6 S.C.R.

SUPREME COURT REPORTS 229

10 the filing of the Writ Petition there has been a considerable delay in the trial of the Election Petition, we express the hope that the petition would be heard and disposed of at an early a date as is conveniently possible.

The appellant will be entitled to his costs here and in the High Court which will be paid by the contesting third respondent.

Appeal Allowed.

IN re: LILY ISABEL THOMAS

(B. P. SINHA, C.J., K. SUBBA RAo, RAGHUBAR DAYAL,

N. RAJAGOPALAN AYYANGAR

AND J. R. MUDHOLKAR, JJ.)

Supreme Court Rules-''Right to practise" if include! "right to act" -

Rule making power-If conflicts with legislative power of Parliament-Supreme Court Rules, 1950 (as amended in 1962). 0. IV. rr. 16, 17-Validity of-Constitution of .India, Art. 145-Advocates Act, 1961 (25 vf 1961) •s. 52, 58(3).

The petitioner was enrolled in the Madras High Court under the Indian Bar Councils Act, and later admitted to the rolls of this Court under the Supreme Court Rules.

In this petition, it was contended that under s. 58(3) of the Advocates Act, the petitioner was entitled "as of right to practise" in this Court. and the "right to practise" included not merely the right to plead hut also to act; that the rules mad~. N rr. 16 & 17 of the Supreme Court Rules are invalid; and that that by a rule made under Art. 145 (l)(a) this Court could neither entitle a person to practise nor impose qualifications as to tho right to practise, these matters being entirely within entry 77 and therefore exclusively for parliamentary legislation.

HELD: (i) The words "right to practise" would in itt normal conaotation take in not merely right to plead but the right to act as well and if no rules had been made by the Supreme Court restricting the right to act, the petitioner could undoutedly have had a right both to plead es well as to act

Ashwani Kumar Ghosh v. Arabinda Bose, [1953) S.C.R. 1, referred lo.

(ii) Under s. 58(3) of the Advocates Act, the right conferred on Advocates enrolled under the Bar Councils Act to practise in the Sup- Rme Court is made subject to any rules made by thia Oourt. SectiOD

Ch. Subbarao v.

Tribunal Hydera

Tribunal Hydera bad

Ayyanz"1' 1,

January, 14

Uly l•ab•I

T/wm.,

'2 o! the AdTocal<I Act opocifically 1neo the JX>Wers o! thiJ Court to make rules under Art. 145.

In Ticw of the saving, repeated $. S2 there ii no question of the rule restricting the right to act to a certain cUiu o! advocates u bein1 contrary to a law made by Parliament.

(iii) On the expreoo tenm o! Art.,14,(l)(a) rules 16 I 17 of 0. IV are 'Yalid and within the rule making powers of thi! Court.

This Court can. by its rules make pro'ri!ion prescribing qualifications entitling per ..

IOD~ to practise before it, and Parliament can do likewise. There ia no question of a conflict between the legislative power of Parliament and the rule-making power of this Court. because by reason of the opening words of Art. 1'4-S, any rule made by this Court would have operation only aubjcct to lawi made by Parliament on the aubjcct of the entitle .. ., ent to practise.

ORIGINAL JURISDICTION : Petition No. 42 of 1963.

Under Article 32 of the Constitution for the enforcement of fundamental rights.

The petitioner appeared in person.

S. V. Gupte, Additional Solicitor-General, N. S. Bindra and R. H. Dhebar, for the Hon'ble Juages of the Supreme Court.

A. V. Ranganadham Chetty, A. Vedavalli and A. V.

Rangam, for the intervener (W. C. Chopra).

January 14, 1964.

The Judgment of the Court was delivered by

A,,.,.,.,. J.

AYYANGAR J.-The proper construction of Art. 145(1)

(a) of the Constitution in the context of a prayer for a declaration that rule 16 of Order IV of the Supreme Court Rules as invalid is the principal point raised in this petition which has been filed by an Advocate who under the Advocates Act, 1961, is entitled to practise in this Court.

The petitioner was enrolled in the Madras High Court on November 15, 1955 under the Indian Bar Councils Act, 1926 and was admitted to the rolls of this Court on October 29, 1960 under Order IV of the Supreme Court Rules as they then stood. She states that as an Advocate entitled to practise in this Court, she is entitled as of right not merely to plead but also to act, and that the rules of this Court

which prescribe qualifications before she could be permitted to act are therefore invalid. The prayer which she makes by her petition is therefore for a declaration that rule 16 ( 1) of Order IV of the Supreme Court Rules as amended in 1962 which contains this prescription of qualifications be declared ultra vires of this Court and a further declaration that she is entitled to practise as an Advocate on record in this Court without conforming to the requirements now imposed by the impugned rule.

Rule 16 whose validity is challenged runs:

"16. No Advocate shall be qualified to be registered as an Advocate on Record unless he-

(!) has undergone training for one year with an Advocate on Record approved by the Court, and has thereafter passed such tests as may be held by the Court for Advocates who apply to be registered as Advocates on Record, particulars whereof shall be notified in the Gazette of India from time to time; provided however, that an Attorney shall be exempted from such training and test;

(2) has an office in Delhi within a radius of 10

miles from the Court House and gives an undertaking to employ, within one month of his being registered as Advocate on Record. a registered clerk; and

( 3) pays a registration fee of Rs. 25".

It might be mentioned that under the Rules though every Advocate whose name is maintained in the common roll of Advocates prepared under s. 20 of the Advocates' Act, is entitled to plead, only those Advocates who are registered as "Advocates on record" are entitled to act as well, for rule 17 of Order provides :

"17. An Advocate -on Record shall be entitled to

act as well as plead for any party in a proceeding on his filing in the proceeding a memOl'lllldum of appearance accompanied by a Vakalat-

196'

Lily liabll

T/wma

A.yyangar J.

Thoma1

A.,,.,.,,,,.1.

nama duly executed by the party in the prescribed form.

No Advocate other than an Advocate on Record shall be entitled to file an appearance or act for a party in the Court."

The contention urged by the petitioner who argue~. her case in person and presented the points arising with ability and moderation, is that under s. 58(3} of the Advocates Act which reads

"58. (3) Notwithstanding anything in this Act, every person who, immediately before the !st day of December, 1961, was an advocate on the roll of any High Court under the Indian Bar Councils Act, 1926 or who has been enrolled as an advocate under this Act shall, until Chapter IV comes into force, be entitled as of right to practise in the Supreme Court, subject to the. rules made by the Supreme Court in this behalf"

she is entitled "as of right to practise" in this Court. and she claims that the "right to practise" would include not merely the right to plead, but also the right to act. She is right so far. Her further submission is as regards the scope and content of the rules which might lawfully be made by this Court.

