Harish Chandra Bajpai Vs. Triloki
Singh  INSC 84 (21 December 1956)
AIYYAR, T.L. VENKATARAMA BHAGWATI, NATWARLAL
SINHA, BHUVNESHWAR P.
CITATION: 1957 AIR 444 1957 SCR 370
Election Dispute-Petition grounded on corrupt
Practices Matter, if of wider import than' Particulars'-Trial', meaning
of-Procedure if includes Power's--Amendment, if' and when permissible-Power of
Election Tribunal-Person, when can be said to be employed for Purposes of election-Contract
of service and contract for services-Distinction- Representation of the People
Act (XLIII of 1951), ss. 81, 83, cls. (1), (2) & (3), 90(2), 92, 123
cls.(7) & (8)-Code of Civil -Procedure (Act V of 1908), 0. VI, r. 17.
The respondent filed a petition under s. 81
of the Representation of the People Act challenging the election of the
appellants to the Uttar Pradesh Legislative Assembly on the ground that they
had committed corrupt practices, the material allegations 371 being, (1) that
the appellants " could in the furtherance of their election enlist the
support of certain Government servants ", and (2) that the appellant No. 1
had employed two persons in excess of the prescribed number for his election
purposes. No list of particulars of corrupt practices under S. 83(2) Of the Act
was attached to the petition. Thereafter the respondent applied under s. 83(3)
Of the Act for an amendment of his petition by adding the names of certain
village Headmen (Mukhias) as having worked for the appellants and later on
become their polling agents.
The Election Tribunal allowed the amendment,
when a fresh petition on those allegations would have been time-barred, holding
that what were sought to be introduced by it were 'mere particulars of the charge
already made, and held that corrupt practices under ss. 123(8) and 123(7) had
been committed by the appellants. It accordingly declared the election void
under S. 100(2)(b) of the Act. It was contended on behalf of the appellants
that the Election Tribunal had no power either under s. 83(3) Of the Act or
under 0. VI, r. 17 Of the Code of Civil Procedure to allow the amendment in
question and its finding that the appellant No. I had employed the two persons
in addition to the prescribed number was misconceived in law.
Held, that although the term 'matter' in S.
83(3) was of wider import than 'particulars I to be stated under s. 83(2) and
would comprehend the grounds on which the election was sought to be set aside,
s. 83(3) was not an exhaustive provision on the power of amendment, its
application being limited to allegations of corrupt and illegal practices, and
that, therefore, in respect of other matters, the power of amendment under 0.
VI, r. 17, read with s. 90(2) of the Act was not excluded, and the maxim
expression exclusio alterius, would not apply.
The word 'trial' in s. 90(-2) of the Act is
used in a wide sense as including the entire proceedings before the Tribunal
from the time when the petition is transferred to it under s. 86 of the Act
till the pronouncement of its award.
There is no antithesis between 'procedure' in
s. 90(2) and powers' in s. 92 of the Act and Where an. application would lie to
the Tribunal under s. 90(2) it would have' the power to pass, the necessary
order on it.
The object of the legislature in enacting s.
92 of the Act was to place the powers of the Tribunal in respect of the matters
mentioned therein as distinguished from the other provisions of the Code, on a
Sitaram v. Yograjsing, A.I.R. (1953) Bom. 293,
Jagan Nath v. Jaswant Singh, (1954) S. C. R.
892, referred to.
Sheo Mahadeo Prasad v. Deva Sharan, A. I. R.
(1955 Patana Si, disapproved.
372 While the Election Tribunal had
undoubtedly the power under s. 83(3) of the Act to allow an amendment. in
respect of any particulars of illegal and corrupt practices, or to permit new
instances to be included, provided the grounds or charges were specifically
stated in the petition, its power to amend a petition under 0. VI, r. 17 Of the
Code of Civil Procedure could not be exercised so as to permit new grounds or
charges to be raised or the character of the petition to be so altered as to
make it in substance a new petition, when a fresh petition on those allegations
would be time- barred.
Beal v. Smith, (1869) L. R. 4 C. P. 145;
Greenock Election Case, (1869) L. R. 4 C. P. 150 (footnote); Carrickfergus
Case, (1869) 1 O'M. & H. 264; Dublin Case, (1869) 1 O'M. & H. 270 and
Maude v. Lowley, (I 874) L. R. 9 C. P. 165, referred to.
Chayan Das v. Amir Khan, [192O) L. R. 47 1.
A. 255, not followed.
Held further, that the amendment introduced a
new charge, altered the character of the petition and was beyond the powers of
the Tribunal and necessary evidence had not been adduced to support a finding
as to the additional employment and no corrupt practices either under cl. (7)
or: (8) Of S. I23 had, therefore, been committed.
In deciding the question as to whether any
person in addition to the number permitted by the Act had been employed by a
candidate for his election purposes, the well- established distinction between
a contract for services and a contract of service must be borne in mind and in
absence of any evidence to show that the contract with the person engaged was
one of service,-that he was to do the Work personally, with or without the
assistance: of others, lie could not be held to have been employed in law.
Collins v. Hertfordshire Central Council,
(1947) K. B. 598 and Dhayangadhara Chemical Works Ltd. v. State of Saurashtra,
(1957)S. C. R. 152, relied on.
CIVIL APPELLATE JURISDICTION Civil AppEal
No.333 of 1956.
Appeal by special leave against the judgment
and order dated March 23, 1955, of the Election Tribunal, Lucknow, in Election
Petition No. 320 of 1952.
C. K. Daphtary, Solicitor General of India,
R. C. Gupta, J. S. Trivedi and S. S. Shukla, for the appellant.
K. S.- Krishnaswamy Iyengar, S. P. Sinha and
R. Patnaik, for respondent No. 1.
373 1956. December 21. The Judgment of the
Court was delivered by VENKATARAMA AIYAR J.-This is an appeal by special leave
against the order of the Election Tribunal, Faizabad, declaring the election of
the appellants to the Legislative Assembly, Uttar Pradesh from the Lucknow
Central Constituency, void under s. 100(2)(b) of the Representation of the People
Act No. XLIII of 1951, hereinafter referred to as the Act. The Constituency is
a double-member Constituency. one of the seats being reserved for a member of
the Scheduled Castes. The -polling, took place on 31-1- 1952, and the two
appellants we-re declared elected, they having secured the largest number of
votes. On -June 10 1952, the respondent herein filed a petition under S. 81 of
the Act alleging that the appellants had committed a number of corrupt
practices, and prayed that the election might be declared wholly void.
