# DINABANDHU SAHU v. JADUMONI MANGARAJ AND OTHERS

- **Citation:** [1955] 1 S.C.R. 140
- **Court:** Supreme Court of India
- **Decided:** 1953-12-11
- **Bench:** Mehr Chand Mahajan C.J, Mukherjea, VIVIAN BosE, Bhagwati, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dinabandhu-sahu-v-jadumoni-mangaraj-and-others-348
- **Pages:** 10

## Headnote

Constitution
of
India-Article
136-Supreme Court-If and
when can interfere with findings of facts in appeal-Representati'on
of the People Act (XUI! of 1951), ss. 85, 90( 4)-Requisites and
finality of condanation of delay under s. 85 and powers conferred
thereunder-Scope and extent of powers given to an Election T ribttnal under s. 90(4).
Held, that the Supreme Court does not, when hearing appeals
under Article 136
of the Constitution,
sit as a Court of further
appeal on facts, and does not interfere with findings given on a consideration of evidence, unless they are perverse or based on no evidence and this is particularly so when the findings under challenge
are those of Election Tribunals.
The
rights
under
litigation in
election proceedings are not
common law rights but rights which owe their existence to statutes
and the extent of those rights must be determined by reference to
the statutes which create them.
The proviso to section 85 of the Representation of the People
Act,
1951,
does not contemplate the Election Commission
giving
to the respondent notice of the petition for condonation of the
delay,
or the holding of an enquiry as to the sufficiency of the
grounds in his presence before passing an order
under it.
The
policy underlying the provision is to treat the question of delay as
one between the Election
Commission and the petitioner, and to
make the decision of the Election Commission on the question final
and not open to question at any later stage of the proceedings.
Under section 90( 4) of the Act, when the petition docs not
comply with the requirements of section 81,
section 83
or section
117,
the Election Tribunal has a discretion either to dismiss it or
not, "notwithstanding anything contained
in section
85".
The
scope of the power conferred on the Election Tribunal under section 90( 4) is that it overrides the power conferred on the Election
Commission under section 85 to dismiss the petition. It does · not
extend further and include a power in the Election Tribunal to review any order passed by the Election Commission under section
85 of the Act.
The words of section 90( 4) are, "notwithstanding
anything contained in section 85" and
not
"notwithstanding anything contained in section 85
or any
order
passed thereunder".
An order of the Election Commission under section 85
dismissing
a pettnon as barred will, under the scheme of the Act, be final, and
the same result must follow under section 90( 4) when the order is
one excusing the delay.
Section 90(4) will be attracted only when
the Election Commission passes
the petitiOn on to the Tribunal
r.~
..
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-
S.C.R.
SUPREME COURT REPORTS
141
without passing any order under section 85. If the Election Com·
mission can thus pass a final order condoning delay without notice
to the respondent, there is no reason why it should not pass such
an order suo motu. In this respect, the position under the proviso
to section 85 is materially different from
that under section 5 of
the Limitation Act, under which an order excusing delay is not final
and is liable to be questioned by the respondent at a later stage.
The proviso advised! y confers on the Election Commission
wide discretion in the matter, and the obvious intention of the
Legislature was that is should be exercised with a view to do justice
to all the parties. The Election Commission might therefore be
trusted to pass the appropriate order when there is avoidable and
unreasonable delay. That a power might be liable to be abused is
no ground for denying it, when the statute confers it, and where
there is an abuse of power by statutory bodies the parties aggrieved
are not without remedies under the law.
While the proviso to section
85 requires that "the person
making the petition"
should satisfy the Election Commission that
there was sufficient cause for
delay, it does not require that he
should do so in person.
/agan Nath v. /aswant Singh ([1954] S.C.R. 892); Krishnasami
Ranikondar v. Ramsami Chettiar ( 45 I.A. 25) ;

## Text

1954
April 25.
140
SUPREME COURT REPORTS
[1955]
DINABANDHU SAHU
v.
