ZAHID HUSAIN Vs. M HAMID UDDIN

JUDGEMENT

(1.) THIS appeal has been presented to this Court by Shri Zahid Husain who was one of the defendants in the suit for a declaration that the order and judgment dated 25th May 1946 of the additional Commissioner, Bareilly Division, and all tne proceedings in connection with the election petition so far as they relate to the plaintiff were 'ultra vires' and null and void. Included in the reliefs prayed for in the suit was a prayer for an injunction to restrain the defendants from executing the decree awarded by the election tribunal. The plaintiff, Shri Hamid Uddin, is a pleader practising in Moradabad. In 1945 municipal elections were held in that city. For the two muslim seats in Ward No. 4 about a dozen candidates offered themselves for election. Of those candidates, the plaintiff and Ahmad Ullah were declared successful. Thereafter, the defeated candidates, namely, Shri Pir Bux and Shri Zahid Husain, presented a joint election petition against the plaintiff and Ahmad Ullah to the Commissioner of the division in which the municipal Board was situate. This election petition was transferred for disposal by the commissioner to the Additional Commissioner, Bareilly Division. The election of the plaintiff was set aside by the Additional Commissioner and he was debarred from seeking election for a period of five years. On an application for review of his order, the Additional Commissioner set aside the order disqualifying him for five years. In other respects the order was maintained. After the review application had been disposed of, the plaintiff filed the suit out of which this appeal has arisen. This suit, as has been stated before, was one for a declaration that the order and judgment of the Additional Commissioner, Bareilly Division and all the proceedings in connection with the election petition were null and void so far as the plaintiff was concerned.

(2.) THE learned munsif in a careful judgment held that he had no jurisdiction to entertain the suit as the allegation of the plaintiff that the Additional Commissioner had not followed a correct procedure had not been established by him. On an appeal to the lower appellate Court, the decree of the learned munsif was set aside. The learned Civil Judge allowed the appeal and decreed the suit by declaring that the decision of the Additional Commissioner referred to above and subsequently modified by the order passed in review on 18th September 1946 was not binding on Hamid Uddin, plaintiff. He further declared that he had not ceased to be a member of the municipal Board and that the defendant, Zahid Husain, was not a duly elected member of the municipal Board. He further held that, in view of his order, the plaintiff was not bound to pay the costs awarded by the election tribunal. Aggrieved by this order of the learned Civil Judge, the appellant has come up to this Court in appeal.

(3.) THE question for consideration is whether the order of the learned Civil Judge is one which can be upheld in this case. In the careful argument which has been addressed to this Court by Mr. Gyanendra Kumar on behalf of the respondents, three points have been urged. In the first place, mr. Kumar's argument is that the civil Court has jurisdiction under Section 9, Civil P. C. to adjudicate upon a matter decided by an election tribunal where the tribunal acts without jurisdiction. In the second place, his contention is that the special tribunal in this particular case had acted in contravention of the mandatory provisions of the Municipalities Act and the procedure prescribed thereunder. In the third place, Mr. Kumar's argument is that the order of the special tribunal is contrary to the principles of natural justice and, as such, liable to be set aside by this Court. I shall deal with these arguments 'seriatim'.