(Delivered by Rajagopala Ayyangar, J.).

These are petitions for the issue of writs of prohibition and certiorari respectively and arise out of the Election Petition No. 86 of 1957, on the file of the Election Tribunal, Madurai.

This election petition (No. 86 of 1957) was for setting aside the election of the petitioner Sri Muthiah Chettiar to the Madras State Assembly from the Karaikudi Constituency in Ramanathapuram Dt. At the election to this constituency held on 1st March 1957 Sri Muthiah Chettiar, whom we shall hereafter refer as the petitioner, and Sri Saw Ganesan (to be referred to as the respondent) were the main contesting candidates. As many as eight persons filed nominations for the seat and four withdrew their nomination papers and the other four went to the polls. The petitioner was declared elected on 5th March 1957 as having obtained 24,223 votes as against 23,365 votes secured by the respondent. The other two candidates obtained a very small number of votes and they might be ignored for the purpose of these proceedings. On 15th April 1957 the respondent filed the election petition numbered as E. P. No. 86 of 1957, and the only prayer that it contained was for a declaration that the election of the returned candidate was void. To a petition containing such a prayer the only party necessary to be joined as respondent was, under the terms of S. 82 (a) of the Representation of the People Act, the returned candidate, and the present petitioner was therefore the only respondent to this election petition.

The grounds upon which the election was sought to be set aside were mainly two: (1) that the petitioner had on the date of his election an interest in a subsisting contract with the State Government which disqualified him for standing for election under S. 7 (d) of the Act; (2) that the petitioner was guilty of several acts of corrupt practices which were set out in several paragraphs of the petition, The respondent therefore pleaded that the election of the returned candidate was liable to be declared void under Ss. 100(1) (a), (b) and (d) of the Representation of the People Act (hereafter referred to as the Act). The Election Commission referred this petition to the Election Tribunal, Madurai, under S. 86 of the Act.

After the receipt of this petition, the Tribunal posted the petition to 22nd June 1957 for the appearance of the returned candidate who was the sole respondent to the election petition. The petitioner thereupon appeared and filed I.A No. 1 of 1957. In this application the petitioner prayed that the Tribunal might strike out the following:

“(1) Paragraphs 13 (1) (a), (b), (c), (d), (e), (g), h (i), h (ii), (i), (j), (k), (1), 13 (2) (a), (b) (c), 14 (b), 15 (b) and 17 of the Election Petition, as not coming within S. 100 (1) (b) of the Act.

(2) Paragraphs 12, 13 (1) (a), (b), (c), (e), (f), (g), h (i), h (ii), (i), (j) and (k) of the Election Petition, as not amounting to corrupt practice of undue influence coming under S. 123 (2) of the Act.

(3) Paras 13 (2) (a), (b) and (c) of the election petition as not amounting to the corrupt practice of bribery under S. 123 (1) of the Act.

(4) Para 17 of the election petition and schedule III (A) as not amounting to the corrupt practice of procuring the services of Government servants under S. 123 (7) of the Act, and

(5) Para 8 of the Election Petition as not coming under S. 100 (1) (d) (iv) of the Act.”

On the ground that even if proved they would not amount to “corrupt practice'’ within the relevant provisions of the Act. The respondent filed a counter affidavit denying this interpretation of the petition read with the provisions of the Act. He therefore prayed that the petition might be dismissed. I. A. No. 1 of 1957 was heard by the Tribunal and orders thereon passed on 14th July 1957. The net result of this order was that the points raised in I. A. No. 1 of 1957 were left undecided and were reserved “for being dealt with as occasion arose during the trial of the petition.” W. P. No. 611 of 1957 is directed to question the legality and propriety of this order and the relief sought in the petition is a writ of prohibition preventing the Tribunal from proceeding further with the trial of the election petition.

We shall refer to the details of the contentions raised in W. P. No. 611 of 1957 after setting out the matters which have given rise to W. P. No. 668 of 1957. In the course of the order on I. A. No. 1 of 1957, the Tribunal recorded:

“In the course of the arguments Sri Mohan Kumaramangalam indicated that certain objections raised on behalf of the applicant could be got over by amendment of the election petition under O. 6, R. 17 of the C. P. Code.”

This matter was further referred to in a later portion of the order in these terms:

“The respondent in the election petition will file his written statement on Wednesday the 24th inst. The election petitioner should if he desired to amend the petition make an application in that behalf on or before that date and that application will be considered that day. Issues will be settled on the 27th. Parties are directed to file on or before the 27th such of the documents as would be material or useful in the matter of setting the issues.”

In pursuance of the order in these terms the petitioner filed his written statement on 24th July 1957. In this written statement the objections formulated by the petitioner in I. A. No. 1 of 1957 were reiterated. The petitioner came forward with a further point that) inasmuch as the election petition included charges which did not fall within the definition of corrupt practice which would avoid the election within S. 100 (1), the petition itself was not competent and had to be dismissed in limine under S. 81 read with S. 90 (3) of the Act. The written statement which controverted in detail the allegations of fact contained in the election petition, ended with a prayer that the petition might be rejected under S. 90 (3) of the Act, for the reason already indicated.

The respondent on his part filed two applications for amendment of the election petition—I. A. No. 3 of 1957 and I. A. No. 4 of 1957. The amendments sought to be effected by I. A. No. 3 of 1957 fell into two categories.

