# A. M. Allison v. B. L. Stn Bhagwati]. Dtctmbtr 21

- **Citation:** [1957] 1 S.C.R. 370
- **Court:** Supreme Court of India
- **Decided:** 1957
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-m-allison-v-b-l-stn-bhagwati-dtctmbtr-21-1346
- **Pages:** 29

## Headnote

1956
A. M. Allison
v.
B. L. Stn
Bhagwati].
Dtctmbtr 21
370
SUPREME COURT REPORTS
[1957]
of Assam. Proceedings by way of certiorari are "not
of Course".
(Vide Halsbury's 'Laws of England',
Hailsham Edition, Vol. 9, para. 1480 and 1481, pp.
877-878).
The High Court of Assam had the power
to
r~fuse the writs if it was satisfied that there was
no failure of justice, and in these appeals which are
directed against the orders of the High Court in
applications under Art. 226, we could refuse to interfere unless we are satisfied that the justice of the case
requires it. But we are not so satisfied.
We are of
opinion that, having regard to the merits which have
been concurrently found in favour of the respondents
both by the Deputy Commissioner, Sibsagar, and the
High Court, we should decline to interfere.
This being the point of substance which has been
decided in favour of the respondents, we are of the
opinion that the appeals are liable to . be dismissed.
We accordingly dismiss them but having regard
to
the particular circumstances which we have adverted
to before, we order that each party will bear and pay
its own costs of these appeals.
Appeal dismiSJed.
HARISH CHANDRA BAJPAI
"·
TRILOKI SINGH
(BHAGWATI,
VENKATARAMA
AYYAR,
B.
P.
SINHA
and S. K. DAs JJ.)
Election
Dispute-Petition
grounded
on corrupt practices-
'Matter', if of_ wider
import
than
'particulars'-'Trial',
meaning
of-'Procedure', if includeJ
'powers'-Amendment, if
and
when
permissible-Power of E'lection Tribunal-Person, when can be sai'd
to be employed
for
purposes of election-Contract of service and
contract for services-Di"sti'nction-Representation
of the People Act
(XL!// of 1951), ss. 81, 83, els. (1), (2) & (3), 90(2), 92, 123 els.
(7) & (8)-Code of Civil Procedure (Act V of 1908), 0. VJ, r. 17.
The rcspon<lent filed a petition under s. 81 of the
Represen~
tation of the People Act challenging the election of the appellants
1 to the Uttar Pradesh Legislative
A~sembly on the ground that
they
had committed corrupt practices,
the
material allegations
S.C.R.
SUPREME COURT REPORTS
371
being, ( 1) that the
appellant' "could in the furtherance of their
election enlist the
support of
cetain
Government
servants",
and (2) that the appellant No. 1 had employed two persons in
excess of the prescribed number for his election purposes.
No
list of particulars of corrupt practices under s. 83(2) of the Act
was attached to the petition.
Thereafter the respondent applied
under s. 83(3) of the Act for an amendment of his petition by
adding the names of certain village Headmen (Mukhias) as having
worked for the appellants and later on become their polling
agents.
The Election Tribunal allowed the amendment, when a
fresh petition on those a'.legations would have been time-barred,
holding that what were sought to be introduced by it were mere
particulars of the charge already made, and held that corrupt
practices under ss. 123(8) and 123(7) had been committed by the
appellants.
It accordingly declared the
election
void
under
s. 100(2) (b) of the Act.
It was contended on behalf of the
appellants that the Election Tribunal had no power either under
s. 83(3) of the Act or under 0. VI, r. 17 of the Code of Civil
Procedure to allow the amendment in question and its finding
that the appellant No. 1 had employed the two persons in addition
to the prescribed number was misconceived in law.
'
Held, that although the term 'matter' in s. 83(3) was of
wider import than 'particulars' to be stated under s. 83(2) and
would comprehend the grounds on which the election was sought
to be set aside, s. 83(3) was not an exhaustive provision
on the
power of amendment, its application being limited to allegations
of corrupt and illegal practice., and that, therefore, in respect of
other matters, the power of amendment under 0. VI, r. 17, read
with s. 90(2) of the Act was not excluded, and the maximum expressio
unius exclusio alterius, would not apply.
The word 'trial' in s. 90(2) of the Act is used in wide
sens

## Text

_Characters 0–39,988 of 65,487. This is a partial read: ask again with offset=39988 for what follows._

1956
A. M. Allison
v.
B. L. Stn
Bhagwati].
Dtctmbtr 21
370
SUPREME COURT REPORTS
[1957]
of Assam. Proceedings by way of certiorari are "not
of Course".
