Case No: Civil Appeal No. 112 of 2002
Judge: Syed JR Mudassir Husain ,
Court: Appellate Division ,,
Advocate: Mr. Mahbubey Alam,Mr. Rafique-ul-Huq,,
Citation: I ADC (2004) 465
Case Year: 2004
Appellant: Giasuddin Quader Chowdhury
Respondent: ABM Fazle Karim Chowdhury
Subject: Election Matter,
Delivery Date: 2002-8-21
Md. Ruhul Amin J
Syed JR Mudassir Husain J
Abu Sayeed Ahamed J
Giasuddin Quader Chowdhury
ABM Fazle Karim Chowdhury and others
August 21, 2002.
The Representation of the Peoples Act, 1951
Section 86, 117
The Representation of Peoples Order, 1972
Article 62(3), 49 (4), 58, 113
The Constitution, 1972
Article 50, 51(1), 57(1), 62(1)
From a reading of the Clause 4 of Article 49 of the Order, the intention of the legislature cannot be inferred that the term ‘petitioner’ means that it is the appellant-petitioner alone shall have to deposit the said amount while presenting the Election Petition and not by any person on his behalf. His argument is that it is not the intention the legislature and it cannot be. Rather it will be an absurd proposition that the deposit so made by the engaged lawyer of the appellant will render the Election Petition invalid being not in accordance with aforesaid provision of law. It is emphatically argued that the deposit made by any authorized person of the appellant should be deemed to have been made by the petitioner himself and it should be regarded as directory in nature. …. (14)
Cases Referred To-
Kamaraja Nadar, Appellant Vs. Kunju Thevar and others, Respondents, AIR 1958 (S.C.) 687; M. Karunanidhi, Appellant Vs. H. V. Handa and others, Respondents; R. Rangasami, Petitioner Vs. V.C.R. Rajappa and another, Respondents; A. Chinnadurai, Petitioner V. Perumal Nainar and others, Respondents; R.Periasamy, Appellant Vs.T.P.K. Jayaraj and others, Respondents; A. Chindraseknaran, Appellant Vs. P. S. Manian and others, Respondents; A.I.R. 1983 page 558.
Rafique-Ul-Huq, Senior Advocate (Md. Zafarullah Chowdhury, Advocate, with him) instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Appellant.
Mahbubey Alam, Senior Advocate, instructed by Chowdhury Md. Zahangir, Advocate-on-Record-For respondent No. 1.
Not represented-Respondent Nos. 2-5.
Civil Appeal No. 112 of 2002.
(From the judgment and order dated 20th and 21st April, 2002 passed by the High Court Division in Election Petition No. 3 of 2001).
Syed JR Mudassir Husain J.
1. This is a Certificated appeal, in view of the provision in Article 62(3) of the Representation of People's Order, 1972 (hereinafter referred to as the order), against the judgment and order passed by the High Court Division on 20th and 21st April, 2002 in Election Petition No. 3 of 2001 dismissing the same on the ground of maintainability.
2. The appellant, Giasuddin Quader Chowdhoury, Presented the aforesaid Election Petition No. 3 of 2001 before the High Court Division against the respondent No. 1 and others accompanied by a deposit of an amount of Tk. 2000/- (taka two thousand) as security cost of the said petition through his learned Advocate Mr. Mohammad Zafarullah Chowdhury who deposited the said amount to the cashier of the Supreme Court in favour of the Registrar, Supreme Court, Vide Chalan No. 4 dated 23rd October, 2001 as per Notification issued by the Registrar on 18-10-2001 with the approval of the Hon’ble Chief Justice of Bangladesh.
3. The appellant filed the said Election Petition before the High Court Division for declaring him as an elected Member of the Eighth Jatiya Sangshad form the Constituency No. 284, Chittagong-6 (Rauzan) after holding that the Election of the respondent No.1, A.B.M. Fazle Karim Chowdhury as void because of illegal and corrupt practices adopted by him.
4. The respondent No.1 contested the said Election Petition Case by filling written objection thereto and whereby denied all the material allegations made in the said Election Petition contending, inter alia, that the appellant (Election Petitioner) did not deposit the security cost of the Election Petition in accordance with the Rules of the High Court Division and also failed to comply with the provision of Article 49(4) of the Representation of the People's Order (President's Order No. 155 of 1972).
