1. This is a petition under Article 226, Constitution of India and has arisen in the following circumstances:
2. The petitioner Sangramsingh was elected as a member of the Legislative Assembly and the opposite party Shri Bhureylal challenged the election by a petition which is No. 297 of 1952. The Election Tribunal had its sittings at Kotah. After certain proceedings had been gone through an order was recorded by the Election Tribunal on 11-12-1952 that the further sittings of the Election Tribunal will take place at Udaipur from 16th to 21-3-1953. On 5-1-1953 it was discovered that 16-3-1953 was a public holiday and an order was recorded that the sittings will take place at Udaipur from 17-3-1953 and onwards. Mr. Trivedi who appeared for the petitioner Sangramsigh before the Election Tribunal on these dates had notice of the hearing from 17th March at Udaipur. On 17-3-1953 the petitioner and his counsel did not appear before the Tribunal and an order was recorded for further proceedings to be taken ex parte. An application was submitted before the Tribunal for setting aside the order to proceed ex parte but that petition was 'rejected by the Tribunal on 21-3-1953. The present petition challenges that order and it has been argued,
1. that under the law the election Tribunal was bound to set aside the order to proceed ex parte,
2. that no order to proceed ex parte could be given under the law, and
3. that the constitution of the Tribunal was illegal and all proceedings before the Tribunal should be Bet aside.
3. Learned counsel for the petitioner relied on Order 9, Rule 7, Civil P. C. for the first proposition but as the very words of the Rule show the order to hear a suit ex parte can only be set aside if the applicant is able to assign good cause for his previous non-appearance. The reasons alleged for non-appearance, as stated in the present petition, or in the affidavit before the Tribunal, are that on 14-3-1953 Mr. Trivedi, counsel for the petitioner, was at Indore and he sent a telegram to the Tribunal at Kotah objecting to the validity of the hearing at Udaipur. On the next day Mr. Trivedi found that his objection was untenable and he sent a letter accordingly to the Tribunal at Kotah. It appears from a perusal of the record that in the meanwhile the Tribunal had reached Udaipur and sent a reply to Mr. Trivedi that his objection had been overruled. Mr. Trivedi's letter of 15-3-1953 reached the Tribunal at Udaipur on the 19th March.
It is said that Mr. Trivedi sent letters from Neemuch on the 15th March to his colleagues Mr. Ramsarup Advocate at Kotah & Mr. Bharatraj lawyer at Udaipur to appear before the Tribunal on 17-3-1953. None of them could however appear as the two gentlemen to whom the request was made did not receive the letters in good time. On the 21st March Mr. Trivedi appeared before the Tribunal and made an application that on account of some misunderstanding of the advocates and for the reasons aforesaid nobody could appear for the petitioner and prayed for having the order for ex parte proceedings set aside. The Tribunal came to the conclusion that the reasons set forth for non-appearance of the advocates were not sufficient and consequently it did not set aside the ex parte order.
4. In the first place, the Tribunal was the authority to decide whether the reasons were sufficient or otherwise and the fact that the Tribunalcame to the conclusion that the reasons set forth by counsel for the petitioner were insufficient cannot be challenged in a petition of this nature. On the merits also, we feel no hesitation in holding that counsel for the petitioner were grossly negligent in not appearing on the date which had been fixed for hearing, more than two months previously.
5. It was argued that the petitioner should not be made to suffer for the negligence of his lawyers is of no avail. The negligence of the lawyers will be attributed to the petitioner as well as they were his representatives.
6. On the second question the argument seems to be based on a misconception. Order 17, Rule 1(1) makes mention of two matters-- (a) The court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and (b) the court may from time to time adjourn the hearing of the suit.
7. Learned counsel wants to argue that the adjournment from time to time can only be made at the request of a party and on that basis he tried to urge that the adjournment referred to in B. 2 would only be that adjournment which had been granted at the instance of a party. The contention has no force. The adjournment mentioned in Rule 2 may be one which may have been granted at the instance of the party or which may have been ordered for other reasons as well.
8. On the third question, it was urged that Mr. Padamdatt Pandey, who is the Chairman of the Tribunal, does not fulfil the qualifications mentioned in Section 86, Representation of the People Act, 1951 & further Mr. B.S. Darbari is not an advocate of the High Court of Rajasthan in which area the Tribunal is functioning. As to the first contention. it is said that the petitioner has reasons to believe that Shri P. D. Pandey had never been a District Judge in the State of Uttar Pradesh. in the first place, there is a presumption that the appointment made by the Election Commission is valid as under Section 114 illustration (e), Evidence Act, a court may presume that judicial and official acts have been regularly performed. In the second place the source of information or the reasons which may have led the petitioner to believe that the appointment is invalid have not been disclosed.
As regards the second argument, it is based on a misconception. Under Section 86(2), Representation of the People Act, 1951, the Election Commission is authorised to obtain from the High Court of each State (a) a list of persons who are or have been District Judges in that state and who are in the opinion of the High Court fit to be appointed as Members of the Tribunals, and (b) a list of advocates of the High Court who have been in practice for a period of not less than ten years and who are in the opinion of the High Court fit to be appointed as Members of the Election Tribunals. Sub-section (3) is divided into two portions -- Clause (a) relates to the appointment of a Chairman and Clause (b) to the appointment of two other Members, of whom one is to be selected by the Election Commission from the list of advocates referred to in Sub-section (2). There is nothing in this section to restrict the selection of Members to advocates practising in the State in which the Election Tribunal is to function. The contention has no force. All that is necessary is that one of the Members will be from the lists sent by the various High Courts under Clause (b), Sub-section (2), Section 86 of the Act. It is not disputed that Mr. B.S. Darbari is an advocate from one of these lists.
9. As a result, the petition Is hereby dismissed. The petitioner will pay costs to Shri BhureylalBaya, respondent No. 2, which are assessed at Rs. 100/-.