INDULAL KANAIYALAL YAGNIK Vs. PRASANDAS D PATWARI

JUDGEMENT

(1.) This appeal under Clause 15 of the Letters Patent is directed against a decision given by Mr. Justice Divan on a preliminary issue in Election Petition No. 1 of 1971 holding that the election petition filed by the first respondent is properly constituted and is not liable to be dismissed on account of non-joinder of one Vasudev Tripathi. The election petition was filed by the first respondent challenging the election of the appellant who was declared elected as a member of the House of the People from the Ahmedabad City Constituency. The election was challenged on various grounds which included inter alia allegations of corrupt practice within the meaning of sub-sec. (2) and (3) of sec. 123 of the Representation of the People Act 1961 The appellant contested the election petition and one of the contentions raised by him in an amended paragraph introduced in the written statement was that there were allegations of corrupt practice made in the petition against Vasudev Tripathi President of the City District Congress (Shashak) Committee and since he was one of the candidates validly nominated for the election though he withdrew his candidature on or before the date fixed for withdrawal of nomination papers he was a candidate within the meaning of sec. 79(b) and hence a necessary party under sec. 82(b) and in his absence the petition was by reason of sec. 86 liable to be dismissed in limine on account of noncompliance with sec. 82(b). This contention formed the subject matter of Issue No. (2) before Mr. Justice Divan to whom the petition was assigned for hearing by me in my capacity as the Chief Justice. Since this issue raised the question whether the petition was liable to be dismissed in limine under sec. 96 it was tried by Mr. Justice Divan as a preliminary issue. Mr. Justice Divan took the view for reasons given in a judgment delivered on 20th August 1971 that there were no allegations of corrupt practice against Vasudev Tripathi in the petition and it was therefore not necessary for the first respondent to have joined Vasudev Tripathi as a respondent and the non-joinder of Vasudev Tripathi did not render the petition liable to dismissal under sec. 86 and on this view he answered Issue No. 2 in the negative. The appellant thereupon preferred the present appeal in this Court under Clause 15 of the Letters Patent.

(2.) When the appeal reached hearing before us a preliminary objection was taken on behalf of the first and second respondents against the maintainability of the appeal. The first and second respondents urged that the decision of Mr. Justice Divan did not constitute judgment within the meaning of Clause 15 of the Letters Patent and no appeal was therefore maintainable against it. Now an appeal could lie against the decision of Mr. Justice Divan to a Division Bench of this Court only under Clause 15 of the Letters Patent and therefore in order to determine the maintainability of the appeal it is necessary to inquire whether the decision of Mr. Justice Divan could be said to be a judgment within the meaning of Clause 15 of the Letters Patent. What is the true meaning and connotation of the expression judgment in clause 15 of the Letters Patent has been the subject matter of judicial scrutiny in various decided cases and there has been a sharp cleavage of opinion amongst the different High Courts on this question. Some High Courts have given a narrow meaning to the word judgment while some others have given a liberal meaning according as they wished to restrict or expand the appellate jurisdiction as a matter of policy. This cleavage of opinion amongst the different High Courts was noticed by the Supreme Court in (Asrumati Devi v. Rupendra Deb A.I.R. 1953 S.C. 198 but the Supreme Court did not find it necessary in that case to pronounce on the validity of the rival interpretations as the order which was sought to be appealed against could not be regarded as judgment on any interpretation of that word. There is therefore no final and authoritative pronouncement of the Supreme Court on the true interpretation of what is a judgment within the meaning of Clause 15 of the Letters Patent and we are left to be governed by the interpretation which has been accepted by the Bombay High Court over the years. Now so far as the Bombay High Court is concerned the meaning of the word judgment which has always and invariably been accepted as a working definition since as far back as 1895 when the case of Sonebai v. Ahmedbhai 9 Bombay H. C. R. 398 was decided is that given by Sir Richard Couch C. J. in Justices of the Peace for Calcutta v. The Oriental Gas Company 8 Ben. L. R. 433 at 452. The learned Chief Justice gave the following meaning in a passage which has now become classical and which is always recalled when a question arises whether a decision given by a Single Judge of the High Court is a Judgment:-

(3.) We may at this stage refer to a Full Bench decision of the Madras High Court in Palaniappa v. Krishnamurthy A.I.R. 1968 Madras 1 where a Full Bench consisting of three Judges laid down four tests for the purpose of determining whether a decision of a Single Judge constitutes a judgment. These four tests were formulated by Ananthanarayanan C. J. in the following words and he claimed to derive them from the decision of the Supreme Court in Asrumati Devi's case:-