Mr. K M . Thimmarayappa v. Mr. H.V. Venkatesh

NC:(2025:KHC:39072( EP(No.(06(of(2023( ( , ,,HC-KAR( ( ( IN(THE(HIGH(COURT(OF(KARNATAKA(AT(BENGALURU(

THDATED(THIS(THE(25 (DAY(OF(SEPTEMBER,(2025(

BEFORE( THE(HON'BLE(MR.(JUSTICE(H.T.(NARENDRA(PRASAD( ELECTION(PETITION(NO.(06(OF(2023(( BETWEEN:(( ,

MR.,K,M,.,THIMMARAYAPPA, S/O,LATE,KARIYAPPA, AGED,ABOUT,65,YEARS,

RESIDING,AT,KODETHIMMANAHALLI, NIDAGAL,HOBLI,,PAVAGADA,TALUK, TUMAKURU-572,116,

…PETITIONER, (BY,SRI,K,M,THIMMARAYAPPA,,PETITIONER,[ABSENT]),

AND:( , MR.,H.V.,VENKATESH,

S/O,MR.VENKATARAMANAPPA, AGED,ABOUT,46,YEARS, R/AT,HANUMANTHANAHALLI,VILLAGE,

MARIDASANAHALLI,POST, Digitallytisignedtiby Y.N.HOSAKOTE,HOBLI,HEMALATHA0A PAVAGADA,TALUK,,TUMAKURU,-572,141,Location:0HIGH

COURTOF …RESPONDENT, KARNATAKA (BY,SMT.,LEELA,P,DEVADIGA.,,ADVOCATE), , THIS,ELECTION,PETITION,IS,FILED,UNDER,SECTION,81, OF,THE,REPRESENTATION,OF,THE,PEOPLE,ACT,1951,,PRAYING, TO, SET, ASIDE, THE, ELECTION, OF, THE, RESPONDENT, TO, THE, TH16 , KARNATAKA, LEGISLATIVE, ASSEMBLY, FROM, NO.137, PAVAGADA, ASSEMBLY, CONSTITUENCY, (SC), KARNATAKA, LEGISLATIVE,ASSEMBLY,AND,ETC., , THIS, PETITION,, COMING, ON, FOR, ORDERS,, THIS, DAY,, ORDER,WAS,MADE,THEREIN,AS,UNDER:,

CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD

ORAL ORDER The learned counsel for the petitioner has filed a memo dated 15.04.2025, seeking permission to retire from the case on the ground that the petitioner had taken back all the case papers pertaining to the subject election petition, along with a no-objection vakalathnama, in the month of February 2025, on the pretext of engaging the services of another counsel. Thereafter, the petitioner has neither engaged any other counsel nor issued any instructions to the learned counsel to proceed with the matter. Consequently, the learned counsel sent a notice to the petitioner on 05.04.2025, intimating him of his intention to retire from the case. Along with the memo, the learned counsel has enclosed the notice dated

05.04.2025 and the postal acknowledgment evidencing service of the said notice.

¶2Today, when the matter was called, neither the petitioner was present nor had he engaged any other

counsel to prosecute the case. It appears that the petitioner is not interested in pursuing the present proceedings.

¶3The question that now arises for consideration is whether the election petition can be dismissed for default.

¶4This question is no longer res integra in light of the decision of the Hon'ble Apex Court in the case of Dr. P. Nalla Thampy Thera vs. B.L. Shankar and Others, reported in 1984 Supp. SCC 631. The Apex Court has categorically held that an election petition is liable to be dismissed for default in a situation covered by Order IX of the Code of Civil Procedure (CPC). The relevant paragraph is extracted below: "16. There is no support in the statute for the contention of the appellant that an election petition cannot be dismissed for default. The appellant contended that default of appearance or non-prosecution of the election petition must be treated as on par with withdrawal or abatement and, therefore, though there is no clear provision in the

Act, the same principle should govern and the obligation to notify as provided in Section 110 or 116 of the Act should be made applicable. We see no justification to accept such a contention. Non-prosecution or abandonment is certainly not withdrawal. Withdrawal is a positive and voluntary act while non-prosecution or abandonment may not necessarily be an act of volition. It may spring from negligence, indifference, inaction or even incapacity or inability to prosecute. In the case of withdrawal steps are envisaged to be taken before the Court in accordance with the prescribed procedure. In the case of non-prosecution or abandonment, the election petitioner does not appear before the Court and obtain any orders. We have already indicated that the Act is a self-contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy. In fact, the terms of Section 87 of the Act clearly prescribe that if there be no provision in the Act to the contrary, the provisions of the Code would apply and that would include Order 9, Rule 8 of the Code, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the election petition."

¶5In the light of the fact that the provision of the Civil Procedure Code would apply and in the light of the absence of the petitioner, in terms of Order IX Rule 9 of CPC, the petition is liable to be dismissed for non-prosecution.

Accordingly, the petition stands dismissed.

Sd/- (H.T. NARENDRA PRASAD) JUDGE

CM LIST NO.: 1 SL NO.: 145