# The ll.rst respdl:tdent filed an election petition against tht!' • • • Jakati v. Borkar Kapur ]. •

- **Citation:** [1959] 1 S.C.R. 1403
- **Court:** Supreme Court of India
- **Decided:** 1958-05-13
- **Case number:** Civil Appeal No. Prasanni & Others 409 of 1958
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-ll-rst-respdl-tdent-filed-an-election-petition-against-tht-jakati-v-borkar-1567
- **Pages:** 22

## Headnote

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S.C.R. •
~UPREJ\j:E COURT REPORT.S
1403
alienation Coples to an end. (2) Where the right, title
and interest of a judgm;nt-cfebtor are set up for sale
as to what passes to the auction-purchaser is a question of fact in each case dependent upon what was the
estate put up for sale, what the Court intended to
sell .and what the purchaser intended to b~ and
did buy and what he paid for. (3) The
words
" right, title and interest" occurring in s. 155 of the
Bombay Land Revenue Code have the same connotation a,s they had in the corresponding words used in
the Code of Civil Procedure existing at the time the
Bombay Land Revenue Code was enacted. (4) In
execution proceedings it is not necessary to implead the
sons or to bring another suit if severance of status
t.jtkes place pending the execution proceedings because
the pious duty of the sons continues and consequently
there is merely a difference in the mode of enjoyment
of the property. (5) The liability of a father, who is a
managing director and who draws a salary or ·a
_remuneratiou, incurred as a result of negligence in the
discharge of his duties is not an avyavaharilca debt ·as
it cannot be termed as" repugnant to good morals".
In th
0e result the appeal fails and is dismissed with
<lo~ts.
•
SINHA J.-I agree to the order proposed.
'
Appeal dismissed.
•
SRI BARU RAM
•
v.
SHRIMATI PRASANNI & OTHERS
(VENKATARAMA AIYAR, GAJENDRAGADKAR
and A. K. SARKAR JJ.).
Ele~ion Petition-Cor'rupt practice-Procuring• assistance of
Government servant by appointing as polling agent-Proof-Nomination paper, rejection of-Failure to produce copy of electoral roll
-If rejection improper-Representation of th, PcoPie Act, r99 (43
of r95r), ss. 2(c), 33, 36, 46 and r23(7).
•
The ll.rst respdl:tdent filed an election petition against tht!'
..
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Jakati
v.
Borkar
Kapur ].
•
Sinha J.
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September 30.
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1404
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SUPREME COURT R~PORT~ • [1959]
appellant on the grounds: (i) that he comr~i!Jed the corrupt.
practice spedf1ecl ins. 123(7) or the'Representat10n of the People
Sri /Jaru Ram
Act, 1951 inasmuch as he h~cl obtained the assistance of one
v.
P, a member of the armed forces, who hacl acted as his polling
Shrimati
agent, and (ii) that the nomination of one .J hacl be•n improperly
Pra<an>1i 6· Othm rejected by returning officer.
The election tribunal held that
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the com1pt practice was not provecl but that the nomination of
J had been improperly n:jectcd and consequently it declared the
election of the appellant to be voicl.
On appc:al the High Court
held that the nomination of J was not improperly rejected but
that the corrupt practice alleged was established anti dismissed
the appeal.
The High Court found rhat I' had signed the form
appointing him as the appellant's polling agent and had prcscntccl it before the presiding oflicc:r. that P was seen at the polling
booth and that the scribe who wrote this form had also written
the form by which the appellant hacl appointed another polling
agent.
From these circumstances the 1-ligh Court drc\Y the
inference that the appellant hail appointed P as his pollin•
agent and had in fact signed the form in token of such appointment.
With respect to the rejection of the nomination of .J
the High Court held that .J was a voter in a different constituency ancl that he hacl failed to produce a copy of the electoral
roll \\•hen he presented the nomination paper, nor
\\";:15 it procluccd at the time of the scrutiny or within the t,ime given by
the returning officer and that consequently the nornination•
was properly rejected.
l/c'!cl, that to establish that the appellant was guilly of the
corrupt practice charged it \\·as.not sufficient to shO\\. that P haQ
actecl as his polling agent hut it must also be proYcrl that fhe
appellant had appointee\ P as his polling agent. This fact the
tir;t responden~ ha<l failed to pro\'c by any legal el'idcncc. The
facts and circumstances found by the High Court did not inevitably lead to the con

## Text

_Characters 0–39,735 of 52,308. This is a partial read: ask again with offset=39735 for what follows._

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S.C.R. •
~UPREJ\j:E COURT REPORT.S
1403
alienation Coples to an end. (2) Where the right, title
and interest of a judgm;nt-cfebtor are set up for sale
as to what passes to the auction-purchaser is a question of fact in each case dependent upon what was the
estate put up for sale, what the Court intended to
sell .and what the purchaser intended to b~ and
did buy and what he paid for. (3) The
words
" right, title and interest" occurring in s. 155 of the
Bombay Land Revenue Code have the same connotation a,s they had in the corresponding words used in
the Code of Civil Procedure existing at the time the
Bombay Land Revenue Code was enacted. (4) In
execution proceedings it is not necessary to implead the
sons or to bring another suit if severance of status
t.jtkes place pending the execution proceedings because
the pious duty of the sons continues and consequently
there is merely a difference in the mode of enjoyment
of the property. (5) The liability of a father, who is a
managing director and who draws a salary or ·a
_remuneratiou, incurred as a result of negligence in the
discharge of his duties is not an avyavaharilca debt ·as
it cannot be termed as" repugnant to good morals".
