NAWAB KHAN Vs. MOHAMMAD ZAMIN

JUDGEMENT

(1.) This appeal arises out of an election petition. Nawab Khan was one of the electors at an election of the Municipal Board of Allahabad which was held on the 8th of March 1911. At that election, the respondent, Muhammad Zamin, was declared duly elected. Within 15 days, the present petition, questioning the validity of the election, was presented in the Court of the Additional Munsif. The grounds for questioning the election are set forth in paragraph No. 6 of the petition. In Clause (a), it is asserted that fraudulent proceedings were taken and threats were held out and the defendant, his agents or friends, made unauthorised persons vote in place of rightful voters. Four instances of impersonation were then set forth, and it went on to assert that other names would be given later on after the inspection of the ballot papers. Before the petition was heard, the petitioner was in a position to give further cases of personation and the petition was amended by adding the particulars of six additional cases of alleged personation. The learned Additional Munsif heard the case and found that a certain number of cases of personation were proved; and he accordingly set aside the election.

(2.) The respondent appealed to the District Judge. In that Court and in this Court it was admitted that personation, to which the candidate or his agents were parties, was a good ground for setting aside au election. The learned District Judge held that the Munsif had jurisdiction to hear the petition, and in this Court it has not been contended and, in our opinion, could not be contended that the Munsif had not jurisdiction to hear the case. The learned District Judge, however, set aside the decree of the Munsif and dismissed the petition upon the ground that the Court had no power to amend the petition by adding the further cases after the expiration of 15 days from the date of the election. The learned District Judge held that those cases, which were originally set forth in the petition, were not proved and that, therefore, the petitioner s case failed.

(3.) The only question which we have to decide in the present appeal is whether or not the petitioner was entitled to give evidence of the additional cases which were mentioned for the first time after the expiration of 15 days of the election. Rules have been framed under the Municipalities Act, Section 187, with regard to election petitions. Rule 42 is as follows: The validity of an election made in accordance with these rules shall not be questioned except by a petition presented to a competent Court within 15 days after the day on which the election was held by a person or persons enrolled in the Municipal electoral roll: Provided that no election shall be called in question on the ground that (a) the name of any person qualified to vote has been omitted from, or the name of any person not qualified to vote has been inserted in, the electoral roll or rolls made and revised under Rules 1 and 2 of these rules; or (b) the name of any person qualified for election as a member of the Board has been omitted from, or the name of any person not qualified for election as a member of the Board has been inserted in, the candidate list as prescribed under Rule 3 of these rules.