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Ganpatsingh Vs. Brijmohanlal Sharma - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. (Election) First Appeal No. 20 of 1958 and Writ Petn. No. 88 of 1958
Judge
Reported inAIR1959Raj114
ActsRepresentation of the People Act, 1951 - Sections 90(3), 108, 109, 110 and 116A; Constitution of India - Article 226
AppellantGanpatsingh
RespondentBrijmohanlal Sharma
Appellant Advocate V.P. Tyagi, Adv.
Respondent AdvocateParty in person
DispositionAppeal dismissed
Cases ReferredHeersingh v. Veerka
Excerpt:
- - shri ganpatsingh who was the respondent in the election petition had filed the appeal as well as the writ petition as already mentioned. 8. in the matter of making parties to the petition it was thought expedient to make the provision that the persons who bad actually taken some part in the election by being candidates should be made respondents as obviously it was necessary to limit the number of the respondents. after all at an election candidates are the best persons who know what they and their rival candidates did and it was thought sufficient that they should be made parties. the tribunal is performing its judicial function and in performing its function, it has to bear in mind that no person is to be condemned unheard. various provisions of the act referred to above show.....d.m. bhandari, j. 1. by his order dated the 15th of january, 1958, shri kishen lal, member election tribunal, ajmer dismissed the election petition of shri kalyansingh filed by him against shri brij mohan lal, shri kumaranand, shri ganpatsingh and four others on the ground of non-compliance of the mandatory provisions of section 117(1) of the representation of the people act, 1951 (no. 43 of 1951) (hereinafter called the act). shri ganpatsingh has filed appeal no. 20 of 1958 under section 116a of the act.he has also filed a writ petition no. 88 of 1958 and has challenged the order of the tribunal dated the 15th of january, 1958 in both these proceedings. a preliminary objection was raised on behalf of shri brij mohan lal that shri ganpat-singh who had not filed the election petition but.....
Judgment:

D.M. Bhandari, J.

1. By his order dated the 15th of January, 1958, Shri Kishen Lal, Member Election Tribunal, Ajmer dismissed the election petition of Shri Kalyansingh filed by him against Shri Brij Mohan Lal, Shri Kumaranand, Shri Ganpatsingh and four others on the ground of non-compliance of the mandatory provisions of Section 117(1) of the Representation of the People Act, 1951 (No. 43 of 1951) (hereinafter called the Act). Shri Ganpatsingh has filed Appeal No. 20 of 1958 under Section 116A of the Act.

He has also filed a writ petition No. 88 of 1958 and has challenged the order of the Tribunal dated the 15th of January, 1958 in both these proceedings. A preliminary objection was raised on behalf of Shri Brij Mohan Lal that Shri Ganpat-singh who had not filed the election petition but was merely a respondent in that election petition could not challenge the aforesaid order either by filing an appeal or by filing a writ petition.

2. The election petition relates to the election of a member to the Rajasthan LegislativeAssembly from the Beawar constituency the polling of which took place on the 25th of February, 1957. In that election Shri Brij Mohan Lal, Shri Kumaranand, Shri Ganpatsingh and Shri Bhagirath were the contesting candidates and Shri Kalyan-singh was the election agent appointed by Shri Kumaranand on the 13th of February, 1957.

The counting of the votes took place on the 26th of February, 1957 and Shri Brij Mohan Lal was declared elected. In the election petition the election of Shri Brij Mohan Lal was challenged on various grounds which included the allegation that he had committed various corrupt practices mentioned in the petition. In addition to (his it was also prayed that Shri Kumaranand be declared elected.

3. It is stated in the election petition that a deposit of security for a sum of Rs. 1000/- as required by Section 117 of the Act was made in the Government Treasury, Beawar on the 4th of April, 1957 in favour of the Secretary, Election Commission of India by the petitioner, the receipt of which was enclosed with the petition. The receipt that was enclosed was not on the original challan. The Secretary, Election Commission, vide his letter dated the 17th of April, 1957, wrote to Shri Kalyansingh to forward the original challan for record at an early date.

