# THE SUPREME COURT REPORTS SANGRAM SINGH v. ELECTION TRIBUNAL; KOTAH, BHUREY LAL BAY A

- **Citation:** [1955] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Bench:** VIVIAN BosE, B. Jagannadhadas, Bhuvaneshwar Prasad Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-supreme-court-reports-sangram-singh-v-election-tribunal-kotah-bhurey-lal-1487
- **Pages:** 21

## Headnote

Reprcse11tation of tht' People Act (XLIIJ) of 1951, section
105-Effect of-Finality and condusi"£Jeness of orders of Election
Tribunals-Article 136 of Constitution-7urisdiction ·of -:supreme
Court-1urisdiction and powers of High Courts under Article 226
of the Constitution-Whether in any way affected-Writ of Certiorari-Principles governing grant of-Laws of procedure-Grounded on natural justice-Designed to promote justice-Representation
of the People Act of 1951, sub-section (2) of section 90-Procedure
for trial of Election petitions-Code of Civil· Procedure, 1908, sections 27, 30 and 32-Disiinction between "Penalty" for non-appearance of parties to suir and consequences flowing from non-appearance in response to summons---Code of Civil Procedure, 1908, Order
5, rules 1 and 5 and Order 8, rules 1 and 14, Order 9, rules 6(l)(a),
2, 7, 12 and 13-0rder 15, rule 3-0rder 17, rules 1(1) and 2Trial of suits-First hearing and adjourned hearing-DisfinctionConseq11c11ces of 1wn-appearancc-Ex part<! he<1ri11g and 'ex parte
order-Principles i;m•erning discretion of Courts-Adjournment af
hearing---{,'om•euiencc of wit11esses.
Notwithstanding the provision in section 105 of the Representation of the People Act (Act XLill) of 1951 that every order of an
Election Tribunal made under the Act shall be final and conclusive,
the High Court and the Supreme Court have unfettered jurisdiction to examine whether the tribunal, in the exercise of its undoubted jurisdiction, has acted kgally or otherwise. This jurisdic-·
tion cannot be taken away bY. a legislative device that purports to
confer power on a tribunal to act illegally. The legality of an act
or conclusion is somethipg that exists outside and apart from the
decision of an inferior tribunal. It is a part of the law of the land
which cannot be finally dett"rmined or altered by any tribunal of
limited jurisdiction. The High Courts and the Supreme Court alone
can determine what th.: law of the land is i•is-a-vis all other Courts
and tribunals and they alone can pronounce with authority and
finality on what is kgal and what is not. All that an inferior tribunal
can do is to reach a t.:ntativc conclusion which is subject to review
under Artidt>s 226 and 136 nf the Constitution. The jurisdicti1)n
of th.: High Courts under Anick 226, with rhat of thi.: Supreme
Court above them, n:mains to· its fullest extent despite section 105
1955
March 22
1Y55
Su11gran1 Singh
v.
E/e,·1iou Tribunal,
Ko1uh, Bhurey Lat
Bay a
SUPREME COURT REPORTS
[ 1955]
of the Representation of the People Act. Limitations on the exercise of such jurisdiction can only be imposed by the Constitution.
The powers of the High Courts under Article 226 of the Constitution are i::liscretionary and, though no limits can be placed upon
that discretion, it must be exercised along recognised lines and not
arbitrarily. In the exercise of their jurisdiction under Article 226,
the High Courts should not act as Courts of Appeal or revision to
correct mere errors of law which do not occasion injustice in a broad
and general sense.
It is a sound exercise of discretion to bear in
mind the policy of the legislature to have disputes about special
rights, as in election cases, decided as speedily· as may be. The
High Courts should not therefore en:crtain petitions for prerogative
writs lightly in this class of case.
The appellant filed an election petition under section 100 of the
Representation of the People Act. He appeared on the first and
subsequeqt hearing at Kotah. The proceedings were then adjourned for certain hearings at Udaipur. The appellant did not appear on
the first three hearings at that place so the tribunal proceeded "·'
parte. His counsel appeared on the fourth hearing but was not
allowed to take any further part in the proceedings because no good
cause was shown for the earlier non-appearance and so the tribunal
refused to set aside its "ex parte order".
Held, (I) J,Tnder section 90(2) of the Representation of the
People Act the proced

## Text

_Characters 0–39,969 of 46,736. This is a partial read: ask again with offset=39969 for what follows._

I
THE SUPREME COURT REPORTS
SANGRAM SINGH
v.
ELECTION TRIBUNAL; KOTAH,
BHUREY LAL BAY A
[VIVIAN BosE, B. JAGANNADHADAS and
BHUVANESHWAR PRASAD SINHA, JJ.)
