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1954 DIGILAW 135 (KER)

Mathew v. Kuruvilla

1954-08-16

KOSHI, M.S.MENON

body1954
Judgment :- 1. This is a petition under S. 115 of the Code of Civil Procedure, 1908, and Art. 227 of the Constitution praying for the reversal of an order of the Election Commissioner, Vaikom, in Panchayat Election Petition No. 5 of 1953. The order impugned is the order of 17.3.1954 by which he refused to consider the petitioner's application for relief under O. IX R.13 of the Code of Civil Procedure, 1908, on the ground that the provisions of that rule are unavailable to the trial of Election Petitions under the Travancore Cochin Panchayat Rules, 1951. 2. The petitioner is the returned candidate and the 1st respondent, the successful petitioner in Election Petition No. 5 of 1953, who has been able to secure a declaration to the effect that the Election of the returned candidate was void and that he himself has been duly elected. The order in favour of the 1st respondent was passed ex-parte on 15.2.1954 and the petitioner by his petition dated 9.3.1954 invoked, as stated above, the provisions of O. IX R.13 of the Code of Civil Procedure, 1908. 3. In 30 Cochin 671 a Full Bench of the Cochin High Court has held that an Election Commissioner exercising his functions as a persona designata is not a "court subordinate" to the High Court and that the High Court has not revisional jurisdiction in respect of the orders passed by him. That the Election Commissioner appointed under the Travancore-Cochin Panchayat Rules, 1951 functions as a persona designata and not in his capacity as a District Munsiff is clear from sub-r. (3) of R. 72 which provides : "An Election Commissioner exercising jurisdiction under these rules shall be deemed to exercise such jurisdiction as a persona designata and not in his capacity as District Munsiff of the Court over which he presides". 4. This aspect of the case, however, is of no material importance in view of Art. 227 of the Constitution, Art. 227 reads as follows: "Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction." There can be no doubt that the Election Commissioner is a tribunal with all the trappings of a Court and that he exercises judicial as distinct from administrative or inquisitorial functions in the discharge of his duties. There cannot also be any doubt that the word "superintendence" as pointed out by Rankin, C.J. in Mammatha v. Emperor, AIR 1933 Cal. 132, is a term of legal force and signification involving the responsibility to keep the courts and tribunals concerned within the bounds of their authority, to see that they do their duty, and that they do it in a legal manner. To the same effect is the decision of the Supreme Court in Waryam Singh v. Amarnath, AIR 1954 SC 215 wherein it has been held that the power of superintendence covers both administrative and judicial matters and that it should be invoked in all cases of non-exercise or illegal exercise of a jurisdiction vested by law in any Court or Tribunal. 5. The only further question that remains to be considered is whether the provisions of O. IX R.13 are available to the petitioner as contended by him, S. 141 of the Code of Civil Procedure, 1908 provides: "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction". It is, however, unnecessary to consider the scope and ambit of this section in view of R. 75(2) of the Travancore Cochin Panchayat Rules, 1951, the relevant portion of which reads as follows: "Subject to the provisions of the Act and of any rule made thereunder, every election petition shall be tried by the Election Commissioner, as nearly as may be, in accordance with the procedure applicable under the Code of Criminal Procedure, 1908 (Act V of 1908) to the trial of suits". 6. 6. The Election Commissioner seems to have considered sub-r. (2) of R.75 as practically of no effect because of sub-r. (5) of that rule: "The Election Commissioner shall have the powers which are vested in a court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying in a suit in respect of the following matters: (a) discovery and inspection; (b) enforcing the attendance of witnesses and requiring the deposit of their expenses; (c) compelling the production of documents; (d) examining the witnesses on oath; (e) granting adjournments; (f) reception of evidence taken on affidavit; and (g) issuing commissions for the examination of witnesses and may summon and examine suo moto any person whose evidence appears to him to be material; and shall be deemed to be a civil court within the meaning of Ss. 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898)". and dealt with the question as follows: "It was argued that since it is stated in clause 2 of R. 75 that an election petition shall be tried by the Election Commissioner in accordance with the procedure applicable under the Code of Civil Procedure to the trial of the suits, the Election Commissioner has got the power to restore this petition to file after setting aside the ex-parte order in this case. But it is clear from the Travancore-Cochin Panchayat Rules that all powers of a court under CPC are not conferred on the Election Commissioner. If all powers as per CPC are conferred on the Election Commissioner as per clause 2 of R. 75, C1.5 R. 75 would be superfluous. Clause 5 of R. 75 states what are the powers which an Election Commissioner has when the petition is tried. In clause 5 of R. 75, it is not stated that the Election Commissioner can restore a petition to file when once an order is passed on that petition". 7. The Election Commissioner is definitely in error in his appraisal of the effect of sub-r. (5) on the ambit of sub-r. (2). Sub-r. (5) is only a specific delineation of some of the powers embodied in the Code of Civil Procedure, 1908, and made available by sub-r. (2) for the trial of election petitions. 7. The Election Commissioner is definitely in error in his appraisal of the effect of sub-r. (5) on the ambit of sub-r. (2). Sub-r. (5) is only a specific delineation of some of the powers embodied in the Code of Civil Procedure, 1908, and made available by sub-r. (2) for the trial of election petitions. In other words, the provisions of sub-r. (5) are in effect, to use a familiar statutory expression, "without prejudice to the generality" of the provisions of sub-r. (2). 8. Sub-r. (2) corresponds to sub-s. (2) of S. 90 of the Representation of the People Act, 1951 (Central Act XLIII of 1951) and sub-r. (5) to S. 92 of that Act; and AIR 1954 SC 210 is a direct authority for the proposition that the provisions of the Code of Civil Procedure, 1908, which are made available under S. 90(2), are not trammelled by the provisions of S. 92 of the enactment. In spite of the fact that the provisions of O. I Rr. 9,10 and 13 are not mentioned in S. 92 their Lordships said: "If any proper party is omitted from the lists of respondents, such a defect is not fatal and the tribunal is entitled to deal with it under the provisions of the Code of Civil Procedure, 0.1 Rr. 9,10 and 13". 9. According to the Election Commissioner R. 79(4) of the Travancore-Cochin Panchayat Rules, 1951 "Every order of the Election Commissioner made under these rules shall be final and conclusive" will also prejudice the application of the provisions of O. IX R.13 of the Code of Civil Procedure, 1908. We cannot agree. The object of O.IX R.13 is to ensure within reasonable limits that every defendant shall have a hearing and to place the applicant, if successful, in the same position to which he would have been if no decree had been passed against him. Such a provision is necessary in the interests of justice and should be considered as available in view of R.75(2) of the Travancore Cochin Panchayat Rules, 1951. The finality and conclusiveness indicated in R. 79(4) has nothing to do with the operation of such a provision. 10. It follows that the order of the Election Commissioner dated 17.3.1954 has to be reversed and that he should be directed to hear and dispose of the petition dated 9.3.1954 according to law. We order accordingly. The finality and conclusiveness indicated in R. 79(4) has nothing to do with the operation of such a provision. 10. It follows that the order of the Election Commissioner dated 17.3.1954 has to be reversed and that he should be directed to hear and dispose of the petition dated 9.3.1954 according to law. We order accordingly. The revision petition is allowed to the extent indicated above. No costs. Allowed.