SANGRAM SINGH V. ELECTION TRIBUNAL, KOTAH AIR 1955 SC 425 (VIVAN BOSE, J.)

SANGRAM SINGH V. ELECTION TRIBUNAL, KOTAH AIR 1955 SC 425 (VIVAN BOSE, J.)

 

FACTS

• An election petition under Section 100 of the Representation of the People Act against the appellant Sangram Singh and two others for setting aside Sangram Singh’s election.
• Tribunal made an order on 11-12-1952 that the further sittings would be at Udaipur from 16th to 21st March, 1953.
• On the assigned date, the appellant did not appear nor did any of his three counsel
• Tribunal proceeded ex parte after waiting till 1.15 p.m.
• Witnesses were examined on the following dates and on the 20th appellant’s counsel appeared but was not allowed to take any part in the proceedings because the Tribunal said that it was proceeding ex parte at that stage.
• On 21st appellant made an application asking that the ex parte proceedings be set aside and asking to cross-examine witnesses whose evidence had already been recorded.
• Tribunal rejected the application on the ground that the appellant had failed to satisfy that there was any just or unavoidable reason preventing the appearance of Respondent 1 [the appellant] between the 17th and the 19th of March, 1953.
• The appellant filed a writ petition in the High Court of Rajasthan and further proceedings before the Tribunal were stayed which was rejected by the High Court. However, the high court granted the certificate to appeal.

 

ISSUE

• Whether the tribunal was right in refusing to allow the appellant to appear and take part after they were proceeded ex-parte.

 

HELD

The tribunal’s order was quashed and the appeal was allowed.

• A code of procedure is designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides).
• Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions.
• A law of natural justice exists in the sense that a party must be heard in a court of law, or at any rate be afforded an opportunity to appear and defend himself, unless there is express provision to the contrary is beyond dispute.
• In Venkatasubbiah v. Lakshminarasimham, AIR 1925 Mad. 1274 the Madras HC rightly held that: One cardinal principle to be observed in trials by a court obviously is that a party has a right to appear and plead his cause on all occasions when that cause comes on for hearing. …..a party should not be deprived of that right and in fact the court has no option to refuse that right, unless the Code of Civil Procedure deprives him of it.
• When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the court may proceed in his absence. But, be it noted, the court is not directed to make an ex parte order. All that Rule 6(1)(a) does is to remove a bar and no more. It merely authorises the court to do that which it could not have done without this authority, namely, to proceed in the absence of one of the parties. The contrast in language between Rules 7 and 13 emphasises this.
• If a party does appear on “the day to which the hearing of the suit is adjourned”, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order 9 Rule 7 makes that clear hence, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in.
• Order 9 Rule 7 makes it clear that unless good cause is shown the defendant cannot be relegated to the position that he would have occupied if he had appeared. He cannot put in a written statement unless he is allowed to do so, and if the court considers a written statement should have been put in, the consequences entailed by Order 8 Rule 10 must be suffered.
• No hard and fast rule can be laid down. In some cases an order awarding costs to the plaintiff would meet the ends of justice: an adjournment can be granted or a written statement can be considered on the spot and issues framed. In other cases, the ends of justice may call for more drastic action.
• The appellant in this case did file the written statement and issues were framed and case was adjourned.
• The court has a discretion which it must exercise. Its hands are not tied by the so called ex parte order; and if it thinks they are tied by Order 9 Rule 7 then it is not exercising the discretion which the law says it should and, in a given case, inference may be called for.

Tribunal did not exercise its discretion because it considered that it had none and thought that until the ex parte order was set aside the defendant could not appear either personally or through counsel. We can find no justification for not at least allowing counsel to argue.