2005 Supreme(SC) 1421

2005(8) Supreme 433
Supreme Court of India
(From Andhra Pradesh High Court)
R.C. Lahoti, CJI, C.K. Thakker & P.K. Balasubramanyan, JJ.
Satrucharla Vijaya Rama Raju —Appellant
versus
Nimmaka Jaya Raju & Ors. —Respondents
Civil Appeal No. 1102 of 2004
Decided on 27-10-2005
Counsel for the Parties :
For the Appellant : M.N. Rao, Sr. Advocate, C.K. Sucharita, Advocate.
For the Respondent : Bojja Tarakam, Sr. Advocate, S.U.K. Sagar, Ms. Bina Madhavan, Ms. Pooja Nanekar, Ms. Susan Zacharia, A. Venayagam, Advocates for M/s. Lawyer’s Knit & Co., Advocates.
For the Respondents Nos. 2-4 : Venkateswara Rao Anumolu, Advocate (NP).

Important point
Since a challenge in an election petition is only a statutory challenge under the Representation of the People Act and since the acceptance of the challenge or the rejection of it in a given case would be based on facts and law available therein, the same cannot be treated as a judgment in rem.

Headnote:(i) Representation of the People Act, 1951—Section 80 rw/s 5 and 100(1)(d)(i)—Eligibility to contest from a constituency reserved for scheduled tribes—Appellant’s claim that he belongs to the ‘Konda Dora’ tribe which was a notified Scheduled Tribe—He explained that his ancestors and himself described themselves as ‘Kshatriyas’ in view of the status enjoyed by them in their tribe and not because they belonged to the ‘Kshatriya’ community—Appellant alleged that caste certificate issued by the competent authority under the Andhra Pradesh Act of 1993 to the effect that he belongs to the ‘Konda Dora’ tribe was final and binding on the Court—Appellant’s election was challenged by respondent alleging that appellant being a ‘Kshatriya’ was not qualified to contest from a constituency reserved for the scheduled tribes—High Court held that appellant did not belong to ‘Konda Dora’ community, a Scheduled Tribe and was consequently ineligible to contest the election from the constituency reserved for Scheduled Tribes—Whether election of appellant was rightly set aside—(Yes)—Court was fully justified in discarding the caste certificate relied on by appellant—Andhra Pradesh (Scheduled Castes Scheduled Tribe and Backward Classes) Regulation of Issue of Community Certificate Act, 1993.

       Held : The trial judge has rightly proceeded on the basis that the initial burden was on the election petitioner to establish his plea that the appellant did not belong to a Scheduled Tribe. Though in a prior statement, an assertion in one’s own interest, may not be evidence, a prior statement, adverse to one’s interest would be evidence. In fact, it would be the best evidence the opposite party can rely upon. Therefore, in the present case, where the appellant is pleading that he is a Konda Dora, the statement in the series of documents, pre-constitution and post constitution, executed by his ancestors and members of his family including himself describing themselves as ‘Kshatriyas’, would operate as admissions against the interest of the appellant in the present case. These admissions also strengthened the admission of the appellant that in his school leaving certificate also, he is described as a ‘Kshatriya’ and his paternal uncle’s son is also described as a ‘Kshatriya’ in his school leaving certificate and that uncle’s son was also held to be a ‘Kshatriya’ on an enquiry made in that behalf. Therefore, in our view, the trial judge was correct in holding that the election petitioner had discharged the initial burden placed on him and the burden shifted to the appellant to establish that he belonged to the ‘Konda Dora’ Tribe. Appreciating the evidence on the side of the appellant, the trial judge held that no document has been produced by him to show that the appellant belonged to a Scheduled Tribe or that earlier, their claims have been recognized as a Scheduled Tribe except the judgment in E.P.13 of 1983. The trial Judge having taken the view that the judgment in E.P. 13 of 1983 would not operate as a res judicata and could not be taken to be a judgment in rem, proceeded to hold that even though in that case an election petitioner therein had failed to establish that the appellant was not a Konda Dora, in the present case, the available evidence indicated that the family of the appellant did not belong to the Konda Dora Tribe. The trial judge found that the evidence of RWs 1 to 9 was not adequate to establish that the appellant was a Konda Dora. Having gone through the evidence of RWs 1 to 9 we also agree with the trial judge that the evidence of RWs 1 to 9 is totally insufficient to establish that the appellant belonged to the Konda Dora Tribe. On a scrutiny of the evidence of PWs 1 to 8, also, we do not see anything in their evidence that would justify our holding that the appellant has established his claim. (Paras 15 and 16)

       As against the admissions contained in Exhibits A2 to A11 and the evidence furnished by the other documents produced on behalf of the election petitioner, no positive evidence could be adduced by the appellant to show that he belonged to the Konda Dora Tribe. He relied on a caste certificate issued to him under the Andhra Pradesh (Scheduled Castes Scheduled Tribe and Backward Classes) Regulation of Issue of Community Certificate Act, 1993 in support of his claim. The trial judge found that there was no due enquiry on the application of the appellant for the issue of a caste certificate as prescribed under this Act, and the certificate was issued to him based on a recommendation made the same day as the date of the application, by the concerned authority. On an appreciation of the evidence of CW1 in the light of Ex. C.1 to C.10 the trial judge found that even the application for issuance of the certificate was filled up by the official concerned after obtaining the signature of the applicant therein, the appellant, in a blank form and the certificate was issued without following the proper procedure. (Para 18)

