# lffY 538 SUPREME COURT REPORTS (1964) VOL· BIJAYANANDA PATNAIK v. SATRUGHNA SAHU AND OTHERS

- **Citation:** [1964] 2 S.C.R. 538
- **Court:** Supreme Court of India
- **Decided:** 1962-03-28
- **Case number:** Civil Appeal No. 603 of 1962
- **Bench:** A. K. Sarkar, K. N. Wanchoo, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lffy-538-supreme-court-reports-1964-vol-bijayananda-patnaik-v-satrughna-sahu-2945
- **Pages:** 15

## Headnote

Election Pelifion-Appeal w High Court-ProctdurtWithdrawal of appeal, if pumi•1ib/e-Reprmnlation of Peopk.
.Act, .1951 (43 of 19!'JJ), s.•. J{}fJ, 110. 116-.A-Code of Civil
Procedure, 1908 (Act 5 of 1908), 0 . .\XIII, r. 1 (l).
One S filed an election petition against the appellant who
had been declared elected to the State Legislative &.embly.
The appellant applied to the Tribunal for dismissing the
petition under s. 90 (3) of the Representation of the People
Act, 1951, for noncompliance with the provisions of s. 82 of the
Act. The Tribunal accepted the application and dismissed
the election petition. Thereupon S filed an appeal under s.
116-A before the High Court. Subsequently, S applied for withdrawal of the appeal but the High Court refused to pennit
withdrawal holding that it had to be guided by the principles
of u. 109 anrl I JO of the Act ln considering the application
Cor withdrawal.
Held that S had an absolute right to withdraw the appeal
and the High Court wa• bound to grant him permission to do
so.
Section I 16-A (2) of the Act provides that "subject to the
provisions of this Act" the High Court shall, in an appeal
under the section, have the same po\vers, jurisdiction
and
authority and shall follow the ,.me procedure as if the appeal
were an appeal from an original decree passed by a Civil
Court. The words "subject to the provisions of this Act" in
sub·s. (2) mean that the provision must be an express provision
in the Act or such as arises by necessary implication from an
express provision. Accordingly ss. 109 and I 10 of the Act
which deal with the withdrawal of election petitions do not
apply to the appeal under s. I 16-A.
There is no exp!'CS'
provision in the Act <!ealing with appeals which deals with
the question of withdrawal of appeals and so the provisions
regarding withdrawal
applicable to ordinary civil appeals
before the High Court are applicable also to arpeals under
J. I 16-A. Under 0.33, r. I (1), Code or Clvl Procedure,
2 S.C.R.
SUPREME COURT REPORTS
539
an appellant has the right to withdraw his appeal uncondi·
tionally and if he makes such application the High Court has
to grant it. Therefore, when an appellant under s. 116-A
of the Act makes an application for an unconditional with·
drawal of the appeal , the High Court must grant the same.
Kalyan Singh v. Rahm ii, I.L.R. ( 190 I) 23
All. 130 ;
Kanhaya Lal v. Pratap Chand, (1931) 29 A.L,J. 232
and
Dhondo Narayan Shiralkar v. Annaji Pandurang Kokalnur,
I.L.R. (1939) Born. 66 referred to.

## Text

lffY
538 SUPREME COURT REPORTS (1964) VOL·
BIJAYANANDA PATNAIK
v.
SATRUGHNA SAHU AND OTHERS
(A. K. SARKAR, K. N. WANCHOO and
K. c. DAS GUPTA JJ.)
Election Pelifion-Appeal w High Court-ProctdurtWithdrawal of appeal, if pumi•1ib/e-Reprmnlation of Peopk.
.Act, .1951 (43 of 19!'JJ), s.•. J{}fJ, 110. 116-.A-Code of Civil
Procedure, 1908 (Act 5 of 1908), 0 . .\XIII, r. 1 (l).
One S filed an election petition against the appellant who
had been declared elected to the State Legislative &.embly.
The appellant applied to the Tribunal for dismissing the
petition under s. 90 (3) of the Representation of the People
Act, 1951, for noncompliance with the provisions of s. 82 of the
Act. The Tribunal accepted the application and dismissed
the election petition. Thereupon S filed an appeal under s.
116-A before the High Court. Subsequently, S applied for withdrawal of the appeal but the High Court refused to pennit
withdrawal holding that it had to be guided by the principles
of u. 109 anrl I JO of the Act ln considering the application
Cor withdrawal.
