SUNDER LAL Vs. NARAIN DAS

JUDGEMENT

(1.) THIS petition under article 226 of the Constitution seeks a writ or prohibition against the Election Tribunal, Ujjain, in a matter of the trial of Election Petition No. 101 of 1957, which was dismissed on 10th September 1957 in default of the appearance of the petitioner before the Tribunal but was restored four days later. The petitioner also seeks a writ of ceriticrarl quashing the order of restoration passed on 14th September 1957.

(2.) THE facts of the case are simple. This case was made over to Shri Manzarali Rizvi, who was appointed Election Tribunal, Ujjain, by the Election Commission. The case was listed for the 10th September 1957 for hearing and was dismissed at 12 -10 p.m. in default of the presence of the present respondent No. 1 or his counsel. It appears that an application for restoration supported by an affidavit was made by the counsel for respondent No. 1, on the same day at 12 -30 p.m. In the affidavit it was stated by Shri B.R Nahata, Counsel for respondent No - 1, that respondent No. 1 having lost his mother -in -law asked the counsel to attend the hearing at Ujjain, that Shri Nahata left Mandsaur and reached Badnawar, when the car in which he was travelling started to give trouble, and that ten miles after Barnagar the car stopped at a river and the progress was delayed. The counsel therefore requested that the case be restored and heard. A notice of the application was served by Shri Manzarali upon the junior counsel of the present petitioner, who at first declined to take the notice but insisted that fresh declined costs should be obtained from the party before the notice was served on him. The notice was in fact received by Shri Bhargava, who on the date when the restoration took place made many contentions, to which we shall refer later.

(3.) WE now come to the merits of the application which has been made before us. It is contended that under the Representation of The People Act there is no power to restoration. It was frankly admitted that there is also no power to dismissal, but it was contended that under Sections 98 and 99 the Tribunal once it has dismissed the election petition and awarded costs is functus officio and cannot thereafter restore the election -petition because no such power is conceded by the Act. It was also contended that against that order there was only an appeal under Section 116 -A of the Representation of the People Act. Section 98 deals with the ultimate disposal on merits of the election petition and not with interlocutory orders of this character. In fact, Section 116 -A might not be adequate as a remedy in such cases if it is at all in point.