SUDHANGSHU SHEKHAR HALDAR Vs. MOULANA DELWAR HOSSAIN SAYDEE

JUDGEMENT

(1.) This application on behalf of respondent No.1 Moulana Delwar Hossain Saydee in First Miscellaneous Appeal No.144 of 1997 is for an order dismissing the appeal on the preliminary point of maintainability.

(2.) The facts of the case, in short, are that the election in constituency No.129, Pirojpur-1, took place on the day of the general election to Parliament on 12-6-1996 and in the said election both appellant Sudhangshu Shekhar Haldar and the respondent took part along with other candidates Respondent No.1 having been declared appellant Mr. Sudhangshu Shekhar Haldar filed an election petition before the District Judge and Election Tribunal, Pirojpur, and the Election Tribunal by the Judgment and order dated 19th May 1997, declared the election of respondent No.1 void with an order for fresh poll in Garghata Government Primary School polling centre and by the said order the tribunal modified the results of two centres. Aggrieved by this Judgment and order of the Election Tribunal, the appellant filed First Miscellaneous Appeal No.144 of 1997. There is another appeal being First Miscellaneous Appeal No.109 of 1997 preferred by respondent No.1 of the instant appeal, namely, Moulana Delwar Hossain Saydee, against the decision of the tribunal. Both the first miscellaneous appeals were taken up together for hearing and, in the midst of the hearing, the present application was moved on behalf of respondent No.1 Moulana Delwar Hossain Saydee in First Miscellaneous Appeal No.144 of 1997.

(3.) Mr. Khandakar Mahbubuddin Ahmed, learned Advocate appearing on behalf of respondent No.1, submits that there are some findings in the Judgment of the Election Tribunal which may be adverse to the appellant of First Miscellaneous Appeal No. 144 of 1997, but the decision given in the judgment is one, which is exactly what the appellant had prayed for, merely, for declaring the election of the returned candidate to be void. It is submitted that this being the position, the appellant in the above noted appeal had completed relief and there was nothing in the Judgment for him to be aggrieved of and, as such, he was not legally entitled to take any appeal against the decision of the Election Tribunal. Mr. Khandakar submits that the appeal preferred by the appellant is totally misconceived and incompetent and, as such, the same is liable to be dismissed. He further submits that when a preliminary point as to the maintainability of an appeal is raised, the appeal cannot be gone into on merit before disposal of the preliminary point. He, therefore, prays for deciding the question of maintainability of the appeal before hearing of the same on merit.