Undoubtedly, if there were no rules made by the Supreme Court or if, as the petitioner contends, the rules now made-Order IV Rules 16 and 17-are invalid the petitioner would be entitled not merely to plead as she is now entitled to, but also to act which latter she is now prevented by rule 17 unless she has complied with the requirements of rule 16:

The question then for consideration is whether the impugned rules are valid. This depends upon the proper construction of Art. 145 (I )(a) by virtue of which the impugned rule has been framed, which reads:

"145. (1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President.

make rules for regulating generally the practice 1964 and procedure of the Court including- Lily lsab~I

Thom@

(a) rules as to the persons practising before the Ayyangar /. court;''

As regards this Article there are two matters to which attention might be directed. By the opening words of the Article the rciks m.1de by this Cou: t are subject to the provision of any law made by Parliament, so that if there is any provision in a law made by Parliament by which either the right to make the rule is restricted or which contains provisions contrary to the ruis. it is beyond dispute that the law made by Parliament would prevail. ft is the submission of the petitioner that s. 58(3) quoted earlier, is such a law made by Parliame, nt and that the absolute right granted to per sons in the position of the petitioner to "practise as of right" camwt be controlled by ruk; made by this Court. In this connection our attention was invited to the decision of this Court in Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr. ('). Here this Court explained what the expression 'right to practise' meant. It was laid down that these words which occurred in the Supreme Court Advocates (Practise

in High Court) Act, 1951 whose s. 2 enacted "Every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of that High Court" meant that such an Advocate was entitled not merely to plead but to act as well, and that the enactment prevailed notwithstanding any rule made by the High Courts .of Calcutta and Bombay restricting the right to act on the original sides of those courts. The decision, however, does not carry the matter far, because it was based on the inconsistency between "the right to practise as of right" conferred by the enactment of I 951 and the saving as regards the rule making power of the High Courts of Bombay and Calcutta to restrict "the right to act" on the original side of those courts which was contained in the Bar Councils Act 1926. This Court held that it was a case: of an implied repeal of that saving by the later legislation.

(') [1953] S.C.R. J.

i964

•IJly l.rabel T1iomai

-~J.

Nvertheless the petitioner, as stated earlier, is certainly nght m her submission that the words 'right to practise' would in its normal connotation take in, not merely right to plead but the right to act as well and that is why we said that if no rules had been made by the Supreme Court restricting the right to act, the petitioner could undoubtedly have a right both to plead as well as to act

But we have already pointed out that under s. 58(3) of the Act, the right conferred on Advocates enrolled under tlle Bar Councils Act to practise in the Supreme Court is made subject to any rules made by this Court. To reinforce this position there is a saving enacted by s. 52 of the Advocates Act which specifically saves the powers of this Court to make rules under Art. 145. Section 52 reads:-

"52. Nothing in this Act shall be deemed to affect the power of the Supreme Court to make rules under article 145 of the Constitution-

(a) for laying down the conditions subject to which

a senior advocate shall be entitled to practise in that Court;

(b) for determining the persons who shall be entitled to act in that behalf."

In view of the saving which is repeated in s. 52 there is no question of the rule restricting the right to act to a certain class of advocates as being contrary to a law made by Parliament. The only question for consideration is whether . Ait. 145(1) (a) is sufficient to empower this Court to frame the impugned rules.

The argument addressed to us with considerable earnestness was that under the Article the rules to be framed under the items (a) to (j) were all to be framed for regulating the 'practice and procedure of the Court which she urged indicated the underlying purpose with which the rule making power was vested in the Court. Secondly she urged that if •head (a)-in sub-Article (1) reading "rules as to the persons practising before the Court'', were treated as an independent subject, entirelj divorced from the context of the opening 'words "practice and procedure of the Court", even then the

power to make the rule was confined to the regulation of the conduct of the persons practising i.e. entitled under the law to practise and so practising before the Court.

Though a number of decisions were cited to us as to what was meant by 'practise and procedure of the Court' we do not think it useful or necessary to refer to them.

They would have been relevant and might require serious consideration if the entire power to make the rule was to depend merely on the words "regulating the practice and procedure of the Court" but the Article specifically makes provision enabling rules to be made "as to persons practising before the Court." We are inclined to read item (a} as an independent bead of rule making power and not as merely a part ol a power to make rules for "regulating the practice and procedure of the Court." The word 'including' which precedes the enumeration of the items (a} to (i) as well as the subject matter of item (a), stamp it as an independent head of power.

We do not, therefore, propose to deal with what exactly would have been the content of a "regulation of practice and proceedure." but shall proceed to consider the meaning of the words "Rules as to the persons practising before the Court" because if the rules now impugned could be justified as within this power their validity cannot be impeached.

Now as regards these words in item (a) the submission of the petitioner was two-fold : Firstly, she contrasted these words with entry 77 in the Union List in Sch. VII the last portion of which reads :

"Persons entitled to practise before the Supreme

Court"

Relying on the contrast between the two expressions "persons practising" and "persons entitled to practise" the submission was that the words "persons practising before the Court" was narrower and gave this Court power to frame rules only to determine the manner in which persons who had obtained a right to practise under a law made by Parliament by virtue of its power under entry 77 could exercise

Lily lmbd

Thomiu

.4yyang01' J.

Lily Isabel Thomas

Ayyangar /.

that right.

In this connection she drew a distinction between 'being entitled to practise' which would include determining or prescribing the qualifications that a person should possess before becoming entitled to practise, which she urged was the subject matter of entry 77, and a rule as to "a person practising before a court" which was the second stage after the right to practice had been obtained by Parliamentary legislation.

In other words, the submission was that by a rule made under Art. 145(i)(a) this Court could neither entitle a person to practise nor impose qualifications as to the right to practise-these being matters entirely within entry 77 and therefore exclusively for parliamentary legislation.

We feel unable to accept this argument.

We do not I agree that the words "persons practisi.ng before the Court" is narrower than the words "persons entitled to practise before the Court". The learned Additional Solicitor-General was well-founded i•1 his submission that if, for instance, there was no law made by Parliament entitling any person to practise before this Court, the construction suggested by the applicant would mean that this Court could not make a rule prescribing qualifications for persons to practise in this Court. In this connection it is interesting to notice that the words used in Art. 145(1)(a) have been taken substantially from s. 214(]) of the Government of India Act. 1935.

That section ran, to quote the material words:

"The Federal Court may from time to time, with the approval of the Governor-General in his discretion make rules qf Court for regulating

generall~ the practice and procedure of the Court including rules as to the persons practising before the Court.. .... "

The Government of India Act, 1935 did not in its legislative lists have a provision like as we have in entry 77 of List I (vide entry 53 of List I). The Federal Court immediately on its formation made rules and under Order IV of those rules provision was made prescribing qualifications for the

enrolment as Advocates of the Federal Court.

Advocates entitled to practise in the High Courts with a &tanding of 5 years on the rolls of High Court and who satisfied certain requisite conditions were entitled to be enrolled as Advocates, while for enrolment as Senior Advocates a standing of 10 years as an Advocate of a High Court Bar was prescribed. We are pointing this out only for the purpose of showing that the words "as to the persons practising before the Court" were then used in a comprehensive snse so as to include a rule not merely as to the manner of practice but also of the right to practise or the entitlement to practice.

Those words which are repeated in Art. 145(l)(a) have still the same content. We ought to add that there is no anomaly involved in the construction that this Court can by its rules make provision prescribing qualifications entitling persons to practise before 1t and that Parliament can do likewise.

There is no question of a confliCt between the legislative power of Parliament and the rule-making power of !his Court, because by reason of the opening words of Art. 145, any rule made by this Court would have operation only subject to laws !'1ade by Parliament on the subject of the entitlement to pactise.

We are, therefore, clearly of the opinion that on the express terms of Art. 145(l)(a) the impugned rules 16 and 17 are valid and within the rule-making power.

The learned Additional-Solicitor made a further submission that the rule could be justified under the inherent powers of the Court and relied for this purpe>se on the decision of this Court in in re: Sant Ram [1960] 3 S.C.R. 499 where at pages 504, 505 the inherent powers of this Court have been referred to. In the view we take about the construction of Art. 145(l)(a) we do not think it necessary to rest our decision on the inherent powers of this Court to frame a rule of this sort.

The petition, therefore. fails and is rejected.

Petitiory t!isr!' 1< ; P1.

-- ___._~--

Thoma.r

Ayyangar J.