The appellants filed written. statements
denying these allegations, and on the pleadings, issues were framed on January
17, 1953. Then followed quite 'a spate of proceedings, consisting of
applications for framing of fresh issues for better particulars and for
amendment of the election petition, to which a more detailed reference will
presently be made. As a result of these proceedings, it was not until
September, 1954, that the hearing of the petition began On March 23, 1955, the
Tribunal delivered its judgment and, by a majority, it set aside the election
on two grounds, (1) that the appellants had obtained the assistance of four
village officers, Mukhias, in furtherance of. their election prospects and had
thereby contravened s.123(8) of the Act; and (2) that the first appellant had
employed for payment in connection with high election two persons in addition
to' the number permitted by Rule 118 read with Schedule VI, 'namely, Ganga
Prasad and Viswanath Pande, and had there by infringed s. 123(7) of the Act.
Before us, the appellant's dispute the correctnes's of the conclusions on both
As regards the first point, the main
contention of the appellants that the charge that they had employed 374 four
Mukhias in furtherance of their, election prospects was not pleaded in the
petition as originally presented and that it came in only by an amendment dated
November 28, 1953, that. the Tribunal had no power to order that amendment, and
that, accordingly, the finding thereon should be disregarded. It is necessary
for a correct appreciation of the contentions on either side to state the facts
leading to this amendment.
The material allegations in the petition as
it was presented on June 10, 1952, are contained in para 7(c), and are as
"That the respondents Nos. 1 and 2 could
in furtherance of their election enlist the support of certain Government
servants. The District Magistrate, Lucknow, organised the opening of eye relief
camps, and these functions were utilised for the election propaganda of the
1 and 2. An eye relief camp was proposed to
be opened on December 16, 195 1, at Kakori by Sri C. B. Gupta, Minister, Civil
Supplies, U.P., one of the chief organisers of the election of the respondents
Nos. 1 and 2. An election meeting was advertised by the workers of the
respondents Nos. I and 2 to be' held within a short distance of the proposed
eye relief camp on the same day. This meeting was amongst others addressed by
Sri G. B. Pant, Chief Minister, U.P., Sri C. B. Gupta and the respondent No. 1.
It was also attended by the Patwaris and Qanungo of the, Kakori Circle
including the Tahsildar, Lucknow and the Duty Superintendent of Police,
"On December 27, 1951, an eye relief
camp was similarly.
organised and opened at Kakori. The ceremony
this time was performed by Mrs. Vijay Lakshmi Pandit 'and immediately
thereafter from the same platform and at the same place election speeches were
made and the audience exhorted to vote for Mrs. Vijay Lakahmi Pandit, a
candidate for the House of the People from that area and respondents Nos. 1 and
2. This meeting was attended -by, the District Magistrate. Lucknow, Sub
Divisional Magistrate, Lucknow, Deputy Superintendent of Police, Lucknow, 735
Tahsildar, Lucknow and Patwaris and Qanungo of Kakori Circle. The respondents
Nos. I and 2 by this device succeeded in creating an impression on the voters
that they had the support of the district officials.
There was no list of particulars attached to
the petition as provided in s. 83 (2) of the Act.
On December 15, 1952, the first appellant
filed his written statement, and therein he stated with reference to para 7 (c)
that it was "wrong and denied that the answering respondent in furtherance
of his election enlisted the support of any government servant." He also
stated that the allegations were not accompanied by a list, and were vague and
lacking in particulars and were liable to be struck off.
The written statement of the second appellant
filed on December 20, 1952, was also on the same lines as those of the first
appellant. Respondent No. 4, who was' a defeated candidate and supported the
respondent herein, filed a written statement on December 3, 1952, wherein he
alleged that the appellants had obtained services of village officers, such as
Lambardars and Sarpanches in furtherance of their election prospects.
Respondent No. 9 who was another defeated candidate also filed a written
statement on the same day, adopting the allegations in the statement of the
fourth respondent adding Mukhias to the list of village officials whose
assistance was procured by the Appellants.
On January 10, 1953, the respondent filed a
replication to the written statements of the appellants, wherein he stated as
follows "As stated in the petition, the denial of the respondents Nos. 1
and 2 is absolutely wrong, inasmuch as many Government servants worked for,
issued appeals and became polling agents for respondents I and 2. In these
meetings at Kakori many government servants took part and some worked for
furtherance of the election of respondents Nos. I and 2 and issued appeals to
the public to vote for respondents Nos. I and 2 and also became their polling
agents." On January 24, 1953, the appellants filed a written statement
objecting to the reception of the replication 49 376 on the ground that the
petitioner (respondent) had no right to file it and that it was a mere device
to add to the original petition. They also filed an application on the same
date for a preliminary hearing of certain issues relating to the contentions
raised by them in their written statements that the allegations in the petition
were vague and should be struck off for want of particulars, and the same was
posted for hearing on February 25, 1953. Arguments were heard on these issues
on that day and again on August 25, 1953, and the following days, and on
October 31, 1953, the Tribunal passed an order striking off some of the
allegations in the petition and calling upon the petitioner to give particulars
in respect of others. Dealing with para 7 (c) of the petition, the order stated
" Paragraph 7 (C) is not vague. It shall
remain as it is.
