B.J. Divan, C.J.
1. Letters Patent Appeal No. 1 has been filed against the order of our learned Brother N.H. Bhatt J. in Election Application No. 11 of 1981 in the Election Application No. 7 of 1981 in Election Petition No. 4 off 1980. The appeal arises under the following circumstances: Respondents Nos. 1 and 2 herein have filed Election Petition No. 4 of 1980 challenging the election of respondent No. 3 from Jamkhambhalia Constituency to Gujarat State Legislative Assembly during the elections held in May 1980. One of the grounds of challenge is that there was what is known as booth capturing by the supporters of the successful candidate, the third respondent, and in some of the booths bogus voting was indulged in by keeping out genuine voters and there was impersonation at those booths. In connection with these allegations of corrupt practice, respondents No. 1 and 2 herein filed a summons for directions on January 20, 1981 seeking directions in the petition for the production of the record and inspection of the ballot papers and other materials which were kept sealed at the time of the election from Jamkhambhalia Constituency. The record which was sought to be brought in this manner and inspected was in connection with Polling Booths Nos. 98, 99 and 87 and inspection that was sought for was of the used ballot papers, counter-foils of ballot papers, unused ballot papers, marked copies of the electoral rolls and names and authorisations of polling agents of different candidates at these three booths. On January 22, 1981, N.H. Bhatt J. who was hearing the election petition passed the following order: 'Prayers A to F granted. C.A. disposed of.' The appellant before us in this Letters Patent Appeal was original respondent No. 5 and his grievance was that neither he nor his advocate had received any intimation regarding the application for the inspection of election records. Neither be nor his advocate was aware of the filing of Election Application No. 7 of 1981. Thereupon, directions were sought from the learned Single Judge. No copy of the application was served upon him or his advocate and the name of the appellant's advocate was not shown on the Board when Election Application No. 7 of 1981 was notified for hearing. The grievance was made in this connection and Election Application No. II of 1981 was taken out for the review of the order passed by the learned Single Judge. That review was applied for by the successful candidate, respondent No. 3 herein, and even in those proceedings of Election Application No. 11 of 1981, neither the present appellant nor his advocate was served with any copy of the application and it was only subsequently that the appellant came to know about the orders passed in Election Application No. 7 of 1981 and Election Application No. 11 of 1981. In Election Application No. 11 of 1981, N.H. Bhatt, J. passed a speaking order on February 23, 1981 dismissing the application but he adjourned further inspection till March 2, 1981 to enable the third respondent to have further recourse in accordance with law. The present third respondent, the successful candidate, has filed Letters Patent Appeal No. 2 of 1981, being the appeal against the order passed in Election Application No. 11 of 1981, and Letters Patent Appeal No. 3 of 1981 has also been filed by the successful candidate against the order passed in Election Application No. 7 of 1981 when only a short order stating that summons so mentioned in terms of Prayers A to F was granted by the learned Single Judge. In all these three appeals various contentions have been urged on behalf of the appellants concerned, but Mr. J.C. Bhatt, learned advocate appearing for the original petitioners is Election Petition No. 4 of 1980 has raised a preliminary objection in each of these three appeals regarding the maintainability of the Letters Patent Appeal. The contention which Mr. Bhatt has urged is that the orders passed by N. H, Bhatt J. allowing inspection of certain documents were not 'judgment' within the meaning of the word 'judgment' in Clause 15 of the Letters Patent and since it was not a judgment, no appeal can lie against the orders passed by N.H. Bhatt J. in Election Application No. 7 of 1981 and Election Application No. 11 of 1981. In this connection, Mr. Bhatt has relied on the decision of this High Court in lndulal Kanaiyalal Yagnik v. Prasannadas D. Patwari and Others : AIR1972Guj92 . On the other band, an effort has been made by Mr. Raval appearing for the successful candidate Himatbhai Rambhai Madam, respondent No. 3 in Letters Patent Appeal No. 1 of 1981 and the appellant in Letters Patent Appeals Nos. 2 and 3 of 1981 to show that the appeals are maintainable. The contention of Mr. Raval is that when inspection was granted without there being prima facie evidence before the Court regarding any of the corrupt practices alleged in the main election petition, the right of the successful candidate was finally adjudicated upon and therefore the orders passed in Election Application No. 7 of 1981 and Election Application No. 11 of 1981 would amount to 'judgment' within the meaning of Clause 15 of the Letters Patent. In lndulal v. Prasannadas (supra), the appeal under Clause 15 of the Letters Patent was against the decision given by me sitting as a Single Judge on a preliminary issue in Election Petition No. 1 of 1971. I held on the preliminary issue that the election petition filed by the petitioner of that election petition