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Dwarka Prasad Mishra Vs. Kamalnarayan Sharma and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case No. 82 of 1969
Judge
Reported inAIR1970MP7; 1970MPLJ862
ActsConstitution of India - Article 133(1)
AppellantDwarka Prasad Mishra
RespondentKamalnarayan Sharma and anr.
Appellant AdvocateK.L. Misra, Adv.
Respondent AdvocateK.P. Munshi, Adv.
DispositionApplication dismissed
Cases ReferredDalchand Jain v. Narayan Shankar
Excerpt:
- - 2. originally, the application did not specify the clause under which a certificate was sought, but it was obviously under clause (1)(c). later on, the applicant made an application for amendment of the application claiming a certificate under clause (b) as well. secondly, that analogy does not hold good in case of money. we are clearly of the opinion that for the purposes of clause (b) the amount of money, which has actually fallen due on the date of the judgment to be appealed from, will be the value of the claim involved. justice is administered int he courts on fixed and settled principles and does not vary like the chancellor's foot. the high court, before it certifies the case, must be satisfied that it involves ('some substantial question of law or principle') .it is thus.....shiv dayal, j. 1. this is an application under article 133 of the constitution from our judgment dated march 12, 1969, in first appeal no. 49 of 1967, whereby the applicant's election has been declared void and he has been found guilty of corrupt practice under section 123(6) of the representation of the people act, 1951, (hereinafter called the act). the applicant also seeks to challenge in the supreme court our order dated may, 4, 1968, whereby the preliminary objections raised by the applicant were rejected and certain preliminary points raised by the non-applicant (appellant therein) were decided. 2. originally, the application did not specify the clause under which a certificate was sought, but it was obviously under clause (1)(c). later on, the applicant made an application for.....
Judgment:

Shiv Dayal, J.

1. This is an application under Article 133 of the Constitution from our judgment dated March 12, 1969, in First Appeal No. 49 of 1967, whereby the applicant's election has been declared void and he has been found guilty of corrupt practice under Section 123(6) of the Representation of the People Act, 1951, (hereinafter called the Act). The applicant also seeks to challenge in the Supreme Court our order dated May, 4, 1968, whereby the preliminary objections raised by the applicant were rejected and certain preliminary points raised by the non-applicant (appellant therein) were decided.

2. Originally, the application did not specify the clause under which a certificate was sought, but it was obviously under Clause (1)(c). Later on, the applicant made an application for amendment of the application claiming a certificate under Clause (b) as well.

3. It will be convenient to continue to call, in this order, the non-applicant as 'the appellant' and the applicant as 'the respondent.'

4. There were many allegations of corrupt practices, which were dealt with under four heads: (1) bribery; (2) procuring vehicles for conveying electors; (3) publication of three false statements; and (4) election expenses incurred in excess of the prescribed limit. We have found the first two not proved. With regard to the third, we have found that all other ingredients were proved but on the question of consent, we have Riven the respondent benefit of doubt. Regarding election expenses, we have found that the respondent did not include in his return of election expenses four items of expenditure incurred or authorised by him. Also there was a clerical error in one of the items of expenditure shown in the return. Then, there were two items which are shown in the return as election expenses, but we have held them to be outside the purview of Section 77 of the Act, and have excluded them from the total of expenditure entered in the return.

5. Two of these four items, on which the decision of the appeal turned, are (1) Rs. 500/- paid to the Congress party as security deposit for party ticket; and(2) Rs. 510/- for which cloth was purchased for banners and boards. When these two items are added to the total expenditure shown in the return, the grand total exceeds the prescribed limit. With regard to the first item we have found (1) that this amount of Rs. 500/-together with Rs. 200/-, application fee (the latter we have found to have walked out of Section 77), were paid to the Congress party by the respondent through Ramkrishna Shriwas; (2) that this amount of Rs. 500 which was initially a deposit, became expenditure the moment party ticket was given to the respondent and(3) that it is an election expense. The first is a finding of fact and the other two are based on Supreme Court decisions.

