Case: Thammanna Vs. K. Veera Reddy &amp; Ors

case the provisions of Ss. 116-A, 109 to 116 of the Act, as they stood before the Amendment of 1966, came up for consideration. The facts were that one S. filed an election petition against the appellant B who had been declared elected to the State Legislative Assembly. On the appellant, Bs application, the Tribunal dismissed the petition under Section 90 (3), for non-compliance with the provisions of Section 82 of the Act. S. went in appeal under Section 116-A to the High Court. Subsequently, S. applied for withdrawal of the appeal but the High Court refused to permit withdrawal, holding that it had to be guided by the principles of Sections 109 and 110 of the Act in considering the application for withdrawal. 26. In appeal by special leave, this Court held that S. had an absolute right to withdraw the appeal and the High Court was bound to grant him permission to do so. In this connection, the observations made by Wanchoo J. (as he then was) speaking for the Court, at page 547 of the Report, are apposite and may be extracted : When sub-section (2) says that the powers, jurisdiction and authority of the High Court is subject to the provisions of the Act, it means that the provision must be an express provision in the Act or such as arises by necessary implication from an express provision................ There is however, no. express provision in Chapter IV-A dealing with appeals, which deals with the question of withdrawal of appeals under that Chapter. Nor do we think that Ss. 109 and 110 necessarily imply that an appeal also cannot be withdrawn as a matter of right, unless the procedure laid down in those sections is followed.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 desires 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 in the matter of withdrawal of appeals before the High Court. So far therefore as the question of withdrawal of appeals before the High Court under Chap. IV-A is concerned, it seems to us that the High Court has the same powers, jurisdiction and authority in the matter of withdrawal as it would have in the matter of withdrawal of an appeal from an original decree passed by a Civil Court within the local limits of its civil appellate jurisdiction without any limitation on such powers because of Ss. 109 and 110. The High Court thus has the same powers, jurisdiction and authority and has to follow the same procedure in the matter of withdrawal of appeals under S. 116-A as in the matter of an appeal from an original decree before it, and there is no. warrant for importing any limitation in the matter on the analogy of Ss. 109 and 110 of the Act, which expressly deal only with election petitions and not with appeals under S. 116-A. 27. On the above reasoning, it was further held that the provisions, regarding withdrawal applicable to ordinary Civil Appeals before the High Court are applicable, also, to appeals under Section 116-A. Under Order XXIII, Rule 1 (1) of the Code of Civil Procedure, an appellant has the right to withdraw his appeal unconditionally; and if he is to make such application, the High Court has to grant it. 28. If an appellant, who is an aggrieved person under Section 116-C of the Act, has got a right to withdraw or abandon his appeal unconditionally a fortiori, he has every right not to file an appeal against the dismissal of his Election Petition, much less has any other respondent who never joined the contest in the Election Petition, a right to file an appeal if the aggrieved party does not do so. In other words, the principle that an Election Petition is a representative action on behalf of the whole body of electors in the constituency, has a very limited application to the extent it has been incorporated in Sections 109 to 116 of the Act, and its application cannot be extended to appeals under the Act. 29. In the instant case, the appellant or any other elector did not make any application or complaint at the trial of the Election Petition in the High Court, that the election-petitioner has abandoned the prosecution of the petition or withdrawn from it and that the applicant be substituted for the election-petitioner to continue the proceedings under Section 110 (3) (c) of the Act. It will bear repetition that the appellant took no. interest, whatever, in the controversy in the Election Petition which was confined only to the election-petitioner and respondent 1. Conditions 1 and 3, the satisfaction of which is necessary to give locus standi to a person to file an appeal under Section 116-C, have not been filled in the instant case. The appellant cannot, by any reckoning, be said to be a person aggrieved by the decision of the High Court, dismissing the Election Petition.