Reprcse11tation of tht' People Act (XLIIJ) of 1951, section
105-Effect of-Finality and condusi"£Jeness of orders of Election
Tribunals-Article 136 of Constitution-7urisdiction ·of -:supreme
Court-1urisdiction and powers of High Courts under Article 226
of the Constitution-Whether in any way affected-Writ of Certiorari-Principles governing grant of-Laws of procedure-Grounded on natural justice-Designed to promote justice-Representation
of the People Act of 1951, sub-section (2) of section 90-Procedure
for trial of Election petitions-Code of Civil· Procedure, 1908, sections 27, 30 and 32-Disiinction between "Penalty" for non-appearance of parties to suir and consequences flowing from non-appearance in response to summons---Code of Civil Procedure, 1908, Order
5, rules 1 and 5 and Order 8, rules 1 and 14, Order 9, rules 6(l)(a),
2, 7, 12 and 13-0rder 15, rule 3-0rder 17, rules 1(1) and 2Trial of suits-First hearing and adjourned hearing-DisfinctionConseq11c11ces of 1wn-appearancc-Ex part<! he<1ri11g and 'ex parte
order-Principles i;m•erning discretion of Courts-Adjournment af
hearing---{,'om•euiencc of wit11esses.
Notwithstanding the provision in section 105 of the Representation of the People Act (Act XLill) of 1951 that every order of an
Election Tribunal made under the Act shall be final and conclusive,
the High Court and the Supreme Court have unfettered jurisdiction to examine whether the tribunal, in the exercise of its undoubted jurisdiction, has acted kgally or otherwise. This jurisdic-·
tion cannot be taken away bY. a legislative device that purports to
confer power on a tribunal to act illegally. The legality of an act
or conclusion is somethipg that exists outside and apart from the
decision of an inferior tribunal. It is a part of the law of the land
which cannot be finally dett"rmined or altered by any tribunal of
limited jurisdiction. The High Courts and the Supreme Court alone
can determine what th.: law of the land is i•is-a-vis all other Courts
and tribunals and they alone can pronounce with authority and
finality on what is kgal and what is not. All that an inferior tribunal
can do is to reach a t.:ntativc conclusion which is subject to review
under Artidt>s 226 and 136 nf the Constitution. The jurisdicti1)n
of th.: High Courts under Anick 226, with rhat of thi.: Supreme
Court above them, n:mains to· its fullest extent despite section 105
1955
March 22
1Y55
Su11gran1 Singh
v.
E/e,·1iou Tribunal,
Ko1uh, Bhurey Lat
Bay a
SUPREME COURT REPORTS
[ 1955]
of the Representation of the People Act. Limitations on the exercise of such jurisdiction can only be imposed by the Constitution.
The powers of the High Courts under Article 226 of the Constitution are i::liscretionary and, though no limits can be placed upon
that discretion, it must be exercised along recognised lines and not
arbitrarily. In the exercise of their jurisdiction under Article 226,
the High Courts should not act as Courts of Appeal or revision to
correct mere errors of law which do not occasion injustice in a broad
and general sense.
It is a sound exercise of discretion to bear in
mind the policy of the legislature to have disputes about special
rights, as in election cases, decided as speedily· as may be. The
High Courts should not therefore en:crtain petitions for prerogative
writs lightly in this class of case.
The appellant filed an election petition under section 100 of the
Representation of the People Act. He appeared on the first and
subsequeqt hearing at Kotah. The proceedings were then adjourned for certain hearings at Udaipur. The appellant did not appear on
the first three hearings at that place so the tribunal proceeded "·'
parte. His counsel appeared on the fourth hearing but was not
allowed to take any further part in the proceedings because no good
cause was shown for the earlier non-appearance and so the tribunal
refused to set aside its "ex parte order".
Held, (I) J,Tnder section 90(2) of the Representation of the
People Act the procedure for the trial of election petition is to b~,
as near as may be, the same as in the trial of suits under the Civil
Procedure Code;
(2) under the Civil Procedure Code there is no such thing as an
"ex parte order for non-appearance" which precludes further appearance at an adjourned hearing until the Order is set aside. If a
party. appears at an adjourned hearing the court has a discretion
(which must be exercised judicially) either to allow him to appear on
such terms as it thinks fit, or to disallow further appearance; but
(3) if he is allowed to appear then, unless good cause is shown
under Order 9, rule 7 for the earlier non-appearance the proceedings
must continue from the stage at which the later appearance 1s
entered and the party so appearing cantlot be relegated to the position he would have occupied if he had appeared at the earlier hearing or hearings; also,
( 4) in exercising its discretion the court must see that justice is
done to all concerned, including the witnesses.
Rule 6(1) (a) of Order 9 of the Civil Procedure Code is confined to the first hearing of the suit and does not apply, per se to
subsequent hearings. 0.9, r.7 gives a pany a right to he relegated
to .the position ·he would have occupied if he had appeared at the
earlier hearing or hearings if he shows good cause. It does not per se
prevent further appearance when no good cause is shown. 0. I 7, r.2
applies at the adjourned hearing and there, the Court is given a
wide discretion to make such order as it thinks fit.
'
I
•
->
2S.C.R.
SUPREME COURT REPORTS
3
1955
A code of procedure is a body of law designed to facilitate
justice and further its ends, and should not be treated as an enactment providing for. punishments and penalties. The laws of proSangram Singh
cedure are grounded on the principl~ of natural justice which rev.
quires that men should not be condemned unheard, that decisions Elect ion Tribunal,
should not be reached behind their backs, that proceedings that Kotah, Bhurey Lal
affect their Ii ves and property should not continue in their absence
Baya
and that they should not be precluded from participating in them.
