Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.N. Kackker
  • V.P. Misra
Judges
  • B. Dayal
  • R. Pathak, JJ.
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.N. Kackker
  • V.P. Misra
Judges
  • B. Dayal
  • R. Pathak, JJ.
Acts
See more information ...
Smart Summary

Structured Summary of the Opinion (B. Dayal, J.)

Factual and Procedural Background

The petition arises under Article 226 challenging an order of the Election Tribunal that restored an election petition which the Tribunal had earlier dismissed in default.

Relevant chronology and facts as stated in the opinion:

  • Vishwanath Pd. was declared elected on 27 February 1962.
  • Respondents Nos. 2, 3 and 4 (electors) filed an election petition which was referred to respondent No. 1 (the Election Tribunal).
  • Preliminary issues were framed and dates fixed for decision of certain preliminary issues (issues Nos. 17(1) and 19).
  • On 2 November 1962 the Tribunal began recording evidence; the statement and examination-in-chief of a witness named Kamlakant were completed and cross-examination was adjourned to 16 November 1962.
  • On 16 November 1962, when the matter was called at 10:30 a.m., Kamlakant did not appear and neither did the petitioners or their counsel; the Tribunal dismissed the election petition for default by an order recorded between 10:30 a.m. and 11 a.m.
  • Later the same day Kamlakant arrived (allegedly delayed for want of conveyance) and applied to set aside the dismissal; the Tribunal recorded evidence on that application and on 1 December 1962 set aside the order of dismissal and restored the petition to its original number.
  • The petitioner (Vishwanath Pd.) challenged the Tribunal's restoration order by writ petition under Article 226, praying for certiorari to quash the 1 December 1962 order and for prohibition to restrain further trial of Election Petition No. 312 of 1962.
  • The Election Commission issued a Notification treating the dismissal as an order under Section 98 of the Representation of the People Act, but later cancelled that Notification.

Legal Issues Presented

  1. Whether the Election Tribunal had power to restore an election petition after dismissing it in default.
  2. Whether a dismissal of an election petition for default (in the circumstances described) amounted to an order under Section 98 of the Representation of the People Act (i.e., a final order at the conclusion of the trial).
  3. Whether the Tribunal possesses an inherent power to dismiss or to restore an election petition outside the express powers conferred by the Representation of the People Act and the Code of Civil Procedure as made applicable.
  4. Whether the Election Commission's Notification treating the Tribunal's dismissal as an order under Section 98 is conclusive of the legal character of that dismissal.

Arguments of the Parties

Petitioner's Arguments

  • The Tribunal had no power to restore an election petition after it had once dismissed it for default; consequently the 1 December 1962 restoration order was without jurisdiction and liable to be quashed by certiorari.
  • The order of dismissal for default constituted termination of proceedings and should be treated as an order under Section 98 of the Representation of the People Act.
  • The Code of Civil Procedure is applicable to election petitions only in so far as procedure of petition trial is concerned, and the Tribunal was not conferred with all the powers of a civil court under the CPC — specifically, the power to "restore" was not conferred.
  • Section 116-A (appealability of certain orders) provided an appellate remedy against the dismissal, and that remedy, if available, meant the Tribunal could not exercise inherent powers to restore.
  • The Election Commission's Notification classifying the Tribunal's dismissal as an order under Section 98 conclusively established the dismissal as a Section 98 order (an argument the Court records and rejects).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Rameshwar Dayal v. Sub-Divisional Officer, Gharampur, ILR (1961) 2 All 298 : AIR 1963 All 518 Consideration of whether Election Tribunals have inherent powers analogous to courts; held that a tribunal is not a court possessing general inherent powers. The Court relied on this authority to support the view that tribunals are created by statute to decide defined disputes and have only those powers expressly conferred by law; it reinforced the proposition that inherent powers cannot be freely invoked by tribunals beyond statutory grant.
Chandrika Pd. Tripathi v. Shiv Pd. Champuria, AIR 1959 SC 827 Dealt with dismissals where provisions of the Representation of the People Act were not complied with, leading to dismissal under Section 90(3) and treated as an order under Section 98. The Court distinguished this Supreme Court authority on the ground that in those cases the dismissal arose under powers given by the Representation of the People Act and therefore constituted a proper conclusion of the trial—facts different from the present case.
Om Prabha ??? v. Gianchand, AIR 1959 SC 837 Similar to Chandrika Pd. Tripathi: dismissal where statutory procedure not complied with and treated as Section 98 order. The Court treated this decision as distinguishable for the same reason: those dismissals amounted to lawful conclusions of trial under the statute, unlike the hasty default dismissal in the present matter.
Sunderlal Mannalal v. Nandramdas Dwarkadas, AIR 1958 Madh Pra 260 Held by the Madhya Pradesh High Court that a Tribunal which had dismissed a petition for default nonetheless had the power to restore the petition. The Court considered this case but expressly disagreed with its reasoning, stating that a tribunal cannot be said to possess inherent powers to dismiss or restore a petition "in any way it likes" and that dismissal must be on merits of issues where appropriate.

