Sangram Singh v. Election Tribunal, Kotah AIR 1955 SC 425

Case Summary

1. Appeal before the Supreme Court by way of a certificate of fitness under Article-133(1)(c) of the Constitution by the High Court of Rajasthan.
2. Facts of the case:
   1. One Bhurey Lal filed an election petition under Section 100 of the Representation of the People Act against the appellant Sangram Singh for setting aside his election. The proceedings commenced at Kotah and after some hearings the Tribunal made an order on 11-12-1952 that the further sittings would be at Udaipur from 17th March, 1953 onwards.
   1. On 17th the appellant did not appear nor did any of the three counsels whom he had engaged, so the Tribunal proceeded ex parte after waiting till 1.15 p.m. The Tribunal examined Bhurely Lal and two witnesses on the 17th, five more witnesses on 18th and on 19th the case was adjourned till 20th March.
   1. On 20th one of the appellant’s three counsels, Mr. Bharat Raj, appeared but was not allowed to take any part in the proceedings because the Tribunal said that it was proceeding ex parte  at  that stage. Three more witnesses were then examined. On the following day, the 21st, the appellant made an application asking that the ex parte proceedings be set aside and asking that he be allowed to cross- examine those of Bhurely Lal’s witnesses whose evidence had already been recorded.
   1. The Tribunal rejected the application on the ground that the appellant had failed to satisfy that there was any just or unavoidable reason preventing his appearance in-person or through any of his three learned advocates between the 17th and the 19th of March, 1953. Since the counsel of Sangram Singh had already received instructions to appear on 17-03-1953 there was nothing to justify his non- appearance on the 18th and 19th of March, 1953, if not, on the 17th as well.
   1. The appellant thereupon filed a writ petition under Article 226 of the Constitution in the High Court of Rajasthan and further proceedings before the Tribunal were stayed.
   1. On 17-7-1953, the High Court rejected the petition on two grounds:
      1. In the first place, the Tribunal was the authority to decide whether the reasons were sufficient or otherwise and the fact that the Tribunal came to the conclusion that the reasons set forth by counsel for the petitioner were insufficient cannot be challenged in a petition of this nature and;
      2. On the merits also, we feel no hesitation in  holding  that counsel for the petitioner were grossly negligent in not appearing on the date which had been fixed for hearing, more than two months previously.
   • Five months later, the High Court granted a certificate under Article 133(1)(c) of the Constitution for leave to appeal to Supreme Court.
3. Questions of Law before the Supreme Court:
   • Whether the Tribunal was right in refusing to allow the appellant’s counsel to appear and take part in the proceedings on and after the 20th of March, 1953, and whether that is sufficient ground to give the High Court jurisdiction to entertain a writ petition under Article 226 of the Constitution?
   • Whether S-105 of The Representation of  the  People  Act,  1951, precludes the High Court or the Supreme Court from exercising their powers under Articles 226 & 136 of the Constitution?
4. Decision of the Supreme Court:
   • The tribunal was not justified in refusing to allow the appellant’s counsel to appear and take part in the proceedings on and after the 20th of March, 1953, when he has appeared. The only consequence of the appellant counsel not able to give just or unavoidable reason preventing his appearance on 17th to 19th could be that he shall not be allowed to reopen the proceedings of 17th to 19th, but that would not prevent him to participate in further proceedings. Accordingly the proceedings and orders of the tribunal dated 20th, 21st & 23rd March, 1953 are set aside.
   • S-105 of The Representation of the People Act, 1951, which declares the orders of the election tribunal to be final and conclusive cannot by any means, precludes the High Court or the Supreme Court from exercising their powers under Articles 226 & 136 of the Constitution. The RPA is a parliamentary act, whereas Articles 226 & 136 are Constitutional provisions. An act of parliament cannot whittle down the powers conferred by the Constitution. Nothing less than an amendment of the Constitution can bring a change in the Constitutional jurisdiction of the Constitutional Courts.
5. Important paragraphs in the judgment:

The only question before the High Court was whether the Tribunal was right in refusing to allow the appellant’s counsel to appear and take part in the proceedings on and after the 20th of March, 1953, and the first question that we have to decide is whether that is sufficient ground to give the High Court jurisdiction to entertain a writ petition under Article 226 of the Constitution.