The first group comprised those which were merely clerical in their nature. The other consisted of allegations that the petitioner was disqualified for standing for election under S. 7 (d) of the Act by reason of his interest in five companies besides the one named originally in the petition which had subsisting contracts with the State Government for the supply of goods, execution of works etc. I. A. No. 4 of 1957 sought to effect amendments in respect of four items. Some of these were particulars of the corrupt practice set out in the petition as grounds for avoiding the petitioner's election. Some were amendments which sought to introduce the words “by the returned candidate or his agents with his consent” in the several paragraphs set out by the petitioner in I. A. No. 1 of 1957, with a view to remedy the defects which were alleged to exist in them. Counter affidavits were filed to these applications by the petitioner and the two applications I. A. Nos. 3 and 4 of 1957 came on for hearing and were disposed of by an order dated 4th August 1957. On this same day draft issues were filed by both sides based on the pleadings in the petition, and with some slight amendments, whose correctness is not now challenged, the Tribunal accepted these and framed the issues accordingly. By its order dated 4th August 1957, I. A. No. 4 of 1957 was dismissed in regard to the main item, namely, the amendments which sought to remove the defects which were said to exist in the election petition as filed. Certain other items were allowed and the correctness of the order in I. A. No. 4 of 1957 is not disputed by either side. The Tribunal ordered most of the items of amendment prayed for in I. A. No. 3 of 1957. It may be mentioned that the allowance of some of these items was not objected to by the petitioner, and the only item of amendment allowed whose legality is challenged before us, is in relation to that by which the respondent was permitted to add to the contracts which were said to disqualify the petitioner from standing for election under S. 7 (d) of the Act. W. P. No. 668 of 1957 is for the issue of a writ of certiorari to quash this order of amendment granted in I. A. No. 3 of 1957 by which the items of disqualification were permitted to be introduced into the election petition.

Before we pass on to consider the points urged by learned Counsel for the petitioner it is necessary to mention one fact in relation to the issues framed and the oral direction of the Tribunal in relation to the consideration of these issues made on 4th August 1957. The issues relevant in the present context are issues 1 to 8. The other issues which are numbered 9 to 30 relate to matters which would legitimately be the subject of enquiry by the Tribunal if issue 1, which we shall set out immediately, were decided in favour of the respondent. The first issue ran:

“1. Is the election petition in conformity with the provisions of (a) S. 81 and/or (b) S. 83 of the Representation of the People Act and liable to be dismissed under S. 90 (3) or any other provisions of the said Act?

Issues 2 to 7 comprised matters set out in I. A. No. 1 of 1957 and which according to the petitioner, the Tribunal had no jurisdiction under the Act to enquire into. For the purpose of better understanding the nature of the objections involved we shall set out these issues:

“2. Do the allegations in paragraph 13 (1) (a), (b), (c), (e). (g), h (i), h (ii), (i), (j), (k), (1), 13 (2) (a), (b), (c), 14 (b), 15 (b) and 17 of the election petition, constitute grounds in law for declaration of the election of the returned candidate to be void for the reasons stated in para 4 of the written statement?

3. Do the allegations in paras 12, 13 (1) (a), (b), (c), (e), (f), (g), (h) (i), h (ii), (i) (j) and (k) of the petition constitute corrupt practice of undue influence under S. 123 (2) of the Act?

4. Do the allegations in para 13 (2) (a), (b) and (o) constitute corrupt practice of bribery under S. 123 (1) of the Act?

5. Do the allegations in para 17 and Schedule III-A amount to corrupt practice under S. 123 (7) of the Act 1

6. Do the allegations in para 8 of the petition amount to corrupt practice under S. 100 (1) (d) (iv) of the Act?

7. Is the petition maintainable in the absence of particulars as contended in paragraphs 12 to 33 of statement of objections?”

Issues ran in these terms:

“8. Should issues 1 to 7 be heard as preliminary issues?”

On 4th August 1957, when the Tribunal settled these issues, which was the same day on which orders on I. A. Nos. 3 and 4 were passed an oral application was made by learned Counsel for the petitioner to hear issue 8 in the first instance, and then if necessary, issues 1 to 7 and thereafter proceed with the trial of the action. The Tribunal, however, it is agreed, appears to have rejected this suggestion and intimated that the order it had already passed in 1. A. No. 1 of 1957 would still be followed, namely, that the matters set out in issues 1 to 7 would not be disposed of as preliminary issues but would be dealt with only as occasion arose in the course of the trial or at the end of the trial. After having given this oral direction the Tribunal passed the following order:

“The respondent will file his written statement if any in respect of the amendments to the petition allowed by this order and the petitioner will, as required on behalf of the respondent, supply further particulars of the contracts with particulars of dates and other details…… Mr. Sastriar wants a week's time for that purpose. Posted to 12th. The respondent will file his written statement on the 17th. Issues settled. Examination of witnesses will start at 8 A.M on 17th.”

The grievance of the petitioner is as regards this last portion of the order, which directed the trial to start before the Tribunal had decided the preliminary issues and particularly issue 1, which if it were decided in his favour, would obviate any need for enquiry and trial and this is the subject-matter of W. P. No. 611 of 1957.

We shall first take UD for consideration W. P. No. 668 of 1957, which seeks the issue of a writ of certiorari to quash the order of the Tribunal in I. A. No. 3 of 1957, in so far as it permitted the respondent to add new grounds of disqualification for calling in question the election of the petitioner—the returned candidate. In the petition as originally filed, the allegations as regards the disqualification of the petitioner to stand for election were set out in paragraph 5, which ran:

“5. The petitioner submits that on the date of the election of the respondent (the returned candidate) he was disqualified to be chosen to fill a seat in the Madras Legislative Assembly under S. 7 (d) of the Representation of the People Act, 1951 (hereinafter called the Act) for the following reasons:

The respendent was on the date of his election the largest shareholder in a Private Limited Company called the Chettinad Co., Ltd., holding 5585 shares of Rs. 1000 each and 14767 shares of Rs. 100 each. At the same time, the said Chettinad Co., Ltd., was the largest shareholder in another private limited company called Madura South India Corporation Ltd., Madurai, holding 7926 share of Rs. 100 each. The said Madura South India Corporation Ltd., in or about the year 1955 entered into a contract with the Government of Madras through the P. W. Department for the execution of the work of construction of buildings for the Government Mr. Sastriar College which had been built in the grounds of the Collectorate of Madurai District at Madurai. The petitioner submits that the said contract was subsisting on the date of election of the respondent and that the respondent by reason of the facts stated above has a share or interest in the said contract between the Madura South India Corporation Ltd., and the Government of Madras for the execution of the said works namely the buildings for the Madras Government Medical College at Madurai undertaken by the Madras Government and therefore the respondent was disqualified from being chosen to fill a seat in the Madras Legislative Assembly and the acceptance of the respondent's nomination was improper and the respondent's election is therefore liable to be declared void.”

