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Muhammad Ekram Khan and anr. Vs. Mirza Muhammad Bakar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All106; 152Ind.Cas.817
AppellantMuhammad Ekram Khan and anr.
RespondentMirza Muhammad Bakar and ors.
Cases ReferredBarellly v. Abdul Aziz Khan
Excerpt:
- - 3. an illustration would make the point perfectly clear. i am satisfied that muhammad ikram khan possesses the necessary qualifications to be enrolled as an elector. 4. on 20th november 1928, the present suit was instituted against muhammad ikram khan, the returning officer, the municipal board as well as the executive officer of the board. if he were satisfied that injury was likely to be caused to the plaintiff he had jurisdiction under order 39, rule 2, to issue a temporary injunction. the question whether ultimately he discovered that the suit did not lie or that it should fail on some other ground did not oust his jurisdiction under that rule. the surviving plaintiffs must bear their own costs and pay the costs of the municipal board, muhammad ikram khan as well as of mr......a supplementary electoral roll was prepared on 10th november 1928, under the order of the revising committee which confirmed the inclusion of muhammad ikram khan's name previously ordered by the returning officer. previous to this, objections had been filed against the inclusion of muhammad ikram khan's name, but they were summarily rejected by the revising committee on the ground that they had not been shown in the original electoral roll. one abdul alim filed an application before the district magistrate objecting to the inclusion of muhammad ikram khan's name and on the same day, namely, 17th november 1928, the district magistrate passed the following order:i am satisfied that muhammad ikram khan possesses the necessary qualifications to be enrolled as an elector. his name.....
Judgment:

1. This is a defendants' appeal arising out of a suit brought by four plaintiffs jointly for an injunction restraining defendant 1 from recording his vote at a Municipal election and for a declaration that defendants 2 and 4 be ordered to have the votes already recorded declared invalid. The claim was decreed in favour of all the plaintiffs and that decree was upheld on appeal by the District Judge. While a second appeal was pending in this Court at least one of the plaintiffs-respondents, if not two, died and no steps were taken to bring any legal representatives on the record. A preliminary objection is taken on behalf of the respondents that the appeal having abated against one or two of the plaintiff-respondents who had got a joint decree, it has become infructuous and must abate in toto or, at any rate, be dismissed. We are unable to accept this contention. Either the suit brought was one brought in a representative capacity or it was brought in the exercise of the rights of the individual plaintiffs. If it was a representative suit then the observations of their Lordships of the Privy Council in Raja Anand Rao v. Ram Das Daduram 1921 P.C. 123, would apply to this case, and the appeal cannot be said to have abated.

2. On the other hand, as appears to be the case here if the suit was brought on behalf of the plaintiffs in their individual capacities then it would have been the duty of the appellants to bring the heirs of the deceased respondents on the record only if : (1) the right to sue did not survive to the surviving plaintiffs, or (2) the sole plaintiff had died and the right to sue survived within the meaning of Order 22, Rule 3. If the suit were not of a representative character then the right of the deceased plaintiff could not survive to the surviving plaintiffs. Furthermore, the claim was based on the fact that the plaintiffs were members of the Board which was a personal matter and their right to sue could not survive to their legal heirs. It is thus clear that neither of the two necessary requisites laid down in Order 22, Rule 3, apply to this case and therefore the appellants could not possibly have applied under that rule for bringing on the record the legal representatives of the deceased inasmuch as no such representatives in the eye of the law existed. The omission to do what could not legally have been done cannot therefore be fatal to the appeal.

