Shri Balwan Singh Vs. Shri Lakshmi
Narain & Ors  INSC 29 (23 February 1960)
SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER
CITATION: 1960 AIR 770 1960 SCR (3) 91
CITATOR INFO :
RF 1972 SC1302 (24) R 1975 SC 290 (32) R 1975
SC 667 (9) RF 1976 SC1187 (7,32) R 1978 SC 351 (4) R 1984 SC1516 (6) D 1987
SC1577 (26,27) RF 1991 SC1557 (18)
Election Petition-Corrupt Practice--Hiring
vehicle for conveyance of electors-Pleadings-Particulars of contract of hiring,
if necessary-Representation of the People Act, 1951, (43 of 1951), ss.
83(1)(b), 90(3) and 123(5).
The first respondent filed an election
petition for an order that the election of the appellant be declared void on
the ground that the appellant had committed the corrupt practice under s.
123(5) of the Representation of the People Act, 1951, in that he had hired a
tractor for conveying women electors from their houses to places of polling and
By an amendment application the first
respondent gave particulars about the conveying of voters, but he did not give
any particulars regarding the contract of hiring nor did the appellant ask for
such particulars. At the trial the first respondent led evidence in respect of
the contract of hiring and the appellant raised no objection to the relevance
of that evidence. The Election Tribunal dismissed the petition but on appeal
the High Court held the charge proved and declared the election of the
appellant void. The appellant contended that the election petition ought to
have been dismissed because particulars of the contract of hiring which was an
essential ingredient of the corrupt practice had not been given.
Held, (per Sinha Lc. J., jafer Imam, K. N.
Wanchoo and J.
C. Shah, jj), that the corrupt practice under
s~. I23~(5) was the conveying of electors to and from the polling station and
not the contract of hiring. If the election petition gave particulars about the
use of a vehicle for conveying of electors to' and from the polling station,
the failure to give particulars of the contract of hiring, as distinguished
from the fact of hiring, did not render the petition defective. An election
petition was not liable to be 92 dismissed in limine merely because full
particulars of a corrupt practice alleged were not set out. If an objection was
taken and the Tribunal was of the view that full particulars had not been set
out the petitioner had to be given an opportunity to amend or amplify the
It was only in the event of noncompliance
with the order to supply the particulars that the charge which remained vague
could be struck out. Besides, in the present case no material prejudice was
caused to the appellant by the absence of the particulars of the contract of
Sarkar J.-Under s. 123(5) the hiring of the
vehicle for conveyance of electors was an essential element of the corrupt
practice and it was necessary to give particulars of the contract of hiring.
But the failure to give such particulars did not render the petition liable to
be dismissed. Section 83 of the Act did not provide for the dismissal of the
petition for failure to furnish particulars nor did s. 90(3) empower the
Tribunal to dismiss a petition for non-compliance with the provisions of s. 83.
The appellant was entitled to apply for particulars but he did not do so; he
could not at a later stage complain about the absence of the particulars.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 411 of 1959.
Appeal by special leave from the judgment and
order dated 9th January 1959 of the Allahabad High Court in First Appeal No.
448/A of 1958.
L. K. Jha, P. Rama Reddy R. K. Garg and R.
Patnaik for the appellant.
G. S. Pathak, G. N. Dikshit, Udai Pratap
Singh, J. P. Goval, M. S. Gupta and P. C. Aggarwala, for respondent No. 1.
1960. February, 23. The Judgment of Sinha, C.
J. Imam, Wanchoo and Shah, JJ. was delivered by Shah, J. Sarkar, J.
delivered a separate Judgment.
SHAH J.-Three candidates, Balwan Singh
(hereinafter referred to as the appellant), Ram Dulari and Gaya Prasad,
contested the election to the U. P. Legislative Assembly from the Akbarpur
Rural Assembly Constituency No. 6, at the last general elections held in 1957.
