J. Sahai, J. - (1.) The petitioner Sri B. P. Maurya and the respondents Nos. 2 to 6 were candidates in the last general elections from the Parliamentary Constituency 77 district Aligarh. The petitioner Sri B. P. Maurya was declared elected, whereupon the respondent No. 2 Sri Shiv Kumar filed an election petition before the Election Commission. An election tribunal was appointed to try this election petition. First Sri S. P. Roy, who was the then District Judge, and thereafter the present incumbent of that office Sri Bir Singh was appointed as Presiding Officer of this tribunal. The recording of the evidence for the parties on 15-7-1963, and continued from day-to-day. On July 24, 1963, neither the petitioner Sri Shiv Kumar nor his counsel were present. The tribunal at 2.25 p.m. passed an order dismissing the petition in default without mentioning the provision under which he acted. An application purporting to be under Order IX, Rule 9, read with Section 151, C.P.C., was made the same day soon after the order of dismissal for default was passed. Notice of that application was issued to Sri B.R. Dhawan, the learned counsel for Sri B. P. Maurya, only and not to Sarvsri Jagan Nath, Jarrar Haider, Nahar Singh and Basant Rao, though they were arrayed as respondents in the election petition. The next day (25-7-1963) Sri B. R. Dhavan the learned counsel for Sri B. P. Maurya, made an application praying that the application made by Sri Shiv Kumar under Order IX, Rule 9 read with Section 151, C.P.C. be dismissed. The same day the tribunal passed an order setting aside the dismissal order dated 24-7-1963 on payment of Rs. 25/- as costs. It is against this order that the present writ petition has been filed.
(2.) We have heard Sarvsri Ambika Prasad and K. L. Grover for the petitioner Sri B.P. Maurya and Sri Varshni for the respondent No. 2 Sri Shiv Kumar. On behalf of the petitioner the following two submissions have been made:- (1) That having dismissed the election petition even for default of the petitioner the tribunal became not only functus officio but ceased to exist. It had, therefore, no jurisdiction to pass the impugned order and to continue the proceedings arising out of the election petition. (2) That in any case the tribunal had no jurisdiction to pass the impugned order without issuing notice of the application to the respondents (i.e. Sarvsri Jagan Nath, Jarrar Haider, Nahar Singh and Vasant Rao). We will take the submission seriatim.
(3.) It is well settled that the Representation of the People Act is a self-contained Code which deals with all the matters relating to elections: See Inamati Mallappa Basappa v. Desai Basauaraj Ayyappa, A.I.R. 1958 S.C. 698. The submission on behalf of the petitioner is that the tribunal is not a regular and permanent court functioning intermittently but an ad hoc tribunal appointed only to decide the particular election petition and once it had put an end to the petition by dismissing it even for default it had completed the function for which it was appointed and automatically ceased to exist thereafter, with the result that it could pass no further orders or continue the proceedings. Section 90 of the Representation of the People Act provides the procedure for trial before the tribunal. The relevant portion of that section reads as under:- "Procedure before the Tribunal:- Subject to the provisions of this Act and any rules made thereunder, every election petition shall be tried by the tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908), to the trial of suits." In view of the fact that the Act does not provide its own procedure for trial the power for dismissal for default can only be culled out from the provisions of the Code of Civil Procedure. The tribunal, therefore, when it dismissed the election petition for default on 24-7-1963 did so presumably under Or. IX, Rule 8, C.P.C. If the Code of Civil Procedure is applicable so as to confer on a tribunal the power of dismissing an election petition for default such of its provisions which permit the setting aside of that order would and should also be applicable. Consequently, Order IX, Rule 9, C.P.C. would apply to the trial of an election petition. The objection of the learned counsel for the petitioner, however, is that provisions would not be applicable in view of the circumstances that the petition having been dismissed for whatever cause, including dismissal for default, the tribunal ceased to exist. For this reliance is placed upon the Lloyds Banks v. Lloyds Bank and Indian Staff Association, A.I.R. 1956 S.C. 746 , which was a case under the Industrial Disputes Act and was decided in 1953 though reported in 1956. In this case it was held by the Supreme Court that when a tribunal has ceased to exist and its members are subsequently engaged in the performance of other official duties, the tribunal cannot be said to continue in a sort of suspended animation. It is contended on behalf of the petitioner that Sri Bir Singh, the District Judge, Aligarh, once having dismissed the case for default ceased to function as the tribunal though he continued to function as the District and Sessions Judge, Aligarh. In Hari Vishnu Kamath v. Ahmad Ishaque, A.I.R. 1955 S.C. 233 which was a case under the Representation of the Peoples Act, the original judgment in Lloyds Bank A.I.R., 1956 S.C. 746 case was considered and it was stated that certain aspects had not been placed before the Court at the time when that case was decided. In Bhikaji Keshao Joshi v. Brijlal Nand Lal Biyani, A.I.R. 1955 S.C. 610 which was also a case under the Representation of the Peoples Act, the question with regard to the reconstitution of the tribunal arose. The Supreme Court held in Hari Vishnu Kamath's, A.I.R. 1955 S.C. 233 case as also in Bhikaji Keshao Joshi's, A.I.R. 1955 S.C. 610 case that an election tribunal could be reconstituted in order to re-decide the election petition. It is difficult to see how reliance can be placed on the Lloyds Bank's, A.I.R. 1956 S.C. 746 case in the face of the subsequent decisions in Hari Vishnu Kamaths, A.I.R. 1955 S.C. 233 and Bhikaji Keshao, A.I.R. 1955 S.C. 610 Section 90 (1) of the Act no doubt uses the words "as nearly as may be." But these words do not render Order IX, Rule 9, C.P.C., inapplicable. If Order IX, Rule 8 could apply, it is difficult to see why the application of Order IX, Rule 9, C.P.C. would be inconsistent with the word "as nearly as may be" occurring in Section 90 of the Act. Under the Act an election tribunal even after deciding the case has to perform certain statutory duties. It has to communicate to the Election Commission the result of its decision under the provisions of Section 103 of the Act. Consequently it cannot be said that the mere decision of the case brings about the termination of the Tribunal for all purposes. The view that Order IX, Rule 9, C.P.C. would be applicable finds support from Bhuvanesh Bhushan v. Election Tribunals, A.I.R. 1958 All. 587 a decision of our court and Sunder Lal v. Nandramdas Dwarkadase, 14 E.L.R. 68 where the Madhya Pradesh High Court in the circumstances similar to those before us held that the tribunal had jurisdiction to set aside an order dismissing the petition for default. This Court in Raja Bahadur Kishore Raman Singh v. G.C. Agarwala, 19 E.L.R. 164 had to deal with the question as to whether an election tribunal can take proceedings under Section 476, Cr.P.C. after the conclusion of the trial of the petition and it was held that the tribunal was competent to do so, and the fact that it had already decided the election petition does not divest it of the jurisdiction to take proceedings under Section 476, Cr.P.C.;