3. An illustration would make the point perfectly clear. Had one of these plaintiffs died soon after the decree was passed by the lower Court and before the appeal could be filed could it be said that the defendants had no right of appeal because of the death of a respondent? It is impossible to hold that where the right to sue does not survive, the death of one of the plaintiffs whose legal representatives cannot be brought on the record is fatal to the appeal. We accordingly overrule the preliminary objection. Coming to the facts of the case; it appears that 9th December, was fixed for a Municipal election. An electoral roll was prepared sometime before 1st September 1928, and was posted at the office of the Municipality at Benares. Later on, on a report made by the office the Returning Officer directed that Mr. Hadi Hasan, a Deputy Collector, should examine the list and on his recommendation that certain names should be included the Returning Officer ordered 'now enter.' Accordingly a supplementary electoral roll was prepared on 10th November 1928, under the order of the Revising Committee which confirmed the inclusion of Muhammad Ikram Khan's name previously ordered by the Returning Officer. Previous to this, objections had been filed against the inclusion of Muhammad Ikram Khan's name, but they were summarily rejected by the Revising Committee on the ground that they had not been shown in the original electoral roll. One Abdul Alim filed an application before the District Magistrate objecting to the inclusion of Muhammad Ikram Khan's name and on the same day, namely, 17th November 1928, the District Magistrate passed the following order:

I am satisfied that Muhammad Ikram Khan possesses the necessary qualifications to be enrolled as an elector. His name rightly stands on the roll, and will stay there Rejected.

4. On 20th November 1928, the present suit was instituted against Muhammad Ikram Khan, the Returning Officer, the Municipal Board as well as the Executive Officer of the Board. The reliefs claimed were those for injunctions. On 8th December, that is just one day before the date fixed for the election, the plaintiffs asked the Court to issue a temporary injunction against the defendant, Mr. Upadhia, which prayer was granted. Mr. Upadhia at the time was the Returning Officer. He ignored the injunction and did not obey it and proceeded to complete the election. On an application made by the plaintiffs against him complaining that he had not obeyed the injunction, he was asked to explain his conduct. The only explanation which he offered was a statement that he had consulted the District Magistrate and that it was his duty to carry out the orders of his superior authority. It is therefore not surprising that both the learned Munsif and the District Judge have passed strictures on the conduct of Mr. Upadhia. Both the Courts below have held that inasmuch as there were gross irregularities committed in this election, the Civil Court has jurisdiction to entertain the claim. It has been pointed out that no formal notice was issued of the preparation of the supplementary electoral roll and that the additions made by the Returning Officer were not submitted to the District Magistrate for any confirmation. The Courts below have come to the conclusion that in view of these serious irregulaties the authorities concerned refused to function as they ought to have done, and that therefore the jurisdiction of the Civil Court is not barred.

5. It is necessary in this case to examine the provisions of the Municipalities Act, and the rules made thereunder in order to see whether the Civil Court has any jurisdiction. In the body of the Municipalities Act, itself, as it stood in 1928, there is no provision which in express terms ousts the jurisdiction of the Civil Court as regards matters pertaining to elections; but Section 29 confers authority on the Local Government to make rules with reference to qualifications of candidates, preparation, and revision of electoral rules and candidates' lists, nomination of candidates, etc. On 30th June 1928, the Local Government had notified in the Gazette the election rules which were in force on the maternal dates.

6. Under Rule 3 the District Magistrate was empowered to appoint a person called the Returning Officer to perform certain duties. Under Rule 4 electoral rolls have to be prepared on or before 1st September, proceeding the election. Under Rule 9 copies of the electoral roll have to be fixed up at the Municipal Office. Under Rule 10 certain persons are entitled to object to the electoral roll Under Rule 11 such claims and objections are heard by a Revising Committee consisting of the Returning Officer and two members of the Board. Then under Rule 12 the Returning Officer is empowered to make amendments in the electoral roll, whether claims and objections have been preferred or not, after causing such notice as he considers reasonable to* be given to persons affected and after making such inquiry as he deems necessary. Rule 13 then provides that the proceedings of the Revising Committee in respect of each claim or objection of which notice has been given, and of the Returning Officer in respect of an irregular entry of which he has taken cognizance, shall be reduced to writing and shall, within seven days after the last sitting of the Revising Committee, be submitted to the District Magistrate whose orders thereon shall be final. Rule 14 then provides:

Subject to any orders of the District Magistrate on the proceedings of the Revising committee or the Returning Officer and to any correction in any electoral roll enjoined by the District Magistrate of his own motion or on application being made to give any time within 20 days after the last sitting of the Revising Committee (a) the orders made by the Revising Committee or by the Returning Officer shall be final (b) the electoral roll shall be amended in accordance with those orders and (c) the electoral roll so amended shall not be altered so long as it continues in operation.