In th
0e result the appeal fails and is dismissed with
<lo~ts.
•
SINHA J.-I agree to the order proposed.
'
Appeal dismissed.
•
SRI BARU RAM
•
v.
SHRIMATI PRASANNI & OTHERS
(VENKATARAMA AIYAR, GAJENDRAGADKAR
and A. K. SARKAR JJ.).
Ele~ion Petition-Cor'rupt practice-Procuring• assistance of
Government servant by appointing as polling agent-Proof-Nomination paper, rejection of-Failure to produce copy of electoral roll
-If rejection improper-Representation of th, PcoPie Act, r99 (43
of r95r), ss. 2(c), 33, 36, 46 and r23(7).
•
The ll.rst respdl:tdent filed an election petition against tht!'
..
•
•
•
Jakati
v.
Borkar
Kapur ].
•
Sinha J.
•
•
September 30.
• •
•
. .
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•
1404
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SUPREME COURT R~PORT~ • [1959]
appellant on the grounds: (i) that he comr~i!Jed the corrupt.
practice spedf1ecl ins. 123(7) or the'Representat10n of the People
Sri /Jaru Ram
Act, 1951 inasmuch as he h~cl obtained the assistance of one
v.
P, a member of the armed forces, who hacl acted as his polling
Shrimati
agent, and (ii) that the nomination of one .J hacl be•n improperly
Pra<an>1i 6· Othm rejected by returning officer.
The election tribunal held that
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the com1pt practice was not provecl but that the nomination of
J had been improperly n:jectcd and consequently it declared the
election of the appellant to be voicl.
On appc:al the High Court
held that the nomination of J was not improperly rejected but
that the corrupt practice alleged was established anti dismissed
the appeal.
The High Court found rhat I' had signed the form
appointing him as the appellant's polling agent and had prcscntccl it before the presiding oflicc:r. that P was seen at the polling
booth and that the scribe who wrote this form had also written
the form by which the appellant hacl appointed another polling
agent.
From these circumstances the 1-ligh Court drc\Y the
inference that the appellant hail appointed P as his pollin•
agent and had in fact signed the form in token of such appointment.
With respect to the rejection of the nomination of .J
the High Court held that .J was a voter in a different constituency ancl that he hacl failed to produce a copy of the electoral
roll \\•hen he presented the nomination paper, nor
\\";:15 it procluccd at the time of the scrutiny or within the t,ime given by
the returning officer and that consequently the nornination•
was properly rejected.
l/c'!cl, that to establish that the appellant was guilly of the
corrupt practice charged it \\·as.not sufficient to shO\\. that P haQ
actecl as his polling agent hut it must also be proYcrl that fhe
appellant had appointee\ P as his polling agent. This fact the
tir;t responden~ ha<l failed to pro\'c by any legal el'idcncc. The
facts and circumstances found by the High Court did not inevitably lead to the conclusion that the appellant had signed the
form and hence such an inference could not ht! dra\\·n .
Held, further, that the nomination of J was not improperly
rejected..
\Vhcrc a candidate i~ au elector of a differr.pt consti·
tucncy he ha.s to prove that fact in the n1anncr prescribed by
s. J.'!(S) hy the production of a copy of the electoral roll of tllat
constituency or of the relevant part thereof or of a certifiod copy
of the relr.vant entries thereof.
In the present c:ase there \\'as
failure on the part of J to comply with s .B(5) an<l his nomination was properly rejected un<ler s. J6(2)(b).
The failure to
comply \\'ith s. 33(5) is not a defect of an un~ubstantial character
so as to attracl the application of s.•30(4).
\\'hrn the. 'tatute
requires specific facts to he proved in a spc~iflc \\'a~· and it al~o
provides for the consequences of non.compliance \\·1th the sa1el
requirement the application of the penalty c:laust' cannot be
resistt-d on the- groul1d that such application is basecl on a
technical af!Proach.
•
jaga" Nath v. ]aS<cw1t Si11gh, [1954] 5'.C.R. 89i; l\atlan
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S.C.R. ,
~UPRE1',:E COURT REPORT.S
1405
Anmol Singh v. ;ltma Ram, [r955] S.C.R. 48r and Pratap Singh
v. Shri Krishna (;upta, A.I.R.'r95tt S.C. r40, referred to.
Sri Baru Ram
Mohan Reddy v. Neelagiri Mur.,;lidhar Rao, A.LR. r958 A.P.
v.
485, not approved.
Shrimati
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. Prasanni & Others
409 of 1958.
•
Appeal by special leave from the judgment and
order dated May 13, 1958, of the Punjab High Court
at Chandigarh in :First Appeal from Order No. 24 of
1958.·
C. B. Aggarwala and Naunit Lal, for the appellant.
II. S. Doabia, K. R. Chaudhury and M. K. Ramamurty, for the respondent No. 1.
• 1958. September 30. The Judgment of the Court
was delivered by
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GAJENDRAGADKAR J.-This appeal by special leaveGajendragadkar J.
has been filed against the decision of the Punjab High
.Court confi=ing the order passed by the Election
Tribunal by which the appellant's election has been
declared to be void. The appellant Shri Baru Ram
was elected to the Punjab Legislative Assembly from
th~ Rajaund constituency •in the Kamal District.