As regards the other item of Rs. 510/-we have found that (1) large number of banners and boards were got painted by the respondent through Basant Kumar Tiwari, who was an agent of his, from Kathote (P. W. 6) of Bhartiya Chitra Mandir, Raipur; (2) that Rs. 570/- was paid to the painter as painting charges only; (3) that voucher No. 28, which is for payment of advance, shows that it was for painting charges purely; (4) that the voucher No. 39 for the purpose of filing with the return was subsequently obtained by Basant Kumar Tiwari from the painter in which the words 'including cost of cloth' were got introduced by Basant Kumar Tiwari for the first time; (5) that the yardage of cloth was proved by the painter's evidence, which was nearly the same as the cloth purchased by Basant Kumar Tiwari for Rs. 510 from Keshrichand; (6) that the painting of banners having been admittedly authorised by the respondent, the purchase of cloth for them was necessarily authorised; and (7) that there is no item of cloth shown in the respondent's return of election expenses. These findings are based On the evidence of Kathote and Keshrichand, who were examined by the appellant before the Tribunal. The respondent desires to prefer an appeal to the Supreme Court to challenge these findings and to raise certain questions of law which we shall presently mention.

6. Shri K. L. Mishra, learned counsel for the respondent (applicant here), first of all claims a certificate under Clause (b) of Article 133(1) of the Constitution. His contention is that in consequence of the judgment to be appealed from, the respondent will be disqualified from being a member of the Madhya Pradesh Legislative Assembly and this will entail a pecuniary loss to him of more than Rs. 20,000 from the date of the judgment to the date of the dissolution of the Assembly, after the next general election in February/March 1972 (three years). In the application for amendment of the application, the claim is made up of six items but in view of counter affidavit filed by the appellant in this proceeding, Shri Mishra confined the claim to the following:--

(a)Membership allowance at therate of Rs. 500/- per month, for three years....

Rs.18.000/-

(b)Daily allowance @ Rs.15/-per day, during the sessions of the Assembly average sittings 40 in ayear, for three years..

Rs.1,800/-

(c)Travelling allowance..

Rs.1,836/-

Total

Rs.21636/-

It is urged that in this way, the judgment to be appealed from involves, directly or indirectly, a claim or question respecting money, the amount of which is more than Rs. 20,000 and this entitles the applicant to a certificate under Clause (b).

7. Shri Munshi's argument is four-fold. Firstly, no pecuniary loss flows from our judgment as such. The loss contemplated by the respondent may result from an order which may in future be passed by another statutory authority (the Governor), by virtue of the provisions of the Constitution and the Representation of the People Act. Learned counsel argued that a question or claim can arise only if and when the Governor makes an order under Article 192 of the Constitution. In other words, the loss apprehended may result from the supervening order of another authority, but not by force of the judgment to be appealed from. If the Governor refuses to unseat the respondent because of some interpretation of the Constitutional provision, which he may accept, or if he withholds his order indefinitely, there will be no pecuniary loss to the respondent. Secondly, uncertainty cannot be ruled out. There has been a demand for dissolution of the Assembly and for holding mid-term elections, in which case, the loss of emoluments will not be for three years. A member may be offered, a suitable post in the executive, in which case he has to relinquish his membership of the Assembly. Thirdly, the pecuniary loss to be the basis for a certificate under Clause (b) must be one which had occurred before the judgment to be appealed from, so that a question or claim was involved in the judgment on that date, and not any loss which may occur or may periodically occur in future. Fourthly, the expression 'question or claim' postulates a dispute, but there cannot be any dispute about the title to or the quanturn of salary and allowances for which there are statutory provisions. Reliance was placed on Printers (Mysore) Pvt. Ltd. v. Union of India. AIR 1966 Mys 237, where it was held that the subject matter of the writ petition, namely, that the newspapers are new newspapers and therefore, a direction should be issued to the Government forbidding it from granting any news print or news print quota is not something that was capable of valuation. It was further held that it cannot be considered as 'property'. And. then it was laid down:--

'To come within Article 133(1)(b), the decision sought to be appealed against must involve directly or indirectly some claim or question regarding property. There must be some connection direct or indirect between the decision and some property. Some remote chain reaction is not within the contemplation of that Article.'

