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Rajam Bharathi Vs. Damodaran Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberCivil Rev. Petn. No. 711 of 1949
Judge
Reported inAIR1950Mad730
ActsMadras City Municipal Act, 1919 - Sections 59 and 347; Madras City Municipal Rules - Rule 12(1), 12(2) and 12(3); Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantRajam Bharathi
RespondentDamodaran Naidu and anr.
Appellant AdvocateK. Bhisham ; and T.R. Srinivasan, Advs.
Respondent AdvocateD. Ramaswami Iyengar ; and S. Kuppuswami, Advs.
DispositionPetition dismissed
Cases ReferredGulabchand v. Kabiruddin Ahmed
Excerpt:
.....- - damodaran naidu, therefore complained that dorai had attempted to falsely personate sir lakshmanaswami mudaliar with the knowledge and connivance of the petitioner. lakshmanaswamy mudiliar, a well-known gentleman who could certainly not be mistaken for the youth, the polling officer asked the said dorai whether he was the vice-chancellor a. ) as well-known throughout madras that it would have been practically impossible to impersonate him. this aspect of the matter must have been so well-known both to mrs. but against this must be set the fact that in the fever and excitementwhich a closely contested election so often generates, risks are undertaken without a cold and detached calculation of the probabilities of success. ' on this evidence it is to be noted that the only..........the husband of respondent 1 was also standing there. the polling officer refused to give the polling paper to him and asked him to go away. the petitioner then wanted to hand over the person to the police. thereupon respondent 1 cried out that it was not her intention or the person's intention that he should exercise the vote. she said that it was on account of somebody's mischief that he wag brought there.' on this evidence it is to be noted that the only question put in cross-examination was designed to show that sis lakshmanaswami mudaliar wag very well known in the city and there could be no mistake about his identity. no questions were asked about what dorai did at the polling booth, or in respect of the conduct attributed to mrs. bharathi. next there is the evidence of mrs......
Judgment:
ORDER

1. This is a petition to revise the order of the Chief Judge of the Court of SmallCauses, Madras, setting aside the election of the petitioner from 25th Division of the City. The disputed election was held en 30th September 1948 and it was declared that the petitioner Mrs. Rajam Bharathi was the successful candidate, it having been found that she had polled 726 votes as against 459 secured by her closest competitor Mr. Damodaram Naidu. Mr. Damodaran Naidu thereon filed a petition under Rule (2) of the rules framed under Section 59(2), and Section 347 (1), City Municipal Act to have the election set aside. In para 3 (a), of his petition he alleged that on the day of polling a son of the petitioner named Dorai, who was a student in the Pachaiappa's College, went to the polling booth and claiming to be Sir A. Lakshmanaswami Mudaliar, Vice Chancellor of the University, asked for a voting paper in his name. Mr. Damodaran Naidu, who was then present at the booth, pointed out that Dorai was not Sir Lakshmanaswami Mudaliar and objected to have voting paper being issued to Dorai. Then Dorai asserted that earlier in the day some one had voted in the name of Mr. V. P. Row, formerly a Judge of this Court and asked why he should not be given a voting paper in the name of Sir Lakshmanaswami Mudaliar. The implication in the statement is obvious. The polling officer again refused to issue the voting paper. When this took place, the petitioner and her husband Mr. Bharathi, who was also her election agent, were both in front of the polling officer; nevertheless they kept quiet. Mr. Damodaran Naidu, therefore complained that Dorai had attempted to falsely personate Sir Lakshmanaswami Mudaliar with the knowledge and connivance of the petitioner.

2. In paras. 3 (b), to 3 (f) of his petition Mr. Damodaran Naidu alleged that various persons he named therein had with the knowledge and connivance of the petitioner, or her election agents, falsely personated certain others.