In the affidavit in support of I. A. No. 3 of 1957 the respondent stated in paragraph 3:

“The respondent (the returned candidate) is the largest shareholder in the Chettinad Co., Ltd. This company and the respondent have interest or shares in a number of other subsidiary concerns like the South India Corporation Ltd., Madurai etc., such subsidiary companies have been formed only to suit the exigencies of each business while the respondent directly and through the Chettinad Co., Ltd., has the controlling interest in such subsidiary concerns and all such concerns have subsisting contracts for the supply of goods, execution of works etc., with the Government of Madras. I have mentioned only one such concern in paragraph 4 of the petition by way of example. Reference to other such concerns having contract with the Government has been omitted by oversight. The petition has therefore to be amended suitably as indicated in the application.”

The other subsidiary concerns referred to in this affidavit were thus set out in paragraph 2 of I. A. No. 3 of 1957:

“2. In paragraph 5 after the words ‘for the following reasons' add ‘the respondent has a share or interest in a number of companies' known as (a) The Chettinad Co., Ltd., (b) the Chettinad Corporation Ltd., (c) The South India Corporation (Madras) Ltd., (d) The South India Corporation (Coimbatore) Ltd., (e) The South India Corporation (Cochin) Ltd., (f) The Trichi—Tanjore Electric Stores Ltd., (g) The Madura South India Corporation Ltd., and three companies have subsisting contracts with the Government of Madras for the supply of good execution of works etc., for example.”

By the order of the Tribunal dated 4th August 1957 these new items have become part of the allegations in the petition. It would be seen that, whereas in the election petition the petitioner was stated to be disqualified by reason of the petitioner being interested in one specified contract, by the amendment, this was enlarged and the disqualification was said to arise from the petitioner's share or interest in five other companies which had subsisting contracts with the State of Madras. I.A No. 3 of 1957 was filed on 24th July 1957, which was far beyond the 45 days from the date of the election, specified as the period of limitation for the presentation of an election petition under S. 81 of the Act. The Tribunal allowed the application for amendment holding that it fell within O. 6, R. 17, of the C. P. Code which was applicable to the proceedings before it under S. 90 (1) of the Act> which enacted:

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

It also held that the decision of the Supreme Court in Harish Chandra Bapji v. Triloki Singh(1) favoured such a construction as regards the power and jurisdiction of the Tribunal.

Mr. Nambiar, learned Counsel for the petitioner, urged before us that the decision of the Supreme Court referred to by the Tribunal far from supporting the respondent, was a direct authority for the position, that the Tribunal did not possess power or jurisdiction to order the amendment that it did, when it allowed I. A. No. 3 of 1957, in regard to this matter. It is therefore necessary to analyse in some detail this decision, to examine this submission. This decision was rendered on the terms of the Representation of the People Act, 1951, before it was amended in 1956. We shall therefore have to advert to the provisions of the Act before and after the amendment, in order to appreciate the points made by Counsel for the petitioner.

Before amendment. After amendment. Section. Section. 81 (1): An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-Ss. (1) and (2) of S. 100 and S. 101 to the Election Commission by any candidate at such election or any elector in such form and within such time but not earlier than the date of publication of the name or names of the returned candidate or candidates at such election under S. 67 as may be prescribed. 81 (1): An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-8. (1) of S. 100 and S. 101 to the Election Commission by any candidate at such election or any elector within 45 days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election are different, the later of these two dates. 83 (1): An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Civil Procedure Code, 1908 (Act V of 1908), for the verification of pleadings. (2) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice. (3) The Tribunal may, upon such terms as to costs and otherwise as it may direct at any time, allow the particulars included in the said list to be amended or order such further and better particulars in regard to any matter referred to therein to be furnished as may in its opinion be necessary for the purpose of ensuring a fair and effectual trial of the petition. 83 (1): An election petition—(a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Civil Procedure Code, 1908, for the verification of pleadings. 85: If the provisions of S. 81, S. 83 or S. 117 are not complied with the Election Commission shall dismiss the petition. 85: If the provisions of S. 81 or S. 82 or S. 117 have not been complied with, the Election Commission shall dismiss the petition: 90 (2): Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Civil Procedure Code, 1908, to the trial of suits. 90 (1): Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Civil Procedure Code, 1908, to the trial of suits. 90 (4): Notwithstanding anything contained in S. 85, the Tribunal may dismiss an election petition which does not comply with the provisions of S. 81, S. 83 or 8.117 90 (3): The Tribunal shall dismiss an election petit ion which does not comply with the provisions of S. 81, S. 82 or S. 117 notwithstanding that it has not been dismissed by the Election Commission under S. 85. 90(5): The Tribunal may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. 92: The Tribunal shall have the powers, which are vested in a Court under the Civil Procedure Code, 1908 (Act V of 1908), when trying a suit in respect of the following matters: 92: The Tribunal shall have the powers which are vested in a Court under the Civil Procedure Code, 1908 (V of 1908), when trying a suit in respect of the following matters: (a) discovery and inspection; (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposit of their expenses; (b) enforcing the attendance of witnesses, and requiring the deposit of their expenses; (c) compelling the production of documents; (c) compelling the production of documents; (d) examining witnesses on oath; (d) examining witnesses on oath; (e) granting adjournments; (e) granting adjournments; (f) reception of evidence taken on affidavit; and (f) reception of evidence taken on affidavit; and (g) issuing commissions for the examination of witnesses, and may summon and examine suo motu any person whose evidence appears to it to bematerial; and shall be deemed to be a civil Court within the meaning of Ss. 480 and 582 Crl. P. C. 1898 (Act V of 1898). (g) issuing commissions 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 8s. 480 and 482 of the Crl. P. C., 1898 (V of 1898).

