Decided on August 04,2002

M.Y.GHORPADE Appellant


- (1.)This appeal is directed against the order dated 28.11.2000 of the Karnataka high Court passed in an interlocutory application no. 31 of 1999. The appellant was declared elected to the Karnataka legislative assembly from 35-Sandur assembly constituency in the election held during September 1999. Respondent no. 5, Heroji Lad had also contested the said election and had secured the second highest number of votes. Shivaji Rao Poal, who was the election agent of said respondent no. 5, filed the election petition under section 81 of the Representation of People Act, 1951 (hereinafter referred to as 'the Act') challenging the election of the appellant on various grounds including the ground of commission of corrupt practice. In accordance with the prescribed procedure, the appellant on being served with the notice of the election petition, appeared before the High Court and filed an application for dismissal of the election petition under section 86 of the Act on the ground that there has been noncompliance of section 117 of the Act. The High Court by the impugned order having rejected the preliminary objection and having held the election petition to be maintainable, the present appeal has been preferred. The only question that arises for consideration in the appeal is whether there has been noncompliance of section 117 of the Act? Section 86 of the Act in chapter III deals with the trial of election petition and section 86 (1) states that the High Court shall dismiss election petition which does not comply with the provisions of section 81 or section 82 or section 117. Section 117 of the Act deals with the security for cost and reads thus:-
"117.Security for costs.- (1) At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the rules of the High court a sum of two thousand rupees as security for the costs of the petition. (2) During the course of the trial of an election petition, the High Court may, at any time call upon the petitioner to give such further security for costs as it may direct. "

(2.)There cannot be any dispute that if the high Court comes to the conclusion that the election petition had not complied with the provisions of section 117, then that election petition has to be dismissed.
(3.)The appellant alleged that a sum of rs. 2,000/- had been deposited in the high Court of Karnataka by Heroji Lad, respondent no. 5, and not by Shivaji Rao poal, the election petitioner and, therefore, there has been non-compliance of section 117 of the Act, inasmuch as under the aforesaid provision the requirement of law is that the petitioner shall deposit in the High Court in accordance with the rules of the High court a sum of Rs. 2,000/- as security for the cost of the petition. The High Court considered the averments made in the election petition to the effect that the petitioner had deposited the cost of rs. 2,000/- in the name of respondent no. 5 and also the evidence of respondent no. 5 indicating that he had never deposited the security amount of rs. 2,000/-, and it is the election petitioner who had deposited, and considered the provisions of the rules of Karnataka High court as well as the document exhibit P- 5, which had been enclosed to the election petition, and came to hold that the deposit in question had been made by the petitioner and the same has to be taken as security for the cost of the election petition, and as such there has been compliance of section 117 of the act. In coming to this conclusion the High court relied upon the decisions of the court in the cases of Chandrika Prasad, budhinath Jha, Kamraja Nadar and M. Karunanidhi.

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