BHUVANESH BHUSHAN SHARMA Vs. ELECTION TRIBUNAL FARRUKHABAD

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution the petitioner seeks the issue of a writ of certiorari to quash two orders dated 13th September, 1957, and 21st September, 1957, passed by the Election Tribunal, Farrukhabad. The petitioner and opposite party No. 2 were both candidates for election as members of the U. P. Legislative Assembly from the Single Member Etawah Constituency (No. 150), in the last general elections held in the beginning of the year 1957. On 10th March, 1957, the petitioner was declared as the duly elected candidate. On 23rd April, 1957, opposite party no. 2 presented an election petition before the Election Commission accompanied by a treasury receipt in respect of a deposit of Rs. 1,000/- as security for costs of the election petition. On 12th May, 1957, the Election Commission passed the order under Section 86 of the Representation of the People Act referring this petition for trial to the Election Tribunal at Parrukhabad. The petition was notified by the Election Commission and. the Election Commission fixed the 15th of July, 1957, as the date on which parties were required to appear before the Tribunal. On that day opposite party No. 2, who was the petitioner in the election petition, did not appear, whereas the present petitioner appeared and, asked for time to file a written statement The Tribunal fixed the 5th of August, 1957, as the next date and for that date information through a post card was sent to opposite party No. 2 also. On that date again, opposite party No. 2 did not appear, whereas the present petitioner appeared and filed preliminary objections. Thereafter the next date fixed was 12th August, 1957. A registered letter was posted addressed to opposite party No. 2 Shri Hakim Haziq on 6th August, 1957, intimating to him that the 12th of August, 1957, had been fixed for the hearing of the petition. On that date, again, opposite party No. 2 was absent. The Tribunal heard the arguments on behalf of the present petitioner and then on 13th August, 1957, rejected the petition. On 14th August, 1957, opposite party No. 2 appeared and presented an application under Order IX, Rule 9 of the Code of Civil Procedure requesting that the order of dismissal of the petition in default be set aside. On 13th September, 1957, the order rejecting the petition passed on 13th August, 1957, was set aside. Thereafter on 18th September, 1957, the objections, which had been earlier filed by the present petitioner, came up. Arguments of parties were heard on those objections and the objections were rejected by the order dated 21st September, 1957. This order of 21st September, 1957, and the order dated 13th September, 1957, setting aside the order of rejection of the petition are the two orders which are challenged by the present writ petition.

(2.) The ground, on which the validity of the order of 13th September, 1957, is impugned is that, though the provisions of the Code of Civil Procedure have been made applicable to the trial of an election petition by the Election Tribunal, there are other provisions in the Representation of the people Act which indicate that the provisions of Order IX, Rule 9 of the Code of Civil Procedure cannot be applied to the trial of an election petition. This inference is sought to be drawn by a reference to Sections 109 and 110 of the Representation of the People Act which make a serious departure from the principle laid down by the Code of Civil Procedure for withdrawal of suits already instituted. By these provisions, if a petitioner, who has filed an election petition, wants to withdraw the petition, the petition does not at once become liable to dismissal. The withdrawal, even without any permission to bring a fresh election petition, can only be made by leave of the Tribunal. When there are more than one petitioner, no application can be made for withdrawal by only one of them without the consent of all others. Then there are special provisions laying down when the Tribunal shall not allow the petition to be withdrawn. Similarly, there are special principles laid down with regard to abatement of election petitions under Sections 112 to 115 of the Representation Of the People Act. Particular reference was made to Section 115 of the Representation of the People Act under which, after a petition has abated on the death of a petitioner, any person, who might himself have been a petitioner, is allowed, within the time specified, to toe substituted as petitioner. From these various provisions, an inference is sought to be drawn that the rules laid down in the Code of Civil Procedure for abatement of suits in such contingencies as the death of a plaintiff or the rules governing the withdrawal of a suit have been made specifically inapplicable to election petitions because election petitions stand on a different footing from suits and are not considered to be proceedings for the enforcement of the individual and personal right of the petitioner alone. It was urged that, in these circumstances, the absence of a petitioner on a date fixed for the hearing of the petition may not entail its dismissal in default and, even if it is dismissed in default, the petitioner cannot apply for its restoration under Order IX, Rule 9 of Code of Civil Procedure. It was further urged that, once the petition had been dismissed by the Tribunal all jurisdiction of the Tribunal in the matter came to an end and the Tribunal could not, therefore, exercise jurisdiction to restore the petition and start the trial afresh. The contention was that, under the Representation of the People Act, the jurisdiction of the Tribunal was limited to trying a petition referred to it and once the trial is concluded, the Tribunal becomes functus officio and cannot, therefore, pass any orders by which the petition might be restored. In the present case, it appears to us that it is not at all necessary for us to go into the correctness of these arguments because, in our view, even if they be correct, it is a fit case where we should exercise our powers under Article 226 of the Constitution so as to bring about the position which came into existence as a result of the order of the Election Tribunal dated 13th September, 1957. It has been found by the Tribunal as questions of fact that opposite party No. 2 did not receive any intimation from the Election Commission that 15th July, 1957, had been fixed as the date of appearance before the Election Tribunal, that there was no evidence that the post card sent to opposite party No. 2 fixing 5th August, 1957, as the date of hearing was ever received by him and that the registered letter posted on 6th August, 1957, intimating to opposite party No. 2 that 12th August, 1957, had been fixed for hearing was actually received by opposite party No. 2 after that . date had expired. These findings of fact clearly show that the information of the three dates fixed for hearing before the petition was rejected by the Election Tribunal, was not received by opposite party No. 2. Shri Hakim Haziq opposite party No. 2 was totally ignorant of the dates when he was required to appear before the Election Tribunal. The petition was dismissed on 13th August, 1957, for default of his appearance when he had not been able to receive information of the dates his non-appearance on which was the cause of rejection of the petition. The order of 13th August, 1957, rejecting the petition was, therefore, a very unjust order and, in the interest of justice, it was essential that it should be set aside. The Election. Tribunal has set it aside purporting to exercise its powers under Order IX, Rule 9 of the Code of Civil Procedure. If that provision of law is applicable, the order passed by the Election Tribunal is correct and must be upheld. If that provision of law is not applicable, we consider that this is a fit case where, the matter having come up before this Court under Article 226 of the Constitution, this Court should now pass an order vacating that order of the 13th of August, 1957, and consequently, this judgment of ours is to be read as setting aside the order of 13th August, 1957, rejecting the petition, in case it be held that the provisions of Order IX, Rule 9 of the Code of Civil Procedure are not applicable and that the Election Tribunal was incompetent to pass the order dated 13th September, 1957. In these circumstances, we need not issue any writ quashing the order of the 13th of September, 1957.

(3.) So far as the order dated 21st September, 1957, is concerned, the two objections raised on behalf of the present petitioner have been decided by it. One objection taken by the petitioner Was that opposite party No. 2 had not complied with the provisions of Section 117 of the Representation of the People Act and, consequently, the petition was liable to dismissal under Sub-section (3) of Section 90 of that Act. The second objection taken was that the various paragraphs containing charges of corrupt practice m the petition were much too vague, so that those paragraphs did not comply with the requirements of Section 83 of the Representation of the People Act and were liable to be struck off. The Tribunal rejected both these contentions.