# BADRINARAYANSINGH v. KAMDEO PRASAD SINGH AND ANOTHER

- **Citation:** [1962] 3 S.C.R. 759
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** P. B. Gajendragadka.R, K. Subba Rao, M. Hidayatullah, J. c. SHAH, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/badrinarayansingh-v-kamdeo-prasad-singh-and-another-2475
- **Pages:** 10

## Headnote

lflection Di•pute-Resjudicata-Two appeals out of one proceeding-One Judgment but two separate decreeB-Subject matter
different-Detision, if one-Appeal from one decree only-maintainability,-Repretentation of the People Act, 1951 (~3 of 1951),
••. 80, 81, 7.
The Election Tribunal on the petition of the first respondent set aside the election of the appellant J.olding that
the appellant as a Ghatwal, was not a holder of office of profit,
and that he was guilty of corrupt practices. The Election
Tribunal however did hot entertain the first respondent's prayer
to declare him as duly elected.
.
The appellant and the first respondent, both went
up in appeal to the Ifigh Court. Appellant's appeal being
No. 7 was against the order setting aside his electio.n.
The
first respondent's appeal being No. 8 was against the order
not declaring him to be duly elected. Both the appeals were
disposed of by the High Court by one Judgment. The
appellant's appeal. No. 7 was dismissed
holding that the
appellant was not guilty of corrupt practices and that he,
as a Ghatwal, held an office of profit.
The respondent's
appeal No. 8 was allowed declaring him as duly elected.
Two separate decrees were prepared in the two appeals.
The appellant filed this appeal by special leave from
the order in Appeal No. 8 by the first respondent. All the
grounds of the appeal related to the finding of the High Court
that the office of Ghatwal was an office of profit.
A preliminary objection was taken on behalf of the first
respondent that this appeal was incompetent as barred by
the principle of resjudicata inasmuch as the appellant did
not appeal against the order of the High Court in Appeal
No. 7 whose dismissal by the High Court confirmed the order
of the Election Tribunal setting a•ide the election of the
appellant; and that it was not open to the appellant to
question the correctness of the finding that he held an office
of profit, which was the basis of the dismissal of appeal No. 7.
Held, that where two appeds arose out of one proceeding,
but the subject matter of each appeal was different, the
759
116l
September 82.
•
1161 .
•
760
SUPREME OOURT REPORTS
[1962]
decuion of the High Court in the appeals though •lated in
one judgment, really amounted to two decisions and not to
one deci!ion common to both the appeals. The subject-matter
of appeal No 7 flied by the appellant related to the question
of his election l>eing bad or good. The subject matter of
appeal No. 8 did not relat~ to the validity or otherwise of the
election of the appellant.
It related to the further action to
be taken in case tbe election of the appellant was bad, on the
ground that a G.hatwal holds an office of profit.
The High Clourt came to two decioions, one in respect of
the invalidity of the appellant's election in appeal No. 7. It
came to another decision in appeal No. 8 with respect to the
justification of the claim of the first respondent to be declared
as a duly elected candidate. That so long as the order in the
appellant's appeal No. 7 confirming the order setting aside hia
election on the ground that he wa5 a 11-0lder of an off ice of
profit stands, he cannot queation that finding in the present
appeal, preferred against the decree in the first respondent's
•ppeal No. 8.
;Varhari v. SM.11/car rl950J S. C. R. 754, distinguished.
CrvIL APPELLATE .JunrsDIOTION: Civil Appeal
No. 56~ of 190{).
Appeal by special leave from tl1e judgment
and decree dated March 20, l!l59, of tho Patna
High Court in Election appeal No. 8 of 1958.
J.C. Sinha, D. P. Singh, M. K. Ramamurthi,
R. K. Garg and S. C. Ag11rwala, for tho appellant.
B. C. GTWsli and R. C. Dattti, for res ondont
No. I.
....-~
Udaipralap Singh and P. C. Agarwala, for res·
pondent No. 2.
