Kadiravan alias Shamsudeen vs R. Thirumalaikumar

M. Anantanarayanan, C.J.—There was a by-election to the Madras Legislative Assembly from the Tenkasi Assembly Constituency, held on 3rd July 1968. R. Thirumlai Kumar, the Petitioner in Election Petition No. 1 of the 1968 and Application Nos. 239 and 2146 of 1968 before Sadasivam J., stood as a Congress candidate and was defeated by his rival, Kadiravan alias Shamsudeen, belonging to the D.M.K. party. The successful candidate secured 47,132 votes, as against 23,876 secured by the Petitioner Respondent. The present appeals before us are from the detailed interlocutory judgment of SADA-SIVAM J., striking out several paragraphs of grounds, retaining others and permitting certain amendments, by way of amplification of particulars. We may immediately state that it is the Respondent in the election petition (Kadiravan alias Shamsudeen) who has filed these appeals, and that there is no such proceeding by R. Thirumalai Kumar, the Petitioner and the defeated Congress candidate. In other words, the deletion of certain paragraphs of the election petition and certain grounds, directed by the learned Judge (Sadasivam J.), is not now before us, on the matter of the propriety of any such directions.

A preliminary ground with regard to the maintainability of these appeals, in the context of Clause 15 of the Letters Patent and Section 116-A of the Representation of the People Act, 1951, was somewhat elaborately argued before us. The matter has been exhaustively dealt with by my learned brother (Natesan J.) in his separate judgment. Since I am in entire agreement with his conclusions, I do not propose to cover the same ground again. But, I may content myself with the observations, as relating to Clause 15 of the Letters Patent, that the entire case-law upon the question of the kind of order or adjudication, in any ancillary proceeding, or in pending suit, before a learned single Judge of this Court, which would be a judgment within the scope of Clause 15, steming from Tuljaram Row v. Alagappa Chettiar I.L.R (1910) Mad. 1 (F.B.), has been elaborately considered in the Full Bench judgment in Palaniappa v. Krishnamurthy I.L.R.(1967) Mad. 227 (F.B.), to which I was a party. In laying down the criteria, at page 252, I have referred to

the negative tests that has found express recognition in the dicta of White C.J., with reference to Vaghoji v. Camaji I.L.R(1904). 29 Bom. 249 and has not been disapproved by their Lordships of the Supreme Court in Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, , but which, instead, would appear to have been impliedly approved, namely, whether, apart from the actual order in the lis or proceeding, a conceivable order, or an order to the contrary effect, would have disposed of the suit, and would come within the definition of judgment.

Judged by such a test, there can be no doubt whatever that the present interlocutory judgment is a judgment within the meaning of Clause 15 of the Letters Patent, while, at the same time, it is indisputably not a disposal, which would give rise to a right of appeal to the Supreme Court u/s 116-A of the Representation of the People Act. As regards Original Suit Appeal No. 3 of the 1969, from the order of the learned Judge in Application No. 2394 of 1968, I agree with my learned brother in the view that, following the Full Bench decision in Mahalingam v. Natesa Aiyar 3 L.W. 107 (F.B.) this would not be a judgment within the meaning of Clause 15 of the Letters Patent. I may immediately proceed to the substantive grounds of the appeal, that have now to receive careful consideration at our hands.

At the outset, I may refer to two authorities, inter alia, which stress the true character of such a proceeding, seeking to assail the result of an election under the Act, and the proper perspective in which the Court has to approach this matter. In Jagan Nath v. Jaswan Singh (1954) 1 M.L.J. 480 (S.C.) their Lordships of the Supreme Court observed that the statutory requirements of the election law must be strictly observed, and:

that an election contest is not an action at law or a suit in equity, but is a purely statutory proceeding unknown to the common law, and that the Court possesses no common law power.

Further it is a sound principle of natural justice, that the success of a candidate, who has won at an election, should not be lightly interfered with, and any petition seeking such interference, must strictly conform to the requirements of the law. But, this is not an unqualified principle. In the language of their Lordships in the same passage (Page 482.)

though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process, and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices.

The other decision that I would like to refer to here, is the recent decision of their Lordships in R.M. Seshadri Vs. G. Vasantha Pai, .

Their Lordships point out at page 698:

It must be remembered that an election petition is not an action at law or a suit in equity. It is a special proceeding. The law even requires that an election Petitioner should not be allowed to withdraw an election petition which he hag once made, and that the election petition may be continued by another person, so long as another person is available. The policy of election law seems to be that for the establishment of purity of elections, investigation into all allegations of malpractices including corrupt practices at elections should be thoroughly investigated.

