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The Returning Officer, Municipal Board Vs. Mohammad Ali HusaIn Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in143Ind.Cas.143
AppellantThe Returning Officer, Municipal Board
RespondentMohammad Ali HusaIn Khan
Excerpt:
.....(e) where the subordinate court has acted in the exercise, of its jurisdiction illegally and with material irregularity. it is a matter of admission also that there is no question, of his having failed to exercise a jurisdiction with which he has been vested by law. clearly the learned judge has jurisdiction to entertain the appeal against the munsif's order discharging the injunction. where there has been an illegal exercise of jurisdiction or a material irregularity becomes a dead letter upon a consideration of the rulings referred to, however, it is perfectly, clear that, the decisions do not support the contention of the counsel for the opposite party in this respect. there may be many cases in which a judge has not exercised a jurisdiction with which he has not been vested or has..........(e) where the subordinate court has acted in the exercise, of its jurisdiction illegally and with material irregularity.4. counsel for the opposite party took a preliminary objection to these applications.5. it is not in dispute that the district judge did not assume a jurisdiction with which he was not clothed by law. it is a matter of admission also that there is no question, of his having failed to exercise a jurisdiction with which he has been vested by law. counsel for the applicant however has argued that these applications come within that part of the clause of section 115, civil procedure code, relating to the exercise by the subordinate judge of his jurisdiction in an illegal manner or with material irregularity.6. in support of his argument counsel for the applicant has.....
Judgment:

Thom, J.

1. These are applications in Civil Revision against an order of the District Judge of Shahjahanpur granting an injunction to restrain the respondent, the returning officer, from holding elections in ward No. 7 in the Shahjahanpur City.

2. The Municipal election had been fixed to take place on the 5th of December 1931. Before this date however the respondent applied for an injunction in the Munsif's Court against the returning officer restraining him from holding the election on this date on the ground of certain irregularities alleged against the returning officer in regard to the initial steps connected with the preparation of the electoral roll. The Munsif in the first instance granted the injunction. On a later date however upon a reconsideration of the matter he discharged the injunction. The opposite party thereupon appealed to the District Judge who restored the injunction against the returning officer. The returning officer comes now to this Court in Civil Revision praying that the order of the District Judge be set aside.

3. These applications are made under Section 115 of the Code of Civil Procedure. Under that section this Court may entertain an application of this sort only in three instances, namely (a) where it appears that the Subordinate Court has exercised a jurisdiction not vested in it by law, (b) where it has failed to exercise a jurisdiction so vested and (e) where the Subordinate Court has acted in the exercise, of its jurisdiction illegally and with material irregularity.

4. Counsel for the opposite party took a preliminary objection to these applications.

5. It is not in dispute that the District Judge did not assume a jurisdiction with which he was not clothed by law. It is a matter of admission also that there is no question, of his having failed to exercise a jurisdiction with which he has been vested by law. Counsel for the applicant however has argued that these applications come within that part of the clause of Section 115, Civil Procedure Code, relating to the exercise by the Subordinate Judge of his jurisdiction in an illegal manner or with material irregularity.

6. In support of his argument Counsel for the applicant has maintained that the District Judge by directing that the returning officer is at liberty to proceed with the election on the basis of the electoral roll of 1928 has acted illegally or with material irregularity. From the terms of the judgment of the District Judge however it is plain that he made no order upon the returning officer to proceed with the election on the basis of the 1928 roll. He expresses his opinion that it is open to the returning officer so to proceed if so advised. The order was simply an order restraining the returning officer from holding an election upon the new roll in the preparation of which certain irregularities were alleged Counsel for the applicant further argued that inasmuch as the granting of this injunction would result in great public inconvenience, the learned Judge had acted illegally or with material irregularity. I am unable to sustain this argument. Clearly the learned Judge has jurisdiction to entertain the appeal against the Munsif's order discharging the injunction. It was open to him therefore either to confirm the order of the Munsif or to grant the injunction. He has seen fit in the circumstances to grant the injunction. He has made an order which by law he had jurisdiction to make. If that order does result in inconvienience to the public by holding up the, election in Ward No. 7 that fact does not amount to an illegality or to a material irregularity in the exercise of his jurisdiction.

7. It has been argued by Counsel for the opposite party upon the basis of certain rulings to which he referred me that no revisional application could be entertained by this Court except upon, the question whether or not the Subordinate Court had, jurisdiction to grant a particular order. If this argument were sustained, then that part of Section 115, Civil Procedure Code, which relates to applications in cases. where there has been an illegal exercise of jurisdiction or a material irregularity becomes a dead letter Upon a consideration of the rulings referred to, however, it is perfectly, clear that, the decisions do not support the contention of the Counsel for the opposite party in this respect. There may be many Cases in which a Judge has not exercised a jurisdiction with which he has not been vested or has not failed to exercise a jurisdiction so vested and yet may have acted illegally or with material irregularity in the exercise of his jurisdiction, as for example, if he decided an appeal without giving one party to the appeal an opportunity of being heard, or if he decided the appeal upon considerations not raised in the evidence in the court of first instance. No such irregularity or illegality however is alleged in this case.

8. Counsel for the applicant argued further that under Section, 151 of the Code of Civil Procedure this Court had jurisdiction to review the decision of the lower Appellate Court. I am clearly of the opinion that the circumstances of this case do not warrant the overriding of Section 115 by an application of the inherent powers of the court referred to in Section 151.

9. In the result I have come to the conclusion that the learned District Judge has not acted illegally or with material irregularity and the court has no jurisdiction to interfere with his order. The applications are, therefore, dismissed with costs.


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