(Vide Halsbury's 'Laws of England',
Hailsham Edition, Vol. 9, para. 1480 and 1481, pp.
877-878).
The High Court of Assam had the power
to
r~fuse the writs if it was satisfied that there was
no failure of justice, and in these appeals which are
directed against the orders of the High Court in
applications under Art. 226, we could refuse to interfere unless we are satisfied that the justice of the case
requires it. But we are not so satisfied.
We are of
opinion that, having regard to the merits which have
been concurrently found in favour of the respondents
both by the Deputy Commissioner, Sibsagar, and the
High Court, we should decline to interfere.
This being the point of substance which has been
decided in favour of the respondents, we are of the
opinion that the appeals are liable to . be dismissed.
We accordingly dismiss them but having regard
to
the particular circumstances which we have adverted
to before, we order that each party will bear and pay
its own costs of these appeals.
Appeal dismiSJed.
HARISH CHANDRA BAJPAI
"·
TRILOKI SINGH
(BHAGWATI,
VENKATARAMA
AYYAR,
B.
P.
SINHA
and S. K. DAs JJ.)
Election
Dispute-Petition
grounded
on corrupt practices-
'Matter', if of_ wider
import
than
'particulars'-'Trial',
meaning
of-'Procedure', if includeJ
'powers'-Amendment, if
and
when
permissible-Power of E'lection Tribunal-Person, when can be sai'd
to be employed
for
purposes of election-Contract of service and
contract for services-Di"sti'nction-Representation
of the People Act
(XL!// of 1951), ss. 81, 83, els. (1), (2) & (3), 90(2), 92, 123 els.
(7) & (8)-Code of Civil Procedure (Act V of 1908), 0. VJ, r. 17.
The rcspon<lent filed a petition under s. 81 of the
Represen~
tation of the People Act challenging the election of the appellants
1 to the Uttar Pradesh Legislative
A~sembly on the ground that
they
had committed corrupt practices,
the
material allegations
S.C.R.
SUPREME COURT REPORTS
371
being, ( 1) that the
appellant' "could in the furtherance of their
election enlist the
support of
cetain
Government
servants",
and (2) that the appellant No. 1 had employed two persons in
excess of the prescribed number for his election purposes.
No
list of particulars of corrupt practices under s. 83(2) of the Act
was attached to the petition.
Thereafter the respondent applied
under s. 83(3) of the Act for an amendment of his petition by
adding the names of certain village Headmen (Mukhias) as having
worked for the appellants and later on become their polling
agents.
The Election Tribunal allowed the amendment, when a
fresh petition on those a'.legations would have been time-barred,
holding that what were sought to be introduced by it were mere
particulars of the charge already made, and held that corrupt
practices under ss. 123(8) and 123(7) had been committed by the
appellants.
It accordingly declared the
election
void
under
s. 100(2) (b) of the Act.
It was contended on behalf of the
appellants that the Election Tribunal had no power either under
s. 83(3) of the Act or under 0. VI, r. 17 of the Code of Civil
Procedure to allow the amendment in question and its finding
that the appellant No. 1 had employed the two persons in addition
to the prescribed number was misconceived in law.
'
Held, that although the term 'matter' in s. 83(3) was of
wider import than 'particulars' to be stated under s. 83(2) and
would comprehend the grounds on which the election was sought
to be set aside, s. 83(3) was not an exhaustive provision
on the
power of amendment, its application being limited to allegations
of corrupt and illegal practice., and that, therefore, in respect of
other matters, the power of amendment under 0. VI, r. 17, read
with s. 90(2) of the Act was not excluded, and the maximum expressio
unius exclusio alterius, would not apply.
The word 'trial' in s. 90(2) of the Act is used in wide
sense as including the entire proceedings before the
Tribunal
from the time when the petition is transferred to it under s. 86 of
the Act till the pronouncement of its award.
There is no antithesis between 'procedure' in s. 90(2) and
'powers' in s. 92 of the Act and where an application would lie
to the Tribunal under s. 90(2) it would have the power to pass the
necessary order on it.
The object of the legislature in enacting s. 92 of the Act was
to place the powers of the Tribunal in respect of the matters
mentioned therein as distinguished from the other provisions of
the Code, on a higher footing.
Sitaram v. Yograjsing, A.LR. ( 1953) Born. 293, approved.
fagan Nath v. faswant Singh, (1954) S.C.R. 892, referred to.
Shea Mahadeo Prasad v. Deva Sharan,
A. I. R.
(1955)
Patna
81, disapproved.
1956
Harish Chandra
Bajpai
v.
