MADAN LAL Vs. ZARGHAM HAIDER

JUDGEMENT

(1.) This is an appeal under Section 116A of the Representation of the People Act, 1951, as amended upto date. An election was held for the U. P. Legislative Assembly from the Bahraich North 269 Constituency. There were three candidates for election to the seat who are the three respondents in this appeal. Respondent No. 1 Syed Zargam Haidar alias Hijjan Mian was declared as the successful candidate. The actual polling took place on 25-2-1957 and the result of the election was declared on 2-3-1957. The appellant Madan Lal, who was a voter but had not stood as a candidate, filed his election petition before the election Commission on 16-4-1957, which was the last date of limitation prescribed for presentation of election petitions under the Act. The Election Commission entrusted this petition for trial to the Election Tribunal at Gonda and fixed 12-6-1957, as the date for appearance of parties before the Tribunal.

(2.) The election of respondent No. 1 was challenged by the appellant on the ground of corrupt practices which were enumerated in paras 4 (a) to 4 (e) of the petition. On 27-6-1957 the respondents filed their written statements. Bis-pondent No. 1, amongst other pleas, put forward the defence that all these paras 4 (a) to 4 (e) in which corrupt practices had been alleged were vague and were, therefore, liable to be struck off. pn 2-7-1957 permission was granted to the appellant to file a replication which was actually filed on 8-7-1957. On the same date, preliminary issues were framed, -- the main preliminary issue being whether the allegations contained in paras 4(a) to 4(e) were vague and liable to be struck off. July 20, 1957, was fixed for arguments on these issues but the hearing was adjourned to 27-7-1957. On that date, the appellant moved an appli-cation requesting the Election Tribunal to make an order directing him to furnish better and further particulars of the corrupt practices which had been alleged in paras 4(a) to 4(e) of the petition. That application was rejected the same day. On 29-7-1957, arguments were heard on the preliminary issues and thereafter the appellant presented an application requesting for a week's time in order to file an application for amend-ment of these paragraphs. On 1-8-1957, before the preliminary issues could be decided, the appel-lant moved an application for amendment of these paragraphs of the petition. Objections to this application for amendment were presented by respondent No. 1 on 14-8-1957. Parties were-then heard on 26-8-1957 on the amendment application which was rejected by the Election Tribu-nal. On 28-8-1957, the Tribunal heard the parties on the preliminary issues and held that all the paras 4(a) to 4(e) of the petition were liable to be struck off. The Tribunal, therefore, struck off those paragraphs. Thereafter, the Tribunal proceeded to examine the petition as it remained after these paragraphs had been deleted and came to the view that the petition disclosed no cause of action and there was, therefore, no question of taking further proceedings in the trial. The Tribunal therefore dismissed the petition and awarded costs against the appellant to respondent No. 1. The order striking off paragraphs 4(a) to 4(e) of the petition as well as the order dismissing the petition as one single composite order passed on 28-8-1957. It is against this order that the appellant has come up in appeal to this Court under Section 116A of the Representation of the People Act.