Corresponding paragraph of the replication
introduces some new matters. Therefore, the same shall be disregarded. The
Petitioner has not named ,the Government servants. He shall supply the names of
the officials including those of the Patwaris and Qanungoes." Meantime,
after the preliminary argument aforesaid had commenced and before it was
concluded, the respondent filed on February 27, 1953, an application for
amendment of his petition, the order on which is the main target of attack in
this appeal. It was presented under s. 83(3) of the Act, and prayed that the
petitioner " be allowed to amend the details of para 7(c) by adding the
words Village Headmen' with their names and the fact that they worked and
issued appeal and subsequently they became the -polling agents of respondents
Nos. 1 and 2. It mentioned for the first time the names of the Mukhias whose
assistance the appellants have been held to have obtained. This application was
opposed by -the appellants on the ground that the amendment did not fall within
s. 83(3),that, the matters sought to be introduced thereby were new charges,
and if admitted, they would alter the very character of the petition, and that
it should not be granted, as a fresh petition on those allegations would be
barred on that date. It should be mentioned 377 that oh January 22, 1953,
respondent No. 4 had filed an application to raise additional issues on his
averments that the appellants had obtained assistance from the village
officers. That application was also contested by the appellants. It would
appear that this application and the amendment petition were heard together. On
November 10, 1953, the Tribunal by a majority passed an order dismissing the
application of the fourth respondent for additional issues. 'On November 28,
1953, it allowed, again by a majority, the application of the respondent for
amendment observing that the matters sought to be introduced were merely
particular in respect of the charge set out in par& 7(c) of the petition,
"that the respondents I and 2 could in furtherance of their election
enlist the support of certain Government servants", and further that 0. VI,
r. 17 of the Civil Procedure Code was applicable to proceedings before the
The appellants attack the correctness of this
conclusion, and contend that the Tribunal had no power either under s. 83(3) or
under 0. VI, r. 171 to order the amendment in question.- They also contend that
even if the Tribunal had the power to order Amendment, the order in question is
not justified on the merits, and is erroneous. It is necessary to set out the
statutory provisions bearing on the question:
S.81(1). An election petition calling in
question any election may be presented on one or more grounds specified in
sub-ss. (1) and (2) of s. 100 and S. 101 to 'the Election Commission by any
candidate at such election or any elector in such form 'and within such time
but not earlier than the date of publication of the name or names of the
returned candidate or candidates at such I election under s. 67, as may
S.83(1). An election petition shall contain a
concise statement of the material facts on which the petitioner relies and
shall be signed by the petitioner and verified in the manner laid down in the
Code of 'Civil Procedure, 1908 (Act V of 1908), for the verification of
378 (2)The petition shall be accompanied by a
list signed and verified in like manner setting forth full particulars of any
corrupt or illegal practice which the petitioner alleges, including as full a
statement as possible as to the names of the parties alleged to have committed
such corrupt or illegal practice and the date and place of commission of each
(3) The Tribunal may, upon such terms as to
costs and otherwise as it may direct at any time, allow the particulars
included in the said list to be amended or order such further and better
particulars in regard to any matter referred to therein-to be furnished as may
in its opinion be necessary for the purpose of ensuring a fair and effectual
trial of the petition.
85.If the provisions of s. 81, s. 83 or s.
117 are not complied with, the Election Commission shall dismiss the petition.
90 (2). Subject to the provisions of this Act
and of any rules made there under, 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 (Act V of 1908), to the trial of suits.
90 (4). Notwithstanding anything' contained
in s. 85, the Tribunal may dismiss an election petition which does not comply
with the provisions of s. 81,a. 83 or s. 117.
92.The Tribunal shall have the powers, which
are vested in a court under the Code of Civil Procedure, 1908 (Act V of 1908),
when trying a suit in respect of, the following matters:
(a) discovery and inspection;
(b) enforcing the attendance of witnesses and
requiring the depositor their expenses;
(c) competing the production of documents;
(d) examining witnesses on oath;
(e) granting adjournments;
(f) reception of evidence taken on affidavit;
and (g) issuing commissions for the examination of witnesses, -and may summon
and examine suo motu any person whose evidence appears to it to be material;
and shall be deemed to be a civil court within the 379 meaning of ss. 480 and
482 of the Code of Criminal Procedure, 1898 (Act V of 1898)." Now, we
start with this that s. 83(3) grants a power to the Tribunal to amend
particulars in a list. What is its scope? Is it open to the Tribunal acting
under this provision to direct new instances of the corrupt practices to be
added to the list? And if it is, is that what it did in the present case? It is
contended by the learned Solicitor-General on behalf of the appellants that s.
83(3) does not authorize the inclusion of new instances of corrupt practices,
and that all that could be ordered under that provision was giving of fuller
particulars in respect of instances given in the petition. The argument in,
support of this contention might thus be stated: Section 81 requires that the
election petition should state the grounds on which it is founded. Section
83(1) enacts that it should contain -a concise statement of the material facts
on which the petitioner relies, and s. 83(2) provides that the petition should
be accompanied by a list containing full particulars of the corrupt or illegal
practices. When the three provisions are read together, it is clear that the
legislature has made a distinction between grounds in s.
81(1), facts ins. 83(1) and full particulars
in s. 83(2);
and in this context, facts in s. 83(1) must
mean instances of the charge on which the petition is grounded and the
particulars referred to in s. 83(3) can only mean particulars in respect of the
instances set out in the petition in accordance with s. 83(1). The consequence
is that an instance of a corrupt practice not given in the petition, cannot be
brought in under section 83(3). On this reasoning, it is contended that the
order of the Tribunal dated November 28, 1953, permitting the respondent to
allege that the appellants obtained the assistance of four Mukhias, whose names
were mentioned for the first time in the amendment petition, is outside the
ambit of the power conferred by s. 83(3).
We are unable to agree with this contention.
In I our opinion, s. 81(1) and s. 83, sub-ss. (1) and (2), when correctly
understood, support the contention of the respondent that the Tribunal has
authority to 380 allow an amendment even when that involves inclusion of new
instances, provided they relate to a charge contained: in the petition. Taking
first s. 81(1), it enacts that a petition may be presented calling an election
in question on one of the grounds specified in a. 100, sub-ss. (1) and (2) and
section 101. These sections enumerate a number of grounds on which the election
may be set aside, including the commission of the corrupt practices mentioned
in s. 123 of the Act, and quite clearly it is the different categories of
Objections mentioned in s. 100, sub-ss. (1) and (2), S. 101 and s. 123 that
constitute the grounds mentioned in s. 81(1). Then we come to s. 83(1). It says
that the petition should contain a concise statement 'of the material facts,
and that would include facts relating to the holding of the election, the
result thereof the grounds on which it is sought to be set aside, the right of
the petitioner to present the petition and the like. Then s. 83(2) enacts that
when there is an allegation of corrupt or illegal practice, particulars
thereof' should be given in a separate list. If the grounds on which an
election' is sought to be set aside are something other than the commission of
corrupt or illegal practices, as for example, when it is stated that the
nomination had been wrongly accepted or that the returned candidate was not
entitled to stand for election, then s. 83(2) has no application, and the
requirements of s. 83(1) are satisfied when the facts relating to those
objections are stated. The facts to be stated :under a. 83(1). are thus
different from the particulars -which have to be given -under a. 83(2). When#
therefore, an election is challenged on the ground that the candidate hag
committed the corrupt practices mentioned in section 123, instances constituting
particulars thereof will properly fall within s. 83(2) and not a. 83(1). The
result is that the power under a. 83(3) to allow further and better particulars
will include a power to allow fresh instances of the charges, which form the
grounds on which the election is Questioned.