T riioki Singh
1956
Harim Chandra
Bqjpai
v.
T riloki Singh
372
SUPREME COURT REPORTS
[1957]
While
the Election Tribunal had undoubtedly the power
under s. 83(3) of the Act to allow an amendment in respect of
any particulars of illegal and corrupt practices, or to permit new
instances to be included, provided the grounds or charges were
specifically stated in the petition, its power to amend a petition
under 0. VI. r. 17 of the Code of Civil Procedure could not be
exercised so ~s to permit new grounds or charges to be raised or
the character: of the petition to be so altered as to make it in
substance
a
new
petition, when a fresh
petition
on those
allegations would be time-barred.
Beal v. Smith, (1869) L. R. 4 C. P. 145 ; Greenock_ Election
Case, (1869) L. R. 4 C. P. 150
{footnote) ; Carrickfergus
Case
(1869) l O'M. & H. 264; Dublin Case, (1869) 1 O'M. & H. 270 and
Maude v. Lowely, (1874) L. R. 9 C. P. 165, referred to.
Charan Das. v. Amir Khan, (1920) L. R. 47 I. A. 255, not
followed.
Held further,
that the amendment
introduced a new charge,
altered the character of the petition and was beyond the
powers
of the Tribunal and necessary evidence had not been adduced
to support a finding as to the additional employment and no
corrupt practices either under cl. (7) or (8) of s. 123 had, therefore, been committed.
In
deciding
the
question
as·
to whether any person in
addition to the number permitted by the Act had been employed
by a
candidate
for
his
election purposes, the well-established
distinction
between
a
contract
for
services and a contract of
service must be borne in mind and in absence of any evidence
to support a findingas to the additional employment and no
service,-that he was to do the work personally, with or· without
the assistance of others, he could not be held to have
been
employed in law.
Collins v. Hertfordshire Central Council, (1947) K. B. 598 and
Dharangadhara Chemical Works Ltd. v. State of Saurashtra, (1957)
S. C. R. 152, relied on.
CML APPELLATE
JuR1so1CTION : Civil Appeal No.
333 of 1956.
Appeal by special leave against the judgment and
order dated March 23, 1955, of the Election Tribunal,
Lucknow, in Election Petition No. 320 of 1952.
C. K. Daphtary, Solicitor-General of India, R. C.
Gupta, f. S. Trwedi
and
S. S. Shukla,
for
the
appellant.
K. S. Krishnaswamy
Iyengar, S. P. Sinha
and
R. Patnaik_, for respondent No. 1.
S.C.R.
SUPREME COURT REPORTS
373
1956.
December 21.
The
Judgment of the Court
was delivered by
VENKATARAMA
AIYAR
J.-This is
an appeal by
special leave against the order of the Election Tribunal,
Faizabad, declaring the election of the appellants to
the Legislative
Assembly,
Uttar
Pradesh
from
the
Lucknow Central Constituency, void under s. 100(2) (b)
of the Representation of the People Act No. XLIII of
1951, hereinafter referred to as the Act. The Constituency is a double-member Constituency, one of the
seats being reserved for a member of the Scheduled
Castes. The polling took place on 31-1-1952, and the
two
appellants
were
declared
elected,
they
having
secured the
largest number of votes. On June 10,
1952, the respondent herein filed a petition under s. 81
of the Act alleging that the appellants had committed
a number of corrupt practices, and prayed that the
election might be declared wholly void.
The appellants
filed
written statements denying
these allegations, and on the pleadings, issues were
framed on January, 17, 1953.
Then followed quite a
spate
of
proceedings,
consisting of applications
for
framing of fresh issues, for better particulars and for
amendment of
the
election petition, to which a more
detailed reference will presently be made. As a result
of these proceedings, it was not until September, 1954,
that the hearing of the petition began. On March
23, 1955, the Tribunal delivered its judgment and, by
a majority, it set aside the election on two grounds,
(I) that the appellants had obtained the assistance of
four village officers, Mukhias, in furtherance of their
election prospects and had thereby contravened s. 123(8)
of the Act ; and (2)
that the first
appellant had
employed for payment in connection with his election
two persons in addition to the number permitted by
Rule 118
read
with Schedule VI, namely,
Ganga
Prasad
and
Viswanath
Pande,
and
had
thereby
infringed s. 123(7) of the Act.
Before us, the appellants
dispute the . correctness
of
the conclusions on both
these points.
As regards the first point, the main contention of the
appellants is that the charge that they had employed
2-77 S C. India/59
Harish Chandra
Bajpai
v.
Triloki Singh
1956
Harish Charnfra
Bajpai
v.