was properly constituted and was not liable to be dismissed on account of non-joinder of one Vasudev Tripathi. The election petition was filed challenging the election of the successful candidate who was declared elected as a Member of the House of people from Ahmedabad City Constituency. The election was challenged on various grounds which included inter alia allegations of corrupt practice within the meaning of Sub-sections (2) and (3) of Section 123 of the Representation of the People Act, 1951. The appellant in the Letters Patent Appeal before the Division Bench contested the election petition and one of the contentions raised by him in an amended paragraph introduced in the written statement was that there were allegations of corrupt practice made in the petition against Vasudev Tripathi, President of the City District Congress (Shashak) Committee and since he was one of the candidates validly nominated for the election, though he withdrew his candidature on or before the date fixed for withdrawal of nomination papers, he was a candidate within the meaning of Section 79(b) and hence a necessary party under Section 82(b) and in his absence the petition was, by reason of Section 86, liable to be dismissed in limine on account of non-compliance with Section 82(b). This contention formed the subject matter of issue No. (2) before me in the election petition. Since this issue raised the question whether the petition was liable to be dismissed in limine under Section 86, it was tried by me as a preliminary issue, and I held, for reasons given in a judgment delivered on 20th August 1971. that there were no allegations of corrupt practice against Vasudev Tripathi in the petition and it was, therefore, not necessary for the petitioner in the election petition to joint Vasudev Tripathi as respondent and non-joinder of Vasudev Tripathi did not render the petition liable to be dismissed under Section 86. It was on this decision regarding the preliminary issue based on non-joinder of Vasudev Tripathi that the Letters Patent Appeal under Clause 15 of the Letters Patent was filed by Indulal Yagnik, the successful candidate in that election. The Division Bench started with the classic definition of the word 'judgment' given by Sir Richard Couch, C.J. in Justices of the Peace for Calcutta v. Oriental Gas Company (1872) 8 Bengal Law Reports 433 and the definition is:
'We think 'judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit and a preliminary or interlocutory judgment determinates only a part of it, leaving other matters to be determined.
After going through several authorities it was pointed out by Bhagwati C.J. as he then was, speaking for the Division Bench in paragraph 5 at page 97:
We are of the view that, while considering this question, a line must be drawn between proceedings which are purely ancillary to the main proceeding and proceedings which in themselves involve the determination of some right or liability not in issue in the main proceeding. If a proceeding is purely an ancillary proceeding for the purpose of facilitating the progress of the main suit or proceeding, an order made in such proceeding cannot be said to amount to a judgment unless it determines some right or liability in the main suit or proceeding. But if a proceeding is instituted which in itself involves determination of some right or liability, which is not in issue in the main suit or proceeding, and such right or liability is determined by an order made in such proceeding, it would amount to a judgment. We do not wish to hazard and enumeration of the cases which would fall in one category or the other but the obvious cases which might fall in the former category are cases of orders granting amendment and other orders of procedural character while cases which might fall in the latter category are cases of orders made on an application for setting aside an ex parte decree or an application for setting aside an abatement or an application for excuse of delay in filing an appeal. This view as regards the latter category of cases is, it must be conceded, contrary to the current of authority of the Bombay High Court. Where an order is made refusing to set aside abatement of a proceeding or to excuse delay in filing an appeal or to set aside an ex parte decree, it is well settled by decisions of the Bombay High Court, that such an order would be a 'judgment' because it negatives the right of the party to proceed further for adjudication of his rights on merits. But where an order is made setting aside abatement of a proceeding or executing delay in filing an appeal or setting aside an ex parte decree, the view taken by the Bombay High Court in decided cases is that it would not be a 'judgment' because it does not affect the merits of the question between the parties by determining some right or liability in the main proceeding but is merely a procedural step restoring the main proceeding to an actionable condition in which the substantive rights and liabilities for adjudication of which the main proceeding is brought can be determined.... This view taken by the Bombay High Court results in an anomaly that though an application of the nature abovementioned is an independent proceeding involving determination of some right or liability not in issue in the main proceeding, an order terminating the application one way would amount to a 'judgment' while an order terminating the application the other way would not be a 'judgment'.
