1. An application dated 6th March 1962 was filed on 7th March, 1962, at 4 p.m. by Satrughna Sahu (petitioner-appellant) with a prayer that as he did not want to proceed with the appeal it be dismissed for non-prosecution. It was put up next day when the appeal had been fixed for Judgment.
The judgment had already been prepared and it was ordered to be kept in 3 sealed cover until the disposal of this application. A copy of this application had been, served on 6th March 1963 only on Sri. K. Patnaik, advocate for respondent No. 1, The appellant was therefore directed to serve copies on other respondents.
2. Akulananda Behera, respondent 2, filed a counter on 15th March, 1962 alleging that the application for non-prosecution of the appeal was not maintainable as the case had already been fully heard on 5th and 6th March, 1962, and was only pending for judgment and that the appellant had nothing further to do for the progress of the appeal. It was further alleged that the application for non-prosecution was influenced by financial consideration, promise of favour of benefits and threads of severe consequences proceeding from respondent 1, who is the Chief Minister of the State and an influential industrialist.
3. On 10th March 1962, respondent 1 filed a counter challenging the allegations made against him by respondent 2 as baseless, false and malicious. On the same day the appellant filed an affidavit seating that the application for non-prosecution filed on 7th March 1962 virtually amounted to an withdrawal application, that respondent 2 had no locus standi to raise objection to the with drawal of the appeal and that the allegations regarding inducement by bargain or consideration were false.
4. On 17th March, 1962, respondent 3 filed an affidavit asserting that the application for withdrawal was not bona fide. On the same day respondent 2 filed a counter affidavit repeating the allegations made previously besides filing a letter written by one Binode Kanungo to respondent 2 stating how the withdrawal application was the outcome of inducement of bargain and consideration On 20th March 1962 the appellant and respondent 1 filed further counter affidavits repealing their assertions.
5. Though the case had been fixed for judgment after full hearing, the matter had to be reheard again for more than two days on the question of withdrawal of the appeal.
6. Mr. Mohanty, for the appellant, contended that the withdrawal of the appeal is governed by Order 23, Rule 1(1) of the Civil P. C. and the appellant is by right entitled to withdraw the appeal and the High Court has no discretion in the matter. That Order 23, Rule 1, C. p. C. has no application to election petition before the Tribunal is mo longer arguable (AIR 1958 SC 698 Mallappa Basappa v. Basavaraj Ayyappa). The only point for consideration is whether the principle laid down by the Supreme Court has different application to appeals against the order of the Tribunal. Section 116A(2) of the Representation of the People Act, 1951 (hereinafter to be described as the Act) lays down that the High Court shall, subject to the provisions of this Act, have the Same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a Civil Courtsituated in the local limits of its civil appellate jurisdiction. In 22 ELR 261, T.K. Gangi Reddi v. M.C. Anjaneya Reddi their Lordships of the Supreme Court observed :
'It is manifest that the jurisdiction of the High Court in the disposal of such an appeal is similar to that it has in the disposal of appeals against original decree. No doubt this is subject to the provisions of the Act and no prevision has been brought to our notice which curtails that jurisdiction of the High Court. Therefore when an appeal is filed, the entire case is reopened in the appellate Court. It is true that there is a long established practice regulating the procedure in disposing of an appeal; but the practice does not touch the jurisdiction, of an appellate Court an disposing of an appeal, but only, regulates the manner of its disposal.'
In AIR 1959 SC 422, Veluswami v. Raja Nainai their Lordships observed that the intention of enacting Section 116A is that proceedings before the Tribunal should go on with expedition 2nd without interruption, and that any error in its decision should be set right in an appeal under Section 116A It is therefore clear that provisions relating to Withdrawal prescribed in Sections 109 and 110 of the Act would apply to proceedings in appeal before the High Court. The contention of Mr. Mohanty for the appellant and Mr. Misra for respondent 1 that Order 23, Rule 1, C. P. C. would not apply to election petitions before the Tribunal but would apply to appeals before the High Court against the order of the Tribunal leads to fantastic results. If such a contention is accepted no withdrawal application would be filed before the Tribunal and would be reserved to be filed at the appellate stags when under Order 23, Rule 1, C. P. C. the petitioner would be entitled to withdraw as a matter of right. Such a contention cannot be accepted and is contrary to the very wide powers of the appellate Court. In AIR 1900 SC 307, Nachiappa v. Subramaniam, their Lordships observed that after a decree is drawn up in the trial court and an appeal is presented against it, proceedings in appeal are continuation of the suit; and speaking generally, by Section 107 of the C. P. C. the appellate Court has all the powers of the trial court and can perform as nearly as may be the same duties as are conferred and imposed on the trial Court. The same view has been taken in ILR (1961) Cut. 416 : (AIR 1962 Orissa 149) Provas Chandra Poddar v. V. Kasi Viswanatham. There is therefore no doubt that in considering an application for withdrawal of the appeal, the High Court must be guided by the principles laid down in Sections 109 and 110 of the Act, 6 ELR 346 (Ele. Tri. Ludhiana). Shiv Dayal v. Teg Ram which has been cited by the appellant in support of the contention that the withdrawal application should be granted in due course unless it is shown that the application has been induced by any bargain or consideration has nothing to do with the question as to whether the appellate Court has power and Jurisdiction to allow withdrawal.