Trilok Singh
Venkatarama
Aijar J.
374
SUPREME COURT REPORTS
[1957]
four Mukhias in furtherance of their election prospects was not pleaded in the petition as originally
presented, and that it came in only by an amendment
dated November 28, 1953, that the Tribunal had no
power to order that amendment, and that, accordingly,
the
finding
thereon
should
be
disregarded.
It
is
necessary for a correct appreciation of the contentions
·on either side
to
state
the
facts
leading to
this
amendment.
The material allegations in the petition as it was
presented on June 10, 1952, are contained in para. 7 ( c),
and are as follows :
"That the respondents Nos. 1 and 2 could in
furtherance
of
their
election
enlist
the
support of
certain
Government servants.
The District Magistrate,
Lucknow, organised the
opening of eye relief camps,
and
these functions
were
utilised
for
the
election
propaganda of the respondents Nos. 1 and 2.
An eye
relief camp was proposed to be opened, on December
16, 1951, at Kakori by Sri C. B. Gupta, Minister, Civil
Supplies, U.P., one of the chief organisers of the election
of the respondents Nos. 1 and 2. An election meeting
was
advertised
by
the workers
of
the
respondents
Nos. 1 and 2 to be held within a short distance of the
propo>ed eye relief camp
on
rhe
same
day.
This
meeting
was
amongst
others
addressed
by
Sri
G.
B.
Pant, Chief Minister, U.P., Sri C. B. Gupta and
the respondent No. I.
It was also attended by rhc
Patwaris and Qanungo of the Kakori Circle including
the Tahsildar, Lucknow and the Deputy Superintendent of Police, Lucknow.
On December 27, 1951, an eye
relief
camp was
similarly
organised
and
opened
at
Kakori.
The
ceremony
this
time
was
performed by
Mrs. Vijay
Lakshmi
Pandit and immediately thereafter from
the
same platform and at tbe same place election speeches
were
made
and the audience exhorted to vote
for
Mrs. Vijav Lakshmi Pandit, a candidate for the House
of the People from that area and respondents Nos. 1
and 2.
This
meeting was
attended
by the
District
MagistrJte,
Lucknow,
Sub
Divisional
Magistrate,
Lucknow, Deputy Superintendent of Police, Lucknow.
S.C.R.
SUPREME COURT REPORTS
37'5
Tahsildar, Lucknow and Patwaris and Qanungo of
Kakori Circle. The respondents Nos. 1 and 2 by this
device succeeded in creating an impression on the
voters
that they
had
the
support of
the
district
officials."
There was no list of particulars attached to the
petition as provided in s. 83(2) of the Act.
On De.cember 15, 1952, the first appellant filed his
writteI). statement, and therein he stated with reference
to para 7 ( c) that it was "wrong and denied that the
answering
respondent in
furtherance of his election
enlisted the support of any government servant." He
also stated that the allegations were not accompanied
by a list, and were vague and lacking in particulars
and were liable to be struck off. The written stateme:i.t oi the second appellant filed on December 20,
1952, was also on the same lines as those of the first
appellant.
Respondent
No. 4, who was a defeated
candidate and supported the respondent herein, filed a
Written statement on December 3, 1952, wherein he
alleged that the appellants had obtained services of
village officers, such as Lambardars and Sarpanches in
furtherance of
their
election
prospects.
Respondent
No. 9 who was another defeated candidate also filed_
a written statement on the same day, adopting the
allegations in the statement of the fourth respondent
adding Mukhias to the list of village officials whose
assistance was procured by the appellants. On January
10, 1953,
the
respondent filed a replication to the
written statements of the appellants, wherein he stated
as follows :
"As stated in the petition, the denial of the respondents Nos. 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 these meetings at Kakori many government
servants took part ahd some worked for furtherance
of the election of respondents Nos. 1 and 2 and issued
appeals to the public to vote for respondents Nos. 1
and 2 and also became their polling agents."
On January 24, 1953, the appellants filed a written
statement objecting to the reception of the replication
1956
H arish Chandra
Bajpai
v.
T riloki Singh
Venkatarama
Aryar J.
19,6
Barish Chandra
Bajpai
v.
Triloki Singh
Venkatarama
AV'ar ].
376
SUPREME COURT REPORTS
(1957]
on the ground that the petitioner (respondent) had no
right to file it and that it was a mere device to add to
the original petition.
They also filed an application
on the same date for a preliminary hearing of certain
issues relating to the contentions raised by them in
their written statements that the allegations in the
petition were vague and should be struck off for want
of particulars, and the same was posted for hearing on
February 25, 1953.
