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1936 DIGILAW 234 (CAL)

Re : K. P. Sinha v. Jatindra Nath Biswas

1936-05-25

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JUDGMENT McNair, J. - In this application a preliminary objection is taken by Mr. C. C. Biswas for the Respondents that the petition has not been filed within the eight days prescribed by sec. 46 of the Calcutta Municipal Act. Sec. 29, sub-sec. (8) of the Act provides for the publication of the names of the successful candidates in the Calcutta Gazette and sec. 46 provides that any person enrolled in the electoral roll may at any time within eight days after the said publication apply to the High Court within the terms of secs. 46 and 47. The names in this instance were published on the 9th of April, 1936. The High Court was closed for the Easter Vacation from the 10th to the 17th April inclusive, that is to say, from Good Friday until the end of the following Friday, the 17th of April. Now, that is in accordance with r. 2 of Chapter 3 of the Original Side Rules of this Court. The following day was Saturday on which the offices of the Court were open, but the Court did not in fact sit. 2. The question, therefore, for decision here is whether the Court can be said to be closed within the meaning of sec. 12 of the Bengal General Clauses Act on Saturday, the 18th April. It is noteworthy that sec. 46 of the Calcutta Municipal Act provides for an application to be made to the High Court. There is obviously a difference between the Court sitting as a Court and the offices of the Court in which affidavits or other matters may be filed. 3. In my view, since the section provides for an application to the Court, that application must be made to a Judge in open Court and if the Judges of the Court are not sitting in open Court, as in this case on the Saturday immediately after the Vacation, the application may legally be made on the first day on which the Judges are so sitting. If I am right in that view, this petition was filed within time. 4. A further matter when has been discussed is the question whether the particulars which were not given in the petition and which are said in the affidavit in reply to have been deliberately withheld should be excluded at the time of trial. If I am right in that view, this petition was filed within time. 4. A further matter when has been discussed is the question whether the particulars which were not given in the petition and which are said in the affidavit in reply to have been deliberately withheld should be excluded at the time of trial. In paragraph 3 of the petition the applicant has set out in general terms most of the corrupt practices and other materials which, as he alleges, justify the interference of the High Court and in some of the succeeding paragraphs he has given particulars. 5. There is not, in my view, any justification for the shutting out of the particulars which have now been set out in the affidavit in reply, but there is ample justification for allowing the Respondents an adjournment to enable them to have inspection of all the documents and other materials on which the Petitioner relies in support of the charges that he has now made and of which he has now given particulars. In view of the fact that these particulars were deliberately withheld the Respondents are entitled to have this adjournment and to have their costs of to-day as of a hearing. 6. The Petitioner has also asked that he may have inspection of the return of election expenses and of certain ballot papers. Both sides will be allowed inspection of the ballot papers and the Petitioner will be allowed inspection of the return as prayed. 7. The case will be adjourned for three weeks. As regards Mr. Jamal, the application is dismissed against him with costs.