BAIKUNTHA NATH SWAIN Vs. SURENDRANATH NAIK AND ANR.

JUDGEMENT

(1.) THE short but important point arising for decision in this case is 808 to when the trial of an election petition referred to in the proviso to Section "44 -1 of the Orissa Panchayat Samiti Act, 1959 (hereinafter referred to as the Act) -is said to commence. The Petitioner and opposite party No. 1 and 2 other 's were candidates at an election for the office of the Chairman of Panchayat Samiti, Astarang. The election was held on 7 -1 -1966. The Petitioner secured 97 votes as against 83 votes secured by opposite party No. 1. On 27 -1 -1968, the latter filed an election petition before the Election Commissioner Puri for a declaration that he was the duly elected candidate inter alia on the ground that the Petitioner was guilty of corrupt practices. Notice of the election petition was directed to be served on the Petitioner fixing 22 -4 -1968 for his appearance. On 22 -4 -1968, the Petitioner appeared in Court and filed a petition praying for time to file rejoinder, and time was allowed till 9 -5 -1968 for the purpose. Thereafter on Petitioner 's further applications he was allowed time till 12 -7 -1968 on which day he filed rejoinder. On 24 -7 -1968, the Petitioner filed a recrimination as provided in Section 44 -1 of the Act alleging that had the opposite party No. 1 been elected, his election would have peen invalid for reasons mentioned in the application. Section 44 -1 which is material for the purpose may be quoted:

(2.) SECTION 44 -I of the Act is an exact replica of Section 97 of the Representation of the People Act, 1951 (Act 43 of 1951) which is hereinafter referred to as the Central Act. But so far as the Central Act is concerned, there is no difficulty to construe the meaning of the expression "from the date of commencement of the trial" occurring in the proviso to Section 97 because the Explanation to Section 86 of the Central Act provides that for the purpose of Section 97 of that Act, the trial of an election shall be deemed to commence on the date fixed for the Respondent to appear before the High Court and answer the claim or claims made in the petition. There is no corresponding explanation anywhere in the Act. Consequently the ordinary natural meaning has to be given to that expression. It is indeed difficult to define the term "trial" precisely because a definition given for the purpose of one context may not be found satisfactory for another. In a certain context it may mean the final hearing of the petition consisting of examination of witnesses, filing documents and addressing arguments. In certain other contexts it may connote the entire proceedings before the Tribunal from the time the petition is filed before it until the pronouncement of the judgment, yet in another context it may refer to the stage when a competent Court examines the facts or law In dispute or put in issue in a case. In what sense the expression "commencement of the trial" is used in the proviso to Section 44 -I of the Act has therefore to be judged in the context in which it is used. It is quite clear that the expression "commencement of the trial" occurring in the proviso cannot have any reference to the final hearing of the petition consisting of examination of witnesses because, in certain cases, the examination of witnesses and addressing arguments may be completed even in the course of one day thereby completing the enquiry. It could not have been the intention of the Legislature that a recriminatory application would be filed within 14 days thereafter. It cannot also in the context refer to the filing of the election petition itself because, it may take a period much longer than 14 days before the party against whom the application is filed gets notice of it. We, therefore, feel that "commencement of the trial" in the proviso to Section 44 -I of the Act must have reference to some intermediate stage between the filing of the application and the stage ' where the application is taken up for final hearing. It would in the context be more appropriate to construe the expression to refer to the stage when the Court takes up the Judicial examination of the -issues between the parties. So construed, it would refer to the date when the party against whom the election petition is filed puts in his written statement in the case. In the present case, that date is 12 -7 -1968. The recriminatory application which is filed on 24 -7 -1968 is therefore within time.

(3.) I agree.