Case ID: 4244

Judgment:
Civil Appeal No. 1950 of 1979 From the Judgment and Order dated 24 4 1979 of the Andhra Pradesh High Court in Election Petition No. 8/78. Govindan Nair and A. Subba Rao for the Appellant. P. P. Rao	 T. Ramachandran	 K. Ramkumar and Venkataramani for the Respondent. The Judgment of the Court was delivered by KAILASAM	 J. This appeal by Shri Thammanna is directed against a judgment	 dated April 24	 1979 of the High Court of Andhra Pradesh	 whereby the election petition filed by Shri V. Krishna Reddy	 respondent 7 herein	 against the returned candidate	 Shri K. Veera Reddy (Respondent 1 herein) was dismissed. The material facts are these: In the elections held for the Andhra Pradesh Legislative Assembly in February	 1978 respondents 1 to 4	 6	 7 and the appellant filed their nominations for Amarchinta Assembly Constituency. Polling took place on February 25	 1978 and Shri K. Veera Reddy	 respondent 1	 was declared elected on February 27	 1978. He secured 34727 votes while his nearest rival	 respondent 2	 got 29	419 votes. The appellant obtained 822 votes only. Shri V. Krishna Reddy	 (Respondent 7 herein)	 being a voter for 198 Amarchinta Assembly Constituency in Mahabubnagar District filed an election petition in the High Court to get the election of the first respondent declared void on the ground that on the date of filing the nomination paper as well as on the date of the election	 this respondent had subsisting contracts with the Government of Andhra Pradesh and as such	 he was under Section 9A of the Representation of the People Act	 1950 (hereinafter referred to as the Act) disqualified to be chosen to fill the seat. All the candidates who had filed their nominations	 were joined in the election petition as respondents. The appellant was impleaded as original respondent 5. The election petition was contested by respondent 1	 (K. Veera Reddy) only. The appellant (i.e. original Respondent 5) did not file any written statement. He did not lead any evidence	 nor did he cross examine the witnesses produced by respondent 1 or the Election Petitioner. He did not participate even in the arguments. A preliminary objection has been raised by the learned counsel for respondent 1. It is submitted that Shri Thammanna is not competent to maintain this appeal	 because he does not fulfil the character 76 of a "person aggrieved" by the judgment of the High Court. It is emphasised that it was not necessary for the election petitioner to join Shri Thammanna as a respondent because no relief was claimed against him; that he was impleaded as respondent 5 only as a matter of form that he did not participate in the proceedings before the High Court; nor joined issue with Respondent 1. It is pointed out that according to the judgment of the High Court	 the contest was only between the Election Petitioner and Respondent 1	 while the original Respondents 2 to 7	 including Thammanna	 were proceeded against ex parte. In short	 the objection is that since the appellant could not be said to be a party adversely affected by the judgment of the High Court	 he has no locus standi to prefer this appeal. In reply	 Shri Govindan Nair	 learned counsel for the appellant submits that Shri Thammanna was not a mere proforma respondent but was a person who was entitled to apply and join as a party under Section 86(4) of the Act within fourteen days from the date of commencement of the trial and subject to any order as to security for costs. Such a person is entitled under the law by virtue of his status as a party respondent to file an appeal against the decision of the High Court	 if he feels aggrieved by the same. The very fact that the original respondent 5	 has filed this appeal shows that he is a person aggrieved by the decision of the High Court	 dismissing the Election Petition. It is maintained that the mere fact that the appellant did not file any written statement or participate actively in proceedings before the High Court	 or that the Election Petitioner has not joined him as a co appellant	 is not sufficient to deny him the status of a "person aggrieved". It is argued that in an election petition	 the petitioner is not the dominus litis but acts as a representative of the whole body of electors in the constituency	 that is why an election petitioner cannot at his sweet will abandon the election petition or withdraw from it without complying with the procedure prescribed	 and if he does so	 in view of sections 109 and 110 of the Act	 the Court can allow another voter or respondent to continue the petition. According to the counsel	 since an appeal is only a re hearing of the original petition any party to the original proceedings who feels aggrieved	 is entitled	 in accordance with the principle underlying Sections 108 and 109 of the Act	 to file an appeal	 even if the original Election Petitioner neglects or abstains from doing so. Shri Nair further submits that the High Court has wrongly stated that the appellant (being original respondent 5) was also proceeded against ex parte; that	 in fact	 the appellant was present in the High Court on most of the dates of hearing	 although he remained quiescent. 77 In the alternative	 it is submitted that if it is assumed that the appellant was proceeded against ex parte in the High Court	 the final determination in the impugned judgment will be deemed to be in the nature of an ex parte decree against him. In that view of the matter also	 according to the learned counsel	 the appellant has the necessary locus to maintain this appeal	 against that ex parte determination. In support of his contention	 Shri Nair has referred to K. K. Kamaraja Nadar vs Kunju Thevan and Ors(1)	 Inamati Mallappa Basappa vs Desai Basavaraj Ayyappa & Ors.