Held that S had an absolute right to withdraw the appeal
and the High Court wa• bound to grant him permission to do
so.
Section I 16-A (2) of the Act provides that "subject to the
provisions of this Act" the High Court shall, in an appeal
under the section, have the same po\vers, jurisdiction
and
authority and shall follow the ,.me procedure as if the appeal
were an appeal from an original decree passed by a Civil
Court. The words "subject to the provisions of this Act" in
sub·s. (2) mean that the provision must be an express provision
in the Act or such as arises by necessary implication from an
express provision. Accordingly ss. 109 and I 10 of the Act
which deal with the withdrawal of election petitions do not
apply to the appeal under s. I 16-A.
There is no exp!'CS'
provision in the Act <!ealing with appeals which deals with
the question of withdrawal of appeals and so the provisions
regarding withdrawal
applicable to ordinary civil appeals
before the High Court are applicable also to arpeals under
J. I 16-A. Under 0.33, r. I (1), Code or Clvl Procedure,
2 S.C.R.
SUPREME COURT REPORTS
539
an appellant has the right to withdraw his appeal uncondi·
tionally and if he makes such application the High Court has
to grant it. Therefore, when an appellant under s. 116-A
of the Act makes an application for an unconditional with·
drawal of the appeal , the High Court must grant the same.
Kalyan Singh v. Rahm ii, I.L.R. ( 190 I) 23
All. 130 ;
Kanhaya Lal v. Pratap Chand, (1931) 29 A.L,J. 232
and
Dhondo Narayan Shiralkar v. Annaji Pandurang Kokalnur,
I.L.R. (1939) Born. 66 referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 603 of 1962.
Appeal by special leave from the judgment
and order dated March 28, 1962, of the Orissa
High Court in Misc.
Appeal No. 112 of 1961.
M. C.
S~talvad, Ranadeb Chaudhri, M. K.
Banerjee, S.N. Andley and Rameshwar Nath,
for
the appellant.
R. Gopalakrishnan, for respondent No. 2.
1963.
March 26. The Judgment of the Court
was delivered by
WANCHOO J.-This is an appeal by special
leave against the order of the Orissa High Court.
The appellant stood for election to the Orissa
Legislative Assembly from the Choudwar consti·
tuency; in the district of Cuttack.
He was
oppos·
ed by three persons who are the respondents before
us.
The appellant was elected. Then followed
an election petition by respondent No. 1, Satru'ghna
Sahu. To this election petition, the appellant as
well as the other two candidates who had stood for
election were made opposite parties. When the
election petition came to be heard an objection was
raised before the tribunal that the petition was not
in accordance with s. 82 of the Representation of the
feople Act, 1951 (43 of 1951), (hereinafter referreq
1963
Bi}a)'Qnanda Patnait
••
Satrug%~• S~lu!
/963
BijaytJtUUJda Pa/nail;
••
SatrugA11a Sahu
?Vanchoo J.
540
SUPREME COURT REPORTS (1964] VOL.
to as the Act), and that this defect was fatal to the
petition in view of s. 90 (3) thereof.
This objection
was heard as a preliminary objection and the tribunal
came to
the
conclusion that
as the petition
was
not
framed
in
accordance with
s. 82,
the defect was fatal. It therefore dismissed the
petition.
Satrughna Sahu then appealed to the High Court
under s.1 Hi-A of the Act. This appeal was heard on
March 5 and 6, I 962, and apparently was fixed for
judgment on March 8, l!l62. On March 7, an application was filed by Satruglwa Sahu for withdrawal of
the appeal, as he did not want to prosecute it further.
It was put up for cousideration on l\Iarch 8, 1962,
and the judgment in the main appeal, which had
already been prepared for delivery, was therefore
withheld pending the disposal of the withdrawal
application. The contention on behalf of Satrughna
Sahu was that he was cnt itle<l as of right to withdraw the appeal.
He was supported in this by the
appellant but the other two respondents objected to
withdrawal and contended that Satrughna Sahu
had no absolute right to withdraw the appeal on the
analogy of 0. XX III. r. I (I) of the Code of Civil
Procedure, and that principles analogous to ss. IO!l
and I 10 of the Act applied to an application for
withdrawal of an appeal.
The High Court held
that it must be guided by the principles contained
in ss. 109 and I JO of the Act when considering an
application for withdrawal of the appeal before it.