We are fortified in this conclusion by
decisions of English Courts, on statutory provisions which are in 381 pari
materia with our enactment. Section 20 of the Parliamentary Elections Act, 1868
enacts that an election petition shall be in such form and state such matters
as may be prescribed, that is, by the rules. Rule 2 of the Parliamentary
Election Rules provides that the election petition " shall state the
holding and result of the election and shall briefly state the facts and
grounds relied on to sustain the prayer ". Rule 5 gives the form of an
election petition and the third paragraph therein is as follows.
" And your petitioners say (here state
the facts and grounds on which the petitioners rely)." The true scope of
these Provisions came up for consideration in Beal v. Smith (1). There, the
election petition merely stated that " the respondent by himself and
other. person.% on his behalf, was guilty if bribery, treating and undue influence."
The respondent took out an application for an order that the petition be taken
off the file on the ground that it merely stated the grounds but not the facts
constituting the particulars as required by Rule 2. In the alternative, it was
prayed that the petitioners should be directed to give particulars relating to
the several corrupt practices. In rejecting the former prayer, Bovill C. J.
" Now, with regard to the form of the
petition, it seems to me that it sufficiently follows the spirit and intention
of the rules; and no injustice can be done by its generality, because ample
provision is made by the rules to prevent the respondent being surprised or
deprived of an opportunity of a fair trial, by an order for such particulars as
the judge may deem reasonable. I think, therefore, it would be quite useless to
require anything further to be stated in the petition than appears here."
With reference to the alternative prayer, it was held that an order that the
particulars be furnished three days prior to the trial was a proper one to be
passed. A similar decision was given in the Greenoch Election Case, a report of
which is given in a footnote at page 150 of Beal v. Smith (1)(1869) L. R. 4 C-
382 These decisions establish that the requirement
as to statement of grounds and facts is satisfied when the charge on which the
election is sought to be set aside is set out in the petition, that the fare to
give therein particulars of corrupt and illegal practices on which it is
founded is not fatal to its maintainability, and that it is sufficient if the
particulars are ordered to be furnished within a reasonable time before the
commencement of the trial. On the same reasoning, the conclusion should follow
that s. 81 (1) and a. 83 (1) are complied with, when the grounds on which the
election is sought to be set aside, are stated in the petition, those grounds
being, as already stated, the matters mentioned in s. 100, sub-ss. (1) and (2),
s. 101 and s. 123, which is attracted by s. 100 (2) (b), and that the
particulars in respect of those grounds, when they are charges of corrupt or
illegal practices, fall within s. 83 (2). There is, it should be observed,
nothing in the Election law of England corresponding to s. 83 (2), the question
of particulars being left there to be dealt with under the Rules applicable to
the trial of causes. The consequence is that while under the English practice,
the petitioners are not obliged to state particulars of corrupt practices in
their petition, under s. 83 (2) a statement of those particulars must be made
in the petition in a separate list annexed thereto. But this difference is more
a matter of form than of substance, as s. 83 (3) provides for particulars being
called for and furnished in the course of the proceedings, and does not affect
the conclusion as to the power of the Tribunal to allow new instances to be
Section 83 (3) provides, it should also be
noted, for the list of particulars being amended or enlarged. It is not,
however, to be inferred from this that when the particulars are mentioned in
the body of the petition, they could not be amended. The reference to the list,
in a. 83 (3) must be taken along with the provision in s. 83 (2) that
particulars are to be set out in a list to be attached to the petition.
The substance of the matter, therefore, is
that under s. 83 (3) particulars can be amended and supplemented, and the
reason of it requires that the power could be exercised even when 383 the
particulars are contained in the body of the petition.
And even when there is no list filed, as in
the present case, it would be competent to the Tribunal to allow an amendment
giving for the first time instances of corrupt practice, provided such corrupt
practice has been made a ground of attack in the petition.
One other argument urged by the appellants
against this conclusion must now be considered. It is based on the language of
s. 83(3). That section, it is urged, allows firstly by an amendment of the
particulars. included in the list, and secondly " further and better
particulars in regard to any matters referred to therein" and that,
according to the appellants, means the particulars already given in the list.
it is accordingly contended that the power to allow further and better particulars
can be exercised only in respect of particulars already furnished, whether they
be contained in the body of the petition or in the list, and that, therefore,
an order permitting inclusion of new instances is outside the purview of s.
83(3). The assumption underlying this contention is that the word
"matter" in s. 83 (3) means the same thing as
We see no reason why we should put this
narrow construction on the word "matter". That word is, in our
opinion, of wider import than particulars, and would also comprehend the
grounds on which the election is sought to be set aside. If the construction
contended for by the appellant is correct, the relevant portion of s. 83 (3)
will read as " further and better particulars in regard to any particulars
referred to therein", and that does not appear to us to be either a
natural or a reasonable reading of the enactment. Having regard to the scheme
of the Act stated above, we think that s. 83 (3) is intended to clothe the
Tribunal with a general power to allow not merely an amendment of particulars
already given but also inclusion of fresh particulars, pleading new instances,
subject to the condition that they are in respect of a ground set out in the
petition. This is in accordance with the law and practice obtaining in the
Election Courts in England. Thus,in the Carrickfergus Case (1), in ordering (1)
 1 O'M. & H. 264, 265.
50 384 an application for amending
particulars, so as to include matters which had only then come to the knowledge
of the petitioner, O'Brien, J., observed :
" In some respects the Petitioner came
down here manifestly ignorant of the exact grounds upon which several of the
charges of the Petition were founded.
" I therefore thought it reasonable upon
a proper case being made out to allow the Petitioner to amend his bill of
particulars by adding such facts as only -recently came to his knowledge. I
consider that in the trial of these petitions, where the purity of the election
is questioned, the most searching enquiry should be instituted, and it is the
duty of the Judge to afford every facility in his power to that
investigation." In the Dublin Case (1), the order was one directing a
of particulars to be amended, the Court
" I shall allow the utmost 'latitude to
amend, unless it is a case in which I see that the party kept back information
at the time the list was furnished." In this view, the order of amendment
in question is not open to attack on the ground that it has permitted new
instances to be raised. What has to be seen is whether those instances are, in
fact, particulars in respect of a ground put forward in the petition, or
whether they are, in substance, new grounds of attack.
