Judgment

GROVER, J. - This is an appeal from a judgment of the Mysore High Court dismissing an election petition which had been filed by two electors challenging the election of respondent No. 1 B. D. Jatti from the Jamkhandi Constituency at the General Elections held in 1967.

2. The last date for filing of nomination papers was January 19, 1967. The polling took place on February 2, 1967 and the result was declared on February 22, 1967. The only contesting candidates were respondent No. 1 and respondent No. 2 M. M. Shivappa. Respondent No. 1 secured 24,578 votes whereas respondent No. 2 got 21,261 votes. The election petition was filed on April 6, 1967 by I. S. Ghattarki and P. R. Belagali who were electors in the Jamkhandi Constituency. Each of them had acted as an election agent of respondent No. 2. Petitioner No. 1 Ghattarki was his election agent from February 10, 1967 till the last date of the election and petitioner No. 2 Belagali acted as an election agent from January 19, 1967 to February 1967. The trial of the petition commenced on December 11,1967 and after certain witnesses had been examined on February 1, 1967 petitioner No. 1. Ghattarki made an application praying for permission to withdraw from the petition "for all purposes". Petitioner No. 2 objected to his withdrawal. The learned judge dismissed the application of petitioner No. 1 on the ground that Section 110 (1) of the Representation of the People Act. 1951, hereinafter called the "Act", did not permit withdrawal by one petitioner without the consent of his co-petitioner. It has, however, been noted by the learned judge that both the petitioners continued to be represented by one counsel Shri B. S. Patil.

3. It may be mentioned at this stage that the election petition is a very long document and that the evidence which has been produced by the parties is also voluminous. The judgment of the learned judge consists of 227 printed pages. A number of issues were framed but the controversy before us has been confined only to certain points.

4. The first question which falls for consideration arises out of issue No, 1 which consists of three classes and was framed in the following terms:

"1(a) Do the petitioners prove that the 1st respondent was not an elector at all and therefore not qualified to stand for election?

(b) Are the petitioners precluded from questioning the validity of the entry of the name of the 1st respondent as elector in the Electoral Roll relating to Jamkhandi Constituency?

(c) Has this Court no jurisdiction to go into the said question of validity"?

It was held by the learned trial judge that the petitioners (in the election petition) were not precluded from questioning the validity of the entry of the name of respondent No. 1 as an elector in the Electoral Roll relating to Jamkhandi Constituency and that the Court had the jurisdiction to go into that question. It was however, found on a consideration of the evidence that the petitioners had failed to prove that respondent No.1 was not an elector and was not qualified to stand for election to a seat in the Mysore legislative assembly from Jamkhandi constituency. If the view of the trial judge that the Court had the jurisdiction in an election petition to go into the question of the validity of an entry in an Electoral Roll is erroneous and if the Court was precluded from deciding this matter it will be altogether unnecessary to consider the evidence led for the purpose of clause (a) of issue No. 1.

5. The principal allegations of the petitioners on issue No. 1 (a) were that respondent No. 1 had ceased to be a person ordinarily resident within the constituency of Jamkhaudi during the period relevant to the 1967 General Elections. It was further asserted that by long stay in the city of Bangalore the name of respondent No. 1 had been entered in the Electoral Roll relating to the municipal area of that city and that respondent No.1 with the object of getting his name entered in the Roll of Jamkhandi Con