It was held that the order passed by me sitting single was nothing more than this, namely, that petition was properly constituted and was not liable to be dismissed on account of non-joinder of Vasudev Tripathi. Bhagwati C.J. observed:
It is difficult to see how the decision of Mr. Justice Divan can be said to affect the merits of any substantive rights of the parties which are to be adjudicated in the petition.
In paragraph 10 at page 102 it was observed:
It is obvious that the decision of Mr. Justice Divan did not relate to any question in controversy between the parties on merits nor did it determine any substantive right or liability sought to be adjudicated in the petition. The petition sought to challenge the election of the appellant on various grounds and the controversy between the parties on merits, therefore, related to the question whether any of these grounds were established and, if so, whether they vitiated the election of the appellant. There was no decision on any aspect of this question when Mr. Justice Divan decided that Vasudev Tripathi was not a necessary party to the petition and the petition was not liable to fail on account of his non-joinder. What Mr. Justice Divan decided was only a procedural matter, namely, whether the petition was properly constituted. There were, as we have pointed out above, certain procedural requirements to be fulfilled before a petition could be properly constituted. The contention of the appellant was that one of these requirements was not satisfied inasmuch as Vasudev Tripathi was not joined as a respondent to the petition. Mr. Justice Divan held that Vasudev Tripathi was not a necessary party to the petition and in the circumstances though he was not joined as a respondent, the petition was properly constituted. None of the substantive rights or liabilities for adjudication of which the petition was filed was decided by Mr. Justice Divan on merits. The decision of Mr. Justice Divan merely paved the way for determination of the substantive rights and liabilities. What it said in effect was that the petition being properly constituted, the first respondent could proceed with the petition and the substantive rights and liabilities for adjudication of which the petition was filed could be determined on merits. This was clearly an order in procedure it did not affect the merits of the question in controversy between the parties by determining some right or liability in the petition and it could not, therefore, be regarded as a 'judgment'.
It may be pointed out that in an earlier judgment, Bhagwati C.J. speaking for the Division Bench of this High Court in Dr. Chholalal Jivabhai Patel v. Vadilal Lallubhai Mehta 12 G.L.R. 830 had considered the question as to what was merely an ancillary proceeding but this question which arose in that case was left open and it was only in : AIR1972Guj92 : 13 G.L.R. 269 (supra) that the question of ancillary proceedings was finally considered and decided upon. In paragraph 33 at page 875 of the report in Dr. Chhotalal Jivabhai Patel's case (supra), the question was left open, expressing that it was not necessary to express any definite opinion on that question and therefore the Division Bench said no more about it and the question was about decision on a purely ancillary proceeding for the purpose of facilitating the progress of the cause or suit. Thus it is clear that the question which was left open in 12 G.L.R. 830 at 825, which was decided in 1967, was finally disposed of and decided upon in the manner which we have set out in the passage extracted above from : AIR1972Guj92 (supra).
