. According to him by virtue of the said provision,
all the provisions contained in Sections 4 to 24 (both inclusive) apply to the
proceedings under the Act including the recrimination notice under Section
97. Sub-section(2) of Section 29, which alone is relied upon before us reads:

c "Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from
the period prescribed by the Schedule, the provisions of
Section 3 shall apply as if such period were the period
prescribed by the Schedule and for the purpose of deter-
mining any period of limitation prescribed for any suit,
D appeal or application by any special or local law, the
provisions contained in Sections 4 to 24 (inclusive) shall
apply only insofar as, and to the extent to which, they are
not expressly excluded by such special or local law."

In H.N. Yadav v. L.N. Misra, (1974) 3 S.C.R. 31, this court held that
E
the words "expressly excluded" occurring in Section 29(2) of the Limitation
Act do not mean that there must necessarily be express reference in the ~

special or local law to the specific provisions of the Limitation Act, the
operation of which is sought to be excluded. It was held that if on an
examination of the relevant provisions of the Special Act, it is clear that
F the provisions of the Limitation Act are necessarily excluded then the
benefits conferred by the Limitation Act cannot be called in aid to supple- )I

ment the provisions of the Special Act. That too was a case arising under
the Representation of People Act and the question was whether Section 5 t--
of the Limitation Act is applicable to the filing of the election petition. The
G test to determine whether the provisions of the Limitation Act applied to
proceedings under Representation of People Act by virtue of Section 29(2)
was stated in the following words :

"The applicability of these provisions has, therefore, to be -I
judged not from the terms of the Limitation Act but by
H the provisions of the Act relating to the filing of election
\
ANWAR! PATIL v. SIDDARAMAIAH [REDDY, J.J 319
petitions and their trial to ascertain whether it is a com- A
plete code in itself which does not admit of the application
of any of the provisions of the Limitation Act mentioned
in Section 29(2) of that Act." ·

On an examination of the provisions of the Representation of People
Act and the earlier decisions of the Court, it was held that the Repre- B
sentation of People Act is a self-contained code and accordingly, it was
concluded that "the provisions of s. 5 of the Limitation Act do not govern
the filing of election petitions.or their trial."

This decision, in our view, practically concludes the question before us C
inasmuch as the Act equates a recrimination notice to an election petition.
The language of Section 97 makes the said fact abundantly clear. The relevant
words are: "the returned candidate or any other party may give evidence to
prove that the election of such candidate would have been void if he had been
th~ returned candidate and a petition had been presented calling in question
his election." The proviso tosub-section.(1) applies the provisions of Sections D
117 and 118 to such a recrimination notice. It may be noticed that for
non:compliance with the requirement of Section 117 an election petition is
liable to be dismissed by virtue of sub-section (1) of section 86. Sub-section
(2) of Section 97 further says that the ."notice referred to in sub-section (1)
shall be accompanied by the statement and' particulars required by Section E
83 in the case of an election petition and shall be signed and verified in like
manner." We may also say that the proviso to sub-section (1) of Section 97
which requires such a notice to be given to the High Court within fourteen
days of the "date fixed for the respondents to appear before the High Court
to answ~r the claim or claims" (reading the definition of"commencement of
trial" into it) has also a particular meaning and object behind it. The idea is F
that the recrimination notice, if any, should be. filed at the e3fliest possible
time so that both the election petition and the recrimination notice are tried
at the same time. The recrimination notice is thus comparable to an election
petition. If Section 5 does not apply to the filing of an election petition, it does
not equally apply to the fili11g of the recrimination notice. G
In view of the above position, we do not think it necessary to deal
with the several decisions .cited before us relating to the interpretation of
Sub-section (2) of Section 29 of the Limitation Act.

The· COUllsel for the appellant brought to our notice a decisio,n of this H
320 SUPREME COURT REPORTS (1993) 1 S.C.R.
A Court holding that the provisions of the Section 12(2) of the Limitation
Act, 1908 are applicable to an appeal under Section 116(A) ot the Repre-
sentation of People Act, 1951 viz., V.C. Shukla v. Khubchand Baghel and
Ors., (1964) 6 S.C.R.129. It is also brought to our notice that certain High
Courts have taken the view that both Section 5 and Section 12(2) of the
Limitation Act are applicable to the proceedings under the Act. Reference
B
is to 1968 Rajasthan 145, 1968 Calcutta 69 and (1976) 89 Madras La.
Weekly 32. So far as the decision of this court in V. C. Shukla is concerned,
it is a decision dealing with the applicability of the provision in Section
12(2) of the Limitation Act to an appeal preferred under Section 116(A)
and not with the filing of an election petition. The said decision was
c considered and distinguished in H.N. Yadav on the above basis. At page
42 of the S.C.R., the Division Bench which decided H.N. Yadav distin-
guished the decision in V. C. Shukla in the following words :

'Vidyacharan Shukla's case (supra) is one which dealt with
an appeal under the Act while what we have to consider
D is whether the Limitation Act is at all applicable to elec-
tion petitions under the Act. Thirdly, s. 29(2) of the new
Limitation Act does not now give scope for this controver-
sy whether the two limbs of the old section are inde-
pendent or integrated. No doubt s. 5 would now apply
E where s. 29(2) is applicable to even applications and
petitions, unless they are expressly excluded. Even assum-
ing that the Limitation Act applies to election petitions
under the Act, what bas to be seen is whether s. 5 is
excluded from application to such petitions.'
F The Division Bench then proceeded to examine whether the ap-
plicability of Section 5 is excluded in the matter of filing of an election
petition and came to the conclusion that it was so excluded. This aspect
has already been dealt with hereinabove. So far as the decisions of the High
Courts are concerned, we cannot agree with them in so far as the ap-
G plicability of Section 5 to filing o an election petition and/or recrimination
notice is concerned in view of the decision of this Court in H.N. Yadav.

For the above reasons, the appeal fails and is accordingly dismissed
with costs. -J
N.P.V. Appeal dismissed.