The original challan was obtained by Shri Kalyansingh from the State Bank of India, Beawar on the 14th of April, 1957 and was sent to the Election Commission which reached there on the 11th of May, 1957. The Election Tribunal appointed first Shri C. Jacob and later on his resignation, Shri Kishen Lal as the Tribunal and the case was tried by the latter. Preliminary objections to the maintainability of the election petition were filed by Shri Brij Mohal Lal and one another respondent to the election petition.

Shri Brij Mohan Lal raised the objection that Shri Kalyansingh has not complied with the mandatory provisions of Section 117 of the Act and as such the election petition should be dismissed under Section 90 (3). On the 9th of November, 1957, the Tribunal passed the order that as it was of opinion that unless evidence was led to the effect that the proper compliance of treasury rules was not made and the challan was not properly filled in, it would not be expedient to decide the point off hand and on arguments only without taking evidence on that point. The Tribunal, therefore, ordered that the objection would be decided when evidence is led by the parties.

Thereafter written statement was filed by Shri Brij Mohan Lal on the 2nd of January, 1958 pleading inter alia that the application should be dismissed as the petitioner had not complied with the provisions of Section 117 of the Act. Recriminating petition under Section 97 had also been filed by him on the 13th of July, 1957 praying that Shri Kumaranand be held not entitled to any relief with respect to the claim for the seat in case it be necessary to decide that question and Shri Kalyansinghand Shri Kumaranand be disqualified from voting under Section 151 of the Act. No written statement was filed by Shri Ganpatsing. As many as 18 issues were framed on the 2nd of January, 1958 and out of them issue No. 17 was as follows: --

'Did the petitioner not deposit and enclose areceipt as required by Section 117 of the Rule P. A. Ifnot, what is its effect?

The parties wanted first to lead evidence on issue No. 17 and they were ordered to do so on the 9th of January, 1958 and it was further ordered that arguments will also be heard on that date. On the 9th of January, 1958, the petitioner Shri Kalyansingh was absent. Shri D. D. Bhargava counsel for the petitioner was present. He reported that he had no instructions in the petition. Thereafter, Shri Simlote, Sub Treasury Officer, Beawar was examined on behalf of Shri Brij Mohan Lal who closed his evidence on issue No. 17. Shri Simlote was not cross-examined by any of the parties. Arguments were heard and the judgment was reserved to be pronounced on the 15th of January, 1958. On that date Shri Kalyansingh and his counsel were absent.

On that day an application was filed by Shri G. P. Sharma counsel for Shri Ganpatsingh that

'it was reliably learnt that Shri Kalyansingh who was an election agent of Shri Kumaranand had entered into a sort of agreement with a view to get round the provisions of election law and that in furtherance of that agreement, the petitioner Kalyansingh had instructed his counsel to report no instructions on the last date of hearing.'

It was prayed that orders may be pronounced in the matter and action be taken under Section 109 or Section 110 Sub-clause (2) of the Act. This application was dismissed on the ground that order on the election petition was ready to be pronounced. Thereafter the election petition was dismissed under Section 90 (3) of the Act on the ground that it did not comply with the mandatory provisions of Section 117.

4. Against this order Shri Kalyansingh did not file any appeal or writ petition. Shri Ganpatsingh who was the respondent in the election petition had filed the appeal as well as the writ petition as already mentioned.

5. In the preliminary objection to the maintainability of the appeal it is contended on behalf of Shri Brij Mohan Lal respondent No. 1 in this appeal that Shri Ganpatsingh had no right to prefer an appeal as he was not adversely affected by the order passed by the Tribunal. On behalf of the appellant it is urged that he was a party to the election petition and had taken keen interest in the proceedings by attending the court on all the dates fixed by the Tribunal.

On the 9th of January, 1958 he was much surprised to find that Shri Kalyansingh was not attending the trial and his counsel also reported no instructions. He, therefore, made enquiries and came to know that there was a sort of agreement arrived at between Shri Brij Mohan Lal and Shri Kumaranand and seeing this he made an application on the 15th of January, 1958 that proceedings may be taken under Sections 109 and 110 Sub-clause (2) of the Act. It is urged that the trial of the election petition is not a trial in a civil proceeding in which only the parties to that proceeding are interested and no one else.

