Bijayananda Patnaik Vs. Satrughna Sahu
& Ors  INSC 70 (26 March 1963)
26/03/1963 WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1963 AIR 1566 1964 SCR (2) 538
RF 1973 SC 643 (6) RF 1981 SC 116 (21,25) RF
1983 SC 786 (9)
Election Petition-Appeal to High
court-procedure-Withdrawal of appeal, if permissible-Representation of People,
Act, 1951 (43 of 1951), ss. 109, 110, 116-A-Code of civil Procedure, 1908 (Act
5 of 1908), O. XXIII, r. 1 (1).
One S filed an election petition against the
appellant who had been declared elected to the State Legislative Assembly.
The appellant applied to the Tribunal for
dismissing the petition under 9. 90 (3) of the Representation of the People
Act, 1951, for noncompliance with the provisions of s. 82 of the Act. The
Tribunal accepted the application and dismissed the election petition.
Thereupon S filed an appeal under s. 116-A before-the High Court. Subsequently,
Supplied for withdrawal of the appeal but the High Court refused to permit with
drawal holding that it had to be guided by the principles of $S. 109 and II 0
of the Act in considering the application for withdrawal.
Held that S had an absolute right to withdraw
the appeal and the High Court was bound to grant him permission to do so.
Section 116-A (2) of the Act provides that
"subject to the provisions of this Act" the High Court shall, in
appeal under the section, have the same powers. jurisdiction and authority and
shall follow the same procedure as if the appeal were an appeal from an
original decree passed by a Civil Court. The words "subject to the
provisions of this Act" in sub-s. (2) mean that the provision must be an
express provision in the Act or such as arises by necessary implication from an
express provision. Accordingly ss. 109 and 110 of the Act which deal with the
withdrawal of election petitions do not apply to the appeal under s. 116A.
There is no express provision in the Act dealing with appeals which deals with
the question of withdrawal of appeals and so the provisions regarding
withdrawal applicable to ordinary civil appeals before the High Court are
applicable also to appeals under 116-A. Under 0.38, r. 1 (1), Code of Civil
procedure, 539 an appellant has the right to withdraw his appeal unconditionally
and if he makes such application the High Court has to grant it. Therefore,
when an appellant under s. 116-A of the Act makes an application for an
unconditional withdrawal of the appeal , the High Court must grant the same.
Kalayan Singh v. Rahmu, I.L.R. (1901) 23 All.
130 Kanhaya Lal v. Pratap Chand, (1931) 29 A.L.J. 232 and Dhondo Narayan
Shiralkar v. Annaji Pandurnag Kokatnur, I.L.R. (1939) Bom.
66 referred to.
CIVIL APPELLATE JURISDlCTION : Civil Appeal
No. 603 of 1962.
Appeal by special leave from the judgment and
order dated March 28, 1962, of the Orissa High Court in Misc. Appeal No. 112 of
M.C. Setalvad, Ranadeb Chaudhri, M. K.
Banerjee, S.N. Andley and Rameshwer Nath, for the appellant.
R. Gopalakrishnan, for respondent No. 2.
1963. March 26. The Judgment of the Court was
delivered by WANCHOO J.-This is an appeal by special leave against the order of
the Orissa High Court. The appellant stood for election to the Orissa
Legislative Assembly from the Choudwar constituency; in the district of
Cuttack. He was opposed by three persons who are the respondents before us.
The appellant was elected. Then followed an
election petition by respondent No. 1, Satrughna Sahu. To this election
petition, the appellant as well as the other two candidates who had stood for
election were made opposite parties. When the election petition came to be
heard an objection was raised before the tribunal that the petition was not in
accordance with s. 82 of the Representation of the People Act, 1951 (43 of
1951), (hereinafter referred 540 to as the Act), and that this defect was fatal
to the petition in view of s. 90 (3) thereof. This objection was heard as a
preliminary objection and the tribunal came to the conclusion that as the
petition was not framed in accordance with s. 82, the defect was fatal. It
therefore dismissed the petition.