JADUMONI MANGARAJ AND OTHERS.
[MEHR CHAND MAHAJAN C.J., MUKHERJEA, VIVIAN
BosE, BHAGWATI and VENKATARAMA AYYAR JJ.]
Constitution
of
India-Article
136-Supreme Court-If and
when can interfere with findings of facts in appeal-Representati'on
of the People Act (XUI! of 1951), ss. 85, 90( 4)-Requisites and
finality of condanation of delay under s. 85 and powers conferred
thereunder-Scope and extent of powers given to an Election T ribttnal under s. 90(4).
Held, that the Supreme Court does not, when hearing appeals
under Article 136
of the Constitution,
sit as a Court of further
appeal on facts, and does not interfere with findings given on a consideration of evidence, unless they are perverse or based on no evidence and this is particularly so when the findings under challenge
are those of Election Tribunals.
The
rights
under
litigation in
election proceedings are not
common law rights but rights which owe their existence to statutes
and the extent of those rights must be determined by reference to
the statutes which create them.
The proviso to section 85 of the Representation of the People
Act,
1951,
does not contemplate the Election Commission
giving
to the respondent notice of the petition for condonation of the
delay,
or the holding of an enquiry as to the sufficiency of the
grounds in his presence before passing an order
under it.
The
policy underlying the provision is to treat the question of delay as
one between the Election
Commission and the petitioner, and to
make the decision of the Election Commission on the question final
and not open to question at any later stage of the proceedings.
Under section 90( 4) of the Act, when the petition docs not
comply with the requirements of section 81,
section 83
or section
117,
the Election Tribunal has a discretion either to dismiss it or
not, "notwithstanding anything contained
in section
85".
The
scope of the power conferred on the Election Tribunal under section 90( 4) is that it overrides the power conferred on the Election
Commission under section 85 to dismiss the petition. It does · not
extend further and include a power in the Election Tribunal to review any order passed by the Election Commission under section
85 of the Act.
The words of section 90( 4) are, "notwithstanding
anything contained in section 85" and
not
"notwithstanding anything contained in section 85
or any
order
passed thereunder".
An order of the Election Commission under section 85
dismissing
a pettnon as barred will, under the scheme of the Act, be final, and
the same result must follow under section 90( 4) when the order is
one excusing the delay.
Section 90(4) will be attracted only when
the Election Commission passes
the petitiOn on to the Tribunal
r.~
..
-
-
-
S.C.R.
SUPREME COURT REPORTS
141
without passing any order under section 85. If the Election Com·
mission can thus pass a final order condoning delay without notice
to the respondent, there is no reason why it should not pass such
an order suo motu. In this respect, the position under the proviso
to section 85 is materially different from
that under section 5 of
the Limitation Act, under which an order excusing delay is not final
and is liable to be questioned by the respondent at a later stage.
The proviso advised! y confers on the Election Commission
wide discretion in the matter, and the obvious intention of the
Legislature was that is should be exercised with a view to do justice
to all the parties. The Election Commission might therefore be
trusted to pass the appropriate order when there is avoidable and
unreasonable delay. That a power might be liable to be abused is
no ground for denying it, when the statute confers it, and where
there is an abuse of power by statutory bodies the parties aggrieved
are not without remedies under the law.
While the proviso to section
85 requires that "the person
making the petition"
should satisfy the Election Commission that
there was sufficient cause for
delay, it does not require that he
should do so in person.
/agan Nath v. /aswant Singh ([1954] S.C.R. 892); Krishnasami
Ranikondar v. Ramsami Chettiar ( 45 I.A. 25) ; Krishna v. Chathappan ( I.L.R. 13 Mad. 269) referred to.
CIVIL
APPELLATE
JurusmcnoN: Civil
Appeal
No. 25 of 1954.
Appeal by Special Leave granted by the Supreme
Court of India by its Order dated the 11th December,
1953, from the Judgment and Order dated the 16th
November, 1953, of the Election Tribunal, Cuttack, in
Election Case No. 4 of 1952.
