BIJAYANANDA PATNAIK Vs. SATRUGHNA SAHU

JUDGEMENT

(1.) This is an appeal by special leave against the order of the Orissa High Court. The appellant stood for election to the Orissa Legislative Assembly from the Choudwar constituency, in the district of Cuttack. He was opposed by three persons who are the respondents before us. The appellant was elected. Then followed an election petition by respondent No.1, Satrughna Sahu. To this election petition, the appellant as well as the other two candidates who had stood for election were made opposite parties. When the election petition came to be heard objection was raised before the tribunal that the petition was not in accordance with S. 82 of the Representation of the People Act, No.43 of 1951, (hereinafter referred to as the Act), and that this defect was fatal to the petition in view of S. 90(3) thereof. This objection was heard as a preliminary objection and the tribunal came to the conclusion that as the petition was not framed in accordance with S.82, the defect was fatal. It, therefore dismissed the petition.

(2.) Satrughna Sahu then appealed to the High Court under S. 116A of the Act. This appeal was heard on March 5 and 6,1962 and apparently was fixed for judgment on March 8, 1962. On March 7, an application was filed by Satrughna Sahu for withdrawal of the appeal, as he did not want to prosecute it further. It was put up for consideration on March 8, 1962, and the judgment in the main appeal, which had already keen prepared for delivery was therefore withheld pending the disposal of the withdrawal application. The contention on behalf of Satrughna Sahu was that he was entitled as of right to withdraw the appeal. He was supported in this by the appellant but the other two respondents objected to the withdrawal and contended that Satrughna Sahu had no absolute right to withdraw the appeal on the analogy of O. XXIII, R. 1(1) of the Code of Civil Procedure, and that principles analogous to Ss. 109 and 110 of the Act applied to an application for withdrawal of an appeal. The High Court held that it must be guided by the principles contained in Ss. 109 and 110 of the Act when considering an application for withdrawal of the appeal before it. It therefore went on to consider whether Satrughna Sahu sent on to consider whether Satrughna Sahu should be given permission to withdraw the appeal and decided not give him such permission. Finally it ordered that though the prayer of the appellant for withdrawal was rejected, the application for withdrawal with all the counter-affidavits filed in opposition be kept alive for the disposal of the question of withdrawal of the election petition by the tribunal. This order was passed on March 28, 1962, and the High Court then proceeded to deliver judgment in the main appeal on the same day and order of the election tribunal dismissing, the election petition was set aside, and the petition was remanded for disposal according to law.

(3.) The appellant then made two applications for certificates to appeal to this Court, which were dismissed. Thereupon he filed two petitions for special leave before this Court, which were allowed, and two appeals resulted therefrom one against the judgment of the High Court in the matter of withdrawal application and the other in the matter of the main appeal. The present appeal is with respect to the withdrawal application, and the contention of the appellant before us is twofold. In the first place it is urged that Satrughna Sahu who was the appellant in the appeal before the High Court had an absolute right to withdraw the appeal on the analogy of the provision contained in Order XXIII, Rule 1 (1), and the High Court was in error in holding that principles analogous to Ss. 109 and 110 of the Act applied to the withdrawal of an appeal filed under S. 116A of the Act, and therefore after the withdrawal application had been filed there was no option to the High Court but to permit the withdrawal. In the second place, it is urged that even if the view taken by the High Court was correct it was the duty of the High Court to consider all the matters specified in Ss. 109 and 110 of the Act and decide for itself whether the application of withdrawal should be granted and it was not open to the High Court to convert the application for withdrawal of the appeal as if it was an application for withdrawal of the election petition and refer it to the election tribunal for disposal.