The question before the Supreme Court in Harischandra Bapji's Case, was as regards the legality of an order of the Tribunal allowing an amendment to certain charges of corrupt practice made against the returned candidates. In his original election petition the respondent before the Supreme Court (who was the election petitioner) had stated that the returned candidates (the case was concerned with an election to a double member constituency) “could in furtherance of their election enlist the support of certain Government servants.” He intended this allegation to be treated as a charge of corrupt practice falling under S. 123 (8) which defined the following as corrupt practice:

“(8) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the connivance of a candidate or his agent, any assistance for the furtherance of the prospects of the candidate's election from any person serving under the Government of India or the Government of any State other than the giving of vote by such person.”

Illustrations were given in the petition of the manner in which this was done and these allegations wound up with a statement “The respondents 1 and 2 by this device succeeded in creating an impression on the voters that they had the support of the district officials” The election petition contained no list of particulars attached to the petition as required by S. 83 (2) of the Act. The regularity of these pleadings was attacked by the returned candidates, on the ground that they were vague and lacking in particulars and so liable to be struck off. In answer to this the election petitioner filed a replication, in which he stated for the first time that “the denial of the respondents 1 and 2 is absolutely wrong, inasmuch as many Government servants worked for, issued appeals and became polling agents for respondents 1 and 2.” In other words, in the replication allegations were made that the Government servants actually worked for the returned candidates. This pleading was objected to by the returned candidates) and they requested for a preliminary bearing of certain issues which arose on their allegation that the petition was vague and must be struck off for want of particulars. Their application was disposed of by the Tribunal by deleting certain of the matters introduced by the replication, but holding that the allegations in the original petition were not vague, the election petitioner however being required to name the Government servants. Subsequently the election-petitioner filed a further petition for amendment on the same lines as in the replication. This was opposed by the returned candidates on the ground that the amendment did not fall within S. 83 (3), namely, “particulars or better particulars of the matter referred to” in the petition, but that they were particulars really of new charges sought to be added long after the period of limitation for filing an election petition had lapsed. The Tribunal allowed the application for amendment on the ground that they were particulars in respect of the charges in substance already made, and that O. 6, R. 17, C.P.C, which was applicable to the proceedings before it, enabled it to make that order.

It was the correctness of this order for amendment that was the main subject of consideration before the Supreme Court. This was dealt with under two heads: (1) whether it fell within the power conferred upon the Tribunal under S. 83 (3); (2) alternatively whether it could be supported under S. 90 (2) of the Act read with O. 6, R. 17. C.P.C His Lordship Venkatarama Ayyar J. who delivered the judgment of the Court first dealt with the scope of S. 83. He said:

“In our opinion, S. 81 (1) and S. 83, Sub-Ss. (1) and (2), when correctly understood, support the contention of the respondent that the Tribunal has authority to allow an amendment even when that involves inclusion of new instances, provided they relate to a charge contained in the petition. Taking first S. 81 (1), it enacts that a petition may be presented calling an election in question on one of the grounds specified in S. 100, Sub-SB. (1) and (2) and S. 101. These sections enumerate a number of grounds on which the election may be set aside, including the commission of the corrupt practices mentioned in S. 123 that constitute the grounds mentioned in S. 81(1). Then we come to S. 83 (1). It says that the petition should contain a concise statement of the material facts, and that would include facts relating to the holding of the election, the result thereof, the grounds on which it is sought to be set aside, the right of the petitioner to present the petition and the like. Then S. 83 (2) enacts that when there is an allegation of corrupt or illegal practice particulars thereof should be given in a separate list. If the grounds on which an election is sought to be set aside are something other than the commission of corrupt or illegal practices, as for example, when it is stated that the nomination had been wrongly accepted or that the returned candidate was not entitled to stand for election, then S. 83 (2) has no application, and the requirements of S. 83 (1) are satisfied when the facts relating to those objections are stated. The facts to be stated under S. 83 (1) are thus facts different from the particulars which have to be given under S. 83 (2). When, therefore an election is challenged on the ground that the candidate has committed the corrupt practices mentioned in S. 123, instances constituting particulars thereof will properly fall within S. 83 (2) and not S. 83 (1). The result is that the power under S. 83(3) to allow further and better particulars will include a power to allow fresh instances of the charges, which form the grounds on which the election is questioned.”

After referring to the decisions of English Courts on the interpretation of the corresponding sections of the Parliamentary Elections Act, 1868, His Lordship proceeded:

“These decisions establish that the requirements as to statement of grounds and facts is satisfied when the charge on which the election is sought to be set aside is set out in the petition, that the failure to give therein particulars of corrupt and illegal parctices on which it is founded is not fatal to its maintainability, and that it is sufficient if the particulars are ordered to be furnished within a reasonable time before the commencement of the trial. On the same reasoning, the conclusion should follow that S. 81 (1) and S. 83 (1) are complied with, when the grounds, on which the election is sought to be set aside, are stated in the petition, those grounds being, as already stated, the matters mentioned in S. 100, Sub-Ss. (1) and (2), S. 101 and S. 123, which is attracted by S. 100 (2) (b), and that the particulars in respect of those grounds, when they are charges of corrupt or illegal practices, fall within S. 83(2)…………

S. 83 (3) provides, it should also be noted, for the list of particulars being amended or enlarged. It is not, however, to be inferred from this that when the particulars are mentioned in the body of the petition, they could not be amended. The reference to the list in S. 83 (3) must be taken along with the provision in S. 83 (2) that particulars are to be set out in a list to be attached to the petition. The substance of the matter, therefore, is that under S. 83 (3) particulars can be amended and supplemented and the reason of it requires that the power could be exercised even when the particulars are contained in the body of the petition. And even when there is no list filed, as in the present case, it would be competent to the Tribunal to allow an amendment giving for the first time instances of corrupt practice, provided such corrupt practice has been made a ground of attack in the petition…………In this view, the order of the amendment in question is not open to attack on the ground that it has permitted new instances to be raised. What has to be seen is whether those instances are, in fact, particulars in respect of a ground put forward in the petition or whether they are, in substance, new grounds of attack.”

