ABDUL RAHMAN Vs. ABDUL RAHMAN

JUDGEMENT

(1.) This judgment relates to three connected appeals which have been laid before a Full Bench because of the extreme importance of the questions involved. The appeals challenge the validity of certain sections of the U.P. Municipalities Act. All three arise out of a contested election for seats on the Municipal Board of Muttra which was held in the early part of 1923. There were four candidates for three seats. A poll was held and the appellant, Abdur Rahman, son of Ismail, was one of the persons declared to be elected. Section 22 of the U.P. Municipalites Act, 1916, provides a special tribunal for the decision of disputes arising out of a Municipal election. Under the provisions of that section the respondent, Abdur Rahman, son of Zahuri, presented a petition against the election of the appellant, urging that it was vitiated by various corrupt practices. This petition was heard and determined by the Commissioner as an election Court under the provisions of the Act. The Commissioner upheld the petition, unseated the appellant and, under the powers vested in him by Section 25, declared the respondent duly elected in his place. The appellant, Abdur Rahman, son of Ismail presented a petition for review to the Commissioner under Section 23(2)(f) and that application was rejected. He then filed the present appeal from the Commissioner's decision to this Court, notwithstanding the fact that by Section 23(2)(e) of the Act, it is declared that there shall be no appeal from the Commissioner's order either on a question of law or fact and that no application in revision against or in respect of that decision shall be entertain able. That appeal is F.A. No 455 of 1923. Besides filing this appeal he also filed a suit in the Court of the Subordinate Judge for various reliefs the principal of which were a declaration that he had been duly elected as a member of the Municipal Board and an injunction to restrain the respondent from acting as such member.

(2.) After that suit had been filed he applied for an adjournment which was granted on condition of paying Rs. 125 costs of the adjournment to the opposite party. He failed to pay these costs and his suit was dismissed for default, an application for further time being rejected. He subsequently applied to the, Subordinate Judge for restoration of the case and that application was rejected.

(3.) He has now filed F.A. No. 165 of 1924 from the order dismissing his suit for default, treating that order as a decree, and has also filed a first appeal from the order refusing to restore the suit. The latter appeal is F.A.F.O. No. 77 of 1924. The appellant was doubtful whether his relief lay by way of appeal or by way of application for restoration and to be on the safe side pursued both remedies.