K. S. K. Iyengar,' (V. N. Sethi, B. K. P. Sinha,
S. B. Jathar and S. S. Shukla, with him) for the
appellant.
S. P. Sinha, (R. Patnaik and R. C. Prasad, with
him) for respondent No. 1.
J.
N. Bannerji,
(R.
Patnaik and Ratnaparkhi
Anant Govind, with him) for respondent No. 2.
1954, April 25.
The Judgment of the Court was
delivered by
VENKATARAMA AYYAR J.-This is an appeal by special leave against die order of the Election Tribunal,
Cuttack, setting aside the election of· the appellant to
the Legislative Assembly, Orissa, from the Kendrapara
1954
Dinabandhu Saha
v.
Jadumoni
Mangarqj
and Otluu.
'Dinabti~h~ Sahu
·v.
"Jadumoni
·MangO.faj
'"a"rid Others.
V•nkatarama
AyyarJ.
142
SlJPRBME G;@UR>T REPORTS.
.
.
.
. .
''" '
;
Constituency.· :F,our. • persons, . t)le: appellant, and . r~s-.
pondents Nos. 1 to 3,· wei:e duly 1 nominated .for election
to. the se~t. ·One of them, L<iknath Das (the third respondent herein), • withdrew h,is prididature, !saving the
contest to .the other three. At· the ,election which'' was
held between 9th and 15th 'January, ,, 1952, the appel-'
!ant secured the largest number .of votes and was declared
elected. · The respondent, Jadumoni Marigaraj,
then pre~nted a petition under section 81 of the Representation of the People Act, · (Act No. XLIII of 1951)
alleging various corrupt , practices on' the · p~rt of the
appellant,
and prayi!)g that the el~ction might ·.be set
aside.· The.·· last date for . presenting the petition was
4th April, 1952.
It was
delivered at the post office at
Cuttack on· 3rd Aprp, 1952, for being sent by registered 'post, and actually reached the Election Commission
at Delhi on 5th April; 1952, a day beyond , the period
, pressri):ied. It was ;i.lso defective in its verification. Sec-
.ti0n. '83(1) of the Act enacts that the. petition ;hoμld be
verified in the manner laid down in the Civil Procedure
Cqde for the. verification of the pleadings. Order Vi,
rule ·is, sub-clause (2), of the Civil Proceciure Code provides that "the person verifying shall specify by reference to the · numbered· paragraphs of the .pleading what
he verifies on ·his own knowledge and what he verifies
upon
'inform~tion received and believed to be true."
The verification in the ·petition did not speeify which of
the paragraphs were verified on personal , knowledge
and· which, on information received , and believed to be
tme. 0n 2nd July, 1952, the
Election Commission
passed an order condoning the delay in the presenta,.
tion of the
petition.
By
another
comi;1mnication,
dated 3rd July, 1952, it drew the attention of the petitioner to the defect in the verification, and suggested
that he might apply to the Tribunal for amending. it.
On 15th Jilly, 1952, :in order was passed up,der section
86
of' the
Act appointing the Election Tribunal,
Cuttack, for the hearing of the petition. The petitioner
then applied· to the Election
'.f'ribun~l for amending the
verificat\on,. That -was
ordered, and the verification
was al,llended on 24th Julyr 1952, so .. as., to conform· to
the .prescriptions laid down· in Grde.r V:I, .rule: .15(2), of
the Civil Procedure Code.