7. There is however, a proviso in respect of persons who may be dead or who may be disqualified under Section 14(3), Municipalities Act. It is not necessary to refer to other rules. It is quite clear that the right conferred on people residing in a ward is merely to object to the preparation of an electoral roll within the prescribed time and to submit their grievances before the Revising Committee. The only other authority who can revise the order of the Revising Committee is the District Magistrate. Subject to any order passed by the District Magistrate, the order made by the Revising Committee is final. The order of the District Magistrate also is final; and the electoral roll has to be amended in accordance with such orders and the electoral roll so amended cannot be altered.

8. In view of these provisions in the rules, there can be no manner of doubt that the only right which the plaintiffs had was to prefer their objections before the Revising Committee and then ultimately to appeal to the District Magistrate. But the District Magistrate's order whether it was for or against the applicants and whether it was right or wrong has to be final. A Civil Court could therefore prima facie, have no jurisdiction to question the order of the District Magistrate which, under the rules, is declared to be final. The Courts below have taken the view that because the proceedings were not submitted by the Revising Committee to the District Magistrate, no finality attached to it, but that is quite a wrong view to take for three reasons. In the first place, the order of the Revising Committee is itself final subject to any order that might be made by the District Magistrate. If the District Magistrate has not modified that order, it stands. In the next place, it is not clear that one week had expired after the last sitting of the Revising Committee. But in any case the matter was brought to the notice of the District Magistrate at the instance of Abdul Alim and he ordered that the name of Muhammad Ikram Khan was rightly entered in the electoral roll and should stay there. This was tantamount to a confirmation by the District Magistrate of the proceedings of the Revising Committee.

9. In the third place, under Rule 14, the District Magistrate was empowered 'of his own motion' to add a name and his order, to say the least, might amount to an addition of a name on his own motion. We however find it unnecessary to express any final opinion on these questions and we are prepared to assume in favour of the plaintiffs that irregularities were committed in I the omission to submit the proceedings of the Revising Committee formally before the District Magistrate. But it by no means follows that such omissions or irregularities would vest in the Civil Court jurisdiction to re-open the matter and question the propriety of any order passed by the Revising Committee or the District Magistrate. In matters of -procedure there are frequently non-compliances with the existing rules and it may be that sometimes irregularities are committed. Some irregularities may or may not be grounds for filing a petition before a Commissioner. In some cases arising under the Cantonments Act, and the District Boards Act this Court has recently expressed the opinion that civil suits are not maintainable. We may briefly refer to the case of Cantonment Board, Agra v. Kanhaiya Lal 1933 All 163, Joti Prasad v. Amba Prasad 1933 All. 358 and Ghulam Nizam-ud-din v. Akhtar Hussain Khan 1933 All. 764. In the second mentioned case the Bench, expressly dissented from the view expressed in Sarvothama Rao v. Chairman, Municipal Council, Saidapet 1923 Mad. 475; and in the last mentioned case it was emphasised that where a special Tribunal is created by an Act of the Legislature which states that the decision of the Tribunal shall be final, the High Count cannot interfere by way of appeal or revision with the decisions of such Tribunals.

10. In this connexion we may also refer to the case of Municipal Board, Barellly v. Abdul Aziz Khan 1934 All. 795. We are of opinion that the orders passed by the Revising Committee or the District Magistrate under the election rules framed by the Local Government are final and cannot be impugned in a civil suit. The learned Counsel for the appellants has also urged before us that Section 80, Civil P.C., applied to this case and without previous notice the suit was not maintainable. Section 80 cannot possibly apply to any of the defendants other than Mr. Shimbhu Nath who was a Deputy Magistrate, but Mr. Shimbhu Nath who had been appointed as the Returning Officer by the District Magistrate for the purposes of this election and who was doing the election work of this Municipality at the time cannot be said to be a public officer who was acting in that connexion in his official capacity as such public officer. A public officer, for the purpose of Section 80, is defined in Section 2(17) and none of the categories mentioned therein would include such a Returning Officer. We therefore think that Section 80 is inapplicable. It has to be conceded that the notice under Section 326, Municipalities Act was not necessary in this case because the reliefs claimed were those of an injunction and came within the last proviso.

