Holding

Simultaneous deposit of security is not required at the time of filing a substitution application; the court may direct security in the substitution order and the order is valid if the security is subsequently deposited.

Summary

Bhaurao Ragoji Patil filed an election petition challenging Manohar Joshi's election, but died before the case proceeded, causing the petition to abate under Section 112(1) of the Representation of the People Act, 1951. Four persons, including the respondents, applied for substitution under Section 112(3) within the prescribed 14‑day period. The Bombay High Court allowed the respondents' substitution applications and directed them to deposit a security of Rs 2,000 each, which they complied with the next day. Joshi appealed, arguing that security for costs under Section 117 should be required before any substitution order and that the High Court erred in allowing substitution without prior deposit. The Supreme Court held that simultaneous deposit of security at the time of filing a substitution application is not required; the court may decide whether security is needed and, if so, specify the amount in the substitution order. Since the respondents promptly deposited the directed security, the order was upheld and the appeal dismissed.

Issues considered

Whether a security deposit for costs under Section 117 of the Representation of the People Act, 1951 must be made at the time of filing an application for substitution under Section 112(3).
Whether the High Court should first direct the deposit of security before ordering substitution of a deceased petitioner.
Whether an order of substitution must state the amount of security required or the reason for no security.

Legislation cited

Representation of the People Act, 1951s. 112, s. 117

Subjects

election petitionsubstitutionsecurity for costsRepresentation of the People ActSection 112Section 117procedural law

Judgment

MANOHAR JOSHI A
v.
BHAURAO RAGOJI PATIL TIIROUGH
LEGAL REPRESENTATIVES

JANUARY 14,. 1992
B
[S. RANGANATHAN, V. RAMASWAMI AND N. D. OJHA, JJ.J

Representation of the People Act, 1951: Sections 112 and 117-
Election Petition-Application for substitution-Presentation of-Deposit of
security amount/or cos1-When to be made-Order of substitution-Court to C
specify amount of deposit or give reasons if deposit is not required.

One 'B' filed an Election Petition challenging the appellant's
election as M.L.A. On the death of 'B' the"Election Petition abated, and
the same was published in accordance with Section 112 (2) of the
Representation of the People Act, 1951. Upon the said publication, four D
applications including those of the Respondents were rated before the
High Court for substitution in place of the deceased petitioner. The High
Court allowed the two applications by the Respondents and dismissed
the other two applications.

Tb appellant-M.L.A. bas preferred the present appeal by special E
leave, against the High Court's order substituting the Respondents in the
Election Petition.

On behalf of the appellant, it was contended that the High Court
was wrong in holding that the question of providing security deposit for F
costs would arise only after an order for substitution is made; and that
the respondent could have been directed to be substituted only after they
had actually deposi!ed the amount or security.

On behalf or the respondents, it was contended that when four
applications bad been made for substitution an order had first to be G
passed indicating the names of the applicants who were to be substituted
and only thereafter the security amount could be deposited.

Dismissing the appeal, this Court,

HELD : 1. The High Court was right in holding that simultane- H

31
1C--

32 SUPREME COURT REPORTS [1992] 1 S. C. R.

A ous deposit of any amount as security for costs at the time of presenta- r
tion of the applications for substitution was not necessary. On a plain
reading of Section 117 of the Representation of the People Act, 1951 the
said requirement is applicable at the time of presenting an Election
Petition. An application for substitution made under sub-section (3) of
Section 112 consequent upon the death of the election petitioner cannot
B be put at par with the presentation of an election petition. [34FG] ~
~
2. The right to apply to be substituted accrues on fulfilment of two
conditions, viz. that the person making the application should be one
who might himself have been a petitioner and that the application is '
made within fourteen days of the publication made under sub-section (2) x I-
c of Section 112. He, however, becomes entitled to be substituted only upon
compliance with the conditions, if any, as to security. The applications
made by the respondents could not, therefore, be dismissed on the
ground that no amount was deposited as security for costs at the ~ime of
presenting the said applications. [35A-C]