.{ .
j
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SUPREME CC!>HR'F REP0R'FS
143
· In' the· written statement filed· by the appellant; . he
raised the .-contention ·that ·as the' petition · was·
·present~
.ed out· of time and as the verification was defective; it
was liable to be ·dismissed by the ' Election Commission
under section 85 of ·the Act; and that, · ·in .consequence,
the Election; Tribunal ought . to dismiss it as not -maintainable. Disagreeing with this contention; the Election Tribunal proceeded to hear the petition· on:
the
merits, a:tid ··by its judgment dated 16th November,
1953, it held by a majority that · three of the · corrupt
practices· set: out in the· petition· had been established
agairist ·the · appellant. -They· were ( 1) that the: appellant had, in violation of section 123(1) of the - Act,
induced .. the third respondent . to . withdraw , f.ro1Il the
election on . .a· promise . to get him employment. ; . (2), that
he.had, in brnach. of -.section, 123(6) .of.the; Act, .μ~ed
Bus No. 0.R.C .. 1545 Jor co1:i.veying
tpe,, elec,:tors
to
polling· 'booths.;.and.{3) that he.• .had, .in cqnt~:i.yeption
of section 123(8) ·of the Act; obtained the. assist;mt;:<; qf
Extra. Departmental • Agents in branch .. post . ofli<:es . 11:nd
of ·Presidents of .choukidari Union. in_ can:vassiμg : for
him in the .election, they being in tJ:.!e . vie~ .. of,, .the
Election . Tribunal; Go:vernment
servants as. defined in
that provision. On these findings, the. Electiq.n . Tribunal passed an order setting aside .. Jhe election. of ~l).e
appellant, .. The matter now. comes before us :Qn .special
leave under. article 136 of the Constitution. . . " . ' '
. Jr' i~ ofo1ious that·· ·~ny one ofihe;e, .finding~;', if
ac,:cepted, would . 'be sufficient to support . the ordei' of
the Election tr1buriaL Whh reference to· the' last
of the findings, it is , podsible to ~rge' with ~brD.'t for~e
th'at · Extra · Departmental· Agents· ·· and Presidents
of
Chaukidari Union · are not; •having regard· · to· . their
functions, Governme:ht &ervants,
and that :·accordingly
there was no .contravention· of section 123(8)J But· the
position is- different as regards · the other t:Wo findings.
They · a:r'e pure· qudtioris of· fact, depending ori :appreciation 'of evidence. ' Mt. Krishnaswami t Ayyangar,;. learned
counsel . for the appellant; i . ai:gued that . . the; ; conclusions
of'fhe ·majority· were not ··justified•by 'the: .,evidence· .on
record; ' a:hd that the : :findings ·of the third -member .. in
h:l~ 1 dissentient' i ·opinion- were . the right . bnes to•. corrie- 1 to;
1954
Dinabanlihu SahN
v.
Jadumoni
.Mangaraj
and Others.
Venkatarama
AyyarJ.
1954
Din.bandhu Sahu
v.
jadumoni
Manzaraj
and Others.
V mkatarama
·A)!1ar J.
144
SUPREME COURT REPORTS
[1955]
But this Court does not, when hearing appeals under
article 136, sit as a Court of further appeal on facts,
and does not interfere with findings given on a consideration of the evidence, unless they are perverse or
based on no evidence. This is
particularly so,
when
the findings under challenge are those of Election Tribunals.
The findings
in this case that the appellant
got the third respondent to withdraw on a promise to
get him employment, and had used Bus No. O.R.C.
1545 for conveying voters
to the polling booths, are
supported by the evidence, and cannot be characterised as perverse, and are therefore not open to attack in
this appeal.
In this view, counsel for the appellant concentrated
on the issues relating to the maintainability of the
petition. He contended that as the petition was not
presented within the time as required by section 81 of
the Act, it was
liable to be dismissed under the
mandatory provision in section 85, and that when the
matter came before the Election Tribunal, its jurisdiction was only to pass the order which the Election
Commission ought to have passed,. and that the petition should accordingly . have
been dismissed in limine
as not maintainable. The proviso to section 85 of the
Act runs as follows :
"Provided
that if
a person
making the petition
satisfies the Election Commission that sufficient cause
existed for his failure to present the petition within
the period prescribed therefor, the
Election
Commission may in its discretion condone such failure."
