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In Re: K.P. Sinha Vs. Jatindra Nath Biswas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in169Ind.Cas.921
AppellantIn Re: K.P. Sinha
RespondentJatindra Nath Biswas
Excerpt:
calcutta municipal act (iii of 1923), section 46 - calcutta high court (o.s.) rules, chap. iii, rule 2--period expiring on holiday--saturday intervening--petition, if in time when made on monday--petition deliberately withholding particulars--affidavit in reply disclosing them--respondents, if entitled to adjournment for inspection. - .....can be said to be closed within the meaning of section 12 of the bengal general clauses act on saturday april 18. it is noteworthy that section 46 of the calcutta municipal act provides for an application to be made to the high court, there is obviously a difference between the court sitting as a court and the offices of the court in which affidavits or other matters may be filed.4. in my view, since the section provides for an application to the court, that application must be made to a judge in open court and if the judges of the court are not sitting in open court as in this case on the saturday immediately after the vacation, the application may legally be made on the first day on which the judges are so sitting. if i am right in that view this petition was tiled within time.5. a.....
Judgment:

McNair, J.

1. In this application a preliminary, objection is taken by Mr. C.C. Biswas for the respondents that the petition has not been filed within the 8 days prescribed by Section 46 of the Calcutta Municipal Act. Section 2d, Sub-section 8 of the Act provides for the publication of the names of the successful candidates in the Calcutta Gazette and Section 46 provides that any person enrolled in the electoral roll may at any time within 8 days after the said publication apply to the High Court within the terms of Sections 46 and 47.

2. The names in this instance were published on April 9, 1936. The High Court was closed for the Easter Vacation from April 10 to the 17 inclusive, that is to say, from Good Friday until the end of the following Friday, April 17. Now that is in accordance with Rule 2 of Chap. III of the Original Side Rules of this Court. The following day was Saturday on which the offices of the Court were open, but the Court did not in fact sit.

3. The question, therefore, for decision here is whether the Court can be said to be closed within the meaning of Section 12 of the Bengal General Clauses Act on Saturday April 18. It is noteworthy that Section 46 of the Calcutta Municipal Act provides for an application to be made to the High Court, There is obviously a difference between the Court sitting as a Court and the offices of the Court in which affidavits or other matters may be filed.

4. In my view, since the section provides for an application to the Court, that application must be made to a Judge in open Court and if the Judges of the Court are not sitting in open Court as in this case on the Saturday immediately after the vacation, the application may legally be made on the first day on which the Judges are so sitting. If I am right in that view this petition was tiled within time.

5. A further matter which has been discussed is the question whether the particulars which were not given in the petition and which the said in the affidavit in reply to have been deliberately withheld should be excluded at the time of trial. In para. 3 of the petition the applicant has set out in general terms most of the corrupt practices and other materials which as he alleges justify the interference of the High Court and in some of the succeeding paragraphs he has given particulars.

6. There is not, in my view, any justification for the shutting out of the particulars which have now been set out in the affidavit in reply, but there is ample justification for allowing the respondents an adjournment to enable them to have inspection of all the documents and other material on which the petitioner relies in support of the charges that he has now made and of which he has now given particulars. In view of the fact that these particulars were deliberately withheld the respondents are entitled to have this adjournment and to have their costs, of to day as of hearing.

7. The petitioner has also asked that he may have inspection of the return of election expenses and of certain ballot papers. Both tides will be allowed inspection of the ballot papers and the petitioner will be allowed inspection of the return as prayed.

8. The case will be adjourned for three weeks.

9. As regards Mr. Jamal the application is dismissed against him with costs.


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