'The polling of votes took place on February 28, 1957, and the result of the election
was declared on March 2, 1957. The appellant secured the highest number of
votes and was declared duly elected. A voter named Lakshmi Narain-who will
hereinafter be referred to as the first respondent-submitted an application to
the Election Commission of India to declare the election of the appellant
Balwan Singh 93 void on the ground inter alia that the appellant " and/ or
his election agent and/or other persons with his consent, had committed corrupt
practices and the result of the election was materially affected by such
corrupt practices committed in his interest. " In Cl. (f) of para 9 of the
petition, which is material for this appeal, it was averred by the first
respondent, that in villages set out in annexure D, the appellant, his agents
and workers with the consent of the appellant, hired and procured bullock carts
and tractors for conveying women electors to and from the polling station. In
Sch. D, was set out a list of 30 villages. This election petition was referred
for trial to the District Judge, Kanpur, who was constituted the Election
Tribunal for trying the petition. The appellant by his written statement
contended that the averments made in Cl. (f) of para. 9 were untrue; that
neither he nor his agents or workers had ever hired or procured bullock carts
or trucks to convey women voters from the villages set out in Annexure D or any
other village to the polling station. He also submitted that the first
respondent had not disclosed the names of the voters nor the particulars of the
conveyances, and that the latter could not in view of the defective pleading be
permitted to challenge the election of the appellant on that charge. On July
15, 1957, the first respondent applied for leave to amplify the particulars set
out in the various clauses of para. 9, including the particulars set out in Cl.
(f) and prayed for leave to amplify the recitals in that clause by
D-1 in the petition. In Ann. D-1, the first
respondent set out the nature of the vehicles used, the names of the owners of
the vehicles, the names of 'the villages from -which women voters were conveyed
at the expense of the appellant to the polling station and back, the hire paid,
and the description of the families to which the women voters who were conveyed
belonged. The appellant submitted in rejoinder that by his application, the
first respondent in substance sought not to amplify the particulars given by
him, but to make allegations about fresh corrupt practices, and prayed that
several clauses including Cl. (f) of para. 9 be deleted. On July 29, 1957, the
Election Tribunal 94 rejected the application of the first respondent. He
" Merely saying that the corrupt
practice was followed in the villages whose list was given in annexure 'D' does
not amount to giving particulars as were required to be furnished by the
aforesaid Section 83 (1)(b) of the Representation of the People Act. " and
directed that certain paragraphs including Cl. (f) para.
9 and Annexure D be struck off.
Relying upon a judgment of the Allahabad High
Court delivered on September 9, 1957, Mubarak Mazdoor v. K. K. Banerji and
another (1) in which, the practice to be followed in dealing with allegations
of corrupt practices, made in an election petition, on the ground of vagueness,
was enunciated the first respondent applied for review of that order. The
Election Tribunal, by its order, dated September 13, 1957, accepted the plea of
the first respondent for review of the order, and directed that the order dated
July 29, 1957, beset aside.
The appellant applied under Art. 227 of the
Constitution, to the High Court of Judicature at Allahabad, challenging the
correctness and propriety of the order ,of the Election Tribunal reviewing its
order dated July 29, 1957. By its order dated March 6, 1958, the High Court
substantially confirmed the order passed by the Tribunal. The High Court
observed that the Tribunal had jurisdiction to review its earlier order, and
that in the circumstances of the case it was unnecessary to decide whether the
order dated September 13, 1957, was properly passed, because the order dated.
July 29, 1957, was " unjust and improper
", and the matter having been brought before it in a proceeding under art.
227 of the Constitution, the High Court could rectify the error by setting
aside the earlier order. Pursuant to the order passed by the High Court, the
averments made in Cl. (f) of para. 9 were restored, and Ann. D-1 was
incorporated in the petition.
By its order dated August 16, 1958, the
Tribunal dismissed the petition holding that the first respondent failed to
establish the corrupt practices on which (1) 13 E.L.R. 310 95 the petition was
founded. Dealing with the corrupt practice set out in Cl. (f) of para. 9, the
Tribunal observed that the corrupt practice described in s. 123 (5) of the
Representation of the People Act, lies in the act of hiring or procuring
vehicles by a candidate or his agent, and that this corrupt practice is not
committed merely by conveying the voters, and as the particulars of hiring and procuring
of the vehicles were not furnished in the petition, and the evidence adduced by
the first respondent to support his case of hiring or procuring vehicles was
unsatisfactory the case of the .first respondent about the commission of a
corrupt practice by the appellant stood unsubstantiated.