Before dealing with this question, it will be
convenient to consider the alternative contention raised for the respondent
-that even if the Tribunal had no power to order the amendment in question
under s. 83 (3) of the Act, it was competent to do so under o. VI, r. 17, Civil
Procedure Code, and that this Court should not in special appeal interfere with
the discretion exercised by it in making the order. That raises the question
which has been very much debated both in the Election Tribunals and in the High
Courts of the States as to whether 0. VI, r. 17 applies to proceedings before Election
Tribunals. Mr. K. S. Krish- naswami Ayyangar, learned counsel for the
respondent, contends that it does, by force of s. 90 (2) of the Act, under
which the Tribunal is to try a petition "as (1)  1 O'M. & H.
385 nearly as may be in accordance with the
procedure applicable under the Code of Civil Procedure, 1908, to the trial of
suits." Now, in A. G. v. Sillem (1) it was stated by Lord Westbury that
the word "practice" and it means, as observed in Poyser V. Mixors (2)
the same - thing as procedure- denotes " the rules that make or guide the
Curcus cirise, and regulate the proceedings in a cause within the walls or
limits of the Court itself ". And these proceedings include all ,steps,
which might be taken in the prosecution or defence thereof, including an
application for amendment.
In Maude v. Lowley (3), the point arose for
decision whether the power conferred on the Election Court by s. 21(5) of the
Corrupt Practices (Municipal Elections) Act, 1872, to try the petition, subject
to the provisions of the Act, as if it were a cause within its jurisdiction,
carried with it a power to order amendment of the petition. It was held that it
did. That precisely is the point here.
But it is contended for the appellants that
0. VI, r. 17 cannot be held to apply to proceedings before the Tribunal by
reason of s. 90 (2), because (1) under that section, it is only the trial of
the election petition that has to be in accordance with the provisions of the
Civil Procedure Code, and the question of amendment of the petition relates to
a stage anterior to the trial;(2) s. 92 enumerates certain matters in respect
of which the Tribunal is to have the powers of a court under the Civil
Procedure Code, and as amendment of pleadings is not one of them, 0. VI, r. 17
must be held to have been excluded from its jurisdiction; (3) the Act makes a
distinction between procedure and powers, s. 90 (2) extends the provisions of
the Civil Procedure Code to proceedings before Tribunals only in respect of
procedure, and power to order amendment under 0. VI, r. 17 is not within the
extension; and (4) s. 90(2) is, in any event, subject to the provisions of the
Act and the rules made there under, and the power of amendment under s. 83 (3)
being limited to particulars, the (1)  10 H.L.C. 704,723; II E.R. 1200,
(2) 7 Q.B.D. 329,333.
(3) (1874) L.R. 9 CP. 165. 172.
386 general power of amendment under 0. VI,
r. 17 must be held to have been excluded. The correctness of these contentions
must now be examined.
(1)Taking the first contention, the point for
decision is as to what the word 'trial' in s. 90 (2) means. According to the
appellants, it must be understood in a limited sense, as meaning the final
hearing of the petition, consisting of examination of witnesses, filing
documents and addressing arguments. According to the respondent, it connotes
the entire proceedings before the Tribunal from the time that the petition is
transferred to it under s. 86 of the Act until the pronouncement of the award.
While the word' trial' standing by itself is susceptible of both the narrow and
the wider senses indicated above, the question is, what meaning attaches to it
in s. 90 (2), and to decide that we must have regard to the context and the
setting of the enactment. Now, the provisions of the Act leave us in no doubt
as to in what sense the word is used in s. 90(2). It occurs in Chapter III
which is headed " Trial of election petitions ". Section 86 (4)
provides that if during the course of the trial any member of a Tribunal is unable
to perform his functions, the Election Commission is to appoint another member,
and thereupon the trial is to be continued.
This provision must apply to retirement or
relinquishment by a member, even before the hearing commences, and the
expression " during the course of the trial " must therefore include
the stages prior to the hearing. Section 88 again provides that the trial is to
be held at such places as the Election Commission may appoint. The trial here
must necessarily include the matters preliminary to the hearing such as the
settlement of issues, issuing directions and the like. After the petition is
transferred to the Election Tribunal under s. 86,, various steps have to be
taken before the stage can be set for hearing it. The respondent has to file
his written statement ; issues have to be settled. If 'trial' for the purpose
of s. 90(2) is to be interpreted as meaning only the hearing, then what is the
provision of law under which the Tribunal is to call for written statements and
settle issues ? Section 90(4) enacts 387 that when an election petition does
not comply with the provisions of s. 81, s. 83 or s. 117, the Tribunal may
dismiss it. But if it does not dismiss it, it must necessarily have the powers
to order rectification of the defecte arising by reason of non-compliance with
the requirements of s. 81, s. 83 or section 117. That not being a power
expressly conferred on it under s. 92 can only be sought under 'Is. 90(2), and
resort to that section can be had only if trial is understood as including
proceedings prior to hearing. Section 92 enacts that the Tribunal shall have
powers in respect of various matters which are vested in a court under the
Civil Procedure Code when trying a suit, and among the matters set out therein
are discovery and inspection, enforcing attendance of 'witnesses and compelling
the production of documents, which clearly do not form part of the hearing but
precede it. In our opinion, the provisions of Chapter III read as a whole,
clearly show that 'trial' is used as meaning the entire proceedings before the
Tribunal from the time when the petition is transferred to it under s. 86 until
the pronouncement of the award.
(2)The second contention urged on behalf of
the appellants is that if the provisions of the Civil Procedure Code are held
to be applicable in their entirety to the trial of election petitions, then
there was no need to provide under s. 92 that the Tribunal was to have the
powers of courts under the Code of Civil Procedure in respect of the matters mentioned
therein, as those powers would pass to it under s. 90(2). But this argument
overlooks that the scope of s. 90 (2) is in a material particular different
from that of s. 92. While under s. 90(2) the provisions of the Civil Procedure
Code are applicable only subject to the provisions of the Act and the rules
made there under, there is no such limitation as regards the powers conferred
by s. 92. It was obviously the intention of the legislature to put the powers
of the Tribunal in respect of the matters mentioned in s. 92 as distinguished
from the other provisions of the Code on a higher pedestal, and as observed in
Sitaram v. Yoqrajising (1), they are (1) A.I.R.  BOM. 293.