       In a sense, the appellant wants the best of two worlds. Though, he would like to contest from a constituency reserved for the Scheduled Tribes, he would want to lead the life of a forward caste and have the trappings of that caste. The purpose of reservation of constituencies is to ensure representation in the legislatures to such tribes and castes who are deemed to require special efforts for their upliftment. The person seeking election from such constituencies must be the true representative of that tribe. The evidence shows that the appellant could not be considered to be a true representative of a tribe included in the Presidential Order deserving special protection. (Para 20)

       (ii) Representation of the People Act, 1951—Section 80 rw/s 5 and 100(1)(d)(i)—Election for a constituency reserved for scheduled tribe—Appellant successfully contested State Assembly Elections for that constituency—Appellant’s claim that he belongs to the ‘Konda Dora’ tribe disputed—Election petition challenging appellant’s election—Appellant’s plea that in his earlier election was challenged by a voter on the very same ground but that petition was dismissed after a regular trial—Whether that decision would operate as res judicata on the status of appellant—(No)—Judgment in an election petition is not a judgment in rem—Adjudication in an election petition, not inter parties, cannot operate as res-judicata in a subsequent election petition challenging that subsequent election—Civil Procedure Code, 1908—Section 11, Explanation VI.

       Held : Every election furnishes a fresh cause of action for a challenge to that election and an adjudication in a prior election petition cannot be conclusive in the subsequent proceeding. Res judicata is nothing but the merger of a cause of action in a decree, transit in rem judicatum. So, even if the cause of action in the earlier election petition merged in the final adjudication therein, since according to this Court, the subsequent election furnishes a fresh cause of action, the merger of the earlier cause of action with the decision therein cannot bar the trial of the fresh cause of action arising out of subsequent election. It is true that the earlier election petition was filed by a voter in the constituency concerned and he had also raised the plea that the appellant did not belong to the “Konda Dora” community. An election petition filed, though it abates on the death of the petitioner therein, could be pursued by another person coming forward to prosecute that election petition as enjoined by Section 112 of the Act. But that does not make an election petition a representative action in the sense in which it is understood in law. Therefore, normally, the adjudication in an election petition, not inter-parties, cannot operte as res judicata in a subsequent election petition challenging that subsequent election. (Para 8)

       (iii) Civil Procedure Code, 1908—Section 11, Explanation VI—Res judicata—Inapplicability in an election petition—Normally, adjudication in an election petition, not inter-parties, cannot operate as res judicata in a subsequent election petition challenging that subsequent election—Representation of the People Act, 1951—Sections 80 and 112.

       Held : The appellant could have invoked explanation VI to Section 11 of the Code of Civil Procedure if it were possible to hold that the person who was the petitioner in E.P. 13 of 1983, was litigating in respect of a public right or of a private right claimed in common for himself and others and he was also bona fide litigating therein. Though, as noticed earlier, Section 112 of the Representation of the People Act gives any other voter the right to come forward and pursue E.P. 13 of 1983, the prior election petition, in case the petitioner therein died and the election petition abated, on that basis alone, the earlier action cannot be understood to be a representative action so as to attract explanation VI to Section 11 of the Code of Civil Procedure. We do not think it necessary to advert to the authorities on the scope of explanation VI to Section 11 and the nature of litigations prior and subsequent, to which that explanation would have relevance. Suffice it to say that the plea of res judicata raised by counsel for the appellant cannot be sustained. The appellant, therefore, cannot rely on Section 40 of the Evidence Act. (Para 9)

       (iv) Evidence Act, 1872—Section 41—Judgment in rem—Election petition—Adjudication in an election petition cannot be held as a judgment in rem—Representation of the People Act, 1951—Sections 80 and 112.

       Held : Under the Indian Evidence Act Section 41 is said to incorporate the law on the subject. A judgment in rem is defined in English Law as “an adjudication pronounced (as its name indeed denotes) by the status, some particular subject matter by a tribunal having competent authority for that purpose.” Spencer Bower on Res Judicata defines the term as one which “declares, defines or otherwise determines the status of a person or of a thing, that is to say, the jural relation of the person or thing to the world generally”. An election petition under Section 80 of the Representation of the People Act, 1951 cannot be held to lead to an adjudication which declares, defines or otherwise determines the status of a person or a jural relation of that person to the world generally. It is merely an adjudication of a statutory challenge on the question whether the election of the successful candidate is liable to be voided on any of the grounds available under Section 100 of the Representation of the People Act, 1951. It is not an action for establishing the status of a person. It is not an action initiated by a person to have his status established or his jural relationship to the world generally established, to borrow the language of Spencer Bower. No doubt in E.P. 13 of 1983, the question was whether the election petitioner therein who alleged that the appellant before us was not qualified to contest as a candidate belonging to a Scheduled Tribe, in a constituency reserved for that tribe and to that extent, having relationship to the status of the appellant. In such an action under the Representation of the People Act, 1951 what is decided is whether the election petitioner had succeeded in establishing that the successful candidate belonged to a caste or community, that was not included in the Scheduled Tribes Order. In a case where the election petitioner failed to establish his claim, it could not be said that it amounted to a declaration of the status of the respondent in that election petition, the successful candidate and that such a finding on status would operate as a judgment in rem so as to bind the whole world. It is also not one of the judgments specifically recognized by Section 41 of the Evidence Act. It has been held that the challenge to an election is only a statutory right. An election petition is not a suit of a general nature or a `representative action for adjudication of the status of a person. Even if we take it that the earlier judgment is admissible in the evidence, on that, no objection was raised even at the trial, it could be brought in under Section 42 of the Evidence Act on the basis that it relates to a matter of a public nature or under Section 43 of the Evidence Act. In either case, not being inter-parties, the best status that can be assigned to it is to say that it is of high evidentiary value, while considering the case of the parties in the present election petition. (Para 10)