Initially seventeen candidates had filed their nomination papers in this constituency. Out ~f these candidates, thirteen withdrew and the nomination paper
filed by Jai Bhagawan was rejected by the returning
officer. That left three candidates in the field.
They
were the appellant Baru Ram, Mrs. Prasanni and
Harkesh: respondents 1 and 2 respectively. The poll.
infl took place on March 14, 1957, and the result was
declared the next day. Since the appellant had secured the largest number of votes he was declared duly
elected. Soon thereafter Mrs. Prasanni, respondent 1,
filed an election petition in which she all!lged that the
appell:wit had committJed several corrupt practices and
claimed a declaration that his election was void. The
appellant denied all the allegations made by respondent 1. The election tribunal first fritmed, six preliminary issues and after they were decided,
0it raised
twenty -nine issutls on the merits. The tribunal was not,-
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1406
SUPREME COUitT H.,EPOHT~ , (11159]
satisfied with the evidence adduced by'r1;spondcnt I to
lirovc her allegations in r(~srie~t. of the corrupt practices
Sri Ban• Rani
v.
committed by the appelktnl and so it recorded findings
Sh•imati
ag:1inst respondent I on all the issues in regard to the
Prasanni & Others said corrupt practices. Respondent I had also cha!.
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lengecl the validity of the appellant's election 011 the
Ga1cndragadkar J. ground that t.he returning officer had improperly
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rejected the nomination j><tper of Jai Bhagawan. This
point was upheld by the election tribunal with the
result that the appelbnt's election was declared .to be
void.
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The appellant then preferred an apJ.leal to the
Punjab High Court.
He urged before the High Court
that the election tribunal was in error in coming to the
conclrn;ion that the nomination paper of Jai BhagawaJI
had been improperly rejected.
This contention was
aceepted by the High Court and the finding of the
tribunal on the point w11s reversed.
Hespondent 1
sought to support the order oft he election tribunal on
the ground that the tribunal was not. justiJ].cd in holding that the appellant was not guilty of a corrupt
practice under s. 123(7)(e). This argument was also
accepted by the High Court and it was held that the
appellant was in fact guiny of the said alleged corr!lpt
practice. In the result, though the appellant succeeded
in effectivclr d1allenging the only finding recorded by
the tribunal against him, his appeal was not allowed
bec:ause another finding which was made by the tribunal in favour of the appellant was also reversed by the
High Court. That is why the order passed by tlie
tribunal declaring the appellant's election to' be void
w&~ confirmed though on a different ground.
I~ is
this order which is challenged before us hy Mr.
Aggarwal on behalf of the appellant and both the
points decided by the High Court are raised before us
by the partie?.
·
At the h{,aring of the appeal Mr. Doabia ~ise<l .a
preliminary objection. He contends that the present
appeal has been preforred beyoncl time and should be
rejected on ~hat ground alone.
The judgment under
appeal was·dcliv1ffed on lllay 13, 1958, irnd the petition
•for leave to appeal under Art. 136 of 'the Constitution
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S.C.R. • .SUPREME COURT REPORTS
1407
has been file<J "in this c._mrt,on September 2, 1958. It
1958
is common ground that the appellant had applied for
Sri Baru Ram
leave to the Punjab High Coutt on June 9, 1958, and
v.
his application was dismiRsed on August 22, 1958. If
sh,imati
the time occupied by the appellant's application for Prasanni & Others
leav<1 is taken into account, his appeal would' be in
.
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time; on the other hand, if the said period is not taken Ga;endragadkar J.
into account, his application would be beyond time.
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Mr. Doabia argues that the proceedings taken on an
electipn petition are not civil proceedings and so an
application for leave under Art. 133 of the Constitution
was incompetent; the time taken in the disposal of
the said application cannot therefore be taken into
account in computing the period of limitation. On the
00ther hand, Mr. Aggarwal urges that s. 116A (2) of the
Representation of the People Act (43 of 1951) (hereinafter called the Act) specifically provides that the
High Court, in hearing an appeal presented to it shall
have the same powers, jurisdiction and authority and
follow the sa.me procedure with respect to the said
appeal as if it were an appeal from an original decree
passed by a civil court situated within the local limits
of its ci'vil appellate jurisdiction. The result of this
pr-"vision is to assimilate the election proceedings
coming before the High Court in appeal to civil proceedings as contemplated by Art. 133 of th.e Constitution and so, according to him, it was not only open to
the appella.nt but it was obligatory on him to make an
application for leave to the Punjab High Court under
the said :i-rticle. That is why the time occupied by
the said proceedings in the Punjab High Court must
be .excluded in deciding the question of limitation. We
do noll propose to deal with the merits of these contentions. It is not seriously dispu'ted by Mr. Doabia that
parties aggrieved by orders passed by High Courts in
appeals under s. 116A of the Act generally apply for
leave U1'der Art. 133 artd in fact such applications are
entertained and considered on the merits by them. It
is true that Mr. Doabia's argument is that this practice
is erroneous and that Art. 133 has n1> application• to
the appellate decision of the High Court mider s. 116A
.
