JUDGMENT

G. N. RAY, J. :—This appeal is directed against the judgment dated February 3, 1994 passed by Patna High Court (Ranchi Bench) in Election Petition No. 3 of 1990. The appellant challenged the result of the election of 285 Nirsa Assembly Constituency in the State of Bihar held in February, 1990 by presenting an election petition before the High Court under the Representation of the People Act, 1951 (hereinafter referred to as the Representation Act). The appellant Sri Kripa Shankar Chatterjee was a candidate for the said election from Nirsa Constituency. He, however, lost to the returned candidate namely Respondent No. 1 Gurudas Chatterjee by margin of 1450 votes. There were 22 other candidates contesting for the said Nirsa Constituency.

2. It may be stated here that during the pendency of the Election Petition before the Ranchi Bench, the election-petitioner moved an application in the High Court for inspection of ballot papers but such application being dismissed the petitioner moved a Special Leave Application before this Court but the said petition was also dismissed by this Court with the observation that dismissal of special leave petition would not preclude the High Court from inspecting the ballot papers if it deemed necessary to satisfy the Courts conscience. Although the petitioner thereafter made prayer for such inspection but the High Court did not accede to such prayer.

3. The election result was challenged inter alia on the grounds of (i) improper rejection of the nomination paper of one of the candidates Sri Chunmun Singh although he was above 25 years of age, (2) improper acceptance of nomination papers of two candidates namely Sri Sanjib Baxi and Sri Shivlal Manjni who were not voters in the Nirsa Assembly Constituency, (3) the returned candidates and two other candidates namely Respondent Nos. 20 and 21 were at the time of election employees of Eastern Coal Fields Limited, a subsidiary of Coal India Ltd. which was a Government of India Undertaking and as such public servants under Section 21 of Indian Penal Code and accordingly were disqualified to contest the said election, and (4) the election of returned candidate was invalid on account of irregularities in counting ballot papers, particulars of such irregularities being mentioned in paragraph 30 of Election Petition.

4. The Respondent No. 1 Sri Gurudas Chatterjee contested the Election Petition and denied all the contentions of the Election-petitioner by filing a written statement. The learned Judge by the impugned judgment dismissed the election petition by rejecting all the said contentions of the election-petitioner. Coming to the question of improper rejection of the nomination paper of Sri Chunmun Singh, the learned Judge inter alia came to the finding that there was no evidence from the side of Election-petitioner that Sri Chunmun Singh was not less than 15 years at the time of scrutiny. The election-petitioner filed an affidavit affirmed by Sri Chunmun Singh stating that he was above 25 years at the time of scrutiny of nomination papers. In the absence of oral deposition, the High Court was not inclined to accept the said affidavit. Mr. Mukhoty learned senior counsel appearing for the appellant has contended at the hearing of the appeal that the said Sri Chunmun Singh was summoned but he failed to appear in Court. Sri Chunmun Singh filed an affidavit stating therein that his date of birth was March 5, 1962. Mr. Mukhoty has contended that the appellant was keen in examining the said Sri Chunmun Singh but as he did not appear despite summons issued to him, his affidavit filed by him in Court in answer to the summons ought to have been accepted by the Court. We are, however, not inclined to accept the said submission of Mr. Mukhoty. It was open to the election-petitioner to move the Court for taking appropriate steps to ensure appearance of Sri Chunmun Singh. The ex parte affidavit without affording opportunity to the Respondent No. 1 to test the