2. We are not concerned at the present stage with the merits of the case. Mr. Raval said that the Supreme Court has laid down in Ram Sevak Yadav v. Hussain Kamil Kidwai : 6SCR238 and subsequent cases that when the secrecy of the ballot is to be disturbed, certain safeguards have to be followed and the safeguards are that there must be averments and particulars in the election petition itself regarding the alleged corrupt practice or the alleged acts of omission or commission on the part of the Returning Officer which would justify passing an order for giving inspection to the parties concerned of the sealed packets which were sealed in accordance with the provisions of the Representation of the People Act, 1951 and the rules made thereunder to preserve the secrecy of the ballot. Mr. Raval further emphasized that the second condition which has been laid down by the Supreme Court for disturbing the secrecy of the ballot is that there must be prima facie evidence before the Election Tribunal or before the Election Judge hearing the election petition showing that there was sufficient prima facie evidence and grounds for disturbing the secrecy of the ballot. Mr. Raval has contended that in the instant case, by passing the order without examining the necessary averments in the election petition and without any prima facie evidence in support of the allegation of booth-capturing etc. and forgeries committed on a large scale at the three booths in question and further without any prima facie evidence in that behalf, Bhatt J. has granted an inspection in this matter and therefore, pro tanto, the merits of the case have to that extent been decided so far as the application for inspection was concerned. Mr. Raval is right when he contends that the rights of the parties may not necessarily be in the main matter which is before the Court. The rights of the parties may be in a connected proceeding but there must be substantive determination of the rights of the parties. However, in the instant case, we find that in connection with Election Petition No. 4 of 1980 an ancillary proceeding was taken out, namely. Election Application No. 7 of 1981 and the ancillary proceeding was to pave the way for the progress of Election Petition No. 4 of 1980. In order to prove their case that forgery was committed, and that impersonation was committed in any of these three booths of 'this particular constituency, the proof of the allegations or part of the proof of the allegations could be found in the records which were sealed and unless 'inspection was taken of all or some of those sealed documents, preserving for the time being the secrecy of the ballot as far as possible and taking proper precautions to avoid identification of the voters, proof of the fact whether forgery or impersonation was committed or not could net be had and it was for this limited purpose of paving the way for the determination of the substantive rights and liabilities which were under contest in the main election petition that inspection was given. When inspection was decided upon and after the inspection was granted, the learned Single Judge would be able to proceed with the petition and determination of the substantive rights and liabilities for the adjudication of which the election petition was filed. In deciding this question of granting inspection, N.H. Bhatt J. was not disposing of or deciding, even partially, any of the substantive rights in dispute in the main election petition or in any ancillary proceedings. It may be pointed out that the safeguards which are provided for preserving secrecy of the ballot are for the guidance of the Court and no substantive right of any of the contestant in the election petition can be said to be decided or determined when a particular view on the facts and circumstances of the particular case is taken by a Judge trying an election petition as to at what stage and upto what extent inspection from the sealed packets of the material sealed at the time of the election in question should be given to the parties before the Court. It is only when inspection is given that the further progress of the election petition for the determination of the substantive rights in the main election petition can proceed further. In the passage which we have cited above, the distinction between ancillary proceedings in which substantive rights of the parties are determined, are instances of the type where application for setting aside an ex parte decree or an application for setting aside abatement or to excuse delay in filing an appeal are mentioned, because determination of those matters one way or the other would ultimately affect the rights of the parties. If, for example, an application for setting aside abatement is granted, the right of the other side to contend that the appeal has abated is determined. If an ex parte decree is set aside the parties who have benefitted by the ex parte decree can contend that their rights under the decree are decided upon. It is in these cases where proceedings are ancillary and affect the rights of the parties in the main matter that Courts have held that the substantive right of the parties even as regards the main petition are affected. The category in which ancillary proceedings would not amount to a 'judgment' are, for example, cases of orders granting amendment and other orders of procedural character. In the instant case, granting of inspection in accordance with law is a purely procedural matter and it may be pointed out that though the line of cases regarding secrecy of the ballot started with the decision of the Supreme Court in Ram Sevak Yadav's case : 6SCR238 (supra), there are other cases, particularly the case of Shri Shashi Bhushan v. Prof, Balraj Madhok and Ors. : 2SCR177 , where the legal position regarding secrecy of the ballot and in what circumstances it should be disturbed have been laid down by the Supreme Court. Therefore, there cannot be said to be any substantive right of the parties determined merely because instructions for inspection with proper precaution which the learned Judge thought proper have been given in the instant case. In our view therefore, the order passed in Election Application No. 7 of 1981 and Election Application No. 11 of 1981 were orders passed in ancillary proceedings dealing with procedural matters only and substantive rights-of the parties were not determined in any manner whatsoever. There is no-partial or final determination of any of the rights of the contesting parties in the present proceedings and therefore the orders passed by our learned' Brother N.H. Bhatt J. in Election Application No. 7 of 1981 and Election Application No. 11 of 1981 cannot be said to amount to a 'judgment' within the meaning of the word 'judgment' in Clause 15 of the Letters's. Patent.