1961. September 22.
The Judgment of the
Court was delivered by
RAOHUBJ.R DAYAL, J. -Badri Narain Singh,
the appellant, and four other persons inoluding
Kam Deo Pratad, respondcnte, were candidates to
the Bihar Legislative Assembly during the las.t
gtnera.l

## Text

SUPREME COURT REPORTS
BADRINARAYANSINGH
v.
KAMDEO PRASAD SINGH AND ANOTHER
(P. B. GAJENDRAGADKA.R, K. SUBBA RAO,
M. HIDAYATULLAH, J. c. SHAH and
RAGHUBAR DAYAL, JJ.)
lflection Di•pute-Resjudicata-Two appeals out of one proceeding-One Judgment but two separate decreeB-Subject matter
different-Detision, if one-Appeal from one decree only-maintainability,-Repretentation of the People Act, 1951 (~3 of 1951),
••. 80, 81, 7.
The Election Tribunal on the petition of the first respondent set aside the election of the appellant J.olding that
the appellant as a Ghatwal, was not a holder of office of profit,
and that he was guilty of corrupt practices. The Election
Tribunal however did hot entertain the first respondent's prayer
to declare him as duly elected.
.
The appellant and the first respondent, both went
up in appeal to the Ifigh Court. Appellant's appeal being
No. 7 was against the order setting aside his electio.n.
The
first respondent's appeal being No. 8 was against the order
not declaring him to be duly elected. Both the appeals were
disposed of by the High Court by one Judgment. The
appellant's appeal. No. 7 was dismissed
holding that the
appellant was not guilty of corrupt practices and that he,
as a Ghatwal, held an office of profit.
The respondent's
appeal No. 8 was allowed declaring him as duly elected.
Two separate decrees were prepared in the two appeals.
The appellant filed this appeal by special leave from
the order in Appeal No. 8 by the first respondent. All the
grounds of the appeal related to the finding of the High Court
that the office of Ghatwal was an office of profit.
A preliminary objection was taken on behalf of the first
respondent that this appeal was incompetent as barred by
the principle of resjudicata inasmuch as the appellant did
not appeal against the order of the High Court in Appeal
No. 7 whose dismissal by the High Court confirmed the order
of the Election Tribunal setting a•ide the election of the
appellant; and that it was not open to the appellant to
question the correctness of the finding that he held an office
of profit, which was the basis of the dismissal of appeal No. 7.
Held, that where two appeds arose out of one proceeding,
but the subject matter of each appeal was different, the
759
116l
September 82.
•
1161 .
•
760
SUPREME OOURT REPORTS
[1962]
decuion of the High Court in the appeals though •lated in
one judgment, really amounted to two decisions and not to
one deci!ion common to both the appeals. The subject-matter
of appeal No 7 flied by the appellant related to the question
of his election l>eing bad or good. The subject matter of
appeal No. 8 did not relat~ to the validity or otherwise of the
election of the appellant.
It related to the further action to
be taken in case tbe election of the appellant was bad, on the
ground that a G.hatwal holds an office of profit.
The High Clourt came to two decioions, one in respect of
the invalidity of the appellant's election in appeal No. 7. It
came to another decision in appeal No. 8 with respect to the
justification of the claim of the first respondent to be declared
as a duly elected candidate. That so long as the order in the
appellant's appeal No. 7 confirming the order setting aside hia
election on the ground that he wa5 a 11-0lder of an off ice of
profit stands, he cannot queation that finding in the present
appeal, preferred against the decree in the first respondent's
•ppeal No. 8.
;Varhari v. SM.11/car rl950J S. C. R. 754, distinguished.
CrvIL APPELLATE .JunrsDIOTION: Civil Appeal
No. 56~ of 190{).
Appeal by special leave from tl1e judgment
and decree dated March 20, l!l59, of tho Patna
High Court in Election appeal No. 8 of 1958.