Court's Reasoning and Analysis

The Court's analysis proceeds from statutory text to application:

  1. The Court examined the relevant statutory framework in the Representation of the People Act:
    • Section 90: Every election petition shall be tried by the Tribunal as nearly as may be in accordance with the procedure under the Code of Civil Procedure (CPC) for trial of suits.
    • Section 92: Confers specified powers on the Tribunal (discovery, enforcing attendance, compelling production of documents, examining witnesses on oath, granting adjournments, reception of affidavit evidence, issuing commissions, etc.) and deems the Tribunal a civil court for limited purposes.
    • Section 98: Requires the Tribunal, at the conclusion of the trial of an election petition, to make one of three orders: (a) dismissing the election petition, (b) declaring the election of returned candidates void, or (c) declaring the election void and declaring another candidate elected.
  2. From the scheme of these provisions the Court concluded that Parliament did not intend to vest the Tribunal with the full suite of inherent powers a civil court possesses. Section 92's enumeration of powers indicates a limited grant rather than a blanket conferment of all CPC powers.
  3. The Court emphasized that Section 98 contemplates orders that follow "the conclusion of the trial" after issues raised in the petition have been tried and decided (including evidence and legal argument where necessary). Therefore, a dismissal that purports to be under Section 98 should properly follow the conclusion of trial on the issues.
  4. Applying those principles to the facts, the Court found the Tribunal's order of 16 November 1962 to be improper for several reasons stated in the opinion:
    • The date fixed (16 November 1962) was for cross-examination of a witness on preliminary issues, not for the hearing of the entire petition.
    • The Tribunal could at most have decided the preliminary issue on the merits in the absence of the witness; instead it dismissed the entire election petition.
    • The Tribunal's order appeared to have been passed hurriedly (the record shows the case was called several times between 10:30 and 11:00 a.m. and the dismissal was on the ground that the Tribunal could not wait longer).
    • There is no express provision in the Act permitting dismissal of an election petition simply because a witness or party did not appear when the case was called; dismissal under Section 98 should follow proper trial procedure and decision on the issues.
  5. The Court reviewed precedents and competing views:
    • The decision in Rameshwar Dayal was cited to show that tribunals are not courts invested with general inherent powers; tribunals must act within statutory powers.
    • The petitioner relied on Supreme Court authorities (Chandrika Pd. Tripathi and Om Prabha v. Gianchand) where dismissals were treated as Section 98 orders, but the Court distinguished those as cases where dismissal occurred in the exercise of powers under the Act and constituted proper conclusions of trial.
    • The Madhya Pradesh High Court decision (Sunderlal Mannalal) that upheld the power of a tribunal to restore was considered but the Court rejected its reasoning, refusing to accept that a tribunal possesses inherent power to dismiss or restore arbitrarily.
  6. On the question of remedies and administrative actions: the Court held that whether a Tribunal's order is an order under Section 98 is a question of law and is not made so by the Election Commission's administrative Notification. The Commission's initial Notification was not determinative and it later cancelled that Notification.
  7. The Court concluded that because the Tribunal's initial dismissal was legally defective and did not properly dispose of the petition under Section 98, the subsequent order setting aside the dismissal and restoring the petition merely removed the effect of a wrong order; the election petition remained pending and had not been properly disposed of.

