Orissa High Court
Tarachand Majhi vs Lalit Padhan on 3 May, 2010
V.GOPALA GOWDA, CJ & B.P.DAS, J.
W.A No. 212 of 2009 (Decided on 03.05.2010.)
TARACHAND MAJHI .... .. ....... Appellant
-V-
LALIT PADHAN .............. Respondent
Letters Patent - Clause 10 - Read with Orissa High Court Rules-1948 - Chapter-VIII - Rule 2 For Appellant - Mr.Gautam Mishra.
For Respondent - M/s. A.R.Dash, S.K.Nanda, B.Mohapatra, S.N.Sahoo & K.S.Sahu.
V. GOPALA GOWDA,C.J. This writ appeal is filed by the unsuccessful petitioner in W.P.(C) No.13194 of 2009 who is the opposite party in the Election Petition No.5 of 2007 before the Civil Judge (Junior Division), S.Rampur who has allowed the application of the respondent herein to recount the ballots of polling booth nos. 1, 2,6,10 and 11 which order is affirmed in the impugned order passed by the learned Single Judge in dismissing the petition filed by the appellant herein vide its order dated 20.11.2009 is challenged urging various legal grounds.
2. When this matter was listed for admission on 15.4.2010, learned counsel appearing on behalf of the respondent raised the preliminary objection regarding the maintainability of this writ appeal by placing reliance upon the Full Bench decision of this Court in the case of Mohammed Saud & others v. Dr.(Maj) Shaikh Mahfooz and another reported in 2008 (II) OLR (FB) 725 placing reliance upon paragraph 45 wherein the Full Bench of this Court having regard to the conflicting Division Bench judgments of this Court with reference to Section 100-A of the Code of Civil Procedure as amended by Act 22 of 2002 has held that appeal against the judgment/order of a learned Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent is not available as it is held that no provision for filing an appeal to a Division Bench against the judgment/decree/order of a learned Single Judge has been made. In this view of the matter, the learned counsel for the respondent contends that appeal against the order of the learned Single Judge in view of the aforesaid Full Bench decision of this Court which has answered the reference holding that against the judgment or order passed by a learned Single Judge in view of Section 100-A of C.P.C. letters patent appeal is not provided, the appeal is not maintainable in law and, therefore, requested to dismiss this appeal on this count itself.
3. Learned counsel appearing on behalf of the appellant herein rebuts the said contention placing reliance on the very same Full Bench decision at paragraph 47 (3) wherein this Court after interpretation of Section 100-A and the various decisions of the Supreme Court with regard to jurisdiction of judicial review power of this Court under Articles 226 and 227 of the Constitution and also the remedy of appeal under Clause 10 of the Letters Patent read with Orissa High Court Order, 1948 held that no Letters Patent Appeal shall lie against judgment/order passed by a learned Single Judge in view of the amendment of the CPC by Amendment Act 22 of 2002 and further the Full Bench has examined the remedy of an aggrieved party keeping in view the decision of the Supreme Court in the case of Umaji Keshao Meshram & others v. Smt.Radhika Bai and another, AIR 1986 SC 1972 and another decision of the Supreme Court, namely, Kanhaiyalal & others v. Factory Manager, Gwalllior Sugar & Co., (2001) 9 SCC 609, wherein the Apex Court held that if, the Single Judge of a High Court in considering the question under Articles 226 and 227 does not state under which provision he has decided the matter and how the facts satisfied filing of petition both under the aforesaid articles of the Constitution and the petition so filed is dismissed on merit, the matter may be considered in proper perspective in appeal. It also further placed reliance upon various other decisions of the Supreme Court particularly the decision in the case of Surya Dev Rai v.Ram Ch.Rai, AIR 2003 SC 3044 wherein the apex Court examined the power of the High Court under Articles 226 and 227 of the Constitution of India and the appeal power of a party and at paragraph 47 sub-para 3 while summing up the legal contentions answered the reference which reads thus:
"A Writ Appeal shall lie against the judgment/orders passed by a learned Single Judge in a Writ Petition filed under Article 226 of the Constitution of India. In a Writ application filed under Articles 226 and 227 of the Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a Writ Appeal will lie, whereas no Writ Appeal will lie against judgment/order/decree passed by a Single Judge exercising powers of superintendence under Article 227 of the Constitution."
4. Further strong reliance is placed upon another Division Bench decision of this Court in the case of Narayan Chandra Nayak v. Harish Ch.Jena, reported in 2009 (Supp-1) OLR 513. In that case the learned Civil Judge passed order directing recounting of votes. Against the said order writ petition was filed before this Court and the learned Single Judge rejected the writ petition against which writ appeal was filed before this Court. This Court after interpretation of Rule 30 of the Orissa Panchayat Samiti Election Rules, 1991, held that recounting of votes can be allowed in exceptional circumstances, where the Court comes to the conclusion that the election petitioner is not seeking a roving and fishing inquiry. Against the order of the learned Single Judge, writ appeal was filed and the Division Bench of this Court examining the various decisions of the Supreme Court held that finding of fact in election cases should not be interfered with in the appeal by the Division Bench unless palpable errors are present, after holding that the writ appeal against the order of the learned Single Judge is maintainable. The said decision with all fours is aptly applicable to the fact situation of this case.
