1984 Supreme(Raj) 439
RAJASTHAN HIGH COURT AT JAIPUR BENCH
S.K.Mal Lodha, J.
Ram Chandra - Appellant
Versus
Pokar Ram and others - Respondent
S.B. Civil Misc. Appeal No. 280 of 1982.
Decided On : 29-08-1984
Advocates:
For the Appellant:K.C. Samdariya, Advocate.
For the Respondents:R. Mehta for resp. No. 1; B.M. Singhvi for resp. No. 3 and H.S. Calla Govt. Advocate for resp. No. 5.
The principles governing withdrawal of election petitions do not apply to appeals from decisions of election tribunals. An appellant has the right to withdraw an appeal, subject to the court's discretion to allow or deny the withdrawal.
Headnote:
ELECTION PETITION - WITHDRAWAL OF APPEAL - TRANSPOSITION OF RESPONDENT AS APPELLANT - RAJASTHAN MUNICIPALITIES ACT, 1959 - SECTIONS 46, 49, 50, 51, 52 - ORDER I, RULE 10, ORDER XXIII, RULE 1, ORDER XXIII, RULE 1A CIVIL PROCEDURE CODE - INTERPRETATION AND APPLICATION - COURT'S DISCRETION - SUBSTANTIAL QUESTION - ADJUDICATION OF ELECTION PETITION - MULTIPLICITY OF PROCEEDINGS - INTERESTS OF RESPONDENTS - LEGAL RIGHT TO WITHDRAW - PRINCIPLES GOVERNING WITHDRAWAL OF ELECTION PETITIONS AND APPEALS - APPLICABILITY - RIGHT TO TRANSPOSE RESPONDENT AS APPELLANT - CONDITIONS - ELECTION PETITIONER'S RIGHT TO WITHDRAW APPEAL - COURT'S ANALYSIS AND CONCLUSION.
Fact of the Case:
Appellant Ramchandra filed an election petition challenging the election of respondent No. 1 Pokar Ram as a member of the Municipal Board, Sojat. The petition was dismissed by the trial court. Ramchandra filed an appeal, but later filed an application to withdraw the appeal. Respondent No. 3 Hariram, a defeated candidate who had not filed an appeal, applied to be transposed as the appellant in place of Ramchandra.
Finding of the Court:
The court held that respondent No. 3 could not be transposed as the appellant because there was no provision in the Rajasthan Municipalities Act, 1959 for such transposition. The court also held that Ramchandra had the right to withdraw the appeal, as the principles governing withdrawal of election petitions did not apply to appeals from decisions of election tribunals.
Issues: 1. Whether respondent No. 3 could be transposed as the appellant in place of Ramchandra? 2. Whether Ramchandra had the right to withdraw the appeal?
Ratio Decidendi: 1. The court held that respondent No. 3 could not be transposed as the appellant because there was no provision in the Rajasthan Municipalities Act, 1959 for such transposition. The court also held that the principles governing withdrawal of election petitions did not apply to appeals from decisions of election tribunals. 2. The court held that Ramchandra had the right to withdraw the appeal, as the principles governing withdrawal of election petitions did not apply to appeals from decisions of election tribunals.
Final Decision: The court dismissed the application of respondent No. 3 to be transposed as the appellant and allowed Ramchandra's application to withdraw the appeal.
JUDGMENT
1. - This order will dispose of two applications : (i) application dated April 11, 1984 under O. XXIII, Rule 1 and Section 151 Civil Procedure Code filed on behalf of the appellant and (ii) application dated April 17, 1984 under O. I, Rule 19 and section 151 Civil Procedure Code toad with Section 46 and 49 of the Rajasthan Municipalities Act (No. XXXVIII of 1959) (for short 'the Act' herein) filed on behalf of respondent No. 3 for transposing him as appellant.
2. An election petition under section 36 of the Act was filed by the appellant against the respondents. Respondent No. 1 is the elected member and respondents No. 2 to 4 are defeated candidate and resident No. 5 is Returning Officer Sojat Municipal Elections, which were held on February 19, 1982. After trial, the learned Munsif Sojat by his judgment dated October 23, 1982 dismissed the election petition and held that respondent No. 1 Pokar Ram is a properly elected member of Ward No. 16 of the Municipal Board, Sojat. An appeal was filed by the appellant under section 46 of the Act on November 26, 1982 questioning the correctness of the judgment dated October 29, 1982 of the Muttsif dismissing the election pection. On January 5, 1983 on behalf of the appellant an application was filed praying therein that the appellant may be allowed to withdraw the appeal. Thereafter, an application under Order 1, Rule 10 and section 151 Civil Procedure Code read with Section 46 of the Act was submitted on behalf of respondent No. 3 Hariram, the defeated canditate on January 6, 1983 that he may be transposed as the appellant in place of respondent No. 3. The Court by its order dated January 30, 1983 ordered for the issuance of notice on both the aforesaid applications to respondents No. 2, 4 and 5. However, on February 28, 1933, the appellant moved an application that he does not want to withdraw the appeal but wants to prosecute it further, and, therefore, he may be allowed to withdraw the withdrawal application. That application was contested by respondent No. 1 by filing a reply on various grounds. This Court by its order dated April 7, 1983 held that as the appellant has filed an application to withdraw the withdrawal application on February 28, 1983, the appeal cannot be dismissed as withdrawn in pursuance of the withdrawal application dated January 6, 1983. Both the applications dated January 6, 1983 and February 28, 1983 were accordingly, disposed of.
3. However, thereafter on April 11, 1984, another application was filed by the appellant which is also signed by his counsel Shri S. K. Sharma. Advocate stating that the appellant does not want to prosecute this appeal but wants to withdraw the same and, therefore, he may be allowed to withdraw the appeal. On April 17, 1984, another application under Order 1, Rule 10 Civil Procedure Code and section 151 Civil Procedure Code read with sections 46 and 49 of the Act was filed praying that respondent No. 3 may be allowed to be transposed as the appellant in place of respondent No. 3. On behalf of respondent No. 1, a reply was filed on August 23, 1984 supported by the affidavit of respondent No. 1.
4. I have heard Mr. K. C. Samdariya, learned counsel for the appellant, Mr. Rajendra Mehta, learned counsel for respondent No. 1, Mr. B. M. Singhvi, learned counsel for respondent No. 3 and Mr. H. N. Calla, learned Government Advocate for respondent No. 5.
5. I propose to deal with the application filed on behalf of respondent No. 3 Hariram under O. I, 10 Civil Procedure Code on April 17, 1984 first.
6. The principal question involved is whether respondent No. 3, a defeated candidate who has not filed appeal against the dismissal of election petition should be transposed as appellant in appeal when the appellant Ramchandra who has filed the appeal does not want to prosecute the appeal and prays for its withdrawal ?
7. Section 46 of the Act provides for appeals from orders of judge. 46 (2) of the Act is as follows :
X X X X X X
Section 49 of th
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