Holding and Implications

Holding: The writ petition was dismissed. The Court upheld the Tribunal's restoration of the election petition (i.e., it found no jurisdictional defect in the Tribunal's order of 1 December 1962 setting aside the earlier defective dismissal) and dismissed the challenge with costs.

Implications and consequences:

  • Direct effect: The election petition remained pending before the Tribunal and the Tribunal was right to proceed with the trial after setting aside the defective dismissal.
  • The Court rejected the contention that the Tribunal had a freestanding inherent power to dismiss an election petition arbitrarily; dismissal must conform to the statutory scheme and follow a proper conclusion of trial on the issues.
  • The Election Commission's administrative classification (Notification) that an order amounted to Section 98 treatment is not conclusive of the legal character of a Tribunal order; the question remains one of law for judicial determination. The Commission later cancelled its initial Notification in this matter.
  • No broader new doctrine was announced beyond these conclusions; the decision applies the existing statutory scheme and authorities to the facts and distinguishes prior cases where dismissals were lawful conclusions of trial under the Act.

Note: This summary is confined to the material and reasoning contained in the provided opinion and does not add facts or legal propositions not stated in that opinion.
Show full summary ...

    Vishwanath Prasad v. Malkhan Singh Sharma And Others Opposite Party.

    B. Dayal, J.:— This is a petition under Article 226 of the consution against an order of the Election tribunal restoring an election petition which had been dismissed in default, the petitioner Vishwanath Pd. was declared elected on the 27th of February, 1962. Respondents Nos. 2, 3 and 4, who claimed to be the electors filed an election petition before the Election Commission. This election petition was referred for trial to respondent No. 1 as the Election Tribunal. Some preliminary issues were frame in the case and the ??? fixed 2nd of November, 1962 for decision of issues Nos. 17(1) and 19. On the 2nd November, 1962, it was found necessary to record some evidence on those preliminary issues also. Accordingly the statement of Kamlakant was started and his examination-??? was concluded on that date. Thereafter it was postponed for the 16th of November, 1962 for cross-examination. On the 16th of November, 1962, when the case was called out, at 10-30 a.m Kamlakant whose cross-examination had to be carried on did not appear, nor ??? the other applicants or their counsel appear. The ??? accordingly dismissed the election petition by an order in the following words:

    “Case called several times between 10-30 a.m and 11 a.m but nobody for respondent. The petitions ??? their counsel are not present. The respondents or their counsel are also not present. I am sorry. I cannot wait for a larger period. I have already waited for half an hour. I have got to do other work also. The ??? on is dismissed for default of the parties. Cost on parties. Later in the day, Kamlakant appeared and made an application that he had been delayed because he could not get a conveyance when he started from home and he had reached the Iribunal's office at 11-20 a.m The Tribunal recorded evidence on this application and came to the contusion that the contention of Kamla Kant war correct. It accordingly set aside the order dismissing the election portion and restored it to its original number, by an order dated the 1st December, 1962 which is being challenged by this writ petition.

    2. The contention of the learned counsel for me petitioner here is that the Tribunal had no power to restore the election petition after once dismissing it. He has consequently prayed for a writ in the nature of certiorari quashing the order of the Tribunal dated the 1st of December, 1962 and also for a writ in the nature of prohibition to respondent No. 1 not to proceed further with the trial of the election petition No. 312 of 1962. The contention of the learned counsel for the petitioner is that the order of dismissal for default is an order terminating the proceedings of the election petition and consequently the order of dismissal is an order under Section 98(a) of the Representation of the People Act. His contention further is that the Code of Civil Procedure has been applied to election petitions only so far as it relates to the ??? of the petition and the Tribunal has not been conferred any of the other powers which a civil court has Under the Code of Civil Procedure. The power to restore is a power which has not been conferred on the Tribunal consequently, the order restoring the petition once dismissed is an order without Jurisdiction.

