JUDGMENT

FAZL ALI, J. :— This is an election appeal against the judgment of the High Court of Jammu & Kashmir dated June 10, 1974, by which the learned Judge allowed the election petition filed before him by the respondent Ali Akbar Khan and set aside the election of the returned candidate Mohd Yasin Shah who is the appellant before us. The returned candidate will, for short, be referred to by us as the appellant and the respondent Ali Akbar Khan will be referred to as the petitioner. It appears that during the elections held in the year 1972 in the State of Jammu and Kashmir both the appellant and the petitioner were the candidates for election to the Karnah Assembly Constituency of the District of Baramulla in the State of Jammu and Kashmir. There were other candidates also some of whom had withdrawn. One Mohd. Yunis was the Congress candidate for this constituency but he was defeated. The petitioner, according to the appellant, was merely a coveringor a shadow candidate for the Congress candidate Mohd. Yunis. The petitioner filed his nomination paper on February 7, 1972 and his proposer was P.W. 1 Ghulam Mohiuddin. According to the petitioner the nomination paper was presented to the Returning Officer R. W. 3 Abdul Rehman Mir on February 7, 1972 by the petitioner who was accompanied with his proposer Ghulam Mohiuddin who had signed as the proposer. The Returning Officer received the nomination paper and granted a receipt for the same. A sum of Rs. 250/- being the election deposit was also deposited and other formalities were duly observed. February 9, 1972, was the last date fixed for the scrutiny of the nomination papers of all the candidates. According to the petitioner he reached the office of the Returning Officer at about 10 A.M. on February 9, 1972 but as he was suffering from dysentery he went to attend the call of nature and instructed his proposer P.W. 1 Ghulam Mohiuddin to take time on his behalf if the name of the candidate was called out. The petitioners case before the High Court was that the Returning Officer after scrutinising the nomination papers accepted all of them but rejected the nomination paper of the petitioner on the ground of his absence in spite of the fact that P.W. 1 Ghulam Mohiuddin requested him to wait for the petitioner who had gone to attend the call of nature. It was further alleged that when the petitioner returned he beseeched the Returning Officer not to reject his nomination paper but the Returning Officer refused to reopen the matter as the nomination paper of Mohd. Yunis the Congress candidate had been accepted. The nomination paper of Mohd. Yasin Shah the appellant was also accepted. Thereafter the poll was held on March, 8, 1972 and the results were declared on March 12, 1972. The appellant Mohd. Yasin Shah was declared elected, while Mohd. Yunis was defeated. After the results were declared the petitioner applied for a certified copy of the order of rejection of his nomination paper on April 1, 1972, and according to him the Returning Officer tried to avoid giving the copy of the said order which was ultimately given to him on April 3, 1972, April 2, being a Sunday. The sheetanchor of the case of the petitioner was that the Returning Officer was particularly biased against him and he rejected the nomination paper in order to support the returned candidate in whom he was interested. The petitioner further pleaded that the only ground on which the nomination paper was rejected was that the petitioner did not appear when the Returning Officer called out his name at the time of the scrutiny of his nomination paper. The petitioner further averred that under the law the Returning Officer could not have rejected his nomination paper on the ground of his absence even if it was so. Not content with these allegations the petitioner went to the extent of making a serious and irresponsible allegation against the Returning Officer by averring that the Returning Officer had committed forgery by