MUTI AHMED JAFARI Vs. VIRENDRA SINGH

JUDGEMENT

(1.) THIS is an appeal from a judgment passed by the Election Tribunal, Ujjain, on 25-11-1957, in Election Petition No. 196 of 1957.

(2.) THE matter arises out of, the last elections to the Madhya Pradesh Legislative assembly. The appellant was a candidate for election from the Khachraud constituency, and the four respondents were also candidates. Of these, the first respondent Shri Virendra Singh son of Thakur Parbatsingh was elected, and the present appellant filed an election petition challenging the election. Along with his election petition the appellant enclosed a Government Treasury receipt, as required by Section 17 of the Representation of the People Act (hereinafter the act ). Before the Election Commission the question had arisen whether the election petition was liable to be dismissed in limine because the receipt showed that the deposit was made not in the name of the Secretary to the Election Commission, as required by Section 17 of the Act, but in the name of the Secretary to the Election petition. The Election Commission did not dismiss the petition under Section 85 of the Act and observed as follows: 'the Treasury challan enclosed with the petition is defective inasmuch as instead of specifically mentioning that the amount has been deposited in favour "the Secretary Election Commission", the words "secretary, election Petition" have been written. Moreover, the full and correct head of account, has not been given therein. This may make it difficult for the costs, if any, ordered against the petitioner to be realised out of the deposit. It will be for the Tribunal to decide during trial after hearing the parties whether the defect in deposit is fatal or may be cured, e. g. , by a fresh deposit or otherwise, so as to safeguard the Respondent's right of costs, if any, awarded by the tribunal. '

(3.) WHEN the matter came before the Tribunal objection was taken that the defect was fatal. The Tribunal thereupon framed a preliminary issue, which reads as follows: 'whether the deposit has been correctly made and if there is a mistake it is not fatal to the Petition. ' after hearing the parties and taking such evidence as was tendered the Tribunal came to the conclusion that the defect was substantial and that the petition was liable to be dismissed under Section 90 (3) of the Act. It accordingly dismissed the petition on this short ground, and the present appeal has been filed against the judgment of the Tribunal.