In that case Chittarmal v. Shah Pannalal Chandulal, AIR 1965 SC 1440, State of Bihar v. D. N. Ganguly, AIR 1958 Pat 26 and Mohammad Ghouse v. State of Andh. Pradesh, AIR 1960 Andh Pra 194 were relied on.

8. In our opinion, when a certificate is sought under Clause (b) on the ground that some question or claim respecting property is involved (in addition to or other than the subject-matter of the disputes in suit), the amount of money must be Rs. 20,000 or upwards on the date of the judgment appealed from. The loss which may occur in future is not contemplated by Clause (b), nor (a), for that matter. In Surendra Nath v. Dwarka Nath, AIR 1917 Cal 496, the suit was for ejectment from certain property on the ground of tenancy being at will. The defendants alleged that they had a permanent tenancy. The plaintiff eventually lost in the High Court. A question arose whether the value of the property itself was Rs. 10,000 or upwards. It was held that ''the material date is the date of the decree of the High Court from which the appeal is to be made.' In Nathulal v. Babu Ram, AIR 1933 All 8, the question was that the decree of the High Court would affect the plaintiff's right with reference to some other property. No cause of action had up-till then accrued in plaintiff's favour and there was a mere shadowy right of expectancy 'which may never materialise'. It was held:

'The words 'must involve directly or indirectly some claim or question to or respecting property of Rs. 10.000 or upwards in value' in Section 110 Civil P. C. refer to questions arising between parties to a pending suit and not to questions relating to the title of only one of the parties which might be made the basis of a prospective suit.'

An earlier decision of that High Court in Hanuman Prasad v. Bhagawati Prasad(1902) ILR 24 All 236, was followed, where it was laid down that the reference was to suits in existence and not to suits in gremio futuri. Reliance was also placed on Raja of Ramnad v. Kamith Ravuthan AIR 1922 Mad 34 and Bon Kwi v. 3. K. R. Section K. R Firm, AIR 1926 Rang 128. The same view was taken in Madho Prasad Singh v. Sher Bahadur Singh, AIR 1936 Oudh 181.

9. In Radhakishan v. Shridhar, AIR 1954 Nag 267 it was held:--

'No decision has been brought to our notice that in determining the value of the suit for purposes of Section 110, 'potential market value' as distinguished from the actual market value is to be the criterion. .....If actual increase in value during the suit is irrelevant, 'potential market value' has no claim for consideration at all in deciding the present Question.'

See also Bhawar Lal v. Lachmandas, AIR 1929 Nag 75.

10. Shri Mishra relies on Kastur Bhai v. Hiralal D. Nanavati, AIR 1923 Bom 23 (1); Ram Lakshman Singh v. Girindra Mohan, AIR 1963 Cal 13, Amarsingh v. Karnail Kuar, AIR 1956 Raj 169; G. Appaswamy v. R. Sarangapani, AIR 1966 Mad 197 and State of Andhra Pradesh v. Digyadarsan, AIR 1969 Andh Pra 9. In each one of these cases, the value of the immoveable property in respect of which a claim or question was involved, other than the dispute in suit, was taken into account. But it seems to us quite clear that no future or potential value was taken into consideration, and, that in all these cases, it was the value of the property on the date of judgment appealed from which was evidently considered.

11. Shri Mishra resorts to the analogy of calculating the present value of an immoveable property on the basis of the profits it will fetch. But it seems to us that, in the first place, that is only one of the several modes of determining the present value of an immoveable property, and the fact still remains that what is worked out is the 'present value' and not a future value, meaning, that it can fetch that price today. Secondly, that analogy does not hold good in case of money. For instance, a person cannot say that the value of Rs. 18,000 in his hands today is really Rs. 20,000 on the basis of future return on investment. We are clearly of the opinion that for the purposes of Clause (b) the amount of money, which has actually fallen due on the date of the judgment to be appealed from, will be the value of the claim involved. For instance, in the Rajasthan case, AIR 1956 Raj 169 (supra), relied on by Shri Mishra, if the property of the deceased had consisted of money only or, in the Andhra Pradesh case AIR 1969 Andh Pra 9(supra), the property of the Math had consisted of money only, then in our opinion, in either case, to satisfy the requirements of Clause (b) the amount on the date of the judgment had to be Rs. 20,000 or upwards (and not what it would swell to in a couple of years).