J.C. Sinha, D. P. Singh, M. K. Ramamurthi,
R. K. Garg and S. C. Ag11rwala, for tho appellant.
B. C. GTWsli and R. C. Dattti, for res ondont
No. I.
....-~
Udaipralap Singh and P. C. Agarwala, for res·
pondent No. 2.
1961. September 22.
The Judgment of the
Court was delivered by
RAOHUBJ.R DAYAL, J. -Badri Narain Singh,
the appellant, and four other persons inoluding
Kam Deo Pratad, respondcnte, were candidates to
the Bihar Legislative Assembly during the las.t
gtnera.l election held in 1957. Two of those candidates withdrew before the relevant date. The
appellant secured the largest number of votes and
was declared elected on March 14, 1957. Respondent No. 2 secured larger number of votes than
'"' ,
'
'• '
t
3 S.C.R. SUPREME COURT REPORTS
761
Kam Deo Prasad, respondent No. 1, who tiled an
election petition under as. 80 and 81 of the Representation of the People Act, 1951 (Act XLIII of
1951), challenging the election of the appellant on
the ground that the nomination of the appellant and
respondent No. 2, who, M Ghatwal.s, held an office of
profit, wae against the provisions of s. 7 of the Act,
and that the appellant had also committed corrupt
practices. Kam Deo Prasad, by his election petition, not only prayed for the declaration that the
election of the appellant was void, but also for the
declaration that he hi~self was duly elected. The
appellant denied the allegations againet him. The
Election Tribunal held that Badri Narain Singh, the
appellant, was guilty of corrupt practices and that
a Ghatwal was not a holder of an office of profit
under the State of Bihar. It therefore set aside the
election of the appellant, but did not grant the declaration that Kam Deo Prasad was a duly elected
candidate.
The appellant filed Election Appeal No. 7 of
1958 in . the High Court of Judicature at Patna,
against the order of the Election Tribunal setting
aside his election, and prayed that the order of the
Election Tribunal be set aside and that it be held
tha.t he had been duly elected. Kam Deo Prasad
also.filed Electiqn Appeal No. 8 against the order
of the Election Tribunal .not dPclaring him to be
the duly elected candidate and prayed for a declaration that he had been duly elected.. The grounds
, of appeal questioned the correctness of the finding
of the Election Tribunal that Badri Narain Singh
and respondent No. 2, as Ghatwals, were not the
holders of officee of profit and that Kam Deo Prasad
could not be declared duly elected.
Both these appeals were dispoeed of by the
High Court by one judgment. It did not accept
the finding of the Election Tribunal that Badri
Narain Singh had committed any corrupt practice
and accepted the' contention for respondent No. 1
that Badri Narain Singh and r~11pondent No. 2 hold
1111
8ctlri "••:JM 8;.,h
,v.
Ir-"• Pr.,_. SU.,h
l!a1nobar Day•/ J.
11161
Beiri NatlfldTl Sinth
v.
Jr.....,, Prosed Sint h
R.,hbor Da.JO/ J.
..
762
SUPREME COURT REPORTS
[1962]
offices of profit under the Bihar Government as thoy
wero Gliatwal,a. It was in this view of the mt1.ttcr
that it confirmed the order of tho Election Tribunal
~etting aside tho election of the appellant and allow·
mg tho appoal of respondent No. 1, declared hini
duly elected.
Tho concluding portion of the judgment of the
High Court may be usefully quoted here :
"To conclude, the election of the returned
candidate is not "Valid, and, the mdor of the
Tribunal
is,
therefore,
right, though on
different grounds. Further, there, was only
one scat, and three persons contested it, namely, the petitioner and the two respondents.
Tho two respondents wore disqualified for be·
ing chosen as, and for being, members of
Legislative Assembly or Legislative Council.
of the State, and, therefore, their nomination
papers wore not validly accopted. If their
nomination papers are rejected, and it cannot
but be rejected, the only person left in the
field was the petitioner Kam Doo PrB11ad
Singh, and, therefore, he must be declared to
he duly elected.
