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TMI Blog1955 (3) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... h, five more witnesses on the 18th and on the 19th the case was adjourned till the 20th. On the 20th one of the appellant's three counsel, Mr, Bharat Raj, appeared but was not allowed to take any part in the proceedings because the Tribunal said that it was proceeding ex parte at that stage. Three more witnesses were then examined. On the following day, the 21st, the appellant made an application asking that the ex parte proceedings be set aside and asking that he be allowed to cross-examine those of Bhurey Lal's witnesses whose evidence had already been recorded. The Tribunal heard arguments and passed an order the same day rejecting the application on the ground that the appellant had "failed to satisfy ourselves that there was -any just or unavoidable reason preventing the appearance of respondent No. 1 himself or of any of his three learned advocates between the 17th and the 19th of March, 1953", and it added- "at all events, when para 10 of the affidavit makes it clear that Shri Bharatraj had already received instructions to appear on 17-3-1953 there was nothing to justify his non- appearance on the 18th and 19th of March, 1953, if not, on the 17th as well". The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. But this, also, is no longer open to question. The point has been decided by three Constitution Benches of this Court. In Hari Vishnu v. Ahmad Ishaque ([1955] 1 S.C.R. 1104, 1121) the effect of section 105 of the Representation of the People Act was not considered, but the Court laid down in general terms that the jurisdiction under article 226 having been conferred by the Constitution, 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([1955] 1 S.C.R. 267) and it was held that that section cannot cut down or affect the overriding powers of this Court under article 136. The same rule was applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case. 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 procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of inter-pretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppear 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 pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule 1. 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 subsequent hearings: see Sahibzada Zeinulabdin Khan v. Sahibzada Ahmed Raza Khan (5 I.A. 233, 236). 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 this. On the one side is the view propounded by Wallace, J. in Venkatasubbiah v. Lakshminarasimham (A,I.R. 1925 Mad. 1274) 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. Pribhdas (A.I.R. 1945 Sind 98, 102) 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 re- maining decisions, and there are many of them, ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance". This cannot be 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, We turn next to the adjourned hearing. That is dealt with in Order XVII. Rule I (1) empowers the Court to adjourn the hearing and whenever it does so it must fix a day "for the further hearing of the suit", except that once the hearing of the evidence has begun it must go on from day to day till all the witnesses in 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 by 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 far the adjourned hearing. In that event, the Court is thrown back to Order IX with the additional power to make "such orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the Court considers a written statement should have been put in, the consequences entailed by Order VIII, rule 10 must 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. ID 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 oil 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 inconvenienced. It is an unfortunate fact that the convenience of the witness is ordinarily lost sight of in this class of case and yet be is the one that deserves the greatest consideration. As a rule, he is not parti- cularly interested in the dispute but he is vitally interested in his own affairs which he is compelled to abandon because a Court orders him to come to the assistance of one or other of the parties to a dispute. His own business has to suffer. He may have to leave hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 thereafter a defendant can be allowed to appear in the appellate Court and can be beard 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 wetting the exparte 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 petitioners evidence alone from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not adduce as much evidence as he would have if it had been contested. He contents himself with leading just enough to establish a prima facie case. Therefore, if he is suddenly confronted with a contest after he has closed his case and the defendant then comes forward with an army of witnesses he would be taken by surprise and gravely prejudiced. That objection is, however, easily met by the wide discretion that is vested in the Court. If it has reason to believe that the defendant has by his conduct misled the plaintiff into doing what these learned Judges apprehend, then it might be a sound exercise of discretion to shut out cross-examination and the abduction of evidence on the defendant's part and to allow him only to argue at the stage when arguments are heard. On the other hand, cases may occur when the plaintiff is not and ought not to be, misled. If these considerations are to weigh, then surely the sounder rule is to leave the Court with an unfettered discretion so that it can take every circumstance into consideration and do what seems best suited to meet the ends of justice in the case before it. In the present case, we are satisfied that the Tribunal did not exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal's order, quash the order of the Tribunal and direct it to exercise the discretion vested in it by law along the lines we have indicated. In doing so the Tribunal will consider whether the plaintiff was in fact misled or could have been misled if he had acted with due diligence and caution. It will take in-to consideration the fact that the defendant did enter an appearance and did file a written statement and that issues were framed in his presence; also that the case was fixed for the "Petitioner's" evidence only and not for that of the appellant; and that the petitioner examined all the witnesses he had present on the 17th and the 18th and did not give up any of them; that he was given an adjournment on 19-3-1953 for the examination witnesses who did not come on that date and that the examined three more on 20-3-1953 after the defendant had entered an appearance through counsel an( claimed the right to plead; also whether, when the appellant's only protest was against the bearings a Udaipur on dates fixed for the petitioner's evidence alone, it would be legitimate for a party acting with due caution and diligence to assume that the other side had abandoned his right t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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