APHC010198972019 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] THURSDAY, THE 23rd DAY OF JULY 2026 PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO ELECTION PETITION NO: 4/2019 Between: 1. BONTHU RAJESWARA RAO, RETIRED E.N.S.S/O PRABHAKARA RAO AGED 66 YEARS, HINDU, YSRCP CANDIDATE FOR ELECTION OF A MEMBER OF 45 RAZOLE (SC) ASSEMBLY CONSIIIIENCY 2019, R/O D.NO. 5-85, BHUPATHIVARIPETA, MALIKIPURAM MANDAL, EAST GODAVARI DISTRICT. ...PETITIONER AND 1. THE ELECTION COMMISSION OF INDIA, REP BY ITS CHIEF ELECTION COMMISSIONER, NEW DELHI. 2. THE ANDHRA PRADESH STATE, THE CHIEF ELECTORAL OFFICER, REP BY ITS THE CHIEF ELECTORAL OFFICER, THE STATE OF ANDHRA PRADESH, AMARAVATI, GUNTUR DISTRICT. 3. THE DISTRICT ELECTION OFFICER AND DISTRICT COLLECTOR, EAST GODAVARI DISTRICT, KAKINAD. 4. THE RETURNING OFFICER, NO.45- RAZOLE (S.C) ASSEMBLY CONTITUENCY AND P.D.D.R.D.A., EAST GODAVARI DISTRICT, KAKINAD. 5. SRI RAPAKA VARA PRASADA RAO, S/O VENKATA RAO AGED ABOUT 56 YEARS, THE HON'BLE M.L.A., NO. 45-RAZOLE(SC) ASSEMBLY CORITITUENCY, R/O D. NO. 4-53, CHINTALAMORI VILLAGE, MALIKIPURAM MANDAL, EAST GODAVARI DISTRICT ...RESPONDENT(S): Counsel for the Petitioner: 2 1. BANDA VENKATA SUBRAMANYESWARA RAO Counsel for the Respondent(S): 1. AVINASH DESAI 2. GP FOR GENERAL ADMINISTRATION 3. 4. TURAGA SAI SURYA The Court made the following: ORDER: This Election Petition was listed for hearing today. There is no representation on behalf of the Petitioner. It is noted that even on 02.07.2026, there was no representation on behalf of the Petitioner. This Court had thereafter directed the presence of the Petitioner on 09.07.2026. However, the Petitioner failed to appear on the said date as well. Consequently, this Court was constrained to post the matter under the dismissal caption today. Even today, despite the matter being called, there is no representation on behalf of the Petitioner, nor has any application for adjournment or explanation for absence been placed before this Court. 2. The question that arises for consideration is whether, in the absence of any express provision in the governing enactment conferring power to dismiss an election petition for non-prosecution, this Court possesses the power to dismiss the present petition in default of appearance of the Petitioner. 3. It is well settled that the trial of an election petition is to be conducted, as nearly as may be, in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908 (for brevity ‘the C.P.C.,’). This 3 principle has been consistently affirmed by courts while examining the scope of the applicable election law provisions. 4. In Sunderlal Mannalal v. Nandramdas Dwarkadas1, the High Court of Madhya Pradesh at Paragraph Nos.7 and 9 held that although the statute does not itself confer an express power of dismissal, ‘the C.P.C.,’ made applicable to election proceedings, provides for dismissal of suits under Order IX. It was further observed that there exists an additional inherent power in every Tribunal or Court to hold that a proceeding is not being prosecuted and is therefore liable to be struck off. It was held that no express statutory provision was necessary to empower the Court to pass an order of dismissal in default, since dismissal for non-prosecution flows from the general procedural scheme applicable to the trial, read with the inherent powers of the Court. Sri Hidayatullah, C.J., in the same line of reasoning, observed that it is axiomatic that no court or tribunal is expected to continue a proceeding before it when the party who has moved it does not appear or care to remain present, and that the power to dismiss in such circumstances is an inherent power possessed by every tribunal. 5. In Duryodhan v. Sita Ram2, the High Court of Allahabad examined in detail whether Order IX of ‘the C.P.C.,’ (which deals with the appearance of parties and the consequences of non-appearance) and Order XVII (which deals with adjournments) apply to the trial of election petitions. It was held that these are matters of “procedure” and not merely “powers” in the narrow sense 1 1957 SCC OnLine MP 115 2 1968 SCC OnLine All 229 4 and are therefore attracted to the trial of an election petition by virtue of the section applying ‘the C.P.C.,’ to such trials. It was explained that the dismissal of a petition under Order IX Rule 8 for non-appearance of the petitioner is not a penalty but a procedural consequence, akin to the pronouncement of judgment against a defendant in default under Order VIII Rule 10. It was further held that where a Tribunal, despite the non-appearance of the petitioner, proceeds to examine the merits and record findings, such a decision remains in substance an ex-parte decision, and the proper remedy for the petitioner is to seek restoration under Order IX Rule 9, and not to treat the order as a decision on merits simply because the Tribunal chose to discuss the evidence on record. 6. In Rajendra Kumari Bajpai (Dr.) v. Ram Adhar Yadav3, the Hon’ble Supreme Court at paragraph Nos.6 & 13 held that the provision applying ‘the C.P.C.,’ to the trial of election petitions is of the widest amplitude, covering the entire procedure prescribed under ‘the C.P.C.,’ subject only to two exceptions: first, where the special election law itself makes express provision inconsistent with ‘the C.P.C.,’ and second, where a particular provision of ‘the C.P.C.,’ is excluded either expressly or by necessary implication. Subject to these two limited exceptions, the procedural provisions of ‘the C.P.C.,’ including those relating to consequences of default, apply in full to the trial of election petitions. 