Satrughna Sahu then appealed to the High
Court under s.116-A of the Act. This appeal was heard on March 5 and 6,).962,
and apparently was fixed for judgment on March 8, 1962. On March 7, an
application was filed by Satrughna Sahu for withdrawal of the appeal, as he did
not want to prosecute it further. It was put up for consideration on March 8,
1962, and the judgment in the main appeal, which had already been prepared for
delivery, was therefore withheld pending the disposal of the withdrawal
application. The contention on behalf of Satrughna Sahu was that he was
entitled as of right to withdraw the appeal. He was supported in this by the
appellant but the other two respondents objected to withdrawal and contended
that Satrughna Sahu had no absolute right to withdraw the appeal on the analogy
of 0. XXIII, r. 1 (1) of the Code of Civil Procedure, and that principles
analogous to ss. 109 and 110 of the Act applied to an application for
withdrawal of an appeal. The High Court held that it must be guided by the
principles contained in ss. 109 and 110 of the Act when considering an
application for withdrawal of the appeal before it. It therefore went on to
consider whether Satrughna Sahu should be given permission to withdraw the
appeal and decided not to give him such permission. Finally it ordered that
though the prayer of the appellant for withdrawal was rejected, the application
for withdrawal with all the counter-affidavits filed in opposition be kept
alive for the disposal of the question of withdrawal of the election petition
by the tribunal. This order was passed on March 541 28, 1962, and the High
Court then proceeded to deliver judgment in the main appeal on the same day and
the order of the election tribunal dismissing the election petition was set
aside, and the petition was remanded for disposal according to law.
The appellant then made two applications for
certificates to appeal to this Court, which were dismissed. Thereupon he filed
two petitions for special leave before this Court, which were allowed, and two
appeals resulted there from one against the judgment of the High Court in the
matter of withdrawal application and the other in the matter of the main
appeal. The present appeal is with respect to the withdrawal application' and
the contention of the appellant before us is two-fold. In the first place it is
urged that Satrughna Sahu who was the appellant in the appeal before the High
Court had an absolute right to withdraw the appeal on the analogy of the
provision contained in 0.XXIII, r. 1 (1), and the High Court was in error in
holding that principles analogous to ss. 109 and 110 of the Act applied to the
withdrawal of an appeal filed under s. 116-A of the Act ' and therefore after
the withdrawal application had been filed there was no option to the High Court
but to permit the withdrawal. In the second place, it is urged that even if the
view taken by the High Court was correct it was the duty of the High Court to
consider all the matters specified in ss. 109 and 110 of the Act and decide for
itself whether the application for withdrawal should be granted and it was not
open to the High Court to convert the application for withdrawal of the appeal
as if it was an application for withdrawal of the election petition and refer
it to the election tribunal for disposal.
The first question therefore that falls for
consideration is whether Satrughna Sahu who made 542 the withdrawal application
had an absolute right to withdraw the appeal on the analogy of the provision
contained in O.XXIII, r. 1 (1), and therefore when the application for
withdrawal was made in this case the High Court was bound to allow it and
permit the withdrawal of the appeal. Section 116-A was inserted in the Act in
1956, and the relevant part thereof is in these terms :"ll6A. Appeals
against orders of Election Tribunals-(1) An appeal shall lie from every order
made by a Tribunal under section 98 or section 99 to the High Court of the
State in which the Tribunal is situated.
(2)The High Court shall, subject to the
provisions of this' Act, have the same powers, jurisdiction and authority, and
follow the same procedure, with respect to an appeal under this Chapter. as if
the appeal were an appeal from an original decree passed by a civil court
situated within the local limits Of its civil appellate jurisdiction :
Provided that where the High Court consists
of more than two judges every appeal under this Chapter shall be heard by a
bench of not less than two judges.
(3) Every appeal under this Chapter shall be
preferred within a period of thirty days from the date of the order of the
Tribunal under section 98 or section 99 ;
Provided that the High Court may entertain an
appeal after the expiry of the said period of thirty days if it is satisfied
that the appellant had sufficient cause for not preferring 'the appeal within
(4) Where an appeal has been preferred
against an order made under clause (b) of 543 section 98 or section 99, the
High Court may, on sufficient cause being shown, stay operation of the order
appealed from and in such a case the order shall be deemed never to have taken
effect under sub-section (1) of section 107, and a copy of the stay order shall
immediately be sent by the High Court to the Election Commission and the
Speaker or Chairman as the case may be of the House of Parliament or of the
State Legislature concerned.
(5) Every appeal shall be decided as expeditiously
as possible and endeavour shall be -made to determine it finally within three
months from the date on which the memorandum of appeal is presented to the High
It will be seen that the provision as to
appeals is in Chap.
IVA of the Act while the subject of
withdrawal and abatement of election petition is dealt with in Chap. IV, in
which ss. 109 and 110 occur. Before we deal with the powers of the High Court
in the matter of withdrawal of an appeal under s. 116A, we may refer to the
scheme –of Chap. IV, which contains ss. 108 to 116, relating to withdrawal and
abatement of election petitions. Section 108 provides that "an election
petition may be withdrawn only by leave of the Election Commission if an
application for its withdrawal is is made before any Tribunal has been
appointed for the trial of such petition." Section 109 makes provision for
withdrawal of petitions after appointment of a tribunal, and provides that in
such a case an election petition may be withdrawn only by leave of the tribunal.