(2)	 A. Sreenivasan vs Election Tribunal	 Madras(3) and Adi Pherozshah Gandhi vs H. M. Seervai	 Advocate General of Maharashtra	 Bombay.(4) Before dealing with the contentions advanced on this preliminary point	 let us have a look at the relevant provisions of the Act and the Code of Civil Procedure. Section 87(1) of the Act lays down that every election petition shall be tried by the High Court	 as nearly as may be	 in accordance with the procedure applicable under the Code of Civil Procedure	 1908 to the trial of suits. In other words the provision of the Code of Civil Procedure apply to the trial of an election petition only where there is no express provision in the Act and there is no inconsistency with the Act. Section 98 indicates the categories of orders which the High Court may make at the conclusion of the trial of an election petition. Such an order may be an order "(a) dismissing the election petition	 or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. " Section 99 requires that the High Court shall at the time of making an order under Section 98 in the case where any charge of corrupt practice having been committed at the election is proved	 make a further order naming the person or persons guilty of the corrupt practice and also paying costs. Section 116A runs thus: "Notwithstanding anything contained in any other law for the time being in force	 an appeal shall lie to the Supreme Court 78 on any question (whether of law or fact) from every order made by a High Court under Section 96 or Section 99. " Sub section (2) prescribes a period of thirty days limitation within which such an appeal is to be preferred. In this context Section 116C may also be seen. It reads as follows: "116C(1) Subject to the provisions of this Act and of the rules	 if any	 made thereunder	 every appeal shall be heard and determined by the Supreme Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of an appeal from any final order passed by a High Court in the exercise of its original civil jurisdiction; and all the provisions of the Code of Civil Procedure	 1908 and the Rules of the Court (including provisions as to the furnishing of security and the execution of any order of the Court) shall	 so far as may be	 apply in relation to such appeal. " It may be seen that although Section 116A confers a right of appeal from an "order" made under Section 96 or 99	 and Section 116C from "any final order" passed by the High Court in proceedings in an election petition	 neither of these two sections mentions or catalogues the person or persons who have a right of appeal against such orders. Barring the exceptional provision in Section 116A	 which marks a departure from the Code of Civil Procedure	 Section 116C is substantially analogous to Section 96(1) of the Code of Civil Procedure	 1898 which provide "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force	 an appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court authorized. " Just as the term "decree" in Section 96(1) of the Code means an adjudication which "conclusively determines all or any of the matters in controversy in the suit"	 the expression "any final order" as used in Section 116C of the Act contemplates a conclusive determination of all or any of the matters in controversy in the election petition between the parties. Clauses (a)	 (b) and (c) of Section 98 illustrate such "final orders" which have been made appealable under Section 116C of the Act. In the instant case	 the order sought to be impeached in this appeal is of the category mentioned in clause (a) of Section 98 of the Act. Section 98 also does not specifically mention as to who can appeal against the final orders mentioned therein. Section 116C of the Act makes the Code of Civil Procedure applicable to the hearing and determination of appeals filed under the Act. Since the substance and principle embodied in Section 96(1) of 79 the Code is not inconsistent with anything in the Act	 we may legitimately look for guidance to Section 96 (1) and other provisions of the Code and also the general principles which govern the right of appeal thereunder. This being the position	 the basic conditions and postulates which govern the right of appeal under Section 96(1) of the Code will apply to an appeal under Section 116C of the Act	 also. As a general proposition	 therefore	 it may safely be stated that before a person is entitled to maintain an appeal under Section 116C	 all the conditions mentioned below	 must be satisfied: (1) that the subject matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy	 between the parties in the election petition	 (2) that the person seeking to appeal has been a party in the election petition	 and (3) that he is a "person aggrieved"	 that is a party who has been adversely affected by the determination. 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 Court. It was not obligatory for the Election Petitioner to join the appellant as a respondent. There were no allegations or claims in the election petition which would attract Section 82 of the Act. From that point of view	 the appellant was not a necessary party to be impleaded. Of course	 if the appellant had made an application within the time prescribed	 in compliance with Section 86(4) of the Act	 the Court would have been bound to join him as a respondent. But the question of Section 86 (4) coming into play never arose as the Election Petitioner had already impleaded the appellant as Respondent 5 in the election petition. Even so	 Respondent 5 did not join the controversy. He neither joined issue with the contesting respondent 1	 nor did he do anything tangible to show that he had made a common cause with the Election Petitioner against Respondent 1. In fact	 the only parties between whom the matters in controversy were at issue	 were the Election Petitioner and Respondent 1. The other respondents	 including the appellant	 did not participate or side with either contestant in that controversy. 