Chaudhuri, J.:— This application has been made at a very late stage and I am strongly inclined to hold that it is the result of the decision of this Court in a similar matter which has been before me and the Appellate Court; but it must be said at the same time that no other remedy is open to the Applicant. It has been held in a similar case that want of description of a candidate in a nomination paper is a fatal objection. The title such as Rai Bahadur which a man may hold is not his description.

I therefore hold that the nomination paper in question ought not to have been accepted. In a case of In the matter of Rajendra Lal Mitter(3), Mr. Justice Norris ordered a name to be expunged from the published list of candidates, and following that precedent I direct that the nomination of the opposite party be expunged from the list.

I make the Rule absolute but without costs.

[From this order the Appellant appealed.]

Mr. A. Avetoom (with him Messrs P.K Mazumdar and M.N Kanjilal) for the Appellant.—Here there is sufficient description on the nomination, paper. Apart from name and address of the candidate there is the statement that he is Voter No. 679 and also he is described as Rai Bahadur. If a similar description were given in a plaint it would have been all right. Refers to Or. 7, r. 1, C.P.C, and Zemindar of Vizianagram v. Lakhi Chatterjee(4). The Applicant came to Court too late and as a result of the recent decision of the Court of Appeal. If he came earlier, I could have put in a fresh nomination paper. Again the Applicant could come after the election and set aside the election on this ground.

Mr. N. Sircar (with him Mr. S.G Bose) for the Respondent.—sec. 45 of the Specific Relief Act applies if there is no other remedy. By applying now I get rid of a rival candidate which I could not do at a later stage. If I came after election then a fresh election would have been necessary. I am enforcing my right to appear as the sole nominated candidate. There is no other remedy open to me now. [In the matter of Cookhill(5)]. Rai Bahadur cannot be the description of a man. It is simply an addition to his name. It is very much like the English Esquire. Refers to Moorchouse v. Linney(6).

[Woodroffe, J.:— Here the voters knew perfectly well who they were voting for.]

Mr. Sircar.—The provisions of the statute must be satisfied. Refers to in the matter of Romesh Chandra Sen(7).

[Woodroffe, J.:— We want to be satisfied that our interference would be consonant to right and justice.]

Mr. Avetoom.—Would it be consonant to right and justice to interfere at this stage so as to disqualify me from being a Commissioner at all or to interfere after election, so that if you hold against me, there will be a re-election and both of us can contest the election on equal footing. You have got to consider these two alternatives having regard to the facts of this case. Both in R. v. Tugwell(8) and In the matter of Cookhill the contest was raised after the election. Again the Court has got ample discretion while acting under sec. 45 of the Specific Relief Act. Refers to Shiva Nathaji v. Joma Kashinath. Again the Court can interfere under sec. 45 if the doing or forbearing is clearly incumbent on the officer and this Court cannot interfere if the officer has some discretion in the matter. So, assuming that “Rai Bahadur” is some description of the candidate, the Chairman alone can go into the question of the sufficiency of that description. If there is no description and the Chairman allows the nomination to remain, then he will be acting without jurisdiction and then only can this Court interfere. Refers to Reg. v. Overseers of Walshall(9), Reg. v. Collins(10) and Nando Lal Bose v. Corporation of Calcutta(11).

[Sanderson, C.J:— What is the good if we decide in your favour. The election has taken place and we cannot set aside that election in these proceedings.]

Mr. Avetoom.—We can take other proceedings to set aside the election but unless the order of Chaudhuri, J., is set right, it will stand in our way.

Mr. Sircar.—It is not a case where there is a discretion. The Chairman has failed to exercise the jurisdiction vested in him.

[Sanderson, C.J:— This Court has discretion under sec. 45 of the Specific Relief Act.]

Mr. Sircar.—Court will not interfere if the Applicant has not acted bonâ fide or has not come to Court with clean hands. Refers to Prosad Chandra De v. Corporation of Calcutta(12); Mews' Digest, 5th Ed., under Corporation, Halsbury, Vol. 10, p. 98.