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1408
SUPRE:IIE COURT REPORTS, , [1959)
195 1
of the Act.
Assuming th<it Jl.lj. Doabia ij; right, it is
clear that the appellant has mcrel.1· followed the
Sri Rc1111 Rllm
v.
general pract.ice in
thi~ matter when he applied for
54,;,.,1;
lea.Ye to the Punjab High Court; his application was
h•s••rni <S· Othm entertained, con8idercd on the merits and rejected by
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the l:l~h Court. Under these circumstances we t.hink
Ga;end•agadh"' J. that even if we were to hold that Art. 133 has no
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application, we would unhesitatingly have excused the
delay made in the presentation of the appeal; and so we
do not think we can throw out the appeal in ljmine
on the ground of limitation. If neccssn.ry we would
excuse the delay alleged to have been made in presenting this appeal.
On the merits, :\Ir. Aggarwal contends that the finding of the High Court that the appellant has COIJ\,-
mitted .a corrupt practice under 8. 123(7)(c) is not
support~d by any eddence.
Before deiding with
this argument it would be relevant to consider the
legal position in the matter. Corrupt practice as
defined in s. 2(c) of the Act means "any.of the prae-.
ticc8 specified in s. 123 ".
Section 12:J(7)(c) provides
inter alia that the obtaining or procuring or a.betting
or attempting t-0 obtain or proeure by a candid"a.te any
assistance other than giving of vote for the furtherance of the prospects of that candidate's election from
any person in the scnicc of the Government and who
is 1L member of the armed forces of the Union, is a
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corrupt practice. The case against the appellant a.s
s<'t out by respondent 1 in her election petition on this
point is that the appellant secured the assistance of
Puran Singh who is a member of the armed "forces of
the Union.
It was alleged that Puran Singh "a~ti
vely canvassed for the appellant on '.\larch 1'lth to
13th, Hl57, in his village and so much HO that he subsequently 8erved as his polling agent a.t polling booth
~o. 15 at village Kotra on .March 14, 1957 ". Both
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the tribunal and the High Com't are agreed inJ1olding
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that it had nut been proved that Puran Singh actively
canvassed for the appellant on '.\larch 11th to l:~th as
all<-ged by respondent I. They have, however, diffored on the' q'uestion as to whether the appellant had
·appointed Puran Singh as his pollin"g a.gen£ for tho
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S.C.R. • .SUPREME COURT REPOR'PS
1409
polling boot.Ii. "in question .• It would thus be seen
that the point which falls for our decision in the Sri Baru Ram
present appeal lies within It very narrow compass.
v.
Did the appellant secure the assistance of Puran
Shrimati
Singh by appointing him as his polling agent? Going Prn>anni & Others
back to s. 123, explanation (2) to the said secfam pro-
.
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vides that "for the purpose of cl. (7) a person shall be Ga;endragadkar J .
deemed to assist in the furtherance of the prospects
'
of a candidate for election if he acts as an election
agent or polling agent or a counting agent of that
candidate". In other words, the effect of explanation (2) is that once it is shown that Puran Singh had
acted as polling agent of the appellant, it would follow
that the appellant had committed a corrupt practice
vnder s. 123(7)(c). But it is important to bear in mind
that before such a conclusion is drawn the provisions
of s. 46 of the Act must be taken into account. Section 46 authorises a contesting candidate to appoint
in the prescribed manner such nnmber of agents and
.relief agentil as may be prescribed to act as polling
agents of such candidate at each polling station
provided under s. 25 or at the place fixed under subs. (1) of s. 29 for the poll .• There can be no doubt
t'hM, when explanation (2) to s. 123 refers to a person
acting as a polling agent of a candidate, it contemplates the· action of the polling• agent who is
duly appointed in that behalf by the candidate under
s. 46. It is only when it is shown that a person has
been appointed a polling agent by the candidate and
has in CIJnsequence acted as such agent for the said
candidate that explanation (2) would come into operatiq,n,
If, without being appointed as a polling agtmt
by thll candidate, a person fraudulently, or without
authority, manages to act as the polling agent of the
said candidate, explanation (2) would not apply. Tha_t
being the true legal position the short. point which
arises fM our decision 'is whether the appellant had
appointed Puran Singh as his polling agent and
whether Puran Singh acted as such polling agent at
the polling booth No. 15 at Kotra.
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What ihen are the facts held proved l:ly "the High
Court in support· of its conclusion against the appellant•
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SUPREME COURT REPORTS. • [1959]
r958
under s. 123(7)(c)?
The fjrst ,point wh~h impressed
the High Court iH in respect of the writing by which
Sri Uarl4 Ram
ll
v.
the appellant is a eged tll have appointed Puran Singh
Shrimati
as his polling agent. The printed prescribed forms were
Prasanni <>- Others not available to the candidates and so they had to copy
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the prescribed form for the purpose of appointing their
Gajrndragadkar J. polling agents.
This position is not disputed. The
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form by which Puran Singh is alleged t.-0 have been
appointed the appellant's polling agent contains a
glaring mistake in that while reciting that the polling
agent agreed to act as such polling agent the form
says" 1 agree to act. as such following agent" (P. W.
48/1). The same glaring mistake is to be found in the
form by which the appellant admittedly appointed
Pal Chand to act as his polling agent at the samw
polling booth.