Subject to clearly defined exceptions the laws of procedure should
be construed, wherever reasonably possible, in the light of that principle. The court is invested with the widest possible discretion to
see that justice is done to all concerned. No hard and fast rule
can be laid down; and the court in the exercise of its judicial
discretion will have, in a given case, to determine what consequences
are to follow from non-appearance. An order awarding costs, or an
·adjournment, or the consideration of the written statement and the
framing of the issues on the spot, can in some cases meet the ends
of justice. In other cases, more drastic action may be called for.
By "ends of justice" is meant not only justice to the parties
but also to witnesses and others who may· be inconvei:ltenced. The
convenience of the witnesses, which deserves the greatest consideration, is ordinarily lost sight of in this class of case. Justice strongly
demands that this unfortunate section of the general public compelled to discharge public duties, usually at loss and inconvenience
to themselves should not be ignored in the over-all picture of what
will best serve the ends of justice; and it may well be a sound exercise of discretion in a particular case to refuse an adjournment and
permit the plaintiff to examine the witnesses present and not allow
the defendant to cross-examine them. But broadly speaking, after all
the various factors have been taken into consideration and carefully
weighed, the endeavour should 'be to avoid snap decisions and to
afford the parties a real opportunity of fighting out their caso::s
fairly squarely.
The Court must in e\·ery case exercise the discretion given to
it. Its hands are not tied by a so-called "ex parte order", and, if it
thinks they are tied by rule 7 of Order 9 of the Code, then it is
not exercising the discretion which the law says it should, and in ii
given case interference may be called for.
Held, that the Election Tribunal did not exercise the discretion
given to it by law because of a misapprehension that it had none.
It was directed tO do so now and to proceed with the further hearing of the case in accordance with law.
Hari Vishnu v. Ahmed Ishaque ([1955] 1 S.C.R. 1104), Durga
Shankar Mehta v. Thakur Raghurai Singh ([1955] 1 S.C.R. 267),
and .Raj Kru~hna Bose ".· Binod Kanungo ([1954] S.C.R. 913, 918),
apphed. Harzram v. Pnbhdas (A.LR. 1945 Sind 98, 102), distinguished. Sewaram v. Misrimal (A.I.R. 1952 Raj. 12, 14), overruled.
Venkatasubbiah v. Lakshminarasimham (A.l.R. 1925 Mad. 1274),
approved. Balakrishna Udayar v. Vasudeva Ayyar (I.L.R. 40 Mad.
1955
Sa11gra111 Singh
v.
Electio11 Trih1111al,
KotaJ,, B!iurey Lal
Bay a
4
SUPREME COURT REPORTS
[1955]
793), T. M. Ba,.,.et v. African l'roducts Ltd. (A.LR. 1928 P.C. 261,
262) and Sa/1ibzada Zei111<labdi11 Khan v. Sahibzada Ahmed Raza
Khan (5 I.A. 233, 236), applied.
Case remilfed 10 the Trih1111a!:
CIVIL
APPELLATE
.IURISDIC110N:
No. 214 of 1954.
Civil Appeal
Appeal under Article 133(l)(c) of the Constitution of India from the Judgment and Order dated the
17th July
1953
of the High Court of Rajasthan
(Bapna and Ranawat JJ.) in Civil Writ Application
No. 128 of 1953.
R. K. Ras1ogi and Gan pat Rai. for the appellant.
R. C. Prasad, for S.l. Chhihhrr. for respondent
No. 2.
1955. March 22.
The; Judgment of the Court
was delivered by
BosE J.-The second respondent Bhurey Lal filed
an election petition under section 100 of the Representation of the People Act against the appellant Sangram
Singh and two others for setting aside Sangram Singh's
election.
The proceedings commenced at Kotah and after
some hearings the Tribunal made an order on
11-12-1952 that the further sittings would be at Udaipur from the 16th to the 21st March, 1953. It was
discovered later that the 16th was a public holiday,
so on 5-1-1953 the dates were changed to "from the
17th March onwards" and the parties were duly notified.
On the 17th the appellant did not appear nor did
any of the three counsel whom he had engaged,
so
the Tribuna I proceeded ex pa rte after waiting till
1-15 ·P.M.
. " The Tribunal examined Bhurey Lal and two witnesses .on the 17th. five more witnesses on the 18th
ari~ ,on the 19th the case was adjourned till the 20th.
"~On the"20th one of the appellant's three counsel,
·Mr. 'Bhartit Raj, ·appeared but was not allowed
to
'
' ..
_,
t
•
/
2 S.C.R.
SUPREME COURT REPORTS
5
take any part in the proceedings because the Tribu1955
nal said that it was proceeding ex parte at that stage.
Sangram Singlr
Three more witnesses were then examined.
v.
On the following day, the 21st, the appellant made Election Tribunal.
an application asking that the ex parte proceedings be Korah, Bhurey Lal
set aside and asking that he be allowed to cross-exBaya
amine those of Bhurey Lal's witnesses whose evidence
BoseJ.
had already been recorded.
