Holding

Section 10 of the General Clauses Act applies, so the election petition filed on 17 May 1995 is deemed filed within the prescribed period, and the dismissal for limitation is set aside.

Summary

In the Bihar Legislative Assembly election, Chandra Kishore Jha filed an election petition challenging Mahavir Prasad's election. The petition was handed to the Bench Clerk on 16 May 1995, the last day of the 45‑day limitation period, but the designated election judge and the bench hearing civil matters were unavailable after 3:15 p.m. due to an obituary reference, so the petition could not be presented in open court that day. The High Court dismissed the petition as barred by limitation, holding that presentation to the Bench Clerk was improper and that the petition should have been presented to the Registrar. On appeal, the Supreme Court examined the Patna High Court Rules and held that an election petition can be presented only before the designated judge or, if unavailable, before the bench hearing civil applications, and that no provision allows presentation to the Registrar. Applying Section 10 of the General Clauses Act, 1897, the Court deemed the filing on 17 May 1995 as within the prescribed period since the court was closed on the last day. Consequently, the dismissal for limitation was set aside and the petition was ordered to be tried on its merits. The appeal was allowed.

Issues considered

Whether an election petition presented to the Bench Clerk on the last day of the limitation period, when the court was closed, is barred by limitation.
Whether Section 10 of the General Clauses Act, 1897, can be invoked to deem a filing on the next working day as within time despite non‑compliance with the High Court Rules.

Legislation cited

General Clauses Act, 1897s. 10
Representation of the People Act, 1951s. 81, s. 86

Subjects

election petitionlimitation periodGeneral Clauses Acthigh court rulespresentation before designated judgebench clerkstatutory remedyimpossibilium nulla obligatio est

Judgment

A CHANDRA KISHORE JHA
v.
MAHAVIR PRASAD AND ORS.

SEPTEMBER 2 I , I 999

B [DR. A.S. ANAND, C.J., S. RAJENDRA BABU AND
R.C. LAHOTI, JJ.]

Patna High Court Rules, 1916-Rule 6 a/Chapter XXI-E, Rules 7,9,13
of Chapter fl part /, Rule 24 of Chapter XXl-E-Election petitioil-Sought
C to be filed on the last day ofprescribed period-Courts not functioning after
3.15 P.M after an obituary Reference-Petition handed over to Bench Clerk
of the Courf-Presented before the open court on very next day-Whether
barred by limitation-Held, under the Rules an election petition can be
presented only before a designated Judge in open Court or a Bench hearing
D civil applications and motions-Presentation before the Bench clerk or
Registrar not properly made-However by virtue ofSec. JO ofGeneral Clauses
Act, petition within the period of limitation-Genera/ Clauses Act, 1897, Sec.
JO-Representation of the People Act, 1951.
...
._.

Maxims:
E
"Jmpossibilium nu/la obligatio est"-Meaning and applicability of

In the elections to the Bihar Legislative Assembly respondent no. 1
-
was declared elected on 1.4.1995. Appellant filed an election petition
challenging the election of respondent no. 1 in open Court on 17.5.1995. The
p period of 45 days within which an election petition could be filed before a
Designated Judge in open court or before a Bench hearing civil application
and motions expired on 16.5.1995. However, on 16.5.1995, after an Obituary
Reference, neither the Designated Judge nor the Bench was available after
3.15 P.M. Appellant therefore, handed over the petition to the Bench Clerk.
On the very next day it was presented before the Designed Judge in open
G court. The Designated judge dismissed the petition as barred by limitation
holding that the presentation before the Bench Clerk on 16.5.1995 was not
in conformity with the Patna High Court Rules, 1916 and instead it ought
to have been presented to the Registrar. Hence the present appeal.

