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SUPREME COURT OF INDIA
D.G. PALEKAR AND A. ALAGIRISWAMI, JJ.
Nirmal Enem Horo, Appellant
Versus
Smt. Jahan Ara Jaipal Singh, Respondent.
Civil Appeal No. 1465 of 1972, D/-26-4-1973.
Civil Procedure Code,1908 – Section 11 - Indian Divorce Act, 1869 – Section 57 - Scheduled Tribes - Re-agitation - Election Commission of India issued a Notification calling on the 51 Khunti Parliamentary Scheduled Tribes Constituency of Ranchi to elect a Member of Lok Sabha in the vacancy caused by dissolution of Lok Sabha - Petition namely Election Petition was filed by one on the ground that her nomination paper had been illegally rejected since by her marriage with late one who was admittedly a member of Munda Tribe, she had obtained status of a Munda which is one of Scheduled Tribes recognized under Constitution - Whether ground was available for re-agitation – Held, . If learned counsel source of information was said one when she was in witness box it was open to him as pointed out in judgment to pursue cross-examination with a view to show that bar under Section 57 of Divorce Act would be effective - Even after getting two dates in the course of evidence nobody thought of Section 57, which may either be because counsel appearing for learned counsel then himself did not believe dates given by said one to be accurate or because they did not want to make any capital of snap answers given in course of evidence since point was not raised in pleadings nor put in issue - Judgment clearly suggests that it was open to agitate matter before High Court hearing the petition on basis of Section 57 - But the point was not pressed and must be deemed to have been given up - That was why this court did not allow the point to be raised in appeal - In these circumstances it is not open to re-agitate it between the parties in a subsequent proceeding - No other point was pressed before court and therefore appeal will have to be dismissed - Appeal dismissed.
Key Points: - The judgment discusses whether the bar under Section 57 of the Indian Divorce Act, 1869 could be a ground for disqualification or eligibility and the admissibility of raising that point, concluding it was not open to agitate for the first time since it was not pressed or pleaded earlier. (!) (!) (!) - It addresses constructive res judicata under Explanation 4 of Section 11 CPC, holding that grounds not pressed or pleaded and not decided previously cannot be re-argued in subsequent petitions, and explains why the prior judgment foreclosed the point. (!) (!) - The Court notes that because the earlier Supreme Court decision (in the prior petition) held that a marriage to a Munda tribal member could confer tribal status, the present challenge was limited to the remaining issues, and the appeal must be dismissed with costs. (!) (!) (!)
Judgment
PALEKAR, J.: - This appeal arises from an Order dated April 21, 1972 passed by the Patna High Court in Election Petition No. 9 of 1971 setting aside the election of the appellant at the instance of the respondent Mrs. Jahan Ara Jaipal Singh.
2. On January 21, 1971 the Election Commission of India issued a Notification calling on the 51 Khunti Parliamentary Scheduled Tribes Constituency of Ranchi to elect a Member of the Lok Sabha in the vacancy caused by the dissolution of the Lok Sabha in the month of December, 1970. The last date for filing nominations was 3-2-1971 and the date of scrutiny of nominations was 4-2-1971. Nearly fourteen persons filed their nominations - two of them being the appellant, Mr. Horo, and the respondent, Mrs. Jaipal Singh. It appears one of the candidates objected to the nomination of Mrs. Jaipal Singh on the ground that she was not a member of a Scheduled Tribe. That objection was considered by the Returning Officer who upheld the objection and rejected her nomination paper. In due course the election was held and the appellant, Mr. Horo, was declared elected. The petition namely Election Petition No. 9 of 1971 was filed by Mrs. Jaipal Singh on the ground that her nomination paper had been illegally rejected since by her marriage with the late Mr. Jaipal Singh who was admittedly a member of the Munda Tribe, she had obtained the status of a Munda which is one of the Scheduled Tribes recognized under the Constitution. She alleged that according to the Munda customary law when a Munda is married outside the Munda Tribe and his marriage is accepted by the Munda Bribe, he continues to be a member of that Tribe and his wife acquires membership of the Tribe and becomes a member of her husband s family. She alleged that though she was not formerly a member of that Tribe she, on her marriage to Mr. Jaipal Singh in 1954 according to the rites and rituals of the Mundas, in the presence of the elders and other members of the Tribe, had been accepted within the fold of that Tribe as a Munda and hence was not liable to be disqualified for election in the special Tribal Constituency. The appellant contested the petition on several grounds. But most of the grounds were covered by judgments between the same parties in a previous Election Petition filed by Mrs. Jaipal Singh. That petition came finally to this Court and is reported as N. E. Horo v. Jahan Ara Jaipal Singh AIR 1972 SC 1840.
3. The report shows that after the death of Mr. Jaipal Singh who was a member of Parliament from the Constituency referred to above, the Election Commission had on May 1 1970 called upon that Constituency to elect a member to the Lok Sabha. Several persons filed nomination papers, Mr. Horo and Mrs. Jaipal Singh being two of them. Objection was raised to Mrs. Jaipal Singh s nomination then also on the ground that she was not a member of the Munda Scheduled Tribe. That objection was upheld by the Returning Officer. After the polling, Mr. Horo was declared elected and on July 8, 1970 Mrs. Jaipal Singh filed the election petition objecting to the election on the ground that her nomination paper had been rejected illegally. That was Election Petition No. 2 of 1970. When that petition was pending in the High Court, the Lok Sabha was dissolved, and, as already pointed out, the Election Commission called upon the Constituency on January 21, 1971 to elect a new member of the Lok Sabha. Thereupon Mr. Horo applied to the High Court to dismiss the election petition because it was now infructuous as a result of the dissolution of the Lok Sabha. The learned Judge refused to do so, and heard the petition and came to the conclusion that Mrs. Jaipal Singh was entitled to be treated as a member of the Munda tribe. But before the decision this second contest arose between the same parties and the nomination paper of Mrs. Jaipal Singh was again rejected by the Returning Officer on the same ground on which that had been rejected by the Returning Of
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