The High Court thought that the
identity of this glaring mistake in both the forms
coupled with the similarity of the handwriting of the
rest of the writing in them showed that the two forms
must have been written by the s:une scribe. This is.
a finding of fact and it may be accepted as correct for
the purpose of our decision. It would, howm·er, be rclc.
vant t-0 add that it is not at all clear from the" record
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that the same scribe may not have written simitar
forms for other candidates as well.
There is no evidence to show that the scribe who made this glaring
mistake had been em ployed as his own scribe by the
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appellant.
The High Conrt was also disposed to take the view
that Puran Singh in fact had acted as th~ polling
agent on the day of tho election at the said polling
booth. Respondent I had examined herHelf in suppQrt
of this plea and Banwari Lal whom she examined
supported her in that behalf. The tribunal was not.
impressed by the e\·idence of these two witnesses; and
it has given reasons for not accepting their evidence
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as true or reliable. It is unneces~ary to emphasi~c that,
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in deitling with an appeal under s. ll6A of the Act,
High Courts should normally attach importance to tho
findtngs of fa.ct rooorded by the tribunal when the said
findings rtlsf solely on the appreciation of oral 9vidence.
°'rhe judgment of the High Court docs not show that
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S.C.R. • ~UPREl\lE COURT REPORT.S
1411
the High Cow-t" definite~ ac.cepted the evidence of the
two witnesses as reliable; in dealing with the question
Sri Baru Ram
the High Court has referred to this evidence without
•.
expressly stating whether the evidence was accepted
Shdmati
or not; but it may be assumed that the High Court P•asanni.;;. Others
was -disposed to accept that evidence. In this @onnec-
.
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tion, we would like to add that it is difficult to under- Ga1endragadkar J.
stand why the High Court did not accept the criticism
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made by the tribunal against these two witnesses. If
we consider the verifications made by respondent 1 in
regard to the material allegations on this point both in
her petition and in her replication, it would appear
that she had made them on information received and
not as a result of personal knowledge; that being so,
it is not easy to accept her present claim that she saw
Puran Singh working as polling agent; but apart from
this consideration, the evidence of respondent 1, even
if believed, does not show that Puran Singh was working as a polling agent of the appellant; and the state0 ment of BaRwari Lal that Purau Singh was working
as the appellant's polling agent loses much of its force
in view of his admission that he had no knowledge
that Pb.ran Singh had been appointed by the appella'tlt as his polling agent.
~ven so, we may assume,
though not without hesitation, that Puran Singh
did act as appellant's polling agent a~ alleged by respondent 1.
In dealing with this question the High Court appears
to have been considerably influenced by the statement qiade by Jangi Ram whom the appellant had
examined. In his cross-examination, Jangi Ram
sJoated that Jagtu and Pal Chand were the agent8 of
Shri ilaru Ram, but he added that Puran Singh was
not at the polling booth. It may be mentioned that
the appellant's case was that he had appointed only
one polling agent at Kotra ; and tjiis allegation,
accorciing to the H~h Court, was disproved by the
statement of Jangi Ram inasmuch as he referred to
two polling agents working for the appellant. In
considering the effect of this·statem"nt, tb.e High Court
has failtid to take into account the p,ositi~e ··statement
of the witness t'hat Puran Singh was not at the pollin~
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SUPREME COURT REPORTS. • [1959]
7?58
station at all. The evideQce pf t.he
\;·i~ess may be
Sri 11.,,, Ila•• rejected if it appears to be· unreliable; but if it is
v.
accepted, it would not be! fair to accept it only in pm't
sh'"'"'';
and to holcl that two polling agents had been appointp,.,.,,.,, ,,, u1hm eel by the appellant one of whom was l'uran Singh.
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There is another serious infirmity in the inference
Ga1"1d•agadkar J. drawn by t.Ju, High Court from the statement of ,J angi
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Ham; that is that .Jagtu to whom the witness has
reforred as a polling agent of the appellant appearn in
foet to have acted as a polling :•gent of Harkesh, respondent 2.
,Jhandu, another witness examined by the
:tppcllant has stated so on oath and his statement has
not
he<m challenged in cross-examination. Thus,
reading the evidence of ,Jhandu and Jangi Ram, it
would be clear that Jangi Ram was right when
Ju~
said that ,Jagtu was acting as a polling a.gent but he
was wrong when ho thought t.hat .Jagtu was the polling
agent of the appellant. If the attention of the High
Court had been drawn t-0 t.he unchallenged statement
of Jha.ndu on this point, it. would probably not have.
drawn t.hc inference that Jangi Ram's evidence supports the case of respondent l a.bout the al?point.-
ment of l'uran Singh as th.e appellant's polling agent.
The next circumstance on which reliance lrns b()~n"
plai:ed in the judgment of the High Court is that
Puran Singh.ha'!; signed t.he prescribed form appointing him as the polling agent and he must ha\'e present-
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ed it to the returning officer.
The prescribed form
requires tlmt a candidate appointing his polling agent
and tlw polling agent. himsulf should sign the ti,rHt part
of the form.
Then the polling a.gent is required to
t.ake the form to the returning ollicer, sign in token Qf
his agreeing to work as a polling agent before the' said
officer and present it to him.