Allowing the appeal, the Court
H 754
C.K. JI-IA ,-.MAHAVIR PRASAD 755
HELO: I.I. An election petition under Rule 6 of Chapter XXl-E of the A
Patna High Court Rules, 1916 can be made only before the Designated
Election Judge in open court and on his non-availability, before the Bench
hearing civil applications and motions. Thus, presentation of the election
petition to the Bench Clerk was not proper presentation under the Rules.
[761-D-Fl B
1.2. The Designated Election Judge was not justified in holding that in
view of Rule 24 of Chapter XXl-E read with Rule 13(iii) of Chapter II Part
I, the election petition ought to have been presented to the Registrar. Proper
presentation of an election petition in the High Court can only be made in
the manner prescribed by Rule 6 of Chapter XXI-E No other mode of C

- presentation of an election petition is envisaged under the Act or the Rules
made thereunder. Therefore, an election petition could, under no
circumstances be presented to the Registrar to save the period of limitation.
It is a well settled salutary principle that if a statute provides for a thing to
be done in a particular manner, then it has to be done in that manner and
in no other manner. An election petition being a purely statutory remedy, D
nothing is to be read into the Rules-Nothing is to be presumed-Which is
_,_
not provided for in the Rules. (761-B; 762-A-B; 761-G-H) '

Nazir Ahmad v. King Emperor, 63 Indian Appeals 372 =AIR, (1936)
PC 253; Rao Shri Bahadur Singh & Anr. v. State of Vindhya Pradesh, [1954]
SCR 1098 =AIR, (1954) SC 322 and State of Uttar Pradesh v. Singhara E
Singh & Ors., AIR, (1964) SC 358 = (1964) 1 SCWR 57, relied on.

2.1. Law does ~ot expect a party to do the impossible imposebilum nu/la
obligatio est. In the instant case, the election petition under the Rule could
only have been presented in the open Court upto 16.5.1995 till 4.15 P.M.
either before the Designated Judge or the Bench hearing civil applications F
and motions to save the period of limitation. Ho~ever, neither the Designated
Election Judge nor the Bench was available on 16.5.1995 after 3.15 P.M.
after the Obituary Reference. It was, therefore, not possible for the appellant
to have presented the election petition on that date which was the last day

-· of the prescribed period of limitation. [762-E-C-DI

2.2. The Designated Election Judge was not justified in denying the
G

benefit of Sec. 10 of the General Clauses Act, 1897 and dismissing the
election petition as barred by limitation. Sec. 10 of the General Clauses Act
provides that if the Court or office is closed on the last day of the prescribed
period, the Act done on the very next day would be considered as done in due H
756 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A time. Thus, in the instant case, the presentation of the election petition on
the very' next day i.e. 17.5.1995, in the open Court would be considered, by
virtue of Sec. IO of the General Clauses Act as presentation of the election
petition within the prescribed period of limitation. f763-C-BJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 42 of 1998.
B
From the Judgment and Order dated 3.10.97 of the Patna High Court in
E.P. No. 23 of 1995.

Shambhu Prasad Singh and P.S. Jha for the Appellant.

C P.S. Mishra, Chandra Shekhar, R.P. Singh, Ms. Ritu Singh and Ms.
Sunita R. Singh for the respondents.

The Judgment of the Court was delivered by
-
DR. A.S. ANAND, C.J., Election of Respondent ·No. l to the Bihar
D Legislative Assembly from 86, Ghanshyampur Assembly Constituency, held
in March, 1995, was challenged by the appellant through an Election Petition
on various grounds. The Election Petition was resisted by the returned
candidate and certain preliminary objections were also raised. The returned -·-
candidate on 14.8.1997 filed an application under Section 81 (1) read with
Section 86 of the Representation of the People Act, 195 l (hereinafter the Act)
E in the High Court of Patna seeking dismissal of the election petition, on the
ground that the petition presented on 17.5.1995 was beyond the period of
limitation and thus liable to be dismissed under Section 86 of the Act. The
application was decided in favour of the returned candidate and the learned
designated election Judge vide order dated 3rd October, 1997 dismissed the
F election petition, without trial, as barred by limitation. Aggrieved, the appellant
is before us.