12. From 1956 to 1966, the High Courts exercised appellate jurisdiction under Section 116A of the Representation of the People Act. Many appeals went to the Supreme Court from appellate judgments of High Courts. We are not aware of a single case, and Shri Misra conceded that even after a research he also could not find a single case, where certificate was granted under Clause (b) of Article 133(1) of the Constitution on the ground of loss of future emoluments for 3, 4 or 5 years. In C. V. K. Rao v. Bhaskarrao, AIR 1964 Andh Pra 185 (FB), it was conceded that no certificate could be granted under clause(b). This is not to say that a point which did not occur to anybody during 10 years or more must necessarily be rejected. For the reasons we have already stated, a certificate under Clause (b) cannot be given.

13. Shri Mishra then urges that this is a fit case for a certificate under Clause(c) because the applicant has an arguable case against our findings on questions of law and fact; because the case is of great private importance to the applicant: because our observations in paragraphs 202 and 203 of the judgment themselves make it a fit case under Clause (c); and because in an election matter a certificate under Clause (c) is invariably granted by High Courts in exercise of their discretion.

14. Grant of a certificate under Clause (c) is no doubt a discretionary matter, but the discretion must be exercised on sound judicial principles. Marshall, C. J., succinctly expressed himself in Wilson v. Michigan State Board, 199 NW 643, 644 thus.

'Courts are mere instruments of the law and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion--a discretion to be exercised in discerning the course prescribed by law; and when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature, or, in other words to the will of the law.'

Lord Mansfield said in R. v. Wilkes (1769) 4 Burr 2527:--

'Discretion, when applied to a court of Justice means sound discretion guided by law. It must be governed by rule, not humour; it must not be arbitrary, vague and fanciful, but legal and regular.'

These two cases are cited in GodhanDas Baldev Das v. The Governor General in Council, AIR 1952 Punj 103 (FB). We respectfully adopt the language of Bhandari, J., as our own, when he said:--

'Decisions of eminent judges have indicated the grooves in which discretion should run and this Court, and all other Courts, are supposed to ascertain the principles of law and to follow them. Justice is administered int he Courts on fixed and settled principles and does not vary like the Chancellor's foot.'

Before we recall certain observations made in certain decisions of the High Courts, we must bear in mind the weighty and emphatic observations of the Supreme Court in Babu v. State of U. P., AIR 1965 SC 1467.

'The Sub-clause (Article 134(1)(c)) does not state the conditions necessary for such certification. No rules under Article 145 regulating generally the practice and procedure of the Supreme Court for the grant of certificate by the High Court have been framed. The power which is granted is, no doubt, discretionary, but in view of the word 'certifies', it is clear that (such power must be exercised with great circumspection and only in a case which is really fit for appeal.) It is impossible by a formula to indicate the precise limits of such discretion. Under Article 134(1)(c), this Court has not been made an ordinary Court of Criminal appeal and the High Courts should not, by the certificates, attempt to create a jurisdiction which was not intended. The High Courts should therefore exercise their discretion sparingly and with care. The certificate should not be granted to afford ('another hearing on facts unless there is some error of fundamental character').

There is no doubt whatever that Sub-clause (c) does not confer an unlimited jurisdiction on the High Courts. The power gives a discretion, but discretion must always be exercised on some judicial principles. A similar clause in Article 133, which allows appeals in Civil cases, has been constantly interpreted as including only those cases which involve a ('question of general public importance') That test need not necessarily be applied to a criminal case, but it is clear that ('mere questions of fact should not be referred for decision').

The Constitution does not contemplate a criminal jurisdiction for this court except in those two cases covered by Clauses (a) and (b), which provide for appeals as of right.

The High Court, before it certifies the case, must be satisfied that it involves ('some substantial question of law or principle') ... It is thus obvious that only a case involving something more than mere appreciation of evidence is contemplated by the Constitution for grant of a certificate. What that may be will depend upon the circumstances of the case.'