All these cases show that the only cases where the Court has refused to interfere, it has come to the conclusion that the application was not bonâ fide.

[Woodroffe, J.:— But hen; he came at the last moment. There was delay and in mandamus cases delay has to be taken into consideration. Again Chaudhuri, J., could have asked the Chairman to exercise his discretion and decide on the merits.]

Mr. Sircar.—There was no delay in this case. And since the last day for filing the nomination paper expired on the 5th March, the Appellant could not be prejudiced in any way. The Chairman rejected the application and Chaudhuri, J., had all the facts before him to decide the case. Refers to Gothard v. Clarke(13) and Mathew v. Brown(14).

This appeal is infructuous. The name has been expunged and the election has taken place and it would be no use putting the name up again. The Appellant cannot apply under sec. 56, for that is governed by Schedules 4 and 5. A suit may lie and if you are going to decide this question, on the merits he may be prejudiced. But if you decide on the ground of delay he cannot be prejudiced. The best course open to the Appellant was to ask for stay of proceedings by the Chairman until the disposal of this appeal. Refers to Queen v. Littledale(15).

The Judgment of the Court was as follows:—

Sanderson, C.J:— This is an appeal by Rai Bahadur Mani Lal Nahar against the judgment of my learned brother Mr. Justice Chaudhuri.

The matter came before the learned Judge by way of a petition under sec. 45 of the Specific Relief Act by one Mowdad Rahaman, who was a candidate for election as a Municipal Commissioner for Ward No. 14 at the Sixth Municipal Election, and upon that petition it was ordered that the Chairman of the Corporation of Calcutta, and Rai Bahadur Mani Lal Nahar, another candidate for election as a Municipal Commissioner for the said ward at the said election, should show cause why he should not declare the nomination paper of the said Rai Bahadur Mani Lal Nahar invalid. The Rule was made absolute by the learned Judge who delivered the following judgment. (See Chaudhuri, J.'s judgment supra).

The facts are as follows:—

The Appellant sent in his nomination paper on the 4th of March in this year. The last day for sending in the nomination papers was the 5th of March 1918: and, according to the affidavit of the Appellant, it appears that he was informed by Mr. Sen, Solicitor to the Corporation, that the Applicant, that is to say, Mowdad Rahaman or any candidate for election, could have seen the nomination paper at any time thereafter. On the 16th of March a list of the candidates who had been nominated was published. On the 18th of March, my learned brother Mr. Justice Woodroffe and I delivered a judgment in the election case of Narendra Nath Mitter v. Radha Charan Pal*(1), which I shall have reason to say later on, was of a very different nature from the present one. On the afternoon of the same day the Applicant in this case applied to the Chairman of the Corporation to reject the nomination paper of Rai Bahadur Mani Lal Nahar, the Appellant in this case. The grounds for that application were that the nomination paper did not contain any description of the said Rai Bahadur Mani Lal Nahar and that he had been seconded by one Rai Saheb Haradhan Basu who was not a voter in the said Ward No. 14, as appeared from the printed copy of the election roll prepared and published by the Chairman. The Chairman of the Corporation declined to entertain this application on the ground that it was too late. On the 19th, the following day, a petition was presented before my learned brother Mr. Justice Chaudhuri and the order nisi, which I have already read, was made at 11 o'clock in the morning. The hearing of the Rule was fixed for 4 p.m on the same day, and at or about that time the learned Judge made the order absolute upon the grounds which are stated in the judgment which I have already read. The next day, the 20th, was the day for the election. On that day Mr. Avetoom, the learned Counsel for the Appellant, applied to this Court for leave to serve short notice of appeal upon the Respondent, and this Court granted him that leave and directed that notice should be served upon the Respondents for the hearing of the appeal on the following day, namely, the 21st. On the 21st, the day after the election had taken place, this appeal was heard by my learned brother Mr. Justice Woodroffe and myself; it was adjourned for further argument until yesterday, and on that occasion we reserved judgment until this morning. These are the facts of the case.