Arguments were heard on these
issues on that day and again on August 25, 1953, and
the following days, and on October 31, 1953, the
Tribunal passed an order striking off some of the
allegations in the petition and calling upon the petitioner to give particulars in respect of others.
Dealing
with para 7 ( c) of the petition, the order stated :
"Paragraph 7(C) is not vague.
It shall
remain
as it is. Corresponding paragraph of the replication
introduces some
new
matters.
Therefore, the same
shall be disregarded.
The Petitioner has not named
the Government servants. He shall supply the names
of the officials including those of the Patwaris and
Qanungoes."
Meantime, after the preliminary argument aforesaid
had commenced and before it was concluded, the respondent filed on February 27, 1953, an application for
amendment of his petition, the order on which is the
main target of attack in this appeal. It was presented
under s. 83(3) of the Act, and prayed that the petitioner
"be allowed to amend the details of para 7 ( c) by adding the words 'Village Headmen' with their names
and the fact that they worked and issued appeal and
subsequent! y they became the
polling agents of respondents Nos. 1 and 2."
It mentioned for the first
time the names of the Mukhias whose assistance the
appellants
have been held to
have
obtained.
This
application was opposed by the
appellants on the
ground that •the amendment did not fall within s. 83(3),
that the matters sought to be introduced thereby were
new charges, and if admitted, they would alter the
very character of the petition, and that it should not
be granted, as a fresh petition on those allegations
would be barred on that date. It should be mentioned
S.C.R.
SUPREME COURT REPORTS
377
that on January 22, 1953, respondent No. 4 had filed
an application to
raise additional issues on his averments that the appellants had obtained assistance from
the village officers.
That application was also contested
by the appellants. It would appear that this application and the amendment petition were heard together.
On November 10, 1953, the Tribunal by a majority
passed an order dismissing
the application of the
fourth respondent for additional issues. On November
28, 1953, it allowed, again by a majority, the application of the respondent for amendment observing that
the matters sought
to
be
introduced were
merely
particulars in respect of the charge set out in para 7 ( c)
of the petition, "that the respondents 1 and 2 could
in furtherance of their election enlist the support of
certain Government servants'', and further that 0. VI,
r. 17 of the Civil Procedure Code was applicable to
proceedings before the Election Tribunal.
The appellants attack the correctness of this conclusion, and contend
that
the Tribunal
had no power
either under s. 83(3) or under 0. VI, r. 17 to order the
amendment in question. They also contend that even
if the Tribunal had the power to order amendment,
the order in question is not justified on the merits, and
is erroneous.
It is necessary to set out the statutory
provisions bearing on the question :
"S. 81(1). An election petition calling in question
any election may be presented on one or more 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.
S. 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 Code of Civil
Procedure, 1908 (Act V of 1908), for the verification of
pleadings.
Harish Chandra
Bajpai
T.
T riloki Singh
Venkatarama
AiYar ].
Hai·ish Chandra
Bajpai
.,,
T riloki Singh
Venkatarama
'1.iJiar J,
378
SUPREME COURT REPORTS
[1957]
(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 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.
85. If the provisions of s. 81, s. 83 or s. 117 are
not 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
Code of Civil Procedure, 1908 (Act V of 1908), to the
trial of suits.
90( 4). Notwithstanding
anything
contained
m
s. 85, the Tribunal may dismiss an election petition
which does not comply with the provisions of s. 81,
s. 83 or s. 117.
92. The Tribunal
shall have the powers, which
are vested in a court under the Code of Civil Procedure,
1908 (Act V of 1908), when trying a suit in respect of
the following matters :
(a) discovery and inspection ;
(b) enforcing the attendance of witnesses and requiring the deposit of their expenses ;
( c) compelling the production of documents ;
(d) examining witnesses on oath;
( e) granting adjournments ;
( f) reception of evidence taken on affidavit ; and
(g) issuing
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
S.C.R.
SUPREME COURT REPORTS
379
meaning of ss. 480 and 482 of the Code of Criminal
Procedure, 1898 (Act V of 1898)."
Now, we start with this that s. 83(3) grants a power
to
the Tribunal to amend particulars in a list.
What
is its scope ? Is it open to the Tribunal acting under
this · provision to direct new instances of the corrupt
practices to be added to the list ? And if it is, is that
what it did in the present case ? It is contended by
the learned Solicitor-General on behalf
of
the appellants that s. 83(3) does not authorise the inclusion of
new instances of corrupt practices, and that all that
could be ordered under that provision was giving of
fuller particulars in respect of instances given in the
petition.
The argument in support of this contention
might thus be stated : Section 81 requires that the
election petition should state the grounds on which it
is· founded.
