C. TADULINGA MUDALIAR Vs. M.R. SAKUNTALA BAI AND ORS.

JUDGEMENT

(1.) ELECTION Petition No. 5 of 1948 on the file of the Court of Small Causes, Madras, was filed by Mrs. Sakuntala Bai, the first respondent to this petition against three persons two of whom had been declared as the successful candidates in the election to the Corporation of Madras from the 40th Division (Chepauk) held on 30th September, 1948. The third respondent to her petition is the Commissioner, Corporation of Madras. In her petition for setting aside the election, the first respondent herein alleged several instances of irregularities in the conduct of the election as well as false personations and misrepresentations practised by the candidates. It was alleged that there was false personation of voters on a large scale and quite a large number of false votes were recorded in favour of the successful candidates. It was further alleged that many dead persons were " resuscitated " and voters who had left the division long before were impersonated and their votes recorded. The successful candidates filed written statements denying these allegations and the enquiry is now pending before the Chief Judge of the Court of Small Causes, Madras. M.P. No. 9782 of 1948 in Election Petition No. 5 of 1948 was filed on the 20th December, 1948, praying that the Commissioner of the Corporation of Madras may be directed to produce and deposit the documents mentioned therein in the Court and the first respondent herein may be granted leave to inspect the documents. The documents mentioned in the petition are ten in number beginning with " the marked copy of electoral rolls used by the Polling Officers at the four booths in the 40th Devision, Chepauk, on the day of election " and ending with " the statement of votes secured with particulars of invalid and duplicate votes polled for each candidate prepared at the counting of votes by the Commissioner of the Corporation of Madras." Among these are to be found : counted ballot papers; tendered ballot papers; unused ballot papers; spoilt ballot papers; counterfoils of ballot papers, etc.

(2.) ON this application the learned Chief Judge of the Court of Small Causes gave notice only to the Commissioner of the Corporation of Madras and passed the order which is now sought to be revised by the petitioner, one of the successful candidates.

(3.) AMONG the rules prescribed for the adjudication by the Court of Small Causes of disputes arising out of elections of Councillors or Aldermen of the Corporation of Madras, Rule No. 6 is to the effect that every election petition shall be enquired into by the Court (Small Cause Court) as nearly as may be, in accordance with the procedure applicable to the trial of suits in the Presidency Court of Small Causes, Madras (see page 136 of the Madras Corporation Code, Volume I). Order XI, Rules 1 and 2 of the Small Cause Court Rules provide for inspection of documents, just as Order XI provides for inspection of documents under the Code of Civil Pro - cedure. Ordinarily, in the trial of a suit if a party seeks inspection of documents in the possession or custody of the other party, in an application to the Court filed for that purpose, whether supported by an affidavit or otherwise, notice has to be issued to the opposite party before such inspection is ordered. In this case there is no dispute whatever that no such notice was ordered. How far the order of the learned Chief Judge passed in the absence of notice to the contesting respondents, though they are not in possession of the documents of which inspection is sought, is, in the exercise of jurisdiction, is a question that has got to be considered.