Now, the section under which this application was made was sec. 45 of the Specific Relief Act I of 1877. Before I read that section it is necessary to refer to sec. 50 which provides “Neither the High Court nor any Judge thereof shall hereafter issue any writ of mandamus.” But by sec. 45 certain powers are given to the High Court which the High Court can exercise subject to the conditions which are specified in the proviso. Sec. 45 runs as follows:—“Any of the High Courts of Judicature at Fort William, Madras, and Bombay may make an order requiring any specific act to be done or forborne, within the local limits of its Ordinary Original Civil Jurisdiction, by any person holding a public office, whether of a permanent or a temporary nature, or by any Corporation or inferior Court of Judicature.”

Then there are five provisos added to the section. Proviso (b) is as follows: “that such doing or forbearing is, under any law for the time being in force, is clearly incumbent on such person or Court in his or its public character, or on such Corporation in its corporate character”: Proviso (c) is as follows: “that in the opinion of the High Court such doing or forbearing is consonant to right and justice.”

It is not disputed that the conditions contained in the provisos (a) to (e) in this section are cumulative; and the effect of the section is dealt with in the decision of the Bombay High Court in Shiva Nathaji v. Joma Kashinath, the judgment being delivered by Mr. Justice West. The passage which I desire to read is at p. 370, and is as follows: “The Specific Relief Act I of 1877, Ch. VIII, in abolishing the writ of mandamus, enacts that the High Court may require ‘any specific act to be done or forborne within the limits of its Ordinary Civil Jurisdiction by any inferior Court of Judicature’ (here it is not an inferior Court of Judicature, but a public officer), but the conditions are imposed (a) of a wrong to the Applicant; of a duty clearly incumbent on the inferior Court; (c) consistency of the order sought with justice; (d) ‘that the applicant has no other specific and adequate legal’ remedy; and (e) ‘that the remedy given by the order will be complete.’ These provisions, which express he results of an experience of centuries gained by superior Courts in England, working without statutory limits to their jurisdiction, show very clearly the proper conditions of peremptory interference, even when there has been an excess of jurisdiction, or a failure to exercise it, by the lower Court.” Then the learned Judge proceeded to state certain conclusions which the Court thought might be deduced with reference to the whole subject. I need refer to one only which is No. 6: It runs as follows: “The Court will, in all cases, regard its exercise of the extraordinary jurisdiction as discretional, and subject to considerations of the importance of the particular case, or of the principle involved in it, of delay on the part of an Applicant, and of his merits with respect to the case in which the interference of the Court is sought. Should other special causes appear for, or against, the Court's intervention, due weight is to be given to them, regard being always had to the principles already enunciated.” The learned Counsel for the Respondent did not dispute the accuracy of the conclusion which the learned Judges deduced in this case. Consequently we may take it that the principles there stated are the principles upon which we ought to act in this case.

Now, having regard to the facts of this case which I have already stated, and having regard especially to the delay which occurred in presenting the petition by the Respondent, and the fact that no one could possibly be misled by the description or want of description in the nomination paper, if I had been sitting as the Court of first instance. I should have had considerable doubt whether the rule should have been made absolute. But in any event if the rule were to be made absolute, I am of opinion that it should have been limited to a direction to the Chairman of the Corporation to exercise his jurisdiction and to hear and determine the application which had been made to him and which he had refused to entertain on the ground that it was too late. The application to the Court was based on the ground that the Chairman had failed to perform his duty as a person holding a public office in refusing to entertain the petition, and I think that the order, if made at all, should have been confined to a direction to him to perform that duty. We, however, are not sitting as a Court of first instance but as a Court of Appeal. The order of the learned Judge was in fact made that the name of the Appellant should be expunged from the list of nominated candidates. The Chairman of the Corporation was bound to give effect to that order. The result was that the Appellant's name was expunged from the list, and the name of Mowdad Rahaman was the only name appearing on the list of nominated candidates: and by reason of one of the rules [Rule (5) for the “conduct of election,” which provides that “In the event of there being not more than one candidate for election in any ward, such candidate shall be deemed to be elected,” Mowdad Rahaman, being the only nominated candidate, has been deemed to be elected as Commissioner of that ward. Therefore, it appears to me that if we were to allow this appeal and to give a judgment on the abovementioned ground overruling the decision of the learned Judge, such a judgment would be infructuous: for the Appellant's name has been expunged from the list of nominated candidates, the election has taken place without the inclusion of the Appellant's name in the list of candidates, and we have now, on this appeal, no power to set that right. For this reason, I think that we should not allow this appeal.