The appellant, it is urged, was a defeatedcandidate and was keenly interested in the resultof the election petition in which charges of corruptpractices were brought against the successful candidate. The dismissal of the election petition on the preliminary point has taken away the right of the appellant to place such facts before the Tribunal as would be deemed sufficient to hold Shri Brij Mohan Lal guilty of having corrupt practices during the course of election.

6. We proceed to examine the respective contentions raised before us in the light of the relevant provisions of the Act. Section 81 makes provisions for the presentation of an election petition by a candidate at an election or any elector is entitled to present an election petition. The election petition is to be presented to the Election Commission. Section 117 requires that the petitioner shall enclose with the petition a Government Treasury receipt showing that a deposit of Rs. 1000/- has been made by him either in a Government treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition.

Section 82 makes provisions for parties to the petition and in a case where the petitioner claims a declaration that election is void the returned candidates are necessary parties. Where in addition to that relief a further declaration is claimed that the petitioner or any other candidate should be declared to be duly elected all the contesting candidates are to be made parties. Further, if there is any allegation in the petition that any other candidate has committed any corrupt practice he is also to be made a party.

Under Section 85 the Election Commission is bound to dismiss a petition if it does not comply with the provisions of Section 81, Section 82 or Section 117. But before dismissing the petition the Election Commission is to give the petitioner an opportunity of being heard. If the election petition is not dismissed under Section 85 the Election Commission is to take certain proceedings as referred to above in Section 86, and then refer the petition to an Election Tribunal for trial. Sections 90 to 102 deal with the procedure before the Tribunal, the power of the Tribunal for filing recrimination wherein a seat is claimed and other matters.

Section 90(1) lays down that subject to the provisions of the Act and of any rules made thereunder every petition shall be tried by a Tribunal as nearly as may be in accordance with the procedure applicable in the Code of Civil Procedure to the trial of the suits. Section 90(3) makes it mandatory for the Tribunal to dismiss the election petition which does not comply with the provisions of Section 81, Section 82 or Section 117. Section 94 lays down that any candidate not already a respondent shall be entitled to be Joined as a respondent if he makes an application within the time referred therein.

Section 92 gives the powers of the Tribunal and empowers it to summon and examine suo motu any person whose evidence appears to be material. Section 97 lays down when and how a recrimination petition may be filed. Under Section 98 the Tribunal may make an order dismissing the election petition. There are special provisions made in Chapter IV of the Act relating to the withdrawal and abatement of the election petitions.

7. Under the Constitution our country is a democratic Republic. The executive and the legislative functions of the State are to be performed by the elected representatives of the people. The Act provides for the conduct of the elections to the Houses of Parliament and to the Houses of the Legislature of each State. It is of utmost impor-tance in a democratic set up that the persons who are elected to these Houses are elected in a manner inspiring confidence in the people.

The elections must be free and fair and there should not be any corrupt practice committed by any of the candidates. After an election has been held the only mode for calling into question any election is by presenting an election petition under the Act. The right of questioning the election is given not only to a candidate at the election but even to a voter. This only shows that the law makers considered it expedient and necessary that even a voter may have a right to dispute the election of a succe-sstul candidate by exposing the illegalities and the corrupt practices committed by him.

As every voter has a right to vote so also he has the right to call into question an election of a successful candidate if he so desires. This only shows the extent to which the law makers have gone in order to guard against the impurities in the election. But side by side with it to guard against any frivolous election petition a provision has been inserted in Section 117 for depositing Rs. 1000/-in the manner referred to in Section 117 for costs of the petition. Any breach of this provision entails a summary dismissal of the election petition by the Election Commission or the Tribunal.

8. In the matter of making parties to the petition it was thought expedient to make the provision that the persons who bad actually taken some part in the election by being candidates should be made respondents as obviously it was necessary to limit the number of the respondents. The making of returned candidates as respondents was deemed to be sufficient when no seat was claimed but only the election was to be declared void.