His Lordship then held that in the case before the Court what had been sought to be introduced by way of amendment were not really fresh instances of the same charge of corrupt practice but altogether new charges and proceeded to consider whether this could be justified under O. 6, R. 17 which has been made applicable to the Tribunal under the provisions of S. 90 (2) of the Act. The learned Judge pointed out that the provisions of the Civil Procedure Code were made applicable to proceedings before the Elections Tribunals, only subject to the provisions of this Act and one of the provisions of the Act was that which limited the time within which an election petition could be filed. He therefore held that the respondent before the Supreme Court could not sustain the legality of the order for amendment on the basis of S. 90 (2) of the Act. His Lordship explained the position thus:

“It is next contended for the appellants that ……the exercise of the power under that Rule (O. 6, R. 17 C.P.O) must, nevertheless, be subject to the conditions prescribed, by S. 81 for presentation of an election petition that one of those conditions was that it should be presented within the time allowed therefor, and that accordingly no amendment should be allowed which would have the effect of defeating that provision. The decisions in Maude v. Lowley, and Birbock v. Bullard(2), are relied on in support of this contention. In Maude v. Lowley, the facts were that an election petition was filed alleging that the successful candidate had employed as paid canvassers residents of the ward, and that the election was, in consequence void. Then an application was filed for amending the petition by alleging that residents of other wards were also similarly employed, and that was ordered by Baron Pollock. The corretness of this order was questioned on the ground that on the date of the application for amendment a fresh petition on those allegations would be barred, and that therefore the Court had no jurisdiction to pass the order which it did. In upholding this contention, Lord Coleridge C.J observed that S. 21 (5) gave power to the Court to amend the petition, that that power was subject to the provisions of the Act, that one of those provisions was S. 13 (2) which prescribed the period within which an election petition could be filed that the power of amendment could be exercised only subject to this provision, and that accordingly an amendment which raised a new charge should be rejected if a fresh petition on that charge would be barred on that date. He also observed that the matter was not one of discretion but of jurisdiction. This was followed in Clark v. Wallond(3). In Birbock and others v. Bullard the application was to amend the petition by adding a new charge, and it was held that that could not be done after the expiry of the period of limitation fixed in the Act for filing an election petition, and the decision was put on the ground that the power to grant amendment was ‘subject to the provisions of the Act.’

On these authorities, it is contended for the appellants even if the Tribunal is held to possess a power to order amendments generally under O. 6, R. 17, an order under that rule cannot be made when a new ground or charge is raised, if the application is made beyond the period of limitation prescribed for filing election petitions. The Tribunal sought to get over this difficulty by relying on the principle well established with reference to amendments under O. 6, R. 17, that the fact that a suit on the claim sought to be raised would be barred on the date of the application would be a material element in deciding whether it should be allowed or not but would not affect the jurisdiction of the Court to grant it in exceptional circumstances as laid down in Charan Das v. Amir Khan(4). But this is to ignore the restriction imposed by S. 90 (3) that the Procedure of the Court under the Civil Procedure Code in which O. 6, R. 17 is comprised is to apply subject to the provisions of the Act and the rules, and there being no power conferred on the Tribunal to extend the period of limitation prescribed an order of amendment permitting a new ground to be raised beyond the time limited by S. 81 and R. 119 must contravene those provisions and is, in consequence, beyond the ambit of authority conferred by S. 90 (2). We are accordingly of opinion that the contention of the appellants on this point is well-founded and must be accepted as correct.”

We have already set out the relevant provisiona of the Act as amended for comparison with those which the Supreme Court had to construe in Harishchandra Bajpai's case It will be seen that substantially there is little material change effected. No doubt the last words of S. 90 (5) might appear to embody in statutory form, the construction which S. 83 (3) of the original enactment received in Bajpai's case (2). For the purpose of the petition before us, however, this is not material. The principles that are to be deduced from the decision of the Supreme Court are: (1) S. 83 (2) and (3) of the original enactment lay down special rule applicable to charges of corrupt practice and the amendment of particulars regarding them. Where a charge of corrupt practice is made, fresh instances of such corrupt practice might by way of amendment be added even after the period of limitation for the filing of a petition had elapsed, by reason of the use of the expression “at any time” in S. 83 (3). Where however a new charge of corrupt practice, and not merely a fresh instance of an already formulated charge, is sought to be added, this would not be covered by S. 83 (3) and the jurisdiction to allow it would be dependent on the proper construction of S. 90 (2) of the Act. (2) In cases not covered by Ss, 83 (2) and 83 (3) that is in relation to grounds for the avoidance of an election resting on reasons other than charges of corrupt practice, there being no special rule governing the permissible amendments, the matter is governed by the provisions of S. 90 (2) of the Act, which render the provisions of the Civil Procedure Code applicable to the trial of suits to the trial of the election petitions. Among the provisions of the Civil Procedure Code, thus rendered applicable would undoubtedly be that contained in O. 6, R. 17. (3) If S. 90 (2) were absolute and unconditional the power of the Tribunal would have been plenary and subject to no limitation except the requirement that the discretion to order an amendment should be properly exercised with reference to the facts and circumstances of each particular case. Even if the Tribunals had such a power the usual rule by which civil Courts refuse an amendment which introduces a fresh cause of action after the period of limitation within which it could be agitated had expired, would be applicable to such Tribunals. (4) S. 90 (2) however is not absolute but is subject to the provisions of the Act. Among the provisions of the Act which are very material and relevant to the context are those in S. 81, prescribing the period of limitation within which an election petition should be filed. The power of the Tribunal to order an amendment by invoking the provisions of O. 6, R. 17 is subject to this limitation prescribed by S. 81. Where, therefore, by an amendment, a party applying for it, seeks to allege a new fact and not merely to explain or clarify a material fact already stated—as a ground for setting aside the election the same cannot be allowed if the application is made after the period prescribed by S. 81 for filing a petition had elapsed.