I express no opinion on the question whether the addition of the words “Rai Bahadur” to the Appellant's name taken by itself, or in conjunction with the statement that the Appellant is recorded as a Voter No. 679 of Ward No. 14 is a sufficient “description” within the meaning of the rule: It is not necessary for my judgment, and, as far as I am concerned, this question is left open. In the case of Narendra Nath Mitter v. Radha Charan Pal*, we did express the opinion that the words “who is recorded as Voter No. 1553 of Ward No. 6” by themselves were not a “description” within the meaning of r. 2(a). This opinion was expressed at the instance of the learned Advocate-General who appeared for the Appellant, but it was not necessary for our decision in that case: for, in that case, amongst other objections, it appeared that the person who had signed the nomination paper as a seconder had signed as an approver also, which we held was not in order. Further, one of the names appearing as that of an approver was the name of a firm and not that of a voter and con-sequently there were only 16 approvers instead of 18 as required by the rule. There were other reasons to which I need not refer: It is sufficient for me to say that in the previous case there were substantial objections to the nomination paper, whereas in this case to my mind the objections are trivial and unsubstantial.

For these reasons the appeal in my judgment must be dismissed; but in view of the facts of the case I think that it should be dismissed without costs.

Woodroffe, J.:— Had this case come before me as Judge sitting on the Original Side, it should have been a matter of considerable doubt whether the case was one in which this Court should interfere under sec. 45 of the Specific Relief Act.

But the learned Judge has in fact made the order and directed that the Appellant's name should be expunged from the published lists of candidates. As a result, the Chairman, being obliged to obey the order of the Court, has expunged the name of the Appellant with the result that the Respondent has been deemed to be elected.

The question therefore now is, will any fruitful result ensue should we reverse the learned Judge's order. It seems that any order passed without going into the merits would be of little, if any, use: And, apart from difficulties attending under the circumstances of this case a reversal even on the merits, to go into such merits, would assume that the other points in the case such as the alleged delay and form of the learned Judge's order had been decided against the Appellant which I am not prepared to say would have been the case. For this is involved in the doubt I entertain whether the application should have been maintained in the Court of First Instance. If, for instance, (as I am disposed to think) the learned Judge instead of directing the Appellant's name to be expunged, should have directed the Chairman to entertain the application which he wrongly refused to entertain on the ground that it was too late, such a decision would preclude an examination into the merits which ex-hypothesi would have to be left for the Chairman to determine. But such a decision not touching the merits would probably not avail the Appellant; apart from practical difficulties in asking the Chairman to consider this matter after what has followed in the previous order.

Under the circumstances, therefore, and without expressing an opinion on the question under appeal whether there was a sufficient description, I would not interfere with the decision under appeal and would therefore dismiss the appeal but without costs.

I should like to add with regard to our former decision cited to us that it proceeded on a different state of facts, and though we were invited to express and did express an opinion on the question whether the reference to the electoral roll was a sufficient description, all that we I. eld was that in itself it was not a sufficient description; and this was not necessary having regard to the fact that whether there was or was not in such case a description of the candidate, his case failed both for want of a legal seconder and a sufficient number of approvers.

This judgment of mine does not, of course, affect any other remedies which the Appellant may have otherwise than by the proceedings before us.

Messrs Newgey and Dey, Solicitors, for the Appellant.

Messrs Kar, Mehta & Co., Solicitors, for the Respondent.

M.N.K

Appeal dismissed.