In an appeal under s. 116A of the
Respresentation of the People Act, against the order of the Election. Tribunal
the High Court of Judicature at Allahabad set aside the order and declared the
election of the appellant void. The High Court held that the petition was
defective in that it omitted to set out the date and place of the hiring of the
tractor, which was proved to have been used for conveying voters to the polling
station, but no prejudice was caused to the appellant as a result of that
omission. In the view of the High Court the testimony of A. P. Malik, the
Presiding Officer at Naholi polling station, corroborated by exh. 22, a
petition submitted on the date of the polling by one Raghuraj Singh, agent of Ram
Dulari, a contesting candidate, and further supported by the evidence of
witness Kalika Prasad and another witness Raghuraj Singh, established that
voters were conveyed in a trailer attached to a tractor, at the instance of the
appellant to the Naholi polling station, and that the evidence of one Hanuman
Singh established the contract of hiring the tractor used for conveying voters
to the polling station. The High Court accordingly held that the appellant had
committed the corrupt practice of hiring a vehicle for conveying voters to the
polling station. Against the order passed by the High Court declaring the
election of the appellant void, this appeal has by special leave been filed.
Section 83(1)(b) of the Representation. of
the People Act, as amended provides that an election petition 96 shall set
forth full particulars of any corrupt practice the petitioner alleges,
including as full a statement as possible of the names of parties alleged to
have committed such corrupt practice and the date and place of the commission
of each such practice. Section 123 sets out what shall be deemed to be corrupt
practices for the purposes of the Act, and by Cl. (5) thereof, as it stood at
the material date, it was in so far as it is relevant, provided:
" The hiring or procuring, whether on
payment or otherwise, of any vehicle or vessel by a candidate or his agent or
by any other person for the conveyance of any elector (other than the candidate
himself, the members of his family or his agent) to or from any polling station
provided under section 25 or a place fixed under sub-section (1) of section 29
for the poll." Neither in the petition as originally filed nor as amended,
the date and place of hiring the tractor which was alleged to have been used
for conveying the voters, and the names of the persons between whom the
contract of hiring was settled, were set out. The question which then falls to
be determined is : Whether the election petition was liable to be rejected
because it did not set forth particulars of the date and place of hiring the
vehicle alleged to have been used in conveying voters? In the opinion of the
High Court the corrupt practice described in s. 123(5) being the hiring or
procuring of a vehicle for conveying voters to the polling station, in the absence
of a detailed statement as to the time and place of the hiring, the petition
was defective. In so opining, the High Court relied upon an earlier decision of
that Court, Madan Lal v. Syed Zargham Haider and others (1). In that case,
Bhargava, J., delivering the judgment of the Court, observed:
"...... under s. 123(5) of the
Representation of the People Act, a corrupt practice consists in the act of
hiring or procuring certain types of vehicles by a candidate or his agent or by
any other person for the conveyance of any elector to or from any polling
station. A corrupt, practice is, therefore, (1) 13 E.L.R. 456, 97 committed not
by conveying the voter but by the act of hiring or procuring the conveyance. In
clause (b) of section 83(1), an election petitioner is required to set forth
full particulars of the corrupt practice including as full a statement as
possible of the 1 names of the parties alleged to have committed such corrupt
practice and the date and place of the commission of each such practice. The
language used in this provision of law requires the setting forth of the full
particulars of the corrupt practice and specially mentions at leapt three
particulars which must be given. These are the names of the parties alleged to
have committed the corrupt practice, the date when the corrupt practice was
committed and the place of the commission of the corrupt practice." Not
the contract of hiring but the fact of hiring for conveying voters to and from
the polling station is declared by s. 123(5) a corrupt practice. A petition
which sets forth the particulars about the use of a vehicle for conveying
voters to and from the polling station, with details as to the time and place
coupled with as full a statement as possible in support of the plea that the vehicle
was hired or procured by the candidate or his agent or another person
substantially complies with the requirement of s. 83(1)(b). In considering
whether a corrupt practice described in s. 123(5) is committed, conveying of
electors cannot be dissociated from the hiring of a vehicle. The corrupt
practice being the hiring or procuring of a vehicle for the conveyance of the
electors, if full particulars of conveying by a vehicle of electors to or from
any polling station are given, s. 83 is duly complied with, even if the
particulars of the contract of hiring, as distinguished from the fact of
hiring, are not given. Normally, the arrangement for hiring or procuring a
vehicle, is within the special knowledge of the parties to that agreement and
it is difficult to assume that it was intended to require the petitioner in an
election dispute to set out the particulars of facts within the special
knowledge of the other party, and expose the petition to a penalty of dismissal
if those particulars could not be given. If particulars in support of the 13 98
plea of the vehicle being hired or procured by the candidate or his agent or by
another person was used for conveying voters to or from the polling station are
set out, failure to set out particulars of the contract of hiring or
arrangement of procuring will not render the petition defective.