In other eases all the contesting candidates are to be impleaded as respondents. Of course, it was thought necessary if any allegation of corrupt practice is made against any candidate that he should be impleaded. After all at an election candidates are the best persons who know what they and their rival candidates did and it was thought sufficient that they should be made parties.

9. Any breach of Section 82 has been made fatal to the maintenance of the election petition the underlying intention being that there should not be any delay on the question of making a party and then issuing notice to him.

10. The Election Commission is bound to dismiss the election petition if it does not comply with the provisions of Section 81, Section 82 or Section 117. It is on the principles of natural justice that it has-been laid down that the Election. Commission which is exercising its quasi-judicial functions in dismissing the petition should not do so without giving the petitioner an opportunity of being heard. Then, the Election petition is referred to an Election Tribunal and from that stage the trial of the election petition takes place as held by their Lordships of the Supreme Court in the case of Harish Chandra Bajpai v. Triloki Singh, (S) AIR 1957 S. C. 444.

There are two stages in which the trial before the Tribunal can be divided. The first stage is when the Tribunal exercises its power under Section 90 (3) i.e., of summarily dismissing the election petition. The second stage is that when a regular trial takes place if the election petition is not dismissed in accordance with Section 90 (3).

11. The question that is to be considered inconnection with the preliminary point is as to whoare the persons who have a right of appeal if theelection petition is dismissed under Section 90 (3). Itcannot be disputed that before dismissing the election petition under Section 90 (3) the Tribunal is bound to hear the petitioner. The Tribunal is performing its judicial function and in performing its function, it has to bear in mind that no person is to be condemned unheard. Even the Election Commission is required to hear a petitioner when passing on order under Section 85.

The petitioner is surely a person who has a right to challenge in appeal the order of the Tribunal dismissing the election petition under Section 90 (3) as he is the person who is adversely affected by that order. We have held in the case of Alimuddin v. Satish Chandra Agarwal, AIR 1958 Raj 155 to which one of us was a party, that an appeal under Section 116A is maintainable on behalf of the petitioner when it is dismissed under Section 90 (3) as by such dismissal the trial is concluded.

12. But can it be said that any of the respondents has a right to challenge that order? The provisions of the Code of Civil Procedure are applicable to the proceedings in this appeal but in the Code there is no provision which lays down that such and such' person is entitled to appeal. The learned Counsel for the respondent has cited various authorities to show that only a person adversely affected by an order can prefer an appeal. We need not consider all these authorities as it may he taken as settled law that only the party adverse-lyy affected by a decree or order can prefer an appeal.

(See Mulla's Civil Procedure Code 12th Edition p. 356). But can a respondent to an election petition be said to be a person adversely affected by an order passed under Section 90 (3) dismissing the election petition? A person can be said to be adversely affected by an order if by that order he has been refused any relief which he could claim in the eye of law on the basis of any right in him or he has been saddled with any liability under the terms of that order.

13. Learned Counsel for the appellant argued that in an election trial, even a respondent has a right to take up the same position as taken up by the petitioner. It is urged that the election trial is not only a trial between the petitioner and the successful candidate only but it must also be taken to be a trial between the respondents inter se. For this he relied on the case of Roop Chandra Sogani v. Rawat Man Singh, 5 El. LR 327. He also referred to the provisions relating to withdrawal and abatement of election petitions made under Sections 108 to 116. He urged that Kalyansingh Petitioner had colluded with Shri Brij Mohan Lal respondent and had deliberately absented himself on 9-1-1958. The appellant as he came to know of it made an application on the 15th of January, 1958 stating that there was a sort of agrelement between them to get round the provisions of election law, Under such circumstances when the election petition was dismissed under Section 90 (3) it was not expected that Kalyansingh will come in appeal and it is why the appellant lias filed the appeal.