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In the present case, these conditions, particularly Nos. (1) and (3), have not been fulfilled. Before the High Court the appellant did not, at any stage, join the contest. He did not file any written statement or affidavit. He did not engage any counsel. He did not cross-examine the witnesses produced by the Election-Petitioner and the contesting respondent 1. He did not appear in the witness box. He did not address any arguments. In short, he did nothing tangible to participate in the proceedings before the High Court18. In the face of the stark facts of the case, detailed above, it is not possible to say that the appellant was aggrieved or prejudicially affected by the decision of the High Court, dismissing the election-petition19. We are further unable to accept the wide argument, that since an election petition is in the nature of a representative action on behalf of the whole body of electors in the constituency, on neglect or failure of the election-petitioner to file an appeal against the order of dismissal of his election-petition, any other elector, particularly who is a respondent in the election-petition, can, in view of Sections 109/110 of the Act, be substituted for him for the purpos of filing and continuing the appeal. It is true that an election-petition once filed cannot be abandoned or withdrawn by the petitioner at his sweetwill22. But it is equally clear from the language, setting and scheme of the provisions in Sections 109 to 116, that they do not, either in terms, or, in principle, apply to appeals or the procedure to be followed at the appellate stage before the Supreme Court23. Firstly, these provisions are to be found in Chapter IV, under the main Caption : Withdrawal and Abatement of Election Petitions. Then, the provisions of these sections, also, repeatedly refer to the withdrawal or abatement of election-petitions and also to procedure in respect thereof before the High Court. The provisions relating to Appeals in Sections 116-A, 116-B and 116-C, have been included separately, in Chapter IV-A, captioned; Appeals24. Secondly, Section 116-C, as already noticed, enjoins upon the Supreme Court to hear determine every appeal under this Act in accordance with the provisions of the Code of Civil Procedure and the Rules of the Court. No. doubt this is subject to the provisions of the Act and the rules if any, made thereunder. But this clause only means that the provisions of the Code and the Rules of the Court in hearing an appeal to this Court will apply except to the extent their application has been excluded, expressly or by necessary implication by any provision of the Act. There is no. provision in Chapter IV-A of the Act, analogous to Sections 109 to 116 of the Act which curtails, restricts or fetters an appellants right to withdraw an appeal. Nor is there any such provision in the Code or the Rules of this Court which does so. If the intention of the Legislature was that the provisions of Secs. 109 to 116 which apply to the withdrawal of election-petitions, should also govern the withdrawal of appeals, there was no. difficulty in inserting similar provisions in Section 116-C or elsewhere in Chapter IV-A25. In this view we are fortified by the decision of this Court in Bijayananda Patnaiks case (ibid). (AIR 1963 SC 1566  ). In that case the provisions of Ss. 116-A, 109 to 116 of the Act, as they stood before the Amendment of 1966, came up for consideration. The facts were that one S. filed an election petition against the appellant B who had been declared elected to the State Legislative Assembly. On the appellant, Bs application, the Tribunal dismissed the petition under Section 90 (3), for non-compliance with the provisions of Section 82 of the Act. S. went in appeal under Section 116-A to the High Court. Subsequently, S. applied for withdrawal of the appeal but the High Court refused to permit withdrawal, holding that it had to be guided by the principles of Sections 109 and 110 of the Act in considering the application for withdrawal26. In appeal by special leave, this Court held that S. had an absolute right to withdraw the appeal and the High Court was bound to grant him permission to do so28. If an appellant, who is an aggrieved person under Section 116-C of the Act, has got a right to withdraw or abandon his appeal unconditionally a fortiori, he has every right not to file an appeal against the dismissal of his Election Petition, much less has any other respondent who never joined the contest in the Election Petition, a right to file an appeal if the aggrieved party does not do so. In other words, the principle that an Election Petition is a representative action on behalf of the whole body of electors in the constituency, has a very limited application to the extent it has been incorporated in Sections 109 to 116 of the Act, and its application cannot be extended to appeals under the Act29. In the instant case, the appellant or any other elector did not make any application or complaint at the trial of the Election Petition in the High Court, that the election-petitioner has abandoned the prosecution of the petition or withdrawn from it and that the applicant be substituted for the election-petitioner to continue the proceedings under Section 110 (3) (c) of the Act. It will bear repetition that the appellant took no. interest, whatever, in the controversy in the Election Petition which was confined only to the election-petitioner and respondent 1. Conditions 1 and 3, the satisfaction of which is necessary to give locus standi to a person to file an appeal under Section 116-C, have not been filled in the instant case. The appellant cannot, by any reckoning, be said to be a person aggrieved by the decision of the High Court, dismissing the Election Petition.