In other words, there is a polarity of the principles in this matter, which Courts must carefully keep in mind. On the one hand, the proceeding itself is a creature of statute, and it is not in the public interest that the election of a successful candidate, which is an integral part of the democratic process, should be lightly interfered with, particularly in cases where that candidate has won by a very ample margin of votes. On the other hand, the Courts must safeguard the purity of the electoral process, and, where the corrupt practice or corrupt practices could be held fairly established, on the evidence, the Courts must not hesitate to strike down the election, merely because of the margin of votes of the successful candidate over his rival. In the present matter, we have the difficulty that the election petition is pending, and that even the hearing or enquiry proper is not begun. However, the election Petitioner does not claim to be aggrieved by those directions as to deletion made by the learned Judge (Sadasivam J.), it is only the Respondent, on whose behalf Sri M.K. Nambiyar has argued before us, who contends that, in the very imperfect and inadequate state of the averments in the election petition, concerning corrupt practices, the entire petition should be dismissed in limine. However, only certain of the exhibited grounds of appeal were actually argued, and we shall confine ourselves to a consideration of those grounds.

The power of the Court, enquiring into the election petition, either to strike down heads of charge, or to permit amendments, by way of amplification of existing pleadings, may be briefly referred to. In Muthiah v. Ganesan ILR (1958) Mad. 810, a Bench of this Court observed that the Election Tribunal must be held to act improperly, when it does not decide preliminary issues of that character, namely, that the averments do not amount to an imputation of corrupt practice and should be deleted. In Muthiah v. Ganesan ILR (1958) Mad. 810 a Bench of this Court observed that if there were no averments in the election petition, from which a particular charge of corrupt practice could be spelled out, but the Tribunal decided to investigate the truth of such an allegation advanced at the stage of the trial, the Tribunal would have no jurisdiction, and that a writ of prohibition could properly issue to restrain the Tribunal. In K. Kamaraja Nadar v. Kunju Thevar A.L.R. 1958 S.C. 687 their Lordships held that a preliminary objection should be entertained and decided in the initial stage, and should not be relegated to the stage of the hearing of the petition. u/s 87(1) of the Act, every election petition is to be tried by the High Court.

as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits.

Section 86(5) provides that the High Court may allow

the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial of the petition.

But this power of amendment is not to be exercised in any manner,

which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.

There are certain observations of the Supreme Court in Balwan Singh Vs. Lakshmi Narain and Others, upon the context in which an election petition could be properly dismissed in limine. Where a corrupt practice is alleged, but the petition is defective, because full particulars are not set out, the Petitioner should be permitted to apply for leave to amend, or to amplify the particulars. In a very recent case Chenna Reddy Dr. v. Ramachandra Rao Civil Appeal No. 1449 (NCE) of (1966), their Lordships observed:

The Court also cannot lose sight of the fact that quite apart from the nature of the charge, the trial itself goes on as if the issues in a civil suit were being investigated into. The Petitioner has to give particulars of the corrupt practice with details, in default whereof the allegations may be ignored

We are stressing these aspects, at the outset itself, for the arguments of Sri Nambiyar would, if carried to their logical conclusion, involve the implication that, if the pleadings in the election petition are scrutinised and, though corrupt practices are alleged, all the requisite particulars are not evident, or, as we shall illustrate in this case, the particulars do not seem to totally establish the ingredients of the alleged corrupt practices, the election petition is to be dismissed in limine, with regard to those parts of the petition, or in entirety, if necessary. That this is not the law is very clear from the wording of Section 86(5) of the Act, that we have referred to earlier, and from the observations of their Lordships of the Supreme Court in several decisions. u/s 86(1)

The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.

But the present grounds of criticism relate to Section 83, particularly, to Section 83(1)(a) and Section 83(1)(6), and to the requirement that full particulars of corrupt practices, as far as practicable, must be set forth. Even with regard to those paragraphs, which the learned Judge has directed to be deleted, he was not exercising the power u/s 86, but the power under Order VI, Rule 16 of the Code of Civil Procedure, because the provisions of the CPC are expressly made applicable. That rule states that the Court may, at any stage of the proceedings, order to be struck out or amended any matter in any pleading

which may be unnecessary or scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the suit.

In Halsbury''s Laws of England (third edition), volume XIV pages 258 and 259 (paragraph 451), will be found set forth a brief conspectus of the law relating to the amendment of such petitions. The strictly relevant passage is as follows:

The High Court has no jurisdiction to allow an amendment of a petition after the time prescribed by statute by the introduction of a fresh substantive charge; nor to convert an offence charged under one statutory provision into an offence against another related provision although the facts might support the latter offence. There is not, it is submitted, jurisdiction to allow an amendment introducing a fresh charge, whether the charge sought to be added is one of a fresh nature, or whether it is one only of a fresh instance, but not covered by the allegations in the petition as standing.

In support of the proposition that the Election Court must not permit an amendment, which introduces a new charge, or converts the offence charged under one section into an offence against another related section, Sri Nambiyar depends on the dicta at page 337 in the Eastern Division of the County of Cork Case (Cohen''s Election Petition Reports, volume VI (1911), page 318). The point is, whether, with regard to those matters, concerning which the learned Judge has directed the retention of charges and further trial, or permitted amplification, there is any clear infringement of these legal principles.