If has been held in Roop Chandra Sogani's case, 5 El. LR 327, that where a petitioner shows deliberately wants to defeat his petition by non-negligence for the prosecution of the petition or appearance, a respondent who expresses a desire to prosecute the petition must in the interest of justice be permitted to do so. From the facts of that case it appears that the trial before the Election Tribunal in that case had reached the second stage as we have called it. No doubt when that stage is reached, the Tribunal in an appropriatecase may make an order permitting a respondent to prosecute the petition.

As observed by their Lordships of the Supreme Court in the case of Jagan Nath v. Jaswant Singh and others, AIR 1954 SC 210 one of the essentials of the election law is to safeguard the purity of election process and also to see that people do not get elected by flagrant breach of that law or by corrupt practices. For that purpose the Tribunal may permit a respondent to carry on the proceedings as if he was a petitioner. This may even be done by transposing him as a petitioner under Order 1, Rule 10, Civil Procedure Code. The trial of an election petition often assumes a form in which the real contest is between the respondents inter se. This often happens even in civil suits.

For example in suits relating to partnership and in suits of partition, we often find that the real contest is between the defendants. In an.election petition in which a voter is a petitioner, it is not very unusual to find that the respondents are the real contesting parties. The respondent in such an ejection petition cannot be denied the right to carry on the proceeding's at the trial specially when there are charges of corrupt practices.

After referring to the various provisions of the Act their Lordships of the Supreme Court in the case of Mallappa Basappa v. Basavaraj Ayyapa, AIR 1958 S. C. 698, have pointed out that proceedings before the Election Tribunal have a characteristic of their own as the constituency as a whole has an interest in the trial of the election petition. It is this which differentiates it from the trial in civil proceedings. Their Lordships also referred to the provisions of the Act from Sections 108 to 116 and mads the following observations:

'The above provisions go to show that an election petition once filed does not mean a contest only between the parties thereto but creates a situation which the whole constituency is entitled to avail itself of. Any person who might himself have been a petitioner is entitled to be substituted, on the fulfilment of the requisite conditions and upon such terms as the Tribunal may think fit, in place of the party withdrawing and even the death of the sole petitioner or of the survivor of several petitioners does not put an end to the proceedings, but they can be continued by any person who might himself have been a petitioner. Even if the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and there is no other respondent who is opposing the petition, a similar situation arises and the opposition to the petition can be continued by any person who might have been a petitioner, of course on the fulfilment of the conditions prescribed in Section 116. These provisions therefore show that the election petition once presented continues tor the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his deadi or by the death or withdrawal of opposition by the respondent but is liable to be continued by any person who might have been a petitioner.'

These very provisions were referred to in Jagannath's case, AIR 1954 SC 210, referred to above, and it was observed as follows:

'Various provisions of the Act referred to above show that the election petition does not necessarily abate or fail by reason of the death of the petitioner or any of the respondents or by their ceasing to take any interest in the trial of the petition once that petition has been referred to the Tribunal. On the other hand, any person who could be a petitioner can continue the petition in spite of the death of either the petitioner or the respondents to thepetition and on the original parties failing to prosecute it. These provisions have been made to ensure that the election process on which the democratic system of Government is based is not abused or misused by any candidate and that inquiry is not shut out by collusion between persons made parties to the petition or by their respective deaths. It is therefore clear that the provisions of the law relating to the impleading of parties are not necessarily fatal and can be cured. It is for the Tribunal to determine the matter as and when it arises in accordance with the provisions of the Code of Civil Procedure.'

In view of the above observations it must be held that if the petitioner ceased to take interest at the trial or failed to prosecute it, it is the duty of the Tribunal to permit any of the respondents to carry on the proceedings in support of the petition.

14. But there is an over-riding condition, that is, the election petition must comply with all the essential requirements laid down by the law, must be such as may not be dismissed under S, 90(3). We may quote in this connection the following observations of Mahajan C. J. in Jagan Nath's case, AIR 1954 SC 210;

'The general rule is well settled that the statutory requirements of election law must be strictly observed and 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 that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however has any application if the special law itself confers authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it.'