    3. After hearing learned counsel at length, we are of the opinion that this contention of the learned counsel is not supported by the provisions of the Representation of the People Act. Section 90 of the Representation of the People Act provides as follows:—

    “Subject to the provisions of this Act and to any rule made thereunder, every election petition shall be tried by the Tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908 (V of 1908) to the trial of suits”.

    section 92 of the same Act confers some special powers on the Tribunal and is as follows.—

    “92. The Tribunal shall have the powers which are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters—

    (a) discovery and inspection;

    (b) enforcing the attendance of witnesses, and ??? the deposit of their expenses;

    (c) compelling the production of documents;

    (d) examining witnesses on oath;

    (e) granting adjournments;

    (f) reception of evidence taken on affidavit; and

    (g) issuing commission for the examination of Witnesses and may summon and examine suo motu any person whose evidence appears to it to be material; and shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Cr PC, 1898 (5 of 1998).

    Explanation—For the purpose of enforcing the attendance of witnesses, the local limits of the ??? of the Tribunal shall be the limits of the State in which the election was held”.

    4. The very existence of Sec. 92 indicates that the scheme of the Act was not to confer all the powers under the Code of Civil Procedure, which a court possesses, upon a Tribunal. Under the scheme of the Representation of the People Act, it appears that a petition once admitted has to be heard as a suit and Sec. 90(3) confers power on the Tribunal to dismiss a petition under certain circumstances when the provisions of Sec. 81 or 82 have not been complied with. Apart from this section there is no provision permitting dismissal of an election petition without deciding the question raised in the petition. In fact in one sense the dismissal of the election petition under Sec. 90(3) also would be a dismissal upon an issue which is raised in the petition itself and upon the decision of which depends the further progress of the petition. If on any of these grounds the Tribural comes to the conclusion that the petition is not maintainable at all and is ??? to be dismissed then automatically the proceedings come to an end. Section 98 then provides as follows:—

    “98— At the conclusion of the trial of an election petition the Tribunal shall make an order—

    (a) dismissing the election petition; or

    (b) declaring the election of all or any of the returned candidates to be void; or

    (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been fully elected”.

    5. It is noteworthy in this section that the orders mentioned in cls. (a), (b) and (c) are to follow conclusion of the trial and the trial has to conclude after deeming the issues that have been raised in the petition. If there are issues which require evidence then after taking the evidence the tribunal can come to the conclusion that the evidence proves a particular fact or not and if there are questions of law for which mere arguments are sufficient, then after hearing the arguments, the trial would conclude, ??? thus appears to be no provision in the Representation of the people Act empowering the Tribunal to dismiss a petition simply because one of the witnesses or one of the parties to the petition did not appear when the case is called on for hearing.

    6. In the present case, the order dismissing the petition was even otherwise an improper order, the 16th or November, 1962 was the date fixed for cross-examination of one of the witnesses for deciding preliminary issues in the absence of that witness, the Tribunal couled at the most decide the preliminary issue on the merits. The court did not choose to do so and did not decide the preliminary issues at all. It, on the other hand, dismissal the whole petition itself. The date fixed was not for hearing of the whole petition. The Court also appears to have passed the order in a hurry. It has been sale by this Court that a court or tribunal should not be in a harry to dismiss suits in default.

    7. A Division Bench of this Court in Rameshwar Dayal v. Sub-Divisional Otticer, Gharampur, ILR (1961) 2 All 298 : (AIR 1963 All 518) had to consider existence of inherent powers in Election Tribunals and it was observed;

    “The inherent powers are of a court and we do not accept that an election tribunal is a court. Merely because it records evidence, hears parties and decides certain disputes between them it does not become 3 court, which is invested with the power of making any order that it considers necessary, in the interest of justice or prevent abuse of the process of court….. ??? are created by the statute to decide certain disputes and are bound to decide them strictly according to law after following the prescribed procedure and have jurisdiction to do only what they are expressly empowered to co”.