The decision of the Supreme Court was no doubt based on the language of the Act as it stood before the amendment. But as we have already pointed out, the amendments effected by Act XXVII of 1956 have not effected any material change in the provisions relevant to the present context. Indeed learned Counsel for the respondent did not seek to make any point based on their having been any such change.

We shall now proceed to consider the nature of the amendments allowed in the present case in the light of the above discussion. In the petition as originally filed, the respondent had alleged that the petitioner was disqualified for being chosen to fill a seat by reason of his interest in a contract falling within the classes specified in S. 7 (d) of the Act. We have already mentioned that the election petition had specified the contract and stated it as a ground for disqualification as also the manner in which the petitioner's interest fell within the terms of S. 7 (d). By the amendment a set of entirely new contracts, unrelated to the one specified in the original petitions was put forward as further grounds for disqualification. If the allegations in respect of any one of these contracts were established and the interest alleged came within the terms of S. 7 (d), the petitioner would have been disqualified for standing for election and his election would have to be declared void. The application for amendment having been filed long after the period of limitation prescribed by S. 81 of the Act was over the submission of learned Counsel for the petitioner, that the Tribunal had no jurisdiction to permit the amendments appears to us to be well founded. The decision of the Supreme Court no doubt related to the making a fresh charge of corrupt practice, but the reasoning on which this was rested, is in our opinion, applicable to an amendment, seeking to introduce a new item of disqualification.

Mr. Kumaramangalam learned Counsel for the respondent urged that the Act by S. 83(1) (a) merely required the petition to contain a concise statement of the material facts on which the petitioner relied. He urged that if in the present case, the respondent had stated that the petitioner was disqualified from standing for election by reason of his interest in a contract or contracts falling within S. 7 (d) of the Act, without specifying or identifying the contract or contracts the election petition would have still conformed to the requirements of the Act, and that if by reason of this vagueness the petitioner had thereafter required particulars to be furnished of the contracts, the respondent could have furnished them within the time limited by the Tribunal. If he was right so far, learned Counsel urged that the respondent ought not to be prejudiced merely because he furnished one instance of such a contract. We feel unable to uphold these contentions. In the first place the election petition did not contain any general statement which could cover contracts other than the one specified in it. We doubt whether an allegation in general terms, such as the one suggested by learned Counsel for the respondent, would have satisfied the requirements of S. 83 (1) which required that an election petition should state “the material facts” on which the petitioner relied for the relief that he sought. The following observations of Mr. Baron Pollock in The Lancaster Division Election Case, appear to us to be apt and in point. The Court was there dealing with fresh instances of corrupt practice sought to be brought in, by way of particulars furnished of the charges already made. The learned Baron said:

“The present petition had been drawn up in a general form, and no one had a right to gain any indirect advantage by reason of its being so drawn…..It would have been dealing extremely harshly if time and advantage were given to the petitioners by reason of the general form in which the petition had been drawn. That was not the intention of the Act, and they must see that they did nothing contrary to it. The intention of the Act was, as shown by S. 40, to limit the time within which charges could be made. The additional particulars must be struck out.”

In our judgment, therefore if the petition had been drawn as indicated by the respondent's Counsel it is doubtful—we may say so because we do not wish finally to decide a matter which in this precise form is not before us—whether the election petitioner could be permitted to furnish particulars after the period of limitation was over. But the present petition was not in that form. It specified an individual contract not merely as an instance of the contracts in which the returned candidate was interested but as the contract which acted as a disqualification. In these circumstances we entertain no doubt that by the amendment the respondent was seeking to add fresh grounds of disqualification, since each of the new contracts was separate and constituted a distinct ground of disqualification. This the Tribunal had no jurisdiction to allow after the period of limitation prescribed by S. 81 had elapsed.

Mr. Kumaramangalam next contended that the facts in Maude v. Lawley, which had been approved and followed by the Supreme Court, could not support the disallowance of the amendment in the case before us. The argument on this part of the case was briefly as follows: The Supreme Court had in Bajpai's case laid down that fresh instance of a corrupt practice already alleged in the petition could be allowed by way of amendment. Maude v. Lowley, was not such a case but one where a fresh charge of corrupt practice was sought to be brought in by way of amendment. The only type of amendments which Election Tribunals were precluded from granting were those in which a new charge of corrupt practice was sought to be introduced. Where however a ground or a charge had already been made, other instances of the same charge might be introduced by way of amendment. We are wholly unable to accept this argument which runs entirely counter to the decision of the Supreme Court. We see no distinction between a fresh charge of corrupt practice which according to the learned Judges in Maude v. Lowley, rendered the election petition a new one and a ground for disqualification we are not here concerned with fresh instances of the same charge of corrupt practice which the Supreme Court held the Tribunals had power to permit by way of amendment since this was rested on the specific provision in S. 83 (3). Outside this special provision, the power of the Tribunals is governed by S. 90 (1), where it is limited in the manner we have already indicated. In our judgment the order of the Tribunal allowing the amendment prayed for in paragraph 2 of I. A. No. 3 of 1957 was beyond its jurisdiction.

Learned Counsel for the respondent urged that notwithstanding our above conclusion we should not interfere at this stage and that these matters should be considered only after the Tribunal finally disposed of the petition and in an appeal filed from it under S. 116-A of the Act. For reasons which we shall set out later we are rejecting this objection. The order of the Tribunal being without jurisdiction, we hold that we should interfere even at this stage and set it aside. W.P No. 668 of 1957 is allowed and the order of the Tribunal allowing the amendment set out in paragraph 2 of I. A. No. 3 of 1957 will be set aside.

