S. VAITHILINGAM Vs. S. CHANDRASEKARAN

JUDGEMENT

(1.) THE civil revision petition in the first instance came before Kailasam, J. An election petition, under the Panchayats Act and the Election Rules framed thereunder was filed contesting the election. That petition was dismissed for default of appearance. An application under Order IX, Rule 9 of the Code of Civil Procedure was also dismissed, the Election Commissioner being of the view that the rule was not applicable to Election Court and he could not. therefore, restore the election petition. Two points were urged before Kailasam, J. One was that, in view of Rule 6 of the Election Rules, the Election Court had Power under Order IX, Rule 9 of the Code of Civil Procedure to set aside the order of dismissal for default: Koti Reddi v. : AIR1951Mad813 decided by the then learned Chief Justice and Somasundaram, J., held that Order IX did not enable the Election Court to restore the election petition. But, there, the disposal of the election petition was on merits. Nata -raian v. State of Madras., ILR 19601 Mad 449 which was decided by Ramaswami. J. and Ananthanarayanan. J., held, however. that, in order to render justice by Tribunals such as the Tribunal set UP under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, so long as they exercise judicial functions, the Tribunals should be held to possess inherent power to review their judgments, where due cause was shown. That was a case of an Estates Abolition Tribunal giving a decision in the first instance on the question whether a certain village was an inam estate or not within the ambit of the definition in Section 3(2)(d) of the Madras Estates Land Act. 1908. The ryots were not parties to that case. Subsequently, the same Tribunal rendered a different decision after the ryots were brought on record. The question was whether the Tribunal had power to review its own order. The Court opined that it had such power. This view was expressed not on the basis of any particular rule, but upon a consideration that a Tribunal exercising judicial functions should, in order to render justice, have inherent power to review its own judgment, where due cause was shown. Kailasam, J., found conflict of opinion in these two cases and regretted that : AIR1951Mad813 had not been brought to the notice of the Court in, ILR (1960) Mad 449. The learned Judge was also of opinion that after Harish Chandra v. : [1957]1SCR370 no longer could : AIR1951Mad813 be the law. On that view he referred the question to a Full Bench, to wit, whether the Election Tribunal under the Panchayats Act had power to restore the election petition which was dismissed for default of appearance. The second point that was raised before the learned Judge was whether the application to set aside the order of the Election Tribunal declining to restore the election petition could be brought for attack under Article 227 of the Constitution. The learned Judge held that point in favour of the petitioner and it no longer arises before us.

(2.) WE may at once state that, in our opinion,, ILR (1960) Mad 449 was not right in its view that every Tribunal discharging judicial functions should, in order to enable it to do justice, have inherent power to review its own judgment where proper cause was shown. The Rules framed under Madras Act 26 of 1948 did not confer any such power. But the learned Judges spelt out inherent power from the nature of the functions discharged by the Estates Abolition Tribunal. We must observe that, where, a statute creates a Tribunal and vests powers in it prescribing the procedure for the exercise thereof, it is confined to such powers and procedure as had been conferred upon it. This is because the Tribunal is but a creature of the statute which, having brought it into existence has also limited its powers. If by necessary intendment of a particular provision made in that behalf the Court is of the view that such power is available, that is a different matter. But that was not what was held in, ILR (1960) Mad 449. The Court was prepared to say that every Tribunal should have inherent power to set aside its own order where proper cause was shown, provided the function discharged by it was judicial. We are unable to concur with this view. We may also point out that, ILR (1960) Mad 449 was not a case of dismissal of a petition for default. It was concerned, as we said, with a decision which the Tribunal had rendered first and which it had sought to review on a subsequent occasion. : AIR1951Mad813 does not also appear to be apposite in deciding the instant case, because that was also a case of an election petition decided on merits. It is evident from the judgment therein that, though the party had not appeared, the election petition was proceeded with, evidence was taken and a conclusion was arrived at, on the basis of which the election petition was disposed of. The Court pointed out that having regard to Rule 6(1) and the enumeration of specific powers under the Second limb of that Rule, the provisions of the Code of Civil Procedure, more particularly Order IX, Rule 9 relating to restoration of a suit dismissed for default where sufficient cause was shown, would not be applicable. In other words, the learned Judges' view was that Rule 6(1) should be confined to the powers under the Code of Civil Procedure which pertain to trial and disposal of a suit, and that, once the election petition had been disposed of, thereafter the powers under the Code of Civil Procedure would not be available to the Election Tribunal. But the Court had no occasion to consider whether the Election Tribunal had at all power to dismiss an election petition for default of appearance without going into merits after taking evidence. Our attention has been invited to a judgment in W. P. No. 595 of 1960 (Mad) which was rendered by one of us and which was a case of dismissal for default of appearance in an election petition. An application to restore the petition was dismissed on the ground that the Election Commissioner had no power and this order was sustained. In doing so, the Court followed : AIR1951Mad813 . When Mallappa Basappa v. : [1959]1SCR611 was relied on, the Court examined the scheme of the Election Rules under the Panchayats Act and ruled that it was different from that of Representation of the People Act. In this case too, the Court had no occasion to consider whether at all the Election Court had the power to dismiss an election petition for default of appearance without going into merits of the petition.

(3.) THE question of power to dismiss for default without going into merits will have to be examined in the light of the Rules read as a whole. The Rules for decision of election disputes relating to Panchayats say that no election held under the Panchayats Act can be called in question except by an election petition presented in accordance with those Rules to an Election Court. A Procedure is laid down as to how an election petition should be presented, including the period of limitation for filing and for service of summons. Rule 6, with which we are particularly concerned, is as follows; -