The substance of the judgment of the learned Judge is this. He directed the averments in paragraphs 3 to 10 of the petition to be struck down, under the power of the processual law, that we have already referred to, as irrelevant and unnecessary, and tending to prejudice, embarrass, and delay the fair hearing of the petition. But he excepted (i) the averment relating to Sri S.B. Adityan, the then speaker of the Legislative Assembly, as taking the most active part, and, in fact, with the consent and approval of the Respondent, being in overall charge of the election on his behalf and the D.M.K. Party, (ii) Certain averments relating to large-scale official interference in the election, both by the police and Other officers, accompanied by malpractices, as these formed the necessary preamble to the statement of corrupt practices, (iii) Paragraph 9 of the petition and item 1 in annexure I, in so far as they relate to Sri S.B. Adityan, the then Speaker. Certain averments in paragraphs 12(4), 13(a), 14 and 15 were also directed to be struck out, except the averment regarding the opening of an elementary school in paragraph 12(4). (iv) The prayer of Petitioner to add Section 123(2) of the Act, on the ground that the averments contained in the relevant paragraphs also amounted to the corrupt practice of undue influence, interfering with the free exercise of the electoral right by the voters, was permitted, (v) The Petitioner was called upon to give clear and full particulars of the times and specific places with regard to the item concerning Sri S.B. Adityan, alleged in the annexure, and the corrupt practices averred in paragraphs 12 and 13(b) to (h) and (j) of the petition. Similarly, the Petitioner was called upon to furnish particulars with regard to what was alleged in paragraph 16 of the petition, concerning the incurring of total expenditure in excess of the limit prescribed under the Act, and the alleged submission of false accounts in that context.

The several arguments submitted by Sri Nambiyar for the Appellant, which, though covering both the appeals, have to be restricted to Original Side Appeal No. 2 of 1969, for the reason I have already given, may be set forth in a condensed form in the following propositions.

The learned Judge should not have held that the question whether Sri S.B. Adityan was an agent within the meaning of the explanation to Section 123(7) is a triable issue, and should be tried in the process of hearing. The learned Judge has overlooked the principle that though under this explanation, the term agent will include not merely an election agent, or a polling agent, but also

any person who is held to have acted as an agent in connection with the election with the consent of the candidate,

nevertheless, when we consider Section 100(1)(6), the language is specific that the corrupt practice must have been committed by a returned candidate or his election agent

or by any other person with the consent of a returned candidate.

In Muihiah v. Ganesan I.L.R (1958) Mad 810 the learned Judges of the division Bench emphasised this requirement of Section 100(1)(6). It is alleged that, though the learned Judge might have observed that the averments made against Sri S.B. Adityan, if established, may go to show that he has acted contrary to the honourable principles of non-participation, in a direct sense, in elections or party-politics, by one holding the high office of the Speaker of the Assembly, and though such practices, if true, might be evil practices, as the term is used in the election law, the particulars alleged with regard to Sri S.B. Adityan cannot be investigated, as the consent of the returned candidate has not been specifically pleaded. Again, with regard to the averments of such practices committed by a third person, they could not be the subject-matter of enquiry, unless it is alleged that the result of the election had been thereby materially affected. Sri Nambiyar equally points out that this would apply to the permission given to the Petitioner to invoke Section 123(2) of the Act. Vide Section 100(1)(d)(ii) of the Act.

Upon this aspect, we desire to observe that, at this stage, it may be quite improper and against the true spirit of the election law, to take a particular isolated passage in a lengthy election petition, which contains many paragraphs and averments, and confine the impact of that passage or observation necessarily, and only, to subsequent parts or paragraphs, and not to anterior paragraphs. Such considerations may very well be relevant, when the evidence has been led, and the probative value of that evidence and further the true inferences to be drawn therefrom, have to be assessed. It is a fact that the Petitioner has not merely advanced wide averments with regard to the alleged part played by Sri S.B. Adityan in this election, but he states further, that that part was played with the consent and approval of the Respondent. Hence, we are unable to see how the learned Judge could be said to have acted manifestly in error, in holding that the question whether Sri S.B. Adityan was an agent within meaning of the explanation to Section 123(7) was a triable issue and further that item 1 of annexure 1, relating to the activities of Sri Adityan, should be retained, and specified by more details. Of course, in so holding, we are not saying anything whatever about the extent to which any such averments may be true, or may or may not be established by evidence; but that such averments are relevant, and that evidence relating to them could be led, seems indisputable.

It is perfectly true that there can neither be an advancement of a new corrupt practice, by way of amendment, or amplification; nor should there be the conversion of one category of corrupt practice into another. In Harish Chandra Bajpai Vs. Triloki Singh, the Supreme Court held that though the Tribunal had power under Order VI, Rule 17 of the Code of Civil Procedure, to order amendment of an election petition, new grounds could not be permitted, nor conversion of grounds. Madan Lal v. Syed Zarghan Haider XIII Election Law Reports 456 has also been referred to in this context. But we think it is obvious that there is a wide distinction between amplification or amendment of existing particulars of corrupt practices, and the introduction of a new charge, or the conversion of one charge into another. Again, we may observe that the question whether the averments, as existing, sufficiently bring out the ingredients, would depend largely on the actual evidence led. So long as the averments are there, outlining the corrupt practices, it would clearly be wrong to stifle the petition, by striking out such grounds, because the particulars do not seem to totally establish the required ingredients. Obviously, that will be largely a matter of the kind of evidence that is led in the petition.