That, in our opinion, is no Longer res integra. The question was settled by a Bench of seven Judges of this Court in Hari Vishnu v. Ahmad Ishaque [AIR 1955 SC 233, 249] in these terms:

“Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.”

That is exactly the position here.

It was urged that that cannot be so in election matters because of Section 105 of the Representation of the People Act of 1951, a section which was not considered in the earlier case. It runs thus: “Every order of the tribunal made under this Act shall be final and conclusive.”

It was argued that neither the High Court nor the Supreme Court can itself transgress the law in trying to set right what it considers is an error of law on the part of the court or tribunal whose records are under consideration. It was submitted that the legislature intended the decisions of these tribunals to be final on all matters, whether of fact or of law, accordingly, they cannot be said to commit an error of law when, acting within the ambit of their jurisdiction, they decide and lay down what the law is, for in that sphere their decisions are absolute, as absolute as the decisions of the Supreme Court in its own sphere. Therefore, it was said, the only question that is left open for examination under Article 226 in the case of an Election Tribunal is whether it acted within the scope of its jurisdiction.

But this, also, is no longer open to question. The point has been decided by three Constitution Benches of this Court. In Hari Vishnu v. Ahmad Ishaque, the Court laid down in general terms that the jurisdiction under Article 226 having been conferred by the Constitution, limitations cannot be placed on it except by the Constitution itself. Section 105 specifically was considered in Durga Shankar Mehta v. Raghuraj Singh [AIR 1954 SC 520, 522] and it was held that that section cannot cut down or affect the overriding powers of this Court under Article

136. The same rule was applied to Article 226 in Raj Krushna Bose v. Binod Kanungo [(1954) SCR 913] and it was decided that Section 105 cannot take away or whittle down the powers of the High Court under Article 226.

Following those decisions we hold that the jurisdiction of the High Court under Article 226 is not taken away or curtailed by Section 105.

The jurisdiction which Articles 226 and 136 confer entitles the High Courts and this Court to examine the decisions of all tribunals to see whether they have acted illegally. That jurisdiction cannot be taken away by a legislative device. The High Courts and the Supreme Court alone can determine what the law of the land is vis-à-vis all other courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136. Therefore, the jurisdiction of the High Courts under Article 226 with that of the Supreme Court above them remains to its fullest extent despite Section 105.

We now turn to the decision of the Tribunal. The procedure of tribunals is governed by Section 90 of the Act, which states that as nearly as possible the procedure under the Code of Civil Procedure, 1908 shall be applicable to the trial of suits before the tribunals.

Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.

Under O-9, R-6, when the plaintiff appears and the defendant does not appear when the suit is called on for hearing, if it is proved that the summons was duly served– “(a) …the court may proceed ex parte”.

The whole question is, what do these words mean? Judicial opinion is sharply divided about this. On the one side is the view propounded by Wallace, J. in Venkatasubbiah v. Lakshminarasimham that ex parte merely means in the absence of the other party, and on the other side is the view of O’sullivan, J., in Hariram v. Pribhdas that it means that the court is at liberty to proceed without the defendant till the termination of the proceedings unless the defendant shows good cause for his non-appearance. The remaining decisions, and there are many of them, take one or the other of those two views.

In our opinion, Wallace, J. and the other Judges who adopt the same line of thought, are right. As we have already observed, our laws of procedure are based on the principle that, as far as possible, no proceeding in a court of law should be conducted to the detriment of a person in his absence. There are of course exceptions, and this is one of them. When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the court may proceed in his absence.

But, be it noted, the court is not directed to make an ex parte order. Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the court is authorized to make. All that Rule 6(1)(a) does is to remove a bar and no more. It merely authorizes the court to do that which it could not have done without this authority, namely, to proceed in the absence of one of the parties.

