DWARKA NATH DUTTA Vs. CHANDRA MOHUN ROY

JUDGEMENT

(1.) This is an appeal by the plaintiff and arises under the following circumstances: it appears that the Mainamati Union Board had to elect a President of the Union. The Circle Officer fixed the 28 of March 1925 as the date of election and the Cutchery of the Maharaja of Hill Tipperah at Manamati was originally fixed as the place of election and the time fixed was 9 o clock in the morning. It appears that altogether six of the voters were present when the meeting was held. The plaintiff obtained three votes and was declared to have been duly elected. It appears that the Magistrate of the District was moved and he on the 3 April 1924 declared election as invalid and a fresh election was made in which defendant No. 1 was elected as the President of the Union. The plaintiff then brought this suit on the 5 of April of that year for a declaration that the election was duly held and that he was duly elected as the President and was entitled to exercise the function of that office. The plaintiff asked for an ad interim injunction restraining defendant No 1 from exercising the function of the President. Tue injunction was granted. The defendants appeared and contested the suit mainly on the ground that the election of the plaintiff was invalid because there was no quorum according to law when the election took place. It was also contended that the order of the Magistrate was binding upon the parties.

(2.) The learned Munsif decreed the plaintiff's suit and granted all the reliefs prayed for Defendant No. 1 appealed to the District Court and it was contended before the learned Subordinate Judge as it appears from the judgment that the election was invalid on the ground, first, that the time and place of the meeting were changed and, therefore, the meeting at the place where it took place and at the time when it took place was invalid on account of that change. The second ground which was argued in appeal appears to be that there was no quotum for a valid meeting. The learned Subordinate Judge has given effect to both the contentions of the defendants and reversed the judgment of the Munsif and dismissed the suit.

(3.) The present appeal, as I have already stated, is by the plaintiff. The first contention which was urged by the learned Vakil for the plaintiff-appellant was that the question as to the change of place and time of the meeting was not raised either in the written statement or in the Court of first instance and that, therefore, the learned Subordinate Judge ought not to have allowed that question to be raised in appeal. It was further contended that there was no substance in this objection raised by the, defendants. It was nextly contended that upon the findings arrived at by the learned Munsif and also by the learned Subordinate Judge there was a quorum when the election took place. Therefore, the learned Subordinate Judge was in error in holding that the election was invalid for want of a quorum.