5. During the Progress of the case, the High Court Division framed several issues and one those was an issue of maintainability, which reads as follows: "Is the Election Petition maintainable under Article 58 of the Representation of the People's Order (P.O. No. 155 of 1972)."
6. None of the respondents filed any application for hearing of the said issue No. 1 before hearing the other issues but the High Court Division suo moto fixed the matter for hearing of the said issue of Maintainability. However, after several adjournments of the case, the said Issue No.1 was finally heard and the learned single Judge of the High Court Division dismissed the Election Petition by the impugned judgment.
7. Before, we consider and appreciate the submissions of the learned Counsels, it is necessary to set out the relevant provision of Article 107 of the Constitution of the People's Republic of Bangladesh, the Notification issued by the Register of the Supreme Court and the provisions of Articles 49, 50, 51, 57 and 58 of the Representation of the People's Order, 1972 (P.O. No. 155 of 1972) as amended-
(2) The Supreme Court may delegate any of its functions under clause (1) and article 113 to a division of that Court or to one or more Judges.
(3) Subject to any rules made under this article the Chief Justice shall determine which Judges are to constitute any bench of a division of the Supreme Court and which judges are to sit for any purpose.
(4) The Chief Justice may authorize the next most Senior Judge of either Division of the Supreme Court to exercise in that division any of the powers conferred by clause (3) or by rules made under this article.
বাংলাদেশ সুপ্রীম কোর্ট
হাইকোর্ট বিভাগ, ঢাকা।
নং-৭৯ জি, তারিখ-১৮-১০-২০০১
সংশ্লিষ্ট সকলের অবগতির জন্য জানান যাইতেছে যে, The Representation for the People's (Amendment) Ordinance, 2001 সংশোধনের ফল নির্বাচন সংক্রান্ত অভিযোগ শুনানীর নিমিত্তে হাইকোর্ট বিভাগকে ক্ষমতা অর্পন করা হইয়াছে।
উক্ত অধ্যাদেশের ৪৯(৪) বিধান অনুসারে security for the cost of petition হিসাব নির্ধারিত টাকা অন্যান্য সিভিল মামলার ন্যায় নির্বাচনী মামলার ক্ষেত্রেও একই পদ্ধতিতে হাইকোর্ট বিভাগের ক্যাশিয়ারের নিকট জমা দেওয়া যাইবে এবং নির্বাচনী মামলা সমূহ ফাইলিং শাখায় দাখিল করিয়া ষ্ট্যম্প রিপোর্টার গ্রহন পূর্বক সংশ্লিষ্ট কোর্ট উপস্থাপন করা যাইবে।
(কামরুল আসলাম সিদ্দিকী)
Article 49. (1) No election shall be called in question except by an election petition presented by a candidate for that election in accordance with the provisions of this Chapter.
(2) An election petition shall be presented to the high Court Division within such time as may be prescribed.
(3) An election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and even-such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
(4) At the time of presenting an election petition, the petitioner shall deposit in the High Court Division in accordance with the Rules of the High Court Division a sum of Taka two thousand as security for the cost of a petition".
Article 50. The petitioner shall jam as respondents to his election petition-all contesting candidates; and
any other candidate against whom any allegation, if any, of any corrupt or illegal practice is made.
Explanation.- In this Article and in the following provisions of this chapter, "corrupt or illegal practice" means a "corrupt practice" or an "illegal practice" within the meaning of Chapter VI.
Article 51. (1) Every election petition shall contain-
a precise statement of the material facts on which the petitioner relies:
full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties appalled to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations, namely-
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or
(c) that the election as a whole is void.
(3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil procedure, 1908 for the verification of pleadings.
Article 57. (1) Subject to the provisions of this Order and the rules, every election petition shall be tried, as nearly as may be, in accordance with the procedure for the trial co suits under the Code of Civil Procedure, 1908:
Provided that the [High Court Division] may made a memorandum of the substance of the evidence of each witness as his examination proceeds unless it considers that there is special reason for taking down the evidence of any witness in full refuse to examine a witness if it considers that his evidence is not material or that he has been called on a frivolous ground for the purpose of delaying the proceedings.
