Decided on November 17,1960

BAL MUKAND Appellant
BAKSA SINGH Respondents

Cited Judgements :-



CHHANGANI, J. - (1.)THIS is an appeal by Bal Mukand against the order of the District Judge, Jhunjhunu dated 8. 11. 1958 refusing to restore the election petition of the petitioner which was dismissed in default on 7. 11. 1958.
(2.)THE election petition was filed under Sec. 19 of the Rajasthan Town Municipalities Act, 1951 praying for setting aside the election of the respondent to the Municipal Board, Neem-ka-Thana from ward No. 2. THE election petition was fixed for hearing on 7. 11. 1958. Shri Syed Ali Advocate, who was to appear on behalf of the appellant, reached the Court some-time after 12 noon. In the meanwhile the election petition was called a few times and eventually was dismissed in default at about 11-45 A. M. or 12 noon. THE application for restoration was dismissed on the ground that there was no justification for the Advocate for the appellant to have reached the Court late in the day.
In this appeal, Mr. Tyagi has contended that the dismissal of the election petition in default was contrary to the spirit of the Election Law and the order dismissing the petition in default being inherently erroneous, the application for restoration should have been allowed by the lower Court. The lower-Court having omitted to do so, this Court should in appeal direct the restoration of the election petition.

At the out-set it will be proper to quote the relevant portion of Sec. 19 of the Rajasthan Town Municipalities Act dealing with the disposal of the election petitions by a Judge: - Sec. 19 (2 ).- "the Judge may, after such enquiry as he deems necessary, and subject to the provisions of sub-Sec. (3) pass an order confirming or amending the declared result of the election or setting the election aside. " For the purpose of the said enquiry; the Judge may summon or enforce the attendance of witnesses and compel them to give evidence. . . The said Code of Civil Procedure shall, as far as possible be followed in such enquiries. "

An analysis of the section shows that the Judge trying the election petition is expected to hold such enquiry as he deems necessary and is expected to pass certain kind of orders, namely, an order confirming or amending the election, amending the declared result or setting aside the election. No other kind of order including an order of dismissal in default is contemplated. It is true that the Code of Civil Procedure has to be followed as far as possible in such enquiries. But it does not follow that the provisions of Civil Procedure Code relating to dismissal of cases in default should also apply to election petitions. The words "as far as possible" used in connection with the applicability of the Civil Procedure Code to the enquiries on election petitions are important. They indicate that the provisions of the Civil Procedure Code should not be adopted so as to lead to results not contemplated in connect on with the disposal of the election petitions. As stated earlier, the very language of sub-sec. (2) does not contemplate termination of the election petitions except by certain specified kinds of orders and exclude the termination by dismissal in default. The extension of the provisions of the Code of Civil Procedure relating to dismissal must, therefore, be over-ruled as leading to results not contemplated by sub Sec. (2), by reference to the words "as far as possible. " In Amir Mohammad Khan Vs. Atta Mohammad Khan (1) the Election Tribunal referring to Rule 12, Chapter III, Part-E of the Punjab Legislative Assembly Electoral Rules, 1936, laying down that subject to the other provisions of this chapter every election petition shall be inquired into by the Commissioners as nearly as may be in accordance with the procedure applicable under the C. P. C. 1908 to the trial of suits, observed as follows: - "by the words 'as nearly as may be' we understand that the procedure prescribed by the Code of Civil Procedure should be adopted to the extent that it does not lead to results inconsistent with the special law relating to election cases. There is no provision in English law to the effect that a petition should be dismissed, if the petitioner fails to appear and in our view the summary dismissal of an election petition for non-appearance of the petitioner on the analogy of dismissing a suit in default for nonappearance of the plaintiff (Order 9, Rule 8 or the C. P. C.) would be contrary to the spirit the election law. " The Tribunal of course examined certain other rulings to show that the dismissal of the petition in default would be inconsistent with the provisions of those rules. The principle or the decision can be easily extended to the election petitions under this Act as sub-sec. (2) of Sec. 19 does not contemplate the dismissal of the election petition in default.

The conclusion reached above also finds support on a consideration of the nature and scope of the election petition. In Inamati Mallappa Basappa Vs. Desai Basavraj Ayyappa (2) the nature and the scope of the election petitions was stated in the following words: - "as has been observed by us in the judgment just delivered in Kamaraja Thevar Vs. Kunju Thevar, Civil Appeals No. 763 and 764 of 1957 and Civil Appeal No. 48 of 1958 : (AIR 1958 8 S. C. 687 ) (A): - An election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. . . . . . . . . An election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public also are substantially interested in it and this is not merely 111 the sense that an election has news value. An election is an essential part of the democratic process. . . . . . . . . An election petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested. " This being the nature and scope on general principles the termination of the election petitions by consent of the parties or by default can not be contemplated in the absence of a legislative provision providing for the dismissal in default. The statutory laws relating to election petition generally do not contemplate termination of the election petitions in this manner. it will be useful in this connection to refer to a Bench decision of this Court: reported 111 Rawat Man Singh Vs. Roop Chand Sogani (3 ). In that case it was held that a dismissal of election petition for default of appearance by the petitioners to the election petition is not contemplated by the scheme of the Representation of the People Act and the Tribunal has been armed with ample powers to make a suitable arrangement for the prosecution or an election petition in case the petitioners for any reason decline to proceed with it. It is true that the conclusion in that case has been reached on an examination of the scheme and the various provisions of the Representation of the People Act but in view of the basic principle behind the conclusion and the scheme of sec. 19 a similar conclusion may safely be arrived with regard to the election petitions in connection with municipal elections under sec. 19 of the Rajasthan Town Municipal Act. Election is a very essential and fundamental process in a democracy and the purity at elections is the concern not only of the contesting parties but of the constituencies themselves. The recognition of a mode of disposal of election petition by dismissal in default, in my opinion cannot be conducive to a policy of securing and maintaining purity at elections.

On a consideration of the decisions of analogous provisions in other acts and the wordings and scheme of sec. 19, I have no hesitation in coming to the conclusion that the election petition can not be dismissed in default and the learned District Judge was not justified in initially dismissing it in default and subsequently refusing to restore it. 1 may also observe that in dealing with the application for restoration of the election petition the learned Judge should have been liberal in view of the special nature and scope of the election petitions. In this view of the matter, I am of the opinion that the order of the District Judge, Jhun-jhunu dated 8. 11. 1958 is not maintainable and deserves to be quashed.

I, accordingly, accept the appeal, set aside the order of the learned District Judge, Jhunjhunu and direct that the election petition shall be restored and tried on merits in accordance with law.

As the opposite party has not appeared to contest this appeal, there will be no order as to costs. .


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