By The Representation of the People Act, 195
1, as amended by Act 27 of 1956, a penalty of dismissal of a petition or the
striking out of the plea of a corrupt practice merely because particulars in
that behalf are not set out is not imposed. By s. 90, cl. (5) of the Act the
Tribunal is authorised to allow particulars of any corrupt practice alleged in
the petition, to be amended or amplified in such manner as may, in its opinion,
be necessary for ensuring a fair and effective trial of the petition. By s.
90(1) of the Act every election petition is, subject to the provisions of the
Act and Rules made thereunder to be tried as nearly as may be in accordance
with the procedure applicable under the Civil Procedure Code to the trial of
and for failure to furnish particulars after
being so ordered but not before the Tribunal may strike out a defective plea.
The practice to be followed in cases where insufficient particulars of a
corrupt practice are set forth in an election petition is this. An election
petition is not liable to be -dismissed in limine merely because full
particulars of a corrupt practice alleged in the petition, are not set out.
Where an objection is raised by the respondent that a petition is defective
because full particulars of an alleged corrupt practice are not set out, the
Tribunal is bound to decide whether the objection is wellfounded. If the
Tribunal upholds the objection, it should give an opportunity to the petitioner
to apply for leave to amend or amplify the particulars of the corrupt practice
alleged; and in the event of noncompliance with that order the Tribunal may
strike out the charges which remain vague. Insistence upon full particulars of
corrupt practices is undoubtedly of paramount importance in the trial of an
election petition, but if the parties go to trial despite the absence of full
particulars of the corrupt practice alleged, and evidence of the contesting
parties is led on the plea 99 raised by the petition, the petition cannot
thereafter be dismissed for want of particulars, because the defect. is one of
procedure and not one of jurisdiction of the Tribunal to adjudicate upon the
plea in the absence of particulars.
The appellate court may be justified in
setting aside the judgment of the Tribunal if it is satisfied that by reason of
the absence of full particulars, material prejudice has resulted; and in
considering whether material prejudice has resulted failure to raise and press
the objection about the absence of particulars before going to trial must be
given duo weight.
Assuming that in the case before us, the
petition was defective because particulars as to the persons between whom the
contract of hiring was entered into, and the date and place thereof,. have not
been set out, the High Court, was right in holding that no material prejudice
was occasioned thereby. In the written statement to the petition as originally
filed, it was not expressly contended that because of the absence of
particulars as to the names of the persons between whom the contract of hiring
took place, and the date and place of the contract, the appellant was unable to
meet the charges made against him. Even after the petition was amended, no such
objection was raised by the appellant. Before the Tribunal, at the hearing of
the argument, a plea that the petition was defective, because of lack of
particulars relating to the names of the persons who entered into the contract
of hiring, and the time and place thereof was apparently raised. But all the
evidence relating to the hiring and the time and place thereof, was without
objection admitted on the record. It is not even suggested that because of the
absence of the particulars, the appellant was embarrassed in making his
defence, or that he could not lead evidence relevant to the plea of corrupt
practice set up by the first respondent. We are therefore unable to hold that
any material prejudice was occasioned because of the absence of those
particulars in the petition.
The order of the Tribunal rejecting the
application of the first respondent for amplification of the particulars of the
corrupt practice alleged in the election 100 petition was, for reasons already
set out, erroneous; and in that view the question whether the High Court
misdirected itself in holding itself bound, at the hearing of the appeal, by
its earlier judgment delivered on the writ petition, does not fall to be
Counsel for the appellant urged that in any
event, the High Court was not justified in disagreeing with the considered
judgment of the Tribunal on questions purely of appreciation of evidence. But
this appeal has been filed with special leave granted under Art. 136 of the
Constitution. It is the settled practice of this Court to grant leave to appeal
under Art. 136 only if exceptional and special circumstances exist, or that
substantial and grave injustice has been done and the case presents features of
sufficient gravity to warrant a review of the decision appealed against. Merely
because the appeal has been admitted by special leave, the entire case is not
at large, and the appellant is not free to contest the findings of fact of the
subordinate tribunals. Only those points on which special leave may initially
be granted, can be urged at the final hearing; and normally, special leave will
not be granted by this Court under Art 136(1) of the Constitution on a plea of
error committed by the Courts below in the appreciation of evidence.
This would be sufficient to justify us in
refusing to entertain the argument advanced by the counsel for the appellant.
We may, however, observe that even on a review of the evidence, we are
satisfied that the High Court was right in its conclusion. There was before the
Tribunal the evidence of Mr. A. P. Malik, the Presiding Officer at the Naholi
polling station, who testified that he had seen on the day Of Polling a tractor
at a distance of 100 to 150 yards from the polling booth. The witness stated
that be did not remember having seen any flag or poster on the tractor. The
witness, however, had made a note in his diary about an application submitted
to him by Raghuraj Singh. P.