(2) Subject to the provisions of this Order Evidence Act, 1872, shall apply for the trial of an election petition.
(3) The High Court Division may, at any time, upon such terms and on payment of such fee as it may direct, allow petitions to be amended in such manner a may, in its opinion, be necessary for ensuring a fair and effective trial ad for determining the real questions at issue, so however that no new ground of challenge to the election is permitted to be raised.
(4) At any time during the trial of an election petition, the [High Court Division] may call upon the petitioner to deposit such further sum by way of security, in addition to the sum deposited under Article 49, as it may think fit.
(5) The High Court Division shall not adjourn the trial of an election petition for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice.
(6) The High Court Division shall try an election petition as expeditiously as possible and shall endeavor to conclude the trial within six months from the date on which the election petition is presented to it for trial.
Article 58. The High Court Division shall dismiss an election petition, if-
the provisions of Article 49 or Article 50 or Article 51 have not been compiled with; or
the petitioner fails to make the further deposit required under clause (4) of Article 57.
Article 62. (1) The High Court Division may upon the conclusion of the trial on an election, make order-
a) dismissing the petition;
b) declaring the election of the returned candidate to be void;
c) declaring the election of the returned candidate to be void and the petition or any other contesting candidate to have been duly elected; or
d) debarring the election as a whole to be void.
(2) Save as provided in clause (3), the decision of a (High Court Division) on an election petition shall be final.
(3) Any person aggrieved by a decision of the High Court Division may within thirty days of the announcement of the decision appeal to the Appellate Division (if it grants leave to appeal.)
8. Mr. Rafiqul Huq, the learned Senior Counsel, appearing for the appellant, has placed before us the impugned judgment and referred to the different Articles of the Representation of People's Order, 1972, the Calcutta High Court's Rule, 1914, the Rules of the High Court of Judicature of East Pakistan Vol. 1 and also cited several decisions f the courts of law; thereafter, he submitted that before filing of the Election Petition, the learned Advocated met the Registrar of the Supreme Court and wanted to know as to how the security for cost of Election Petition is to be deposited in the High Court Division and in pursuance of the same, the Registrar of the Supreme Court with approval of the Hon'ble Chief Justice of Bangladesh, issued Notification on 18-10-2001 giving direction that the security for cost can be deposited with the cashier of the Supreme Court. Accordingly, Mr. Md. Zafarullah Chowdhury, Advocate of the appellant filed the Election Petition after depositing the requisite amount under Clause 4 of the Article 49 of the said Order, 1972.
9. In such view of the matter, learned Counsel contended that the High Court Division misinterpreted and misconstrued the provisions of Clause 4 of Article 49 of the Representation of the People's Order, 1972 (as amended) in as much as the term "petitioner" appearing in the said clause does not mean the "petitioner himself. His contention is that it is imperative and obligatory on the part of the Election-petitioner to deposit the amount of Tk. 2,000/- (taka two thousand) as security for cost of Election Petition as such deposit is a must and it is mandatory because of the fact that without such deposit the Election Petition can not be entertained and the same shall be dismissed.
10. In elaborating the above contention Mr. Rafiqul Huq, pointed out that form a reading of the Clause 4 of Article 49 of the Order, the intention of the legislature can not be inferred that the term 'petitioner' means that it is the appellant-petitioner alone shall have to deposit the said amount while presenting the Election Petition and not by any person on his behalf. His argument is that it is not the intention the legislature and it can not be. Rather it will be an absurd proposition that the deposit so made by the engaged lawyer of the appellant will render the Election Petition invalid being not in accordance with aforesaid provision of law. It is emphatically argued that the deposit made by any authorized person of the appellant should be deemed to have been made by the petitioner himself and it should be regarded as directory in nature. We find sufficient force in the above submissions of the learned Counsel.