It may be pointed out that the Tribunal is bound to dismiss an election petition under Section 90(3) when it does not comply with the provisions of Section 81, Section 82 and Section 117. This is a mandatory provision which cannot be by-passed. Upto that stage of the trial none of the respondents can claim a right to support the election petition. The Tribunal may take the assistance of any of the parties in deciding the question whether the petition should be dismissed under Section 90(3), but it is not bound to do so and it does so, it is not creating any right in them.

As already mentioned, the Tribunal is bound to hear the petitioner and it may also hear any of the respondents but the primary duty is of the Tribunal to act according to Section 90(3). If the election petition is not dismissed under Section 90(3), the second stage of the trial is reached but if the election petition is dismissed in its first stage, the trial is concluded. A respondent cannot claim to be adversely affected by the order of the dismissal at the first stage.

15. It is urged that in this case the trial has reached the second stage as notices had been issued to the respondents and one of the respondents, that is, Shri Brij Mohan Lal, had filed the written statement. He had also filed the recrimination petition. It is further urged that the Tribunal had taken the assistance of Shri Brij Mohan Lal before dismissing the election petition by recording the statement of Mr. Simlote at his instance.

In our opinion this contention has got no merit. The election petition was dismissed under Section 90(3) and if the Tribunal had taken the assistance of any of the respondents or has heard any of their objectionson the point that the petition should be so dismissed it cannot be said that the Tribunal had entered into second stage of the trial.

Even under Order 7 Rule 11 Civil Procedure Code where it is incumbent on the court to reject the plaint if the conditions mentioned in that rule are satisfied, it has been laid down that the rule may be applied at any stage of a suit. Rankin C. J., in the case of Secy, of State v. Golabrai Paliram, AIR 1932 Cal 146, in dealing with an application to revoke the leave granted under Clause (12) of the Letters Patent has observed that:

'I do not doubt that in a proper case an application to revoke the leave granted under Clause 12, Letters Patent, may be entertained by the Court. I do not doubt also that, in a case where the plaint discloses a clear case of the suit being barred under the Limitation Act, it is open to a party to heat the suit as one which ought never to have been brought and ask the Court acting under Order 7, Civil P. C. to take the plaint off the file and return it to the plaintiff for amendment. In this case, the parties when they got before the learned Judge appear to have laid before him and entered into a discussion on several extremely difficult and far reaching questions -- questions which, to my way of thinking may turn out -- I do not say they do --to depend upon facts or are at least questions of mixed fact and law.'

15a. It was further observed that:

'The proper course is to dismiss the application to take the plaint off the file and to direct that the case do proceed on all points in the usual way, After it has proceeded to written statement and discovery it would be open to either party to apply for determination of the issues as preliminary issues -- always provided that either party is given a proper opportunity to adduce any evidence bearing upon any of the issues that are framed. I do really protest against questions of difficulty and importance being dealt with by an application to revoke the leave under Clause 12, Letters Patent and to take the plaint off the file.'

A decision of a preliminary issue that the election petition is not maintainable because it does not fulfil the requirements as laid down under law and it should be dismissed is nonetheless a decision under Section 90(3).

16. It is urged that the appellant could have shown to the Tribunal that the election petition was not liable to be dismissed under Section 90(3) had he been given an opportunity to do so on 15-1-1958, when he had made an application pointing out that there was collusion between Shri Kalyansingh and Shri Brij Mohan Lal and as he was refused that opportunity he had a right to come in appeal. In the first place the application presented by the appellant on that date does not say that the appellant be permitted to show that the election petition was maintainable and that he should be permitted to take part in further proceedings.

What the appellant had prayed was that proceedings may be taken under Sections 109 and 110 sub- Clause (2) of the Act. It has been held by this Court in the case of Heersingh v. Veerka, AIR 1958 Raj 181, that the provisions of Sections 108 to 110 came into play only if the election petition is withdrawn and the withdrawal is granted. We respectfully agree with that view.

Learned counsel has argued that in this case though there was no application for withdrawing the election petition yet the petitioner Shri Kalyansingh was withdrawing from the case by a back door and this must be taken to be a case of withdrawal. There is much difference between withdrawing an election petition and in not conducting an election petition. We are familiar with this difference in case of suits.