[Portions underlined in judgment are put in brackets here -- Ed].

These observations were made regarding Article 134(1)(c), but their Lordships have indicated that the dictum should be more rigidly applied to case under Art 133.

15. We shall now refer to the observations contained in certain decisions of different High Courts. There must be a difficult question of law or principle involved requiring further clarification by the Supreme Court (Electrical Mfg. Co. Ltd. v. D. D. Bhargava, AIR 1967 Delhi 97). Where the question is covered by Supreme Court decision, certificate cannot be granted (State of West Bengal V. Ram Ajodhya Singh, AIR 1965 Cal 348). Unless the Court is satisfied that the case involved matters or questions of importance and considerable difficulty which ought to be finally decided by the highest Court of the land, the High Court would withhold its hand from granting certificate. The term used in the Article is a strong term requiring the High Court to be satisfied of the fitness of the case for appeal to the highest court of the land. P. Seetharamureddy v. China Ramareddy, 1959 ALT 61. Where the High Court does not feel any difficulty, nor is there a doubt on the points raised in the appeal, the High Court will not be justified in granting certificate. (Hotha Sita Rama v. State of Andhra Fradesh, AIR 1959 Andh Pra 359.) Where, though the Court has dealt with various questions of law in deciding the case, it has only applied the principles . contained in the Supreme Court decisions, the Court cannot certify the case to be fit for appeal (Union of India, Delhi v. Jogendra Kumar Choudhury, AIR 1964 Tripura 23.) Although the matter may be of general importance, if the question of law involved in the appeal has been settled definitely by the judgment of the Privy Council, the case should not be sent to the Privy Council for a fresh decision on the same point. (Rama Kumar Singh v. Muhammed Salim, AIR 1929 All 339).

16. It has been said time and again that consideration which will govern the Court's discretion cannot be crystallised into hard and fast rules or formulae. But whether we say so or keep it at the back of our mind, the broad principles which guide the discretion under Clause (c) are these :-- (1) where there is a question of law of unusual difficulty on which there is no authoritative decision, a certificate should be granted. (2) When there is a question of general importance, which has not yet been decided by the Supreme Court, a certificate should be granted. A question of law alone can beof general importance. A question of fact, arising from the peculiar facts and circumstances of a particular case, being restricted to that case, is not of general importance. (3) A point of law already decided by the Supreme Court cannot be referred to it by a Certificate under Clause (c) for reconsideration. (4) A question of fact, the decision of which is based on appreciation of evidence cannot be a ground for a certificate under Clause (c). (See Jagdish Prasad v. State, AIR 1957 Madh Pra 226). We are not aware of a single case--nor has any been cited by the learned counsel--where a certificate was given under Clause (c) by any Division Bench of this Court for a reconsideration on a finding of fact by the Supreme Court.

17. On these principles, we shall test each and every question which has now been raised before us for a certificate under Clause (c).

(1) On the authority of Vidyacharan Shukla v. Khubchand Baghel, 1964-6 SCR 129=(AIR 1964 SC 1099) we held that the appeal was not barred by time,

(2) We held that when in an election petition there is a charge of corrupt practice, the petition or appeal arising from it does not become infructuous, although the Assembly has been dissolved. (Paragraphs 8 to 22 of our order dated May, 4 1968). That point has now been decided by the Supreme Court in Sheo Sadan Singh v. Mohanlal Gautam, 1969-1 SCR 408: (AIR 1969 SC 1024).

(3) We gave the appellant leave to amend the election petition (paragraphs 39 to 45 of the order dated May 4, 1968), by applying Harishchandra Bajpai v. Triloki Singh, 1957 SCR 370=(AIR 1957 SC SC 444), S. M. Banerji v. Shri Krishna, 1960-2 SCR 289=(AIR 1960 SC 368) and Babu Lal Sharma v. Brijnarayan, 14 Ele LR 72=(AIR 1958 Madh Pra 175) (FB). The last mentioned case has been cited with approval in a recent pronouncement of the Supreme Court in Samant N. Balkrishna v. George Farnandez. Civil Appeals Nos. 895 and 896 of 1968, D/-12-2-1969= (AIR 1969 SC 1201) containing a lucid exposition of the law in clearest terms which we venture to sum up thus--

'(a) When, in an election petition, as initially filed, there is no allegation of a particular kind of corrupt practice at all, it cannot be introduced subsequently by amendment.