7. It is necessary at this stage to mention certain facts which have weighed with us in notallowing withdrawal of the appeal at this stage Thouga 3 affidavits have been filed by Satrugana Sahu on 6th, 16th and 20th March, 1962, in none of them he has furnished any reason as to why withdrawal of the appeal has been sought. The appeal was heard for two days and was pending for judgment. Elaborate argument were addressed on EITHER side. Though the appeal was argued by Mr. Madhabananda Das, Sri Satrughna Sahu and Mr. Mohanty, his Advocate in the withdrawal matter, did not consult Mr. Madhabananda Das about the prospects of success or failure of the appeal. If the appeal would have been allowed, the appellant would have been enticed to costs besides being exempted from the costs granted by the Tribunal. If the appeal had failed, the appellant had nothing to lose in view of his later conduct that he wanted to withdraw the appeal. Moreover from the general tenor of elaborate discussions as obtains in the High Court, the appellant must have been well aware that the appeal was going to be allowed. In any view of the matter the petitioner has not been able to present even the semblance of a reason as to what induced him to apply for non-prosecution or withdrawal at a time when he had nothing to lose. We are at a loss to understand till now as to why Satrughna Sahu did not file the application for non-prosecution through Mr. Madhabananda Das in the absence of an allegation that Mr. Das played false to the interest of the appellant and turned hostile. In fact Satrughna Sahu and Mr. Mohanty (who filed Vakalat on 8th March 1982) stated before the court that consent was given by Mr. Ranjit Mohanty, who did not argue the case and was never present at the hearing. The entire conduct appears revolting to professional ethics and the atmosphere is surcharged with suspicion. The withdrawal application was filed in hectic burry being sworn to by Satrughna Sahu himself with out any advocate signing it. The act itself may not be contrary to High Court rules; but from the records of the case it does not appear that the petitioner had acted in a similar manner on any prior occasion. The aforesaid facts speak for themselves and weigh with us in not allowing withdrawal of the appeal.
8. Satrughna Sahu had filed the election petition and is the appellant before the High Court. The withdrawal of appeal would necessarily amount to withdrawal of the election petition itself. Sections 109 and 110 of the Act directly cover withdrawal of the election petition. If the Order of the Tribunal would have been against respondent 1 and he would have been the appellant, the position would have been completely different and we would have disposed of the withdrawal of the appeal in the High Court itself, if the High Court takes up the withdrawal it shall have to follow the elaborate procedure prescribed under Section 109(2). Notice of the withdrawal application fixing a day for hearing shall be given to all other parties to the petition and shall be published in the Official Gazette. Under Section 110(2) no application for withdrawal shall be granted if in the opinion of the Tribunal (in this appeal, the High Court) such application has been inducedby any bargain or consideration. This involvestermination of questions of fact. Doubtless the onus is on the person who pleads that the application has been induced by any bargain or consideration to establish it. Elaborate evidence has to be gone in to record a finding on this pointone way or the other, and the Tribunal would be the more appropriate forum to go into evidence. Under Section 116(5) every appeal shall be decided as expeditiously as possible and endeavor shall be made to determine it finally within three months from the date on which the memorandum of appeal is presented to the High Court. The appeal was filed on 11 December, 1961 and a peremptory date had been fixed with consent of parties for hearing on 5th March 1962 so as to dispose of the matter within three months as far as possible. The withdrawal application was filed just after the matter was fully heard and the case was pending for judgment. Under Section 110(3)(b) notice of withdrawal shall be published in the official Gazette; and under Sub-clause (c) a person who might himself have been a petitioner may, within fourteen days of the publication, apply to be substituted as petitioner in place of the party withdrawing, and upon compliance with the conditions of Section 117 as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the Tribunal may think fit. The elaborate procedure, prescribed under Sections 109 and 110 of the Act are mandatory and must be adhered to. The Tribunal would be the proper forum to follow the procedure and the appellant would not be prejudiced in any manner.
