Judgment

B. K. MUKHERJEA, J.

This appeal is directed against a judgment of a Division Bench of the Mysore High Court, dated the 14th January 1954 by which the learned Judges granted an application, presented by the respondent No. I under Article 226 of the Constitution, and directed a writ of certiorari to issue quashing the proceedings and order of the Election Tribunal, Shimoga dated the 15th January 1953 in Shimoga Election Case No. 1 of 1952-53.

2. The facts material for purposes of this appeal may be briefly narrated as follows. The appellant and respondent No. 1 as well as eight other persons, who figured as respondent 2 to 9 in the proceeding before the High Court, were duly nominated candidates for election to the Mysore Legislative Assembly from Tarikere Constituency at the general election of that State held in January 1952. Five of these nominated candidates withdrew their candidature within the prescribed period and the actual contest at the election was between the remaining five candidates including the appellant and respondent No.1.

The polling took place on the 4th January 1952 and the votes were counted on the 26th of January following. As a result of the counting the respondent No. 1 was found to have secured 8,093, votes which was the largest in number & the appellant followed him closely having obtained 8,059 votes. The remaining three candidates, who were respondents 2, 3 and 4, before the High Court, got respectively 6,239, 1,644 and 1,142 votes. The Returning Officer declared the respondent No. 1 to be the successful candidate and this declaration was published in the Mysore Gazette on the 11th February 1952.

The respondent No. 1 lodged his return of election expenses with the necessary declaration sometime after that and notice of this return was published on the 31st March 1952. The appellant thereafter filed a petition before the Election Commission challenging the validity of the election inter alia on the grounds that there was violation of the election rules in regard to certain matters and that the respondent No. 1 by himself or through his agents were guilty of a number of major corrupt practices, which materially affected the result of the election. The petitioner prayed for a declaration that the election of respondents No. 1 was void and that he himself was duly elected.

This petition, which bears date, 19th of April 1952, was sent by registered post of the Election Commission and was actually received by the latter on the 14th of April following. The Election Commission referred the matter for determination by the Election Tribunal at shimoga and it came up for hearing before it on the 25th of October 1952.

On that date the appellant filed an application for amendment of the petition, heading it as one under Order 6 Rule 17 of the Civil Procedure Code, and the only amendment sought for was a modification of the prayer clause by adding a prayer for declaring the entire election to be void. It was stated at the same time that in case this relief could not be granted, the petitioner would ,in the alternative pray for the relief originally claimed by him, namely, that the election of respondent No. 1 should be declared to be void and the petitioner himself be held to be the elected candidate at the election. Despite the objection of respondent No. 1 the Tribunal granted this prayer for amendment.

The hearing of the case then proceeded and on the averments made by the respective parties, as many as 27 issues were framed. Of them, issues Nos.1, 5, 6, 11, 12, and 14 are material for our present purpose and they stand as follows:

"(1) Has there been infringement of the other relating to the time of commencement of poll by reason of the fact that polling at Booth No. 1 for Ajjampur fixed at Ajjampur to take place at 8 a. m. did not really commence until about half an hour later as alleged in para 4 of the petition"

(5) Did the 1st respondent hire and procure a motor bus which was a service bus running betwe