1. This is an appeal by the plaintiff and arises under the following circumstances: it appears that the Mainamati Union Board had to elect a President of the Union. The Circle Officer fixed the 28th of March 1925 as the date of election and the Cutchery of the Maharaja of Hill Tipperah at Manamati was originally fixed as the place of election and the time fixed was 9 o'clock in the morning. It appears that altogether six of the voters were present when the meeting was held. The plaintiff obtained three votes and was declared to have been duly elected. It appears that the Magistrate of the District was moved and he on the 3rd April 1924 declared election as invalid and a fresh election was made in which defendant No. 1 was elected as the President of the Union. The plaintiff then brought this suit on the 5th of April of that year for a declaration that the election was duly held and that he was duly elected as the President and was entitled to exercise the function of that office. The plaintiff asked for an ad interim injunction restraining defendant No 1 from exercising the function of the President. Tue injunction was granted. The defendants appeared and contested the suit mainly on the ground that the election of the plaintiff was invalid because there was no quorum according to law when the election took place. It was also contended that the order of the Magistrate was binding upon the parties.
2. The learned Munsif decreed the plaintiff's suit and granted all the reliefs prayed for Defendant No. 1 appealed to the District Court and it was contended before the learned Subordinate Judge as it appears from the judgment that the election was invalid on the ground, first, that the time and place of the meeting were changed and, therefore, the meeting at the place where it took place and at the time when it took place was invalid on account of that change. The second ground which was argued in appeal appears to be that there was no quotum for a valid meeting. The learned Subordinate Judge has given effect to both the contentions of the defendants and reversed the judgment of the Munsif and dismissed the suit.
3. The present appeal, as I have already stated, is by the plaintiff. The first contention which was urged by the learned Vakil for the plaintiff-appellant was that the question as to the change of place and time of the meeting was not raised either in the written statement or in the Court of first instance and that, therefore, the learned Subordinate Judge ought not to have allowed that question to be raised in appeal. It was further contended that there was no substance in this objection raised by the, defendants. It was nextly contended that upon the findings arrived at by the learned Munsif and also by the learned Subordinate Judge there was a quorum when the election took place. Therefore, the learned Subordinate Judge was in error in holding that the election was invalid for want of a quorum.
4. It appears to us that the contentions of the learned Vakil for the appellant are well-founded. The question as to whether there was any change either of the place or of the time of the meeting was a question of fact. When it was not raised and made a ground of complaint by the defendant in the Court of first instance the learned Subordinate Judge ought not to have allowed that question to be raised for the first time in appeal. Moreover it appears to us that there was no substance in the defendants' objection as to the change of time and place of the meeting. It was not contended for less established that there was any voter who was misled or in any way prevented from attending the meeting. In fact what appears to have taken place was that the meeting instead of being held in the Cutcherry apparently with the concurrence of all persons present was held at the inspection but which was close to the Maharaja's Cutcherry. In fact it was within the sight of the Cutcherry. The meeting was postponed till 9-30 A. M. at the request of the defendants or of their friends. The postponement that was asked for by the defendants or their friends was for a longer time in order, they said, to enable their friends to appear at the election. The Circle Officer who was in charge of the election waited for half an hour and then, the meeting was held. Therefore, it appears to us that this objection should not have been allowed to be raised. It also appears to us that there is no substance in this objection raised by the defendants.
5. Then as to the second point, namely, whether there was a quorum' present at the meeting. The learned Subordinate Judge found that the defendants Nos. 1 and 2, and 4 other persons were present at the meeting.
6. But in one place of his judgment the learned Subordinate Judge says this 'A person may be said to be present at a meeting when he willingly joins in it or takes any part in its proceedings. Can it be said that the defendants Nos. 1 and 2 willingly joined the meeting or took any part in it'. It is somewhat difficult to understand what really the learned Subordinate Judge meant. It is quite clear that defendants Nos. 1 and 2 and another person were all present at the meeting. The fact that they did not vote at the meeting would not make them any the less person present at the meeting. What the learned Subordinate Judge really means when he says that the defendants were not willingly present at the meeting is difficult to follow. All that appears is that the defendants did not like to record their votes. That simply' cannot make the persons who were present at the meeting as absent from it. It is hardly necessary to point out that at a meeting many members who join the meeting refrain from voting or taking any active part in it such persons cannot be said to be persons absent from the meeting. We think, therefore, upon the findings the, defendants Nos. 1 and 2 and other voters were all present at the meeting. There was a sufficient quorum, because the number fixed for a quorum is five and as a matter of fact six persons were present at the meeting. I might point out that if a person after joining a meeting does not want to be a member of it the easiest and usual course for him is to leave the place. Simply, taking no active part in the meeting does not make him absent from the meeting, when as a matter of fact he was there.
7. We think, therefore, the judgment of the learned Subordinate Judge cannot be supported and upon the findings we hold that the meeting at which the plaintiff was elected as President was a perfectly valid proceeding and the election was valid. The result, therefore, is that we restore the judgment of the Trial Court with costs of this Court and of the lower Appellate Court.
8. I agree.