11. Mr. Huq further submitted that in the absence of any specific rule, the Hon'ble Chief Justice of Bangladesh as the rule making authority is competent enough to issue such Notification in order to meet any exigencies if and when it is deemed necessary and thus it is argued that the aforesaid Notification dated 18-10-2001 having been issued with the approval of the Hon'ble Chief Justice of Bangladesh under the signature of the Registrar of the Supreme Court directing the manner of such deposit was valid and legal and payment so made as per said Notification was also valid and legal being in accordance with the aforesaid Article 49 of the Order, 1972.
12. Having reiterated his submissions made before the High Court Division, Mr. Rafiqul Huq next contended that there are 2(two) High Court Rules one is the Rules of High Court of Judicature of East Pakistan Vol.1, wherein Chapter-XVI deals with the deposit and payment of money and as a guide line for depositing money in appeal cases but there is no provision of deposit of security money for election dispute being a case of original jurisdiction and the another Rules is the Calcutta High Court Rules, 1914 wherein Chapter-XXIV provided for "Money Rules" which is for guidance and for depositing money in respect of original side suits of all nature. By an analogy being drawn Mr. Huq submits that since the High Court Division is trying the election case under Special Statutory Jurisdiction is an original court and as such the original side Rules of Calcutta High Court, 1914 may be made applicable in the matter of depositing the amount security for the cost of Election Petition. Drawing our attention to the aforesaid High Court Rules,1914, the provision of Article 49(4) of the said Order and also the implication of aforesaid notification, Mr. Huq argued that regarding the deposit of the cost of the security of Election Petition, it is mere a subject of technical nature and not a matter of substantive nature and that even if any irregularity, if found in the manner of said deposit of the cost, the Election Petition can not e thrown out of the court without hearing the petition on merit since the allegations made in the Election Petition are required to be established by adducing evidence and without giving the appellant a chance, he has been non-suited on mere technical ground as to mode of deposit in question and thereby the appellant has been seriously prejudiced. The learned Single Judge without at all considering this aspect of the case committed an error of law which resulted in an error in the decision causing failure of justice.
13. Mr. Mahbubey Alam, the learned Counsel, appearing for the respondent No. 1, on the other hand, contended that under the provision of Clause 4 of Article 49 of the Representation of the People's Order, 1972 the security deposit for the costs of the election, shall be made by the petitioner himself in person, since such deposit has been made by the appellant's Advocate is not a deposit in eye of law according the said provision. His contention is that the said People's Order, 1972 (P.O.155 of 1972) is a special law and the provisions thereof are mandatory in nature and those are to be construed and interpreted very strictly and those provisions can not be said to be directory. According to Mr. Mahbubey Alam, the so called deposit made by the lawyer of the appellant is not a deposit in the eye of law; as such the High Court Division has rightly dismissed the Election Petition as being not maintainable.
14. Mr. Alam next contended that no Rule has yet been reamed by the Supreme Court either according to Article 107 of the Constitution or according to Part X of the Code of Civil Procedure in regulating the practice and procedure of election dispute by the High Court Division and in the absence of any specific Rule, the High Court's Rules of appellate side which is being followed by the High Court Division in disposing of the Civil Appeal and Civil Petition cases. He argued that the instant case is a petition case and not a case of original side under the Calcutta High Court Rules, 1914 which is the guiding principle of the Constitutional and Company matter and the said Calcutta rule can not be applied in the instant case.
15. We have heard the learned Counsel and perused the impugned judgment and the relevant provisions of law as quoted above and we find that the provision of Article 107 is not a relevant in the instant case because the provision of Article 107 of the Constitution is with regard to framing of Rules or regulating the practice and procedure of each division that is the High Court Division and the Appellate Division and for the subordinate judiciary and it deals with Constitution of the Bench and the power exercised by the learned Judges.
16. The moot points in this case are firstly to see as to whether the Election Petition presented by the appellant is maintainable or not, secondly whether there has been non compliance of provision of Clause 4 of Article 49 of the Representation of People's Order, 1972 and lastly whether the Notification dated 18-10-2001 issued by the Registrar of the Supreme Court is in consonance with the Rules of the High Court Division of Judicature of East Pakistan Vol.1 and Calcutta High Court Division Rules, 1914. In order to consider those questions, it is to be mentioned here that the language of Article 49 of the Representation of the People's Order, 1972 is more or less similar to the provisions of Section 117 of the People's of Representation Act, 1951 of India which reads as follows:
Section 117. "Deposit of security; the petitioner shall enclosed with the petition a Government Treasury Receipt showing that a deposit of Rs. 1000/- has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Case as security for the cost of the petition".