9. We had already prepared the judgment which is now under seal whereby we have allowed the appeal. As a result of our judgment the election proceeding remains pending and the question of withdrawal of the election petition will be gone into by the Tribunal itself. If we had decided to dismiss the appeal confirming the order of the Tribunal, we would have expressed the view that it was not necessary to consider the withdrawal application. A question was put to all the Advocates appearing for all the parties as to whether an order by us asking the Tribunal to determine the question of withdrawal of the ejection petition would be without jurisdiction. All the Advocates agreed that since withdrawal of appeal would amount to withdrawal of the election) petition, such an order would not be without jurisdiction.
10. In view of the fact that we have already decided to allow the appeal and the appellant failed to give any explanation as to why he should be granted leave to withdraw appeal, we do not permit him to withdraw the appeal. This is however, not to say that the petition; for withdrawal of the election petition is dismissed. For reasons stated already the petition for withdrawal of the appeal amounts to a petition for withdrawal of the election petition and the Tribunal would therefore be competent to follow the procedure prescribed under Sections 109 and 130 of the Act, record evidence and come to a finding if the withdrawal is induced by bargain, other considerations and threats as alleged in the petition of respondent 2. The context in which the application had been filed would be relevant and taken into consideration by the Tribunal.
11. It is to be made clear that in the judgment allowing the appeal we have held that respondents 2 and 3 are to be expunged, from the election petition. A question would naturally arise as to who would oppose the application for withdrawal when the appellant and respondent 1 would alone continue to be parties to the election petition. This does not lead to any absurdity or incongruity. Under Section 109(2) where am application for withdrawal is made under Sub-section (1) of Section 109, notice thereof filing a date of hearing of the application shall be given to all other parties to the petition and shall be published in the Official Gazette. Their Lordships of the Supreme Court having held that an election contest is not an action at law or a suit in equity, but is a purely statutory proceeding unknown to the common law and the Court possesses, no common law power. An election petition is not a matter am which the only persons interested are candidates, who strove against each other at the elections. The public are substantially interested in it. An election petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested. It is this interest of the constituency as a whole which invests the proceedings before the Election Tribunal with a characteristic of their own and differentiates them from ordinary civil proceedings. Once the process has been set in motion by the petitioner he has released certain forces which even he himself would not be able to recall and he would be bound to pursue the petition to its logical end. The provisions of Sections 108 to 110 show that the election petition once presented continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner, but is liable to be continued by any person who might have been a petitioner. On this principle after publication in the official Gazette under Section 109(2) any person of the electorate can apply to be Substituted and respondents 2 and 3 are not precluded from doing so. If they want to be made parries at that stage, it is not in the same role in which they had been made parties in the election petition. Under the provisions of the Act, respondents 2 and 3 are unnecessary parties in view of the relief sought as discussed in the main judgment, put when they would seek to become parties on account of the withdrawal, they would come in their own right as necessary parties. The Order therefore would not result in incongruity. It is incumbent duty of the Tribunal in law to publish the withdrawal application in the Official Gazette. This gives wide publicity in the matter and notice to persons, who want to contest and keep alive the election proceeding.
12. Summing up I arrive at the following conclusions:
(I) The withdrawal of the appeal amounts to withdrawal of the election petition :
(II) If the withdrawal is to be permitted, theprocedure prescribed under Sections 109 and 110 of the Act must be followed :
(III) The withdrawal application can be investigated into by the High Court as also by the Tribunal;
(IV) As the elaborate procedure prescribed in the Act for investigation of such matter, by the High Court would involve substantial loss of time the appeal will be kept pending unnecessarily for a long time--and as the investigation can be equally efficiently done by the Tribunal the letter would be the more appropriate forum to go into evidence. It would be saving more of time and money as such a matter, if heard by the High Court, must be heard by two Judges, and if heard by the Tribunal, by one single man Tribunal; and
(V) While refusing leave for withdrawal of the appeal the High Court does not reject the application for withdrawal but merely directs the Tribunal to go into the matter treating it as an application for withdrawal of the election petition.
13. Subject to the observations made above, the prayer for withdrawal of the appeal in the High Court is rejected, but the application with all the counter affidavits are kept alive for disposal of the question of withdrawal of the election petition by the Tribunal. The appellant-petitioner is to pay Rs. 100/- (Rupees one hundred) towards hearing-fee of the withdrawal application to respondent 2.
14. I agree.