Section 83 ( 1) enacts that it should contain a concise statement of the material facts on which
the petitioner relies, and s. 83 (2) provides that the
petition should be accompanied by a list
containing
full
particulars
of
the
corrupt or illegal practices.
When the three provisions are read together,
it
is
clear that the legislature has made a distinction between grounds in s. 81(1), facts in s. 83(1) and full
particulars in s. 83(2) ; and in this context, facts in
s. 83( 1) must mean instances of the charge on which
the petition is grounded and the particulars referred
to in s. 83(3) can only mean particulars in respect of
the instances set out in the petition
in
accordance
with s. 83(1). The consequence is
that an instance of
a corrupt practice not given in the petition, cannot be
brought in under section 83(3).
On this reasoning, it
is contended that the order of the Tribunal
dated
November 28,
1953,
perm1ttmg
the
respondent to
allege that the appellants obtained the assistance of
four Mukhias, whose names were mentioned for the
first time in the amendment petition, is outside the
ambit of the power conferred by s. 83(3).
We are unable to agree with this contention.
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 t<>
1956
H arish Chandra
Bajpai
v.
Triloki Singh
Venkatarama
Aryar J.
1956
H arish Chandra
Bajpai
v.
T riloki Singh
Venkatarama
A(Yar J.
380
SUPREME COURT REPORTS
[1957]
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-ss. (1) and (2) and section 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 of the Act,
and quite clearly it
is
the
different categories of
objections mentioned in s.
100, sub-ss.
(1) and (2),
s. 101 and 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 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 section 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 q uesLioned.
We are fortified in this conclusion by decisions
of
English
Courts,
on
statutory provisions which are m
S.C.R.
SUPREME COURT REPORTS
381
pari materia with our enactment.
Section 20 of the
Parliamentary
Elections
Act,
1868
enacts that an
election petition shall be in such form and state such
matters as may be prescribed, that is, by the rules.
Rule 2 of the Parliamentary Election Rules provides
that the election petition "shall state the holding and
result of the election and shall briefly state the facts
and grounds relied on to sustain the prayer". Rule 5
gives the form of
an election petition and the third
paragraph therein is as follows :
"And your petitioners
say
(here state the facts
and grounds on which the petitioners rely)."
The
true
scope of
these
provisions
came up for
consideration in Beal v. Smith (1).
There, the election
petition merely
stated
that "the respondent by
himself and other persons on his behalf, was guilty of
bribery, treating and undue influence."
The
respondent took out an application for an order that the
petition be taken off the file on the ground that it
merely stated the, grounds but not the facts constituting the particulars
as required by Rule 2.
In the
alternative, it was prayed that the petitioners should
be directed to give particulars relating to the several
corrupt
practices.
In rejecting
the
former
prayer,
Bovill C. J. observed :
"Now, with regard to the form of the petition, it
seems to me that it sufficiently follows the spirit and
intention of the rules ; and no injustice can be done
by its · generality, because ample provision is made by
the rules to prevent the respondent being surprised
or deprived of an
opportunity of a fair trial, by an
order for
such particulars as the judge may deem
reasonable. I think, therefore, it would be quite useless to require anything further to be stated in the
petition than appears here."
With reference to the alternative prayer, it was held
that an order that the particulars be furnished three
. days prior to the trial was a proper one to be passed.
A similar decision was given in the Greenoch Election
Case, a report of which is given in a footnote at page
150 of Beal v. Smith(1).
(1) (1869) L. R. 4 C.P. 145.
1956
Harish Chandra
Baj poi
v.
T riloki Singh
V enkatarama
Aryar ].
1956
Barish Chandra
Bajpai
v.
T riloki Singh
V enkatarama
Aiyar ].
382
SUPREME COURT REPORTS
[ 1957]
These decisions establish that the requirement 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 corrupc and illegal practices 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
m 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).
There is, .it should be observed,
nothing in the Election law of England corresponding
to s. 83(2), the question of particulars being left there
to be dealt with under the Rules applicable to the trial
of causes.
The consequence is that while under the
English practice, the petitioners are not obliged to state
particulars of corrupt practices in their petition, under
s. 83(2) a statement of those particulars must be made
in the petition in a separate list annexed thereto. But
this difference is
more a matter of form than of substance, as s. 83(3) provides for particulars being · called
for and furnished in the course of the proceedings, and
does not affect the conclusion as to the power of the
Tribunal to allow new instances to be pleaded.
Section 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 rarticulars 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
S.C.R.
SUPREME COURT REPORTS
383
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
ot corrupt practice, provided such corrupt practice has
been made a ground to attack in the petition.