With regard to Section 123(2), we may observe that certain averments are already in the petition, of threatening voters with the use of force and dire consequence, which would definitely attract the provision, if true. The same remarks are applicable to Section 123(7), and the alleged misuse of member of the police force, etc. If there is no adequate averment that the result of the election has been materially affected, by such corrupt practices, it may have to be decided, ultimately, whether those ground for setting aside the election should be held to have failed. But we do not think that the petition is so destitute of particulars, in this respect, as to render these imputations into the introduction of a new ground by way of amendment, or an irremediable lacuna in respect of the corrupt practice.

It is with regard to alleged instances of bribery that Sri Nambiyar has argued at some length. Sri Nambiyar points out that the word person in Section 123(1) of the Act will not include a body of persons because of the definition in Section 2(g) of Act XLIII of 1950, which is held applicable. Hence, if offers have been made by Ministers or other persons to individuals at a public meeting, this would be an offer to a fluctuating body, and not an offer of numerous bribes to the individuals composing that fluctuating body. Again, it is not enough that offers were made in respect of public amenities, and the act would amount to bribery only if there was a bargain namely, there was a promise in return from the voters, agreeing to vote for the candidate because of the offer of consideration. The relevant authorities are Ghasi Ram Vs. Dal Singh and Others, and Om Prabha Jain Vs. Abnash Chand and Another, . We think it is sufficient to observe that there are grave averments in the petition, of specific inducement held out to individuals present at the meeting, or offers made in return for electoral support. The question whether the persons then present were induced by such improper offers qua individuals, or as a collective body, depends very largely upon the time, place and surrounding facts, and the precise language which the speakers used. It is extremely difficult to arrive at any anticipatory inference in this regard. In Ghasi Ram Vs. Dal Singh and Others, it has to be noticed that, on the evidence led, there was a careful consideration whether it satisfied the requirements of Section 123 of the Act, or otherwise. Both Amirchand v. Surendralal Jha (1954) E L.R.Nag 57 and Anjaneya Reddy v. Gangi Reddy (1959) E. L.R.(Mys.) 247 relate to the evidence, and whether that evidence justified the inference, or otherwise, that the voters made any promise in return for the improper offer. We cannot categorically lay it down, that such a reaction must only be expressed by specific words uttered by each individual. In any event there can be no doubt whatever that, on such averments being made, as full particulars as practicable should be called for, and that the matter should proceed to trial.

It only remains for us to deal with the charge relating to the violation of Section 77(3) read with Section 123(6) of the Act. Mr. Nambiyar strenuously contends that the averments in the petition are extremely bare, and amount merely to a formal charge. It is stated that the limit has been exceeded and that the accounts filed by the candidate before the authorities are false. But, even if the provisions of Section 83(1)(a) and (b) of the Act have been inadequately complied with as the learned Judge appears to concede, that does not, mean that the charge should be struck down, or that the Court has no power to call for further particulars. Ramabhilash Tewari v. Election Tribunal Gonda (1958) E. L.R. 375, has been relied on, as well as the decision of the Bombay High Court in P rabhudas v. Jorsang 18 E. L.R. 110. But, in the present case, beyond the bare averment of expenditure exceeding the statutory limit, there is a definite charge that the actual accounts filed are false. The learned Judge has called for particulars in amplification, and they have been given; that order, as we have pointed out, is not the subject of an appeal under Clause 15 of the Letters Patent. It cannot be said that this amounts to the introduction of a new charge, or the conversion of one category of offence into another.

Under these circumstances, we are clearly of the view that there is no justification for us to interfere with the state of the election petition before the learned Judge, at this stage, and that further hearing should proceed expeditiously, in the interests of justice. Naturally, since many of the criticisms now made, may or may not derive strength or support from the actual evidence adduced, we reserve to the Respondent full right to canvass all these grounds, in the light of the record, at the completion of the hearing. But, in our view, they are not grounds on which further portions of the election petition should be struck out, or the petition itself dismissed in limine; in view of so many specific averments, it is certainly not in the interests of that justice which safeguards the purity of the electoral process, though with perfect respect for the principle that the success of a returned candidate should not be lightly jeopardised, that the petition should now be held to have totally failed.

Both the appeals are dismissed. No order as to costs.

Natesaic J.

I am in entire agreement with the judgment just now pronounced and I shall confine myself to the consideration of the preliminary objection raised about the maintainability of the appeals under Clause 15 of the Letters Patent. At the first blush t does appear that, while an appeal from the final decision of the High Court on an election petition lies u/s 116-A of the Representation of the People Act, 1951 only to the Supreme Court, an aggrieved party could have an internal appeal under the Letters Patent from interlocutory orders made during the trial of the election petition. As we entertained doubts about the maintainability of such an appeal, even before issuing notice to the Respondent we desired to see if prima facie the appeals were maintainable and requested the learned Government Pleader to appear amicus curiae in the matt M. The learned Government Pleader submitted that, as appeals from interlocutory orders were not provided for under the Representation of the People Act of 1951, appeals under the Letters Patent will be competent from interlocutory orders which are judgments. We have since heard full arguments on the matter as the Respondent contended against the maintainability of any appeal in the matter in the High Court.

