Judgment

MITTER, J. :- This is an appeal by special leave from an order of the Bombay High Court dismissing in limine an application under Arts. 226 and 227 of the Constitution and refusing to quash the judgment and order of the Assistant Judge at Sangli rendered in Election Petition No. 10 of 1967. The facts are as follows.

2. On June 3, 1967 election of councillors to the Sangli City Municipality was held under the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act ). The counting of votes took place with regard to Ward No. 25 on June 4, 1967. According to the election petition, the results were published in the Official Gazette on June 15, 1967 and the petition was filed on June 24, 1967. The petitioner who was himself a candidate for election from the said ward challenged the election of the appellant before us on several grounds set forth in para. 3 of the petition. The first of these was to the effect that the appellant had, with the help of his supporters published an undated pamphlet and circulated the same on a large scale among the voters in Ward No. 25 and that the said pamphlet contained untrue, false and defamatory statements about the petitioner thereby prejudicing the voters generally against him and in particular instigating the Muslim voters to vote against him by arousing their religious sentiments. Another similar ground based on a defamatory pamphlet date 30th May, 1967 was urged in the petition. Charges of terrorising voters and securing votes by false personation were also levelled therein. Statements were made in the petition that the appellant s name as councillor had been declared in the official Gazette on June 15, 1967 and the petitioner s cause of action had arisen on that date. The first of these was expressly accepted as correct in the written statement of the appellant and the second remained unchallenged. The appellant however repelled the charges mentioned above and denied that he was responsible for the publication of any of the impugned pamphlets.

Of the four issues framed at the hearing of the petition, the first was

"whether the petitioner proved that opponent No. 1 who was elected as Municipal Councillor for Ward No. 25 had used malpractices at the time at the election by arousing religious sentiments of the voters and making defamatory statements against the petitioner by publishing pamphlets ?

The petitioner gave evidence himself about the allegations in the petition to substantiate the charges raised by him. The appellant examined himself to contradict the said evidence. It appears that the petitioners had in the list of witnesses filed by him, mentioned the names of two persons, Hakim Abdul Rahiman Shaikh and Gopal Chintaman Ghugare and that these two persons had attended the court on certain days when they were not examined. On August 21, 1968 the petitioner made an application before the Judge for issuing summons on these two persons as his witnesses, but the learned Judge rejected that application. The appellant s case was closed on the same day and the arguments started on August 22, 1968. On that date the court adjourned the hearing of the case to August 24, 1968 for recording the evidence of these two witnesses in respect of whom an application had been made by the election petitioner on the previous day. The order Ex. 36 dated August 22, 1968 tends to show that the learned Judge was persuaded to do so by the mere fact that they were Government servants. He however recorded that the ends of justice required that these witnesses should be examined. He fixed August 24, 1968 for further hearing of the matter and directed the issue of summonses to these two persons. These two persons were examined on the 24th August as court witnesses and thereafter the argument of counsel was resumed and concluded. By judgment delivered on August 30, 1968 the learned Judge allowed the election petition holding in favour of the petitioner on the first issue. The appellant before us p