SUNDERLAL MANNALAL Vs. NANDRAMDAS DWARKADAS

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 10-9-1957 in default of the appearance of the petitioner before the Tribunal but was restored four days later. The petitioner also seeks a writ, of certiorari quashing the order of restsration passed on 14-91957.

(2.) THE facts of the case are simple. This case was made over to Shri Manzarali razvi, who was appointed Election Tribunal, Ujjain, by the Election Commission. The case was listed for 10-9-1957 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, 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.) THE gist of the matter is that no reply to the affidavit was filed, though it is complained that no opportunity was given. But we feel that in view of the service of the notice on Shri Bhargava on 10th September and the postponement of the case by four days before the restoration order was made there, was ample opportunity for the present petitioner to have filed, a reply to the affidavit if he had cared. We leave out of consideration the contentions which Shri Bhargava made at the time of the hearing of the petition on the 14th September. One of his contentions was that he was not competent to receive the notice because his work had finished when the original petition had been dismissed on 10th September. He, however, asked for security, and Shri Manzarali ruled that having insisted upon fresh security he had acted for the party and therefore was liable to be served with the notice of the application for restoration. In our opinion, shri Manzarali, the Tribunal, in deciding this way was perfectly right. It appears that having gained a position in which the election petition had been dismissed an attempt was made to keep the order going but it failed.