388 the irreducible minimum which the
Tribunal is to possess.
(3) It is then argued that s. 92 confers
powers on the Tribunal in respect of certain matters, while s. 90(2) applies
the Civil Procedure Code in respect of matters relating to procedure, that
there is a distinction between power and procedure, and that the granting of
amendment being a power and not a matter of procedure, it can be claimed only
under s. 92 and not under a. 90(2). We do not see any antithesis between
procedure' in s. 90(2) and 'powers' under s. 92. When the respondent applied to
the Tribunal for amendment, he took a procedural step, and that, he was clearly
entitled to do under s. 90(2). The question of power arises only with reference
to the order to be passed on the petition by the Tribunal. Is it to be held
that the presentation of a petition is competent, but the passing of any order
thereon is not? We are of opinion that there is no substance in this contention
(4) The last contention is based on the
provision in s. 90(2) that the procedure prescribed in the Code of Civil
Procedure is to apply subject to the provisions of the Act and the Rules. It is
argued that s. 83(3) is a special provision relating to amendments, -and that
it must be construed as excluding 0. VI, r. 17. The result, according to the
appellants, is that if an amendment could not be ordered under s. 83(3), it
could not be ordered under 0. VI, r. 17.
This contention appears to us to be wholly
untenable. The true scope of the limitation enacted in s. 90(2) on the
application of the procedure under the Civil Procedure Code is that when the
same subject-matter is covered both by a provision of the Act or the rules and
also of the Civil Procedure Code, and there is a conflict between them, the
former is to prevail over the latter. This limitation cannot operate, when the
subject-matter of the two provisions is not the same. Section 83(3) relates
only to amendment of particulars, and when the amendment sought is one of
particulars, that section will apply to the exclusion of any rule of the Civil
Procedure Code which might conflict with it, though it does not appear that
there is any such rule. But where the amendment 389 relates not to particulars
but to other matters, that is a field not occupied by s. 83(3), and 0. VI, r.
17 will apply. The fallacy in the argument of the appellants lies in the
assumption that s. 83(3) is a comprehensive enactment on the whole subject of
amendment, which it clearly is not.
In this view, there is no scope for the
application of the maxim, expressio unius exclusio alterius, on which the
appellants rely. It should be mentioned that the provision in s. 83(2) for
stating the particulars separately in a list attached to the petition is one
peculiar to the Indian Statute, and the legislature might have considered it
desirable ex abundanti cautela to provide for a power of amendment in respect
thereto. To such a situation, the maxim quoted above has no application. In
Maxwell on Interpretation of Statutes, Tenth Edition, pages 316-317, the
position is thus stated :
" Provisions sometimes found in statutes,
enacting imperfectly or for particular cases only that which was already and
more widely the law, have occasionally furnished ground for the contention that
an intention to alter the general law was to be inferred from the partial or
limited enactment, resting on the maxim expressio unius, exclusio alterius. But
that maxim is inapplicable in such cases.
The only inference which a court can draw
from such superfluous provisions (which generally find a place in Acts to meet
unfounded objections and idle doubts), is that the legislature was either
ignorant or unmindful of the real state of the law, or that it acted under the
influence of excessive caution." Vide also Halsbury's Laws of England,
Hailsham's Edition, Volume 31, page 506, para 651. We are accordingly of
opinion that the application of 0. VI, r. 17, Civil Procdure Code to the
-proceedings before the Tribunal is not excluded by a. 83(3).
Turning next to the authorities, the decision
of this Court in Jagan Nath v. Jaswant Singh (1) goes far to conclude the
question in favour of the respondent. In that case, a petition to set aside an
election was filed without impleading one of the candidates, Baijnath,
(1) S.C.R. 892, 390 who had been nominated but had withdrawn -from the
That was against s. 82 of the Act. The
respondent then applied for an order dismissing the petition on the ground that
it could not go on in the absence of Baijnath. The Tribunal held on this
petition that the non-joinder of Baijnath was not fatal to the maintainability
of the petition, and passed an order directing him to be impleaded.
This order was challenged on the ground that
there was no power in the Tribunal to order a new party to be impleaded.
But this Court repelled this contention, and
held on a review of the provisions of the Act including s. 90(2) that the
Tribunal had the power to pass the order in question under 0. 1, rr. 9, 10 and
13. This is direct authority for the position that trial for purposes of s.
90(2) includes the stages prior to the hearing of the petition, and the word I
procedure' therein includes power to pass orders in respect of matters not
enumerated in s. 92. In Sitaram v. Yograjsingh (1) it was held that 'Procedure'
in s. 90(2) and I powers' in s. 92 were interchangeable terms, that the
procedure applicable under s. 90(2) was wider than what would be applicable to
the hearing of a. suit, and that the Tribunal had power in a proper case to
order amendment of a petition. In Sheo Mahadeo Prasad v. Deva Sharan(2), it was
held that the application of 0. VI, r. 17 to proceedings before the Tribunal
was excluded by section 83(3) of the Act. For the reasons already given, we are
unable to agree with this view. We are of opinion that the law was correctly
laid down in Sitaram v. Yograjsingh(1), and in agreement with it, we hold that
the Tribunal has power in appropriate cases to direct amendment of the petition
under, O. VI, r. 17.
It is next contended for the appellants that
even if s.83(3) does not exclude the application of 0. VI, r. 17 to the
proceedings before the Tribunal, the exercise of the power under that rule
must, nevertheless, be subject to the conditions prescribed by a. 81 for
presentation of an election petition, that one of those conditions was that it
should be presented within the (1) A.I.R.  Bom. 293.
(2) A.I.R.  Patna 81.
391 time allowed there for, and that
accordingly no amendment should be allowed which would have the effect of
defeating that provision. The decisions in Maude v. Lowley(1) and Birkbeck and
others v. Bullard (1) are relied on in support of this contention. In Maude v.