We shall now proceed to consider W. P. No. 611 of 1957. This it will be seen is for the issue of a writ of prohibition directing the Tribunal not to proceed further with the petition on the ground that the petition was defective in not complying with the requirements of S. 81. We shall briefly recapitulate the history of the controversy involved in this writ petition. In I. A. No. 1 of 1957 the petitioner had prayed for the deletion of several paragraphs of the petition whose details are to be found in issues 2 to 7 which we have extracted earlier. The ground upon which this relief was sought was that even if the allegations as stated in the several paragraphs were to be established they could not constitute acts of corrupt practice on the basis of which the election could be avoided. I. A. No. 1 of 1957 was heard by the Tribunal and by its order dated 14th July 1957 the Tribunal recorded:

“The arguments on either side were able and intricate and questions affording great difficulty in solution were raised………The points raised are really issues arising in the case to be dealt with and disposed of at the conclusion of the trial. O. 6, R. 16 C. P. Code reads: ‘The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit.’ This rule is intended for use in cases where the matters are practically clear and the question as to whether particular portions of the pleadings to be struck off are of the character mentioned therein offer no great difficulty and do not form issues in the case itself………In this case as already stated, the questions raised are far from clear and form issues to be determined between the parties……….At this stage, I consider it undesirable to pronounce orders upon the points raised in the petition and I therefore refrain from doing so and keep the petition pending to be dealt with and disposed of should as aforesaid an occasion arise in the course of the trial or at the end of the trial,”

This practically amounted to an adjournment of the petition for disposal on a later occasion. By a direction contained in the same order the Tribunal directed the petitioner to file his written statement. This written statement was filed on 24th July 1957. In paragraph 2 of the statement the petitioner urged that the election petition presented was not in accordance with the Act and that it violated S. 81 of the Act “inasmuch as it is not based on the grounds specified in Sub. S. (1) of S. 100 in regard to several charges.” This was expanded in paragraph 3 which ran:

“An election petition can be filed only on one or more of the grounds specified in Sub-S. 1 of S. 100 and S. 101. If the charges made do not relate to the grounds specified in the above provisions, this Hon'ble Tribunal could have no jurisdiction to inquire into the same. The election petition contains a large number of charges which are not based on the grounds set out in the provisions of the Act mentioned above.”

Paragraphs 4 to 7 set out the several paragraphs of the election petition which according to the petitioner did not constitute allegations of corrupt practice as defined in the Act. On these grounds the petitioner raised an objection to the jurisdiction of the Tribunal to enquire into the petition and prayed for an order dismissing the petition under S. 90 (3) for non-con formity with S. 81. On the same date on which the written statement was filed the respondent filed an application 1. A. No. 4 of 1957 to amend the petition by adding allegations to each of the several paragraphs to which exception was taken. These amendments however were disallowed by the Tribunal on 4th August, 1957, and the propriety of this disallowance is not in controversy before us. On this same day issues were settled and we have set out the issues 1 to 8 as then framed. The Tribunal however orally intimated to the parties that issues 1 to 7 would not be dealt with as preliminary issues but would be taken up only during the couse of the trial. It is this procedure adopted by the Tribunal that is complained of by Mr. Nambiar learned Counsel for the petitioner as beyond the jurisdiction of the Tribunal.

We shall now proceed to set out the submission of Mr. Nambiar on this part of the case. Learned Counsel said that the Tribunal was the creation of a statute which had vested it with a limited jurisdiction. When the Tribunal out stepped those limits, the party aggrieved was entitled as of right to invoke the powers of this Court under Art. 226 to issue a writ of prohibition to ensure that the Tribunal did not proceed to enquire into a petition which under the statute was not a petition which it could lawfully keep on its file. S. 80 of the Act enacted that:

“no election shall be called in question except by an election petition presented in accordance with the provisions of the Act.”

and it was only an election petition that conformed to the statutory requirements that could be properly enquired into by a Tribunal. S. 81 defined the grounds on which an election petition could be presented and unless the grounds stated in the petition were those set out in Ss. 100 and 101, it would not be a petition falling within S. 81. S. 100 which was the one relevant to the present case enacted grounds on which an election might be declared void and among them were acts of corrupt practice on the part of the candidate or his agents. The allegations in the present election petition contained in the paragraphs referred to in issues 2 to 7 were not corrupt practices such as even it established would lead to the setting aside of the election of the returned candidate. The inclusion of these allegations rendered the petition one not in accordance with the requirements of S. 81 and hence the Tribunal was by S. 90 (3) of the Act bound to dismiss it in limine. The Tribunal, however, had instead of doing so, expressed its intention to proceed to inquire into the merits of the petition which it had no jurisdiction to do. Learned Counsel urged the above as the grounds for the allowance of W. P. No. 611 of 1957.

It would be seen that the basic postulate of this argument rests on some of the allegations in the petition not answering to the requirements of a “corrupt practice” which if proved would be capable of avoiding an election. Mr. Nambiar therefore urged that we should examine the several allegations in the petition in regard to the corrupt practices charged against the returned candidate, with a view to find out whether they fell within the terms of the statute. We however intimated to him at an early stage of the argument, our unwillingness to embark on this enquiry. It is not in dispute that the Tribunal was vested with jurisdiction to enquire into the matter which learned Counsel invited ns to consider. The question is one which arises on the construction of the pleadings in the case and the Tribunal is the primary authority vested with jurisdiction in that behalf. The petition had been received by the Election Commission and had been referred to the Tribunal under S. 66. The Tribunal had therefore to enquire into the petition. Of coarse the Tribunal is by S. 90 (3) enjoined to dismiss a petition which did not comply with the requirements of Ss. 81, 82 and 117, and it was this power that had been invoked by the petitioner. But before this power could be exercised the Tribunal had to be satisfied that the requirements of the section had not been complied with. It had therefore not merely jurisdiction to enquire into this matter but indeed it was its duty to satisfy itself about it before it passes any such order. The Tribunal had in the exercise of its undoubted jurisdiction framed issues on the pleadings and had raised the points mentioned by Mr. Nambiar for consideration. In these circumstances we do not find any justification for this Court assuming, as it were, the functions of the Tribunal and examining matters which Parliament has assigned primarily if not exclusively to the Tribunal.