One other argument urged by the appellants against
this conclusion must now be considered. It is based
on the language of s. 83(3). That section, it is urged,
allowed
firstly by
an amendment of the particulars
included in the list, and secondly "further and better
particulars in regard to any matters referred to therein"
and that, according to the appellants, means the particulars
already given
in the
list.
It is
accordingly
contended that the power to allow further and better
particulars can be exercised only in respect of particulars already furnished, whether they be contained in
the body of the petition or in the list, and that,
therefore,
an
order
permitting
inclusion
of
new
instances
is
outside the purview of s. 83 (3). The
assumption underlying this contention is that the word
"matter" in s. 83 ( 3) means the same thing as "particulars". We see
no reason why we should put this
narrow construction on the word "matter". That word
is,
in our opinion, of wider import than particulars,
and would also comprehend the grounds on which the
election is sought to be set aside.
If the construction
contended for by the appellant is correct, the· relevant
portion of s. 83(3) will read as "further and better
particulars
in regard to any particulars referred to
therein'', and that does not appear to us to be either a
natural
or a reasonable
reading
of
the enactment.
Having regard to the scheme of the Act stated above,
we think that s. 83(3) is intended to clothe the Tribunal
with a general power to allow not merely an amendment of particulars already given but also inclusion of
fresh
particulars,
pleading
new
instances,
subject to
the condition that they are in respect of a ground set
out in the petition. This is
in accordance with the
law and practice obtaining in the Election Courts
in
England. Thus, in the Carrickfergues Case('), in ordering
(1\ [1869] I O'M, &H. 264, 26:;.
1956
H arish Char. dra
Bajpai
v.
T riloki Singh
Venkatarama
Abar J.
1956
Harish Chandra
Bajpai
v.
T rilaki Singh
Venkatarama
AQiar J.
384
SUPREME COURT REPORTS
[1957]
an application
for
amending
particulars,
so
as
to
include matters which had only then
come
to the
know ledge of the petitioner, O'Brien, J ., observed :
"In some respects the Petitioner came down here
manifestly ignorant of the exact grounds upon which
several of the charges of the Petition were founded.
"I therefore thought it reasonable upon a proper
case being made out to allow the Petitioner to amend
his bill of particulars by adding such facts as only
recently came to his knowledge.
I consider that in the
trial of these petitions, where the purity of the election
is questioned, the most searching enquiry should be
instituted, and it is the duty of the Judge to afford
every facility in his power to that investigation."
In the Dublin Case('), the order was one directing a
list of particulars to be amended, the Court observing :
"[
shall
allow
the
utmost
latitude
to amend,
unless it is a .case in which I see that the party kept
back information at the time the· list was furnished."
In this view, the order of 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
ground put forward in the petition, or
whether they are, in substance, new grounds of attack.
Before
dealing with
this
question,
it
will
be
convenient
to
consider
the
alternative
contention
raised for the respondent that even if the Tribunai had
no power to order the amendment in question under
s. 83(3) of the Act, it was competent to do so under
0.
VI, r. 17,
Civil
Procedure Code, and that this
Court should not in special appeal interfere with the
discretion exercised by it in making the order. That
raises the question which has been very much debated
both in the Election Tribunals and in the High Courts
of the States as to whether 0. VI, r. 17 applies to
proceedings before Election Tribunals. Mr. K. S. Krishnaswami Ayyangar, learned counsel for the respondent,
contends that it does, by force of s. 90(2) of the Act,
under which
the Tribunal is to try a petition "as
(•) [•869] 1 O'M. & H. 270, 272.
S.C.R.
SUPREME COURT REPORTS
385
nearly as
may
be in accordance with the procedure
applicable under the Code of Civil Procedure, 1908, to
the trial of suits." Now, in A. G. v. Sillem( 1 ) it was
stated
by
Lord Westbury that the word "practice"-
and it means, as observed in Poyser v. Mixors( ' ) the
same
thing
as
procedure-denotes
"the
rules
that
make or guide
the cursus curise, and
regulate
the
proceedings in a cause within the walls or limits of the
Court itself".
And these
proceedings
include
all
steps, which might be taken in the prosecution
or
defence thereof, including an application
for
amendment.
In
Maude v.
Lowley(3), the point arose
for
decision whether the power conferred on the Election
Court by s. 21(5) of the Corrupt Practices (Municipal
Elections) Act, 1872, to try · the petition, subject to the
provisions of the Act, as if it were a cause
within its
jurisdiction, carried with it a power to order amendment of the petition.
It was held that it did. That
precisely is the point here.
