Introduction

• It was an Appeal before the Supreme Court by way of a certificate of fitness under Article 133(1)(c) of the Constitution by the High Court of Rajasthan considering an ex-parte decree of election petition.

Facts

• Bhurey Lal initiated an election petition pursuant to Section 100 of the Representation of the People Act, 1951 against Sangram Singh, the appellant, seeking to invalidate his election.
• On the specified date of hearing, the appellant and his three engaged counsels failed to appear, prompting the Tribunal to proceed ex-parte.
• Bhurey Lal and two witnesses were examined and one day after their examination five additional witnesses were also examined, and the case was adjourned for a later date.
• When one of the appellant's counsels appeared on the day fixed the Tribunal denied his participation, citing the ongoing ex-parte proceedings.
• Later, the appellant applied for setting aside the ex-parte proceedings under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (CPC).
• The Tribunal rejected the application, stating that the appellant had failed to prove any justifiable reason for his absence between 17^th March and 19^th March 1953.
• Subsequently, the appellant filed a writ petition under Article 226 of the Constitution in the High Court of Rajasthan, leading to a stay of further proceedings before the Tribunal.
• On 17^th July 1953, the HC dismissed the petition, citing two grounds:
  • Firstly, the Tribunal was the competent authority to determine the sufficiency of reasons, and
  • Secondly, the counsel for the petitioner displayed gross negligence by not appearing on the scheduled hearing date.
• Five months later, the HC granted a certificate under Article 133(1)(c) of the Constitution, allowing an appeal to the SC.

Issues Involved

• Whether the Tribunal was right in refusing to allow the appellant’s counsel to appear and take part in the proceedings date fixed after adjournment?
• Whether there is sufficient ground to give the High Court jurisdiction to entertain a writ petition under Article 226 of the Constitution?

Observation

• SC said that the tribunal was not justified in refusing the appellant's counsel to appear and take part in the proceedings when he appeared.
• The only consequence of the appellant counsel not being able to give just or unavoidable reason preventing his appearance on 17^th to 19^th but that would not prevent him to participate in further proceedings.
• The court considered these grounds satisfactory to set aside the order of tribunal under Order IX Rule 13 of CPC.

Conclusion

• The SC set aside the order of tribunal and asked the Election Commission to reconstitute a tribunal to hear this case.

Note

• Order IX Rule 13 of CPC: Setting aside decree ex-parte against defendant.—
  • In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
  • Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
  • Provided further than no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
  • Explanation.— Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decree.