In the result, Election Appeal No. 7 of
l!lil8 is dismissed, and Election Appeal No. 8
of 1958 is allowed, and Kam Dco Prasad Singh
is declared to be dulv elected to Bihar Legislative Assembly
from
the Sa.math State
Assembly Constituency in th<> district of Santai
Parganas."
As a result of this order, separate decrees were
prepared in the two appeals. Decreo in Election
Appeal No. 7 said, 'It is ordered and decreed that
this appeal be and the same is hereby dismissed'.
The decree in appeal ~ o. 8 said, 'It i~ ordered a.nd
decreed that this appeal be and thti ~.m~e is hereby
allowed and Kam Doo Pras<id Singh is declared to
be duly elocted to the Bihar Legislative Assembly
from the Sarnath State Assembly constituency in
the District of Santhal P1i.rganas'.
t
(
..
.....
J
,
1
3 S.C.R. .
SUPREME COURT REPORTS
763
The appellant has filed this appeal by special
leave against the order in Election Appeal No. 8
of 1958 .. All the grounds of appeal relate to the
finding of the High Court that the office of a Ghatwal is an office of profit.
The petition for special
leave .to appeal does not mention the relief the
appellant se~ks from this Court. Presumably, he
prays for the setting aside of the order in Appeal
No. 7 confirming the order of the Election Tribunal
;ietting aside his election and also the order in
Appeal No. 8.
A preliminary objection has been taken on
behalf of respondent Kam Deo Prasad Singh that
~his appeal is incompetent as barred by the principle
0f res judicata inasmuch as the appellant did not
appeal against the order of the High Court in
.Appe~l N·1. 7 whose dismissal by the High Court
confirmed the order of the Election Tribunal sett.ing
. aside the election of the appellant. It is urged
that the order setting aside the appellant's election
having become final, it cannot be set aside and that
the finding arrived at in that appeal about a Ghatwal
being a holder of an office of profit operates as res
judicata in this appeal and therefore no appeal
against the order in Appeal No. 8 deelaring respondent No. l to be the duly elected' candidate can be
pressed on the ground that the view of the High
Court about the appellant's holding an office of profit
is wrong. If the correctness of that view cannot
be challenged, the correctness of the declaration in
favour of respondent No. l cannot be challenged in
this appeal on any other ground when no other
ground had been taken in the
~pplication for
special leave.
The contention in effect, therefore, is that it is not open to the appellant in
this appeal to question the correctness ofthP. finding
that he held. an office of profit under the Bihar
Government, a findi1.g which formed the basis of
the dismissal of Appeal No. 7 and the confirmation
of the order setting aside his election.
i96J
Badri Narap.n Singh
v.
Katndeo Prasad Singh
l,laglwbar Dayal J.
IHI
.IHri JI•- ~iAI•
••
x-.. ,.,.,.; sm,•
JI
..... ,,,.i .1.
764
SUPREME COURT REPORTS
[1962]
.........
Tho foamed counsel for tho appellant relied
on the judgment of this Court in Narhari v .
Shankar(1) in support of his contention that tho
judgment in Election Appeal No. 7 cannct operate
as 1·e.8 ju!Hcata in this appeal. That case is distinguishable on facts and is with respect. to tho
interpretation of s.ll of tho Code of Civil Pro-
~
eedure.
In the suit, in that case, the plaintiffs claimed po11Beasion over 2/3rds of the plot No. 214.
They claimed I/3rd which was in tho possession
of uno set of defendants, namely, defendants
No~. I to 4 and the other I/3rd was in poBSession
of another 11et of defendants, namely, defendants
("
Nos. 5 to 8.
Each set of dofendante claimed
that they were entitled to the land in their possession as their share of the family property a11d
denied the allegations of the plaintiffs that thl'
senior branch wae nnder custom entitled to exclu~ive possession of tho plot which wae Inam
land.
