1. The petitioner seeks to revise the order of the Subordinate Judge of Madura, in O.P. No. 27 of 1925.
2. The petitioner and counter-petitioner were the two candidates for the office of Chairman in the Madura Municipal Council. Each obtained an equal number of votes, and lots were drawn to decide the successful candidate. The petitioner was declared elected, and the counter-petitioner presented an election petition before the Subordinate Judge questioning the validity of the election because, among other reasons, the lots had been drawn not by the Presiding Councillor himself as required by Rule IV(ii) of the Rules for the conduct of the election of Chairman but by a boy, an utter stranger. The learned Subordinate Judge, without considering this, or other objections, contained in the petition, has declared the election void on the ground that under the rules in the particular circumstance of this case, there should have been no drawing of lots at all. The petitioner seeks to revise this order, firstly, as being without jurisdiction, because the inquiry by the Subordinate Judge must, under the rules, be confined to the matters contained in the petition, and secondly, as being an incorrect interpretation of the Election Rules.
2. The Subordinate Judge being of opinion that the law was not clear upon the question whether he could raise pleas other than those embodied in the petition referred the matter to this Court, and was directed to dispose of it himself. Rule I of the Rules for the decision of disputes as to the validity of an election (Fort St. George Gazette 30th November 1920) lays down that no election...shall be called in question except by an election petition presented in accordance with these rules. Such petition (Rule 2) shall contain a statement in concise form of the material facts on which the petitioner relies; and shall (Rule 6) be enquired into by the Judge as nearly as may be in accordance with the procedure applicable under the C.P.C. If in the opinion of the Judge (Rule 11) the result of the election has been materially affected by any noncompliance with the provisions of the rules, the election of the returned candidate shall be void. Under Order VII, Rule 11 the Court is obliged to reject a plaint if it does not contain a cause of action. Thus, if the present petition had merely stated that the election should be treated as void, and had left it to the Judge to discover the invalidating circumstance the Judge would have been bound to reject it in limine [cf., Janardhanan v. Verghese 87 Ind. Cas. 113 : A.I.R. 1925 Mad. 707.]
3. Then it seems clear that by the Statute Law of this country, the Judge is expected to confine his inquiry to the points raised in the election petition, in which circumstances, little is to be gained by reference to British case-law. It may be noted, however, that when new points are discovered, the British practice is to amend the petition and not merely to raise the matter in argument, and such amendment must be strictly within time. [Rogers on Elections, page 275, Maude v. Lowley (1874) 9 C.P. 165
4. The counter-petitioner urges contra relying upon observations in North Western Salt Co. v. Electrolytic Alkali Co. (1913) 3 K.B. 422 that to raise a question of illegality, it is not necessary that the defence of illegality should be pleaded; when it is apparent on the face of a contract that it is unlawful, it is the duty of the Judge himself to take the objection...and the defendants are not bound to plead that it is illegal, because that is law not fact. These observations are concerned with the defence, not with the plaint and cannot, in my opinion, be read as excusing the plaintiff from giving the defendant, fair notice of what he intends to raise and the facts on which he relies as constituting the cause of action. Nor is there any precise analogy between a contract which in its face is unlawful, and an election procedure which perhaps is arguably irregular. I must hold that the learned Subordinate Judge by not confining himself to the matters raised in the petition has acted; without jurisdiction.
5. In these circumstances it is not really necessary to consider whether the lower Court's interpretation of the rules is or is not correct. But the point has a certain bearing upon the question whether the election upon its face was illegal.
6. Under Rule IV(ii) if there are only two candidates the one who secures the larger number of votes shall be considered to have been elected. That is quite simple, but if there are more candidates than two, the next rule provides that by a process of elimination, the number shall be brought to two. Thus (ii) the elinimation shall be repeated until two candidates only are left, and the candidate who secures the larger number of votes shall be considered to have been elected. So it will be seen that the election with only two and the election with a multiplicity of candidates have by this, system of elimination been brought into line. Then the rule proceeds:--In the event of there being an equality of votes at the final stage between the two remaining candidates--and be it noted when originally there were two candidates there can be no further stage and no more remaining candidates--the Chairman or Presiding Officer shall draw lots. The Chairman and both the contesting candidates took the drawing of lots to refer to an election when originally there were only two candidates, and I am not prepared to hold that that interpretation is either unreasonable or incorrect. The interpretation of the Subordinate Judge leaves the election entirely in the air if there happen to be an equality of votes when only two candidates stand. It is not, therefore, a question of deciding between two interpretations each of which makes sense ; but of deciding between, common sense, and non-sense, and I see no sufficient ground for deliberately relegating the rule to the latter category. And the above discussion shows how very far this matter is removed from the question of a contract which on its face is illegal.
7. I allow the petition, reverse the order of the lower Court, and direct it to dispose of the matters raised in the election petition according to law, in order to see if the result of the election has been materially affected by any non-compliance with the provision of the rules.
8. I observe it is noted in the learned Subordinate Judge's previous reference to this. Court that Government propose to amend Rule IV(u), the drafting of which cannot be said to be entirely satisfactory.
9. There will be no costs in this petition.