It was in exercise of the discretion vested in it under
this provision that the Election
Commission condoned
the delay by its order dated 2nd July, 1952.
It is not
disputed that if
this order is valid, there can be no
question of dismissing · the petition on the ground of
delay. The contention of Mr. Krishnaswami Ayyangar
is that the order is not valid, because it was passed not
on any ·application of the party praying ·that the delay
might be excused but suo motu ; and such an application, it is contended, is a condition to . the exercise of
jurisdiction
under .that. proviso. , Support. · for this
. '
....
J.-
'
I
'
I
• I 1
~
i
I
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-
S.C.R.
SUPREME COURT REPORTS
145
contention was sought in the decisions under section 5
of the Limitation Act, holding that it was incumbent
on the party praying that delay might be excused under
that section to clearly allege and strictly prove the
grounds therefor. We ar.e not impressed by this contention. As was pointed out by this Court in /agan
Nath v.
/aswant Singh(1), the rights under litigation
in these proceedings
are not common law rights but
rights which owe their existence to statutes, and the
extent of those rights must be determined by reference
to the statutes which create them. The proviso to section 85 does not contemplate the Election Commission
giving to the respondent notice of the petition for condonation of the delay, or the holding of an enquiry as
to the sufficiency of the grounds in his presence before
passing an order under it. The policy underlying
the
provision is to treat the question of delay as one between the Election Commission and the petitioner, and
to make the decision of the Election Commission on
the question final and not open to question at any later
stage of the proceedings. Under section 90 ( 4) of the
Act, when the petition does not comply with the requirements of section 81, section 83 or section 117, the Election Tribunal has a discretion either to dismiss it or
not, "notwithstanding anything contained
in section
85." The scope of the power conferred on the Election
Tribunal under section 90( 4)
is that it overrides the
power conferred on the Election Commission under
section 85 to dismiss the petition. It does not extend
further and include
a power in the Election Tribunal
to review any order passed by the Election Commission
under section 85 of· the Act. The words of section 90( 4)
are, it should be marked, "notwithstanding anything
contained in section 85"
and
not "notwithstanding
anything .contained in section 85 or any order passed
thereunder." An order of the Election Commission
under section 85
dismissing a petition as
barred will,
under the scheme of the Act, be final, and the same
result must follow under section 90( 4) when the order
is one excusing the delay. Section 90( 4) will be attracted
only when the Election Commission passes the petition
(1) A.LR, 1954 .s.c .. 210.
19
1954
Dinabandhu Sahu
v.
Jadumoni
Man1araj
and Othtrs.
V1nkatarama
. Ayyar ].
1954
:D£ntlbandhu-Stihu
v.
JadUmani
'Mangaraj
and·Others.
·venkatarama
Ayyarg.
SuPREME 00.URT REPORTS
[r1955j
·on to :the 'T rjbunal' without< passing any order under seG-
:tiori ·85. · 'If the Election Commission tan thus· pass a
·final ordet condoning :delay without notice to the·· respondent, ·there'. is no reason ·'why it should not pass SuGh
·an order suo motu. · In· this ·respect; the position· under
·the proviso to section 85 is materially
different from
that under. section 5 of the Limitation Act; under which
an order· excusing delay is not final, and is liabk to be
questioned by the respondent at a
later. stage.
[ Vide
the decision of ·the l'iivy Council in Krishnasdmi· Panikondar v. Ramasdmi Ghettiar(')].
It was argued that in this view' the respondent would 'be
without remedy even .jf the EleGtion commission should
choose tO · condone delays-it might be
o~ . years-,
and that that would result ".in great )lardship.