It therefore went on to consider whether Satrughna
Sahu should be given permission to withdraw the
appeal and decided not to give him such permission.
Finally it ordered that though the prayer of the
appellant for withdrawal was rejected, the applica·
tion for withdrawal with all the counter-affidavits
filed in opposition be kept alive for the disposal of
the question of withdrawal of the election petition
by the tribunal. This order was passed on nfarcb
2 s.c.R.
SUPREME COtJR t REPOR ts
541
28, 1962, anq the High Court then proceeded to
deliver judgment in the main appeal on the same
day and the order of the election tribunal dismissing
the election petitiou was set aside, and the petition
was remanded for disposal according to law.
The appellant then made two applications for
certificates to appeal to this Court, which were dismissed.
Thereupon he filed two petitions for speeial
leave before this Court, which were allowed, and
two appeals resulted therefrom one against the j udgment of the High Court in the matter of withdrawal
application and the other in the matter of the main
appeal. The present appeal is with respect to the
withdrawal application, and the contention of the
appellant before us is two-fold. In the first place it
is urged that Satrughna Sahu who was the appellant
in the appeal before the
High
Court
had an absolute right to withdraw the appeal
on the analogy of the provision contained
in
0. XXIII, r. 1 (1),
and the High Court
wa~ in
error in holding that principles analogous to ss. 109
and llO of the Act applied to the withdrawal of an
appeal filed under s. 116-A of the Act, and therefore after the withdrawal application had been
filed there was no option to the High Court but to
permit the withdrawal. In the
second
place,
it is urged that even if the view taken by the High
Court was correct it was the duty of the High Court
to consider all the matters specified in ss. 109 and
110 of the Act and decide for itself whether the
application for withdrawal should be granted and
it was not open to the High Court to convert the
application for withdrawal of the appeal as if it
was an application for withdrawal of the election
petition and refer it to the election tribunal for
disposal.
The first question
therefore that falls for
consideration is whether Satrughna Sahu who made
1963
Bijayanonda Patnaik
v.
Satrughna Sahu
Wanchoo J.
J.163
Bijo_ ·..ia11da Patnai~
v.
S 1~rutlrr.1 Sahu
Wanth90 J.
542 SUPREME COURT REPORts tI964] vot.
the withdrawal application had an absolute right
to withdraw the appeal on the analogy of the provision contained in O.XXIII, r. I (I), and therefore
when the application for withdrawal was made in
this case the High Court was bound to allow it and
permit the withdrawal of the appeal. Section 116-A
was inserted, in the Act in 1956, and the relevant
part thereof is in these terms :-
"] 16A. Appeals against orders of Electio11
Tribunals-( 1) An appeal shall lie from every
order made by a Tribunal under section 98 or
section !l!) to the High Court of the State in
which the Tribunal is situated.
(2) The High Court shall, subject to the
provisions of this Act, have the same powers,
jurisdiction and authority, and follow the same
procedure, with respect to an appeal under
this Chapter as if the appeal were an appeal
from an origiAal decree
passed by a civil
court situated within the local limits of its civil
appellate jurisdiction :
Provided that where the High Court consists
of more than two judges every appeal under
this Chapter shall be heard by a bench of not
less than two judges.
(3) Every appeal
under this Chapter shall
be preferred within a period of thirty days
from the date of the order of the Tribunal
under section 98 or section !)!) ;
Provided that the High Court may entertain
an appeal after the expiry of the said period
of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the
appeal within such period.
(4) Where
an
appeal has
been preferred
against an order made under clause (b) of
~ S.C.R.
SUPR.ENIE COURT REPORTS
543
section 98 or section 99, the High Court may,
on sufficient cause being shown, stay operation
of the order appealed from and in such a case
the order shall be deemed never to have taken
effect under sub-section (1) of section 107, and
a copy of the stay order shall immediately be
sent by the High Court to the Election Commission and the Speaker or Chairman as the
case may be of the House of Parliament or of
the State Legislature concemed.
(5) Every appeal shall be decided as expeditiously as possible and endeavour shall be made
to determine it finally within three months
from the date on which the memorandum of
appeal is presented to the High Court.
(6) ...
