GOPALAKRISHNAN NAIR J.:

This writ petition was referred to a Full Bench by a Division Bench of this court, as it involved important questions.

(2) The proceedings arise out of an election petition filed by the second respondent¢challenging the election of the petitioner to the Jammu and Kashmir Legislative Council from the Kashmir Teachers Constituency. The petitioner .and the second respondent contested the seat, but the former was declared elected. The second respondent thereupon preferred an election petition; ¢under the Representation of the People Act to the Election Commission which duly referred it to the Election Tribunal for trial. The petitioner filed his written statement before the Election Tribunal on 14-10-57. On 24-10-1957 he applied for an amendment of the written statement by adding certain grounds to show that the petitioner was not qualified under the law to contest the election and that he was not even eligible to be a voter in the Kashmir Teachers constituency.

The petitioner sought to establish on these new grounds that the second respondent was not competent to file the election petition. The amendment of his written statement sought by the petitioner, though opposed by the second respondent, was allowed by the Election Tribunal on 9-11-57. The second respondent thereupon wanted to file "his statement to traverse the new grounds taken by the petitioner in his written statement. The Election Tribunal posted the case to 3rd December 1957 to enable the second respondent to file his statement. But on that day neither the second respondent nor his counsel appeared before the Tribunal, nor did the second respondent file his statement. The Tribunal thereupon dismissed the election petition saying that "the petitioner (second respondent) does not appear to be serious about prosecuting the petition.

(3) On 10-12-1957, the second respondent filed an application before the Election Tribunal for restoration of the petition which was dismissed by the Tribunal on 3rd December. The petitioner raised several objections to the maintainability of the restoration application. He even urged that the dismissal of the petition on 3rd December was not a dismissal for default. But the Tribunal in its order dated 10th January 1958 overruled these objections and came to the conclusion that the petition was dismissed under the provisions of O. 9 R. 8 of the Code of Civil Procedure and that, therefore, an application for restoration was maintainable under O. 9 R. 9 of that Code.

He then posted the petition to another date for giving the second respondent an opportunity to show that there were sufficient grounds for restoring his petition and for enabling the petitioner to show to the contrary. The Tribunal recorded the evidence of the counsel who appeared for the second respondent as well as the petitioner and also took other evidence, and came to the conclusion that there were good and sufficient grounds for restoring the application. It, therefore, passed an order restoring the application on 15th July 1958. The petitioner has now come up to this court asking for a writ of certiorari to quash the order passed by the Election Tribunal restoring the election petition filed by the second respondent.

(4) I shall first refer briefly to the facts which led up to the dismissal of the election petition on 3-12-57. The Election Tribunal was sitting at Jammu. The second respondent and his counsel are permanent residents of Srinagar which is about 200 miles from Jammu. The Srinagar-Jammu road remained breached at certain places on 3rd December and for some days preceding. The second respondent and his counsel hoped that the breaches would be repaired early and they would be able to travel to Jammu by road and reach there in time to appear before the Tribunal on the 3rd December.

But contrary to their expectations the road was not repaired in time, they could not, therefore, reach Jammu on the 3rd December. The second respondent dispatched a telegr

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