3. There was an argument in the alternative, at least so far as the appellant in Letters Patent Appeal No. 1 of 1981, is concerned, that his right to oppose the application was finally decided, but that is not a right which substantively determines any of the matters between the parties in controversy. It was a right to oppose at ancillary stage only and now that the original respondent No. 5, appellant in Letters Patent Appeal No. 1 of 1981, is fully cognizant of what is happening, he will fight the matter on merits, if he is so advised, and try to satisfy the Court that there was no corrupt practice on the part of the successful candidate or whatever stand he wants to take up in that connection.
4. It may be pointed out that Mr. Raval relied upon the decision of J.M. Sheth J. sitting single in 10 G.L.R. 734 (Chunilal Dahyabhai v. Dharamshi Nanji and Ors. but the learned Single Judge in that case was dealing with the meaning of the words 'case decided' under Section 115 of the Code of Civil Procedure, and though some reference to the phrase 'case decided' is to be found in 12 G.L.R. 850- Dr. Chhotalal Jivabhai Patel's case (supra), yet the final word has been said so far as this Court is concerned in this line of cases in : AIR1972Guj92 - Indulal Kanaiyalal Yagnik's case (supra). Under these circumstances, we have followed the reasoning of the Division Bench in Indulal Kanaiyalal Yagnik v. Prasannadas D. Patwari's case (supra) in preference to certain obsevartion which are to be found in Dr. Chhotal Jivabhai Patel v. Vadilal Lallubhai Mehta 12 G.L.R. 850 (supra).
Under these circumstances, we uphold the preliminary contention in each of these three matters and he hold that the order passed by the learned Single Judge was not a 'judgment' within the meaning of Clause 15 of the Letters Patent and these Letters Patent Appeals are therefore not maintainable. Under these circumstances, each of these three Letters Patent Appeals fails as not maintainable and is dismissed on the preliminary objection and in the light of our conclusion on the preliminary objection.
5. may be pointed out that the decision of the Madras High Court in T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar I.L.R 35 Madras, 1 and the decision of the Calcutta High Court in The Central Jute Mills Co. Ltd. v. The Assistant Collector of Customs A.I.R. 1979 Cal. 212, were relied upon on behalf of one or the other appellant in this group of Letters Patent Appeals but since we find that the matter has been considered by our own High Court, we have not thought it necessary to refer to those decisions of other High Courts.
6. An oral application for leave to appeal to the Supreme Court is made on behalf of the different appellants. In our view, no substantial question of law of general importance which is needed to be decided by the Supreme Court has been decided by us. The law is well settled so far as this State is concerned add since the decision in Indulal Kanaiyalal Yagnik's case : AIR1972Guj92 has been followed in the instant case, the oral application is rejected. However, the proceedings before the learned Single Judge will be stayed for a period of three weeks from today to enable the parties to obtain appropriate orders from the Supreme Court. Inspection will also be stayed until the period of three weeks is over.
There will be no order as to costs in any of these Letters Patent Appeals.