(3.) When this appeal came up for hearing a preliminary objection was taken by learned counsel for respondent No. 1 that this appeal was not maintainable as the order dated the 28th of August, 1957, was not an order under Section 98 or 99 of the Representation of the People Act and the right of appeal to this Court under Section 116A of the Act had been granted only against order passed under Section 98 or 99 of the Act. The contention of the learned Counsel was that by the order of the 28th August, 1957, the petition had been decided at an early stage and not at the conclusion of the trial, whereas orders under Section 98 of the Representation of the People Act can only be passed at the conclusion of the trial. In our opinion, this preliminary objection cannot prevail. If we confine our attention to the provisions of the Representation of the People Act only, we find that, under that Act, there are only two provisions under which an election petition can be dismissed by the Election Tribunal. There is firstly the provision in Sub-section (3) of Section 90 of the Act which contains a mandatory direction to the Tribunal to dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117, notwithstanding that the petition may not have been dismissed by the Election Commission under Section 85. The only other provi-sion for dismissing a petition is that contained in Section 98. It has not been contended by learned Counsel for the respondents, nor could it possibly he urged, that the present order dated the 28th of August, 1957, dismissing the election petition, is or can be an order under Sub-section (3) of Section 90 of the Representation of the People Act. If, therefore, the provisions of this Act alone are examined, it would have to be held that the dismissal order must be an order under Section 98 of the Act which is the only other provision under which an order of dismissal can be passed. It was, however, urged by learned Counsel that, in considering the stages at which an election petition" can be dismissed, the Court should not confine itself to the provision of the Representation of the People Act. Since the Code of Civil Procedure has been made applicable to the trial of an election petition by an Election Tribunal, the principles laid down in that Code must also be examined in order to see whether a parti-cular order of dismissal is an order at the con-elusion of the trial or is an order at an earlier stage. This Court in Bhudhar Lal v. Bansidhar Shukla, F.C.A. No. 64 of 1957 (All) (A) and Smt. Godavari v. Shiva Prasad Nagar, F.C.A. No. 65 of 1957 (All) (B), Luoknow Bench, has already held that an order under Sub-section (3) of Section 90 of the Representation of the People Act dismissing an election petition is not an order at the conclusion of a trial and an appeal against such an order does not lie under Section I16A of the Act. The learned Chief Justice, before whom the case came up on a difference of opinion between the other two learned Judges who heard the appeal, distinguished between an order by which a petition had been dismissed in limine and an order dismissing a petition after the hearing of the petition. The former was held to be an order which Itself concluded the trial whereas the latter an order made at the conclusion of the trial. In the ease before us, the order which was passed by the Election Tribunal dismissing the election petition on 28-8-1957, did not conclude the trial in limine. It was not a case where the petition was dismissed on a preliminary ground before the trial had begun. In fact the proceedings taken before the Election Tribunal show that a part of the trial was gone through before the order was made. The parties had appeared before the Tribunal. The respondents had filed their written statements. The appellant had filed a replication. There was an application for amendment of the pleadings and that application was also dismissed. The pleadings in paragraphs 4(a) to 4(e) of the petition were then struck off. It was subsequent to all these proceedings that the order of dismissal of the petition was made by the Tribunal. This order, therefore, was an order which was made after the trial had already commenced. An order under Sub-section (3) of Section 90 of the Act is an order made before the commencement of the trial. It may be, of course, that in some cases such an order might be made after the trial had commenced, but the provision for dismissal has clearly been made with the purpose of excluding a trial by dismissing the petition. The order in the present case is of a different nature because the ground for that order arose after a part of the trial had been gone through. It was not till the written statement had been filed application for amendment had been dismissed on arguments about the vagueness of some paragraphs had been heard and decided by the Tribunal and the Tri-bunal had struck off these paragraphs that occasion arose for dismissing the petition on the ground of want of cause of action. As has been held by the Supreme Court in Harish Chandra Bajpai v. Triloki Singh, (S) AIR 1957 SC 444 (C), the provisions of Chapter III of the Representation of the People Act read as a whole clearly show that the word "trial" is used as meaning the entire proceedings before the Tribunal for the time when the petition is transferred to it under Section 86 until the pronouncement of the award. The pronouncement of the award would, of course, in most cases follow a complete hearing including the recording of evidence tendered by both parties. In some cases, however, the award on an election petition may be pronounced without recording evidence because at an earlier stage it is found that the petition has no force and cannot succeed. The decision that, after paras 4(a) to 4(e) of the petition had been struck off, no cause of action was left which could be investigated by the Court was a point relating to the merits of the petition and, having decided that the petition disclosed no cause of action, the Tribunal proceeded to dismiss the petition, which dismissal must be held to be a decision of the petition on merits.