Lowley (1), the facts were that an election petition was filed alleging that
the successful candidate had employed as paid canvassers residents of the ward,
and that the election was, in consequence, void. Then an application was filed
for amending the petition by alleging that residents of other wards were also
similarly employed, and that was ordered by Baron Pollock. The correctness of
this order was questioned on the ground that on the date of the application for
amendment a fresh petition on those allegations would be barred, and that
therefore the Court had no jurisdiction to pass the order which it did. In
upholding this contention, Lord Coleridge C. J. observed that section 21(5)
gave power to the Court to amend the petition, that that power was subject to
the provisions of the Act, that one of those provisions was s. 13(2), which
prescribed- the period within which an election petition could be filed, that
the power of amendment could be exercised only subject to this provision, and
that accordingly an amendment which raised a new charge should be rejected if a
fresh petition on that charge would be barred on that date. He also observed
that the matter was not one of discretion but of jurisdiction. This was
followed in Clark v. Wallond (3). In Birbeck and others v.
Bullard (2) the application was to amend the
petition by adding a new charge, and it was held tha that could not be done
after the expiry -of the period of limitation fixed in the Act for filing an
election petition, and the decision was put on the ground that the power to
grant amendment was " subject to the provisions of the Act." On these
authorities, it is contended for the appellants that even if the Tribunal is
held to possess a power to order amendments generally under 0. VI, (1) 
L.R. 9 C.P. 165. (3) (1883) 52 L.J.Q.B.
(2) (1885-86) 2 Times Law Reports 273.
392 r. 17, an order under that Rule cannot be
made when a new ground or charge is raised, if the application is made beyond
the period of limitation prescribed for filing election petitions. The Tribunal
sought to get over this difficulty by relying on the principle well established
with reference to amendments under 0. VI, r. 17 that the fact that a suit on
the claim sought to be raised would be barred on the date of the application
would be a material element in deciding whether it should be allowed or not but
would not affect the jurisdiction of the court to grant it in exceptional
circumstances as laid down in Charan Das v. Amir Khan (1). But this is to
ignore the restriction imposed by s. 90(2) that the procedure of the Court
under the Code of Civil Procedure in which 0. VI, r. 17 is comprised, is to
apply subject to the provisions of the Act, and the rules, and there being no
power conferred on the Tribunal to extend the period of limitation prescribed,
an order of amendment permitting a new ground to be raised beyond the time
limited by s. 81 and r. 119 must contravene those provisions and is, in
consequence, beyond the ambit of authority conferred by s. 90(2). We are
accordingly of opinion that the contention of the appellants on this point is
well-founded, and must be accepted as correct.
The result of the foregoing discussion may
thus be summed up:
(1)Under s. 83(3) the Tribunal has power to
allow particulars in respect of illegal or corrupt practices to be amended,
provided the petition itself specifies the grounds or charges, and this power
extends to permitting new instances to be given.
(2)The Tribunal has power under 0. VI, r. 17
to order amendment of a petition, but that power cannot be exercised so as to
permit new grounds or charges to be raised or to so alter its character as to
make it in substance a new petition, if a fresh petition on those allegations
will then be barred.
We have now to decide whether on the
principles stated above, the order of amendment dated November 28, 1953, was
right and within the competence of (1) L.R. 47 I.A. 255.
393 the Tribunal. To decide that, we must
examine whether what the respondent sought to raise by way of amendment was
only particulars in respect of a charge laid in the petition, or whether it was
a new charge. The paragraph in the petition relevant to the present question is
7(c), and that has been already set out in extenso. Leaving out the allegations
relating to the meetings held at Kakori, what remain of it is only the
allegation that " respondents I and 2 could in furtherance of their
election enlist the support of Government servants." The word " could
" can only mean that the respondents were in a position to enlist the
support of Government servants. It does not amount to an averment that, in
fact, they so enlisted their support. It is argued for the respondent that the
allegation in para 7(c) really -means that the appellants had, in fact,
enlisted the support of Government servants, and that that amounts to a charge
under s. 123(8) of the Act of procuring the assistance of Government- servants
for furtherance of their election prospects. Why then does the petition not
state it in plain terms ? The difference between "could" and
"did" is too elementary to be mistaken. The respondent has in other
paragraphs relating to other charges clearly and categorically asserted what
the appellants did and what their agents did. And why was a different
phraseology adopted in para 7(c) 9 It is to be noted that apart from this
allegation, the rest of the paragraph is taken up with details of the two
meetings at Kakori, and it winds up with the following allegation:
" The respondents 1 and 2 by this device
succeeded in creating an impression on the voters that they had the support of
the District officials." This suggests that the charge which the
respondent sought to level against the appellants was that they moved in public
so closely with high dignitaries as to create in the minds of the voters the
impression that they were favoured by them. We are unable to read into the
allegations in para 7(c) as originally framed any clear and categorical
statement of a charge under 394 s. 123(8), or indeed under any of the
provisions of the Election law.
The respondent does not dispute that the
language in which the allegation in para 7(c) is couched does not import that
any corrupt practice had, in fact, been committed, but he contends that this
defect is merely one of expression, and that the appellants had understood it
correctly as meaning commission of corrupt practices by them, which is what the
respondent meant to assert. It is no doubt true that plead- ings should not be
too strictly construed, and that regard should be had to the substance of the
matter and not the form. Even so, what, in substance, is the charge which could
be gathered from a general and vague allegation that the appellants " could
" enlist the support of Government officials ? It should not be forgotten
that charges of corrupt practices are quasi-criminal in character, and that the
allegations relating thereto must be sufficiently clear and precise to bring
home the charges to the candidates; and judged by that standard, the allegation
in para 7(c) is thoroughly worthless. The contention of the respondent that the
appellants understood the allegation as meaning that they had committed corrupt
practices, is not borne out by the record. In the application which the
appellants filed on January 24, 1953, for trial of certain questions as
preliminary issues, they stated in para 7 as follows:
"Para 7(c). The allegation contained in
this para is vague and indefinite. It nowhere alleges that the respondent nos.
1 and 2 obtained or procured or abetted, or
attempted to obtain or procure the assistance of any government servants.
No list given." And again, in the
objection filed by the appellants to the application of the respondent for amendment,
they stated that it was doubtful whether even the original allegation in para
7(c) amounted to a major corrupt practice within s.
123(8) of the Act. The Tribunal does not deal
with this aspect of the matter and simply assumes that the petition as
presented did raise a charge under s. 123(8). We are of opinion 395 that this
assumption is erroneous and that its finding is vitiated thereby.