The High Court has
found tlmt Puran Singh must have signed the form
and prcsent<'<L it as required by law.
Puran Singh
was examinc'!d bv r<·spnndcnt l ; 'but when he ga"c evidence, he was "allowed to be treated as hostile ;rnd
eross-exa.mined by her counsel.
Puran Singh denied
that·hc had act.cdw'l.S the appellant's polling agent and
that he htta ~igncrl t.he form and presenter!
i~ tu the
returning ofliccr. It, however, appears that Chand
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S.C.R. • L3UPRE~E COURT ·REPORTS
1413
Jamadar to w1iose platoon Puran Singh is attached
gave evidenc; that the ~ignature of Puran Singh on
Sri Baru Ram
the form in question (P.W. 48~1) appeared to be like
v.
the signatures on acquittance rolls which had been adShrimati
mittedly made by him. On the same question hand- Prasanni & Others
writi.ng experts were examined by both the parties.
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Mr. Om Parkas was examined by respondent 1 and heGa;endragadkar J.
stated that he had compared the admi.tted signatures
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of Puran Singh with the disputed signature and had
come to the conclusion that Puran Singh must have
made the disputed signature. On the other hand, Mr:
Kapur whom the appellant examined gave a contrary
opinion. The tribunal thought that in view of this
conflicting evidence it would not be justified in
finding that Puran Singh had signed the form.
'f'he High Court has taken a contrary view. Mr.
Aggarwal for the appellant contends that the High
Court was in error in reversing the finding of the
tribunal on this point.
There may be some force in
this contentJon ; but we propose to deal with this
'appeal on the basis that the finding of the High Court
on this question is right.
The position thus is that,
accordlng to the High Court, Puran Singh signed the
ro11m appointing him as tll.e appellant's agent and
presented it before the officer. Puran Singh was seen
at the polling booth and the scribe whQ wrote the form ·
in question also wrote the form by which the appellant
appointed Pal Singh as his polling agent at the same
booth. The High Court thought that from these circumstances it would be legitimate to infer that the
appellant had appointed Puran Singh as his polling
a!\,ent and had in fact signed the form in token of .the
said appointment. It is the correctness of this finding
which is seriously disputed by Mr. Aggarwal. before us.
It is significant that from the start the parties were
at issue on the question as to whether Puran Singh
had befn appointed hy the appellant as. his polling
agent; and so respondent 1 must have known that
she had to prove the said appointment in order to
obtain a finding in her favour on isspe 29 under s, 123.
(7)(c) of the Act. Respondent 1 in fact leCI evidence to
prove tlfe signa 1mre of Puran Singh· but no attempt'
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1414
SUPHEME COURT Rf,PORTS. • (1959]
was made by her to pro\'e t.11~ signature.of the appdlant on the said form.
Tf1e appellant had specifically
Sri Ratu Rani d • d h
J
h d
S
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cme
t at ie
a
appointed Purnn , ingh as his
sh,imati
polling agent and when he stepped into the witness
p,., ••• ; 6- 01hm box he stated on oath that he had not signed any
form i.11 that behalf. Under these circumstanc~s, it
Gajend•ag, .. Jka• J. was dearly necessary for respondent l to examine
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competent witnesses to prove the appellant's signature
on the form.
It is true that the appellant's signature
on the form appears t-0 have been over-written, !mt it
is only the expert who could have stated whether the
over-writing in question made it impossible to cornp:ire the said signature with the admitted signatures
of the appellant. It appears that after the whole of
the evidence was recorded, respondent woke up to thi~
infirmity in hl'r case and applied to the tribunal for
permission to examine an expert in that behalf. This
application was made on Fcbmary 6, 1958 ; and the
only explanation given for the delay in making it was
that it was after the appellant denied his signature
on oath that respondent l realized the neHd for exa- • •
mining an exp(•rt. The tribunal rejected this application and we think righlly.
In itR order the tribunal
has pointe(I out that resp~ndent l had been given 1rn
opportunity to examine an expert and if she wanted
her expert to. gi~·c evidence on the alleged signature of
the appellant her counsel should have asked him rnle-
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vant q1wstions when he was in the witness box. Thus
the position is that there is no evidence on the record
to support the case of respondent I that the said allcg·
cd signature has in fact been made by the a1ipellant,
Th(~ onlv relevant evidence on the record is the state-
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mcnt. of the appellant on oat.h t.lu•t he had not signed
the form in question:
)fr. Doabia fairly conceded that there was no legal
e\'idence on thiH point; but hiH argument was that
from the ot11er finding" of fact• recorcled by th11 High
Court it would be legitimate to infer th:it the appellant had made the said signature. In our opinion
this ~onwntion is ~vholly unteimble. It must he borne
in mind that the alleaat.ion against the appellant is
t+1at he has commit tea° a corrupt practi\:c and :t finding
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S.'C.IR .•• SUPREJ\l'E COUR\I' REPORTS
141;5
against, him. ~n the . poinJ;' w6uld involve serious I
z9~B
consequences. In.such a.case, it would be difficult to ) . --:.-
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hold that merely from the findings recorded by the
5 " Baru Rain
·High. Cou:r:t it w.o'iild~•be legitimate to inf~'r that the
sh;l; •• 1;
appellant had signed the form al)d had 111 fact.ap_- f'rnsefnni ~ ·oihers
pointed Puran.'Singh as his :polling agent. Mr. -Doabia1 . _--::: ··' -
argues tlia:t it is not al"'ays absolutely necessary tp va;endragadhar ~-
examine an expert or to lead other evidence to prov~:
•
handwr~ting. It would qe po~s~~le :and legal, he con-,
1
tende, to prove the . handwrrtmg of a person from,
circumstantial evidence.