"
It will be seen that the provision as to appeals is in
Chap. IVA of the Act while the subject of withdrawal and abatement of election petition is dealt with
in Chap. IV, in which ss. 109 and llO occur. Before
we deal with the powers of the High Court in the
matter of withdrawal of an appeal under s. ll6A,
we may refer to the scheme of Chap. IV, which
contains ss. 108 to 116, relating
to withdrawal
and abatement of election petitions. Section 108
provides that "an election petition may be withdrawn
only by leave of the Election Commision if an application for its withdrawal is made before any Tribunal
has been appointed for the trial of such petition."
Section 109 makes provision for withdrawal of
petitions after appointment of a tribunal, and
provides that in such a case an election petition may
be withdrawn only by leave of the tribunal. It also
provides that where an application for withdrawal
is made before the tribunal, notice thereof specifying
the date for the hearing of application shall be
given to all other parties to the petition and shall be
1963
Bij41an1nic Pctw.ik
v.
Satru:hna S.zhu
Wanchoo /,
1963
/J1ji1;ana,,,da Patr.a1A
v.
Sauughna Saf.u
1Va11clioo J.
544 SUPREME COURT REPORTS [1964] VOL.
published
in
the
official
gazette. Section ll 0
provides for procedure for withdrawal of petitions
bdurc the election commission or the tribunal, and
sub·s. (~)thereof lays down that "no application for
withdrawal shall be granted if in the opinion of the
election commission or of the tribunal, as the case
may be, such application has been induced by any
bargain or consideration which ought not to be allowed."
Sub-section
(:~) provides
that if the application for withdrawal is granted, the petitioner shall
be ordered to pay the costs of the respondents thereto·
fore incurred or such portion thereof as the tribunal
may think fit ; further notice of the withdrawal shall
be published in the oflicial gazette by the election
commission or by the tribunal, as the case may be ;
and finally any person who might himself have been
a petitioner, may within fourteen days of such publication, apply to be substituted as petitioner in place
of the party withdrawing, and upon compliance with
the conditions of s. II i as to security, shall be enti tied
to be so substituted and lo continue the proceedings
upon such terms
as
the tribunal may think fit.
Section 11 l provides for report of withdrawal by the
tribunal to the election commission.
Sections 112
to 116 deal with abatement of election petitions on
the death of a sole
petitioner -provision is made
therein for publication of the notice of abatement
in the official gazette, and s. I Hi provides that on
such notice, any person who might himself have
been a petitioner may, within fourteen
days of
such publication, apply to be substituted as petitioner
and upon compliance with the conditions of s. 117
as to security shall be entitled to be so substituted
and to continue the proceedings upon such terms
as the tribunal may think fit.
Section 116 makes
a similar provision in the case of death of a sole
respondent.
It will be seen from these provisions in Chap.
IV that the petitioner in an election petition has
J
I
I
' I
2S.C.R.
SUPREME COURT REPORTS
545
not an absolute right to withdraw it; nor has the
respondent the absolute right to withdraw from
opposing the petition in certain circumstances. The
basis for this special provision as to withdrawal or
election petitions is to be found in the well established principle that an election petition is not a matter
in which the only persons interested are candidate&
who strove against each other at the elections. The
public of the constituency also is substantially interested in it, as an election is an essential part of the
democratic process. That is why provision is made
in election law circumscribing the right of the
parties thereto to withdraw.
Another reason for
such provision is that the citizens at large have an
interest in seeing and they are justified in insisting
that all elections are fair and free and ncit vitiated
by corrupt or illegal practices. That is why pro'
vision is made for substituting any elector who might
have filed the petition in order to preserve the purity
of elections
[see Kamaraja
Nadar v.
Kunju
Thevar (')] . At the same time, though these principles are the basis of the provisions to be found in
Chap. IV of the Act, it is equally clear that but
for these provisions it may have been possible for
a petitioner to withdraw the election
petition
absolutely, Section 90 (1) provides that "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 (5 of 1908) to the trial of
suits". In view of this provision, 0. XXIII r. 1 (1)
would have applied even to an election petition
before the tribunal but for the provisions contained
in Chap. IV.
It is because the provisions of the
Code of Civil Procedure apply to election petitions
subject to the provisions of the Act and the Rules
framed thereunder that 0. XXIII, r. 1 (1) cannot
be applied to the withdrawal of election petitions in
view of ss. 108 to 111 thereof, but for these special
(!) [1959] S. C.R. 583.
