B. DAYAL, J. :- This appeal under Section 116-A of the Representation of the People Act, 1951 has been referred to this Full Bench because there appeared to be an apparent conflict between two Division Bench cases of this Court reported in Vishwanath Prasad v. Malkhan Singh Sharma, AIR 1964 All 181 and B. P. Maurya v. Election Tribunal, 1964 All LJ 155 on the question whether the Election Tribunal while hearing an election petition had the power to dismiss the election petition under O. 9, R. 8 of the Civil Procedure Code for default of appearance of the election-petitioner and also to restore it in a proper case under O. 9, R. 9 of the same Code.

2. After hearing learned counsel for both the sides at length, I have come to the conclusion that in this appeal this question is of a mere academic interest and it is unnecessary to decide it.

3. The facts of the case may be briefly stated. Respondent No. 1 (Shri Sitaram) (hereinafter referred to as the respondent) was elected a member of the Council of the State (Rajya Sabha) from the Uttar Pradesh State Assembly constituency on the 29th of March, 1962. The appellant was a member of the Uttar Pradesh Legislative Assembly and was, as such, a voter in the Constituency. This election petition was, therefore, filed by a voter on the 14th of May, 1962 alleging, inter alia, several instances of corrupt practices of bribery and undue influence. A written statement was filed on the 30th of July, 1962 denying the allegations of corrupt practices, etc. Issues were framed on the 25th January, 1963 and thereafter several dates were fixed for hearing which had to be postponed for some reason or the other. Ultimately on the 27th of January, 1965, on which date the election-petition was fixed for final hearing, neither the election-petitioner nor his counsel appeared. The clerk of the counsel asked for an adjournment of the case. The case was fixed for the 1st of February 1965 and on that date in the presence of the counsel for both the sides, the case was fixed for the 19th of April, 1965. On this date again the petitioner did not appear and the counsel stated that he had no instructions. Although the counsel did not withdraw his vakalatnama from the case yet on account of his statement that he had no instructions to proceed with the matter, the position was that the petitioner was neither himself present nor was he represented before the Election Tribunal on that date. The Tribunal then asked the respondent's counsel as to what was the proper procedure, whereupon the respondent's counsel suggested that the petition be dismissed for default. But the Tribunal, on a review of law, came to the conclusion that it could not dismiss the petition finally merely for default of the petitioner but had to go into the facts of the case and decide it on merits. The Tribunal, therefore, by an order dated the 20th of April, 1965, directed the case to be listed on the 22nd of April, 1965 for decision on merits.

On the 22nd of April, 1965, the Tribunal recorded the statement of the respondent and reserved judgment. On the 27th of April. 1965, the Tribunal passed an order dismissing the election-petition as there was no evidence on record to support the allegations of the petition and which allegations had been denied both in the written statement and in the statement on oath by the respondent and which the Tribunal believed. It will thus be seen that from the 27th January, 1965 till the 27th of April, 1965, when the order under appeal was delivered, the election-petitioner remained absent and did not take any steps or appeared in the case. The petitioner thereafter did not file any application before the Tribunal asking it to set aside the ex parte order showing any grounds which could be sufficient for his non-appearance. Instead he filed the present appeal on the 5th of July, 1965. In this appeal as many as twelve grounds have been taken but none of them even suggests that the petitioner-appellant had su