Sectjon 67 of the Indian)
Evidence Act' provides iriter , alia that if a documE'lfit
is alleged to be signed by. any per!JOn the. signa tti:re
must be"proved to· be in his hand writing. , Sections 45
.-nd '4 7 of the said Act ( l of 1872), prescribe the method
in which ~uch signature can be proved. Under s. 4i'i,
the opinion. of the ·handwriting. experts is rel!lvant
while·undeF s. 47 the opinion of any person acqua,iut'.-
ed with-the' handwriting of the person who is alleged
• to-ha've sigaea 'the document is admissible.
The.explanation to tli.e section explains when a person can
be ·said to be acquainted with .the .handwriting of
another person_.
Thus, there ean be no. doubt .as to
~11\l mai;ner in .. which the· alleged signature of the.
-appellant c<Juld and .shouJd have been proved; but
eve rt ·assuming that· the signature. bf the a.ppellan.t pan
'be lega:ll:Y- held tO' .be proved· on circumstahtial evidence· the principle which governs the appreciation
of such circumstantial ev:i(ience, in· cases· of .this kind
nannot ~!l ignored: It is only· if the court is sa.ti,sfied
,that the' circumstantial evidenc~ iirresistibly leads· to
tbll inference that the• appellant must have sign<;lg -the
form 'that the court cap legitimately :reach suc]l a
conclusion. In our opinion, it :is impossible to acced,e
to Mr. D.oabia's argument· thil>P the facts held pro~ed
in the High Court inevitably lead to itl\ final conclusionlthfl.t the appellant hh.d .in fact signed._ the form,
It is clea'.r that in reaching this conclusion the High
Cour.t did not ·properly appreciate the Jact that there.
was no'legal ·eviilence on the; point.and tbiJ.t the p.ther
facts foqnd by• iti 'Cannqt ·even :teasonably'sii-ppoJ?t, thi;i
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1416
SUPREME COURT REPORTtl._ , [1959]
case for respondent 1.
\Ye JiUSt accorc1ingly reverse
the finding of the High Court and hold that rcspon5" Ha'" 11"'" dent 1 has failed to p,·ove that the appellant had
sA,~;,..,;
committed a conupt practice under s. 123(7Xc) of the
l'rasanni ('>- Other$ Act.
Thi~ finding, however, does not finally dispose ()f the
Gajend,agaJP.a, J. appeal because Mr. Doabia contends that the High
•
Court \\'as in error in reversing the tribunal's conclusion that the nomination paper of Jai Bhagawan had
been improperly rejected. .Mr. Aggarwal, however,
argues th:it it is not open to respondent 1 to challenge
the correctness of the finding of the High Court on
this point. In support of his objection, ;\Ir. Aggarwal
has referred us to the decision of this Court in Vashist
Narain Sharma v. Dev Chandra('). In this case, whq1
the respondent., ha.\·ing failed on the finding recorded
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by the tribunal in his favour, attempted to argue that
he could support the decision of the tribunal on other
grounds which had been found against him, this Court
held thM he was not entitled to do so.
Tbe provision.
of the Code of Civil Procedure which permits the •
respondent to adopt such a course, it was observed,
has no application to an appeal filed by special leave
under Art. 136. " W c h11ve no appeal before us o0n
behalf of the respondent", observed Ghulam Hasan .J.
"and we are •unable to allow t.hat question to be
reagitated ". :\fr. Doabia clmllenges the correctness of
these observ'1tions.
He relies on s. l 16A of the Act
which empowers the High Court to exercise its jurisdiction, authority and power, and to follow the si:me procedure, aH would apply to appeals preferred against
original decrees passed by a. civil court within the lo~al
limits of its ci\·il appellate jurisdiction. There' is no
doubt that, in an ordinary civil appeal, the respondent
would be entitled to support the decree under appeal
on groundH other than those found by the trial court
in his favour. Order 41, rule !!2 of the Code Qf Civil
Procedure, which permits the respondent to file croH.~
objeclions recognize the respondent's right to support
the 'Cleere~ on an.l' of the grounds decided against him
by the court below. ln the present case no appeu,l
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S.C.R .•• suPRE¥E COURT REPOR'.I;S
1417
could have b~en preforr~d by respondent 1 because she
'958
had succeeded in obtaining the declaration that the Sri Baru Ram
•
appellant's election was void :ind it should therefore be
v.
open to her to support the final conclusion of the High
Shrimati
Court by contending that the other finding recorded Prasanni & Others
by tlae High Court which would go to the root. of the
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matter is errone.ous. .Prima facie there appears to be Ga;endragadkar J.
some force in this contention ; but we do not think it
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necessary to' decide this point in the present appeal.
Mr. 4ggarwal's objection assumes that respondent 1
should have preferred a petition for special leave to
appeal against the finding of the High Court on the
issue in question ; if that be so, the application made
by her for leave to urge additional grounds can be
~onverted into a petition for special leave to appeal
against the said finding, and the delay made in filing
the same can be condoned.
