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High Court Of Madhya Pradesh
P. V. Dixit, C. J. and K. L. Pandey, J.
KAMALNARAIN SHARMA - Appellant
Versus
DWARKA PRASAD MISHRA - Respondents
Misc. Civil Case 90 Of 1964
Decided On : 08/05/1964
The petitioner is not entitled to a certificate for appeal to the Supreme Court on a ground which was not urged before the high Court and on which there was no adjudication. [Para 6
(2) Civil P. C. - S. 139 (c) - clerks of Court appoint by District Judges to administer oath - can administer oaths or take affidavits filed under the Civil Procedure Code - they can not exercise these powers under any other enactments - they are not "Commissioner of Oaths" or "Notaries" - Oaths Act - Notaries Act - S. 8.
The State Government has in exercise of its power under section 139 (c) of the Civil Procedure Code empowered the District Judges to appoint Officers to administer oaths on affidavits under the Code of Civil Procedure and not for administering oaths on affidavits under other statutes. The clerks of Courts appointed by the District Judges to administer oaths on affidavits under the Civil Procedure Code are designated as "Officers for administering oaths on affidavits" and not "Commissioners of Oaths". These Officers have no power to administer any oath or take any affidavit in each and every matter; their power is limited to administer oaths on affidavits filed under the Civil Procedure Code. They are not "Commissioners of Oaths" or "Notaries" appointed under the Notaries Act, 1952, who can under section 8 of that Act administer oaths to, or take affidavits from any person in the matter. [Para 6
(3) Constitution of India - Act. 133 (1) - Civil Proceedings - proceedings under Art. 226 questioning decision of Election Tribunals - are civil proceedings.
The Constitution does not give any definition of "Civil Proceeding". This much is clear that the expression "Civil proceeding" has been used in article 133 in a wide sense so as to cover any Proceeding of civil nature held by the High Court whether in its original, appellate or revisional jurisdiction. The term "Civil Proceeding" has been used in article 133, in contradistinction to the, term "Criminal Proceeding" used in article 134, so that a proceeding instituted under the ordinary criminal law of the land, which may result in conviction or acquittal of the person charged, is not a civil proceeding. The question whether a certain proceeding in the High Court is a "Civil Proceeding" Generally speaking, any proceeding taken for establishing or disputing a civil right or a statutory right of civil nature would be a 'Civil Proceeding'. [Para 8
The right to vote or stand as a candidate for election, though it is not a civil right, is a creature of a statute or special law, and so also the right to call in question an election by an ejection petition presented in accordance with the Representation of the People Act, 1951, is also a statutory right. These rights, though creatures of a statute, are "Civil Rights". The latter term does not mean only common law rights, but also includes any statutory right to property, status and office. AIR 1952 SC 64, AIR 1963 SC 946, AIR 1952 SC 12 relied on. AIR 1957 Pat. 103 (FB) dissented from. [Para 9
(4) Constitution of India Art. 266 - nature of the proceedings - the proceedings are original and not appellate or revisianal proceedings - are not continuation of the proceedings in on interior tribunal.
The jurisdiction which the High Court exercises under article 226 is original in character, as contrasted with its appellate or revisional jurisdiction, and the proceedings under article 226 are not proceedings in continuation of the proceedings before any inferior Tribunal under any Act or statute. AIR 1963 SC 946 relied on. [Para 8
(5) Constitution of India - art. 133 - remand order by High Court under art. 226 - finality of - test for.
In exercising the powers under article 226 of the Constitution the High Court exercises the original jurisdiction and a petition under article 226 of the Constitution is not a continuation of the proceedings before an inferior tribunal or authority. This being the nature of the proceedings under article 226, the finality of the order passed by the High Court under article 226 must be determined with reference to the effect of the order on the proceedings in the High Court itself and not with reference to its effect on proceedings before the inferior Tribunal. [Para 13
The finality of an order under article 226 must be determined on the test whether the order completely and finally disposed of the petition under article 226. AIR 1963 SC 946, AIR 1950 FC 77 and 1952 SCR 12, AIR 1964 Madras 194 (FB) relied on. 1961 SC 794 distinguished.
( 1 ) THIS is an application under Article 133 (1) (c) of the Constitution for a certificate for appeal to the Supreme Court from our decision, dated 15th April 1964, in miscellaneous Petition No. 90 of 1964. By that decision we allowed an application filed by the opponent No. 1 under Articles 226 and 227 of the Constitution and issued a writ of certiorari quashing an order of the Election Tribunal, Raipur, permitting the petitioner to file a fresh affidavit for purposes of Section 83 of the representation of the People Act, 1951, (hereinafter referred to as the Act) and directed the Tribunal to determine, in the light of cur decision sought to be appealed against, the effect of the petitioner's failure to file an affidavit along with the election petition as required by the proviso to Section 83 (1) of the Act on the allegations of corrupt practices made by him in his election petition.
( 2 ) THE material facts, briefly stated, are that the petitioner filed an election petition questioning the validity of the election of the opponent No. 1 to the madhya Pradesh Legislative Assembly at a bye-election held in May 1963 from kasdol constituency mainly on the ground that the opponent was guilty of having committed corrupt practices enumerated in the petition. Along with the election petition the applicant filed an affidavit in support of the allegations of corrupt practices which had not been sworn before any authority specified in Rule 94-A of the Conduct of Elections Rules, 1961, (hereinafter called the Rules) but which was sworn before the Clerk of Court of the District Judge's Court, Jabalpur. The opponent No. 1 raised before the Tribunal the objection that the proviso to Section 83 (1) of the Act laying down that where an election petition alleges any corrupt practices, the petition shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practices and the particulars thereof was mandatory that as the affidavit filed by the petitioner was not in the form prescribed by Rule 94-A of the Rules, the election petition was liable to be dismissed under Section 90 (3) of the Act for non-compliance with Rule 94-A; and that in any case the allegations of corrupt practices in the petition were liable to be struck out, and could not be investigated. Before the Tribunal, the petitioner did not dispute that the affidavit, which he had filed along with the election petition, had not been sworn before any authority specified in Rule 94-A. The Election tribunal also held that the affidavit sworn before the Clerk of Court of the Court of district Judge, Jabalpur, was defective in that it had not been sworn before any authority specified in Rule 94-A, but further held that on that defect alone the election petition could not be dismissed. The Tribunal, without deciding the question of the effect of non-compliance, of Rule 94-A on the allegations of corrupt practices made in the election petition by the applicant, permitted him to file a new affidavit sworn before any authority prescribed by Rule 94-A in substitution of the affidavit filed along with the election petition.
( 3 ) AT the time of the hearing of the petition under Articles 226 and 227 of the constitution, the controversy centred round the question of the effect of the petitioner's failure to file along with the election petition an affidavit as required by the proviso to Section 83 (1) of the Act on the allegations of corrupt practices made in the election petition. The petitioner did not dispute before us that the affidavit, which he had filed along with the election petition, had not been sworn before any authority prescribed by Rule 94-A. The opponent No. 1 also did not question the correctness of the order of the Tribunal that the election petition could not be dismissed for non-compliance with the, proviso to Section 83 (1 ). It was, however, contended on his behalf that the proviso was mandatory and made it obligato
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