When the plaintiff does not prosecute a suit by absenting himself, his suit is dismissed under Order 9 Rule 8 Civil Procedure Code or proceedings are taken under Order 17 read with Order 9. In case of withdrawal the court acts under Order 23 Rule 1 C. P. C. In case of election petition absolute right of withdrawal is not allowed and the Tribunal is to act in accordance with Sections 108 to 110. But before those proceedings can be attracted, it is necessary that there must be an application for withdrawal. The application of the appellant dated 15-1-1958 was misconceived as the Tribunal could not act under Sections 109 and 110 in the circumstances of this case. He did not make an application at any time between the 9th and the 15th of January, 1958, that he wanted to take part in the proceedings and it is too late in the day for him to say in this Court that he wanted to take part in the proceedings.

Even if he would have said so, in the matter of the determination of the question whether the petition should be dismissed or not under Section 90(3) he would have only assisted the Tribunal. He could not claim as of right that he should be heard. No right of the appellant would have been infringed if the Tribunal had refused to hear him and he cannot be said to be adversely affected by the order passed by the Tribunal. In this connection we may refer to the case In re Bradford Navigation Co., (1870) 5 Ch A. 600.

This was a case in which an appeal had been filed against the order of the winding of the 'Company of the proprietors of the Bradford Navigation'. The company presented a petition for winding up and the Aire and Calder Candal Company opposed the petition to wind up the company. An appeal was filed by the Aire and Calder Candal Company. A preliminary objection was taken that the appellants could not appeal. It was held that the winding up was an order which did not affect the appellants and the appeal was refused on that ground. We may quote the following observations oil Sir W. M. James, L. J. :

'It stands in a different way from that in which it stood in the Court below, because here I am obliged to consider whether the Appellant had a right to present a Petition of Appeal. In the Court below the Court might very well say to a person so situated, 'I should be glad to hear you as amicus curiae, if you have an interest, that I may know that public grounds there are.' There the Court might use its discretion, and think it right to hear such an objection; but when it comes before me on a Petition of Appeal from the Order, then the Appellant must shew that he fills some character in which he has a right to litigate with the company. I am of opinion that he does not fill any such character, and that the Petition of Appeal must be refused with costs.'

The above observations clearly show that the trial court may take the assistance of some persons in deciding a matter but such persons cannot appeal against the decision as of right unless they are adversely affected.

17. Learned counsel relied on the following observations of their Lordships of the Supreme Court in the case of Ebrahim Aboobakar v- Custodian General of Evacuee Property, New Delhi, AIR 1952 SC 319:

'When a person is given a right to raise a contest in a certain matter and his contention is negatived then he is certainly a person aggrieved by the order disallowing his contention.'

The above mentioned observations do not support the case of the appellant as it is clear that they apply to the person having some right. We are or opinion that till the second stage is reached, a respondent is not given the right to support or contest the election petition. The matter is entirely left in the hands of the Tribunal which may take assistance of any of the parties.

The appellant had no right to say that the election petition should not be dismissed under Section 90 (3). Under the law he himself had a right to present an election petition which he did not avail of As a respondent to the election petition filed by Shri Kalyansingh he could not as of right say that he should be deemed to be a petitioner even at the stage when the Tribunal was considering the question whether the petition should be dismissed or not under Section 90(3).

We, are, therefore, of opinion that the appellant cannot be taken to be any person adversely affected by the order passed by the Tribunal on 15-1-1958, dismissing the election petition under Section 90(3). He has, therefore, no right to appeal. We accept the preliminary objection raised on behalf of Shri Brij Mohan Lal and we dismiss the appeal with costs which we assess at Rs. 250/-.

18. Coming to the writ petition we are of opinion that the writ petition should also be dismissed on the ground that for reasons aforesaid Shri Ganpatsingh was not an aggrieved person against the order of the Tribunal dated 15-1-1958, and he cannot maintain the writ petition. The writ petition is also dismissed. We make no order as to costs in this writ petition as Shri Brij Mohan Lal has already been awarded costs in the connected proceedings.


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