O-9, R-7 provides that if at an adjourned hearing the defendant appears and shows good cause for his “previous non-appearance”, he can be heard in answer to the suit “as if he had appeared on the day fixed for his appearance”.

This cannot be read to mean that he cannot be allowed to appear at all if he does not show a good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared, a position he may have been relegated to had he shown a good cause.

We have seen that if the defendant does not appear at the first hearing, the court can proceed ex parte, which means that it can proceed without a written statement; and Order 9 Rule 7 makes it clear that unless good cause is shown the defendant cannot be relegated to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case in one in which the court considers a written statement should have been put in, the consequences entailed by Order 8 Rule 10 must be suffered. What those consequences should be in a given case is for the court, in the exercise of its judicial discretion, to determine. No hard and fast rule can be laid down. In some cases an order awarding costs to the plaintiff would meet the ends of justice: an adjournment can be granted or a written statement can be considered on the spot and issues framed. In other cases, the ends of justice may call for more drastic action.

The general rule, founded on principles of natural justice that proceedings in a court of justice should not be conducted behind the back of a party in the absence of an express provision to that effect is no less compelling. But that apart, it would be anomalous to hold that the efficacy of the so-called ex parte order expends itself in the first court and that thereafter a defendant can be allowed to appear in the appellate court and can be heard and can be permitted to urge in that court the very matters he is shut out from urging in the trial court;

and in the event that the appellate court considers a remand necessary he can be permitted to do the very things he was precluded from doing in the first instance without getting the ex parte order set aside under O-9, R-13.

Now this is not a case in which the defendant with whom we are concerned did not appear at the first hearing. He did. The first hearing was on 11-12-1952 at Kotah. The appellant (the first defendant) appeared through counsel and filed a written statement. Issues were framed and the case was adjourned till 17^th March at Udaipur for the petitioner’s evidence alone from 17^th March onwards. Therefore, Order 9 Rules 6 and 7 do not apply in terms.

In the present case, we are satisfied that the Tribunal did not exercise its discretion because it considered that it had none and thought that until the ex parte order was set aside the defendant could not appear either personally or through counsel. We agree with the Tribunal, and with the High Court, that no good cause was shown and so the defendant had no right to be relegated to the position that he would have occupied if he had appeared on 17-03-1953, but that he had a right to appear through counsel on 20-03-1953 and take part in the proceedings from the stage at which they had then reached, subject to such terms and conditions as the Tribunal might think fit to impose, is, we think, undoubted. Whether he should have been allowed to cross-examine the three witnesses who were examined after the appearance of his counsel, or whether he should have been allowed to adduce evidence, is a matter on which we express no opinion, for that has to depend on whatever view the Tribunal in a sound exercise of judicial discretion will choose to take of the circumstances of this particular case, but we can find no justification for not at least allowing counsel to argue.

We, therefore, disagreeing with the High Court which has upheld the Tribunal’s order, quash the order of the Tribunal and direct it to exercise the discretion vested in it by law along the lines we have indicated. It will take into consideration the fact that the defendant did enter an appearance and did file a written statement and that issues were framed in his presence; also that the case was fixed for the “petitioner’s” evidence only and not for that of the appellant/defendant; and that the petitioner examined all the witnesses he had present on the 17th and the 18th and did not give up any of them; that he was given an adjournment on 19-03-1953 for the examination witnesses who did not come on that date and that examined three more on 20-03-1953 after the defendant had entered an appearance through counsel and claimed the right to plead; also whether, when the appellant’s only protest was against the hearings at Udaipur on dates fixed for the petitioner’s evidence alone, it would be legitimate for a party acting with due caution and diligence to assume that the order side had abandoned his right to adduce his own evidence should the hearing for that be fixed at some other place or at some other date in the same place.

The Tribunal will also consider and determine whether it will be proper in the circumstances of this case to allow the appellant to adduce his own evidence. The Tribunal will now reconsider its orders of the 20th, the 21st and the 23rd of March, 1953 in the light of our observations and will proceed accordingly. The records will be sent to the Election Commission with directions to that authority to reconstitute the Tribunal, if necessary and to direct it to proceed with this matter along the lines indicated above.