    8. Learned counsel for the petitioner cited some cases for the proposition that any dismissal of an election petition would amount to termination of the proceedings and would be an order under Section 98 of the Representation of the People Act. Chandrika Pd. Tripathi v. Shiv Pd. Champuria, AIR 1959 S.C 827 as also Om Prabha ??? v. Gianchand, AIR 1959 SC 837 were the cases in which the provisions of the Representation of the People Act were not complied with, with the result that the tribunal had dismissed the petition under Sec. 90(3) of that Act. In these circumstances it was held that the order must be deemed to be an order under Sec. 98 of the Act. ??? cases were obviously different because the dismissal or the petition was according to the powers given under the Representation of the people Act and that was a proper conclusion of the trial. These cases are therefore distinguishable. The cases of other High courts to the same effect need not be multiplied. However, Sunderlal Mannalal v. Nandramdas Dwarkadas, AIR 1958 Madh Pra 260 was a case in which the Tribunal had dismissed a petition for default but in that case the learned Judges or the Madhya Pradesh High Court held that the Tribunal also had the power fo restore the election petition. For the view that the Tribunal could reject the petition in default, it was held as follows:—

    “The Act does not give any power of dismissal. But ??? is axiomatic that no court or Tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. The dismissal therefore is under an inherent power which every tribunal possesses”.

    9. We, with great respect, are unable to agree with this line of argument. A tribunal cannot be said to possess inherent, powers to dismiss an ejection petition in any way it likes. It the party does not appear before the Tribunal and does not produce the necessary evidence for the issue and the burden of proof is upon that party or does not submit arguments before the tribunal to convince it to decide me issue in its favour, then the Tribunal may decide it against that party, but it must be a decision on the merits. The issue which is before the Tribunal must be decided. It is not necessary for the Tribunal to wait on ??? The Tribunal may close the case and decide the issue but there is no reason for holding that the Tribunal ??? power to dismiss the petition without deciding the issues.

    10. It was then contended by learned counsel that the order dismissing the election petition for default was itself an appealable order under Section 116-A of the Representation of the People Act and if that remedy was available to the petitioner, the Tribunal could not exercise any inherent power to restore it. Since we have already held that the Tribunal had no power to dismiss the election petition for default, the question of restoring does not arise. In the eye of law the election petition was still pending and not disposed of. By the subsequent order the ??? had merely removed the effect of an order which was wrong and had no effect on the proceedings. The election petition had never been properly disposed of and therefore the tribunal was right in deciding to proceed with it.

    11. It was further contended that after the termination of the petition by its dismissal the Election commission had issued a Notification treating it to be an order under Section 98 of the Representation of the People Act. The contention therefore is that the Notification issued by the Election Commission conclusively shows that the order of the Tribunal was an order under sec. 98 of the said Act. We are unable to agree with this contention. Whether an order of the Tribunal was an order under Sec. 98 or not is a question of law and the interpretation put upon it by the Election Commission would not make it so if otherwise it was not an order under Sec. 98. The Notification of the Tribunal (sic) (Election commission?) would, therefore, be itself a Notification ??? jurisdiction when the election petition was not actually disposed of by an order under S. 98 of the said Act. Subsequently the Election Commission itself cancelled that notification by means of a subsequent order. It was contended by the learned counsel for the petitioner that the Election Commission had no power to cancel the Notification once issued. If the first Notification issued by the Election Commission was itself without jurisdiction then the subsequent cancellation of it was merely correcting of a mistake which the Commission had made ana, in any case, the Notification would have no effect upon the election petition and its trial. In the result we see no force in this petition and dismiss it with costs.

    AH/L/V.B.B

    12. Petition dismissed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Vishwanath Prasad v. Malkhan Singh Sharma And Others Opposite Party.
    (Apr 9, 1963)