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TMI Blog1963 (3) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Act), and that this defect was fatal to the petition in view of s. 90 (3) thereof. This objection was heard as a preliminary objection and the tribunal came to the conclusion that as the petition was not framed in accordance with s. 82, the defect was fatal. It therefore dismissed the petition. Satrughna Sahu then appealed to the High Court under s.116-A of the Act. This appeal was heard on March 5 and 6,).962, and apparently was fixed for judgment on March 8, 1962. On March 7, an application was filed by Satrughna Sahu for withdrawal of the appeal, as he did not want to prosecute it further. It was put up for consideration on March 8, 1962, and the judgment in the main appeal, which had already been prepared for delivery, was therefore withheld pending the disposal of the withdrawal application. The contention on behalf of Satrughna Sahu was that he was entitled as of right to withdraw the appeal. He was supported in this by the appellant but the other two respondents objected to withdrawal and contended that Satrughna Sahu had no absolute right to withdraw the appeal on the analogy of 0. XXIII, r. 1 (1) of the Code of Civil Procedure, and that principles analogous to ss. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and refer it to the election tribunal for disposal. The first question therefore that falls for consideration is whether Satrughna Sahu who made the withdrawal application had an absolute right to withdraw the appeal on the analogy of the provision contained in O.XXIII, r. 1 (1), and therefore when the application for withdrawal was made in this case the High Court was bound to allow it and permit the withdrawal of the appeal. Section 116-A was inserted in the Act in 1956, and the relevant part thereof is in these terms :- ll6A. Appeals against orders of Election Tribunals-(1) An appeal shall liefromevery order made by a Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal is situated. (2)The High Court shall, subject to the provisions of this' Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter. as if the appeal were an apreal from an original decree passed by a civil court situated within the local limits Of its civil appellate jurisdiction : Provided that where the High Court consists of more than two judges every appeal under this Chapter sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wal of petitions before the election commission or the tribunal, and sub-s. (2) thereof lays down that no application for withdrawal shall be granted if in the opinion of the election commission or of the tribunal, as the case may be, such application has been induced by any bargain or consideration which ought not to be allowed. Sub-section (3) provides that if the application for withdrawal is granted, the petitioner shall be ordered to pay the costs of the respondents theretofore incurred or such portion thereof as the tribunal may think fit ; further notice of the withdrawal shall be published in the official gazette by the election commission or by the tribunal, as the case may be ; and finally any person who might himself have been a petitioner, may within fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and upon compliance with the conditions of s. 117 as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the tribunal may think fit. Section III provides for report of withdrawal by the tribunal to the election commission. Sections 112 to 116 deal with abatement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition before the tribunal but for the provisions contained in Chap. IV. It is because the provisions of the Code of Civil Procedure apply to election petitions subject to the provisions of the Act and the Rules framed thereunder that 0. XXIII, r. 1 (1) cannot be applied to the withdrawal of election petitions in view of ss. 108 to 111 thereof, but for these special provisions, 0. XXIII, r. 1 (1) would have been applicable, and it is well established that that provision gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim. This position with respect to withdrawal of an election petition is not in dispute. The question however is whether the same position applies to the withdrawal of an appeal and this brings us to the consideration of the provisions of s. 116 A of the Act, which we have already set out above. The powers of the High Court in respect of an appeal under that section are contained in sub-s. (2), which lays down that the High Court shall, subject to the Provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mply that an appeal also cannot be withdrawn as a matter of right, unless the procedure laid down in those sections is followed. One reason for this view may at once be stated. The losing party is not bound to file an appeal and if he does not, nobody else has the right to do so. The object apparently is that the election petition filed should, if any voter so desire, be heard and decided. The sections dealing with substitution on death of the petitioner lead to that view: see ss. 112-115. There is no such provision for appeals. It seems to us that if Parliament intended that the provisions of ss. 109 and 110 which deal with withdrawal of election petitions before a tribunal shall also apply to withdrawal of appeals before the High Court under Chap. IV- A an express provision could have been easily made to that effect in s. 116-A by adding a suitable provision in the section that the provisions of ss. 109 and 110 would apply to withdrawal of appeals before the High Court as they apply to withdrawal of election petitions before the tribunal. In the absence of such a provision in Chap. IV-A, we do not think that the High Court was right in importing the principles of ss. 109 and 110 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fresh suit for the same subject-matter that the permission of the court for such withdrawal is necessary. The provisions of O.XXIII r. 1 (1) and (3) also apply in the same manner to withdrawal of appeals. In Kalyan Singh v. Rahmu (I.L.R. (1901) 23 All. 130), it was held that where no objection had been filed by the respondent, the appellant had an absolute right to withdraw his appeal at any time be- fore judgment. This view was followed by the Allahabad High Court in Kanhaya Lal v. Partap Chand ((1931) 29 A.L.J. 232.), where it was held that having regard to O. XXIII, r. 1 (1) and s. 107 (2) of the Code of Civil Procedure, where no cross-objection has been filed by the respondent, an appellant has the right to withdarw his appeal unconditionally, his only liability being to pay costs. In Dhondo Narayan Shiralkar v. Annaji Pandurang Kokatnur (I.L.R. (1952) Bom, 66), it was held that an appellant is entitled as of right to withdraw his appeal, provided the respondent has not acquired any interest thereunder . There was however difference between the Allahabad and Bombay High Courts as to whether s. 107 (2) of the Code of the Civil Procedure would help an appellant in such a case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision was made by s. 116-A, that intention has not been given effect to by proper language. In any case, the position is not the same when an appeal is being withdrawn for generally speaking at that stage a trial has taken place before the tribunal which would ordinarily safeguard such purity. We therefore see no reason to import the principles of ss. 109 and 110 into withdrawal of appeals on this ground. We are, therefore, of opinion that the High Court should have allowed the application for unconditional withdrawal made by Satrughna Sahu, the appellant before it. Further the High Court in this connection need not have referred to the affidavits filed on behalf of the other two defeated candidates before it, for such affidavits were irrelevant, if Satrughna Sahu, the appellant before the High Court, was entitled to withdraw the appeal unconditionally and the High Court could not refuse such withdrawal. In the view we have taken on the first question raised before us, it is not necessary to deal with the second question, though we may add that as at present advised it seems to us that the High Court was in error in treating the application for withdrawal of the appeal as if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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