1963
Bljayananda Pa,,,.;a
••
Sahwghna Sahu
Wao<hOf/,
196S
BiiaJononda PaJnaik
••
Sat1111h .. Sahu
Wa11Uioo J.
546
SUPREME COURT REPORTS [1964) VOL.
provisions, 0. XXIII, r. 1 (l) would
have been
applicable, and it is well established that that pro·
vision gives an absolute right to the plaintiff to with·
draw his suit or abandon any part of his claim.
This position with respect to withdrawal of an
election petition is not in dispute.
The question
however is whether the same position applies to the
withdrawal of an appeal and this brings us to the
consideration of the provisions of 1. I 16 A of the
Act, which we have already set out above. The
powers of the High Court in respect of an appeal
under that section arc contained in sub-s. (2), which
lays down that "the High Court shall, subject to the
provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure,
with respect to an appeal under this Chapter as if
the app@al were an appeal from an original decree
passed by a civil court situated within the local
limits of its civil appellate jurisdiction". Sub-s. (2)
therefore confers all the powers on the High Court
and enjoins upon it to follow the same procedure as
in the case of appeals from original decree in suits.
It is true that the powers of the High Court under
sub-s. (2) are subject to the provisions of the Act.
This Court had occasion to consider this matter in
T. K. GaWJi
Reddy v. M. C. Anjaneya Reddy(').
,. in connection with an argument that the High Court
had no jurisdiction to set aside the finding of the
election tribunal on questions of fact arrived at on
an appreciation of the evidence. In that connection this Court observed with respect to sub-s. (2) of
s. 116A that "it was manifest that the jurisdiction
of the High Court in the disposal of appeals
is similar to that it has in the disrosal of appeals
from original decrees.
No doubt this was subject
to the provisions of the Act and no provision has
been brought to the notice of the Court which
curtailed
that
jurisdiction.
Therefore
when
an appeal
is filed the entire case is reopened
(I) (196-0) 22 E. L. R. 261.
2 S.C.R. SUPREME COURT REPORTS
547
in the appellate
court".
Clearly,
therefore,
when sub-s. (2) says that the powers, jurisdiction
and authority of the High Court is subject to the
provisions of the Act, it means that the provision
must be an ex:press provision in the Act or such as
arises by necessary implication from aa express pro·
vision. One such express provision is to be found
in the proviso to sub-s. (2) of s. 116A, which lays
down that "where the High Court consists of more
than two judges, every appeal under this Chapter
shall be heard by a bench of not less than two
judges." Another express provision is to be found
in sub-s. (4) which gives express power to the High
Court to stay the operation of the order appealed
from and provides that where such a stay order is
made, the order appealed from shall be deemed
never to have taken effect under sub-s. (1) of s. 107.
Again sub-s. ( 5) enjoins on the High Court to decide
the appeal as expeditiously as possible with a direction that it shall be determined finally within three
months as far as possible.
There is, however, no
express provision in Chap. IV -A dealing with ap·
peals, which deals with the question of withdrawal
of appeals under that Chapter. Nor do we think
that ss. 109 and 110 necessarily imply that an appeal
also cannot be withdrawn as a matter of right,
unless the procedure laid down in those sections is
followed.
One reason for this view may at once be
stated. The losing party is not bound to file an
appeal and if. he does not, nobody else has the
right to do so.
The object
apparently is that the
election petition filed should, if any voter so desire,
be heard and decided. The !ections dealing with
substitution on death of the petitioner lead to that
view: see ss. 112-115. There is no such provision
for appeals. It seems to us that if Parliament
intended that the provisions of ss. I 09 and 110 which
deal with withdrawal of election petitions before a
tribunal shall also apply to withdrawal of appeals
before the High Court under Chap. IV-A an express
1969
Bijay.,,anda Pat .. il:
••
SaJrvghn• G"'"'
w ...... 1.
1963
11Ua JlllWlda Pahlaik
••
SarughM SaJru
Wan1kto J.
548 SUPREME COURT REPORTS [1964) VOL.
provision could have been easily made to that effect
ms. 116-A by adding a suitable provision in the
section that the provisions of ss. IO!l and 110 would
apply to withdrawal of appeals
before the High
Court as they apply to withdrawal 9f election petitions before the tribunal. lu the absence of such a
provision in Chap. IV-A, we do not think that the
High Court was right in importing the principles
of as. 109 and 110 in the matter of withdrawal of
appeals before the High Court. So far therefore as
the question of withdrawal of appeals before the High
Court under Chapter IV-A is concerned, it seems to
us that the High Court has the same powers, jurisdiction and authority in the matter of withdrawal as it
would have in the matter of withdrawal of an appeal
from
an original decree passed by a civil court
within the local limits of its civil appellate jurisdiction without any limitation on such powers because
of ss. 109 and I 10.