As in the case of the
preliminary objection raised by respondent I against
the appellant on the ground of limitation, so in the
.case of the pbjection raised by the appellant against
• respondent I in this matter, we would proceed on the
basis that we have condoned the delay made by respondent 1 fn preferring her petition to this Court for leave
to• challenge the finding of'the High Court that the
nomination form of Jai Bhagawan had been properly
rejected. That is why we have allowed M.r. Doabia to
argue this point before us.
We may add that the two
points of law raised by the respective objections of
both the parties may have to be considered by a larger
Bench on a suitable occasion.
On the merits, Mr. Doabia's case is that the returnin~ officer was not justified in rejecting JaiBhagawa.n's
nomi11ation under s. 36(2)(b) of the Act. The facts on
which this contention is raised are no longer in dispute.
Mr. Jai Bhagawan who presented his nomination
pa.per to the returning officer on January 29, 1956, was
admitt!ldly not an erector in the constituency of
Rajaund in the District of Karna!. It is alleged that
he was a voter in another constituency. When his
nomination paper was presented, he qid n9t produ9e a
copy of the electoral roll of the said constitmency or of
the relevant patt thereof or a certified copy of theo•
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1418
SUPREME COURT ~i:.:PORTS0
• [1959]
relevant entries in t.hc said roll; nor did'h~ produce any
of these documents on the
0first of February which was
_C;,j IJan' Hatti
v.
fixer! for scrutiny of the nomination papers.
When
shnmato
the returning officer noticed that the candidat-0 had not
I"asan"i ,s;. Othm produced the relevant clocumont, he gave him, at his
··
reques•, two hours' time to produce it..
The caudidate
Gajendrogodk., .J. failed to produce the document within the time allowed
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and thereupon t.be returning officer rejected his nomination pt1per under s. 3G (2)(h) of the Act. It is true
that the candidate subscqncntly purported to pr9cluce
before the officer his afiida.yit that his name was entered as a voter in the list of Y01crs (Ko. 1074, Constitucncv :i';o. 6, Karna.I Baneket ~o. 21, Vol. IO), but.
the returning officer refused to consider the said atli-
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da vit because he had alrcadv rejected his uomination
paper under s. 36(2)(b).
'Thus the rejecti•m of th~
nomination paper was the result of the candidate's
failurn to produ<"e any of the prescribed documents
before the returning officer.
On these facts the question which :u·ises for decision is whether tije returning
ofiicer was justified in rejecting the nomination paper" •
under s. 36(2)(b).
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Section 33 of the Act deals with the presenttttion of
nomination paper;; and pt"escribcs the reqniremeuts fo1:
valid nomination. It would be relevant to refer to
sub.ss. (4) aud {fi) of this section. Sub-section (4) pro-
,·ides that on the presentation of the nomination
paper, the returning officer shall satisfy himself
that. the namPS and eleetoral roll numbers of the
candidate and his proposer as entered in the nomination paper arc the same a8 those entoreH in the
eloctoral roll.
The prodso to this sub-section rcrp1ires
the returning ofliccr to permit clerical or tcc-lrnical
errors t<i be corrected. U ndcr this sub-section it would
have bcPn open to Jai Bhagawan while presenting his
nomination I?aper to produce one of the prescribed
documents"to show his elcct-0r1Ll roll number. on the
roll of his constituency.
Howeycr, his failure to do so
does not entail any penalty. Sub-section (5) of s. 33
dcaJs with t_hc st~ge of thi> scrutiny of the nomination
papers a1~d ;t proyides that where a candidate is an elec-
.. t-0r of a different constituency, a cop,Y of the• electoral
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S.C.R. • JlUPRE¥E COURT REPORTB
1419
roll of that c~nstituency, or the relevant part thereof
or a certified copy of the relevant entry of such roll
Sri Baru Ram
shall, unless it is filed along with the nomination
v.
paper, be produced before the returning officer at the
Shrimati
time of the scrutiny. It is thus clear that when the Prasanni & Others
stag'1 of scrutiny is reached the returning officer. has to
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be satisfied that the candidate is an elector of ·a differ- Ga;endragadkar. f·
ent constituency and for that purpose the statute
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has provided the mode of proof. Section 36, sub.s. (7)
lays !1own that the certified copies which are requi~ed
to be produced under s. 33 (5) shall be conrlus1ve
evidence of the fact that the person referred to in the
relevant entry is an elector of that constituency. In
other words, the scheme of the Act appears to be that
where a candidate is an elector of a different consti-
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tuency he has to prove that fact in the manner prescribed and the production of the prescribed copy has
to be taken as conclusive evidence of the said fact.
This requirement had not been complied with by Jai
• Bhagawan ;i,nd the returning officer thought that the
said non-compliance with the .provisions of s. 33(5)
justified him in rejecting the nomination paper under
s. 36(2j(b) of the Act.
The question is whether this
view of the returning officer is right.
Section 36 of the Act deals with the scrutiny of
nominations and the object of its provisiqns as shown
by sub-s. (8) is to prepare a list of validly nominated
candidates, that is to say, candidates whose nominations have been found valid and to affix it to the
notice board of the returning officer. Sub-section (1) of
s.