ISHWARBHAI DESAIBHAI PATEL Vs. VADILAL LALLUBHAI MEHTA

JUDGEMENT

(1.) The respondents Nos. 1 and 2 contested the last General Election held on 15-267 for the Daserei Legislative Assembly Constituency No. 68 of the Gujarat State wherein the respondent No. 1 was declared duly elected on 22nd February 1967 by the Returning Officer. The respondent No. 3 had filed the nomination form but had withdrawn from the contest. The petitioner was a voter at serial No. 68 in the Election Roll of the Daserei Assembly Constituency and he has filed a petition under Section 100 of the Representation of the People Act, hereinafter referred to as 'the Act,' for setting aside the election of respondent No. 1. The respondent resisted the petition as per the contentions raised in his written statement. The respondent No. 2 Dr. Chhota Bhai Jivabhai Patel has also filled his written statement and by that the supports the petitioner's claim in the petition, inter alia saying that respondent No. 1's election be declared void for the grounds mentioned in the petition. He has appeared through an advocate Mr. J. N. Nanavati as per the Vakalatnama duly signed by him and accepted by Mr. Nanavaty. From that Vakalatnama it appears that Mr. Nanavaty is authorised to act, appear and plead for and on his behalf in the above petition. This election petition was set down before this Court for settlement of issues of Monday, the 24th July 1967.

(2.) On 21st July 1967, Election Application No. 52 of 1967 in the main Election Petition No. 18 of 1967 was presented by the petitioner's Advocates M/s. S. N. Zaveri and S. B. Majumdar in the office of this Court. Since the main Election Petition was set down for settlement of issues on 24-7-1967, this application was circulated and consequently it came up for hearing before this Court. This application had to be taken up first before settlement of issues as it involved the amendment of pleadings in the original petition. The prayer made in para 3(A) of the application runs thus:-- "This application be granted and the petitioner be allowed to amend the petition and to amend and amplify the particulars as set out in the Schedule annexed to this application, and be pleased to treat amendments as per the contents of the Schedule as part of the main election petition." This application was considered para-wise and after hearing the learned advocate appearing for opponent No. 1, an oral order was dictated by me to the Stenographer whereby except in respect of para 7(i) of the application wherein certain words were directed to be deleted, the rest of the amendments sought for in the application were allowed, and the respondent was directed to file his written statement within ten days in respect of the amended petition. From the order it appears that the appearance of the learned advocates appearing for respondents Nos. 2 and 3 have been noted. Before this order could be initialled as is usually done in this High Court, on the same day before the Court rose, a note was filed by the learned advocates appearing for the petitioner. That note runs thus:- "The above-mentioned amendment application was fixed for hearing today before Your Lordships and in the said matter oral dictation has been given, but so far, the order has not been signed by Your Lordship. After the hearing, we have come to know that there is some formal defect in the proposed amendment sought in the above-mentioned application. It is, therefore, requested that the above-mentioned application for amendment be allowed to be withdrawn." Simultaneously, on the same day the respondent No. 1 has filed the written statement to the amended petition and has also applied for reasons for direction stating inter alia that since the amended petition contains allegations of corrupt practice against one Shri Chhotabhai Karanbhai Patel who was the candidate within the definition of section 79(b) of the Act at the election and since he has not been joined as a party-respondent as required under section 22(b) of the Act, the petition is liable to be dismissed under section 86(1) of the said Act. All those matters were placed before me before I rose for the day, and they were set down for hearing on the next morning.

(3.) On 28-7-67 when the matters were called out, the respondent No. 2 Dr. Chhotabhai Jivabhai Patel has appeared in reply to the summons for direction inter alia contending that he was not served with a copy of the application for amendment of the petition made by the petitioner and that he did not know that the same was fixed for hearing on 24th July 1967. Then he has stated that the election petition was fixed for settlement of issues only and that he had instructed his advocate Mr. Nanavaty only to watch the proceedings at the time of settlement of issues if he was available and not busy in any other Court. Then he has stated that the opponent's advocate when came to the Court found that the order was being dictated and the believed that the order regarding settlement of issues was being passed in the matter and he did not care to know as to what matter was being really disposed of by the Court. He has, therefore, stated that the order was passed without hearing him and was, therefore, null and void. The contents of his statement were affirmed to be true to his information and belief. Before the summons for directions could be heard, the note placed before the Court by the learned advocates for the petitioners is required to be heard and disposed of.