Judgment

P. B. GAJENDRAGADKAR J.: This appeal by special leave arises out of an election petition filed by respondent 1 (No. 320 of 1957) before the Election Commission, New Delhi, in which he prayed that the appellant s election to the Madhya Pradesh Legislative Assembly from Bargi constituency should be declared to be void and that it should be further declared that he had himself been duly elected from the said constituency. The polling for the election in question was taken on March 9, 1957, and the result was declared on March 12, 1957. Of the three candidates who had stood for election, the appellant secured 9,308 votes, respondent 1, 8,019 votes and the third candidate, respondent 2, 3,210 votes.

2. The petition filed by respondent 1 was entrusted to the Election Tribunal, Jabalpur, for trial. On October 12, 1957, the appellant filed before the Election Tribunal an objection under S. 90, sub-s. (3) of the Representation of the People Act, 1951 (hereinafter called the Act) alleging that respondent I had not complied with the provisions of S. 117 of the Act in regard to the making of the deposit of the security for costs and praying that his election petition should be dismissed on that account under S. 90, sub-s. (3) of the Act. Respondent 1 disputed these allegations and urged that there was no justification for dismissing his petition under S. 90, sub-s. (3) of the Act.

3. By its order passed on December 5, 1957, the Election Tribunal held that the provisions of S. l17 were mandatory and that they had not been complied with by respondent 1. In the result the application filed by the appellant was allowed, his objection was upheld and the election petition presented by respondent 1 was dismissed under S. 90, sub-s. (3) of the Act.

4. On December 27, 1957, respondent 1 preferred an appeal in the High Court of Madhya Pradesh at Jabalpur against the said order (Appeal No. 141 of 1957). In the High Court a preliminary objection was urged on behalf of the appellant that the appeal preferred by respondent 1 was incompetent under S. 116A of the Act. This objection was overruled and the merits of the appeal were considered by the High Court. On the merits the High Court held that respondent had substantially complied with S. 117 and so the order passed by the Election Tribunal dismissing the election petition filed by respondent 1 was set aside and the said petition was sent back to the Election Tribunal for disposal in accordance with law.

5. On 22-2-1958, the appellant applied to the High Court for a certificate of fitness but his application was dismissed. Thereupon the appellant applied for, and obtained, special leave to appeal from this Court on April 14, 1958. That is how this appeal has come to this Court.

6. The first point which calls for our decision in this appeal is whether the High Court was right in holding that the appeal preferred before it by respondent 1 was competent. The appellant s contention is that the impugned order was passed under S. 90, subs. (3) and no appeal is provided against such an order under S. 116A. Section 116A provides that an appeal shall lie from every order made by the tribunal under S. 98 or S. 99 to the High Court of the State in which the tribunal is constituted. We are not concerned in the present appeal with S. 99. The case for respondent 1 is that in substance and in law the impugned order must be deemed to have been passed under S. 98. That is the view which the High Court has taken and we are satisfied that the High Court is right.

7. It is true that in terms and in form the order was passed under S. 90, sub-s. (3); and it is also true that the right to prefer an appeal is a creature of the statute and no appeal can be held to be competent unless it is shown that such a right flows from the relevant statutory provision itself. In order to decide whether or not an order passed under S. 90, sub-s. (3) can be regarded in law and in substance as an order passed under S. 98, it would be rel