W. 30. A copy of that application has been
produced, and it is recited in that application that a tractor had come to the
polling booth and was parked near "the line of voters";
that some persons a majority of whom were
women, were sitting on the 101 tractor; that a red flag was hoisted and posters
of the socialist party were pasted on the tractor; and that some men and women,
who came on the tractor, were placed in the queue of voters. There was also the
evidence of. Raghuraj Singh, P.W. 38, a voter in the constituency. He stated
that he had seen the tractor belonging to Chandra Bahadur Pandey of village
Chapargatha, near the polling station; that a red flag was hoisted and posters
were pasted over the tractor with the symbol of a banyan tree which was the
emblem of the party of the appellant. He further stated that one Kalika Prasad
and some female members of his family had come on the trailer and Radhey Shyam,
an agent of the appellant, had taken all these voters and had given them slips
Kalika Prasad was also examined and he stated
that he and his wife and several other villagers had gone to the Naholi polling
station to exercise their franchise on the trailer attached to the tractor;
that a red flag was hoisted and posters were pasted on the trailer; and that
there was on the posters the legend that votes be cast in favour of the
appellant. It is established by unimpeachable evidence that a tractor was
brought to Naholi Polling Station on the date of the polling. The Tribunal
accepted the evidence of Mr.
Malik, but rejected the testimony of other
witnesses on somewhat fanciful theories. The Tribunal observed that at the
material time no tractor was brought near the polling booth, and if one was
brought, the owner of the tractor may possibly have given a free lift to the
voters to the polling station and back. The Tribunal also suggested that the
tractor may have been brought without the consent of the appellant or his
agents. But the fact that a tractor was brought to the polling station, is
clearly established by the evidence of Mr. Malik. That on the tractor was
carried a red flag of the party of the appellant, is established by the
evidence of the two witnesses, Raghuraj Singh, P.W. 30 and Raghuraj Singh P.W.
38, and also by the evidence of Kalika Prasad. It is also established on the
evidence that on the tractor, were displayed posters bearing the symbol of a
banyan tree, which was the election emblem of the party of the appellant at the
election. There was no 102 sufficient reason for discarding this testimony.
Witness Hanuman Singh P.W. 56 deposed that he was present at the time of the
settlement of the bargain of hiring the tractor belonging to Chandra Bahadur
for conveying voters. The High Court accepted that evidence and we do not
think, judged in the context of the other evidence that the High Court, was in
error in so doing.
The appeal, therefore, fails and is dismissed
SARKAR, J. I agree that this appeal fails.
The appellant had been declared elected at an
election. The first respondent filed an election petition under the
Representation of the People Act, 1951 to to have the appellant's election
declared void. Among other things it was said that the appellant had committed
a corrupt practice which was described in the petition substantially in these
words: In villages mentioned in annexure D the appellant hired a tractor for
conveying women electors from their houses to places of polling and back.
The appellant applied to have this allegation
struck out as it did not contain sufficient particulars of the corrupt practice
alleged. The respondent in his turn sought permission to give particulars of
this corrupt practice by amending his petition by the substitution of a new
annexure to his petition marked DI in the place of the existing annexure D. The
Election Tribunal first made an order refusing the, amendment and striking out
the allegation as desired by the appellant. Later it made another order
reviewing its earlier order and thereby cancelled that order. By this order it
directed the restoration of the allegation struck out and the substitution of
annexure D by annexure DI.
The appellant moved the High Court at
Allahabad under arts.
226 and 227 of the Constitution against the
latter order of the Tribunal. The High Court held that the Tribunal had the
power to review any order made by it and that the order made on review allowing
the amendment was correct. It also held that if the Tribunal had no power of
review, the High Court 103 being itself seized of the matter, would be deemed
to have set aside the first order of the Tribunal and made an order allowing
the amendment. The appellant did not appeal from this order of the High Court.
The parties then went to trial before the
Tribunal. The appellant led his evidence without any objection as to the
petition being defective for want of any particulars. The Tribunal took the
view that the corrupt practice alleged had not been proved and dismissed the
petition. On appeal the High Court held that the corrupt practice had been
proved and set aside the election of the appellant. Hence this appeal.