The Tribunal _heard arguments and passed order
the same day rejecting the application on the ground
that the appellant had
"failed to satisfy ourselves that there was any
just or unavoic;lable reason preventing the appearance
of respondent No. l himself or of any of his three
learned advocates between the I 7th and the I 9th of
March. 1953".
and it added-
"at all events, when para 10 of the affidavit
makes it clear that Shri Bharatra.i had already received instructions to appear on 17-3-1953 there was
nothing to justify his non-appearance on the I 8th
and 19th of March. I 953. if not. on the I 7th as well".
The appellant thereupon filed a writ petition under
article 226 of the Constitution in the High Court of
Rajasthan and further proceedings before the Tribunal were stayed.
The High Court rejected the petition on 17-7-1953
on two grounds-
()) "In the first place. the Tribunal was
the
authority to decide whether the reasons were sufficient
or otherwise and the fact that the Tribunal came to
the conclusion that the reasons set forth by counsel
for the petitioner were insufficient cannot be challenged in a petition of this nature" and
(2) "On the merits also, we feel no hesitation in
holding that counsel for the petitioner were grossly
negligent in not appearing on the date which had
been fixed for hearing. mol'C than two months previously".
Five months later. on
16-12-1953, the Hieb Court
granted a certificate under article
133(l)(c) of the
Constitution for leave to appeal to this Court.
:?-8 SCI IND182
6
SUPREME COURT REPORTS
L 1955]
1955
The only question before the High Court was wheSangram Singh
ther the Tribunal was right in refusing to allow the
v.
appellant's counsel to appear and take part in the
Election Tribunal, proceedings on and after the 20th of March, 1953, and
Kotall, Bhnrey Lal the first question that we h~ve to decide is whether
Baya
, that is sufficient ground to give the High Court jurisdicBore J.
ti on to entertain a writ petition under article 226 of
the Constitution. That, in our opinion, is no longer
res integra. The question was settled by a Bench of
seven. Judges of this Court in Hari Vishnu v. Ahmad
!shaque(') in these terms:
"Certiorari will also be issued when the Court or
Tribunal acts illegally in the exercise of its undoubted
jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the
principles of natural justice".
That is exactly the position here.
It was urged that that cannot be so "in
election
matters because of section 105 of the Representation
of the People Act of 195 l (Act XL III of 195 )), a section which was not considered in the earlier case.
It runs thus:
"Every order of the Tribunal made under this
Act shall be final and conclusive".
It was argued that neither the High Court nor the
Supreme Court can itself transgress the law in trying
to set right what it considers is an error of law on the
part of the Court or Tribunal whose records are under
consideration. It was submitted that the legislature
intended the decisions of these tribunals to be final on
all matters, whether of fact
or of law, accordingly,
they cannot be said to commit ·an error of law when,
acting within the ambit of their jurisdiction, they
decide and lay down what the law is.
for in
that
sphere their decisions are absolute, as absolute as the
decisions of the Supreme Court in its own sphere.
Therefore, it was said, the. only question that is left
open for examination under article 226 in the case of
an Election Tribunal is whether it acted within the
scope of its jurisdiction.
(1) [1955) I S.C.R. 1104, 1121.
. i
I
I
;
2 S.C.R.
SUPREME COURT REPORTS
7
But this, also, is no longer open to question. The
1955
point has been decided by three Constitution Benches
sungram Sillch
of this Court. In Hari Vishnu v. Ahmad Jshaque(')
v.
the effect of section 105 of tht< Representation of the Elec1io11 Trib1111at,
People Act was not c<:msidered, but the Court laid Kotah, Blmrey Lat
down in general terms that the jurisdiction under
Baya
article 226 having been conferred by the Constitution,
BoseJ.
limitations cannot be· placed on it except by the Constitution itself: see pages 238 and 242. Section 105
was, however, considered in Durga Shankar Mehta v.
Raghuraj Singh(') and it was held that that section
cannot cut down or affect the overriding powers of
this Court under article l 36. The same rule wa~ applied to article 226 in Raj Krusl111a Bose v. Binod
Kanungo and others(') and it was decided that section
l 05 cannot take away or whittle down the powers of
the High, Court under article 226.
Following those
decisions we hold that the jurisdiction of the High
Court under article 226 is not taken away or curtailed
by section 105.
The jurisdiction which articles 226 and 136 confer
entitles the High Courts and this Court to examine
the decisions of all Tribunals to see whether they have
acted illegally.
That jurisdiction cannot be
taken
away by a legislative device that purports to confer
power on a tribunal to act illegally by enacting a
statute that its illegal acts shall
become legal the
moment the tribunal chooses to say they are legal.
The legality of .an act or conclusion is something that
exists outside and apart from the decision of an inferior tribunal. It is a part of the law of the land
which cannot be finally determined or altered by any
tribunal of limited ju.risdiction. The High Courts and
the Supreme Court alone can determine what the law
of the land is vis-a-vis all other courts and tribunals
and they alone can pronounce with authority and
finality on what is legal and what is not. All that an
inferior tribunal can do is to reach a tentative conclusion which is subject to review under articles 226
and J 36. Therefore. the jurisdiction of the High
(I) (1955] I S.C.R. 1104. 1121.
(2) f1955] I S.CR. 267.
(3) 1954 S.C.R. 913, 918.
1955
Sangram Singh
V.
