Narayana Pai, C.J.
1. The petitioner, who was a successful candidate at an election to the Taluk Development Board of Kushtagi, was a respondent in an election petition questioning or challenging his election. The petition was presented to the Munsiff at Kustagi under Section 106 of the Mysore Village Panchayats and Local Boards Act, 1959. The Munsiff dismissed the petition for default of appearance of the election petitioner on the 14th of August, 1969. On the 19th of the same month an application was made for restoration of the petition. It was restored by an order of the Munsiff dated the 2nd day of September, 1969, reading as follows:--
'Heard Advocates on both sides. For the reasons stated in the affidavit, in the interest of justice the order of dismissal is hereby set aside on payment of costs to respondents Nos. 3 and 4 of Rs. 20/- by petitioner in this case.' Respondent 4 is the present petitioner, The record also shows that respondents 1 and 2 (in the election petition) has no objection and what is described as an objection petition filed by respondents 3 and 4 in the Munsiffs Court was not supported by any affidavit.
2. An appeal to the District Judge, Ralchur, by the present petitioner has also been dismissed.
3. The point urged on behalf of the petitioner by Mr. Swami is that the Munsif, though a persona designate has the power of dismissing an election petition for default of appearance, but once he does so, he becomes functus officio and has no further power to restore the petition. He relies upon a ruling of the Madras High Court reported in Koti Reddy v. Venkayya, : AIR1951Mad813 . Mr. V. S. Kulkarni for the respondent (election petitioner) contends that the principles stated by this Court in the case of Chaluvaraju v. N. T. Ramaswamigowda, (1969) 1 Mys LJ 585 while dealing with sub-section (7) of Section 106 of the Mysore Village Panchayats and Local Boards Act, apply to the case of the Munsiff also acting under Sub-section (2) of the same section, and that therefore, a Munsiff, hearing an election petition under that sub-section has no power to dismiss the petition for default.
4. The Madras case proceeded upon the language of the rule relating to or governing the trial of election petitions there considered and observed that the conferment of powers of the Civil Court under the Civil Procedure Code on authorities of that nature for the purposes of conducting the enquiry, is not in itself sufficient to confer upon such authorities all the powers of a Civil Court. It is not clear from the judgment whether the rules conferred any power on the election Tribunal in that case the power to dismiss a petition for default.
5. In the decision of this court, it has been expressly stated that 'when a court or authority is empowered to decide an appeal or decide any dispute, the mandate of the statute is that the court or authority should decide the same after examining the merits.' It is also observed that the power to dismiss a matter for default is a power which should be expressly conferred upon an authority; and that otherwise, or in the absence of such conferment of the power to dismiss for default, the power of adjudication must necessarily be read as casting upon the authority a duty to examine the merits of the case and then come to a decision.
6. The decision of this court relied upon by Mr. Kulkarni appears to us to have a more direct bearing on the controversy now raised before us. It is not a difficult or unworkable principle nor will the courts as Mr. Swami apprehends find themselves helpless if the parties persistently commit default. After giving sufficient opportunity to the parties, it is undoubtedly possible for the Munsiff to come to a decision on the merits upon such evidence as the parties have placed on record. If any party, on whom the burden of proof lies in respect of any issue, fails to adduce evidence it is open to the Munsiff to record a finding that the party, on whom the burden of proof lies, having failed to adduce evidence the issue must be found against him.
7. There is, therefore, considerable force in the argument that the original dismissal for default itself was one made without jurisdiction or in contravention of law, and that, therefore, the subsequent correction thereof should not be interfered with under Article 226 of the Constitution.
8. We, therefore, decline to interfere and dismiss the writ petition.
9. The Munsiff will dispose of the election petition on his file expeditiously.