IN re: LILY ISABEL THOMAS

B. P. SINHA, C.J.

K. SUBBA RAo

RAGHUBAR DAYAL

N. RAJAGOPALAN AYYANGAR

R. MUDHOLKAR, JJ.

Supreme Court Rules

Art. 145

Advocates Act, 1961

s. 52, 58(3)

Madras High Court

Indian Bar Councils Act

Court under the Supreme Court Rules

s. 58(3)

Advocates Act

Art. 145

Supreme Court

s. 58(3)

Advocates Act

Uly

Art. 145

Parliament

Art. 1

Article 32

S. V. Gupte

N. S. Bindra

R. H. Dhebar

A. V. Ranganadham Chetty

A. Vedavalli

A. V.

Rangam

W. C. Chopra

AYYANGAR

Art. 145(1)

Advocates Act, 1961

November 15, 1955

Indian Bar Councils Act, 1926

October 29, 1960

Order IV of the Supreme Court Rules

Order IV of the Supreme Court Rules

India

Delhi

s. 20

A.yyangar

nama

Advocates Act

Order IV Rules

Art. 145

s. 58(3)

Parliame

s. 2

High Courts .of Calcutta and Bombay

High Courts of Bombay and Calcutta

Bar Councils Act 1926

l.rabel T1iomai

(') [1953] S.C.R. J.

i964

•IJly l.rabel T1iomai
~J.

Nvertheless the petitioner, as stated earlier, is certainly nght m her submission that the words 'right to practise' would in its normal connotation take in, not merely right to plead but the right to act as well and that is why we said that if no rules had been made by the Supreme Court restricting the right to act, the petitioner could undoubtedly have a right both to plead as well as to act

But we have already pointed out that under s. 58(3) of the Act, the right conferred on Advocates enrolled under tlle Bar Councils Act to practise in the Supreme Court is made subject to any rules made by this Court.

s. 58(3)

s. 52

Advocates Act

Art. 145

Section 52

article 145

s. 52

Supreme

Court

Lily lmbd

Thomiu

Lily Isabel Thomas

Art. 145(i)(a)

Art. 145(1)(a)

s. 214(])

Government of India Act, 1935

Art. 145(l)(a)

Art. 145

Art. 145(l)(a)

[1960] 3 S.C.R. 499

Art. 145(l)(a)

Ayyangar


January, 17

SUPREME COURT REPORTS [1g64]

RAM SEW AK Y ADAY

HUSSAIN KAMIL KIDW AI & ORS.

(P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. c. DAS

GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.)

Election-Challenge on the ground of improper reception, re/u!al and

rejection of votes at the time of counting-Tribunal rejec:ting claim. far inspection of the ballot papers-Validity-Representation of the People A.ct, I95I (43 of I95I), SJ. 100, IOI and 102 and conduct of Election Rules, 1961. r. 93.

The respondent challenged the election of the appellant, inter alia,. on the ground that there had been improper reception, refusal and rejection of votes at the time of counting and that on a true count he would have received a majority of valid votes and that he was entitled to be declared duly elected.

He claimed that by inspection of theballot papers he would be able to establish his case on the aforesaid alleg<ition, anrl that the Tribunal was bound to grant an order for in!- pection. bec<!nse he h2'1 tendered the sealed boxes of ballot papers in evidence, and on that account all the ballot papers were part of the record.

The Tribunal in its order stated that nothing was brought to its notice which \\'ou!d justify granting an order for inspection. It • further observed: "If in future from the facts that may be brought to the notice of the Tribunal, it appears that in the interests of justice inspection should be allowed, necessary orders allo\\ing an inspection could always be passed".

Thereupon, another application was submitted by the respondent asking for inspection but no additional n1aterialA

were placed before the Tribunal and no oral evidence was led at the trial.

The Tribunal rejected the application for inspection.

On appeal, the High Court held that ballot papers had actually been called for from the Returning Officer and were before the Tribunal, and there was nothing in the Code of Civil Proceduq! which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court. The Tribunal had therefore rejected the application for inspection without any adequate reasons.

The sole question for determination was whether the Election Tribunal erred in declining to grant an order for inspection of th!! ballot papers Y.'hich had been, pursuant to an order in that behalf, lodged before the Tribunal in sealed boxes by the R.eturnina: Officer.

Held: By the mere production of the sealed boxes, the ballot papers did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that l!luch inspection was in the

circumstances of the case necessary in the interests of jusfce.

The Returnins Officer is not a party to an election petition, and a11 1964 order for production of the ballot papers cannot be made under 0. XI Ram s;;;;; l y...., of the Code of Civil Procedure.

But the Election Tribunal is not on Y. that account without authority in respect of the ballot papers.

Where Hus1ain the interests of ju•tice deman'd it, the Tribunal may call upon the Return- KidwoJ ing Officer to produce the ballot papers and may permit in!pection by the parties before it of the ballot papers: that power is clearly implicit in ss. JOO(r)(d)(iii), 101, 102 of the Representation of the People Act. 1951 and rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from 0. XI Code of Civil Procedure may be exercised, subject to the statutory restrictions about the .ecrecy of the ballot papers pmcribed by ss. 94 and 128(1) of the AcL

Bhim Sen •· Gopali, 22 E.L.R. 288, distinguished.

CML APPELLATE JURISDICTION: Civil Appeal No. 1064 of 1963.

Appeal by special leave from the judgment and order dated July 23, 1963, of the Allahabad High Court (Lucknow Bench) in First Civil Appeal No. 11 of 1963.

N. C. Chatterjee and J. P. Goyal, for the appellant.

S. P. Sinha and S. Shaukat Hussain, for respondent No. 1.

January 17, 1964.

Tue Judgment of the Court was delivered by

SHAH J .-At the general elections held in February 1962, Shah 1.: five candidates contested the election to the House of the People from the Barabanki single-member constituency.

The appellant Ram Sewak Yadav-who will be referred to as Yadav-was at the counting of votes found to have secured the highest number of votes and he was declared elected.

Hussain Kami!

Kidwai-hereinafter called Kidwai-who was one of the candidates at the election submitted a petition on April 6, 1962, to the Election Commission for an order declaring the election of Y ada v void and for an order that he (Kidwai) be declared duly elected.

Tue Election Tribunal, Lucknow, to which the petition was referred for trial dismissed the petition.

In appeal to the· High Court of Allahabad the order passed by the Election

1964 . . _ Tribunal was reversed and the proceedmgs were remanded Ram Sewak Yadav for trial with a direction amonn others that the Tribunal T. . ' • o ' Hussain Kami/ do give reasonable opportumty to both the parties to inspect Kidwai the ballot papers and other connected papers. With special Shah J. leave, Yadav has appealed against the order of the High Court.

The principal grounds set up by Kidwai in support of his petition were~

( 1) that there had been improper reception, refusal and rejection of votes at the time of counting, and in consequence thereof the election was materially affected;

(2) that there were discrepancies between the total number of votes mentioned in Form 16 and Form 20;

(3) that the tendered votes were wrongly rejected by the returning officer and on that account the election was materially affected:

(4) that at the polling station No. 29, Majgawan in Bhitauli Unit and Kursi polling station in Kursi Assembly Unit, the polling officers did not give ballot papers to the voters;

( 5) that the counting of votes of Bhitauli Assembly Unit continued till 8-30 P.M. in insufficient light notwithstanding the protest lodged by the petitioner; and

(6) that on a true count he (Kidwai) would have received a majority of valid votes and that he was entitled to be declared du! y elected.

These allegations were denied by Yadav.