D 3. While considering an application for substitution court has to
consider as to whether any deposit is to be made or not as security for
costs and if it is to be made what is the amount which has to be
deposited. If the Court comes to the conclusion on the facts of a given
4
case that no amount is to be deposited as security for costs an order of
subscription simpliciter would be sufficient. The fact that no deposit as
E security '·
. is. to be made with reason therefor would, however; have to be
simultaneously stated in the order of substitution. On the other hand, if
the Court comes to the conclusion that some amount has to be deposited
by the applicants who are proposed to be substituted, as security for I;._
costs, the amount should be simultaneously specified in the order of
substitution and the entitlement of such applicant to be substituted
F. should be made subject to compliance with the condition of depositing A-
the amount so.specified. [3SE-GJ
-{

4. In the instant case, the respondents were directed to deposit the
security amount, in the same order permitting their substitution, and it
G was deposited the very next day. In view of this circumstance, even
though the order appealed against may not be said to be in strict
compliance with the requirements of sub-section (3) of Section 112 of the
Act, the order is not interfered with. [3SH; 36A, BJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 112 (NCE)
.H of 1992.
MANOHAR JOSHI v. B.R. PATIL [ OJHA, J. ] 33

From the Judgment and Order dated 5.8.1991 of the Bombay High A

-
'( Court in Application Nos. 1, 2, 3 and 4 of 1991 in Election Petition No. 24
of 1990.

P.P. Rao, P.H. Parekh and Chetna Anand for the Appellant

Gopal Subramanium and M.N. Shroff for the Respondents. B
The Judgement of the Court was delivered by

OJHA, J. Special leave is granted.

This appeal has been preferred against the order dated 5th August, 1991 c
of the Bombay High Court on miscellaneous applications made in Election
Petition No. 24 of 1990. The appellant was elected to the Maharashtra
Legislative Assembly from the Sadar Constituency. One Bhaurao Ragoji
Patil filed Election Petition No. 24 of 1990 challenging the said election. He,
however, died on 4th June 1991. He being the sole pe.litioner the election
petition consequent upon his death abated under sub-section (1) of Section D
112 of the Representation of the People Act, 1951 (hereinafter referred to as
the Act). This fact was published as contemplated by sub-section (2) of
Section 112 of the Act. Upon the said publication four applications including
one each by the respondents were made under sub-section (3) of Section 112
of the Act for being substituted in place of the deceased petitioner. The
applications made by the respondents were allowed by the order appealed E
against whereas the other two applications were dismi8sed with certain
observations.

The appellant who was the successful candidate at the election has in
the present appeal challenged the order substituting the respondents in the
F
election petition in place of the deceased petitioner. In support of this appeal
learned counsel for the appellant has urged two grounds. Firstly, it has been
'f submitted that a direction requiring the respondents to furnish security as
'r contemplated by sub-section (3) of Section 112 as a condition precedent
should have been given before ordering them to be substituted and the High
Court committed an error in holding that the question of providing security G
would arise only after an order for substitution is made. The second submis-
sion made by learned counsel for the appellant is that even though the
respondents have been required to forthwith deposit in Court towards security
a sum of Rs. 2,000 each, that part of the order has been made only after first
directing them to be substituted in place of the original petitioner. According
to learned counsel the respondents could have been directed to be substituted H
34 SUPREME COURT REPORTS [1992] 1 S. C.R.

A only after they had actually deposited the amount of security. The .~er
appealed against having been passed according to learned counsel in bpch
of the mandatory requirement of sub-section (3) of Section 112 of the Act is
liable to be set aside.

For t'1e respondents on the other hand, it has been urged by their
B learned counsel that when four applications had been made for substitution
an order had first to be passed indicating the names of the applicants who
were to be substituted and it is only such applicants who were to be
substituted could thereafter be required to deposit any amount as security.

In order to appreciate the respective submissions made by learned
c counsel for the parties, sub-section (3) of Section 112 of the Act may be
reproduced. It reads as hereunder :

"112 (1).