5. Having regard to the rival legal contentions urged by the learned counsel on behalf of the parties, we have very carefully examined the Full Bench decision of this Court and another Division Bench decision of this Court and various decisions of the Supreme Court referred to in both the said decisions, particularly, the decision in the case of Umaji Keshao Meshram & others v. Smt.Radhika Bai and another, and also the decision in Surya Dev Rai v. Ram Ch.Rai, referred to supra, upon which reliance is placed by the Full Bench and the Division Bench and rightly held that against the judgment and order of the learned Single Judge right of appeal is available to the aggrieved person. In the conclusion of the Full Bench at sub-para (3), of paragraph 47, the relevant portion of which is extracted above where the similar contention as urged by the learned counsel on behalf of the appellant is adverted to in the said case and held that Writ Appeal is maintainable. Therefore, the said case is aptly applicable to the fact situation at hand. In this view of the matter, the preliminary objection raised by the respondent's counsel is wholly untenable in law and the same is liable to be rejected. Accordingly, the same is rejected.
6. We have heard both the learned counsel for the appellant and the learned counsel for the respondent on the merits of the case. After careful consideration of the rival legal contentions urged with reference to the grounds urged in the writ appeal by the appellant's counsel questioning the correctness of the order of the election Tribunal, whose order is affirmed by the learned Single Judge by dismissing the writ petition filed by the appellant, with a view to find out as to whether the order impugned in this appeal or the order of the Tribunal impugned in the writ petition needs interference by this Court on the ground that substantial question of law does arise in the appeal for the reason that the findings which have been recorded by the learned Single Judge in the impugned order by affirming the order of the Election Tribunal suffers from palpable error in law as there is no pleading or issue framed ? It is urged on behalf of the appellant that the said order of the Tribunal is erroneous in law for the reason that the Tribunal has exceeded in its jurisdiction in granting the relief of recounting, as prayed for by the election petitioner (present respondent) before the Election Tribunal, which contention was rejected in its order, whose order is affirmed by the learned Single Judge. The said contention is carefully examined by us. We have carefully examined the order of the Election Tribunal. The Election Tribunal, after adverting to the relevant facts and circumstances of the case and also the evidence of the appellant and the respondent adduced in the election petition before it, has examined the claim of the respondent as to whether he is entitled for recounting of votes of certain booths on the basis of facts pleaded, namely, the respondent has secured 1190 votes whereas the appellant secured 1229 votes and while counting the total votes polled the counting officials have added more than 40 invalid votes to the account of the appellant and 24 valid votes of the respondent were rejected. Therefore, the election Tribunal on the basis of the pleadings and the evidence of P.W.1, the respondent herein who has corroborated the averment in the election petition and whose evidence is corroborated by the evidence of P.Ws. 2 and 4 regarding addition of invalid votes in favour of the appellant and rejection of valid votes of the respondent in favour of the appellant and that of P.W.5 who has corroborated the evidence of P.W.1 regarding declaration of 19 votes in favaour of the appellant by the election officials though the appellant has not secured the same and after satisfying about prima facie case and relevant aspects of the case for ordering recounting of votes has allowed the application of the respondent. The said order was challenged by the appellant before this Court in a writ petition and the same was examined by the learned Single Judge in the impugned order with reference to the legal contentions urged in the writ petition and also after adverting to the decisions of the apex Court in the case of T.S.Musthaffa v. M.P.Varghese and others, (1999) 8 SCC 692, in support of the contention wherein the apex Court has held that unless pleading contains necessary foundation for raising an appropriate issue, no amount of evidence is sufficient for raising the issue and granting the relief sought for by the respondent and considering the evidence that 40 invalid votes were added to the credit of the appellant herein and 24 valid votes of the respondent were rejected illegally, the learned Single Judge held that there was improper addition of votes in favour of the appellant and rejection of valid votes in favour of respondent and the case of the respondent is that the appellant was illegally elected as Sarpancha of Lingamarani Gram Panchayat. After referring to the case of the apex Court in the case of Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College and others, AIR 1987 SC 1242 the Apex Court has observed that some times pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question and that of Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735, wherein it was held that the general rule for that relief should be founded on the pleadings of the parties, but where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is: Did the parties know that the matter in question was involved in the trial and did they lead evidence about it, the learned Single Judge held that there were sufficient materials in the pleading showing rejection of valid votes and acceptance of invalid votes. The learned Single Judge has further placed reliance upon the Division Bench decision of the Bombay High Court in Appa Babaji Misal Patil and others v. Dagdu Chandru Misal and others, AIR 1995 Bombay 333, the learned Single Judge has accepted the conclusion arrived at by the learned election Tribunal in allowing the application of the respondent. The learned Single Judge has examined all the legal contentions urged on behalf of the parties to find out as to whether the Election Tribunal's order is vitiated on account of erroneous reasoning or error in law and found that the said order is perfectly legal and valid as the same is based on the pleadings, evidence on records and legal principle laid down by the apex Court and Bombay High Court in the cases referred to supra and rightly held that the order impugned in the writ petition does not call for interference. In our considered view, the said view of the learned Single Judge is perfectly legal and valid and does not call for interference by this Court in this appeal as we find that there is no palpable error present in the order or there is no compelling circumstances to interfere with the same. Therefore, the writ appeal is devoid of merit and is accordingly dismissed.
Writ appeal dismissed.