17. The question of deposit and not compliance for the above section was considered in the case Kamaraja Nadar, Appellant Vs. Kunju Thevar and others, Respondents reported in AIR 1958 (SC) page 687 wherein their Lordships of the Supreme Court considered the question of deposit under section 117 the said Act and held in the following language-
"The words 'in favour of the Secretary to the Election Commission' used in section 117 are directory and not mandatory in their character. What is of the essence of the provision contained in Section 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilized by it in the manner authorized by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorized by it to receive the same, be he the Secretary to the Election Commission or any one else. If, therefore it can be shown by evidence led before the Election Tribunal that the Government Treasury receipt or the challan which was obtained by the petitioner and enclosed by him along with his petition presented to the Election Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realize the said sum of rupees one thousand for payment of the cost to the successful party it would be sufficient compliance with the requirements of Section 117 Similar question as to deposit of security in Election Petition also came up for consideration in the case of M. Karunanidhi, Appellant Vs. H. V. Handa and others, Respondents and R. Rangasami, Petitioner Vs. V. C. R. Rajappa and another, Respondents and A. Chinnadurai, Petitioner V. Perumal Nainar and others, Respondents and R. Periasamy, Appellant Vs. T. P. K. Jayaraj and others, Respondents and A. Chindraseknaran, Appellant Vs. P. S. Manian and others, Respondents, reported in A.I.R. 1983 page 558. Wherein their Lordships having considered various decisions held as follows:
"In the support of this appeal, learned Counsel for the appellant contends that the provisions of sub-section (1) of section 117 of the Act are mandatory, non compliance of which will entail dismissal of the election petition in limine under sub-section (1) of section 86 of the Act. It is urged that no distinction can be drawn between the requirements as to the making of a security deposit in the High Court under sub-section (1) of Section 117 and the manner of making such deposit and sub-section (1) of section 117 can not be dissented into two parts, one art being treated as mandatory and the other as directory. It is further urged that the words "in accordance with the rules of the high Court under sub-section (1) of section 117" were as much a mandatory requirement as the requirement that the election petitioner shall, at the time of presenting an election petition, deposit in the High Court a sum of Rs. 2000/- as security for the cost of the petition. There is therefore no warrant for the view taken by the High Court that the factum of deposit of the security amount of Rs. 2000/- in the High Court was mandatory and not the manner in which the security deposit was made. It is also urged that Rule 8 of the Election Petitions Rules framed by the High Court under Article 225 to regulate the mode of making deposit must be read as forming part of sub-section (1) of section 117 by incorporation and therefore the only manner prescribed in by making deposit in cash with the Registrar. When a statute requires that something shall be done in a Particular manner of form expressly declaring what shall be the consequence of non-compliance with it, the requirement must be regarded as imperative. Having regard to the definite stand taken by the respondent that he had complied with the requirements of Rule 8, it is not permissible to fallback on the provisions contained in Order 31 of the Madras High Court Rules relating to deposit of suitors' money. The last submission is that in view of the finding reached by the High Court that there was no strict or literal compliance of Rule 8, the election petition must be dismissed. Even if the rule of substantial compliance applies, it is clear on evidence that there has been no compliance at all much less any substantial compliance. There is intrinsic evidence to show that there has been tampering with the documents. We are afraid, the contention that there was no compliance of sub-section (1) of section 117 of the Act cannot prevail in the light of the well settled principles.