80 Although the meaning of the expression "person aggrieved" may vary according to the context of the statute and the facts of the case	 nevertheless	 normally "a 'person aggrieved ' must be a man who has suffered a legal grievance	 a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something." (As Per James L. J. in Re Sidebothem referred to by this Court in Bar Council of Maharashtra vs M.V. Dabholkar(1) and J. N. Desai vs Roshan Kumar.(2) 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 petition. 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 purpose 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 sweet will. Section 109 provides: "(1) An election petition may be withdrawn only by leave of the High Court. (2) Where an application for withdrawal is made under sub section (1) notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the Official Gazette. " Section 110 provides the procedure for withdrawal of an election petition. Its sub section (2) mandates that "no application for withdrawal shall be granted if	 in the opinion of the High Court	 such application has been induced by any bargain or consideration which ought not to be allowed". Sub section (3) lays down that if the application for withdrawal is granted	 the petitioner shall be ordered to pay the whole or part of the costs incurred by the respondent. It further requires that notice of withdrawal shall be published in the Official Gazette. Clause (c) of Sub section (3) is material. It provides that any person who might himself have been a petitioner	 may within 81 fourteen days of such publication	 apply to be substituted as petitioner in place of the party withdrawing	 and on compliance with the conditions as to security	 shall be entitled to be substituted and continue the proceedings upon such terms as the High Court may deem fit. Section 111 provides for report of the withdrawal by the High Court to the Election Commission. Section 112(1) provides for abatement of election petition on death of the sole petitioner. Sub section (2) requires the fact of abatement to be published. Sub section (3) entitles any person who might himself have been a petitioner to apply and be substituted in place of the deceased to continue the proceeding upon such terms as the High Court may think fit. Section 116 makes a similar provision on the death of a respondent. As pointed out in Bijayananda Patnaik vs Satrughna Sahu(1)	 the principle behind these provisions is that "an election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public of the constituency also is substantially interested in it	 as an election is an essential part of the democratic process. That is why provision is made in election law circumscribing the right of the parties thereto to withdraw. Another reason for such provision is that the citizen 's at large have an interest in seeing and they are justified in insisting that all elections are fair and free and not vitiated by corrupt or illegal practices. That is why provision is made for substituting any elector who might have filed the petition in order to preserve the purity of elections. " But it is equally clear from the language	 setting and scheme of the provision 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 Court. 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 provision relating to Appeals in Sections 116A	 116B and 116C	 have been included separately	 in Chapter `IV A '	 captioned "APPEALS". Secondly	 Section 116C	 as already noticed	 enjoins upon the Supreme Court to hear and 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 the rules if any	 made thereunder". But this clause 82 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 appellant 's 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 provision of Sections 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 116C or elsewhere in Chapter IV A. In this view we are fortified by the decision of this Court in Bijayananda Patnaik 's case (ibid). In that case the provisions of Sections 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	 B 's 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. 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 Chap. IV A dealing with appeals	 which deals with the question of withdrawal of appeals under that Chapter. Nor do we think that sections 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 83 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 sections 112 115. There is no such provision for appeals. It seems to us that if Parliament intended that the provisions of sections 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 section 116 A by adding a suitable provision in the section that the provisions of sections 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 sections 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 Chapter 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 sections 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 section 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 sections 109 and 110 of the Act	 which expressly deal only with election petitions and not with appeals under section 116 A." 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. 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 84 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. 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 proceeding 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 fulfilled 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. We	 therefore	 allow this preliminary objection and on that ground dismiss this appeal with costs. section R. Appeal dismissed.