(b) A more repetition of words of statute, without stating any material facts, is not setting out a ground or charge. If material facts, on which standing by themselves the charge can be made out, have not been stated, material facts cannot be supplied by way of amendment.

(c) When, in an election petition, as initially filed, (i) a ground or charge,that is, 'the kind of corrupt practice' is alleged; and (ii) material facts, which if proved, will by themselves constitute the corrupt practice, have been stated, then the particulars which are stated, may be amplified or corrected so as to make them 'better': and new instances or 'more' particulars can be added.' (per Civil Appeals Nos. 895 and 896 of 1968, D/- 12-2-1969=(AIR 1969 SC 1201) (supra). If our order granting leave to amend the election petition did not satisfy these requirements, we would have readily granted a certificate under Clause (c). But we find that it is fully within this subsequent pronouncement of the Supreme Court.

Initially, in the election petition it was alleged in Paragraph 7(a) that the respondent had incurred election expenses exceeding the prescribed limit of Rs. 7,000 and this was in contravention of Section 77 of the Act, which is a corrupt practice under Section 123(6) of the Act. This allegation satisfies the first test. Then, in 8 sub-paragraphs, which were numbered as 7(b)(i) to (viii), material facts were given, and each of these sub-paragraphs constituted a complete cause of action. Each one of these 8 sub-paragraphs by itself made out the said charge. This fulfilled the second requirement.

Thus, both the conditions having been fulfilled in the election petition, as it was initially filed, the election petitioner made two applications before the election tribunal for leave to amend it. By application, dated December 1, 1965, he sought to introduce an item of expenditure, as sub-paragraph (ix) in paragraph 7(b), alleging that about Rs. 625, the price of cloth, was not included in the return of election expenses. He averred that on November 30, 1965 he came to know of that item of expenditure incurred by the respondent. This application was rejected by the election tribunal by its order of the same date in a single sentence on the ground of delay.

By another application of December 6, 1965, the election petitioner sought to introduce (among several others), another item of expenditure as paragraph 7(c)(i), alleging that the respondent had paid Rs. -200 as application fee and Rs. 500, as deposit, total Rs, 700, to the Congress Party but did not include it in the return of his election expenses and that this came to the petitioner's knowledge on December 4, 1965. The Tribunal, by its order dated December 16, 1965, rejected that application without even making a mention of this item of expenditure. The Tribunal does not appear to have applied either Harishchandra's case,1957 SCR 370=(AIR 1957 SC 444) (supra) or Babulal's case, 14 Ele LR 72 = (AIR1958 Madh Pra 175 (FB)) (supra), the latter being a Full Bench decision of this Court.

Both these applications were pressed before us, as a preliminary point, when the appeal came up for hearing on the very first occasion. We granted leave to introduce both these items of expenditure and some others (Paragraph 44 of the order dated May 4, 1968).

Leave to amend the petition was clearly within the ratio decidendi of Civil Appeals Nos. 895 and 896 of 1968 D/- 12-2-1969= (AIR 1969 SC 1201) (supra).

Shri Misra's argument that an election petition can never be amended so as to add a new instance of expenditure, when the charge is under Section 123(6) of the Act, stands repelled by the Supreme Court decision in C. A. Nos. 895 & 896 of 1968, D/- 12-2-1969 = (AIR 1969 SC 1201), (supra) where among other things their Lordships have themselves given illustrations to lay down that new instances can be furnished provided the two conditions, to which we have already referred, are satisfied.

Kathote and Keshrichand had already been examined before the election tribunal to prove the item of expenditure on purchase of cloth. Ramnarayan Purohit was examined by the appellant in this Court to prove payment of Rs. 700 to the Congress party for Congress ticket.

Fresh opportunity was given to the respondent to produce in this Court, oral and documentary evidence in rebuttal. He filed a list of four witnesses but later on abandoned them and did not examine any.