At the trial before the Tribunal the parties led no oral evidence. In respect of the pleas (3), (4) and (5) the burden of proof lay upon Kidwai and as no evidence was led to substantiate the same, those pleas failed. Again in the view of the Tribunal, Kidwai could discharge the burden of proof which lay upon him to establish that there were discrepancies 'between the original and the certified copies of Forms Nos

6 S.C.K

SUPREME COCRT REPORTS

16 & 20, and as the original forms were not called for by

19M Kidwai, his second ground must also fail.

Kidwai claimed Rams;;;;; Yoda that he would be able to establish his case on oleas (I) & "·

(6) from the ballot papers, and submitted that a~ order fe>r Huss"kdwaf•mfi inspection of the ballot papers be made and that he be permitted to show from the ballot papers that the Returni•~

Officer had improperly received, refused or rejected the votes, and that on a true count he would get the largest number of valid votes.

The Tribunal rejected the application for inspection holding that ballot papers may be allowed to be inspected only if it is necessary in the interest of justice and to support an order for inspection facts must be brought to its notice making out a prima facie case disclosing that errors were committed in the reception, refusal or rejection of votes at the time of counting, and unless a prima facie case was made out the Tribunal would be justified in declining to make an order for inspection. The High Court however held that ballot papers had actually been called for from the Returning Officer and were before the Tribunal, that there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court, and that the Tribunal had rejected the application for inspection without any adequate reasons for so doing.

The only question which falls to be determined in this appeal is whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers which had been, pursuant to its order in that behalf, lodged before it in sealed boxes by the Returning Officer. In considering this question the material provisions of the Representation of the People Act, 1951, and the rules framed thereunder mav first be noticed.

Section 80 of the Act provides that no -election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. Section 83(1) states what the election petition shall contain. It states:

"An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relis:

-159 SG-16

Shah /.

Ram Sewak Yadav

v. lfussain Kamil Kidwai

Shah J.

(b) shall set forth full particu '.ars of any corrupt practice that the petitioner alleges, including as full a statement as posssible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings:''.

The rest of the section is not material.

Section 90(1) prescribes the procedure to be followed by the Tribunal. It states:

"Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: "

Section 92 enumerates the powers which a Tribunal trying an election petition may exercise and the powers so enumerated are the powers which a Court under the Code of Civil Procedure, when trying a suit, may exercise in respect of discovery and inspection, enforcing attendance of witnesses, compelling production of documents, receiving evidence taken on affidavits and issuing commissions for the examination of witnesses. Rules have been framed under the Act relating to prpduction and inspection of election papers.

By rule 93 of the Conduct of Election Rules, 1961, it is provided that:

"(!) While in the custody of the returning officer-

(a) the packets of unused ballot papers:

(b) the packets of used ballot papers whether valid, tendered or rejected:

(c) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub-section (I) or sub-section (2) of section 152; and

(d) the packets of the declarations by electors the attestation of their signatures;

and 1964

Ram Sewak Yada•

v. shall not be opened and their contents shall not Hussai~ Kamll K1dwai be inspected by, or produced before, any per- - . son or authority except' under the order of a Shah 1 competent court or tribunal.

(2) All other papers relating to the election shall be open to public inspection subject to such conditions and to the payment of such fee, if any, as the Election Commission may direct.

(3) Copies of the returns by the returning officer forwarded under rule 64 or as the case may be_ under sub-rule (3) of rule 84 shall be furnished by the chief electoral officer of the State con- . cerned on payment of a fee of two rupees for each such copy."

The rule makes a clear distinction between ballot papers and other election papers: ballot papers may be il)spected only under the order of a competent court or tribunal, but other documents are, subject to certain conditions, open to public inspection.

In this case, on an oral request made by Kidwai all the ballot papers in sealed boxes were lodgd with the Election Tribunal.

Kidwai claimed in the first instance that the Tribunal was bound to grant an order for inspection, because he had tendered the sealed boxes of ballot papers in evidence, and on that account all the ballot -papers were part of the record. The Tribunal rightly rejected this plea,

fo~ by the m'ere production of the sealed boxes pursuant to its order the ballot papers did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that such inspection was in the circumstances of the case necessary in the interests of justice.

An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case. If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a civil court is invest-

1964 ed under the Code of Civil Procedure when trvin2 a suit. ilam s.;;;;;: Yadav But the power which the civil court may exe; cis; in the.

Riulllli/· Kamrl trial of suits is confined to the narrow limits of 0.11, Code of Kidwai Civil Procedure. Inspection of documents under 0.11, Code Shah 1 of Civil Procedure may be ordered under rule 15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under rule 18(2) of other documents in the possession ur power of the other party. The Returning Officer is not a party to an election petition, and an order for production of the ballot papers cannot be made under 0.11 Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it. the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers. That power is clearly implicit in ss. IOO())(d)(iii), IOI, 102 and rule 93 of the Conduct of Election Rules, 1961.

This power to order inspection of the ballot papers which is apart from 0.11 Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by ss. 94 and 128()).

An order for inspection may not be granted as a !!latter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled:

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice

betv.een the parties inspection of the ballot papers is necessary.

But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To e>tab- 1964 lish a case so pleaded an order for inspection may undoubt Ram s1;;;; t Yada• edly, if the interests of justrce require, be granted. But a •· H UJ1ain Kam/I mere allegation that the petitioner suspects or believes that Kidwal there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.

It must be remembered that the rules framed under the Representation of the People Act, 1951, set up an elaborate machinery relating to the stage of counting of vote:; by the Returning Officer, and provide ample opportunity to the can didate who has contested the election or his agents to remain

present and to keep an eye on any improper action which may be taken by the Returning Officer. Rule 53 provides for the admission of only certain classes of persons to thr

place fixed for counting and amongst such persons are ex pressly included candidates. their election agents and counting agents, who may watch the counting subject to the directions which the returning officer may give.

Rule 55 deals with the procedure for scrutiny and opening of ballot boxes.

The Returning Officer has to satisfy himself that "none of the ballot boxes has in fact been tampered with" and before any ballot box is opened at the counting table, the counting agents present at that table are allowed to inspect the seal affixed thereon and to satisfy themselves that it is intact. If the Returning Officer is satisfied that any ballot box has in fact been tampered with, he is prohibited from counting the ballot papers contained in that box and he has to follow the procedure prescribed in that behalf in s. 58. Clause (I) of rule 56 provides for the scrutiny and rejection of ballot papers.

Clause (2) sets out detailed provisions relating to cases in which the Returning Officer shall reject a ballot paper. B:; cl. ( 3) it is provided that before rejecting any ballot paper under sub-rule ( 2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect such ballot papers. The Returning Officer has then to record on every ballot paper which he rejects the grounds of rejection. All the rejected ballot papers are required to be put in one bundle. Rule 57 deals with the counting of votes. Each ballot paper which is not rejected is counted

Shah J.

1964 as one valid vote. The Returning Officer has to make the.

Ram Sewak Yadav entries in a result sheet in Form 20 after counting of the

8 I "' Kam"l ballot papers contained in all the ballot boxes used at the uua n 1

11. .

Kldwai po mg stations. Clause (3) of rule 57 enacts an elaborate Sha/• J. set of rules about the entries to be made in respect of the counting and scrutiny of the ballot papers.

By rule 60 counting has to be continuous, and rule 63 ( 1 ) provides that after the completion of the counting, the Returning Officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the result.

By cl. ( 2) of rule 63 it is provided that after such announcement is made, a candidate or his election agent may apply in writing to the Returning Officer for a re-count of all or any of the ballot papers already counted stating the grounds on which he demands such re-count. The Returning Officer must decide the application and record his reasons in support of his decision and he may allow the application in whole or in part or may reject it if it appears to him to be frivolous or unreasonable.