The High Court thus has the
same powers, jurisdiction and authority and has to
follow the same procedure in the matter of withdrawal of appeals under s. 116-A as in the matter of an
appeal from an original decree before it, and there
is no warrant for importing any limitation in the
matter on the analogy of ss. lO!l and 110 of the
Act, which expressly deal only with election petitions
and not with appeals under s. 116-A.
Let us therefore see what powers the High
Court has in the matter of withdrawal of an appeal
from an original decree before it and what procedure
it has to follow in that behalf. The pro\'isions in
the Code relating to withdrawal of suits 2re to
be found
in O.XXIII, r. I. Sub-rule (1) thereof
lays down that at any time after the institution of a
suit the plaintiff may. as against all or any of the defendants, withdraw his suit or abandon part of his claims.
Sub-rule (2) provides that "where the Court is satisfied (a) that a suit must fail by reason of some formal
defect, or (b) that there are other sufficient grounds
2 S.C.R.
SUPREME COURT REPORTS
549
for allowing the plaintiff to institute a fresh suit
for the subject-matter of a suit or part of a claim, it
may, on such terms as it thinks fit, grant the plaintiff
permission to withdraw from such suit or abandon
such part of a claim with liberty to institute a fresh
suit in respect of the subject-matter of such suit or
such part of a claim." We have already said that
sub-rule (1) gives absolute power to the plaintiff to
withdraw his suit or abandon part of his claim
against all or any of the defendants, and where an
application for withdrawal of a suit is made under
O.XXIII,
r. 1 (1), the Court has to allow that
application and the . suit stands withdrawn. It
is only under sub-rule (2) where a suit is not being
withdrawn absolutely but is being withdrawn on
condition that the plaintiff may be permitted to
institute a fresh suit for the same subject-matter that
the permission of the court for such withdrawal is
necessary.
The provisions of O.XXIII r. 1 (l) and
(3) also apply in the same manner to withdrawal of
appeals. In. Kalycm Singh v. Rahmu (1), it was held
that
where
no
objection
had
been
filed
by the
respondent,
the appellant
had
an
absolute right to withdraw his appeal at any time before judgment.
This view was followed by the
Allahabad
High
Court
in Kanhaya Lal
v.
Partap Chand (2), where it was held that having
regard to 0. XXIII, r. 1 (1) and s. 107 (2) of the
Code of Civil Procedure, where no cross-objection
has been filed by the respondent, an appellant has the
right to withdarw his appeal unconditionally, his
only liability being to pay costs. In Dhondo Narayan
Shiralkar v. Annaji Pandurang Kokatnur ('), it was
held that "an appellant is entitled as of right to
withdraw his appeal, provided the respondent has not
acquired any interest thereunder". There was however difference between the Allahabad and Bombay
High Courts as to whet)ler s. 107 (2) of the Code of
the Civil Procedure would help an appellant in such
a case. It is unnecessary for our present purpose to
(I) I.L.R. (1901) 23 All. 130.
(2) (1931) 29 A,L.J. 232,
(SJ I.L.R, (\9~9) Bom, 66,
1963
Bijayananda Patnaik
v.
Satrughtia Y•h•
w .. o1i .. r.
1961
BUaJanonU Pal111ill
••
it1 1ru1lr11• Salt•
w...i .. 1.
550 SUPREME COURT REPORTS (1964] VOL.
decide whether the absolute right of the appellant to
withdraw an appeal unconditionally flows from
i. 107 (2) or is an inherent right of the appellant
on the analogy of 0, XXIII r. 1 (1).
But there can
be no doubt that au appellant has the right to withdraw hi! appeal unconditionally and if he makes
such an application to the court, it has to grant it.
The difficulty arising out of any cross-objection under
which the respondent might have acquired an interest
as pointed out by the Bombay High Court, no longer
remains in veiw of 0. XLI r. 22 (4), which now
permits the cross-objectiou to be heard even though
the appeal is withdrawn. Therefore when the High
Court is hearing an appeal from an original decree
and an application is made to it to withdrew the
appeal unconditionally, it must permit such withdrawal subject to costs and has no power to say that
it will not permit the appeal to be withdrawn and
will go on with the hearing of the appeal.