18. The submissions advanced by learned counsel for the appellant cannot be accepted as they proceed on the assumption that no distinction can be drawn between the requirement as to the making of a deposit in the High Court under sub-section (1) of section 117 and the manner of making such deposit. There was considerable emphasis laid by learned Counsel that sub-section (1) of Section 117 cannot be dissected into two parts, one part being treated as mandatory and the other as directory. The contention is wholly misconceived and indeed runs counter to several decisions of this court. It is always important to bear the distinction between the mandatory and directory provisions of a statute. Sub-section (1) of Section 117 is in two parts. The first part of sub-section (1) of 117 provides that at the time of presenting an election petition, the petitioner shall deposit in the High Court a sum of Rs. 2000/- as security for the costs of the petition, and the second is that such deposit shall be made in the High Court in accordance with the rules of the High Court. The requirement regarding the making of a security deposit of Rs. 2000/- in the High Court is mandatory, the non-compliance of which must entail dismissal in limine of the election petition under sub-section (1) of section 86 of the Act. But the requirement of its deposit in the High Court in accordance with the rules of the High Court is clearly directory. As Maxwell on the Interoperation of Statues, 12th Edn. at page 314 puts it: "An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially". The rule of construction is well settled and we need. Not burden the judgment with many citations.
"It is well established that an enactment in form mandatory might in substance be directory and that the use of the word "shall" does not conclude the mater. The general rule of interpretation is well known and it is but and aid for ascertaining the true intention of the Legislature which is the determining factor, and that must ultimately depend on the context.
The following passage from Crawford on 'Statutory Construction" at page 516 brings out the rule:
"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other."
19. The learned Single Judge has at all not considered the above cited decisions while disposing of the Election Petition on the ground of maintainability and as such we find that findings and decisions arrived at by the High Court Division suffers from legal infirmity and those can not be sustained in law and the learned Single Judge committed an error of law in not holding that the meaning and concept of the word 'petitioner' shall deposit does not mean that the petitioner shall, in person, have to deposit and not by any one on his behalf and if so the Election Petition shall not be registered; that there being no such consequential term that is to say the defaulting clause to the effect that unless the deposit is made by the appellant himself in person, the Election Petition will not be entertained and it shall be dismissed in limini. So, the argument of Mr. Rafiqul Huq being that the deposit as made on behalf of the appellant through his learned Advocate, Zarullah Chowdhury is quite valid terms of the provisions of Article 49(4) of the Order, 1972 is of substance and further we hold that the term 'petitioner' as quoted in Article 49(4) of the Order, 1972 as (amended) does not man the petitioner himself and may be some body on his behalf and this part of the said order in our view is directory.
20. We have already noticed that there are 2 (two) Rules one is Calcutta High Court Rules 1914 and the Rules of Judicature of East Pakistan vol. 1. Since there is no provision for the deposit of security for the cost of Election Petition, the Hon’ble Chief Justice of Bangladesh having the rule making power issued the Notification dated 18-10-2001 considering the matter of public importance and providing guide line in order to implement the provision of Article 49(4) of the said Order, 1972. Since the High Court Division is trying the election dispute as a court of first instance is a original court deciding the election Petition as original side matter and in such view of the matter, the analogy drawn by Mr. Rafiqul Huq that the original side Rules of Calcutta High Court 1914 may be made applicable treating the said Notification as part of the High Court Rules. We accept this argument of Mr. Rafiqul Huq.
21. It is true that the Representation of People's Order, 1972 is a special law for deciding the election dispute Chapter 5 of the Representation of the said order deals with election dispute but in view of the decisions as cited above, we are of the view that as regard presenting the Election Petition with deposit of Tk. 2000/- is a must and it is mandatory but the mode of depositing the said cost by the petitioner alone is not mandatory rather it is directory.
22. It appears that the learned single Judge himself found that the allegations as to corrupt and illegal practice have been specifically stated by the appellant in the Election Petition but without considering the fact that the appellant should be given a chance to prove the allegations by adducing evidence at the time of hearing of the case. The learned Single Judge having not considered this aspect misdirected himself in misreading the provision of Article 51 of the said Order.
23. On perusal of the impugned judgment, we find that the learned Single Judge, he has referred certain decisions wherein the proposition of law laid down is not and can not be disputed. But those decisions, in our view, have no manner of application in the instant case in view of our above discussions arising out the facts and circumstances of the instant case.
24. For all the above reasons, we find substance in this appeal and accordingly the findings and decisions of the learned Single Judge are set aside. In the result, the appeal is allowed any order as to cost.