DWARKA PRASAD, J. - (1.) This matter has come before us on a reference made by a Division Bench of this Court and arises out of an appeal filed under S.18 of the Rajasthan High Court Ordinance, 1949.
(2.) The appellant Ramdhan was declared elected as a Member of the Rajasthan State Legislative Assembly from the Ladnu Legislative Assembly Constituency on June 1, 1980. The respondent Bhanwarlal claiming himself to be an elector of the Ladnu Constituency presented an election petition in this Court on July 14, 1980 alleging that Ramdhan was guilty of corrupt practice specified in S.123(7) of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act'), on account of his incurring expenditure in contravention of the provisions of S.77 of the Act. According to the petitioner Bhanwarlal, the expenditure incurred by the returned candidate Ramdhan, in connection with the aforesaid election, exceeded the maximum limit authorised to be incurred by the notification dated November 29, 1979. However, no prayer was made in the election petition filed by Bhanwarlal. The election petition was supported by an affidavit of Bhanwarlal petitioner stating that he has filed the election petition calling in question the election of Ramdhan respondent. Probably, realising the defect in the election petition on account of the absence of a prayer clause, Bhanwarlal submitted an application on July 26, 1980, under O.6, R.17, C.P.C. read with S.87 of the Act, seeking to amend the election petition by addition of the following prayer clause : - "It is, therefore, prayed that the Election Petition may kindly be accepted with costs and the election of the respondent Ramdhan may be declared to be void u/s. 100 of the Representation of the People Act." It was stated in the amendment application that the omission of the aforesaid prayer clause in the original election petition was purely a typographical error and was committed due to oversight. The application for amendment of the election petition was contested by the returned candidate Ramdhan on the ground that the original election petition, as presented by Bhanwarlal without a prayer clause, was not at all an election petition in the eye of law and that such a defective petition could not be allowed to be converted into a proper election petition by making an amendment therein, after the expiry of the period of limitation fixed for filing an election petition in the matter. The learned single Judge, hearing the election petition, held that the absence of a prayer clause in the election petition was merely an inadvertent mistake on the part of the election petitioner and the said error should be allowed to be rectified by amendment. The argument that if the amendment sought was allowed, it would constitute a new election petition, was rejected. It was held that the right of the returned candidate would not be prejudiced by allowing the amendment asked for and as such the application for amendment of the election petition was allowed on payment of Rs. 250/- as costs.
(3.) The returned candidate Ramdhan thereafter filed a special appeal in this Court under S.18 of the Rajasthan High Court Ordinance, 1949 (hereinafter called 'the Ordinance') against the aforesaid order passed by the learned single Judge, allowing the amendment of the election petition. The Division Bench, before whom the special appeal came up for hearing felt that important questions of law were involved in the case and as such referred the special appeal to a larger bench for decision and the questions of law involved therein were summarised by the Division Bench as under : - 1. that the Representation of the People Act is a self-contained statute and the right of appeal is regulated by section 116-A of it. No appeal lies to the High Court as Section 116-A provides the appeal to the Supreme Court. 2. that the appeal under clause 18 of the Rajasthan High Court Ordinance cannot be filed in the High Court, because by enactment of the above provision of S.116-A, the legislature has intended to exclude any such right of appeal before Division Bench, 3. that in any case, the order granting the amendment is an interlocutory interim order, which is neither a preliminary nor a final judgment. It also nowhere creates rights or liabilities and, therefore, no appeal can be filed under clause 18 of the Rajasthan High Court Ordinance.";