After the total number of votes polled by each candidate has been announced, the Returning Officer must complete and sign the result sheet in Form 20 and after such form is completed no application for re-count may be entertained.

Under rule 64 the declaration of the result of the election is made by declaring elected a candidate who has secured the largest number of valid votes, and the Returning Officer is required to complete and certify the return of election.

There can therefore be no doubt that at every st2 ge in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes, and to demand a re-count.

Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted.

He has also opportunity of inspecting rejected ballot papers, and of demanding a re-count. It is in the light of the provisions of s. 83 ( 1) which require a concise statement of material facts

on which the petitioner relies and to the opportunity which 1964 a defeated candidate had at the time of counting, of watching Ram s;;;; k Y""- and of claiming a recount that the application for inspection . v. b "d Hussain Kanoll must e cons1 ered.

Kidwal In the petition filed by Kidwai the material allegations in Shah 1. support of the claim that there had been improper reception, refusal or rejection of votes were contained in paragraphs 6(H), 6(K) and 12. In paragraph 6(H) it was averred that numerous ballot papers cast in favour of the petitioner were wrongly included in the "bundles of therespondents." In paragraph 6(K) it was averred that due to "a deficiency in the supply of sealing ink, marks on some ballot papers, though not quite clear, yet the marks clearly indicating the intention of the voters, were wrongly rejected as invalid by the return ing officer." In paragraph 12 it was averred that "the petitioner is confident that if the votes actually cast in favour of the petitioner are counted as votes of the petitioner and if the improperly accepted votes which have been counted in favour of other respondents are taken out, and if the ballot papers are correctly sorted, counted and bundled, the respondent No. I will be found to have polled less votes as com pared to . . . petitioner.

The petitioner further submit& that the result of the Election has been materially affected by the improper acceptance and refusal of votes and by the incorrect sorting, counting and bundling of ballot papers." These averments in the petition for setting aside the election on the ground of improper acceptance or rejection of votes were vague, and did not comply with the statutory requirements of s. 83(l)(a).

Paragraph 12 is deficient in the recital of material facts which must be deemed to be within the knowledge of the petitioner, and merely asserts that if the votes actually cast in favour of the petitioner are counted, the total number of valid votes found in his favour would exceed the number of votes received by Yadav.

Having regard to this infirmity the Tribunal was justified in declining to make an order for inspection of the ballot papers unless a prima facie case was made out in support of the claim.

The Tribunal has undoubtedly to exercise its discretion if it appears to be in the interests' of justice, but the discretic; n has manifestly to be exercised having regard to the nature of the allegations made.

The Tribunal would be justified in

1V64 refusing an order where inspection is claimed with a view to .._ .;;; t Yadav fish out materials in support of a vague plea in the case set

• "· K .1 out in the petition. The Tribunal was conscious of the true

B,,_,. ami • 'I. ed'. d A 25 9 Kitlwai p1'Ulc1p e: 1t stat m its or er dated ugust , I 62, that

SWJ. nothing was brought to its notice which would justify granting an order for inspection prayed for by the petitioner at that stage.

The Tribunal further observed: "If in future from facts that may be brought to the notice of the Tribunal, it appears that in the interests of justice inspection should be allowed, necessary orders allowing an inpection could always be passed".

Relying upon these observations another application was submitted by Kidwai asking for inspection but no additional materials were placed before the Tribunal.

As we have already observed Kidwai Jed no real evidence at the trial. In his second application for inspection he merely averred that "the petitioner was almost sure" that on inspection and scrutiny of ballot papers, the allegations contained in the various paragraphs would be proved. The 1llegation of Kidwai that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception, refusal or rejection of votes was wholly insufficient to justify a claim for inspection.

He had to place before the Tribunal evidence prima facie indicating that an order for inspection was necessary in the interests of justice, which he failed to do.

Reliance was placed before this Court and the High Court upon the decision of this Court in Bhim Sen v. Gopali and others( 1) in support of the plea that mere absence of particulars will not furnish a ground for declining to grant inspection and tltat a defeated candidate is entitled to establish his case that void votes had been counted and included in the votes of the successful candidate from the evidence collected from inspection of the ballot papers.

In Bhim Sen's case ( 1) a petition was filed for setting aside an election of a candidate In a reserved seat in a double member constil'-'Cncy.

The principal ground in support of the petition

(') 22 E.L.R. 288.

was that it was incumbent upon the Returning Officer to go 1964 into each case of double voting in order to reject Qne of the Ram Sewak Yadov two votes cast in contravention of s. 63(1) of the Represen- Ht1ssain v. Kamil ration of the People Act, and that the Returning Officer Kidwai having failed to discharge his duty to reject bllot papers Shah J. cast in contravention of s. 63 the petitioner belieed that the successful candidate "could receive many void votes."

The ballot boxes were opened and it was found that 37 vmd votes were counted in favour of the successful candidate and in view of the disclosure made by the inspection of the ballot papers the petitioner applied for leave to amend the petition by adding a specific averment that 37 void votes had in fact been counted in favour of the successful candidate and that the words "alleges" and "did" be substituted respectively for the words "believes· and "could". Along with the petition for leave to amend he filed a list giving the particulars of the void votes.

This application was allowed by the Tribunal but the order was reversed by the High Court on the ground that the Tribunal had erred in allowing the amendment. In appeal to this Court it was held that in a case like the one before the Court, definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers, and the election petition as originally presented must therefore be regarded as having furnished the material particulars. and the amendment petition must be treated merely as an application for clarification of the pleadings.

We do not think that Bhim Sen's case(') lays down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time of counting. To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge.

The nature of the allegations must of course depend upon the facts of each case. .But if material facts are not

(1) 22 E.L.R .. 188.

1964 stated, he cannot be permitted to make out a case by fishing .Ram Sewak Yadav out the evidence from an inspection of the ballot papers. In

Hussai~· Kamil Bhim Sen's case(1) the Court was primarily concerned with Kidwai the question whether amendment of the petition to set aside Shah!. an election should be granted. It was alleged by the defeated candidate that there had been contravention of the provisions of s. 63 ( I ) of the Act by the Returning Officer and the election was materially affected on that account.

The applicant had stated that he believed that the respondents had received many votes which were void.

When the ballot box was opened it was found that among the votes credited to the successful candidate were 37 votes which were void.

Thereafter the applicant applied to substitute the words "alleges" for "believes" and "did" for "could". In that case the Court was not concerned to decide whether the order for inspection was properly made: the propriety of the order granting inspection does not appear to have ever been questioned.

The principal question raised in the appeal

1 was whether the amendment of the petition should, in the circumstances, be granted and the observation of the Court that "definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers" was not intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate, definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected, and that a defeated candidate may claim inspection of the ballot papers without making any specific allegations of material facts and without disclosing a prima facie <:ase in support of the claim made.

In our view the High Court was in error in interfering with the exercise of discretion by the Election Tribunal which proceeded upon sound principles.

The appeal therefore is allowed and the order of the High Court is set aside.

The order of the Tribunal is restored with costs in this Court and the High Court.

Appeal allowed.

") 22 E.L.R. 288

RAM SEW AK Y ADAY

HUSSAIN KAMIL KIDW AI & ORS

P. B. GAJENDRAGADKAR

K. N. WANCHOO

GUPTA, J.