It is said that the election petition should
have been dismissed because sufficient particulars of the corrupt practice
alleged had not been given in the petition. The corrupt practice alleged is of
the kind mentioned in s. 123 (5) of the Act which is in these words:
The hiring or procuring, whether on payment
or otherwise, of any vehicle or vessel by a candidate ........................
for the conveyance of any elector ............... to or from any polling
It is contended that the hiring of the
vehicle is an essential element of the corrupt practice mentioned in this
section. I am leaving out of consideration the procuring of a vehicle because
that is not the case here. It is said that the petition must, therefore, state
the particulars of the date and place of the contract of hiring and the parties
to it. Reference is made to s. 83 of the Act where it is provided that, "
An election petition shall set forth full particulars of any corrupt practice
that the petitioner alleges, including as full a statement as possible of the
names of the parties alleged to have committed such corrupt practice and the
date and place of the commission of each such corrupt practice." The
question thus arises whether the particulars of the parties to the contract of
hiring and the date when, and the place where, it had been made should have
The respondent does not deny that the
particulars of the contract of hiring had not been stated in the 104 petition.
According to him the corrupt practice mentioned in s. 123 (5) is not committed
by the contract of hiring but by the conveyance of the electors in a hired
Hence, he says that no question as to these
particulars arise& In my view the appellant's contention is wellfounded.
Under the section the hiring of the vehicle for the conveyance of electors is
the corrupt practice. It is of the essence of this corrupt practice that the
vehicle must have been hired, that is to say, a contract for the hiring of the
vehicle must have been made. I am unable to imagine how a vehicle can be hired
without a contract. Therefore it seems to me that particulars of that contract
should be given.
I am also unable to appreciate the
It seems to me that to say that the corrupt
practice is committed by the conveyance of electors in a hired vehicle is the
same thing as saying that electors had been conveyed by a vehicle which had
been hired, that is, a vehicle in respect of which a contract of hiring had
been made. Simple conveyance of electors in a vehicle is not enough. The
vehicle must be a hired vehicle. Hence there is no corrupt practice unless the
hiring of the vehicle, that is, the contract of hire in respect of it is
Whether a simple contract of the hiring of a
vehicle for the conveyance of electors without actual conveyance of them would
amount to a corrupt practice or not, is a question that does not arise in this
case. But it seems to me that whatever view is taken of that question, that
would not make the contract of hiring any the less an essential element of the
corrupt practice described in s. 123(5).
In my view therefore the appellant was
entitled to the particulars the want of which he now complains. The question
then is what is the effect of the failure to supply these particulars ? I am
unable to agree that the petition was thereupon liable to be dismissed. It has
not been shown to us that the Act provides for such dismissal. Section 83 does
not say that on failure to furnish the prescribed particulars the petition
shall be dismissed. On the other hand, s. 90(3) of the Act provides that,
" The Tribunal shall 105 dismiss an election petition which does not
comply with the provisions of section 81, section 82 or section 117. "
This section does not include s. 83. It therefore seems to me that the appellant
was not entitled to a dismissal of the petition for want of the particulars.
The appellant was certainly entitled to apply
for the particulars. I conceive he would have such a right under s.
83 and also s. 90(1) of the Act which made
the provisions of the Code of Civil Procedure applicable to a trial before an
Election Tribunal, in the view that I have taken, that the contract of hiring
is an essential element of the corrupt practice' mentioned in s. 123(5) of the
Act. The appellant however made no such application. Instead he went to trial
and led evidence without making any grievance that he was hampered in his
defence for want of the particulars. He cannot at a later stage complain about
the absence of the particulars. It is unnecessary to consider what would have
happened if upon the appellant's application the respondent had been directed
to furnish the particulars and had failed to do so, for no such order had been
It only remains for me to say that it is not
open for the appellant to contend now that the Tribunal was wrong in reviewing
its order. The High Court rejected that contention in the order made on the
application under arts.
226 and 227 of the Constitution. For greater
safety it also made an order allowing the amendment sought by the respondent.
The High Court's decision not having been questioned by the appellant by an
appeal, is binding on him.
He must therefore accept the position that
the amendment of the petition was proper. I may also state that if the
amendment had not been properly allowed that would not have made any
difference. The only result would have been that some more particulars.of the
corrupt practice alleged would have been wanting. For the reasons earlier
stated this would not have entailed a -dismissal of the election petition.
14 106 The only other point that was argued
at the bar was a question of fact, namely, whether the corrupt practice alleged
had been proved. On that point I am in perfect agreement with the view
expressed by my learned brothers and have nothing to add.