The only issue debated before us centers around the non-filing of the
. election petition within the prescribed period of 45 days from the date of
election. Reference to some dates, which are not in dispute, becomes necessary
G at the outset.
After the polling of votes, counting of ballot papers took place on 3 I
·-
March, 1995. The result was declared on 1.4.1995. (Initially, there was some
dispute with regard to the exact date when the result was declared, i.e.,
whether on 31.3.1995 or 1.4.1995 or 2.4. I 995, but both, before the learned
~

H designated election Judge as well as in this Court, on the basis of the record,
-
C.K. JHA v.MAHAVIR PRASAD [DR. A.S. ANAND, CJ.] 757
it has been admitted by learned counsel for the parties that the result of the A
election was declared on 1.4.1995). The election petition was presented to the
learned designated election Judge in the 'open Court' on 17.5.1995. The
prescribed period of 45 days within which the election petition could be filed
expired on 16.5.1995.

At the time of presentation of the election petition in the open Court, B
on 17.5.1995, the following order was made by the learned designated election
Judge:

"Shri Chandra Kishore Jha appears in person and is duly identified

·- by his counsel, Shri P.K. Verma. The Election Petitioner files an election
petition calling in question the election of respondent No. I, Shri
Mahabir Prasad to the Bihar Legislative Assembly from 86
C

Ghanshyampur Assembly Constituency. He also files a challan showing
deposit of Rs.2,000/- as security money. There being 20 respondents
the election petitioner has also filed 20 extra copies of the - election
petition attested to be true copy by the election petitioner under his D
•' signature.

Learned counsel while stating the circumstances in which the ·
election petition has been filed without stamp report mentioned that
the necessary challan showing deposit of the security money had
been filed showing the receipt of the deposit by the Joint Registrar E
of this Court. It bears the date 16.5.95. The counsel also pointed out
that necessary affidavit in support of the election petition had also
been sworn yesterday i.e. on 16.5.95. Counsel stated all this to support
his contention that the petition was ready in all respects for being
filed yesterday and it has been handed over t:) the Bench Clerk of the
court at 4.05 P.M. yesterday itself. Unfortunately, 'it could not be F
presented before the court on account of the fact that there was a
death reference at 3.15 P.M. yesterday and after the reference the
working of the court had been suspended for the rest of the day. The
Bench Clerk of the Court, Shri Santosh Kumar Sinha, who is present
testifies to the aforesaid fact which had been telephonically G
communicated to the Presiding Officer of the Court at his residence
yesterday itself. It may be mentioned that counsel for the petitioner
at the very out set stated that he had been handed over the election
petition by the Bench Clerk for being presented today"

The learned designated election Judge opined that the pre~entation of H
758 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A the election petition on 16.5.1995, before the Bench Clerk was improper, the
same not being in conformity with the High Court Rules and, therefore, could
not save the period of limitation and that the presentation of the Election
Petition made in the open Court on 17.5.1995 was beyond the period of
limitation and hence liable to be dismissed under Section 86(1) 'read with
Section 81 of the Act, notwithstanding the fact that on 16.5.1995, 'after 3.15
B P.M., designated Judge was not available in the Court to whom the election
petition could be presented in the open Court.

With a view to examine the correctness of the above finding, it is

-
desirable to take note of some of the relevant provisions of the Rules of the
C Patna High Court. Chapter XXI-E lays down Rules for disposal of election
petitions filed under Section 81 of the Act.

Rule 6 of Chapter XXI-E reads thus:

"Subject always to the orders of the Judge, before a formal presentation
of the election petition is made to the Judge in open Court, it shall
D be presented to the Stamp Reporter of the Court, who shall certify
thereon if it is in-fime and in conformity with requirements of the Act
and the rules in this behalf, or is defective and shall thereafter return
the petition to the petitioner for making the formal presentation after
removing the defects, if any:
E
Provided that if on any Court day the Judge is not available on
account of temporary absence or otherwise, the petitioner; may be
presented before the Bench hearing civil applications and motions."