8
SUPREME COURT REPORTS
[ 1955]
Courts under article 226 with that of the Supreme
Court above them remains to its fullest ·extent despite
section 105.
Election Tribunal, .
That, however, is not to say that the jurisdiction
will be exercised whenever there is an error of law.
The High Courts do
not, and should not,
act as
Courts of appeal under article 2.26. Their powers are
purely discretionary
a11d though
110 limits can
be
placed upon that discretion it must be exercised along
recognised lines and not arbitrarily; and one of the
limitations imposed by the Courts on themselves is
that they will not exercise jurisdiction in this class of
case unless substantial injustice has e11sued, or is likely to ensue. They will not allow themselves
to be
turned into Courts of appeal or revision to set right
mere errors of law which do not occasion injustice in
a broad and general sense, for, though no legislature
can impose limitations on these constitutional powers
it is a sound exercise of discretion to bear in mind the
policy of the legislature to have disputes about these
special rights decided as speedily as may be.
Therefore, writ petitions should not be lightly entertained
in this class of case.
Kotah, Bhurey Lal
Baya
Bose J.
We now turn to the decision of the Tribunal. The
procedure of these tribunals is governed by section
90 of the Act. The portion of the section that is relevant here is sub-section (2) .which is in these terms:
.
-
"Subject to the provisions of this Act and of any
rules made thereunder. every election petition
shall
be tried by the Tribunal, as nearly as
may be, in
accordance with the procedure applicable under the
Code of Civil Procedure, 1908 (Act V of 1908) to the
trial of suits":
We must therefore direct our attention to that
portion of the Civil Procedure Code that deals with the
trial of suits".
Now a code of procedure must be regarded as such.
It is procedw,-, something designed to facilitate justice
and fort11er its ends: not a penal enactment for puni-
. 1
"
'
shment hnd penalties; not a thing designed to trip
'
people up.
Too kdrnic:d a con st rncti"n uf si:dicms
that leaves no room for i·easonable elasticity of inter-
'
I
2S.C.R.
SUPREi\1E COURT REPORTS
9
1955
pretation shou.ld therefore be guarded against
(provided always that justice is done to
both sides) Jest
Sa11gram Singh
the very means designed for the furtherance of justice
v.
be used to frustrate it.
Electio11 Tribunal,
Kotah, Bhurey Lal
Next, there must be ever present to the mind the
Baya
fact that our laws of procedure are grounded on a
Bose!.
principle of natural justice which requires that men
should not be condemned unheard,
that decisions
should not be reached behind their backs, that proceedings that affect their lives and· property
should
not continue in ·their absence and that they .should
not be precluded from
participating in them. Of
course, there must
be exceptions and where
they
are clearly defined they must be given effect to.
But
taken by and large, and subject to that proviso, our
laws of procedure should be construed, wherever that
is reasonably possible, in the light of that principle.
The existence of
such a
principle
has
been
doubted, and in any event was condemned
'1S unworkable and impractical by O'Sullivan, J. in Hadram
v. Pribhdas(').
He regarded it as an indeterminate
term "liable to cause misconception" and his views
were shared by Wanchoo, C. J. and Bapna, J. in
Rajasthan: Sewa Ram v. Misrimal('). But that a law
of n_atural justice exists in
the sense that a party
must be heard in a Court of law, or at any rate be
afforded an opportunity to appear and defend himself,
unless there is express provision to the contrary, is,
we think, beyond dispute. See the observations of the
Privy Council
in Balakrishna Udayar
v. Vasudeva
Ayyar("), and especially in T. M. Barret
v. African
Products Ltd.(') where Lord Buckmaster said "no
forms or procedure should
ever be
permitted
to
exclude the presentation of a litigant's defence". Also
Hari Vishnu's case which we have just quoted.
In our opinion, Wallace, J. was right in Venkatasubbiah v.
Laksluninarasimham(') in holding
that
"One cardinal principle to
be observed
in
trials
by a Court obviously is that a party has a right to
(I) A.I.R. 19•15 Sind 98. 10~.
(2) A.J.R. 1952 Raj. 12. 14.
(3) I.LR 40 Macl. 79.1. ROO.
(4) A.T.R. 1928 P.C. 261, 262.
(5) A.LR. 1925 Mad. I 27J.
IO
SUPREME COURT REPORTS
[1955)
1955
Sa1tz,-am Singh
v.
Election Tribuna(,
.Kotah, Bhurey Lal
Baya
BoseJ.
appear and plead his cause on all occasions when
that cause comes on for
hearing", and that "It
follows that a party should not be deprived of that
right and in fact the Court has no option to refuse
that right, unless the Code of Civil Procedure deprives
him of it".
Let us now examine that Code; and first, we will
turn to the body of the Code. Section 27 provides
that
"Where a suit has been duly instituted, a summons may be issued to the defendant to appear and
answer the claim".
Section 30 gives the Court power to
"(b) issue summonses to persons whose attendance is required either to give evidence or to produce
documents or such other objects as aforesaid".
Then come the penalties for default. They are set
out in section 32 but they are confined to cases in
which a summons has been issued under section 30.