The euit was decreed by the trial Court.
Each act of dofondant1 then filed an (appeal claiming I/3rd of the plot. Tho first appellate Court
allowed both l tbe appealH and dismissed the
plaintiffs suit by one judgment and ordered
_,
'
a copy of thAl judgment to be placed on · the
----
file~ of the other connected appeal. Naturally,
it decided the one point of contention commcin
to both the appeals, namely, that tho senior
brauch WM not entitled to exclusive poese&Bion
A-
·
of the plot. This waa the finding in each of the
appeal1.
The plaintiffs thereafter filed two appeala to
the High Court, one against the decree in the
appeal filed by defendants Noe. I to 4 and tho
other against tho decree in tho appeal filed by
defendants ~oe. 5 to 8. The latter appeal wae filed~ ,
beyond limitation and the High Court refused to
eondone the delay. It wae contended at the bearing of the appeal th&t tl!.e aeeond appeal wa1 tiled
(ll p9:SO] S. C.R. iSt.
~ ..
3 S.C.R.
SUPREME COURT REPORTS
765
11161
beyond the period of limitation and was not .
maintainable and that when it was dismissed as
Badri'Norayan Sinth
v ..
not maintainable the first appeal would we barred · Kamdeo Prasad Singh
by the principle of res judicata. The High Court
agreed with the contention, dismissed the second
appeal as time-barred and the first on the ground
that the judgment in the appeal by the defendants
Nos. 5 to 8 operated as res judicata. The plaintiffs
then filed two appeals to the Judicial Committee
of the Hyderabad State and, ultimately, they
were disposed of by this Court in view of Art. 374(4)
of the Constitution.
The plaintiffd had impleaded all the defendants as respondents in their first appeal to the
High Court. They had paid the full court-fee
necessary for an appeal against the dismissal of
the entire suit. Their prayer covered both the
appeals. This indicated that it was sought to be
an appeal against the dismissal of the entire suit.
It is not clear whether the common judgment
passed by the first appellate Court specifically
stated that it dismissed the plaintiffs' suit with
respect to one-third of the plot by its order allowing one appeal and dismissed the suit with respect
to the other one-third by its order allowing the
second appeal. Possibly it just said that as a
result of its finding the appeals are allowed and
the plaintiffs' suit is dismissed and that such an
order led the plaintiffs to actually file one appeal
against all the defendants and against the dismissal of the entire' suit. The prayer in the first
appeal covered the subject matter of both the
appeals. Thus the first appeal was really a con-
. solidated appeal against the decrees in both the
appel)ls and could have been split up for the pur-
. poses ofrecord into two separate appeals. This
Court itself felt that the circumstances of the case
were such that the High Court should have allowed the. benefit of s. 5 of the Limitation Act to the
appell!mt.
Raghubar Dayal J.
1961
~Uri Naroμn SU.th
Y.
X..Mo Prasad Si111h
R.,,..,_ Da)"ll ].
766
SUPREME OOURT REPORTS
[1962J
It was in these cir~umstanoes that this Court
observed, at page 757 :
. "It is now well settled that where there
has been one trial, one finding, and one decision, there need not be two appeals even
though two decrees may have been drawn
11 p."
This docs not mean that whenever there be more
than one appeal arising out of one amt, only one
appeal is competent against tho order in any of
those appeals irrespective of the fa.ct whether the
issues for decision in those appeals were all common
or some were common and others raised different
points for determination. The existence of one
finding and one decision mentioned in this observation simply contemplates the presence of common
points in all the <•ppeals and the absence of any
different point in those appeals, and consequently
of one decision on those common points in all the
appeals.
