Sangram Singh vs Election Tribunal, Kotah

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1955 Supreme(SC) 26

SUPREME COURT OF INDIA
BOSE, JAGANNADHA DAS AND SINHA JJ.
Sangram Singh, Appellant
Versus
Election Tribunal Kotah and another, Respondents.
Civil Appeal No. 214 of 1954.
22nd March 1955
Advocates appeared
Mr. R. K. Rastogi and Mr. Ganpat Rai, Advocates, for the Appellant; Mr. R. C. Prasad, Advocate for Mr. S. L. Chhibber, Advocate, for Respondent (No. 2).

Advocates:
GANPAT RAI, R.C.Prasad, R.K.RASTOGI, S.L.CHHABRA

Headnote:DISTINCTION BETWEEN SECTIONS 27, 30 AND 32 - “FIRST HEARING” - EX PARTE - EX PARTE HEARING - SCOPE AND APPLICABILITY - ELECTION PETITIONS UNDER REPRESENTATION OF PEOPLE’S ACT - ADJOURNED HEARING - order of ex parte — powers of the election tribunal - application of order 1, rule 7 of the code of civil procedure to election petitions - POWER OF HIGH COURT UNDER ARTICLE 226 IS NOT THAT OF COURT OF APPEAL—THE POWERS ARE DISCRETIONARY - FIRST HEARING OF THE SUIT - FAILURE OF PARTIES OR ANY OF THEM TO APPEAR ON ADJOURNED DATE
       -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 for a summons under Section 30 may entail punishment. The spirit of this distinction must be carried over to the First Schedule. The Supreme Court deprecated the tendency of some Judges to think in terms of punishments and penalties properly so called when they should instead be thinking of compensation and avoidance of injustice to both sides
       -signifies the day for the settlement of issue
       -if the defendant does not appear at the first hearing, the Court can proceed ex parte, which means that it can proceed without a written statement; and Order 9, 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 it, the consequences entailed by Order 8, Rule 10, must be suffered
       -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 9, Rule 6. “Ex parte” means that the Court can proceed without a written statement
       -this rule 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 8, Rule 10, must be suffered - Sangram Singh v. Election Tribunal, AIR 1955 SC 425. Where the hearing of the suit is completed and the case is posted for judgment. Rule 7, would have no application and the matter will stand at the stage of Rule 6, to be followed up by the passing of the ex parte decree making Rule 13, the only provision in Order 9, as applicable - Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993.
       -this Rule applies
       -this rule provides that if at “adjourned hearing” the defendant appears and shows good cause for his “previous non-appearance” he can be heard in answer to the suit
       -the first hearing of the suit is either for the settlement of the issue or for final hearing, Sangram Singh v. Electric Tribunal, AIR 1955 SC 425, when after framing of issues, the suit is posted for trial, that is production of evidence. “The first hearing of the suit can never be earlier than the date fixed for preliminary examination of the parties under Order 10, Rule 1 and the settlement of issues under Order 14, Rule 1(5) of the Code,
       -the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit. Court may act under Order 9, but it is not bound to do so, as stated by the Supreme Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425. There are three courses left to the court—(i) to act under Order IX, though it is not bound to do so; (ii) to grant further adjournment; or (iii) to make such other order as it may deem fit.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points summarized:

The first hearing of a suit can serve either for the settlement of issues or for final disposal, and the procedure varies accordingly (!) (!) .
If a defendant does not appear at the first hearing, the court may proceed ex parte, meaning without a written statement from the defendant, unless good cause is shown for the non-appearance (!) (!) .
The right to proceed ex parte is a procedural right that accrues on a day-to-day basis, and the court can proceed in the absence of a party at each adjourned hearing unless the party shows sufficient cause for previous non-appearance (!) (!) .
The distinction between penalties and consequences in procedural rules emphasizes that non-appearance does not necessarily involve punishment but may lead to adverse procedural consequences, such as proceeding ex parte or dismissing the case (!) (!) .
The court’s discretion in managing hearings includes considering the ends of justice, fairness to witnesses, and the overall circumstances of each case, rather than rigidly adhering to procedural formalities (!) (!) .
The procedure is grounded in principles of natural justice, notably the right to be heard and to participate in proceedings affecting one’s rights, with exceptions only where explicitly provided (!) (!) (!) .
The rules provide that if a party fails to appear, the court may proceed ex parte, but this does not automatically preclude the party from participating later if they show good cause for their previous non-appearance (!) (!) .
At subsequent hearings, the court retains broad discretion to manage the proceedings, including whether to allow parties to adduce evidence or cross-examine witnesses, aiming to serve the ends of justice (!) (!) .
The exercise of discretion by the court must be sound, based on the circumstances, and aimed at avoiding injustice, rather than rigidly applying procedural rules without regard to the overall context (!) (!) .
The procedural rules and the court’s discretion are designed to facilitate justice, ensuring parties are not unfairly deprived of their rights, while also considering practical issues such as witnesses’ convenience and the efficient conduct of proceedings (!) (!) (!) .

Please let me know if you need a more detailed analysis or specific legal advice.

Judgment

BOSE J.: Respondent 2, Bhurey Lal filed an election.petition under S. 100, Representation of the People Act against the appellant Sangram Singh and two others for setting aside Sangram Singh s election.

2. 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.

3. 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- P. M.

4. 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.

5. On the 20th one of the appellant s three counsel, Mr. Bharat Raj, appeared but was not allowed to take any part in the proceedings because the Tribunal said that it was proceeding ex parte at that stage. Three more witnesses were then examined.

6. On the following day, the 21st, the appellant made an application asking that the ex parte proceedings he set aside and asking that he be allowed to cross-examine those of Bhurey Lal s witnesses whose evidence had already been recorded.

7. 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 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."

8. The appellant thereupon filed a writ petition under Art. 226 of the Constitution in the High Court of Rajasthan and further proceedings before the Tribunal were stayed.

9. 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 Art. 133 (1) (c) of the Constitution for leave to appeal to this Court.

10. 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 20-3-1953, 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 Art. 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 Kamath v. Ahmad Syed Ishaque , (S) AIR 1955 SC 233 (A) at p. 249 in these terms:

"Certiorari will also be issued when the Court of Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice."

That is exactly the position here.

11. It was urged that that cannot be so in election matters because of S. 105, Representation of the People Act of 1951 (Act 43 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 fin

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1955 Supreme(SC) 26

Cases Referred (3)