The question raised is one of considerable importance and not free from difficulty. Mr. T. Martin, learned Counsel appearing for the Respondent, submits that the Representation of the People Act, 1951 (hereinafter referred as the Act) is a complete Code by itself and an appeal from orders under the Act would lie only if it is provided for by the Act. The argument is presented in a two fold manner. First, it is submitted that a Judge of the High Court trying an election petition functions under a special jurisdiction specifically conferred by an enactment not dealing with civil rights of parties ordinarily so recognised. In such a case it is said that the ordinary right of a litigant to a further appeal from the judgment of a single Judge of this Court under Clause 15 of the Letters Patent is not available. In substance the argument is that a single Judge of this Court, when trying an election petition, functions as a special Court. Secondly, it is submitted that, by the express provision for appeal u/s 116-A of the Act from every order made u/s 98 or 99 of the Act, impliedly appeals from all other orders are interdicted. A subsidiary contention is that the orders appealed against are not judgments under Clause 15 of the Letters Patent.

The material part of Clause 15 of the Letters Patent necessary for our immediate purpose runs thus:

And we do further ordain that an appeal shall lie to the said High Court from the judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to Section 108 of the Government of India Act...but that the right of appeal from other judgments, of Judges of the said High Court or of such Division Court shall be to us...

We are not here concerned with a judgment passed by the High Court in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate Court or in the exercise of revisional jurisdiction or in the exercise of criminal jurisdiction. We are concerned with an order passed by a learned single Judge of this Court in the exercise of a jurisdiction vested under a special enactment. For an appeal to lie against the order in the context of the present controversy, two conditions must be satisfied, (i) it must be a decision of the High Court by a single Judge of the High Court, that is, not of a special Court or Tribunal; and (ii) the order must be a judgment.

First we shall take up for consideration the point whether, when trying an election petition, a single Judge of this Court is functioning as the High Court or a special Court or Tribunal. It is convenient first to set out the relevant sections which provide for the trial of election disputes found in part VI of the Act as amended by Act XLVII of 1966. The section which constitutes the Court for trying an election dispute is Section 80-A, and it clearly vests the jurisdiction in the High Court as such. Section 80-A runs thus:

(1) The Court having jurisdiction to try an election petition shall be the High Court.

(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, design one or more Judges for that purpose:

Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.

(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court,

Section 81 deals with presentation of election petitions to the High Court. In chapter III, dealing with trial of election petitions, the reference is right through to High Court and not to the Judge of the High Court trying an election petition. While Section 86(1) states that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117, Section 86(2) provides that, after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for trial of the election petition. Section 86(5) which provides for amendment or amplification of particulars of any corrupt practice alleged in the petition, speaks only of the power of the High Court, to allow such amendment or amplification in its discretion. Section 87 referring to the procedure before the High Court, provides that, subject to the provisions of the Act and any of the rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. u/s 109, the election petition may be withdrawn only by leave of the High Court. Clearly the trial of election petitions is by the High Court and the jurisdiction to try such petitions is vested specifically in the High Court. It is the High Court as such and not any individual Judge or Bench of Judges of High Court who may be designated by the Chief Justice that is vested with the jurisdiction to try election disputes. This is not a case where, by an Act of Parliament, a new authority is constituted for the purpose of determining questions concerning rights and liabilities which are themselves creation of the Act, and, a Judge or a Bench of Judges of the High Court, as distinct from the High Court, is directed to perform the functions of the newly created authority persona designate. If that were the position, one may presume, unless the contrary is expressly enacted or necessarily implied that the intention of the Parliament was that the Judge or a Bench of Judges should perform the functions under the Act as special Tribunal and not as a High Court: see for instance the Special Tribunal constituted u/s 51 of the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948).

In National Telephone Co. Ltd. v. Post Master General (1913) A.C. 546 which we will be referring to again in another context, the question for decision before the House of Lords was whether the Railway and Canal Commission which was constituted a Court of Record acted as such Court or as arbitrators. The competency of the appeal from the determination of the Commission on a reference to the Court of Appeal depended on that. In holding that the reference was to the Court as a Court, Lord Parker observed;

Whereby statute matters are referred to the determination of a Court of Record with no further provision, the necessary implication is, I think, that the Court will determine the matters as a Court. Its jurisdiction is enlarged, but all incidents of such jurisdiction including the right of appeal from its decision remain the same.

Reference may also be made to the decision of the Judicial Committee in Hem Singh v. Mahmnt Basant Das ILR (1936) Lah. 146 a case arising under Punjab Sikh Gurudwaras Act (VIII of 1925). When the appeal came up before the Board on a certificate of fitness granted by the High Court, a preliminary objection was taken to the competence of the appeal on the ground that the appeal before the High Court under the Act was entertained under a special jurisdiction and it was functioning as a Tribunal. For maintenance of the preliminary objection, emphasis was laid on the provision in the Act that appeals should be heard by a division Bench of the High Court and not by a single Judge. Also the Gurudwaras Act created peculiar rights in religious bodies, rights unknown before in civil law. Sir George Rankan overruled the preliminary objection and applying the principle enunciated in the National Telephone Co. Ltd. v. The Post Master General (1913) A.C. 546 observed that the jurisdiction conferred on the High Court under the Act was intended to include the subject matter as part of the ordinary appellate jurisdiction of the High Court.