There is no penalty for a refusal or an omission to
appear in response to a summons under section 27. It
is true certain consequences will follow if a defendant
does not appear and, popularly speaking, those consequences may
be
regarded as the penalty for nonappearance, but they are not penalties in the true sense
of the term. They are not punishments which
the
Court is authorised to administer for disregard of its
orders. The antithesis that section 32 draws between
section 27 and section 30 is that an omission to appear in response to a summons under section 27 carries no penalty in the strict sense, while disregard of
a summons under section 30 may entail punishment.
The spirit of this distinction must be carried over to
the First Schedule. We deprecate the tendency of
some Judges to think in terms of punishment
and
penalties properly so called when they should instead
be thinking of compensation and the avoidance of injustice to hoth sides.
We turn next to the Rules in the First Schedule.
It is relevant to note that the Rules draw a distinction
between the first hearing and subsequent
hearings,
•
J
..
2 S.C.R.
SUPREME COURT REPORTS
l l
and that the first hearing can be either (a) for settlement of issues only, or (b) for final disposal of the suit.
First, there is Order V, rule I :
1955
---
Sangram Sinzh
. V.
"
b .
d
.................. a summons may
e issue
the defendant to appear and answer the claim on
day to be therein specified".
to Election Tribunal,
a Kotah, Bhurey Lal
Baya
This summons must state whether the hearing is to be
for settlement of is~ues only or for final hearing (rule
5). If it is for final hearfog, then (rule 8):
"it shall also direct the defendant to produce,
on the day fixed for his appearance, all witnesses upon
whose evidence he intends to rely in support of his
case".
Then comes Order VIII. rule I which expressly speaks
of "the first hearing". Order IX follows and is headed
"Appearance of parties and consequence of non-appearance".
Now the word "consequence" as opposed to the
word "penalty" used in section 32 is significant. It
emphasises the antithesis to which we have already
drawn attention. So also in rule 12 the marginal note
is "Consequence of non-attendance" and the body of
the rule states that the party who does not tippear
and cannot show sufficient cause
"shall be subject to all the provisions
of the
foregoing rules applicable to plaintiffs and defendants,
respectively, who do not appear".
The use of the word
"penalty" is
scrupulously
avoided.
Our attention was drawn to rule 6(2) and it was
argued that Order IX does contemplate the imposition of penalties. But we do not read this portion of
the rule in that light. All that the plaintiff has to do
here is to pay the costs occasioned by the postponement which in practice usually means the cost of a
fresh summons and the diet money and so forth for
such of the witnesses as are present; and these costs
the plaintiff must pay irrespective of the result.
Rule 1 of Order IX starts by saying-
"On the day fixed in the summons for the defendant to appear and answer ............................ ..
Bowl.
1955
Sa11gra1n Singh
V,
Election Trihunal,
Kntoh, Bhure.v Lal
Bay a
Bose J.
12
SUPREME COURT REPORTS
[ 1955]
and the rest of the rules in that Order are consequential on that. This is emphasised by the use of the
word "postponement" in rule 6 (I) (c), of "adjournment" in rule 7 and of "adjournment" in rule L
Therefore, we reach the position that .Order IX, rule
6(1 )(a), which is the rule relied on, is confined to the
first hearing of the suit and does not per se apply to
subsequ\:nt hearings:
see Sahibzada Zeinulahdin
Khan v. Sahihzada Ahmed Raza Khan(').
Now to analyse rule 6 and examine its bearing on
the first hearing. When the plaintiff appears and the
defendant does not appear when the suit· is called on
for hearing, if it is proved that the summons was duly
served-
"(a) ........................ the Court may
proceed
ex parte".
The whole question is, what do these words mean?
Judicial opinion is sharply divided about thi.s.
On
the one side is the view propounded by Wall ace, J.
in Venkatasuhbiah v. Lakshminarasimham(') that ex
parte merely means in the absence of the other party,
and on the other side is the view of O'Sullivan, J., in
Hariram v. Prihhdas(') that it means that the Court is
at liberty to proceed without the defendant till the
termination of the proceedings unless the defendant
shows good cause for his non-appearance. The remaining decisions, and there are many of them, take
one or the other of those two views.
In our opinion, Wallace, J. ·and the other. Judges
who adopt the same line of thought, are right.
As
we have already observed, our laws of procedure are
based on the principle that, as far as possible, no proceeding in a Court of law should be conducted to the
detriment of a person in his· absence. There are of
course exceptions, and this is one of them. When the
defendant has been served and has been afforded an
opportunity of
appearing,
then,
if he does
not
appear, the Court may proceed in his absence. But,
be it noted, the Court is not directed to make an ex
(I) 5 I.A. 233, 236.
(2) A.I.R. 1925 Mad. 1274.
13) A.1.R. 1945 Sind 98. 102.
2 S.C,R.
SUPREME COURT REPORTS
13
partc order. Of course the fact .that it is proceeding ex
1955
parte will be recorded in the minutes of its proceedings
Sa11gram Singh
but that is merely a statement of the fact and is not
v.
an order made against the defendant in the sense of Election Tribunal,
an ex parte decree or other ex parte order which the Kotah, Bhurey L.al
Court is authorised to make. All that rule 6 (l) (a)
Baya
does is to remove a bar and no more.
