BAPNA, J.—This is a petition under Art. 226 of the Constitution of India and has arisen in the following circumstances:—

2. The petitioner Sangramsingh was elected as a member of the Legislative Assembly and the opposite party Shri Bhureylal challenged the election by a petition which is No. 297 of 1952. The Election Tribunal had its sittings at Kotah. After certain proceedings had been gone through an order was recorded by the Election Tribunal on 11th December, 1952, that that further sittings of the Election Tribunal will take place at Udaipur from 16th to 21st March, 1953. On 5th January, 1953, it was discovered that 16th March, 1953, was a public holiday and an order was recorded that the sittings will take place at Udaipur from 17th March, 1953, and onwards. Mr. Tridevi who appeared for the petitioner Sangramsingh before the Election Tribunal on these dates had notices of the hearing from 17th March, at Udaipur. On the 17th of March, 1953, the petitioner and his counsel did not appear before the Tribunal and an order was recorded for further proceedings to be taken ex parte. An application was submitted before the Tribunal for sitting aside the order to proceed ex parte but the Tribunal for setting aside the order to proceed ex parte but that petition was rejected by the Tribunal on 21st March, 1953. The present petition challenges that order and it has been argued.

(1) that under the law the Election Tribunal was bound to set aside the order to proceed ex parte.

(2) that no order to proceed ex parte could be given under the law, and

(3) that the constitution of the Tribunal was illegal and all proceedings before the Tribunal should be set aside.

3. Learned counsel for the petitioner relied on Order 9, Rule 7 of the Civil Procedure Code for the first proposition but as the very words of the Rule show the order to hear a suit ex parte can only be set aside if the applicant is able to assign good cause for his previous non-appearance. The reasons alleged for non-appearance, as stated in the present petition, or in the affidavit before the Tribunal, are that on 14th March, 1953, Mr. Trivedi, counsel for the petitioner, was at Indore and he sent a telegram to the Tribunal at Kotah objecting to the validity of the hearing at Udaipur. One the next day Mr. Trivedi found that his objection was untenable and he sent a letter accordingly to the Tribunal at Kotah. It appears from a perusal of the Tribunal had reached Udaipur and sent a reply to Mr. Trivedi that his objection had been over-ruled. Mr. Trivedis latter of the 15th March, 1953, reached the Tribunal at Udaipur on 19th March. It is said that Mr. Trivedi sent letters from Neemuch on the 15th March to his colleagues Mr. Ramsarup Advocate at Kotah and Mr. Bharatraj lawyer at Udaipur to appear before the Tribunal on the 17th March, 1953. None of them could however appear as the two gentlemen to whom the request was made did not receive the letters in good time. On the 21st March, Mr. Trivedi appeared before the Tribunal and made an application that on account of some mis-understanding of the advocates and for the reasons aforesaid nobody could appear for the petitioner and prayed having the order for ex parte proceedings set aside. The Tribunal came to the conclusion that the reasons set forth for non-appearance of the advocates were not sufficient and consequently it did not set aside the ex parte order.

4. In the first place the Tribunal was the authority to decide whether the reasons were sufficient or otherwise and the fact that the Tribunal came to the conclusion that the reasons set forth by conusel for the petitioner were insufficient cannot be challenged in a petition of this nature. On the merits also we feel no hesitation in holding that counsel for the petitioner were grossly negligent in not appearing on the date which had been fixed for hearing, more than two months previously.

5. The argument that the petitioner should not be made to suffer for the negligence of his la

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