But
the p'roviso advisedly confers on the 'Election Commission ·wide discretion in the· matter, and the 6bvicius
intention ~f the Legislature' was that it should be exercised with a view· to do justice to all the parties~ The
Election . Commission.. might therefore be
ti'.ust~d · to
pass the apprqpriate order when .. th~re is avoidable arid
unreasonable delay. That a power might be· liable · to
be abused is no ground for denying it, when the statute
cqnfers it; and where there is an · abuse of power by
statutory bodies, the parties aggrieveo are not . without
ample rimedies under the law. With
P,articul.~r
~efer
ence to the order dated. 2nd July,
1952, it ·is .difficult to
come to any "conclusion other tpan tha,t in passing 'that
order the discr<;tion up.der the proviso ''to, sectii;ih." 85
has heeii properly exercised. The petition
.h~d. been
presented at ,the post office
one" ,day earlier;. ;ind' r~ath
e<;L the' Election Commission· one day later thari the due
·date .. £vep.' if the matter ha·a .. to be judged'
urid~r· sec-
.. tiori 5 of the Limitation Act, it . would have 'been a
pr,oper e~erdse .of tqe powe~ under that: section"'to" h~ve
. excused· the delay: .. As was ~},s~rv~d ip. ~the full ):lench
decisio~ . i'n, Kris~;ia.: v. ,Cha,:J;app~~ V), .i!i' , ~}~ss~ge ·. 0~.ich
·has become daSS1c,. the words · sufficient .cause" should
. r7c~iye ';i\ ,l_iberal I ~.gns.\~~ti,on ;s,~'., a~; ,tO~ ':\l4V~p'~~;" ,su)JSt~ntial iustice . when no negligence . nor mact10n nor
·~~nt 'of bona 'fill es is
i~putable to th'e appell~n'i:" 1. We
(•) 45 I.A. 25.
(2) I.L.R. •sMad. 269: .. '
-
"
•
•v
....
> J,,,
147
have, ·tlierefo~e;' rto · he5ltai'i6ri ''in. holdihg tlfat the ·order
dated 2nd. July; 1952; 'is· on the facts". a .pfoper 'one to
pass under the' proviso to' section' 85.
' . ,.
. . . .
It ~a'.s also argued for the appellant ~hat the' .·power
conferred by the proviso' to section 85 could, Ori ifa true
construction, . be' exe'rci~ed only
when the. peti.i:iorier
moved the matter in person, and as die Election Tribunal had found that that was not done, there was no
jurisdiction in the ':Election Commission .to ' pass· the
order which it did. W ~ do not see anything . · in · the
language of . the . section to support this contention.
While ,the proviso . requires that "the person
making
the petition" should satisfy
the Election CommissiOn
that there' was sufficient cause for delay, it does. riot
require that he shquld do so in person. And there is
nothing . in the character. of the proceedings .. requiring
that the' ·petitioner should · make the representations
under that proviso ·. in. person. It is only a question of
satisfying the Election · Commission . thai:
there was
sufficient ground for excusing the delay, and that 'could
be done otherwise 'than' by the personal ·appearance of
the petitiOner, None of the objections advanced against
the validity of the order dated 2nd July, 1952, being
tenable, the contention that the petition · was liable to
be disJ11issed .. under s,ection ~5 .as. presented out .of time
must be rejected.
. . .
. . . .
.
. . ,
There ls another ground. on which also ·the .contention
of the appellant . that the petition .is' · not. maintainable
should ·fail. . When, .the election petition· came before
the .Election. Tribunal. by virtue oLthe order . under
section' 86 of the Act, the appellant moved for" its . dismissal ·under section 90 ( 4) on the grounds, firstly. that
it was not. presented . within the . time, pn:scribed by
sectio.i;i, 81, . and secondly, that.it was , not verified in
accordan()e with, section 83; ,but· the .Election Tribunal
declined to ,do. so.·. If, it. was within the .. competence· of
the Election Tribunal to pass such an order, that would
. itself, furnish a complete . an~wer to the _contention of
tlie. app~~lant. ~~~at. th~ iisdti<?n I, W~~' ' no( ip~intainable.