It merely
BoseJ.
authorises the Court to do that which it could not
have done without this authority, namely to proceed
in the absence of one of the parties. The contrast in
language between rules 7 and 13 emphasises this.
Now. as we have seen, the first hearing is either
for the settlement of issues or for final hearing. If it is
only for the settlement of issues, then the Court cannot
pass an ex /;arte decree on that date because of the
proviso to Order XV, rule 3(1) which provides that
that can only be done when
"the parties or their pleaders are present and
none of them objects".
On the other hand, if it is for final
hearing, an ex
parte decree can be passed, and if it is passed, then
Order IX. rule 13 comes into play and
before the
decree is set aside the Court is required to make an
order to set it aside. Contrast this with rule 7 which
does not require the setting aside of what is commonly. though erroneously, known as "the ex pa rte order".
No order is contemplated by the Code and therefore
no order to set aside the order is contemplated either.
But a decree is a command or order of the Court and
so can only be set aside by another order made and
recorded with due formality.
Then. comes rule 7 which -provides that if at an
adjourned hearing the defendant anpears and shows
good cause for his "previous non-appearance", he can
be heard in answer to the suit
"as if he had appeared on the day fixed for his
appearance".
This cannot he read to mean, as it has been by some
learned Judges, that he cannot be allowed to appear
at all if he does not show good cause. All it means is
that he cannot be relegated to the position he would
have occupied if he had appeared.
3·-R SCT IND/82
14
SUPREME COURT REPORTS
[1955]
1955
We turn next to the adjourned hearing. That is
Sangram Singh
dealt with in Order XVII.
Rule l (]) empowers the
v.
Court to adjourn the hearing and whenever it does so
Election Tribunal, it must fix a day "for the further hearing of the suit",
Koiah, Bhurey Lal except that once the hearing of the evidence has begun
Baya
it must go on from day to day till all the witnesses in
Bo.<eJ.
attendance have been examined unless the Court considers, for reasons to be recorded in writing,
that a
further adjournment is necessary. Then follows rule
2-
"Where, on any day to which the hearing of the
suit is adjourned, the parties or any of them fail
to
appear, the Court may proceed to dispose of the suit
in one of the modes directed in that behalf bv Order
IX or make such other order as it thinks fit''.
Now rule 2 only applies when one or both of the
parties do not appear on the day fixed for the adj{)lm1ed hearing. In that event the Court is thrown back to
Order IX with. the additional power to make "such
order as it thinks fit".
When it goes back to Order
IX it finds that it is again empowered to proceed ex
parte on the adjourned hearing in the same way as it
did, or could have done, if one or other of the parties
had not appeared at. the first hearing, that is to say,
the right to proceed ex parte is a right which accrues
from day to day because at each adjourned hearing
the Court is thrown back to Order IX, rule 6. It is not
a mortgaging of the future but only applies to
the
particular hearing at which a party was afforded the
chance to appear and did not avail himself of
it.
Therefore, if a party does appear on "the day to which
the hearing of the suit is adjourned", he cannot be
stopped from participating in the proceedil)gs simply
because he did not appear on the first or some other
hearing.
But though he has the right to appear at an adjourned hearing, he has no right to set back the hands
of the clock. Order IX, rule 7 makes that clear. Therefore, unless he can show good cause, he. must accept
all that has gone before and be content to proceed
from_ the stage at which he comes in. But what exactly
does that import? To determine that it will be necessary to hark back to the first hearing.
'
J
2 S.C.R.
SUPREME COURT REPORTS
15
We have already seen that when a s11mrcons is
1955
issued to the defendant it must
state whether the sangram Singh
hearing is for the settlement of issues only or for the
v.
final disposal of the suit (Order V, rule 5)
Jn either Election Tribunal,
event, Order VIII, rule I comes into play and if the Kotah, Bhurey Lal
defendant does not present a written statement of his
Baya
defence, the Court can insist that he shall; and if, on
Bose J.
being required to do so, he fails to comply-
"the Court may pronounce judgment
against
him, or make such order in relation to the suit as it
thinks fit'
(Order VllL rule JO).
This invests the Court \\(.ith the widest possible discretion and enables it to see that justice is done to
ho!l1 sides; and also to witnesses if they are present: a
matter on which we shall dwell later.
We have seen that if the defendant does not appear at the first hearing, the Court can proceed ex
partc. which means that it can proceed without a written statement; and Order IX, rule 7 makes it clear that
unless good cause is shown the defendant cannot be
relegated to the position that he would have occupied
if he had appeared. That means that he cannot put in
a written statement unless he is allowed to do so, and
if the case is one in which the Court considers a written statement should have been put in, the consequences entailed bv Order VIII. rule IO inust be suffered.
What those consequences should be in a given case· is
for the Court in the exercise of its judicial discretion,
to determine. No hard and fast rule can be laid down.
~
In some cases an order awarding costs to the plaintiff
would meet the ends of justice: an adjournment can
be granted or a written statement can be considered
on the spot and issues framed.
In other cases,
the
ends of justice may call for more drastic action.