3 (1975) 2 SCC 447 5 7. In Virendra Kumar Saklecha v. Jagjiwan4, the Hon’ble Apex Court at paragraph No.10 reaffirmed that every election petition is to be tried by the Court as nearly as may be in accordance with the procedure applicable under ‘the C.P.C.,’ to the trial of suits, reinforcing the broad applicability of civil procedure, including provisions governing default and its consequences. 8. Most significantly, in P. Nalla Thampy Thera v. B.L. Shanker5, the Hon’ble Supreme Court at paragraph Nos.16, 17 & 19 directly addressed the contention that an election petition cannot be dismissed for default in the absence of an express statutory provision, and that default ought to be treated on par with withdrawal or abatement, requiring notice as contemplated under the provisions governing those situations. This contention was rejected. It was held that non-prosecution or abandonment is not the same as withdrawal: withdrawal is a positive and voluntary act attended by a prescribed procedure before the Court, whereas non-prosecution or abandonment may arise from negligence, indifference, inaction, or even incapacity, and does not require the petitioner to appear before the Court and obtain orders. It was held that since the statute is a self-contained code, nothing can be read into it that is not expressly provided, but by the same token, where the statute itself makes ‘the C.P.C.,’ applicable in the absence of a contrary provision, an election petition is liable to be dismissed under Order IX Rule 8 of ‘the C.P.C.,’ where the petitioner fails to appear and prosecute the petition. 4 (1972) 1 SCC 826 5 1984 Supp SCC 631 6 9. The Full Bench decision of the Punjab High Court in Jugal Kishore s/o. Lal Chand Vs. Doctor Baldev Parkash 6 , was approvingly referred to, wherein it was explained that a petitioner who is unable to continue with the petition has two courses open to him, either to formally withdraw the petition disclosing the circumstances, or to simply default in appearance, production of evidence, or prosecution generally, in which event the Court has no option but to dismiss the petition under Order IX of ‘the C.P.C.,’ these provisions being applicable to election petitions in the absence of any express contrary provision in the Act. 10. It was further clarified in P. Nalla Thampy Thera supra that the remedy of restoration under Order IX Rule 9 of ‘the C.P.C.,’ in the case of dismissal for default, is available only to the election petitioner at whose instance the petition was dismissed, and cannot be invoked by a respondent or any other person, since the object of restoration is to revive the petition to its former stage at the instance of the very party whose default led to the dismissal. 11. Applying the above settled principles to the facts of the present case, it is evident that the provisions of ‘the C.P.C.,’ including Order IX and Order XVII, apply to the trial of the present election petition as nearly as may be, in the absence of any express provision to the contrary in the governing statute. The Petitioner has failed to appear despite repeated opportunities, no representation on 02.07.2026, absence despite a specific direction for presence on 09.07.2026, and no representation even on the date on which 6 AIR 1968 P&H 152 7 the matter was posted under the dismissal caption today. Such repeated and continued non-appearance amounts to non-prosecution of the election petition, distinct from and not requiring the procedural safeguards attendant upon withdrawal or abatement. This Court possesses both the procedural power under Order IX Rule 8 of ‘the C.P.C.,’ (as made applicable to the trial of election petitions) and the inherent power recognised in the authorities cited above, to dismiss the petition for default of appearance of the Petitioner. 12. For the foregoing reasons, and in light of the consistent and settled position of law as enunciated in Sunderlal Mannalal supra, Duryodhan supra, Rajendra Kumari Bajpai (Dr.) supra, Virendra Kumar Saklecha supra, and P. Nalla Thampy Thera supra, this Court finds that in the absence of any representation on behalf of the Petitioner despite sufficient opportunity having been granted, the present election petition is liable to be, and is hereby, dismissed in default of appearance/prosecution under Order IX Rule 8 read with Order XVII of ‘the C.P.C.,’ as made applicable to the trial of the present petition. 13. It is clarified that this dismissal, being one for default, shall be subject to the Petitioner’s right, if any, to seek restoration under Order IX Rule 9 of ‘the C.P.C.,’ by making an appropriate application before this Court and showing sufficient cause for the non-appearance, in accordance with law. 14. Accordingly, the Election Petition is dismissed for non-prosecution. There shall be no order as to costs. 8 As a sequel, interlocutory applications, if any pending, shall stand closed. _________________________ Dr. Y. LAKSHMANA RAO, J Dt: 23.07.2026 VTS