It also provides that where an application for withdrawal is made before the
tribunal, notice thereof specifying the date for the hearing of application
shall be given to all other parties to the petition and shall be 544 published
in the official gazette. Section 110 provides for procedure for withdrawal of
petitions before the election commission or the tribunal, and sub-s. (2)
thereof lays down that " no application for withdrawal shall be granted if
in the opinion of the election commission or of the tribunal, as the case may
be, such application has been induced by any bargain or consideration which
ought not to be allowed." Sub-section (3) provides that if the application
for withdrawal is granted, the petitioner shall be ordered to pay the costs of the
respondents theretofore incurred or such portion thereof as the tribunal may
think fit ; further notice of the withdrawal shall be published in the official
gazette by the election commission or by the tribunal, as the case may be ; and
finally any person who might himself have been a petitioner, may within
fourteen days of such publication, apply to be substituted as petitioner in
place of the party withdrawing, and upon compliance with the conditions of s.
117 as to security, shall be entitled to be so substituted and to continue the
proceedings upon such terms as the tribunal may think fit. Section III provides
for report of withdrawal by the tribunal to the election commission. Sections
112 to 116 deal with abatement of election petitions on the death of a sole
petitioner -provision is made therein for publication of the notice of
abatement in the official gazette, and s. 115 provides that on such notice, any
person who might himself have been a petitioner may, within fourteen days of
such publication, apply to be substituted as petitioner and upon compliance
with the conditions of S. 117 as to security shall be entitled to be so
substituted and to continue the proceedings upon such terms as the tribunal may
Section 116 makes a similar provision in the
case of death of a sole respondent.
It will be seen from these provisions in
Chap. IV that the petitioner in an election petition has 545 not an absolute
right to withdraw it; nor has the respondent the absolute right to withdraw
from opposing the petition in certain circumstances. The basis for this special
provision as to withdrawal of election petitions is to be found in the well
established principle that an election. petition is not a matter in which the
only persons interested are candidates who strove against each other at the
elections. The public of the constituency also is substantially interested in
it, as an election is an essential part of the democratic process' That is why
provision is made in election law circumscribing the right of the parties
thereto to withdraw.
Another reason for such provision is that the
citizens at large have an interest in seeing and they are justified in
insisting that all elections are fair and free and not vitiated by corrupt or
illegal practices. That is why provision is made for substituting any elector
who might have filed the petition in order to preserve the purity of elections
see Kamaraja Nadar v. Kunju Thevar (1) . At the same time, though these
principles are the basis of the provisions to be found in Chap. IV of the Act,
it is equally clear that but for these provisions it may have been possible for
a petitioner to withdraw the election petition absolutely; Section 90 (1)
provides that "'subject to the provisions of this Act and of any rules
made thereunder, every election petition shall be tried by the tribunal, as
nearly as may be, in accordance with the procedure applicable under the Code of
Civil Procedure, 1908 (5 of 1908) to the trial of suits". In view of this
XXIII r. 1 (1) would have applied even to an
election petition before the tribunal but for the provisions contained in Chap.
IV. It is because the provisions of the Code of Civil Procedure apply to
election petitions subject to the provisions of the Act and the Rules framed
thereunder that 0. XXIII, r. 1 (1) cannot be applied to the withdrawal of
election petitions in view of ss. 108 to 111 thereof, but for these special (1)
 S. C. R, 583.
546 provisions, 0. XXIII, r. 1 (1) would have
been applicable, and it is well established that that provision gives an
absolute right to the plaintiff to withdraw his suit or abandon any part of his
This position with respect to withdrawal of
an election petition is not in dispute. The question however is whether the same
position applies to the withdrawal of an appeal and this brings us to the
consideration of the provisions of s. 116 A of the Act, which we have already
set out above. The powers of the High Court in respect of an appeal under that
section are contained in sub-s. (2), which lays down that "the High Court
shall, subject to the Provisions of this Act, have the same powers,
jurisdiction and authority, and follow the same procedure, with respect to an
appeal under this Chapter as if the appeal were an appeal from an original
decree passed by a civil court situated within the local limits of its civil
appellate jurisdiction". Sub-s. (2) therefore confers all the powers on
the High Court and enjoins upon it to follow the same procedure as in the case
of appeals from original decree in suits. It is true that the powers of the
High Court under sub-s. (2) are subject to the provisions of the Act. This
Court had occasion to consider this matter in T. K. Gangi Reddy v. M. C.