1'1r. Kns~naswaJ11!. ~
yy,mg~!. s,ought, . ~o, g~.~ cm::r, this
ditficul~y PY contend.mg .t.hat. the order ot the. Ele~tion
Commission sending the petition for'
hearing by the
1·954
Dinabandhu Sahu
v'
Jadumoni
'Mangarqi
. and Others.
V enkatarama
Ay;·arJ.
1954
--
Dina&andhu Sizhu
v.
Jadumoni
Mangaraj
and OthtTs.
Vmkatarama
AyyarJ.
148
SUPREME COURT REPORTS
[1955)
Election Tribunal under sectiOn 86 of the Act, was without jurisdiction, because
an order under that section
could be passed only when the petition is not liable to
be dismissed under. section 85 ·as when the ·requirements
of sections 81, 83 or 117 are complied with ; but that
when those provisions are not complied with, its only
power under that Act was to dismiss it under section
85; that, in consequence, the Election Tribunal acquired no jurisdiction to hear the petition by virtue of that
order, and that all the proceedings taken under it culminating in the order now under appeal were a nullity.
This contention is, in our judgment, wholly untenable.
The jurisdiction to pass an order under section 86 arises
"if the petition is not dismissed under section 85.''
That has reference to the factual position whether the
the petition was, in fact, dismisssed under section 85
and not to the legal position whether it was liable to be
dismissed. That is the plain meaning of the words of
the section, and that is made plainer by section 90( 4)
which provides that,
"Notwithstanding anything
contained
m
section
85, the Tribunal may dismiss an election petition which
does not comply with the provisions of section 81, section 83 or section 117."
This provision clearly contemplates that petitions
which are liable to be dismissed for non-compliance with
sections 81, 83 or 117 might not have been so dismissed, and provides that when such petitions come before
the Election Tribunal, it is a matter of discretion with
it to dismiss them or not. The power of the Election
Tribunal to condone delay in presentation or defective
verification is
thus unaffected by the consideration
whether that petition was liable to be dismissed by the
Election Commission under section 85. The effect of
an order under section 90( 4) declining to dismiss the
petition on the ground of delay or defective verification
is clearly to condone those defects.
In the instance case, with reference to the plea of limitation the position stands thus : The delay was condoned by the Election Commission under the proviso
to section 85, and by reason of that order, tlie question
'
....
/ '-
"~ { ....
-
1
,,
S.C.R.
SUPREME COURT REPORTS
149
is, as already held, no longer open to consideration at
any later stage. Even assuming for the sake of argument that the Election Commission had no jurisdiction
to pass an order of condonation suo motu, and further
accepting the finding of the Election Commission that
the order dated 2nd July, 1952, was so made, and that
it was therefore a nullity, when the matter came before
the Election Tribunal by transfer under section 86,
it
had jurisdiction to pass appropriate orders under section 90( 4), and its order declining to dismiss the petition is sufficient to condone the defect.
The
position as regards verification is slightly
different. There is no provision corresponding to the
proviso to section
85 conferring express power on the
Election Commission to permit amendment of the verification. Whether it .has inherent power to permit such
amendment, it is not necessary to decide, because when
it did not, in fact, dismiss the petition under section
85 for not complying with section 83 and passed an
order under section 86 appointing an Election Tribunal
for the hearing of the petition, the matter is thereafter
governed by section 90 ( 4) of the Act, and it is a matter
of dis.cretion with the Election Tribunal either to dismiss the petition for defective verification or not. In
the present case, the Election Tribunal directed the
verification to be amended on 24 July, 1952, and further declined to dismiss the petition under section 90( 4)
for defective verification.
These are not orders with
which this Court will interfere in appeal under article
136 of the Constitution.
The objection to the maintainability of the petition
, ~
on the ground of delay in presentation and of defective
' verification must therefore be overruled, and this appeal
dismissed with costs.
Appeal dismissed.
1954
Dinabandlw Sallu
v.
Jadumoni
Manga"1j.
and Othm.
V enkataraflUJ
AyyarJ.