VISHWANATH PRASAD Vs. MALKHAN SINGH SHARMA

JUDGEMENT

(1.) This is a petition under Article 226 of the constitution against an order of the Election tribunal restoring an election petition which had been dismissed in default. The petitioner Vishwanath Pd. was declared elected on the 27th of February, 1962. Respondents Nos. 2, 3 and 4, who claimed to be the electors filed an election petition before the Election Commission. This election petition was referred for trial to respondent No. 1 as the ELECTION Tribunal. Some preliminary issues were framed in the case and the Tribunal fixed 2nd of November, 1962 for decision of issues Nos. 17 (1) and 19. On the 2nd November, 1962, it was found necessary to record some evidence on those preliminary issues also. Accordingly the statement of Kamiakant was started and his examination-in-chief was concluded on that date. Thereafter it was postponed for the 16th of November, 1962 for cross-examination. On the 16th of November, 1952, when the case was called out, at 10-30 a. m. Kamiakant whose cross-examination had to be earned on did not appear, nor did the other applicants or their counsel appear. The tribunal accordingly dismissed the election petition by an order in the following words: "Case called several times between 10-30 a.m. and 11 a. m. but nobody for respondent. The petitioners of their counsel are not present. The respondents or their counsel are also not present. I am sorry. I cannot wait to a larger period. I have already waited for half an hour. I have got to other work also the person is dismissed for default of the parties. Cost on parties". Later m the day, Kamiakant appeared and made an application that he had been delayed because he could not get a conveyance when he started from home and he had reached the tribunal's office at 11-20 a. m. The Tribunal recorded evidence on this application and came to the contusion that the contention of Kamla Kant war correct. It accordingly set aside the order dismissing the election petition and restored it to its original number, by an order dated the 1st December, 1962 which is being challenged by this writ petition.

(2.) The contention of the learned counsel for the petitioner here is that the Tribunal had no power to restore the election petition after once dismissing it. He has consequently prayed for a writ in the nature of certiorari quashing the order of the Tribunal dated the 1st of December, 1962 and also for a writ in the nature or prohibition to respondent No. 1 not to proceed further with the trial of the election petition No. 312 of 1962.

(3.) The contention of the learned counsel for the petitioner is that the order of dismissal for default is an order terminating the proceedings of the election petition are consequently the order of dismissal is an order under Section 98 (a) of the Representation of the People Act. His contention further is that the C. P. C. has been applied to election petitions only so far as it relates to the trial of the petition, and the Tribunal has not been conferred any of the other powers which a civil court has under the C. P. C. The power to restore is a power which has not been conferred on the Tribunal, consequently, the order restoring the petition once dismissed is an order without jurisdiction.