Anjaneya Reddy (1), in connection with an argument that the High Court had no
jurisdiction to set aside the finding of the election tribunal on questions of
fact arrived at on an appreciation of the evidence. In that connection this
Court observed with respect to sub-s. (2) of s. 116A that "it was manifest
that the jurisdiction of the High Court in the disposal of appeals is similar
to that it has in the disposal of appeals from original decrees. No doubt this
was subject to the provisions of the Act and no provision has been brought to
the notice of the Court which curtailed that jurisdiction. Therefore when an
appeal is filed the entire case is reopened (1) (1960) 22 E. L. R. 261 .
547 in the appellate court". Clearly,
therefore, when sub-s. (2) says that the powers, jurisdiction and authority of
the High Court is subject to the provisions of the Act, it means that the
provision must be an express provision in the Act or such as arises by
necessary implication from an express provisions. One such express provision is
to be found in the proviso to sub-s. (2) of s. 116A, which lays down that
"where the High Court consists of more than two judges, every appeal under
this Chapter shall be heard by a bench of not less than two judges."
Another express provision is to be found in sub-s. (4) which gives express
power to the High Court to stay the operation of the order appealed from and
provides that where such a stay order is made, the order appealed from shall be
deemed never to have taken effect under sub-s. (1) of s. 107. Again sub-s. (5)
enjoins on the High Court to decide the appeal as expeditiously as possible
with a direction that it shall be determined finally within three months as far
as possible. There is, however, no express provision in Chap. IV-A dealing with
appeals, which deals with the question of withdrawal of appeals under that
Chapter. Nor do we think that ss. 109 and 110 necessarily imply that an appeal
also cannot be withdrawn as a matter of right, unless the procedure laid down
in those sections is followed. One reason for this view may at once be stated.
The losing party is not bound to file an
appeal and if he does not, nobody else has the right to do so. The object
apparently is that the election petition filed should, if any voter so desire,
be heard and decided. The sections dealing with substitution on death of the
petitioner lead to that view: see ss. 112-115. There is no such provision for
appeals. It seems to us that if Parliament intended that the provisions of ss.
109 and 110 which deal with withdrawal of election petitions before a tribunal
shall also apply to withdrawal of appeals before the High Court under Chap. IVA
an express 548 provision could have been easily made to that effect in s.
116-A by adding a suitable provision in the
section that the provisions of ss. 109 and 110 would apply to withdrawal of
appeals before the High Court as they apply to withdrawal of election petitions
before the tribunal. In the absence of such a provision in Chap. IV-A, we do
not think that the High Court was right in importing the principles of ss. 109
and 110 in the Matter of withdrawal of appeals before the High Court. So far
therefore as the question of withdrawal of appeals before the High Court under
Chapter IV-A is concerned., it seems to us that the High Court has the same powers,
jurisdiction and authority in the matter of withdrawal as it would have in the
matter of withdrawal of an appeal from an original decree passed by a civil
court within the local limits of its civil appellate jurisdiction without any
limitation on such powers because of ss. 109 and 110. The High Court thus has
the same powers jurisdiction and authority and has to follow the same procedure
in the matter of withdrawal of appeals under s. 116-A as in the matter of an
appeal from an original decree before it, and there is no warrant for importing
any limitation in the matter on the analogy of ss. 109 and 110 of the Act,
which expressly deal only with election petitions and not with appeals under s.
Let us therefore see what powers the High
Court has in the matter of withdrawal of an appeal from an original decree
before it and what procedure it has to follow in that behalf. The provisions in
the Code relating to withdrawal of suits are to be found in O.XXIII, r. 1.
Sub-rule (1) thereof lays down that at any time after the institution of a suit
the plaintiff may, as against all or any of the defendants, Withdraw his suit
or abandon part of his claims.