Now when we speak of the ends of justice, we mean
justice not only to the defendant and to the other
side but also to witnesses and others who may be in-
•
convenienced. It is an unfortunate fact that the convenience of the witness is ordinarily lost sight of in
this class of case and yet he is t'.~e one that deserves
16
SUPREME COURT REPORTS
[I 955]
1955
the greatest consideration. As a rule, he is not partisa11grum Singh cularly interested in the dispute but he is
vitally
v.
interested in his own affairs which he is compelled to
Election Tribunal, abandon because a Court orders him to come to the
Kotah, Bhurey Lal assistance of one or other .of l he parties- to a dispute.
Baya
His own business has to suffer. He may have to leave
BoseJ.
his family and his affairs for days on end.
He is
usually out of pocket. Often he is a poor man living
in an out of the way village and may have to trudge
many weary miles on foot.
And when he gets there,
there are no arrangements for him.
He is not given
accommoc.lation; and when he reaches the Court, in
most places there is no room in
which he can wait.
He has to loiter about in the verandahs or under the
trees, shivering in the cold of winter and exposed to
the heat of summer. wet and miserable in the rains:
and then, after wasting hours and sometimes days for
his turn, he is brusquely told that he must go back
and come again another day. Justice strongly demands
that this unfortunate section of the general
public
compelled to discharge public duties, usually at loss
and inconvenience to
themselves.
should
not
be
ignored in the over all picture of what will best serve
the ends of justice and it may well be a sound exercise
of discretion in a given case to refuse an adjournment
and permit the plaintiff to examine the witnesses present and not allow the defendant to cross-examine
them, still less to adduce his own evidence. It all
depends on the particular case.
But broadly speaking, after all the various factors have been taken into
consideration and carefully weighed, the
endeavour
should be to avoid snap decisions and to afford litigants a real opportunity of fighting
out their cases
fairly and squarely. Costs will be adequate compensation in many cases and in others the Court has
almost unlimited discretion about the terms it can
impose provided always the discretion is
judicially
exercised and is not arbitrary.
In the Code of 1859. there was a provision (section
119). which said that-
..
. . '~·No appeal shall lie from a judgment pass7,d l'Y
par~e)~ainst a defendant wh?. has not appeared :
J
•
2 S.C.R.
SUPREME COURT REPORTS
17
The Privy Council held in Sahibwda Zeinulabdin Khan
1955
v. Sahibzada Ahmed Raza Khan(') that
this
only
Su11gra111 Singh
applied to a defendant who had not appeared at all
v.
at any stage, therefore, if once an appearance was Eiec1io11 Trib1111at,
entered, the right of appeal was not taken away. One Kotah, Bhurey Lal
of the grounds of their decision was thatBaya
'"The general ruk is that an appeal lies to the
High Court from a decision of a civil or subordinate
Judge, and a defendant ought not to be deprived of
the right of appeal, except by express words or necessary implication".
The general rule, founded on
principles of natural
justice, that proceedings in a Court of justice should
not be conducted behind the back of a party in the
absence of an express provision to that effect is
no
less compelling. But that apart. It would be anomalous to hold that the efficacy of the so-called ex parte
order expends itself in the first Court and that thereaft~r a defendant can be allowed to appear in the appellate Court and can be heard and can be permitted'
to urge in that Court the very matters he is shut. out
from urging in the trial Court; and in the event that
the appellate Court considers a remand necessary he
can be permitted to do the very things he was precluded from doing in the first instance without getting
the e.>;: parte order set aside under Order IX, rule 7.
Now this is not a case in which the defendant with
whom we are concerned did not appear at the first
hearing. He did. The first hearing was on 11-12-1952
at Kotah. The appellant (the first defendant) appeared
through counsel and filed a written statement. Issues
were framed and the case was adjourned till the 16th
March at Udaipur for the petitioner's evidence alone
from the 16th to the 21st March. Therefore. Order
IX, rules 6 and 7 do ·not apply in terms. But we
have been obliged to examine this order at length because of the differing views taken in the various High
Courts and because the contentiori is that Order XVII,
rule 2 throws one back to the position under Order
IX, rules 6 and 7. and there. according to one set of
(1) 5 I.A. 233.
Bo~eJ.
18
SUPREME COURT REPORTS
[1955]
IY55
views, the position is that once an ex
/Hirte "order"
S1111irr11111 Singh is "passed" against a defendant he cannot take fur-
. v.
ther part in the proceedings
unless be
gets
that
Elec1io11 Trih1111at, ''order" set aside by showing good cause under rule
Kota/I, Bl111rey Led 7. But that is by no means the case.
Bay a
BoseJ.
If the defendant does not appear at the adjourned
hearing (irrespective of whether or not he appeared
at the first hearing) Order XVII, rule 2 applies and the
Court is given the widest possible discretion
either
"to dispose of the suit in one of the modes directed
in that behalf by Order IX or make such other order
as it thinks fit",
The point is this. The Court has a discretion which
it must exercise.
Its hands are not tied by the socalled ex (Hirte order; and if it thinks they are ti~d by
Order IX, rule 7 then it is not exercising the discretion
which the law says it should and, in a given case, interference may be called for.
·
The learned Judges who constituted a Full Bench
of the Lucknow Chief Court (Tulsha
Devi v. Sri
Krishna(')) thought that if the original ex parte order
did not enure throughout all future hearings it would
be necessary to make a fresh ex parte order at each
succeeding hearing.