Judgment

VENKATARAMIAH, J. - The question which arises for consideration in this appeal is whether a Letters Patent appeal lies to a Division Bench of the High Court of Gujarat from an interlocutory order passed by a single Judge of that High Court in the course of the trial of an election petition filed under the provisions of the Representation of the People Act, 1951 (hereinafter referred to as the Act) or not.

2. At the election held on March 5, 1985 to fill a seat in the Legislative Assembly of the State of Gujarat from the Lunavada Legislative Assembly Constituency the appellant and respondents Nos. 1 to 6 were the candidates. At that election the appellant having secured the largest number of votes was declared as elected to the Legislative Assembly. Thereupon the 1st respondent filed an election petition in Election Petition No. 6 of 1985 on the file of the High Court of Gujarat under S. 81 of the Act questioning the validity of the election of the appellant on various grounds. The appellant contested the election petition. On the basis of the pleadings a number of issues were framed. In the course of the election petition, the first respondent had made inter alia the following allegations :

(i) that bogus votes had been cast in favour of the appellant in the names of dead persons :

(ii) that votes had been cast in the names of voters who were physically far away from the constituency and had not come for voting on the date of polling; and

(iii) that votes had been cast in the names of voters who were out of the country on the day of polling.

3. In order to establish his case, the 1st respondent applied to the learned single Judge who was trying the election petition to direct the Returning Officer to produce all the records of election and particularly the used ballot papers and counterfoils of used ballot papers, the unused ballot papers, the marked copies of electoral rolls and the authorisations of the polling agents of different candidates in respect of 13 villages and 14 polling booths mentioned in the application. The 1st respondent prayed for permission to inspect the ballot papers, the marked copies of voters lists and certain other materials referred to above. The appellant objected the grant of the prayers made by the 1st respondent.

4. After taking into consideration the evidence that had been adduced before him and hearing the arguments of the learned counsel for the parties, the learned single Judge declined to grant the application made by the 1st respondent by his Order dated July 18/21, 1986. Aggrieved by the order passed by the learned single Judge the 1st respondent preferred an appeal under Cl. 15 of the Letters Patent of the High Court of Gujarat in Letters Patent Appeal No. 3 of 1987 which was heard by a Division Bench of the High Court. Before the Division Bench the appellant contended that the appeal was not maintainable on the ground that there was no provision in the Act which permitted an appeal to the Division Bench of the High Court against an interlocutory order of a Judge hearing the election petition filed under the Act and that cl. 15 of the Letters Patent was not applicable to the case. The Division Bench after overruling the objection regarding the maintainability of the appeal in view of the decision of the High Court of Gujarat in Dr. Chotalal Jivabhai Patel v. Vadilal Lallubhai Mehta, (1971) 12 Guj LR 850 allowed the appeal to the extent indicated in the course of its judgment. Aggrieved by the decision of the Division Bench, the appellant has filed this appeal by special leave under Art. 136 of the Constitution of India.

5. The only point urged on behalf of the appellant in the course of this appeal is that the appeal filed under cl. 15 of the Letters Patent of the High Court against the interlocutory order passed by the learned single Judge was not maintainable and, therefore, the judgment of the Division Bench was liable to be set aside. In order to appreciate the submissions made by th