Sub-rule (2) provides that "where the
Court is satisfied (a) that a suit must fail by reason of some formal defect.,
or (b) that there are other sufficient grounds 549 for allowing the plaintiff
to institute a fresh suit for the subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to
withdraw from such suit or abandon such part of a claim with liberty to
institute a fresh suit in respect of the subject matter of such suit or such
part of a claim." We have already said that sub-rule (1) gives absolute
power to the plaintiff to withdraw his suit or abandon part of his claim
against all or any of the defendants, and where an application for withdrawal
of a suit is made under O.XXIII, r. 1 (1), the Court has to allow that
application and the suit stands withdrawn. It is only under sub-rule (2) where
a suit is not being withdrawn. absolutely but is being withdrawn on condition
that the plaintiff may be permitted to institute a fresh suit for the same
subject-matter that the permission of the court for such withdrawal is
necessary. The provisions of O.XXIII r. 1 (1) and (3) also apply in the same
manner to withdrawal of appeals. In Kalyan Singh v. Rahmu (1), it was held that
where no objection had been filed by the respondent, the appellant had an
absolute right to withdraw his appeal at any time before judgment. This view
was followed by the Allahabad High Court in Kanhaya Lal v. Partap Chand (2),
where it was held that having regard to O. XXIII, r. 1 (1) and s. 107 (2) of
the Code of Civil Procedure, where no cross-objection has been filed by the respondent,
an appellant has the right to withdarw his appeal unconditionally, his only
liability being to pay costs. In Dhondo Narayan Shiralkar v. Annaji Pandurang
Kokatnur (3), it was held that "an appellant is entitled as of right to
withdraw his appeal, provided the respondent has not acquired any interest
thereunder". There was however difference between the Allahabad and Bombay
High Courts as to whether s. 107 (2) of the Code of the Civil Procedure would
help an appellant in such a case. It is unnecessary for our present purpose to
(1) I.L.R. (1901) 23 All. 130. (2) (1931) 29 A.L.J. 232.
(3) I.L.R. (1952) Bom, 66.
550 decide whether the absolute right of the
appellant to withdraw an appeal unconditionally flows from s. 107 (2) or is an
inherent right of the appellanton the analogy of 0, XXIII r. 1 (11). But there
can be no doubt that an appellant has the right to withdraw his appeal
unconditionally and if he makes such an application to the court, it has to
grant it. The difficulty arising out of any cross-objection under which the
respondent might have acquired an interest as pointed out by the Bombay High
Court, no longer remains in veiw of 0. XLI r. 22 (4), which now permits the
cross-objection to be heard even though the appeal is withdrawn. Therefore when
the High Court is hearing an appeal from an original decree and an application
is made to it to withdrew the appeal unconditionally, it must permit such
withdrawal subject to costs and has no power to say that it will not permit the
appeal to be withdrawn and will go on with the hearing of the appeal.
The power of the High Court under s. 11 6A
(2) when hearing an appeal from an election petition is the same as its power
when hearing an appeal from an original decree, and the procedure is also the same,
for there is no express provision to the contrary in the matter of withdrawal
of an appeal in the Act. Therefore when an appellant under s. 116-A makes an
application for an unconditional withdrawal of the appeal, the power of the
High Court, consistently with its power in an appeal from an original decree,
is to allow such withdrawal, and it cannot say that it will not permit the
appeal to be withdrawn. We opinion that the High Court was in the principles of
so. 109 and 110 deal only with the withdrawal of election petitions and not
with the withdrawal of appeals.
it has been urged that in this view an appeal
may be withdrawn even where withdrawal has been induced by bargain or
consideration which ought not 551 be allowed and this would interfere with
purity of elections. As the statute stands it seems that the intention was that
the provisions about withdrawal and abatement would apply to a petition only
when it is either before the commission or the tribunal. It may have been
intended that only one proceeding should be specially provided for and that
would ensure the purity of elections.
If it was intended that ss. 109 and 110
should also apply to an appeal for which provision was made by s. 116-A, that
intention has not been given effect to by proper language.
In any case, the position is not the same
when an appeal is being withdrawn for generally speaking at that stage a trial
has taken place before the tribunal which would ordinarily safeguard such
purity. We therefore see no reason to import the principles of ss. 109 and 110
into withdrawal of appeals on this ground.
We are, therefore, of opinion that the High
Court should have allowed the application for unconditional withdrawal made by
Satrughna Sahu, the appellant before it. Further the High Court in this
connection need not have referred to the affidavits filed on behalf of the
other two defeated candidates before it, for such affidavits were irrelevant,
if Satrughna Sahu, the appellant before the High Court, was entitled to
withdraw the appeal unconditionally and the High Court could not refuse such
In the view we have taken on the first
question raised before us, it is not necessary to deal with the second
question, though we may add that as at present advised it seems to us that the
High Court was in error in treating the application for withdrawal of the
appeal as if it were an application for withdrawal of an election petition
109 and referring the matter to the election
tribunal. Even if the High Court had power to refuse an application 552 for
withdrawal of an appeal, the proper course for the High Court would be to
consider all that is required by s. 110 itself. However in view of our decision
on the first question we need not pursue the point further.
We, therefore, allow the appeal, set side the
order of the High Court and in view of the unconditional application for
withdrawal made by Satrughna Sahu, the appellant before the High Court, order
that the appeal before the High Court should stand withdrawn. In the circumstances
we pass no order as to costs.