An interesting case very much in point is the decision of the Judicial Committee in Goonesinha v. The Honourable O.L. de Kretser (1945) 2 M.L.J. 314 on an appeal from the Supreme Court of Ceylon arising out of an election dispute relating to an election to the Ceylon State Council. The Ordinance which had constituted the Supreme Court of Ceylon did not confer upon it original but conferred only appellate jurisdiction. Article 76 of the Ceylon (States Council Election) Order in Council provided that an election petition may be presented to the Supreme Court, while Article 75 stated that every election petition should be tried by the Chief Justice or a Judge of the Supreme Court nominated by him. Examining the maintainability of an application before the Supreme Court for certiorari to quash an order of the election Judge hearing an election petition, the Judicial Committee said that it was well settled that a Court having jurisdiction to issue a writ of certiorari would not and could not issue it to bring up an order made by a Judge of that Court and that the true view was that cognizance of the election petition by the Court was an extension of, or addition to, the ordinary jurisdiction of the Supreme Court. In our view, likewise the Representation of the People Act only extends the jurisdiction of the High Court to certain disputes arising under the Act and a Judge of the High Court trying an election dispute functions only an the High Court. The power of Parliament to extend or add to the jurisdiction of the High Court is not questioned. We do not find any provision sufficiently compelling in other portions of the Act to rebut the strong presumption arising from the language used investing the High Court as such with jurisdiction to determine the election disputes. The prescribing of certain procedure and the provision for designation of a Judge or Judges by the Chief Justice are not in the slightest degree inconsistent with the trial being by the High Court as such.

Once it is held that when trying an election petition the Judge of this Court functions as the High Court, it is well settled that the ordinary incidents of the procedure of this Court attached to the jurisdiction and any general right of appeal from the decision in the matter likewise attaches. This rule, we find succinctly stated by Viscount Haldane in the National Telephone Co. Ltd. v. Postmaster General (1913) A.C. 546, 552:

When a question is stated to be referred to an established Court without more, it is my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.

As Lord Atkinson observed in that case, the right of appeal in such case is simply a case of extending the jurisdiction of an existing Court with all its incidents including a right of appeal to a new matter closely resembling in character those matters over which it has already jurisdiction as a Court of law.

The Privy Council reiterated the proposition in Adaikappa Chettiar v. Chandrasekhara Thevar ILR (1948) Mad. 505 in these words:

The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such disputes the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statue which does not in terms confer a right of appeal.

It is pertinent, in this connection to refer also to the decision of the Supreme Court in National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), , where the competency of an appeal under Clause 15 of the Letters Patent from the decision of a single Judge of the High Court in a matter arising u/s 76 of the Trade Marks Act was questioned. The Supreme Court referred to the National Telephone Co. Ltd. v. Postmaster General (1913) A.C. 546 and Adaikappa Chettiar v. Chandrasekhara Thevar ILR (1948) Mad. 505. and upheld the competency of the appeal, observing that, when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. It follows, that granted the orders in question are judgments under Clause 15 of the Letters Patent, the necessary conditions for the maintainability of appeals therefrom are fulfilled.

The right of appeal under Clause 15 of the Letters Patent may be taken away by the Legislature by express provision or by necessary implication. The right of appeal under the Clause could be curtailed by Parliament. We have now to consider the contention of learned Counsel for the Respondent that, as the High Court is vested with special jurisdiction by the express provision for appeal under chapter IV-A of the Act except for the appeals as provided under the chapter to the Supreme Court, even if otherwise available, all other appeals must be held prohibited or not granted. The material section in chapter IV-A (1) relied upon is, Section 116-A which provides:

Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the Supreme Court on any question (whether of law or fact) from every order made by a High Court u/s 98 or section 99.

The right of appeal here is conferred only on orders made u/s 98 or 99 of the Act, decisions of the High Court given at the conclusion of the trial of an election petition. Sections 98 and 99 stately do not deal with interlocutory orders made during the trial of an election petition. Section 87, indicating the procedure before the High Court in the trial of election petitions, as already pointed out, provides that every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of the suits, subject, of course, to the provisions of the Act and of any rules made thereunder. A decision taken during the trial of an election petition may be envisaged which, while not amounting to an order falling u/s 98 or 99, may still affect the merits of the questions between the parties by determining some right or liability under the special statute having far reaching consequences and which would be a judgment under Clause 15 of the Letters Patent. Has Parliament by Section 116-A precluded any internal appeal that may be available in such a case as of right? There is not the slightest doubt--and it is not contended otherwise--that, in respect of orders made u/s 98 or 99 the only remedy available is by an appeal to the Supreme Court u/s 116-A. Learned Counsel for the Respondent contends that as any interlocutory order could also be the subject of challenge in appeal from the final decision, it must be held that an appeal under Clause 15 is barred. The principle enunciated by WILLES J. in Wolverhampton New Water Works Co. v. Hawkesford 6 C.B. (N.S.) 336, 356 that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be followed and that it is not competent to the party to pursue any other remedy, is relied upon. But the right to take up an interlocutory judgment in appeal under Clause 15 flows from the provision for trial of election disputes by a single Judge of the High Court. It is in the pursuit of the remedy provided by the Act the right of appeal is claimed. A right of appeal no doubt is a creation of statute. When the appeal in an incident of the jurisdiction exercised, it is only a right conferred by statute. As pointed out by Lord Atkinson in the National Telephone Co. Ltd. v. Postmaster General (1913) A.C. it is not just a right given by implication. Before such an important provision of the Letters Patent may be held to be taken away by necessary implication, we should be satisfied beyond doubt that the implication is so compelling that to hold otherwise would be to go against any established principle.