(2)
D
(3) Any person who blight himself have been a petitioner
may, within fourteen days of· such publication, apply to be
substituted as petitioner and upon compliance with the conditions,
ifany. as to the security. shall be entitled to be so substituted and
to continue the proceedings upon such terms as the High Court
E may deem fit" (Emphasis supplied)

Before the High Court it was urged on behalf of the appellant that since
the respondents had not deposited any amount as security for the costs of the
petition as contemplated by Section 117 of the Act their applications were
liable to dismissed. It is while repelling this submission that the High Court
F made the aforesaid observation namely, that the question of providing
security would arise only after an order for substitution is made. The High
Court, in our opiniop, does not appear to have committed any error in holding
that simultaneous deposit of any amount as security for cos~ at the time of
presentation of the applications for substitution was not necessary. On a plain
G reading of lection 117 he said requirement•is applicable at "the time of
presenting an election petition". An application for substitution made under
sub-section (3) of Section 112 consequent upon the death of the election
petitioner cannot be put at par to the presentation of an election petition. It
is to be noticed in this behalf that sub-section (3) of Section 112 does not
contain the requirement of depositing any amount of security for costs at the
H time of presenting the substitution application. It permits a person who might
MANOHAR JOSHI v. B.R. PATIL [OJHA, J.] 3S
himself have been a petitioner to apply to be substituted as petitioner within A
fourteen days of the publication made under sub-section (2). The applicant,
however, becomes entitled to be so substituted only upon compliance with
the conditions, if any, as to security. In other words, the right to apply to be
substituted accrues on fulfilment of two conditions : (i) that the person
making the application should be one who might himself have been a
petitioner and (ii) that the application is made within fourteen days of the B
publication made under sub-section (2) of Section 112. He, however, be-
comes entitled to be substituted only upon compliance with the conditions, if
any, as to security. The applications made by the respondents could not,
therefore, be dismissed on the ground that no amount was deposited as
security for costs at the time of presenting the said applications. It is true that
the observations referred to above were made by the High Court while C
repelling the submission made on behalf of the appellant on the basis of
Section 117 but to us it appears that the observation as made is rather too
wide. Sub-section (3) of Section 112, in our opinion, contemplates simulta-
neous application of mind by the High Court on the question as to whether
the applicant should be substituted or not and also on the question as to what
amount of security for costs, if any, is to be deposited by the person who is D
to be ordered to be substituted. The observation that the question of providing
security will arise only after an order for substitution is made does-not
obviously conform with the requirement of sub-section (3) of Section 112 of
the Act. Unlike Section 117 of the Act sub-section (3) of Section 112 uses
the words "if any" between the words "upon compliance with the conditions"
and "as to security". While considering, therefore, an application for substi- E
tution the ':ourt has also to consider as to whether any deposit is to be made
or not as security for costs and if it is to be made what is the amount which
has to be deposited. If the Court comes to the conclusion on the facts of a
given case that no amount is to be deposited as security for costs an order of
substitution simpliciter would be sufficient. The fact that no deposit as F
security is to be made with reason therefor would, however, have to be
simultaneously stated in the order of substitution. On the other hand, if the
Court comes to the conclusion that some amount has to be deposited by the
applicants who are proposed to be substituted, as security for costs the
amount should be simultaneously specified in the order of substitution and
the entitlement of such applicant to be substituted should be made subject to · G
compliance with the condition of depositing the amount so specified. This, in
our opinion, is the true import of sub-section (3) of Section 112 of the Act.

Coming to the facts of the instant case it would be seen as noticed
earlier that the respondents were directed by the same order which permitted
their substitution "to forthwith deposit in Coun towards securil}' a sum of Rs. H
36 .SUPREME COURT REPORTS [1992) 1 s. c. R.

A 2,000 each." We have been informed by learned counsel for the respondents
that this condition was complied with by the respondents on the very next day
of the passing of the order appealed against. In view of this circumstance, we
are of the opinion that even though the order appealed against may not be
said to be in strict compliance with the requirements of sub-section (3) of
Section 112 of the Act it is not a fit case for interference under Article 136
B of the Constitution.

In view of the foregoing discussion, this appeal fails and is accordingly
dismissed. In the circumstances of the case, however, the parties shall bear
their own costs.

G.N. Appeal dismissed.