(4) Our finding that the amount of Rs, 500 was paid to the Congress Party by the respondent through Ramkrishna Shrivas is one of fact.

(5) Our findings that the payment of Rs. 500 to the Congress Party, which was initially a deposit, became 'expenditure' the moment party ticket was given to the respondent, and that it is an election expense, are covered by the decision of the Supreme Court in Section Khader Shariff v. Munuswami Gounder, 1955-2 SCR 469 = (AIR 1955 SC 775) and Vidya Sagar Joshi v. Surinder Nath Gautam, AIR 1969 SC 288, on which we relied in the judgment.

(6) Our finding that an expenditure of Rs. 510 was incurred or authorised by the respondent for purchase of cloth from Keshrichand is one of fact,

18. Shri Misra then urges that this Is a fit case for a certificate under Clause (c) because it is of great private importance to the applicant. Learned counsel relies on P. A. Pleader Bansi v. Judges of Allahabad High Court, AIR 1937 All 167, where a certificate was granted for appeal to the Privy Council to a pleader, whose name had been struck off the roll of pleaders for misconduct It appears from the judgment that what mainlyweighed with the High Court was that on two earlier occasions the names of two vakils had been struck off the rolls, that certificates were granted to them and that the Privy Council set aside the orders of the High Court. In that context, it was observed: 'Although the Calcutta and Patna High Courts have taken a different view, it has been the practice in this court to treat such orders as falling under Section 109(c) Civil P. C.' Thus, that decision is based on a certain practice which then prevailed in that High Court. It is not urged before us that there has been any such practice in this Court. In Rudra Pratap Singh v. Mritunjay Pratap Singh, AIR 1957 All 28, it has been held that if the question is one of private importance, it will not be a fit case under the clause, if the points of law are not substantial, and, it has been held in 1969 Andh. L. T. 61 that a question of law does not become substantial merely because much is at stake on the answer to it, or that the decision thereon is likely to materially affect one of the parties.

19. Shri Misra then asks us to certify this as a fit case for appeal under Clause (c) because of our observations in paragraphs 202 and 203 of the judgment. The former arose from our feeling which we bad when we gave benefit of doubt to the respondent (paragraphs 96 and 97 of the judgment) on the question of respondent's consent for publication of the false statements (anncxures I, II and III). That question will not be before the Supreme Court in the respondent's appeal, because he has been absolved from that charge. The observation in paragraph 203 of our judgment has reference to Shri Misra's argument that non-compliance with the provisions of Section 77(1) of the Act, is not a corrupt practice as has now been held by the Supreme Court in Dalchand Jain v. Narayan Shankar, 1969 SC (Notes) 161, and that vouchers to be filed with a return of election expenses can be obtained at any time, not necessarily when payments are made. In the present case, the respondent's accounts of election expenses, said to have been maintained by Laxmishankar Bhatt, were not available, as they were said to have been lost. Since we accepted this argument and gave benefit to the respondent about the alleged items of payment to Laxmi Press Raipur, and to Nawalchand Nathmal, Bhatapara, this question will not be before the Supreme Court in the respondent's appeal.

20. Shri Misra, learned counsel for the respondent, remarked in passing that in election appeals it was a practice to invariably grant a certificate under Clause (c). We are not aware of any such practice in this Court or in any other HighCourt. There are at least 29 cases reported in the AIR from 1956 to 1966 (when appeals lay to the High Court under Section 116A of the R. P. Act) where appeals were heard on special leave under Article 136 of the Constitution, which means that certificates under Article 133(1)(c) were refused by the High Court, in those cases. No doubt when a substantial question of law is involved in an election matter it is usually of general public importance and, on that ground, certificate under Clause (c) is granted.

21. As our decision on the crucial items of expenditure (Rs. 500 and Rs. 510) is based on questions of law which have already been decided by the Supreme Court, and on findings of fact, it cannot be certified under Article 133(1)(c) that this is a fit case for appeal to the Supreme Court. Therefore, this application is dismissed. Stay order passed on March 19, 1969, stands automatically vacated. The respondent (applicant) shall pay the appellant (Non-applicant) Rs. 50 as costs.


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