There is a general presumption against an intention to disturb the established state of law and the leaning is against construing a statute so as to oust or restrict the jurisdiction of a superior Court. Parliament must have been aware that an interlocutory judgment made during the trial of an election petition could be appealed as of right under Clause 15 of the Letters Patent. Are we to suppose that Parliament has made an important innovation without explicit expression of its intention? The decision in Ponnusawami v. Returning Officer, Namakkal (1925) 1 M.L.J. 775 (S.C.), relied upon for the Respondent, is not helpful to him. The question there was whether the High Court could entertain an application for certiorari under Article 226 of the Constitution from an order of the returning officer rejecting a nomination paper in an election to the Legislative Assembly in the face of the express prohibition in Article 329(6) of the Constitution against calling in question an election except by an election petition. The Supreme Court, affirming the decision of this Court, held that it will be a fair inference from the provision of the Representation of the People Act to state that the Act provided for only one remedy, that remedy being by an election petition to be presented after the election was over, and there was no remedy provided at any intermediate stage. The Supreme Court pointed out that where a right or liability is created by a statute which gave a special remedy for enforcing it, the remedy provided by that statute only must be availed of. But the Supreme Court in that ease was not concerned with the problem like the one before us. The special remedy provided here is being availed of by an election petition. Final orders made on an election petition are made appealable to the Supreme Court. There is an appealable interlocutory order, and there is no express prohibition of appeals available under the jurisdiction which this Court is exercising in the trial of an election petition.

N.T. Veluswami Thevar Vs. G. Raja Nainar and Others, in a way inclines us to uphold the competency of an internal appeal. That case arose under the Representation of the People Act, 1951 before its amendment in 1966 when an election petition was tried by election Tribunal and an appeal lay from every order of the Tribunal made u/s 98 or 99 to the High Court of the State in which the Tribunal was situate. From an order made by the Election Tribunal on an interlocutory application for striking out certain additional grounds of disqualification, petitions under Article 226 of the Constitution, and for certiorari to quash the order of the Tribunal and the other for prohibition to restrain the Tribunal from inquiring into the additional grounds of disqualification were filed in this Court. The Supreme Court on this did not rule out the competency of the High Court to examine the correctness of the interlocutory orders of the Election Tribunal under Article 226 of the Constitution, notwithstanding that an appeal lay to this Court from the final orders on the election petition. True the remedy under Article 226 is one given by the Constitution. All the same the Supreme Court while observing that the jurisdiction of the High Court to issue writs against orders of the Tribunal was undoubted, only pointed out that it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Article 226. The Supreme Court expressed the opinion that a right of appeal against a decision of the Tribunal to the High Court had been given by the amendment of the Act in 1956, with the obvious intention that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should be set right in an appeal under that section. It can be said that under the amendment in 1966, the High Court has been substituted for the Election Tribunal and the Supreme Court has taken the place of the High Court for the purpose of appeal, and that any error in the decision of the High Court in interlocutory orders could be set right in the appeal to the Supreme Court, learned Counsel for the Respondent submits that Parliament must have intended, by providing original jurisdiction in the matter to the High Court, to speed up the disposal of election petitions. But there is one vital distinction which we cannot overlook. The exercise of jurisdiction under Article 226 is discretionary and the Supreme Court in N.T. Veluswami Thevar Vs. G. Raja Nainar and Others, only observed that the High Court may properly, in the exercise of discretion decline to interfere under Article 226. When a statutory right of appeal is held available under Clause 15 of the Letters Patent, the Court cannot decline to exercise its jurisdiction. The Court has no discretion in the matter of entertaining or not entertaining an appeal brought up before it under Clause 15.

A case where a Letters Patent Appeal was held expressly excluded is the decision under the Arbitration Act in Union of India v. Mohindra Supply Co. A.L.R. 1962 S.C. 256, 259 Section 39 of the Arbitration Act, while granting an appeal from specified orders passed under the Act, in express words stated that there shall be appeals from no other and provides further that no second appeal shall lie from an order passed in appeal u/s 39(1). Having regard to the express language, the Supreme Court observed:

The Legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right of appeal against other orders is expressly taken away. If by the express provision contained in Section 39(1), a right to appeal from a judgment which may otherwise be available under the Letters Patent is restricted, there is no ground for holding that Clause (2) does not similarly restrict the exercise of appellate power granted by the Letters Patent.

