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Dr. A. Krishnaswamy Vs. V. Natesan and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai
Decided On
Reported in(1949)2MLJ446
AppellantDr. A. Krishnaswamy
RespondentV. Natesan and ors.
Cases ReferredStowe v. Jolliffe
Excerpt:
- - 2. the first respondent was the unsuccessful candidate in a municipal election, and he filed election petition no. it is contended on behalf of the petitioner that the order of inspection has been passed without notice to the petitioner who was the unsuccessful candidate, and notice of the application for inspection of the documents referred to in the petition was necessary before an order for inspection could be passed by the learned judge. it is necessary that before an order is made, the learned judge should be satisfied that the inspection of the documents was required bona fide for the purpose of the enquiry. ple 446 where the learned judge observes that, the court must be satisfied by evidence on oath that the inspection is reasonably and bona fide required for that purpose......madras.2. the first respondent was the unsuccessful candidate in a municipal election, and he filed election petition no. 1 of 1948, for declaring that the election of the first respondent who is the petitioner here who was the successful candidate for the 26th division, as invalid and for setting aside the election. there was also a prayer that a fresh election be ordered. the ground on which he filed the election petition was, among others, that there was false personation and the election has been materially affected by such false personation. during the pendency of the election petition the first respondent filed c.m.p. no. 8960 of 1948, for directing that the documents referred to, viz., the marked electoral roll, counterfoils of the ballot papers, unused ballot papers,.....
Judgment:

Krishnaswami Nayudu, J.

1. This is a petition to revise the order of the learned Chief Judge of the Court of Small Causes ordering inspection of the marked electoral roll, counterfoils of the ballot papers, unused ballot papers, tendered and challenged votes and the return of the polling officers, to the first respondent who was the petitioner in Election Petition No. 1 of 1948 on the file of the Court of Small Causes, Madras.

2. The first respondent was the unsuccessful candidate in a municipal election, and he filed Election Petition No. 1 of 1948, for declaring that the election of the first respondent who is the petitioner here who was the successful candidate for the 26th division, as invalid and for setting aside the election. There was also a prayer that a fresh election be ordered. The ground on which he filed the Election Petition was, among others, that there was false personation and the election has been materially affected by such false personation. During the pendency of the Election Petition the first respondent filed C.M.P. No. 8960 of 1948, for directing that the documents referred to, viz., the marked electoral roll, counterfoils of the ballot papers, unused ballot papers, tendered and challenged votes and the return of the polling officers be brought to Court by the fifth respondent who is the Commissioner of the Corporation of Madras, and that the parties thereto be granted inspection of the same. On that, notice was ordered returnable on the 30th November, 1948. A consent memo, was filed on the 1st December, 1948, which was signed by Messrs. John and Row, counsel for the Corporation of Madras, and Mr. K. V. Rajagopalan, Advocate for the first respondent, i.e., the petitioner in the Election Petition. The consent memo states as follows:

Inspection of the documents mentioned in the application will be given at the Corporation Office by some responsible officer of the Corporation of Madras by breaking open the seals after previous notice to the parties and in their presence and after inspection to reseal the packets and in their presence. If the inspection lasts more than a day, the packets will be resealed at the close of each day and be broken open on the next day likewise in the presence of parties till inspection is over.

It is contended on behalf of the petitioner that the order of inspection has been passed without notice to the petitioner who was the unsuccessful candidate, and notice of the application for inspection of the documents referred to in the petition was necessary before an order for inspection could be passed by the learned Judge. On this point it is clear that either the signature of the senior or junior counsel for the petitioner is not found in the consent memo filed before the Court and in which an order was made, but the signatures of only the counsel for the first respondent and the Commissioner, the fifth respondent are found. Even though the notice appears to have been ordered returnable on the 30th November, 1948, I find that there has been no notice given to the petitioner. It is further argued that even if notice had been given to the petitioner or his counsel, he was not heard, and a consent order was passed to which the parties were only the first respondent and the Commissioner of the Corporation of Madras. On similar facts C.R.P. No. 12 of 1949 was filed in High Court and it was heard by Govinda Menon, J. and after examining the law on the question the learned Judge held that in an application of this kind the maxim audi alterant partem has to be applied and that no order should have been passed without hearing the opposite side. I am in entire agreement with the observation of the learned Judge. Though ordinarily under the rules of Small Causes Court, i.e., Order XI, Rule 1, governing inspection, it would be competent for the learned Judge to give inspection during the pendency of any suit to any party of such of the documents in possession of the other party relating-to any matter in question in the suit, the lower court should have considered that in an election petition the powers of ordering inspection must be exercised with some circumspection. It is necessary that before an order is made, the learned Judge should be satisfied that the inspection of the documents was required bona fide for the purpose of the enquiry. Since great sanctity is attached to the secrecy of the ballot papers it is not advisable to give a roving inspection of the ballot papers. and other documents and thus violate the principle of secrecy of ballot. I would refer to the observation of Denman, J., in Stowe v. Jolliffe (1874) L.R. 9 Com. ple 446 where the learned Judge observes that,

the Court must be satisfied by evidence on oath that the inspection is reasonably and bona fide required for that purpose. The grounds alleged for requiring it must be looked into.

In this case it does not appear that the court applied its mind and considered whether in fact the inspection was required for the bona fide purpose of proving the petitioner's case, since the order that has been made was in terms of the consent memo filed by the first respondent and the Commissioner of the Corporation of Madras.

3. I therefore allow the petition and remand the application to the learned Chief Judge of the Small Causes, Madras, for fresh disposal, after giving notice to the other parties including the petitioner. The petitioner will have his costs from the first respondent.


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