The next submission of Mr. Nambiar was that the Tribunal acted improperly and irregularly in not deciding issues 1 to 7 as preliminary issues before proceeding with the trial of the petition. In this connection learned Counsel stated that the respondent had filed a list of witnesses numbering over 400 to prove the allegations in the petition, and that the course proposed to be followed by the Tribunal, viz., of deciding issues 1 to 7 during the course of or after the completion of the trial, would involve the petitioner in such an amount of expenses and delay most of which would be unnessary and a waste, if issues 1 to 7 were decided in favour of the petitioner. We see considerable force in this argument. When witnesses are being examined, it would be nearly impossible to restrict the evidence to the allegations other than those in the paragraphs of the petition covered by issues 2 to 7. Even if this were possible, and the witnesses confined themselves to the other matters, they would have to be recalled and examined afresh in the event of issues 2 to 7 being decided in favour of the respondent. From their very nature, issues 1 to 7 have to be decided first before the start of the trial and that is precisely why they have all been clubbed together in issue 8. The reason adduced by the Tribunal for not deciding them before the trial of the other issues does not appeal to us to justify that course. The Tribunal has no doubt not passed any formal order on issue 8, but the parties before us are agreed that the Tribunal has in effect decided issue 8 against the petitioner for the reasons stated in its order dated 24th July 1957 on I. A. No. 1 of 1957. The ground upon which the Tribunal practically adjourned consideration on the merits of I. A. No. 1 of 1957 was that it raised difficult questions for decision. It is unnecessary to consider whether that was not a relevant or proper matter to be considered in an application to strike off the pleadings of an adversary under O. 6, R. 17. But when after the written statement was filed and the subject matter of I. A. No. 1 of 1957 became preliminary issues, different considerations governed the matter. This applied a fortiori to issue 1 which raised the question of the jurisdiction of the Tribunal to continue the enquiry. Issues 2 to 7 were in a way linked up with issue 1 though even if issue 1 were decided in favour of the respondent, the others had to be considered. These issues involved the consideration of no evidence oral or documentary and had to be determined on a construction of the petition read in the light of the provisions of the Act. The postponement of their consideration led to no advantage, because considered at whatever stage in the course of the enquiry, the material on which their decision could rest was identical. On the other hand, such postponement was calculated to embarrass the trial, particularly for the petitioner, and we will add for the Tribunal also—and be a source of delay for its completion. The fact that the determination of the matters covered by these issues involved difficulty can of course not be a ground for putting off their consideration—and this is the only reason assigned by the Tribunal for this postponement. With due respect to the learned judge of the Tribunal we feel unable to endorse the propriety or justification of the course it has adopted.

The error committed by the Tribunal in thus postponing the consideration of these issues might in one aspect be said to touch its jurisdiction. Take for instance issue 1. If this were decided in favour of the returned candidate the duly of the Tribunal would be to dismiss the petition. In other words, it would have no jurisdiction to enquire into the allegations in the petition. We therefore consider it proper that we should issue a direction to the Tribunal to decide issues 1 to 7 in the first instance before proceeding further with the trial in the sense of receiving oral or documentary evidence on the several issues framed.

We have now to refer to a contention urged before us by Mr. Mohan Kumaramangalam in the nature of a preliminary objection to our issuing any direction to the Tribunal as to the order in which the issues have to be decided, a contention whose range extended to our interfering with the order in I. A. No. 3 of 1957 dealt with earlier. Broadly stated the argument was this. The Tribunal was vested with jurisdiction to enquire into the position and it had practically all the powers conferred on a civil Court by the Civil Procedure Code in conducting that enquiry. Assuming that it committed any error in the exercise of the powers thus conferred, there was no transgression of the limits of its jurisdiction to call for the issue of a writ of prohibition but that would only be a case of an erroneous decision not correctable by recourse to the powers of this Court under Art. 226. Even if this extreme submission was not sustainable, learned Counsel added that still this Court would not in the exercise of its discretion issue any direction because of the express provision for appeals from the final orders of the Tribunal under S. 116-A of the Act. This provision for appeal from final orders should be held to debar the invoking of the powers of this Court to set aside interlocutory orders and also orders and directions of the Tribunal as to the manner in which it would in its discretion conduct the enquiry. Having given our best consideration to these arguments we have decided to repel them.

In the first place the power and jurisdiction of the Tribunal which is a creation of the Act are not plenary but limited, and it has to function within the limits set to it Take the case first of the amendments allowed by the Tribunal when it ordered I. A. No. 3 of 1957. The jurisdiction of the Tribunal to allow amendments which it possessed by reason of the application of the provisions of the Civil Procedure Code to the trial of election petitions was however by S. 90(1) “subject to the provisions of the Act” which included S. 81. We were satisfied that this order for amendment passed by the Tribunal was beyond its jurisdiction and was vitiated by apparent error in misunderstanding the decision of the Supreme Court in Bajpai's case. Turning to the order impugned in W. P. No. 668 of 1957 it was no doubt an interlocutory one, but Art. 226 is couched in the widest terms and is not confined to final orders. There being no statutory or constitutional bar to the exercise of our powers the question that we had to consider was whether in the exercise of our discretion we should interfere at this stage. The existence of a provision for an appeal was certainly a material factor to betaken note of but that is not determinative. We took into account the fact that the policy of the Act was to have an expeditious disposal of election petitions, and we considered that this would be frustrated if we did not set aside, what we were convinced was an erroneous order which if it had continued to be in force, would have enlarged the enquiry by evidence, which at a later stage would have to be discarded. 1; is the same process of reasoning that has led us to the conclusion that we should issue the direction we have indicated above in W. P. No. 611 of 1957 in regard to the manner in which the issues should be decided.

The result is that in W. P. No. 611 of 1957 there will be a direction that the Tribunal do proceed with the determination of issues 1 to 7 before taking up the further trial of the election petition.

There will be no order as to costs in either petition.

V.C.S