But even if we are to read " could
" in para 7(c) as meaning " did ", it is difficult to extract
out of it a charge under s. 123(8). The allegation is not clear whether the
Government servants were asked by the appellants to support their candidature,
or whether they were asked to assist them in furtherance of their election
prospects, and there is no allegation at all that the Government servants did,
in fact, assist the appellants in the election. On these allegations, it is
difficult to hold that the petition in fact raised a charge under s. 123(8). It
is a long jump from the petition as originally laid to the present amendment,
wherein for the first time it is asserted that certain Mukhias no Mukhias are
mentioned in the petition assisted the appellants in furtherance of their
election prospects, and that thereby the corrupt practice mentioned in s.
123(8) had been committed. The new matters introduced by the amendment so
radically alter the character of the petition as originally framed as to make
it practically a new petition, and it was not within the power of the Tribunal
to allow an amendment of that kind.
Counsel for the appellants also contended
that even if the Tribunal had the power under 0. VI, r. 17 to permit an
amendment raising a new charge, it did not under the circumstances exercise a
sound and judicial discretion in permitting the amendment in question. There is
considerable force in this contention. The election petition was filed on June
10, 1952, which was the last date allowed under a. 81 and r. 119. It contained
in para 7(c) only the bare bones of a charge under a. 123(8), assuming that it
could be spelt out of it. Nothing further is heard of this charge, until we
come to December, 1952, when respondents 4 and 9 who sailed with the
petitioner, -filed statements alleging that the appellants had obtained the
assistance from Government servants including Mukhias in furtherance of their
election prospects. On January 16, 1953, the respondent herein filed a
replication in which he sought to weave the above 396 allegations into the
fabric of his petition, but the result was a mere patchwork. It should be
mentioned that there is no provision of law under which a replication could be
filed as a matter of right, nor was there an order of the Tribunal allowing it.
On February 25, 1953, the appellants opened their arguments at the hearing of
the preliminary issue, and thereafter, with a view to remedy the defects which
must have been then pointed out, the respondent filed his present application
for amendment. Even that was defective, and had to be again amended. And what
is remarkable about this application is that no at tempt was made to explain
why it was made after such long delay and why the new allegations were not made
in the original petition. The position taken up by the respondents was that the
amendment only made express what was implicit in para 7(c). The Tribunal was of
opinion that notwithstanding all these features, the amendment should be
allowed as it was in the interests of the public that purity of elections
should be maintained.
But then, public interests equally demand
that election disputes should be determined with despatch. That is the reason
why a special jurisdiction is created and Tribunals are constituted for the
trial of election petitions. Vide the observations of Lord Simonds L.C. in
Senanayake v. Navaratne (1).
In the present case, having regard to the
circumstances stated above, the order of amendment would be open to grave
criticism even if it had been made in an ordinary litigation, and in an
election matter, it is indefensible.
The strongest point in favour of the respondent
is that we should not in special appeal interfere with what is a matter of
discretion with the Tribunal. It is not necessary to pursue this matter
further, as we are of opinion that the order of amendment dated November 28,
1953, is, for the reasons already stated. beyond the powers of the Tribunal,
and therefore must be set aside and the finding based on that amendment that
the appellants had committed the corrupt practice mentioned in s. 123(8) of the
Act must be reversed.
In this view, it becomes unnecessary (1)
 A.C. 640.
397 to deal with the further contention of
the appellants that there is no legal evidence in support of the finding of the
Tribunal that they had obtained the assistance of four Mukhias in furtherance
of their election prospects.
Then there is the question whether the first
-appellant has, as held by the Tribunal, again by a majority, contravened s.
123(7) of the Act. The facts found are that
one Ganga Prasad was engaged by the first appellant to prepare three carbon
copies of the Electoral Rolls and was paid Rs. 550/- at the rate of Re. 0-8-0
per hundred voters and likwise, one Viswanath Pande was engaged to enter the
names of the voters in printed cards and was paid Rs. 275/- at Re. 0-4-0 per
hundred cards. Both these are undoubtedly expenses incurred in connection with
the election and have, in fact, been shown by the first appellant in the return
of election expenses against column K. Now the contention of the respondent
which has found favour with the Tribunal is that both Ganga Prasad and
Viswanath Pande must be held to have been employed for payment in connection
with the election, and as with their addition, the, number of persons allowed
to be employed under Schedule VI has been exceeded, the corrupt practice mentioned
in s. 123(7) of the Act has been committed. It is contended by the
Solicitor-General that on the facts found Ganga Prasad and Viswanath Pande
cannot be said to have been employed by the first appellant, and that the
conclusion of the Tribunal to the contrary is based on a misconception of law.
Now' whether a person is an employee or not is a question of fact, and if there
had been any evidence in support of it, this Court would not interfere with the
finding in special appeal. But the respondent, on whom the burden lies of
establishing contravention of r. 118, has adduced no evidence whatsoever, and
all that is on record is what the first appellant deposed while he was in the
box. He merely stated that Ganga Prasad and Viswanath Pande were asked to do
the work on, contract basis. That is wholly insufficient to establish that
there was a contract of employment of those persons by him. It was argued for
the respondent that there could be a contract of employment in 398 respect of
piece-work as of time-work, and that the evidence of the first appellant was
material on which the Tribunal could come to the conclusion to which it did. It
may be conceded that a contract of employment may be in respect of either
piece-work or time-work; but it does not follow from the fact that the contract
is for piece-work that it must be a contract of employment. There is in law a
well- established distinction between a contract for services, and a contract
of service, and it was thus stated in Collins v. Hertfordshire Central Council
In the one case the master can order or
require what is to be done while in the other case he can not only order or
require what is to be done but how it shall be done." This Court had
occasion to go into this question somewhat fully in Dharangadhara Chemical
Works Ltd. v. State of Saurashtra (2) , and it was there held that the real
test for deciding whether the contract was one of employment was to find out
whether the agreement was for the personal labour of the person engaged, and
that if that was so, the contract was one of employment, whether the work was
time- work or piece-work or whether the employee did the whole of the work
himself or whether he obtained the assistance of other persons also for the
work. Therefore, before it could be held that Ganga Prasad and Viswanath Pande
were employed by the first appellant, it must be shown that the contract with
them was that they should personally do the work, with or without the
assistance of other persons. But such evidence is totally lacking, and the
finding, therefore, that they had been employed by the first appellant must be
set aside as based on no evidence.
Neither of the grounds on which the election
of the appellants has been declared void, could be supported. We must
accordingly allow the appeal, set aside the order of the Tribunal and dismiss
the election petition filed by the respondent, with costs of the appellants
Election petition dismissed.
(1)  K.B. 598, 615. (2)  S.C.R.