3. The petitioner denied all the allegations made in paras. 3 (b) to 3 (f) of the petition. In respect of the allegations in paras. 3 (e), her explanation was as follows:

'This respondent's son Dorai who is a student of the Honours Class of the Pachaiappa's College, Madras was not entitled to vote and did not intend to vote but with the idealism of his youth wanted to test the impartiality or vigilance of the Polling Officer and so asked for a ballot-paper stating that he was Rao Bahadur A. Lakshmanaswamy Mudiliar, a well-known gentleman who could certainly not be mistaken for the youth, the Polling officer asked the said Dorai whether he was the Vice-Chancellor A. Lakshmanaswami Mudaliar when the said Dorai laughed and stated that he merely played a practical joke with the officer in irony to test his vigilance. Thereupon the vote was not exercised. It is not true to state that the said Dorai acted in the manner alleged with the knowledge and the consent of this respondent. As amatter of fact this respondent was looking after the lady voters, and was not aware of the incident until her attention was subsequently drawn to it. This respondent denies that Dorai falsely impersonated Mr. A. Lakshmanaswami Mudaliar.'

The learned Judge found that the allegations in paras. 3 (b) to 3 (f) of Mr. Damodaran Naidu's petition had not been substantiated. He however, found at the same time that Dorai, had attempted to personate Sir Lakshmanaswami Mudaliar and that his mother must have been privy to his action and that she must have abetted and connived at it. In that view he allowed the petition, set aside the election of Mrs. Rajam Bharathi and directed that a fresh election be held. The petitioner now seeks to have that order set aside.

4. On behalf of Mr. Damodaran Naidu the preliminary objection was taken that a revision petition does not lie. This objection is based on Rule 12 (3) of the rules framed under Sections 347(1) and 59(1), Madras City Municipal Act for the ad indication of election disputed, which runs as follows:

'The order of the Court (i. e., Small Causes Court) under Sub-rules (1) and (2) shall be final.' Mr. Bashyam, the learned advocate for Mrs. Bharathi argued that this rule only precludes appeals and does not bar petitions to revise the order made by the Small Causes Court. In support of this contention he referred to the decisions in Ahmad Thumbi Maracayar v. Basawa Maracayar, 46 Mad. 123; A. I. R. 1923 Mad. 254; Parthasaradhi Naidu v. Koteswara Rao, 47 Mad. 369 : A. I. R. 1924 Mad. 561 and Palaniappa Chettiar v. Krishnaswami Chettiar, : AIR1925Mad877 . Mr. D. Ramswami Ayyangar for Mr. Damodaran Naidu explained that these decisions have no application here and his reasoning was as follows: The three cases cited by Mr. Bashyam dealt with elections under either the District Municipalities Act, or the Local Boards Act. The Courts, which are empowered to adjudicate on election disputes under these Acts, are the Courts in the moffusil. From the decisions of such Courts, the aggrieved party can either file an appeal, or a revision petition depending on the circumstances of the case. But from an order passed by the Small Causes Court an appeal does not lie; only a revision petition can be filed. If, therefore we hold in this case that a revision petition would lie against the order of the Small Causes Court, Rule 12 (3) framed under the City Municipal Act would become wholly inoperative and a construction, which would make a rule meaningless, should ordinarily be avoided. This difficulty does not exist in the case of the moffusil Courts, because it would be possible to give effect to the rule-making the decision of the moffusil Courts final by holding that what is barred is only an appeal and not a petition in revision. But in view of the language used in Parthasaradhi Nadu v. Koteswara Rao, 47 Mad. 369: A. I. R. 1924 Mad. 561, I doubt whether I shall be justified in accepting this distinction. The learned Chief Justice there states;

'It is further argued that the fact that the decision of this Judge is, by Section 57 of the Act (Local Boards Act) and by the rules, final, precludes any revision. There is really no authority adduced in support of that preposition and, in my judgment, it would be quite contrary to the whole object and intention of Section 115, Civil P. C., so to hold. That section only applies where there is no appeal.' I am therefore inclined to take the view that this preliminary objection cannot be sustained.

5. The matter, however, is not free from difficulty and it is one on which different opinions were expressed in the decision in Appaya Goundar v. Shaik Dawood Sahib, 1927 M. W. N. 842; Coutts-Trotter, C. J. referring to the decision in Parthasaradhi Naidu v. Koteswara Rao, 47 Mad. 369: A. I. R. 1924 Mad. 61 stated:

'Speaking entirely for myself, I gravely doubt the correctness of that decision, especially when I find that the rules, though they do not say anything about revision, expressly prohibit an appeal indicating to my mind an intention, that the matter should go to the District Court and stop there.'