This Conrt furtl1cr obsen·ed at page 758:
"The question
of res judioata
arilies
only when these are two suits. Even when
there are two suits it ha.a been held that a decision given simult{\neously cannot be a decision in the former suit. When there is only
one suit, the queetion of res judioata docs not
arise at all and in the present case, both the
decrees are in the same case and based on
the same judgment, and the matter decided
concerns the entire suit. As such there is
no question of the application of the principle of res judicata. "
.
These observations do not apply to eaBos which are
governed by the general principles of res judicata
which rest on the principle that a judgment is conclusive reg11rding the poinbl
decided
betwoen
tho same parties and that tho parties should
not be vcx&d twice over for Lhe sa.mo cause.
We are therefore of opinion that both in view
of the facts of the case and the provision of law
•
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..
- _,,_
. -
3 S.C.R.
SUPREME COURT REPORTS
76i
applicable to that case, that case can be no guide
for determining the question before us in thi1
appeal.
It is true that both the appeals Nos. 7 and 8
before the High. Court arose out of one proceeding before the Election Tribunal. The subject
matter of each appe11l was, however, different.
The subject matter of appeal No. 7 tiled by the
appellant related to the question of his election
being bad or good, in view of the pleadings raised
before the Election Tribunal. It had nothing to
do with the question of right of respondent No. I to
be declared as duly elected candidate. The claim
on such a right is to follow the decision of the
question in appeal No. 7 in case the appe~l was
dismissed. If appeal No. 7 was allowed, the
question in appeal No. 8 would not arise for consideration. The subject matter of appeal No. 8
simply did not relate to the validity or otherwise of
the election of the appellant. It related to the
further action to be taken in case the election of
the appellant was bad, on the ground that a
Ghatwal holds an office of profit. The decision.of
the High Court in the two appeals, though stated in
one.judgment, really amounted to two d.ecisions and
not to one decision common to both the appeals. It
is true that in his appeal No. 8, the respondent No. 1
had referred to the rejection of his contention by the
.Election Tribunal about the appellant and respon·
dent No. 2 being holders of an office of pnfit. He
had to challenge the finding on this point because
if he did not succeed on it, he could not have got a
declaration in his favour when respondent No. 2
was also in the field and had secured a larger
number of votes. He could, however, rely on the
same contention in supporting the order of the
Election Tribunal setting aside the election of the
appellant and which was the subject matter of
Appeal No. 7.
This contention was considered
by the High Court in Appeal No. 7 in that context
aud it was therefore
that even though the
1961
Badri Narayatt. Si11gh
v.
K amdeo Prasad Singh
Raghubar Dqyal J.
1961
Botlri Jtu4J'lll Singh
v.
Kantd.o Prasad Singh
R•th~ar D'!1•l J.
i68
~UPREME COURT REPORTS
fHJ62)
High Court did not agree with the Election Tribunal
a.bout the appellant's committing a. corrupt prac·
tice, it confirmed the setting a.side of his election on
tho ground that ho hold an office of profit. The
finding a.bout his holding an office
of profit
served the furposo of both the appeals,. lmt merely
becauso o this tho decision of tho High Court
in each appeal cannot be eaid to bo one decision.
The High Court came to two decisions. It came to
one decision in respect of the invalidity of tho
BJ;>pellant's election in Appeal No. 7. It came to
another dcoision in Appeal No. 8 with respect to
the justification of the claim of respondent No. 1
to be decla.red as a duly elected candidate,
a,
decision which had to follow the decision that the
cleotiou of the appellant was invalid and also
the finding that respondent No. 2, as Ghatwal, waa
not a properly
nominated candidate. Wo a.re
therefore of opinion that so long as the order in the
appellant's appeal No. 7 confirming the order
settiug aside his election on the ground that he was
a holder of an office of profit under the Bihar
Government and therefore could not have bee'n a
properly nominated candidate stands, ho cannot
nuestion tbe fir.ding about his holding an office of
profit, in the present appeal, which is founded on
the contention th.,_t that finding is incorrect.
\Ve therefore accept the preliminary objection
and <lismiss the appeal with costs.
Appeal dismissed.