Appeal No 214 of 1954
Appeal under Article 133 1 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 Rastogi and Ganpat Rai for the appellant
R C Prasad for section L Chhibber 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 Tribunal proceeded ex parte after waiting till 1 15 Pm
The Tribunal examined Bhurey Lal and two witnesses on the 17th 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 5 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 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 1 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 more than two months previously
Five months later on 16 12 1953 the High Court granted a certificate under article 1331 C of the Constitution for leave to appeal to this Court
The only question before the High Court was whether the Tribunal was right in refusing to allow the appellant s counsel to appear and take part in the proceedings on and after the 20th of March 1953 and the first question that we have to decide is whether that is sufficient ground to give the High Court jurisdiction 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 vs Ahmad Ishaque1 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 op portunity 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 1951 Act XLIII of 1951 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  1121 7 But this also is no longer open to question
The point has been decided by three Constitution Benches of this Court
In Hari Vishnu vs Ahmad Ishaque1 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 vs Raghuraj Singh1 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 applied to article 226 in Rai Krushna Bose vs Binod Kanungo and others1 and it was decided that section 105 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 in ferior tribunal
It is a part of the law of the land which cannot be finally deter mined or altered by any tribunal of limited jurisdiction
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 136
Therefore the jurisdiction of the High Courts under article 226 with that of the Supreme Court above them remains to its fullest extent despite section 105
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 226
Their powers are purely discretionary and though no 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 ensued 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
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 9 pretation should therefore be guarded against provided always that justice is done to both sides lest the very means designed for the furtherance of justice be used to frustrate it
Next there must be ever present to the mind the fact that our laws of procedure are grounded on a 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 as unworkable and impractical by O Sullivan J in Hariram vs Pribhdas1
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 vs Misrimal1
But that a law of natural 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 Balakrighna Udayar vs Vasudeva Ayyar3 and especially in T M Barret vs African Products Ltd1 where Lord Buckmaaster said Do 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 vs Lakshminarassimham5 in holding that One cardinal principle to be observed in trials by a Court obviously is that a party has a right to 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 both 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 11 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 1       a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified
This summons must state whether the hearing is to be for settlement of issues only or for final hearing rule 5
If it is for final hearing 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 1 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 appear 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 62 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 I of Order IX starts by saying On the day fixed in the summons for the defendant to appear and answer         12 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 1c of adjournment in rule 7 and of adjournment in 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 vs Sahibzada Ahmed Raza Khan1
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 vs Lakshminarasimham2 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 vs Pribhdas3 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 exparte order
Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the Court is authorised to make
All that rule 6 1 a does is to remove a bar and no more
It merely 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 parte decree on that date because of the proviso to Order XV rule 31 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 parte 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 appears 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 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 14 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 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 proceedings 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 neces 15 sary to hark back to the first hearing
We have already seen that when a summons is issued to the defendant it must state whether the hearing is for the settlement of issues only or for the final disposal of the suit Order V rule 5
In either event Order VIII rule I comes into play and if the defendant does not present a written statement of his defence the Court can insist that he shall and if on 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
This invests the Court with the widest possible discretion and enables it to see that justice is done to both 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 appearat the first hearing the Court can proceed exparte 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 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 16 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 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 accommodation 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 compen sation 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 passed exparte against a defendant who has not appeared
The Privy Council held in Sahibzada Zeinulabdin Khan vs Sahibzada Ahmed Raza Khan   that this only applied to a defendant who had not appeared at all at any stage therefore if once an appearance was entered the right of appeal was not taken away
of the grounds of their decision was that The general rule 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 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 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 contention 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 IA 233
3 18 views the position is that once an ex parte order is Passed against a defendant he cannot take further part in the proceedings unless he gets that corder set aside by showing good cause under rule 7