The
power of the High Court under s. l l 6A (2) when
hearing an appeal from an election petition is the·
same as its power when hearing an appeal from an
original decree, and the procedure is also the same,
for there is no express rrovision to the contrary in the
matter of withdrawa of an appeal
in the Act.
Therefore when an appellant under s. 116-A makes
an application for an unconditional withdrawal of
the appeal, the power of the High Court, consistently
with its power in an appeal from an original decree,
is to allow such withdrawal, and it cannot say that
it will not permit the appeal to be withdrawn. We
arc therefore of opinion that the High Court was in
error in importing the principles of 91, I 09 and 110
of the Act which deal only with the withdrawal of
election petitions and not with the withdrawal or
appeals.
It has been urged that in this view an appeal
may be withdrawn even where withdrawal haa been
induced by bargain or consideration which ought not
-
2 S.C.R.
SUPREME COURT REPORTS
551
be allowed and this would interfere with purity
of elections.
As the statute stands it seems that the
intention was that the provisions about withdrawal
and abatement would apply to a petition only when
it is either before the commission or the tribunal. It
may have been intended that only one proceeding
should be specially provided for and that would
ensure the purity of elections. If it was intended
that ss. 109 and llO should also apply to an appeal
for which provision was made bys. 116-A, that intention has not been given effect to by proper language.
In any case, the position is not the same when an
appeal is being withdrawn for generally speaking at
that stage a trial has taken place before the tribunal
which would ordinarily safeguard such purity. We
therefore see no reason to import the principles of
ss. 109 and 110 into withdrawal of appeals on this
ground.
·
We are, therefore, of op1mon that the High
Court should have allowed the application for unconditional withdrawal made by Satrughna Sahu, the
appellant before it. Further the High Court in this
connection rn~ed not have referred to the affidavits
filed on behalf of the other two defeated candidates
before it, for such affidavits were irrelevant, if
Satrughna Sahu, the appellant before the High Court,
was entitled to withdraw the appeal unconditionally
and the
High
Court
could
not refuse such
withdrawal.
In the view we have taken on the first question
raised before us, it is not necessary to deal with the
second question, though we may add that as at
present advised it seems to us that the High Court
was in error in treating the application for withdrawal of the appeal as if it were an application for
withdrawal of an election petition under s. 109 and
referring the matter to the election tribunal. Even if
the High Court had power to refuse an application
1963
Bijoyananda Paln•ik
v.
Satrughna S•hr.
Wliln&hn /.
1963
8ijayt111011da Pot11ait
v.
Ga1,.,glina Sa/w
w ...... J.
19/JJ
M.,<11 11
552 SUPREME COURT REPORTS [1!164] VOL.
for withdrawal of an appeal, the proper course for
the High Court would be to consider all that is
required bys. 110 itself. However in view of our
decision on the first question we need not pursue the
point further.
We, therefore, allow the appeal, set side the order
of the High Court and in view of the unconditional
application for withdrawal made by Satrughna Sahu,
the appellant before the High Court, order that the
appeal before the High Court should stand withdrawn. In the circumstances we pass no order as to
costs.
Appeal allowed.
SMT. SRILEKHA BANERJEE AND OTHERS
v.
COMMISSIONER OF INCOME-TAX,
BIHAR AND ORISSA
(S.K. DAS, A.K. SARKAR and M. HIDAYATUJ,LA.H JJ.)
[1\COl1\t
Tax-Sale of high denominalio1' notts-Sale
procud•, if liable
to tax-Indian
Incomeo-ta~ Act, 1922
(11 of 1922).
The asscssee had encashed 51 high denomination note• of
R1. 1,000/- each injanuary, 1946. The assessee'• explanation
in his application for encashment of the notes was that he '"1.'.U
a colliery proprietor and contractor, that for conducting the
buainess and for payment to labour which came tc a!,out
Rs.30,000/-to 4-0,000/- every week he had to keep large sums of
money to meet emergency and that the sum of R.. 5r ,000/ -
realised by cncashment of the notes wa• neither profit nor part
of profit but was floating capit~l for.the purpose of.condu.liaJ
business. The Income-tax Officer did not accept thu explanation and treated this amount •• profit from 10me undisclosed