S. K. Mal Lodha, J. - (1.) BY this order, the application under section 5 of the Limitation Act (No. XXXVI of 1963) (for short 'the Act') read with S. 151 of the Code of Civil Procedure supported by the affidavit of Shri Virdhichand Jain, Advocate filed on behalf of the election-petitioner on October 22, 1980 will be disposed of.
(2.) THE election-petitioner filed the election petition under Ss. 80 and 81 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act of 1951') on July 16. 1980 with a prayer that the election of the respondent may be declared void. THE respondent filed the written statement on September 20, 1980 contesting the election petition Rejoinder to the reply was filed on October 7, 1980 Issues were framed on October 10. 1980 and it was ordered that the parties shall file the list of witnesses within 7 days from that day. THE respondent filed the list of the witnesses on October 13, 1980. This list was within the time fixed by the Court. THE election-petitioner, however, filed the list of witnesses along with an application under S. 5 of the Act read with S. 151 C. P. C. on October 22,1980 praying therein that the delay caused in filing the list of witnesses may be condoned and the list of witnesses may be taken on record and that a direction for summoning the witnesses may be made. It may be mentioned that October 17, 1980 to October 20, 1980 were holidays and the Court was closed. No written reply to the application was filed on behalf of the respondent. I have heard Mr. R. Mehta, learned counsel for the election-petitioner and Mr R. C. Maheshwari, learned counsel for the respondent. Learned counsel for the election-petitioner submitted that under S. 5 of the Act, delay caused in not filing the list of witnesses within 7 days as ordered by this Court on October 10, 1980 may be condoned, for. the reasons given in the application which is supported by the affidavit of Shri Virdhi Chand Jain, Advocate, constitute sufficient cause. On the other hand, Mr. R. C. Maheshwari, learned counsel for the respondent argued that S. 5 of the Act cannot be invoked in this case and that the period of 7 days provided in r. 745-M of the Rajasthan High Court Rules, 1952 (for short 'the Rules, hereinafter) cannot be extended. It was also submitted that even if S. 5 of the Act is held to be applicable, in the facts and circumstances of this case, the reasons narrated by the election-petitioner in the application under S. 5 of the Act read with S. 151 C. P. C. are not adequate to hold that there was sufficient cause as required by S. 5 of the Act for condoning the delay. I have bestowed my most careful and thoughtful consideration to the rival contentions raised by the learned counsel for the parties. At this juncture, it will be useful to consider the relevant provisions of the Act, the Act of 1951 and the Rules.
(3.) SECTION 5 of the Act lays down that an application to which the section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. According to S. 2 (j) of the Act 'period of limitation' means the period of limitation prescribed for any suit, appeal or application by the Schedule appended to the Act and the "prescribed period" means the period of limitation computed in accordance with the provisions of the Act. SECTION 29 of the Act deal with Savings and sub-section (2) of S. 29 reads as under : "s. 29 (2 ). 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 determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (in clusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law " SECTION 81 of the Act of 1951 lays down that an election petition calling in question any election may be presented by any candidate at such election or any elec-tor within 45 days from but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election are different the later of these two dates. SECTION 81 of the Act thus provides for the period of limitation for presentation of the election petition. SECTION 86 of the Act of 1951 deals with trial of election petitions. Under sub-section (4) of SECTION 86 of the Act of 1951 any candidates not already a respondent shall, upon application made by him 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 by the High Court be entitled to be joined as a respondent. The Explanation to sub section (4) of SECTION 86 provides that 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 in the petition. SECTION 116-A of the Act of 1951 provides for preferring of the appeals to the Supreme Court and the period prescribed therein is 30 days from the date of the order of the High Court under SECTION 98 or SECTION 99. It also makes mention that the Supreme Court may entertain the appeal after the expiry of the said period if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. SECTION 87 of the Act of 1951 lays down that subject to the provisions of the Act of 1951 and of any rules made therein, every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of the suits. In exercise of the powers conferred by Section 46 of the Rajasthan High Court Ordinance, 1949 read with Article 225 of the Constitution of India and all other powers enabling it in that behalf, the High Court of Judicature for Raj. made the Rules in regard to election petitions under the Act of 1951. Rule 745-M which occurs in Chapter XXIX- A reads as under - "745-M. Issues will then be settled and the election petition will be posted for hearing. Within seven days of the settlement of issues, parties shall file a list of witnesses and pay the process-fees and the travelling allowance and the diet allowance for those of them who are required to be summoned. No party shall produce or obtain process to enforce the attendance of witnesses other than those contained in the above list: Provided that it will be in the discretion of the Judge to allow a party to produce witnesses in rebuttal not included in the list, on such terms as he may deem fit to impose, if there are sufficient reasons to do so. " Under this rule within a period of 7 days of the settlement of issues, the par-tries are required to file the list of witnesses. It is also provided in the rule that no party shall be entitled to produce or obtain process to enforce the attendance of witnesses other than those contained in the above list. According to proviso to r. 745-M, a discretion has been given to the Judge to allow a party to produce witnesses in rebuttal not included in the list on such terms as it may deem fit to do so. The Centra) Government has been empowered under Section 169 of the Act of 1951 after consulting the Election Commission by notification in the Official Gazette "to make rules for carrying out the purposes of the Act of 1951 by issuing a notification in the Official Gazette. Subsection (2) of Section 169 of the Act of 1951 provides that in particular and without prejudice to the generality of the foregoing power, the rules which may be framed by the Central Government may provide for all or any of the matters enumerated in clauses (a) to (l) of sub section (2) of Section 169 of the Act of 1951. Under the Act of 1951, there is no specific provision for framing of the rules in regard to the trial of election petitions and according to Section 87 of the Act of 1951, as stated above, subject to the provisions of the Act of 1951 and all the rules made thereunder, the High Court is to try the election petition in accordance with the procedure applicable under the Code of Civil Procedure, 1908 The question that, arises is whether the provisions contained in Section 5 of the Act apply so as to enable the Court to extend the period of 7 days provided in rule 745-M of the Rules for filing the list of witnesses. ;