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,