Summary:
One V. Krishna Reddy filed an election petition against Veera Reddy	 respondent No. 1	 a returned candidate in the elections held for the Andhra Pradesh Legislative Assembly in February	 1978 on the ground that the returned candidate was disqualified to be chosen to fill the post under Section 9A of the Representation of People Act	 1951 inasmuch as he has subsisting contracts with the Government of Andhra Pradesh. The appellant	 Thammarna was impleaded as original respondent No. 5 though he is not a necessary party. He did not file any written statement. Neither did he lead any evidence nor did he cross examine the witnesses produced by respondent No. 1 and the election petitioner. In fact	 he did not even participate in the arguments before the High Court. In the appeal filed by Thammanna against the Judgment dated April 24	 1979 of the High Court of Andhra Pradesh dismissing the election petition filed by Krishna Reddy	 a preliminary objection was raised as to whether the appellant had the locus standi to maintain the appeal. Dismissing the appeal	 the Court	 ^ HELD: (1) The appellant cannot	 by any reckoning	 be said to be a 'person aggrieved ' by the decision of the High Court	 dismissing the Election Petition. [84C] (2) Before a person is entitled to maintain an appeal under Section 116C of the Representation of the People Act	 1951 which is analogous to Section 96(1) of the Civil Procedure Code	 all the following three conditions must be satisfied: (1) that the subject matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy	 between the parties in the election petition. (2) that the person seeking to appeal has been a party in the election petition	 and (3) that he is a "person aggrieved"	 that is a party who has been adversely affected by the determination. In the present case	 these conditions	 particularly Nos. (1) and (3) have not been fulfilled. [79B D] 74 (3) Just as the term "decree" in Section 96(1) of the Civil Procedure Code means an adjudication which "conclusively determines all or any of the matter in controversy in the suit"	 the expression "any final order" as used in Section 116C of the Representation of the People Act contemplates a conclusive determination of all or any of the matters in controversy in the election petition between the parties. [78F G] (4) The appellant was not a necessary party to be impleaded as there was no allegations or claims in the election petition which would attract section 82 of the Representation of the People Act. In this case	 the question of the Court joining him as a party respondent under Section 86(4) of the Act also did not arise	 as he was impleaded before the High Court as respondent No. 5 though it was not obligatory for the Election Petitioner to do so. Even so	 respondent No. 5 did not join the controversy. He neither joined issue with the contesting respondent No. 1 nor did he do anything tangible to show that he had made a common cause with the Election Petitioner against respondent No. 1. In fact	 the only parties between whom the matters in controversy	 were at issue	 were the Election Petitioner and Respondent No. 1. [79F H] (5) Although the meaning of the expression "person aggrieved" may vary according to the context of the statute and the facts of the case	 nevertheless	 normally a 'person aggrieved ' must be a man who has suffered a legal grievance	 a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something	 or wrongfully affected his title to something. [80A B] Bar Council of Maharashtra vs M. V. Dabholkar	 [1975] 2.S.C.C. 703 and J. N. Desai vs Roshan Kumar A.I.R. 1976 S.C. 576 at p. 534 referred to. (6) The principle that 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 Representation of the People Act and its application cannot be extended to appeals under the Act. 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 provision relating to Appeals in Sections 116A	 116B and 116C	 have been included separately	 in Chapter 'IV A '	 captioned "APPEALS". [81E G	 83G H	 84A] Secondly	 Section 116C	 enjoins upon the Supreme Court to hear and 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 provision of Sections 109 to 116 which apply to the withdrawal of election petition	 should also govern the withdrawal of appeals	 there was no difficulty in inserting similar provisions in Section 116C or elsewhere in Chapter IV A. [81G H	 82A C] 75 Bijayananda Patnaik vs Satrughna Sahu	 [1964] 2 S.C.R. 538 at p. 545	 followed.