Sohan Choudhari v. R. D. Doongaji — 1959 DIGILAW 110 (MP)

ORDER K.L. Pandey, J. 1. This is a petition under Articles 226 and 227 of the Constitution for a writ of certiorari to quash two orders dated 10 December 1938 and 12 December 1958 passed by the respondent No. 1 on an election petition under the City of Jabalpur Corporation Act, 1948 (III of 1950) or for a writ of mandamus directing the respondent No. 1 to proceed afresh with the trial of the election petition from the stage of evidence. 2. The petitioner was a candidate for election as a member of the Corporation of the City of Jabalpur from Ward No. 27 (South Civil Lines). The other two candidates were the respondents 2 and 3. Since the respondent No. 3 subsequently withdrew his nomination paper, the contest was only between the petitioner and the respondent No. 2, who in due course won by 152 votes and was accordingly declared elected. 3. On 5 October 1957, the petitioner filed an election petition under Section 456 of the City of Jabalpur Corporation Act, 1948, challenging the election of the respondent No 2 inter alia on the ground that he secured his election by corrupt practices. The election petition was presented in the District Court, but it was transferred to the file of Shri R.D. Doongaji, Additional District Judge, Jabalpur (respondent No. 1). 4. In usual course, the election-petition was fixed for trial on 1 March 1958, when, since the respondent No. 1 was busy with a sessions trial, it was adjourned to 7 April 1958 On this date, the respondent No. 1 was on casual leave and the trial was in consequence adjourned to 2 July 1958. Only the petitioner could be examined on 2 July 1958 and the trial was adjourned to 7 July 1958 when, since the respondent No. 1 was on casual leave, it was adjourned to 10 July 1958. On the last-mentioned date, the trial was adjourned once again because the petitioner wanted to move the District Judge for transfer of the case on the ground that there were repeated adjournments which caused to him much unnecessary expense. The petitioner did not eventually file an application for transfer. On the last-mentioned date, the trial was adjourned once again because the petitioner wanted to move the District Judge for transfer of the case on the ground that there were repeated adjournments which caused to him much unnecessary expense. The petitioner did not eventually file an application for transfer. Even so, the date fixed for trial, 17 September 1958, had to be changed to 3 October 1958 when the Judge was on tour with the consequence that it was adjourned to 13 November 1958, a date which had again to be changed to 10 December 1958. 5. On 10 December 1958, the petitioner filed an application requesting that the case be sent to the District Judge for the reason that an Additional District Judge is not the District Court and has no jurisdiction to try an election petition. The respondent No. 1 dismissed the application and proceeded with the case. The petitioner, believing that the preliminary point would prevail, could not arrange for the attendance of the witnesses who did not also appear, though they were duly summoned. Further, on 12 December 1958 the petitioner made an application for stay of the proceedings on the ground that he wished to move this Court by a petition under Articles 226 and 227 of the Constitution but that too was dismissed. Thereupon, since the petitioner's witnesses were absent, his case was closed, one witness was examined for the respondent No. 2 and the final order dismissing the election-petition was passed. 6. In the meanwhile, on 11 December 1958, the petitioner had filed Miscellaneous Petition No. 394 of 1958 against the order dated 10 December passed by the respondent No. 1. That petition came up for hearing at 2 P.M. on 12 December 1958. The petitioner withdrew that petition, because, by that time, the respondent No. 1 had passed final order on the election-petition. 7. That petition came up for hearing at 2 P.M. on 12 December 1958. The petitioner withdrew that petition, because, by that time, the respondent No. 1 had passed final order on the election-petition. 7. The main contention in support of the petition is that the Court of an Additional District Judge is not the District Court within the meaning of section 456 of the Act and, therefore, the respondent No. 1 was not competent to try the election petition Our attention has been particularly drawn to clause (15) of Sec. 2 of the Central Provinces and Berar General Clauses Act, 1914 (1 of 1914) which defines "District Judge" to mean, unless there be anything repugnant in the subject or context, "the Judge of a principal Civil Court of original jurisdiction in a district" It is not a definition of a District Court. It cannot also be regarded as restricting the meaning of District Court deducible from the express language of the Central Provinces and Berar Courts Act, 1917 (1 of 1917). 