Rule 7 provides:
F
"Rule 7(1) - The date of presentation to the Judge or the Bench as
mentioned in the proviso to Rule 6 shall be the date of the filing the
election petition for the purposes of limitation.

(2) Immediately after it is presented, the petition shall- be entered in
G· a special register maintained for the registration of election petitions."

Rule 9 reads:

"( l) As soon as may be, after an election petition has been presented
and registered, it shall be placed before Judge for such orders as may
H be required to be passed under Section 86 of the Act.
C.K. JHA v. MAHAVIR PRASAD [DR. A.S. ANAND,CJ.) 759
(2) If the petition is not dismissed under Section 86(1) of the Act, a A
summons, on the direction of the Judge, shall be issued to th<r
respondents to appear before the Judge on a day not earlier than three
weeks from the date of the issue of the summons, unless otherwise
ordered by the Judge.

(3) The summons shall be for filing written statement and settlement B
of issues and shall be served on the Respondents through the District
Judge of the District to which the respondent belongs or in the
district in which he ordinarily resides, in the manner provided for the
service of summonses in the Code of Civil Procedure and the concerned
C
-
District Judge will make his best endeavour to get the summons duly
served and make a return of the service of summons before the date
fixed."

Rule 13 of Chapter JI, Part-I of the High Court Rules reads :

"In addition to the powers conferred upon him by other rules the
Registrar shall have the following duties and powers: D
(i) To receive an appeal under Clause I 0 of the Letters Patent.
(ii) To receive an application for Probate or Letters of Administration
or for revocation of the same and to issue notices thereon.
(iii) To receive a plaint or an appeal from the decree or order of a E
Subordinate Civil Court and to determine whether it shall be
admitted and notice issued at once to the other side or be
posted for hearing under Order XLI, Rule I I, or otherwise laid
before the Court for orders.

xxx xxx xxx F
Rule 24 of Chapter XXI-E provides:

"The Patna High Court Rules, except in so far as they are inconsistent
with the above rules, shall apply mutatis mutandis to all election
petitions. Where no specific provision is made in the Act, the Code G
or the High Court Rules, the Judge may pass such orders as he may
consider necessary."

A combined reading of the above Rules shows that an election petition
is required to be presented, first to the Stamp Reporter of the Court, who shall
certify thereon if it is within time and in conformity with the requirements of H
760 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A the Act and the Rules made in that behalf or is defective, and in the event
it is found to be defective, the same shall be returned to the petitioner for
making formal presentation, after removing the defects. The election petition
is then required to be presented to the designated election Judge in the 'open
Court'. The proviso to ,Rule 6 lays down that if on any Court day, the Judge
is not available on account of temporary absence or otherwise, the petition
B may be presented before the Bench hearing civil applications and motions.
By virtue of Rule 7, the date of filing of an election petition for purposes of
limitation is the date of presentation of the election petition to the Judge or
the Bench as mentioned in the proviso to Rule 6. Thus. the date of presentation
of the election petition in the open Court to the designated election Judge
C or to the Bench, as the case may be, would be the actual date of filing of the ....
election petition, for the purposes of limitation.

Under Rule I 3, the Registrar of the High Court in addition to his other
powers has been clothed with the duty to receive certain memos of appeals,
plaints and application for review, revision or restoration.
D
Rule 24 of Chapter XXI-E lays down, that the Patna High Court Rules,
except insofar as they are inconsistent with the Rules contained in Chapter
XXI-E, shall apply mutatis mutandis to all election petitions but where no
specific provision is made in the High Court Rules, "the Judge may pass
orders as he may consider necessary."
E
Having examined the Rules, let us now take note of the fact situation
as existing in the present case. There is no doubt that in the instant case, the
appellant had made the security deposit and got his affidavit attested and had
twenty copies of the election petition duly attested as true copies under his
F own signatures ready with him. It is also not in dispute that he did go to the
Court of the learned designated election Judge at 4.05 P.M. on 16.5.1995, but,
found him not present in the open Court. The learned designated election
Judge in the impugned order recorded:

"There is no dispute between the parties that neither the Court before .....
which this Election Petition could be presented nor the Bench hearing
G Civil Applications and Motions was available on I 6.5. I 995 after 3.15
P.M. when an Obituary Reference was held to mourn the demise of
late Raj Ballav Prasad Sinha, an Advocate of this Court and the then
Hon 'ble the Chief Justice declared while concluding the Obituary
Speech·that the Court shall not sit for the rest of the day. It is in this
H background ~at it ha~ to be examined as to whether the Election
C.K. JHA v.MAHAVIR PRASAD [DR. A.S. ANAND. CJ.] 761
Petition could have been presented on account of non-availability of A
the Court and the Bench hearing Civil Applications and Motions to
the Bench Clerk."

and opined that the presentation of the election petition to the Bench Clerk
was not proper. The learned designated election Judge was of the opinion
that in view of Rule 24 of Chapter XXI-E read with Rule 13 of Chapter II, Part B
I of the High Court Rules, the election petitioner ought to have presented the
election petition to the Registrar. In the words of the learned designated
election Judge:

"Admittedly the Election Petition was presented at 4.05 P.M. on
16.5.1995 when neither the Hon 'ble Judge nor the Bench hearing Civil C
Applications and Motions was available and in such a situation, in
my opinion, the Election Petition ought to have been presented before
the Registrar of the Court as it is not in dispute that the Registrar was
not available at 4.05 P.M. on 16.5.1995"

In our opinion, reliance on Rule 24 of Chapter XXI~E read with Rule D
l 3(iii) of Chapter II, Part I of the High Court Rules is misplaced. The plain
phraseology of Rule 6 read with the proviso thereto makes it abundantly clear
that. formal presentation of an election petition can be made only to the
designated election Judge in the open Court and "if on any Court day the
Judge is not available on account, of temporary absence or otherwise, the E
petition may be presented before the Bench hearing civil applications and
motions. Thus, the High Court Rules do not prescribe any other mode of
presentation of an election petition except in the open Court either before
the designated election Judge or before the Bench hearing civil applications
and motions, where the designated election Judge is not available on account
of temporary absence or otherwise. The presentation of an election petition F
'· to the Registrar has not been prescribed as a mode of presentation of an
election petition by the Rules. An election petition is not included in any of
the clauses of Rule 13. The learned designated election Judge rightly found
that presentation of the election petition to the Bench Clerk on 16.5.1995 at
_ 4.05 P.M. was not a proper presentation under the Rules. In the absence of G
any provision in the Rules, presentation of an election petition to the Registrar
would not stand at any better footing than the presentation of the petition
to the Bench Clerk. An election petition being a purely statutory remedy,
nothing is to be read into the Rules - nothing is to be presumed-which is
not provided for in the Rules. Rule 24 (supra) cannot advance the case of the
returned candidate any further because of the absence of mention of an H
762 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A election petition in Rule 13 (supra).
In our opinion insofar as an election pet1t1on is concerned, proper r
presentation of an election petition in the Patna High Court can only be made
in the manner prescribed by Rule 6 of Chapter XXI-E. No other mode of
presentation of an election petition is envisaged under the Act or the Rules
B thereunder and, therefore, an election petition could, under no circumstances,
be presented to the Registrar to save the period of limitation. It is a well-
settled salutary principle that if a statute provides for a thing to be done in
a particular manner, then it has to be done in that manner and in no other
manner. [See with advantage : Nazir Ahmad v. King Emperor, 63 Indian
Appeals, 372=AIR (1936) PC 253; Rao Shiv Bahadur Singh & Anr. v. State
C of Vindhya Pradesh, [1954] SCR 1098 =AIR 1954 SC 322. State of Uttar
Pradesh v. Singhara Singh & Ors., AIR (1964) SC 358 = (1964) 1SCWR57]
An election petition under the Rules could only have been presented in the
open Court upto 16.5.1995 till 4.15 P.M. (working hours of the Court) in the
manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the
D case may be to save the period of limitation. That, however, was not done.
However, we cannot ignore that the situation in the present case was not of
the making of the appellant. Neither the designated election Judge before
whom the election petition could be formally presented in the open Court nor
the Bench hearing civil applications and motions was admittedly available•on
16.5.1995 after 3.15 P.M., after the Obituary Reference since admittedly the
E Chief Justice of the High Court had declared that "the Court shall not sit for
the rest of the day" after 3.15 P.M. Law does not expect a party to do the
impossible-impossiblium nulla obligatio est-as in the instant case, the
election petition could not be filed on 16.5.1995 during the Court hours, as
far all intent and purposes, the Court was closed on 16.5.1995 after 3.15 P.M.
F It is precisely to take care of a situation like this that Section l 0 of the
.,.,
General Clauses Act gets attracted. It reads :
"Computation of time. (I) Where, by any Central Act or Regulation
made after the commencement of this Act, any Act or proceeding is
directed or allowed to be done or taken in any Court or office on a
G certain day or within a prescribed period, then, if the Court or office
is closed on that day or the last day of the prescribed period, the
Act or proceeding shall be considered as done or taken in due time
if it is done or taken on the next day afterwards on which the Court
or office is open:

H Provided that nothing in this section shall apply to any act or
C.K. JHA v.MAHAVIR PRASAD [DR. A.S. ANAND. CJ.] 763

proceeding to which the Indian Limitation Act, 1877 (XV of 1887) A
applies."
(Emphasis ours)

Since, Indian Limitation Act does not apply to an election petitiun,
Section 10 of the General Clauses Act would apply. As already noticed, the
Patna High Court was, for all practical purposes, closed after 3.15 P.M. on B
16.5.1995. It was, therefore, not possible for the appellant to have presented
the election petition to the designated election Judge or in his absence to the
Bench hearing civil applications and motions in the open Court on that date,
which was the last day of the prescribed period of limitation. Thus, the
presentation of the election petition on the very next date i.e. 17.5.1995, in the
open Court, would be considered, by virtue of Section I 0 of the General C
Clauses Act, as presentation of the election petition within the prescribed
period of limitation. In the established facts and circumstances of the case,
the learned designated election Judge fell in error in denying to the appellant
the benefit of Section 10 of the General Clauses Act and dismissing the
election petition as barred by time. The order of the learned designated D
election Judge cannot, under the circumstances, be sustained. The election
petition must proceed to trial on merits.

Mr. P.S. Mish,ra, learned senior counsel for the returned candidate-
respondent no.I, when faced with this situation, submitted that the presentation
of the election petition in the open Court on I 7.5.1995 was also not a proper E
presentation because no certificate of the Stamp Reporter had admittedly
been obtained by the appellant as required by Rule 6 of Chapter XXI-E, before
presenting the election petition, in the open Court to the designated election
Judge and that the said defect was fatal. Mr. S.P. Singh, learned counsel
appearing for the appellant, countered the submission by asserting that the
appellant had done all that was required of him to do for filing the election F
petition and the order of the learned designated Judge dated 17.5.1995, takes
care of the objection raised by Mr. Mishra. This argument has not been
considered by the learned designated election Judge as presumably the
occasion to raise it did not arise but be that as it may, we would not like to
express any opinion on this question. It would be open to the returned G
candidate to raise all such pleas as are available to him in law, including the
plea above noticed, during the trial of the election petition before the learned
-~ designated election Judge. Equally, it would be open to the appellant to resist
all such pleas in accordance with law. All such pleas shalI be decided by the
learned designated election Judge, as and when raised, in accordance with
1~. H
764 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A Thus, for what we have said above the appeal succeeds and is allowed.
The impugned order dated 3. l 0.1997 is set aside. The election petition shall
be tried on merits by the learned designated election Judge expeditiously.
There shall be no order as to costs insofar as this appeal is concerned.

S.V.K Appeal allowed.