SANGRAMSINGH Vs. ELECTION TRIBUNAL KOTAH

JUDGEMENT

(1.) This is a petition under Article 226, Constitution of India and has arisen in the following circumstances:

(2.) The petitioner Sangramsingh was elected as a member of the Legislative Assembly and the opposite party Shri Bhureylal challenged the election by a petition which is No. 297 of 1952. The Election Tribunal had its sittings at Kotah. After certain proceedings had been gone through an order was recorded by the Election Tribunal on 11-12-1952 that the further sittings of the Election Tribunal will take place at Udaipur from 16th to 21-3-1953. On 5-1-1953 it was discovered that 16-3-1953 was a public holiday and an order was recorded that the sittings will take place at Udaipur from 17-3-1953 and onwards. Mr. Trivedi who appeared for the petitioner Sangramsigh before the Election Tribunal on these dates had notice of the hearing from 17th March at Udaipur. On 17-3-1953 the petitioner and his counsel did not appear before the Tribunal and an order was recorded for further proceedings to be taken ex parte. An application was submitted before the Tribunal for setting aside the order to proceed ex parte but that petition was 'rejected by the Tribunal on 21-3-1953. The present petition challenges that order and it has been argued,

(3.) Learned counsel for the petitioner relied on Order 9, Rule 7, Civil P. C. for the first proposition but as the very words of the Rule show the order to hear a suit ex parte can only be set aside if the applicant is able to assign good cause for his previous non-appearance. The reasons alleged for non-appearance, as stated in the present petition, or in the affidavit before the Tribunal, are that on 14-3-1953 Mr. Trivedi, counsel for the petitioner, was at Indore and he sent a telegram to the Tribunal at Kotah objecting to the validity of the hearing at Udaipur. On the next day Mr. Trivedi found that his objection was untenable and he sent a letter accordingly to the Tribunal at Kotah. It appears from a perusal of the record that in the meanwhile the Tribunal had reached Udaipur and sent a reply to Mr. Trivedi that his objection had been overruled. Mr. Trivedi's letter of 15-3-1953 reached the Tribunal at Udaipur on the 19th March. It is said that Mr. Trivedi sent letters from Neemuch on the 15th March to his colleagues Mr. Ramsarup Advocate at Kotah & Mr. Bharatraj lawyer at Udaipur to appear before the Tribunal on 17-3-1953. None of them could however appear as the two gentlemen to whom the request was made did not receive the letters in good time. On the 21st March Mr. Trivedi appeared before the Tribunal and made an application that on account of some misunderstanding of the advocates and for the reasons aforesaid nobody could appear for the petitioner and prayed for having the order for ex parte proceedings set aside. The Tribunal came to the conclusion that the reasons set forth for non-appearance of the advocates were not sufficient and consequently it did not set aside the ex parte order.