But that is by no means the case
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 so called ex parte order and if it thinks they are tied 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 vs Sri Krishna1  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
But this proceeds on the mistaken assumption that an ex parte order is required
The order sheet or minutes of the proceedings has to show which of the parties were present and if a party is absent the Court records that fact and then records whether it will proceed ex parte against him that is to say proceed in his absence or whether it will adjourn the hearing and it must necessarily record this fact at every subsequent bearing because it has to record the presence and absence of the parties at each hearing
With all due deference to the learned Judges who hold this view we do not think this is a grave or a sound objection
A much weightier consideration is that the plaintiff may be gravely prejudiced in a given case because as the learned Rajasthan Judges point out and as O Sullivan J thought when a case proceeds ex partethe plaintiff 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 exercise its discretion because it considered that it had none and thought that until the ex parte order was set aside the defendant could not appear either personally or through counsel
We agree with the Tribunal and with the High Court that no good cause was shown and so the defendant had no right to be relegated to the position that he would have occupied if he had appeared on 17 3 1953 but that he had a right to appear through counsel on 20 3 1953 and take part in the proceedings from the stage at which they had then reached subject to such terms and conditions as the Tribunal might think fit to impose is we think undoubted
Whether he should have been allowed to cross examine the three witnesses who were examined after the appearance of his counsel or whether he should have been allowed to adduce evidence is a matter on which we express no opinion for that has to depend on whatever view the Tribunal in a sound exercise of judicial discretion will 20 choose to take of the circumstances of this particular case but we can find no justification for not at least allowing counsel to argue
Now the Tribunal said on 23 3 1953 The exact stage at which the case had reached before us on the 21st of March 1953 was that under the clear impression that respondent No 1 had failed to appear from the very first date of the final hearing when the ex parte order was passed the petitioner must have closed his case after offering as little evidence as he thought was just necessary to get his petition disposed of exparte
Therefore to all the respondent No 1 to step in now would certainly handicap the petitioner and would amount to a bit of injustice which we can neither contemplate nor con done
But this assumes that the petitioner was misled and closed his case after offering as little evidence as he thought was just necessary to get his petition disposed of ex parte
It does not decide that that was in fact the case
If the defendant s conduct really gave rise to that impression and the plaintiff would have adduced more evidence than he did the order would be unexceptional but until that is found to be the fact a mere assumption would not be a sound basis for the kind of discretion which the Court must exercise in this class of case after carefully weighing all the relevant circumstances
We therefore disagreeing with the High Court which has upheld the 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 21 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 to adduce his own evidence should the hearing for that be fixed at some other place or at some other date in the same place
The Tribunal will also consider and determine whether it will be proper in the circumstances of this case to allow the appellant to adduce his own evidence
The Tribunal will now reconsider its orders of the 20th the 21st and the 23rd of March 1953 in the light of our observations and will proceed accordingly
The records will be sent to the Election Commission with directions to that authority to reconstitute the Tribunal if necessary and to direct it to proceed with this matter along the lines indicated above
There will be no order about costs


Summary:
Notwithstanding the provision in section 105 of the Representation of the People Act Act XLIII 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 legally or otherwise This jurisdiction 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 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 jurisdiction
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 136 of the Constitution
The jurisdiction of the High Courts under Article 226 with that of the Supreme Court above them re main it  fullest extent despite section 105 of the Representation 2 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 discretionary 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 entertain 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 Subsequent 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 ex 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 1 Under section 902 of the Representation of the People Act the procedure for the trial of election petitions is to be 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 oil 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 is entered and the party so appearing cannot 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 party a right to be 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
O 17 r 2 applies at the adjourned hearing and there the Court is given a wide discretion to make such order as it thinks fit
3 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 procedure are grounded on the 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
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 inconvenienced
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 com pelled 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 cases fairly squarely
The Court must in every case exercise the discretion given to it
Its hands are not tied by a so called ex parts 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 a 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 vs Ahmed Ishaque 1955 1 SCR 1104 Darga Shankar Mehta vs Thakur Raghuraj Singh 1955 1 SCR 267 and Raj Krushna Bose vs Binod Kanungo 1954 SCR 913 918 applied
Hariram vs Pribhdas AIR 1945 Sind 98 102 distinguished
Sewaram vs Misrimal AIR  14 overruled
Venkatasubbiah vs Lakshminarasimham AIR  approved Balakrishna Udayar vs Vasudeva Ayyar ILR  4 T M Barret vs African Products Ltd AIR 1928 PC 261 262 and Sahibzada Zeinitlabdin Khan vs Sahibzada Ahmed Baza Khan 5 IA 233 236 applied
Case remitted to the Tribunal