DURYODHAN Vs. SITARAM

JUDGEMENT

(1.) THIS appeal under Section 11 6- A of the Representation of the People Act, 1951 has been referred to this Full Bench because there appeared to be an apparent conflict between two Division Bench cases of this Court re ported in Vishwanath Prasad v. Malkhan Singh Sharma, AIR 1964 All 181 and B. P. Maurya v. Election Tribunal, 1964 All LJ 155 on the question whether the Election Tribunal while hearing an elec tion petition had the power to dismiss the election petition under O. 9, R. 8 of the Civil Procedure Code for default of ap-pearance of the election-petitioner and also to restore it in a proper case under O 9, R. 9 of the same Code.

(2.) AFTER hearing learned counsel for both the sides at length, I have come to the conclusion that in this appeal this question is of a mere academic interest and it is unnecessary to decide it.

(3.) IT has now been argued in this ap peal that the Tribunal had jurisdiction under O. 9, R. 8 of the Civil P. C. to dis miss the petition in default and the Tri bunal erred in not dismissing the election-petition in default but in deciding the same on merits. It is contended that if the petition had been dismissed in default, the petitioner-arDellant would have had an opportunity of making an application for restoration under O. 9, R. 9 of the Code. On this ground, the order of the Tribunal is assailed. In the circumstances of the present case, it is quite clear that the decision of the Tribunal was_ given in the absence of the election-petitioner and was, therefore, in fact, an ex parte deci sion. The mere fact that the Tribunal while dismissing the election-petition also went into the facts of the case and held that the allegations had not been proved, would not make the decision other than an ex parte one. For instance, when an ex parte decree is passed in the absence of a defendant the judgment on which the decree is based is on merits, after consi dering the plaintiff's evidence, in the ab sence of the defendant and yet the decree is an ex parte decree and can be set aside under O. 9, R. 13 of the Civil P. C., if the defendant shows sufficient cause for his non-appearance. The decision of the Tribunal in the present case thus being apparently an ex parte decision, the elec tion-petitioner should have filed an appli cation under O. 9, R. 9 of the Civil P. C. to set aside the ex parte decision, if the petitioner was advised that O. 9, R. 9 of the Civil P. C. was applicable and the Tribunal could set aside its order on being satisfied that the petitioner had sufficient cause not to appear. But no such applica tion was made and in the absence of any such application, the argument advanced in this Court that such an application could have been made, is a mere academic discussion and it is wholly unnecessary to decide that point in this case.