B. Dayal J. - (1.) THIS appeal under Section 11 6- A of the Representation of the People Act, 1951 has been referred to this Full Bench because there appeared to be an apparent conflict between two Division Bench cases of this Court re ported in Vishwanath Prasad v. Malkhan Singh Sharma, AIR 1964 All 181 and B. P. Maurya v. Election Tribunal, 1964 All LJ 155 on the question whether the Election Tribunal while hearing an elec tion petition had the power to dismiss the election petition under O. 9, R. 8 of the Civil Procedure Code for default of ap-pearance of the election-petitioner and also to restore it in a proper case under O 9, R. 9 of the same Code.
(2.) AFTER hearing learned counsel for both the sides at length, I have come to the conclusion that in this appeal this question is of a mere academic interest and it is unnecessary to decide it. The facts of the case may be brief ly stated. Respondent No. (Shri Sitaram) (hereinafter referred to as the respondent) was elected a member of the Council of the State (Rajya Sabha) from the Uttar Pradesh State Assembly con stituency on the 29th of March, 1962. The appellant was a member of the Uttar Pradesh Legislative Assembly and was, as such, a voter in the Constituency. This election petition was, therefore, filed by a voter on the 14th of May, 1962 alleging, inter alia, several instances of corrupt practices of bribery and undue influence. A written statement was filed on the 30th of July, 1962 denying the allegations of corrupt practices, etc. Issues were framed on the 25th January, 1963 and thereafter several dates were hearing which had to be postponed for some rea son or the other.Ultimately on the 27th of January, 1965, on which date the elec tion-petition was fixed for final hearing, neither the election-petitioner nor his counsel appeared. The clerk of the coun sel asked for an adjournment of the case. The case was fixed for the 1st of Febru ary 1965 and on that date in the presence of the counsel for both the sides, the case was fixed for the 19th of April, 1965. On this date again the petitioner did not appear and the counsel stated that he had no instructions. Although the counsel did not withdraw his vakalat-nama from the case yet on account of his statement that he had no instructions to proceed with the matter, the position was that the petitioner was neither himself present nor was he represented before the Election Tribunal on that date. The Tribunal then asked the respondent's counsel as to what was the proper pro cedure, whereupon the respondent's coun sel suggested that the petition be dis missed for default. But the Tribunal, on a review of law, came to the conclusion that it could not dismiss the petition finally merely for default of the petitioner but had to go into the facts of the case and decide it on merits. The Tribunal, there fore, by an order dated the 20th of April, 1965. directed the case to be listed on the 22nd of April, 1965 for decision on merits. On the 22nd of April, 1965. the Tri bunal recorded the statement of the res pondent and reserved judgment. On the 27th of April, 1965, the Tribunal passed an order dismissing the election-petition as there was no evidence on record to support the allegations of the petition and which allegations had been denied both in the written statement and in the state ment on oath by the respondent and which the Tribunal believed. It will thus be seen that from the 27th January, 1965 till the 27th of April, 1965, when the order under appeal was delivered, the elec tion-petitioner remained absent and did not take any steps or appeared in the case. The petitioner thereafter did not file any application before the Tribunal asking it tc set aside the ex parte order showing any grounds which could be sufficient for his non-appearance. Instead he filed the present appeal on the 5th of July, 1965. In this appeal as many as twelve grounds have been taken but none of them even suggests that the petitioner-appellant had sufficient reason for his non-appearance on the relevant dates before the Tribunal.
(3.) IT has now been argued in this ap peal that the Tribunal had jurisdiction under O. 9, R. 8 of the Civil P. C. to dis miss the petition in default and the Tri bunal erred in not dismissing the election-petition in default but in deciding the same on merits. It is contended that if the petition had been dismissed in default, the petitioner-arDellant would have had an opportunity of making an application for restoration under O. 9, R. 9 of the Code. On this ground, the order of the Tribunal is assailed. In the circumstances of the present case, it is quite clear that the decision of the Tribunal was_ given in the absence of the election-petitioner and was, therefore, in fact, an ex parte deci sion. The mere fact that the Tribunal while dismissing the election-petition also went into the facts of the case and held that the allegations had not been proved, would not make the decision other than an ex parte one. For instance, when an ex parte decree is passed in the absence of a defendant the judgment on which the decree is based is on merits, after consi dering the plaintiff's evidence, in the ab sence of the defendant and yet the decree is an ex parte decree and can be set aside under O. 9, R. 13 of the Civil P. C., if the defendant shows sufficient cause for his non-appearance. The decision of the Tribunal in the present case thus being apparently an ex parte decision, the elec tion-petitioner should have filed an appli cation under O. 9, R. 9 of the Civil P. C. to set aside the ex parte decision, if the petitioner was advised that O. 9, R. 9 of the Civil P. C. was applicable and the Tribunal could set aside its order on being satisfied that the petitioner had sufficient cause not to appear. But no such applica tion was made and in the absence of any such application, the argument advanced in this Court that such an application could have been made, is a mere academic discussion and it is wholly unnecessary to decide that point in this case.;