11. We also think that there is no force in the contention urged on behalf of the defendants that even if the Civil Court had jurisdiction to entertain the suit and grant relief to the plaintiffs, the declaration granted was ultra vires. What happened was that owing to the election having already taken place, the learned Munsif considered it to be futile to grant a decree for injunction and he accordingly substituted therefor declaration. Had we been of the opinion that the learned Munsif had jurisdiction to entertain the suit, we would have seen nothing objectionable in this. As the learned Munsif in his judgment has drawn the attention of the High Court to the conduct of Mr. Upadhia, we think it necessary to observe that, having regard to the very belated application of the plaintiffs filed on the eve of the date fixed for the election, although they had had over two weeks rime before, the learned Munsif acted injudiciously in issuing an injunction against the Returning Officer which would put a stop to the carrying out of the election. The plaintiffs should have filed an application earlier so that if the Court issued a temporary injunction, the opposite party would have had a fair opportunity to appear and show cause before the critical date arrived. We also find that in the judgment of the learned Munsif there are several sentences which, by implication, cast a personal reflection on officers who are no parties to the suit. We have not thought it necessary to order their expunction, but we would certainly remark that they were inappropriate.

12. We are unable to hold that the learned Munsif had no jurisdiction to issue a temporary injunction. At the stage at which the application was made before him, he had not had the time to consider whether the suit itself was maintainable and was cognizable by the Civil Court. At that time a civil suit was pending in his Court. If he were satisfied that injury was likely to be caused to the plaintiff he had jurisdiction under Order 39, Rule 2, to issue a temporary injunction. The question whether ultimately he discovered that the suit did not lie or that it should fail on some other ground did not oust his jurisdiction under that rule. If he had issued injunction against persons who were no parties before him, the position might possibly have been different, but here the injunction was issued by the learned Munsif against Mr. Upadhia who was a defendant in the suit and who was therefore under the jurisdiction of the Court. Notice of this was duly served upon him on 8th December. It was his duty to obey the injunction and to move the Court at the earliest opportunity to have the ex parte order set aside. He appears to have been ill-advised in ignoring it. He expressed no regret and offered no apology when he was called upon by the learned Munsif to explain his conduct and merely took shelter behind the statement that he acted under the advice of the District Magistrate. In these circumstances, the conduct of the defendant who disobeyed the injunction issued by the Munsif was certainly reprehensible and he might have been made liable although the peculiar circumstances of the case furnished extenuating circumstances.

13. The last point to be considered is whether the order of the Courts below saddling the Municipal Board with the costs of defendants 2 and 4, was right. The Municipal Board itself had really no direct concern with this dispute regarding election. The complaint was against the Returning Officer who had been appointed by the District Magistrate and against members of the Revising Committee who had belonged to the old Board. They are not parties to the suit. The order therefore was unjust. It is not necessary to say much on this point because now the claim will have to be dismissed as against the Municipal Board. We may however point out that defendants 2 and 4 having obtained a decree for costs against the Municipal Board, have not thought it necessary to appeal to the High Court. So far as Mr. Upadhia is concerned, we think that having regard to his conduct in disobeying the injunction issued by the learned Munsif, he should be made to bear his costs throughout. We however direct that the costs of Mr. Shimbhu Nath should be borne by the plaintiffs.

14. We accordingly allow this appeal and setting aside the decree of the Courts below dismiss the plaintiffs' suit with costs in all Courts. The surviving plaintiffs must bear their own costs and pay the costs of the Municipal Board, Muhammad Ikram Khan as well as of Mr. Shimbhu Nath. The defendant, Mr. Upadhia, will bear his own costs throughout.


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