C. SHAH

N. RAJAGOPALA AYYANGAR JJ.

Election Rules, 1961

R.eturnina

the Code of Civil Procedure

Representation of the People Act

Conduct of Election Rules, 1961

Code of Civil Procedure

ss. 94 and 128(1)

Allahabad High Court (Lucknow Bench

N. C. Chatterjee

J. P. Goyal

S. P. Sinha

S. Shaukat Hussain

SHAH

Shah

Ram Sewak Yadav

Hussain Kami

Kidwai

High Court of Allahabad

Ram Sewak Yadav

Hussain Kami/

Shah

Yadav

Bhitauli Assembly Unit

Yoda

the Code of Civil Procedure

Section 80

Section 83(1)

Shah

It states:

"An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relis:
159 SG-16

Shah /.

Ram Sewak Yadav

v. lfussain Kamil Kidwai

Shah J.

(b) shall set forth full particu '.ars of any corrupt practice that the petitioner alleges, including as full a statement as posssible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings:''.

Kamil Kidwai

Code of Civil Procedure, 1908

Section 90(1)

Code of Civil Procedure, 1908

Section 92

the Code of Civil Procedure

Conduct of Election Rules, 1961

section 152

Ram Sewak Yada•

the Code of Civil Procedure

Code of Civil Procedure

Conduct of Election Rules, 1961

Code of Civil Procedure

ss. 94 and 128()

Kidwal

s. 58

Ram Sewak Yadav

s. 83

s. 83(l)(a)

Kidwai Jed

Bhim Sen

Ram Sewak Yadov

s. 63(1)

Kamil ration of the People Act

Kidwai

s. 63

.Ram Sewak Yadav

Kamil Bhim Sen

s. 63


6 S.C.R.

SUPREME COURT REPORTS 251

PENTAPATI CHINNA VENKANNA & ORS.

PENTAPATI BENGARARAJU & ORS.

(K. SUBBA RAO AND J. R. MuDHOLKAR JJ.)

<ode of Civil Procedure (Act 5 of 1908), s. 48-Execution Petl1iun-

Fresh application-What is-''closed", meaning of.

The decree holders filed an application for execution of the dcrce !l:eing E.P. No. 13/1939.

This execution proceeding had to be stayed as a result of the stay order of the High Court.

Ultimately the c:xccu ting court made an order on E.P. 13/1939 to the effect that the Execution Petition was "closed".

On January 21, 1952, the decree holders made an application for reopening the execution E.P. No. 13/1939 and for proceeding with the execution of the decree. The Subordinate Judge, (executing court) holding that the previous execution petition was merely ''closed" directed the decree holders to file a regular execution petition.

On October 11, 1952 the decree holders filed E.P. No. 58/53 to continue further proceedings in E.P. No. 13/1939. 'fhe judgment debtors filed a counter affidavit pleading, inter. alia that the decree sought to be executed was made on September 22, 1938, and that as E.P. No. J3/I939 was dismissed on December 28, l 948, the present apf)iic:ation. having been filed more than 12 years from the date of decree, was barred under s. 48 of the Code of Civil Procedure.

On these fats the Subordinate Judge held that though the decree holders were entitled to continue previous execution petition, E.P. No. 58/53 was a fresh application as it differed from the original execution petition.

On appeal, the High Court held that E.P. No. 13/1939 was merely closed for statistical purposes, and. therefore, the execution petition filed in 1939 was still pending and the decree hofdeff. were entitled to proceed with that petition.

Iience the appeal.

The question for consideration is whether E.P. No. 58/53 is a fresh i:lpplication within the meaning of s. 48 of the Code.

Held: (i) It is true courts have condemned the practice of executing <:ourts using expressions like "closed'', "closed for statistical purposes'", ••struck off" "recorded" etc., and they have also pointed out that there is no provision in the Code of Civil Procedure for making such orders. llut assuming that the court has no such power, the passing of such

an order cannot be tantamount to an order of dismissal, for the inten- 1ion of the court in making an order "closed" for statistical purposes is ma:Ji.ifest. It is intended not to fina1Iy dispose of the application, but to keep it pending.

Whether the order was without jurisdiction or whe- 1her it was valid, the legal position would be the same: in one case it would be ignored and in the other it would mean what it stated. In either case the execution petition would be pending on the file of the court. It is uot the phraseology used by the Executing Court that really

January, 211

252 SUf'REME COURT REPORTS [19b4]

1964 matters, but is is really the substance of the order that is material~ Whatever terminol0gy may be used, it is for the Court to ascercain.

P. Chinna Ye1Jkanna having regard to the circumstances under which tbe said order \Vas made, v. whether the Court intended to finally terminate the execution proceed- P. Bangara ·, Raju ings.

If it did not intend to do so, it must be held that Lhe execution proceedings were pending on the file of the Court. In the present case the subsequent application i.e. E.P. No. 58/53 is only an application to continue the previous application i.e. E.P. 13/1939.

Biswa Sonan Chunder Gossyamy \". Binanda Chander Dibingar Adhikar Gossyamy, (1884) I.LR. 10 Cal. 416, Vadlamannati Damodara Rua v. Official Receiver, Kist11a, I.L.R. 1946 Mad. 527 anlt Moidht Kutty v. Doraiswami, A.LR 1952 Mad. 51, referred to.

(ii) An application made after 12 years from the date of decree Wtluld be a fresh application within the meaning of s. 48 of the Code

of Civil Procedure, if the previous application was finally disposed of.

It would also be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition.

In the present case the parties are substantially the same in both proceedings, and the decree holders are only proceeding against properties included in t!te previous.

application i.e. E.11. No. 13/1939.

It cannot, therefore, be treated as a fresh aprlication within the meaning of s. 48 of the Code.

Bundhu Si•1gh v. Kayastha Trading Bank, (1931) I.LR. SJ All. 419, Sri Raja D. K. Venkatc; Lingama Nayanim v. Raja lnuganti Rajagopala

Venkata Narasimha Rayanim, I.L.R. [1947] Mad. 525, lppagunta Lakshn1i11ar"si11ga Rao v. lppaf?unta Balas11brahama11yan1. A.l.R. 1949 fad. 251 and Gaianand Sah v. Dayanand Thakur (1942), J.L.R. 21 Pat. 838. discussed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 690 of 1962.

Appeal from the judgment and order dated March 5, 1959, of the Andhra Pradesh High Court in Appeal against order No. 151 of 1955.

S. Suryaprakasam and Sardar Bahadur, for the appellants.

The respondent did not appear.

January 20, 1964.

The Judgment of the Court was delivered by

S11bba Rao J.

SUBBA RAo J.-This appeal by certificate raises the question of the applicability of s. 48 of the Code of Civil Procedure, hereinafter called the Code, to the facts of the case.

The relevant facts are as follows: In the year 1928 one Pentapati Venkataramana filed Original Suit No. 3 of 1928 in the Court of the Subordinate Judge, Visakhapatnam, against 29 defendants for accounts of dissolved partnerships and for tbe recovery of amounts due to him.

On March 30, 1932, the suit was dismissed by the learned Subordinate Judge.

On appeal, the High Court of Madras set aside the decree of the Subordinate Judge and passed a joint and several decree in favour of the plaintiffs and defendants 24 to 27 for a sum of Rs. 54,350 with interest thereon.

On February 15, 1939, the decree-hol_ders filed an application for execution of the decree, being E.P. No. 13 of 1939, and prayed for realization of the decretal amount by attachment and sale of 31 items of properties described by them in the schedule (Ex.

B-4) annexed thereto.

The judgmentdebtors filed an objection to the attachment of some of the

aid items, but that was dismissed.

Against the order of dismissal of their objection, 1i1e judgment-debtors filed an appeal to the High Court, being C.M.A. No. 26 of 1944.

Pending the disposal of the C.M.A., the High Court granted an interim stay of E.P. 13 of 1939.