Phillip, J. agreed with the views of Coutts Trotter, C. J. But Kumaraswami Sastri, J. observed;

'I agree with the view taken by the Full Bench in Parthasarathi Naidu v. Koteswara Rao, 47 Mad. 369: A. I. R. 1924 Mad. 561 that the High Court has jurisdiction to interfere under Section 115, Civil P. C.'

In view of the fact that a difference of opinion is possible on the rule as it stands, I would suggest that the intention whether it be to permit or prohibit revision petitions be made clear by an appropriate amendment of the rule:

6. On the merits of the case, Mr. Bashyam very strongly argued that the decision of the learned Chief Judge of the Small Causes Court was erroneous. He pointed out that Dorai was only a student, that Sir Lakshmanaswami Mudaliar was Vice Chancellor of the University and a petition (sic person?) as well-known throughout Madras that it would have been practically impossible to impersonate him. This aspect of the matter must have been so well-known both to Mrs. Bharathi and her husband that it is utterly unlikely that they would have connived at any attempt by their son Dorai to impersonate him. This argument has no doubt considerable force; but against this must be set the fact that in the fever and excitementwhich a closely contested election so often generates, risks are undertaken without a cold and detached calculation of the probabilities of success.

7. Mr. Bashyam next argued that there was practically no evidence on which the learned Judge in the Small Causes Court could have come to the conclusion he did. He pointed out that though in his evidence in chief Mr. Damodaran Naidu asserted that Dorai went to the polling booth and asked for a voting paper in the name of Sir Lakshmanaswami Mudaliar, he admitted in cross-examination:

'I am not personally aware of the truth of any of the facts mentioned in para. 3 (a) of my petition.' It was explained by Mr. Ramasami Ayyangar that in recording the evidence on this point the learned Judge made a clerical slip and that para. 3 (a), should really read para. 3 (b). I cannot entertain this argument, because I must take the record as it stands and the context does not suggest that para. 3 (a) must necessarily have been a slip for 3 (b).

8. It does not, however, follow that there is no other evidence in the case P. W. 7, who was one of the agents of Mr. Damodaran Naidu deposed in chief.

'The son of the 1st respondent came to polling office that day and told the polling officer that he was Sir A. Lakahmanaswami Mudaliar and that he wanted to exercise the vote. The Respondent 1 (Mrs. Bharathi) was in the polling office at the time at a distance of few yards from that person. The husband of respondent 1 was also standing there. The polling officer refused to give the polling paper to him and asked him to go away. The petitioner then wanted to hand over the person to the police. Thereupon respondent 1 cried out that it was not her intention or the person's intention that he should exercise the vote. She said that it was on account of somebody's mischief that he wag brought there.' On this evidence it is to be noted that the only question put in cross-examination was designed to show that Sis Lakshmanaswami Mudaliar wag very well known in the City and there could be no mistake about his identity. No questions were asked about what Dorai did at the polling booth, or in respect of the conduct attributed to Mrs. Bharathi. Next there is the evidence of Mrs. Bharathi herself. Though in her evidence-in-chief she stated that she was not aware that her son went to the polling booth and asked for a voting paper in the name of Sir Lakshmanaswami Mudaliar and although she also attested that she was not present when her son is alleged to have made such a request, she admitted in cross-examination :

'My son told me that some one had voted as the deceased Pandurang Raw and therefore he would go and ask for voting paper in the name of Sir Lakshmanaswami Mudaliar.'

It is true that immediately after making this statement she qualified it by stating that she didnot know whether as a matter of actual fact Dorai went and asked for a voting paper. It is also true that she categorically asserted :

'I did not ask my son to go and ask for a voting paper in the name of Lakshmanaswami Mudaliar or for Pandrang Row.'