8. Section 14 of the Central Provinces and Berar Courts Act, 1917, as in force at the relevant time, enumerates only the following two classes of subordinate Civil Courts: (a) The District Court, (b) The Court of the Civil Judge. Again, section 26 of the Act provides as follows:-- An Additional Judge or Judges may, whenever it appears necessary or expedient, be appointed to any District Court or to the Court of a Civil Judge and any such Additional Judge shall exercise the jurisdiction of the Court to which he is appointed and the powers of the Judge thereof subject to any general or special orders of the authority by which he is appointed as to the class or value of suits and appeals which he may try, hear and determine. It is manifest that this section makes a distinction between a Judge and the Court to which he is appointed. Also, an Additional Judge is appointed either to the District Court or to the Court of Civil judge and he exercises, unless restricted by any general or special order of the appointing authority, the jurisdiction of the Court to which he is appointed and the powers, of a judge thereof. It follows, that an Additional District Judge is clearly a Judge of the District Court to which he is appointed. It follows, that an Additional District Judge is clearly a Judge of the District Court to which he is appointed. The view that we have taken of section 26 finds support in a ring of cases. We may refer to Sinjuddin vs. Sonilal A.I.R. 1928 Nag. 199, Zumbarlal Chhotelal vs. Sitaram I.L.R. [1937] Nag. 219, Gulabchand vs. Kishanlal 1938 N.L.J. 454, Naniksa vs. Anna 1941 N.L.J. 625, and Hirahl vs. Paranamsao I.L.R. [1941] Nag 581 In the last-mentioned case. Stone C.J. pointed out that in the Relief of Indebtedness Act, 1939 (XIV of 1939) the words "District Court" were adopted in place of the words District Judge in order to enable any Additional District Judge to entertain revisions under that Act. In our view, an Additional District Judge is a Judge of the District Court to which he is appointed and, except to the extent restricted by any general or special order of the appointing authority, he has the same jurisdiction and powers as a District Judge or any other Judge of the District Court. In that view of the law, the contention that the respondent No. 1 acted without jurisdiction must fail. 9. It has also been urged that Shri Kaloo, who is not an advocate of this Court or a Legal Practitioner enrolled in any Court subordinate to this Court, should not have been allowed to represent the respondent No. 2 in the trial of the election petition. We understand that Shri Kaloo is an Advocate of the Supreme Court. If so, he was entitled to appear in the proceedings before the respondent No. 1. Even otherwise, the appearance of Shri Kaloo as representing the respondent No 2 was only an irregularity which did not affect the validity of the order passed by the respondent No. 1. There is also the further fact that the petitioner did not object to the appearance of Shri Kaloo during the pendency of the election petition. That being so, it is no longer open to him to challenge on that ground the validity of the proceedings before the respondent No. 1. 10. The petitioner has also taken exception to the way in which the respondent No. 1 dealt with the case from time to time. That being so, it is no longer open to him to challenge on that ground the validity of the proceedings before the respondent No. 1. 10. The petitioner has also taken exception to the way in which the respondent No. 1 dealt with the case from time to time. Reference has particularly been made to his omission to pass order on an application made for examining certain witnesses suo motu, to the numerous adjournments given which proved expensive to the petitioner, to the refusal to stay the proceedings pending decision of Miscellaneous petition No. 394 of 1958 filed in this Court and lastly, to the disposal of the petition without giving to the petitioner an opportunity to lead evidence which amounted to a denial to the petitioner of a fair trial. 11. The respondent No. 1 had a discretion to examine or not to examine any witness suo motu. It has not been shown to us that the discretion was improperly exercised. We do not consider that mere failure to pass order on an application made for the purpose can be questioned by means of a writ petition. It seems to us that most of the adjournments in the case were occasioned by circumstances beyond the control of the respondent No. 1, who could not legitimately be blamed for them. In our view, the contention that an Additional District Judge could not try the election-petition was patently untenable and the respondent No. 1 was not unjustified in declining to stay the proceedings. From the proceedings, we carry the impression that the petitioner did not want the election-petition to be tried by the respondent No. 1, On 10 July 1958, he gave notice of his intention to move an application for transfer though, ultimately, he did not adopt that course. On 12 December 1958, when the trial which had commenced on the previous day was to continue, it was found that the petitioner had failed to comply with various orders passed for examination of certain witnesses on commission and for securing the attendance of other witnesses. It was in these circumstances that he raised the question of want of jurisdiction and then absented himself from the proceedings. Under the circumstances we think that the grievance that the petitioner was denied a fair trial is without substantial basis. 12. The petition fails and is dismissed summarily. Petition dismissed.