- (1.) THIS appeal has been preferred by Gian Chand against the decision of the election Tribunal, Kar-nal, dated 8th November, 1957 by which his petition challenging the election of Shrimati Om Prabha Tain respondent to the Punjab legislative Assembly from Kaithal Constituency had been dismissed on the ground that the election petition, did not comply with the mandatory provisions of Section 117 of the Representation of the People Act, 1951.
(2.) THE above election petition challenging the election of Shrimati Om Prabha Jain was filed on the 24th of April, 1957. On the 14th of October, 1957 when the case is said to have become ripe for arguments, an application on behalf of the respondent was filed alleging that Gian Chand Petitioner had not complied with the provisions of Section 117 of the Representation of the People Act, 1951 inasmuch as security, for Rs. 1,000/- deposit ed by him was not security for costs of the petition. It was prayed that the election petition be dismissed forthwith under Section 90 (3) of the Representation of the People Act. On the following day reply to this petition was filed stating that the petitioner had closed his evidence and that if at all, the point was allowed to be raised, it would re quire evidence for proper enquiry. The Tribunal, however, on the 8th of Novem- ber, 1957 dismissed the petition as stated above, holding that no other evidence except the deposit receipt itself could under the law be adduced and that the receipt did not show that the provisions of section 117 of the Representation of People Act had been complied with. Against this decision the present appeal has been preferred. ;
(3.) MR. Harbans Singh Doabia counsel for the respondent has raised a preliminary objection con-tending that the present appeal is not competent as the impugned order does not fall under Section 98 of the Representation of the People Act, 1951. He submits that Section 116-A of. the said Act provides an appeal only from orders) passed by a Tribunal under Section 98 or Section 99. Section 98 reads as follows : - "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 candidate) to be void and" the petitioner or any other candidate to have been duly elected. " Section 99, however, need not be reproduced as admittedly it does not arise for consideration in the present case. The argument of the learned counsel is, that dismissal of a petition under Section 90 (3) is not an order passed "at the conclusion of the trial of an election petition" but is an order passed be fore the actual trial begins. It is submitted that the Election Commission under Section 85 of the Act could have dismissed the election petition for non-compliance with the provi,-sions of Section 117. Similarly if the Tribunal dismisses the election petition on this ground, such dismissal cannot be considered to be covered by Section 98 in as much as a petition need not be tried for giving effect to a preliminary objection based on non-compliance with the provisions of Section 117. Though in the present case the objection with respect to non-compliance with the provisions of Section 117 of the Act was taken on 14th October, 1957, the date fixed for final arguments on the petition the decision of the Tribunal giving effect to this objection must nevertheless, according to Mr. Doabia be considered to be a decision given befora the conclusion of the trial. In support of his submission he has placed reliance on Harihar Singh v. Singh Ganga Prasad, a Division Bench decision of the Patna High Court reported as AIR 195s Pat 287. This decision certainly supports the counsel but for reasons to be stated hereafter i would, with the utmost respect to the learned Judges, disagree with the view expressed by them. Mr. Doabia has also relied on certain observations of the supreme Court in Jagan Nath V. Jaswant Singh, AIR 1954 SC 210. Reliance has particularly been placed on the obser- vations at page 214 of the report where it is ob- served- "in that case the question arose whether the petition was duly verified and whether it was ac-companied by all the necessary lists required by section 83 (2 ). An elaborate inquiry had to be conduct-ed to determine the point whether the petition was typed on blank paper signed by the petitioner or whether it was- signed by him or some person autho-rised on his behalf after it had been typed. It is thus clear that it is no valid explanation to say that Section 82 was omitted from the provisions of section 85 simply on the ground that the Election Commission was absolved From the duty of making elaborated inquiries at the stage when it had to say whether the provisions of Sections 81, 83 and 117 had been complied with. From the circumstance that Section 82 does not find a place in the provisions of Section 85 the conclusion follows that the directions contained in Section 82 were not considered to be of such a character as to involve the dismissal of a petition in limine' and that the matter was such as could be dealt with by the Tribunal under the provisions of the Code of Civil Procedure specifically made applicable to the trial of election petitions". ;