Nevertheless, there can be no doubt that Dorai did go and ask for a voting paper in the name of Sir Lakahmanaswami Mudaliar. This, Mrs. Bharathi admitted in the written statement that she filed. Her admission that her son told her that he would ask for a voting paper makes it plain that he had told her about his intention previous to the act and regard being had to the nature of the relationship, between the individuals and what transpired, the inference legitimately arises that Dorai acted as he did with the connivance of Mrs. Bharathi. This admission of Mrs. Bharathi in her evidence, was the most difficult hurdle that Mr. Bashyam had to face. It was impossible to meet it squarely and he therefore argued that, there must have been some misunderstanding on the part of the learned Judge as to what Mrs. Bharathi stated. He pointed out that she gave her evidence in Tamil, that the record is in English, that when rendering a statement from Tamil into English it is so easy to make a slip and that a mistake in the tense would make all the difference between proving a prior knowledge that postulates connivance and a subsequent knowledge, which would not carry such an implication. I do not thick I shall be justified in accepting this explanation. Apart from the fact that I am bound to accept the record as it stands, except where it is manifestly clear that it is wrong by reason of some accidental slip or error or other reason the chances of the learned Judge in the Small Causes Court having made a mistake about what Mrs. Bharathi deposed are to remote that they may be ignored. It is also important to remember that no attempt was made in re-examination to elucidate the matter, or rectify any mistake that Mrs. Bharathi made in the coarse of her cross-examination. After all, it is not as though the learned Judge was ignorant of the language in which Mrs. Bharathi deposed. In fact, the learned Judge, in coming to the conclusion he did, took into account this particular statement, which Mr. Bashyam tried to explain away, showing thereby that he attached the utmost importance to it. If there had been the smallest doubt in his mind as to what Mrs. Bharathi said he would not have made such a strong point of it against her.

9. The learned Judge also pointed out that as the polling booth was located in a single hall in the Corporation School, the attention of Mrs. Bharathi, who was admittedly in the pollingbooth, must have been drawn to what her son Dorai attempted to do, when his demand for a voting paper was refused.

10. In considering the facts I have to bear in mind that the petition before me is not one in appeal, but one in revision and that the powers of this Court to interfere in revision are very much less than when the matter is brought upto it in appeal. In Venkatagiri Ayyangar v. H. R. E. Board, Madras , the Privy Council has restated the law as follows :

'As long ago as 1884 in the case of Amir Hassan Khan v. Sheo Baksh Singh, 11 Cal. 6 : 11 I. A. 237, the Privy Council made the following observation upon Section 622 of the former Code of Civil Procedure which was replaced by Section 115 of the Code of 1908.'

'The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them and they did decide it. Whether they decided rightly or wrongly, they had jurisdiction to decide the case, and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity.'

'In the ease of Balakrishna Udayar v. Vasudeva Ayyar, (1917) 33 M. L J. 69 : A. I. R. 1917 P. C. 71 the Board observed :

'It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusion of law or fact in which the question of jurisdiction is not involved. In the present case the learned Judges of the High Court did not act upon this principle. They set aside the judgment of the District Judge because they considered that he had made a serious mistake in the construction which he had placed upon the will of the testator and they seem to have thought that a serious error of law could be corrected in revision. There have been, no doubt, decisions in some High Courts in India which lend support to the view upon which the Judges acted. The cases are collected in the 4th Edition of Chitaley and Rao, the Code of Civil Procedure, Vol. 1, p. 1105. In Mohunt Bhagwan Ramanuj Das v. Khetter Moni Dasi, 1 C. W. N 617, the High Court of Calcutta expressed the opinion that Sub-section (e) of Section 115, Civil P. C., was'Intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts so as to prevent gross injustice in non-appealable cases.''

'The passage was dissented from by the Calcutta High Court in Enaet Mondul v. Balaram Dey, 3 C. W. N. 581, but was cited with approval by Lort-Williams J. in Gulabchand v. Kabiruddin Ahmed : AIR1931Cal27 . Their Lordships can see no justification for any such view; it would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured.'

'Section 115 applies only to cases in which no appeal lies, and, where the legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters : (a) That the order of the Subordinate Court is within its jurisdiction : (b) that the case is one in which the Court ought to exercise jurisdiction, and (c) that in exercising jurisdiction the Court baa not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon these three matters, it has no power to interface because it differs however profoundly, from the conclusions of the Subordinate Court upon questions of fact or law.' In the present case the learned Judge had jurisdiction in the matter. He formulated correctly the questions he had to decide. The evidence before him was not so insufficient as to make the conclusion he came to be unreasonable. The case does not fall into any of the categories set out in the judgment of the Privy Council from which I have just quoted. There is in consequence no justification for interference.

11. In the result, this revision petition is dismissed with costs (two sets).


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