It is submitted for the Respondent that the provision here giving a right of appeal to the Supreme Court only, must be construed having regard to the apparent object of the amendment and intention of Parliament to further speed up the disposal of election petitions as an implied bar to any other appeal. But, in a matter like this, when there is a statutory right of appeal, to deprive a suitor of that right, we have to find the intention of Parliament in the words in which it has expressed itself or by necessary implication. Why should we infer in a case of this kind that Parliament intended to do away with internal appeal from interlocutory judgments. If we take the view that to the extent there is no express invasion of the right, the right of appeal is preserved, are we putting a construction which Parliament could never have contemplated? From one perspective of approach sound reason could be found for an internal appeal in interlocutory matters. Rather than allow the matter to go up to the Supreme Court with the possibility of a remand, Parliament might have intended that parties could avail themselves of the provision for an intra Court appeal under Clause 15 of the Letters Patent in respect of interlocutory orders. Such appeals should normally be capable of immediate disposal. If it is said that Parliament must hare intended to preclude all appeals under the Letters Patent, there is a cases missus which the Court cannot rectify by construction. We are of the opinion that in a case of this kind it would be speculation to ascribe one or other intent to Parliament. We would prefer to go by the clear language of the enactment read in the light of the external manifestation of the purpose, as we are not concerned with anything subjective.

It is interesting to notice, in this connection, that before the Amendment Act XLVII of 1966 became law, both in the Bill originally introduced and in the Bill as returned by the Joint Committee, there was a Clause (Clause 43) providing for a section, Section 104, making every order of the High Court under the Act final and conclusive,

notwithstanding anything contained in the Letters Patent of the High Court or any other law for the time being in force.

But, at this stage, there was no provision for any appeal to the Supreme Court. The Bill vested the original jurisdiction in the High Court and provided for deletion of chapter IV-A of part VI providing for appeals. When the Bill emerged from Parliament as an Act, we find chapter IV-A of part VI providing for appeals to the Supreme Court from orders u/s 98 or 99. The Supreme Court has practically taken the place of the High Court under the original section. The suggested Section 104 was dropped. These features as to the prior history of the legislation are not helpful one way or other. But these do point out that Parliament had, before it, the provisions of the Letters Patent when on this legislation. In our view, the language of the Act as it stands is not so compelling as to necessarily involve interdiction of Letters Patent Appeals from interlocutory judgments given in a pending election petition.

The only question that remains for consideration is whether the orders in question are judgments under Clause 15 of the Letters Patent. The question when an order amounts to judgment under Clause 15 has, by itself, given rise to diversity of opinion. But, so far as this Court is concerned, consistently a wider connotation has been given to the expression judgment in Clause 15, at any rate since the Full Bench decision in Tuljaram Row v. Alagappa Chettiar I.L.R.(1910) Mad. 1 (F.B.). The question has been elaborately considered and the principle enunciated with as much precision as is possible in a matter of this kind in the recent Full Bench decision in Palaniappa v. Krishnamurthy I.L.R.(1967) Mad. 227 (F.B.). In the substantial appeal against the order on the Judge''s summons Application No. 2146 of 1968 taken out by the Respondent in the election petition for dismissal of the election petition itself, striking out paragraphs 1 to 16 of the election petition, manifestly the order would be a judgment under the principles enunciated by this Court in the recent Full Bench decision. The learned Judge has struck off a good part of the petition, and in the appeal before us, the Respondent in the election petition submits that the Judge''s summons should have been ordered as prayed for and the election petition dismissed. If the Judge''s summons had been ordered as prayed for, there would have been disposal of the election petition itself. Of course the appeal would then be to the Supreme Court. That would be the result if we now accept the appeal in its entirety. The conceivable order test given in the recent Full Bench case is satisfied. The order in Application No. 2146 of 1968 is clearly a judgment for the purpose of appeal under the Clause, requiring our examination of the appeal on its merits. But that cannot be said of the order in Application No. 2394 of 1968 allowing certain amendments. On this application, we have an adjudication which, in the words of WHITE C.J. in Tuljaram Row v. Alagappa Chettiar I.L.R.(1910) Mad. 1 (F.B.) is nothing more than a step towards obtaining a final adjudication in the matter. In Tuljaram Bow''s case I.L.R.(1910) Mad. 1 (F.B.), the Full Bench held that an interlocutory order refusing to frame a particular issue was not a judgment within the meaning of the Letters Patent, although the effect of the order was to shut out one of the defences relied upon. Following the Full Bench decision in Mahalingam v. Natesa Aiyar 3 L.W. 107 (F.B.), this Court held that an order refusing leave to amend was not a judgment within the meaning of Clause 15 of the Letters Patent. It follows that no appeal under Clause 15 of the Letters Patent lies against the order in Application No. 2394 of 1968. Original Side Appeal No. 3 of 1969, has, therefore, to be dismissed as incompetent.