Later, the appeal was dismissed on April 26, 1945.

After the dismissal of the appeal, when the decree-holders sought to proceed with the execution, the judgment-debtors filed another application_ being E.A. No. 575 of 1945, alleging that the decree has been adjusted and for recording satisfaction of the decree.

But the said application was dismissed on December 12,

1945. The judgment-debtors went up on appeal to the High Court against the said order of dismissal and obtained an interim stay of E.P. 13 of 1939.

On September 9, 1947, the High Court allowed the a ppeq] and remanded the case to the trial court for asce!"taining whether there was an adjustment of the decree as pleaded by the judgmentdebtors.

On remand, the executing court again dismissed the application filed by the judgment-debtors.

Against the

aid order, the judgment-debtors again preferred an appeal, being C.M.A. No. 127 of 1948, in the High Court of Madras and obtained an interim stay of the execution.

The interim order was made absolute on November 24, 1948.

As the execution of the decree was stayed by the High Court, the executing court made an order on E.P. 13 of 1939 to the effect that the petition was "closed".

On July 31, 1951, the

P. Chi11na J:'e11kan11a

P. Bangara Raju

Subba Rao /.

254 SlJ1'REME COURT REPORTS

1964 High Court dismissed C.M.A.127 of 1948.

On January 21, P. Chinna Ven- 1952, the decree-holders made an application being E.A. kanna No. 142 of 1952, in E.P. 13 of 1939 for reopening the said

Bangra Raju execution petition and for proceeding with the execution of Subba Rao J. the decree.

The learned Subordinate Judge, holding that the previous execution petition was merely "closed", directed the decree-holders to file a regular execution petition.

On October 11, 1952, the decree-holders filed E.P. No. 58 of 1953 to continue further proceedings in E.P. 13 of 1939 as per the order made in E.A. No. 142 of 1952 passed on October 4, 1952.

In that petition the decree-holders prayed that the properties mentioned in the draft proclamation filed in E.P. No. 13 of 1939 and brought to sale may be sold for the realization of the money due to the decree-holders and the proceeds applied for the discharge of the decree-debt.

The judgment-debtors filed a counter-affidavit pleading, inter alia, that the decree sought to be executed was made on September 22, 1938, and that as E.P. No. 13 of 1939 was dismissed on December 28, 1948, the present application, . having been filed more than t 2 years from the date of the decree. was barred under s. 48 of the Code.

The learned Subord_inate Judge held that though the decree-holders were entitled to continue the previous execution petition, E.P. 58 of 1953 was a fresh application, as in form. as well as in details it materially differed from the original execution petition.

On appeal, a division Bench of the Andhra Pradesh High. Court took a different view and held that E.P. 13 of 1939 was merely closed for statistical purposes and, therefore, the execution petition filed in 1939 was still pending and the decree-holders were entitled to proceed with that petition.

The High Court further observed that the said position was not contested by leaPned counsel for the respondents.

We understand this observation only to mean that learned counsel appearing for the respondents therein did not contest ihe position that if the execution petition was not dismissed but was only closed for statistical purposes, the decree-holders were entitled to proceed with that petition.

The High Court remanded the case to the learned Subordinate Judge for disposal according to law after considering the other contentions of the judgment-debtors. Hence the appeal.

Mr. Suryaprakasarn, learned counsel for the appellants, 1964

raied before us the following two points: (I) The prernms p, Chin11a ven. execution petition was dismissed and, therefore, it was not kan11a pending al the time of filing of E.P. 58 of 1953, and, there- P. Ban;;, ra Ra/u• fore, the later execution petition was a fresh application Subba Rao J. within the meaning of s. 48 of the Code; and (2) even if the previous application was only closed for statistical purposes, and the decree-holders could apply for reviving those proceedings, E.P. No. 58 of 1'953 was a fresh execution petitian because the parties and the pro;>erties proceeded against were different and the relief asked for was also different.

Before we consider the question raised, it would be convenient at the outset to look at the material provisions of s. 48 of the Code.

It reads:

"( 1) Where an application to execute a decree not being a decree granting an in junction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from-

(a) the date of the decree sought to be executed." This section corresponds to paras 3 and 4 of s. 230 of the Code of 1882.

The relevant part of the section read:

"Where an application to execute a decree for the

payment of money or delivery of other property has been. made under this section and granted, no subsequent appliction to execute the same decree shall be granted after the expiration of twelve years from any of the following dates:

A comparison of the said two provmons shows that the phrase ''fresh application" has been substituted for "subsequent application".

This amendment became necessary in order to make it clear that the application mentioned in s. 48 of the Code is a fresh substantive application and not an application to revive or continue a substantive application already pending on the file of th~ court.

1'. Chinna Ven

kunna

v . . />. Hangara

The question, therefore, is whether E.P. 58 of 1953 is a fresh application within the meaning of s. 48 of the Code.

The answer to this question mainly turns upon the question

R . whether the previous application i.e., E.P. 13 of 1939, was

GJU fi 11 d' . na y tsposed of by the executmg court.

From the narra- Subba Rao J. tion of facts given by us earlier it is clear that the said execution petition was "closed" for statistical purposes.

As the High Court stayed the execution pending the appeal filed by the judgment-debtors, the decree-holders were not in a position to proceed with the execution petition, and, therefore, it was closed.

Some argument was raised on the question whether the said execution petition was closed for statistical purposes or was dismissed that it was contended that under the Code of Civil Procedure there was no power conferred upon a court to close execution proceedings for statistical purposes, and that even if such an.order was made, it must be deemed to be an order dismissing the execution petition.

The actual order dated December 28, 1948 has not been placed before us.

But in E.P. 58 of 1953 in col. 6 thereof it is mentioned that E.P. No. 13 of 1939 was closed on December 28, 1948. In the counter-affidavit filed by one of the judgment-debtors it is stated that E.P. 13 of 1939 was dismissed on December 28, 1948 and not merely closd.

After the disposal of the appeal by the High Court and before the filing of E.P. No. 58 of 1953, the decree-holders filed E.A. No. 142 of 1952 for reopening E.P. No. 13 of 1939.

On that petition the learned Subordinate Judge made the following order:

"The previous E. P. was merely closed.

Petitioner may file a regular E. P. on which proceedings will continue from the stage at which they were left in E.P. 13 of 1939."

This order discloses that the previous execution petition was only closed.

The Subordinate Judge must have presumably looked into the previous record.

The learned Subordinate Judge proceeded on the assumption that the previous execution petition was pending, though he dismissed the present execution petition on another ground.

This factual position was not contested even in the High Court. for the High Court stated that the previous application was merely closed for

6 S.C.R.

SUPREME COURT kEPORTS 257

statistical purposes.

In the circumstances we must proceed on the assumption that the Execution Petition 13 of 1939 was only closed for statistical purposes.

Learned counsel for the appellants contends that the Code of Civil Procedure does not sanction the passing of an order closing an execution petition for statistical purposes and that that practice has been condemned by courts.

Under

0. XXI, r. 17 ( 1) of the Code, the Court may reject an execution application if the requirements of rules 11 to 14 have not been complied with.

Under r. 23 thereof, if the judgment-debtor does not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be executed, and where such personoffers any objection to the execution of the decree, the Court shall consider such objection and make such orders as it thinks fit. Under r. 57 thereof, "Where

any property has been attached in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date ...... ". Relying upon these provisions it is argued that though the power of the court to make an order under 0. XXI, r. 23 (2) is wide and it can make any order it thinks fit, it can only make one or other of the two orders mentioned in r. 57 when it could not proceed with the execution because of the default of the decree-holder. It is said that in this case the dccreeholders could not proceed with the execution in view of the stay ordr of the High Court and, therefore, the executing court could have either dismissed the application or adjourned the proceedings to a future date and it has no jurisdiction to pass an order closing the execution for statistical purposes.

