- (1.) THIS is the appellant's application praying that the instant election appeal be allowed, the order of the District Judge, Fatehpur dated 29th September, 1973, be set aside and the election petition be directed to have abated. In the alternative, it has been prayed that in case the aforementioned prayed cannot be granted then the name the respondent No. 2 be struck off and a note be made that he is dead. This application is supported by an affidavit. A counter-affidavit has been filed on behalf of the respondent No. 4, Shri Sukhram, opposing the said application. The appellant has filed an affidavit-in-rejoinder in opposition to the aforesaid counter-affidavit and in support of his aforesaid application.
(2.) BRIEF facts necessary for the disposal of the application are these; an election took place to elect the Pramukh of Kshetra Samiti. Teliyani District Fatehpur and the appellant. Ram Lal singh, was declared to have been elected. There were four contesting candidates, including Ram Lal Singh. One of the unsuccessful candidates. Jai Ram Singh (respondent No. 2 herein) filed an election petition challenging the election of Ram Lal Singh and in the petition besides candidates were also impleaded as opposite parties. The said two unsuccessful candidates are Balkrishna Dubey and Sukh Ram who are respondents Nos. 3 and 4 herein. In the election petition a declaration was sought that the election of the returned candidate Ram Lal Singh was void and that the petitioner, Jai Ram Singh, had been duly elected the Pramukh. The returned candidate contested the petition but the same was allowed by the Election Tribunal and the entire relief sought in the petition was granted i.e., the election of the returned candidate, Ram Lal Singh, was declared to be invalid and the petitioner, Jai Ram Singh, was declared to be duly elected Pramukh. It may be stated that the petition was allowed "on technical points and for no fault of respondent No. 1." Against the decision of the Election Tribunal the instant appeal was filed in this Court. During its pendency Jai Ram Singh, respondent No. 2 herein, and the petitioner before the Election Tribunal, died on 31-10-1974. After the said death the appellant moved the aforesaid application and in support of it I have heard Shri V.K.S. Chaudhari at length. In opposition Sri K.M. Dayal has made his submissions.
(3.) SRI Chaudhari has contended that the application should succeed on both the two grounds or on either of them firstly, because the petitioner, Jai Ram Singh, who filed the election petition and who died during the pendency of the appeal, had a personal cause of action and with his death the same came to an end. In other words, the cause of action has not survived and, therefore, the petition stands abated and the appeal accordingly should be allowed and it be declared that the petition has abated in consequence of the death of the petitioner and secondly, the election petition stands abated upon the death of the petitioner by virtue of Rule 41 (2) of the U. P. Kshetra Samitis (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1962 which should be held to be applicable not only to the proceedings before the Election Tribunal but also to the appellate stage on the ground that an appeal is a continuation of the proceedings before the Election Tribunal. Learned counsel's contention is that it makes no difference whether the death of the petitioner occurs at the trial stage or at the stage of the appeal. He has placed reliance on the following cases: Sheodan Singh v. Mohan Lal, (AIR 1969 SC 1024); Collector Varanasi v. Gauri Shanker, (AIR 1968 SC 384): Subodh v. Ajit Kumar, (AIR 1967 SC 498): Girjanandini v. Bijendra, (AIR 1967 SC 1124): Syedna Taher v. State of Bombay, (AIR 1958 SC 253): N.S. Thread Co. v. James Chadwick and Bros., (AIR 1953 SC 357): Ram Swarup Das v. Rameshwar Das, AIR 1950 Pat 184); Maung Ba Thaw v. Ma Pin, (AIR 1934 PC 81); Hem Singh v. Basant Das. (AIR 1936 PC 93): Secretary of State v. Rama Rao, (AIR 1916 PC 21). ;