P. V. B. RAO, J.

( 1 ) THIS appeal is against the order of the Election Tribunal (Mr. T. V. Rao, District judge Puri) passed on a petition filed under Section 81 of the Representation of the People Act, 1951, (hereinafter called the Act) by a defeated candidate, Shri banamali Patnaik for the Orissa Legislative Assembly from the Khurda constituency during the elections held in 1957 praying to declare the election of the returned candidate Shri Prananath Patnaik as void.

( 2 ) THE Election Tribunal by its order dated 20th November, 1957 declared the election of Shri Prananath Patnaik to the Orissa Legislative Assembly to be void on account of the corrupt practice committed by him under Section 123, Clause (4) of the Act and disqualified him from standing as a candidate for election to the House of Parliament or the State Legislative Assembly for a period of six years.

( 3 ) THE Respondent-Petitioner was a candidate set up by the Congress Party while the Appellant-Opposite Party was set up by the Communist Party and they filed their nomination papers for the assembly seat for the Khurda Constituency. There was another candidate whose nomination was accepted, Shri Madhab Chandra routroy, who stood as an Independent candidate but retired from the contest on 16-2-57 under the provisions of Section 55 (a) of the Act. The polling took place on 4-3-57 and the result of the election was announced on 18-3-57 declaring the appellant as a successful candidate. He obtained 14577 votes and the respondent obtained 13491 votes. The petition was filed on 20-4-57 before the Commission.

( 4 ) THE respondent-petitioner alleged in his petition that the appellant-oppositeparty and his agents laid a plan to prejudice the prospects of the election of the respondent coming to know that the independent candidate Madhab Chandra routroy would retire from the contest. In pursuance of that plan, it is stated, that a pamphlet dated 15-2-57 (Ext. 2) was circulated on behalf of the Communist party election board under the signature of its Secretary, Shri Sivaji Patnaik, alleging that the independent candidate was liable to be purchased by the congress as he was only a Congress candidate in the guise of an independent. The independent candidate Shri Madhab Chandra Routroy was the sitting member of the Orissa Legislative Assembly from Khurda Constituency elected on a congress ticket in 1952 and as he was not given a congress ticket during the present election, he chose to stand as an independent candidate. It is further alleged that soon after the retirement from the contest by Shri Madhab Chandra routroy on 16-2-57 a news item dated 19-2-57 (Ext. 5) was published in the oriya daily, 'malrubhumi', to the effect that the retiring candidate had been offered rs. 20,000/- as bribe by the Congress to retire in favour of Shri Banamali Patnaik. It is also stated that this news was published with the influence of Shri Chintamani panigrahi an ex-Editor of the 'matrubhumi' who stood as a Communist Party candidate for the Lok Sabha from the Puri Constituency in 1957. On 21-2-57, as alleged in the petition, another pamphlet (Ext. 4) was printed and published on behalf of the Communist party election board in the name of Shri Sivaji Patnaik asserting that the Congress had bribed Shri Routroy to make room for the congress candidate Shri Banamali Patnaik as forecasted by the party previously and urged upon the elector not to vote for Shri Banamali Patnaik. In this Pamphlet (Ext. 4) the news item published in the Matrubhumi was also referred to relating to the bribing of the independent candidate. It is further alleged that the appellant and his election agents organised and addressed public meetings in different parts of the constituency giving wide publicity to the alleged bribe to Shri Routroy by the Congress and also circulated the pamphlet dated 212-57 and thereby prejudiced the electorate against the respondent materially affecting the result of the election. Accordin