It is further said that an order closing proceedings for statistical purposes is not an order of adjournment, for an order of adjournment implies that the application is on the file, whereas the object of closing is to take it out of the file, though temporarily, and, therefore, the order, in effect and substance, is one of dismissal.

Assuming that the order was made by reason of the decree-holder's default within the meaning of 0. XXI, r. 57 of the Code, we find it difficult to attribute something to the court which it never intended to

31-c;9 ~.c. ;7

P. Chinna Venkanna

P. Bangara Raju

Subb• Rao J_

1964 do.

It is true courts have condemned the practice of exe-

~. Chinna Vencuting courts using expressions like "closed", "closed for kanna statistical pur:; ioses", "struck off", "recorded" etc., and they v.

I P. Bangara Raju a so pointed out that there was no provision in the Code of

S•bba Rao /.

Civil Procedure for making such orders: see Biswa Sonan Chunder Gossyamy v. Binanda Chunder Dibingar Adhikar Gossyamy ('); Vadlamannati Damodara Rao v. The Official Receiver, Kistna( 2 ); Moidin Kutty v. Doraiswami(3).

It is not necessary to express our opinion on the question whether such procedure is sanctioned by the Code of Civil Procedure or not; but assuming that the court has no such power, the passing of such an order cannot tantamount to an order of. dismissal, for the intention of the court in making an order

"closed" for statistical purposes is manifest. It is intended not to finally dispose of the application, but to keep it pending.

Whether the order was without jurisdiction or whether it was valid, the legal position would be the same; in one case it would be ignored and i.TJ the other, it would mean what it stated.

In either case the execution petition would be pending on the file of the court. That apart, it is not the phraseology used by the executing court that really matters, but it is really the substance of the order that is material.

Whatever terminology may be used, it is for the court to ascertain, having regard to the circumstances under which the said order was :nade, whether the court intended to finally terminate the execution proceedings. If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the court.

We have no hesitation, therefore, in agreeing with the High Court that E.P.

13 of 1939 is pending on the file of the executing court and that the present application is only an application to continue the same.

Even so, it is contended that E.P. No. 58 of 1953 is a fresh application. Learned counsel compared the recitals in E.P. 13 of 1939 and E.P. 58 of 1953 and pointed out that all the respondents in the former execution petition are not respondents in the pre5ent execution petition; that legal representatives of some of the defendnts are added to th• present execution petition; that the decree-holders did not

(1) (188,) I.L.R. 10 Cnl. 416, 422. (') I.L.R. 1946 Mad. ,27. (') A.I.R.1952 Mad. 51.

:;; eek to proceed against all the properties against which they 1'64 sought to proceed in the former execution petition; and that p, Chinna v.,.. one of the reliefs, namely, to attach the amount deposited in kanna court, asked for in the present execution petition is a comr. a.n;, ra R•I• pletely new one and that, therefore, the present execution Jub•a R"" J. petition is, both in form and in particulars, completely a different one. But a oomparison of the two execution petitions shows that the parties are the same: the new parties

added in the present execution petition are either the legal representatives of the deceased parties or the representative of a party who has become insolvent. In the present execution petition the decree-holders are not proceeding against any property against which they did not seek to proceed in the earlier proceeding; they only omitted some of the properties.

The decree-holders canno.t be compelled to proceed against all the properties against which at one time they sought to proceed.

The relief by way of atta(jiment of the amount deposited in court had been asked for by the decree-holders by a separate petition, namely, E.A. No. 143 of 1962, and that was dismissed and, therefore, nothing turns upon it.

The result is, therefore, in substance under both the execution petitions the decree-holders seek to iJroceed against the same parties and against the same properties.

The law on the subject is well-settled.

In Bandlm Sinh

v. Kayastha Trading Bank(' J, where a decree-holder included new items of property for attachment in an application for execution of his decree filed 12 years after the date of the decree, it was held that the application to attach fresh property was a fresh application within the meaning of s. 48 of the Code and, therefore, having been made more than 12 years after the date of the decree, could not be entertained.

In Sri Raja D. K.

Venkata Lingama Nayanim v. Raja Inuganti Rajagopala Venkata Narasimha Rayanim('). where an application was made for amending a pending execution petition with a view to attach another property not included in the pending application, the court held that the application for amendment could not be allowed, as it was 111ade beyond the period of 12 years from the date of the decree.

In lppagunta Lakshminarasinga Rao v. lppaguntl!

(') (1931) J.L.R. 53 All. 419. (') l.L.R. 1947 Mad. 52 5

11# Balasubrahmanyam ('), where the execution petition filed c-- ,.,,.. beyond 12 years of the decree asked for a new relief not

....... asked for in the earlier execution petition, it was held that .. ,,;,,. R•iu the subsequent application, having been filed beyond 12 .ti.th ._ / years, was hit by s. 48 of the Code.

In Gajana11d Sah v. Dayanand thakur( 2), the decree-holder was not allowed to substitute a new property different from the one against which he wished to proceed in the earlier application on the ground that 1 Z years had expired from the date of the passing of the decree.

The result of the decisions may be summarized thus. An application made after 12 years from the date of the decree would be a fresh application within the meaning of s. 48 of the Code of Civil Procedure, if the previous application was finally disposed of. It would also be a fresh appliclltion if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition.

In this case, as we have pointed out, the parties are subitantially the same in both the proceedings, and the decreeholders are only proceeding, against properties included in the previous application. It cannot, therefore, be treated as a fresh application within the meaning of s. 48 of the Code. lt is only an application to continue E.P. No. 13 of 1939 which is pending on the file of the executing court.

That apart, the decree-holders filed E.A. No. 142 of 1952 in E.P. No. 13 of 1939 expressly asking for the reopening of the said execution petition and for proceeding with it.

As we have held that the earlier execution petition is still pending on the file of the court, the executing court will be well within its rights in proceeding on the basis of the earlier execution petition even without a new petition.

In the result, we hold that the order of the High Court is right.

The appeal fails and is dismissed.

There will be no oraer to cost!.

Appeal dismissed.

251

PENTAPATI CHINNA VENKANNA & ORS

PENTAPATI BENGARARAJU & ORS

K. SUBBA RAO

R. MuDHOLKAR JJ.

s. 48

October 11, 1952

September 22, 1938

December 28, l 948

s. 48

the Code of Civil Procedure

s. 48

the Code of Civil Procedure

P. Chinna Ye1Jkanna

P. Bangara

Biswa Sonan Chunder Gossyamy

s. 48

s. 48

Raja D. K. Venkatc

CIVIL APPELLATE JURISDICTION

S. Suryaprakasam

Sardar Bahadur

SUBBA RAo

s. 48

the Code of Civil Procedure

Pentapati Venkataramana

Subordinate Judge, Visakhapatnam

March 30, 1932

High Court of Madras

February 15, 1939

April 26, 1945

December 12,

1945

9, 1947

November 24, 1948

P. Bangara Raju

Subba Rao

Subba Rao

October 4, 1952

December 28, 1948

s. 48

Andhra Pradesh High. Court

Suryaprakasarn

P. Ban

s. 48

s. 48

s. 230

s. 48

s. 48

the Code of Civil Procedure

the Code of Civil Procedure

P. Bangara Raju

the Code of Civil Procedure

s. 48

s. 48

s. 48

the Code of Civil Procedure

s. 48