SARKAR, J.: - (1.) THE following Judgment of the court was delivered by
(2.) IN the 1957 General Elections the appellant was declared elected to the Punjab Legislative Assembly. The respondent, Gian Chand, filed an election petition for a declaration that the appellant's election was void. The other respondent in this appeal, presumably another unsuccessful candidate at the election, had been made a party to the petition but he never appeared at any stage. For brevity we will refer to the respondent Gian Chand, as the respondent. 838 The Election tribunal before whom the petition came up for trial framed a number of issues and recorded evidence. When the case was ready for argument, the appellant made an application to the tribunal for an order dismissing the petition under s. 90(3) of the Representation of the People Act, 1951, which is later set out, on the ground that s. 117 of that Act had not been complied with. Section 117 requires that every election petition shall be accompanied by a government Treasury receipt showing that a deposit of Rs. 1,000.00 had been made by the petitioner infavour of the secretary to the Election Commission as security for the costs of the petition. The appellant's contention was that the receipt enclosed with the petition was not, for reasons which will be mentioned later, in terms of the section. The respondent objected to the application being entertained because of the delay in filing it and also on the ground that it could not be decided without taking evidence. The tribunal overruled the respondent's objections and held on a scrutiny of the receipt alone that it was not in terms of s. 117, and thereupon dismissed the election petition under the powers conferred by s. 90 (3) without deciding the other issues framed. The respondent went up in appeal to the High court of Punjab. It was there contended on behalf of the appellant that no appeal lay from an order dismissing an election petition for the reasons mentioned in s. 96 (3) and that the order of the tribunal was in any event right. The High court held that an appeal lay to it and that the order dismissing the petition was wrong because the terms of s. 117 had been complied with. The present appeal is against this order of the High court. The first point that arises is whether an appeal lay to the High court. The Act provides by s. 116A that an appear shall lie from every order made by an Election tribunal under s. 98 or s. 99 to the High court of the State in which the tribunal is situated. The appellant's contention is that the order of the tribunal dismissing the petition had not been made under either of these sections. It is quite clear that the tribunal's order had not been made under s. 99. The point that arises is whether the order had been made under s. 98. If it had not been made under s. 98, an appeal would clearly not lie. The appellant contends that it was not so made but had been made under s. 90 (3). These two S. are set out below: ` Section 98.-Decision of the tribunal.-At the conclusion of the trial of an election petition the tribunal shall make an order- (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void ; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected;`. ` Section-90--Procedure before the tribunal. (3) The tribunal shall dismiss an election petition which does not comply with the provisions of section 81, section 82 or section 117 notwithstanding that it has not been dismissed by the Election Commission under section 85.` Section 85 provides :` Section 85.-If the provisions of section 81 or section 82 or section 117 have notbeen complied with, the Election Commission shall dismiss the petition.` It is first contended on behalf of the appellant that the revisions of s. 85 and s. 90 (3) are substantially the same and the fact that no appeal has been provided against the order made by the Election Commission under s. 85 should be taken as indicating that no appeal law against an order under s. 90 (3). We are unable to agree with this view. It seems to us that whether an appeal lies against an order of the tribunal has to be decided by reference to s. 116A and not by reference to the fact that a similar order by the Election Commission has not been made appealable.
(3.) IT is next said that an order under s. 8 is by the terms of the section, an order made at the conclusion of the trial of an election petition while an order dismissing a petition for any of the reasons mentioned in s. 90 (3) is an order made prior to the commencement of such trial or at least prior to its conclusion. IT is said that the word ` trial ` in s. 98 means that stage of the trial where evidence is tendered and arguments are addressed. Therefore, it is contended, an order dismissing a petition under the powers contained in s.90(3) is not an order under s. 98 and it is consequently not appealable. We see no justification for this view. An order made under the powers contained in s. 90(3) brings to an end the proceedings arising out of a petition ; after it is made, nothing more remains for the Election tribunal to try or do in respect of that petition. Therefore, it would appear that it is made at the conclusion of the proceedings before the tribunal. It follows that such an order is made at the conclusion of the trial by the tribunal for, as will be presently seen, the sole duty of the tribunal is to try the petition; the proceeding before it is the trial before it. For the same reason it would be impossible to say that the order was made before the commencement of the trial of the petition by the tribunal. That would be entirely against the whole scheme of the Act which we now proceed to consider. Ch. III of Part VI is beaded ` Trial of Election Petitions `. It consists of ss. 86 to 107 and covers the entire ground from the moment an election petition comes to an Election tribunal till the final order of the tribunal terminating the proceeding arising out of the petition before it. The first section, s. 86, provides that if the Election Commission does not think fit to dismiss under s. 85 the petition which has to be filed with it in the first instance, it shall refer the petition ` for trial ` to an Election tribunal constituted by it for the purpose. Therefore it would seem that the sole duty of an Election tribunal is to try an election petition referred to it. It is an ad hoc body created under s. 86 for this purpose only. When it passes an order which closes the proceedings before it arising out of an election petition, it must be deemed to have tried the petition and passed the order at the conclusion of such trial. It would no less be so when it decides a matter before it and there by brings the proceedings to a close on one of the several issues raised and does not decide the other issues. In such a case it has made the order after trial of that issue for clearly it cannot make an order on -any issue without trying it. It has therefore made the order at the conclusion of the trial held by it. And for this purpose, it makes no difference that the issue tried is of the nature usually called as preliminary issue or that the tribunal does or does not consider it necessary to try the remaining issues. ;