- 1 - NC: 2025:KHC:13118 EP No. 3 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV ELECTION PETITION NO. 3 OF 2018 BETWEEN: 1. SRI D A GOPALA S/O LATE ANNAYAPPA AGED ABOUT 63 YEARS R/O NO.43, GANGOTRI NEAR SHENIMAHATMA TEMPLE DEVASANDRA, K R PURAM BANGALORE-36 … PETITIONER (BY SRI. PRUTHVI WODEYAR., ADVOCATE) AND: 1. SRI B A BASAVARAJ S/O ANJANEPPA AGED ABOUT 54 YEARS R/O NO.93/43, CHANDRAIAH LAYOUT REEPCO SHANTINIKETHAN ROAD MEDAHALLI BANGALORE-560 049 … RESPONDENT (BY SRI. B.V. ACHARYA, SENIOR COUNSEL FOR SRI PRAKASH T HEBBAR., ADVOCATE FOR R1) THIS ELECTION PETITION IS FILED UNDER SECTION 80 AND 91 OF THE REPRESENTATION OF PEOPLE ACT, 1951, PRAYING TO CALL FOR RECORDS AND SET ASIDE THE ELECTION OF THE FIRST RESPONDENT TO THE 15TH Digitally signed by PRAKASH N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13118 EP No. 3 of 2018 KARNATAKA LEGISLATIVE ASSEMBLY FROM 151 - K.R. PURA ASSEMBLY CONSTITUENCY AND ETC. THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S SUNIL DUTT YADAV ORAL ORDER Learned Counsel for petitioner files a memo and submits that he has no instructions to proceed in the matter. Memo is filed enclosing the communication issued to the respondent. The communication is to the effect that he requires further instructions in the matter and the petitioner was to meet the counsel for providing information. The said communication is served as is evidenced from the postal tracking report. 2. The Petitioner was called out and he remains absent. 3. On 07.03.2025, this court had passed an order as follows: - 3 - NC: 2025:KHC:13118 EP No. 3 of 2018 Learned counsel for respondent No.1 files a memo along with the order of the Apex Court in SLP (C) No.4342-44/2019 and submits that the said Special Leave Petition has been withdrawn. In light of the same, present proceedings are resumed. Learned counsel for the petitioner submits that the proceedings may not survive for consideration. For the say of the petitioner, list this matter on 17.03.2025. 4. It is noticed that the petitioner does not appear to be interested in continuing to prosecute the present proceedings. 5. As noticed above, learned counsel for petitioner has intimated the petitioner regarding lack of instructions. Petitioner is not present, nor has made out any instructions to the counsel to continue proceeding with the matter. Learned counsel for petitioner submits that he has no instructions to continue prosecuting the proceedings. Clearly, the petitioner is not diligent in prosecuting the proceedings. - 4 - NC: 2025:KHC:13118 EP No. 3 of 2018 6. The question is as to whether election petition could be dismissed for default. 7. The question is no more res integra in light of the order of the Apex Court in the case of Dr.P.Nalla Thampy Thera v. B.L.Shanker and Others reported in AIR 1984 SC 135. The Apex Court has categorically held that election petition is liable to be dismissed for default in situation covered by Order 9. The observation of the Apex Court in Para 16 reads as follows: "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 Ss.110 or 116 of the Act should be made applicable. We see no justification to accept such contention. Non-prosecution or abandonment is certainly not withdrawal. - 5 - NC: 2025:KHC:13118 EP No. 3 of 2018 Withdrawal is a positive and voluntary act while non-prosecution or abandonment may not necessarily be act of volition it may spring from negligence, indifference, inaction or even in capacity 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. - 6 - NC: 2025:KHC:13118 EP No. 3 of 2018 8. Accordingly, in light of the fact that provisions of Civil Procedure Code would apply and in light of absence of the petitioner in terms of Order 9 Rule 8 CPC, the petition is liable to be dismissed for non-prosecution. 9. Accordingly, the petition stands dismissed. 10. It is noticed from the order sheet that some of the documents are kept in the safe custody of Registrar (Judicial). The said documents may be kept in the safe custody of Registrar (Judicial) for a period of 90 days from today, after which applicable procedure may be followed. Sd/- (S SUNIL DUTT YADAV) JUDGE NP