Abraham Singho, H. V. Mrs. Kusumasiri Gunawardena

1953 Present   :    Swan J.

H. ABRAHAM SINGHO, Petitioner, and MRS. KUSUMASIRI
GUNAWARDENA, Respondent

Election Petition No. 15 of 1952 (Avissawella)

Election Petition-Particulars of charges not furnished-Duty of election judge under such circumstances-Ceylon (Parliamentary Elections) Order in Council, 1946, s. 86 (i) and Schedule III, Rules 21 to 26.

Where, in an election petition, the petitioner stated that he was unable to furnish particulars of the charges and to proceed with the petition-

Held, that under the Parliamentary Elections Order in Council the functions of an election judge are purely judicial. So, when at the trial, no evidence is led on the charges, the judge is not bound to proceed any further. He must dismiss the petition.

Per SWAN J.-" There is no reason for me to suspect that the abandonment of the petition is collusive, dishonest or fraudulent. But even if there is room for suspicion I do not think there is anything I can do in the matter."

ELECTION petition No. 15 of 1952 (Avissawella).

C. S. Barr Kumarakulasinghe, with Ivan Perera, for the petitioner.

S. Nadesan, with A. B. Perera, for the respondent.

V. Tennekoon, Crown Counsel, as amicus curiae.

Cur. adv. vult.

June 22, 1953. SWAN J.-

The Election for the Avissawella Electoral District No. 15 was held on 30.5.52. There were two candidates, Mrs. Clodagh Jayasuriya and the respondent. The respondent was elected. The result was published in the Government Gazette of 2.6.52.

The petitioner claiming to be a registered voter in the district filed this petition on 21.6.52 in which he seeks to have the respondent unseated on the ground that she and her agents were guilty of the corrupt

practice of undue influence. He also seeks to have the election declared void on the ground that by reason of general intimidation the majority of the electors were prevented from electing the candidate they preferred.

When notice of presentation of the petition was duly served on the respondent she entered an appearance and appointed an agent to represen her. On 20.10.52 I was appointed Election Judge and on 15.1.53 I fixed the trial of the petition for 23.3.53 which date was subsequently altered to 9.6.53.

On 4. 5. 53 the respondent's agent moved for an order on the petitioner to deliver to him on or before 12.5.53, particulars of the charges. On 13.5.53 counsel saw me in Chambers and the petitioner's proctor agreed to furnish the particulars asked for on or before 25.5.53. The case was called the following day and, as no particulars were furnished and no application was made for further time, I directed that the trial date should stand.

On 9.6.53 the petitioner and respondent were present. Mr. Ivan Perera appearing for the petitioner stated that the petitioner was unable to furnish the particulars asked for. Mr. A. B. Perera thereupon moved that the charges be struck out and the petition dismissed. As the Rules made no provision for a situation like this, I adjourned the hearing for 12.6.53 and requested the Attorney-General to send a representative of his Department to be present as amicus curiae.

On 12.6.53 the petitioner was represented by Mr. C. S. Barr Kumarakulasinghe with Mr. Ivan Perera, and the respondent by Mr. S. Nadesan with Mr. A. B. Perera. Mr. V. Tennekoon, C.C., appeared as amicus curiae. Mr. Barr Kumarakulasinghe repeated what Mr. Ivan Perera had stated on 9.6.53 but explained at length why the petitioner could not proceed with the matter. Mr. Nadesan thereupon moved that the petition be dismissed with costs. Having heard Crown Counsel I said I would like to consider the matter further and I accordingly reserved my order for 22.6.53.

Rules 21 to 26 deal with an application to withdraw a petition and lay down the procedure to be followed when such an application is made. But this is not an application to withdraw and I cannot treat it as suc

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