But it is contended for the appellants that 0. VI,
r. 17 cannot be held to apply to proceedings before the
Tribunal by reason of s. 90(2), because (1) under that
section, it is only the trial of the election petition that
has to be in accrrdance with the provisions of the
Civil Procedure Code, and the question of amendment
of the petition relates to a stage anterior to the trial;
(2) s. 92 enumerates certain matters in respect of which
the Tribunal is to have the powers of a court under
the Civil Procedure Code, and as amendment of pleadings is not one of them, 0. VI, r. 17 must be held to
have been excluded from its jurisdiction ; (3) the Act
makes a distinction between procedure and powers,
s. 90(2) extends the provisions of the Civil Procedure
Code to proceedings before Tribunals only in respect of
procedure,
and
power
to
order
amendment under
0. VI, r. 17 is not within the extension; and (4) s. 90(2)
is, in any event, subject to the provisions of the Act and
the rules made thereunder, and the power of amendment under s. 83(3) being limited to particulars, the
(1) [1864] Io H.L.C. 704,723; 11 E.R. 1200, 1209.
(2) [1881] 7 Q.B.D. 329, ~33·
(3) (1874) L.R. 9 C.P. 165, 172.
1956
Harish Chandra
Bajpai
v.
T riloki Singh
Venkatarama
Aryar J.
1956
Harish Chandra
Baipai
v.
T riWki Singh
V enkatarama
Afyar J.
386
SUPREME COURT REPORTS
[ 1957]
general power of amendment under 0. VI; r. 17 must
be held to have been excluded. The correctness of
these contentions must now be examined.
(1) Taking the first contention, the point for decision
is as
to what the word 'trial' in s. 9Q(2)
means.
According to the appellants, it must be understood in
a limited sense, as meaning the final hearing of the
petition, consisting of examination of witnesses,
filing
documents and addressing arguments.
According to
the
respondent, it
connotes
the
entire
proceedings
before the Tribunal from the time that the petition is
transferred to it under s.
86 of the Act until the
pronouncement of the award.
While the word 'trial'
standing by itself is susceptible of both the narrow and
the wider senses indicated above, the question is, what
meaning attaches to it in s. 90 (2), and to decide that
we must have regard to the context and the setting of
the enactment.
Now, the
provisions
of the Act leave
us in no doubt as to in what sense the word is used in
s. 90(2). It occurs in Chapter III which is
headed
"Trial of election petitions".
Section 86( 4) provides
that if during the course of the trial any member of a
Tribunal
is
unable
to
jJerform
his
functions,
the
Election Commission is to appoint another member,
and thereupon the trial is to be
continued. This
provision must apply to retirement or relinquishment.
by a
member; even
before the hearing
commences,
and the expression "during the course of the trial"
must therefore include the stages prior to the hearing.
Section 88 again provides that the trial is to be held at
such places as the Election Commission may appoint.
The trial here must necessarily include the matters
preliminary to the hearing such as the settlement of
issues, issuing
directions
and
the
like.
After
the
petition is transferred to the Election Tribunal under
s. 86, various steps have to be taken before the stage
can be set for hearing it.
The respondent has to file
his written statement ; issues have to be settled. If
'trial' for the purpose of s. 90(2) is to be interpreted as
meaning: nnly the hearing, then what is the provision
of law und~r which the Tribunal is to call for written
statements
a11d
settle issues? Section 90(4)
enacts
S.C.R.
SUPREME COURT REPORTS
387
that when an election petition does not comply with
the provisions
of
s. 81, s. 83 or s. 117, the
Tribunal
may dismiss it. But if it does not dismiss it, it must
necessarily have the powers to order rectification of
the defects arising by reason
of
non-compliance
with
the requirements of s. 81, s. 83 or section 117.
That
not being a power
expressly
conferred
on it under
s. 92 can only be sought under s. 90(2), and resort to
that section car,
be had only if trial is understood as
including proceedings prior
to hearing.
Section
92
enacts that the Tribunal shall have powers in respect
of various matters which are vested in a court under
the Civil Procedure Code when trying a suit, and
among the matters set out therein are discovery and
inspection,
enforcing
attendance
of
witnesses
and
compelling the production of documents, which clearly
do not form part of the hearing but precede it. In
our opinion, the provisions of Chapter III read as a
whole, clearly show that 'trial' is used as meaning the
entire proceedings before the Tribunal from the time
when the petition is transferred to it under s. 86 until
the pronouncement of the award.
(2) The second contention urged on behalf of the
appellants is that if the provisions of the Civil Procedure Code are held to be appiicable in their entirety to
the trial of election petitions, then there was no need
to pro\'ide under s.