Case No: Civil Petition for Leave to Appeal No. 15 of 1998
Judge: Bimalendu Bikash Roy Choudhury,
Court: Appellate Division ,,
Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Amirul Islam,,
Citation: 51 DLR (AD) (1999) 171
Appellant: Moulana Delwar Hossain Saydee
Respondent: Sudhangshu Shekhar Halder
Subject: Election Matter,
Delivery Date: 1998-6-8
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Chowdhury J
Moulana Delwar Hossain Saydee
Sudhangshu Shekhar Halder and others
June 8, 1998.
The Representation of the People’s Order, 1972
The Code of Civil Procedure, 1908 (V of 1908)
Order XLI, rule 14(3)
Since the appeal is a continuation of the election petition the provisions of the Code of Civil Procedure will apply to appeals as well. Learned Judges of the High Court Division do not appear to have committed any illegality in dispensing with the service of notice upon the non-contesting parties in terms of the principle underlying Order 41, rule 4(3) of the Code of Civil Procedure…….(9)
Khandker Mahbubuddin Ahmed, Senior Advocate (Abdur Razzak, Advocate with him) instructed by Md. Nawab Ali, Advocate-on-Record — For the Petitioner.
Amirul Islam, Senior Advocate instructed by Md. Aftab Hossain Advocate-on-Record—For the Respondent No.1.
Not represented — Respondent Nos. 2 to 19.
Civil Petition for Leave to Appeal No. 15 of 1998
(From the judgment and order dated 26 October 1997 passed by the High Court Division in First Miscellaneous Appeal No. 144 of 1997).
Bimalendu Bikash Roy Choudhury J.
1. The petitioner along with the first respondent and 7 others contested for Membership of the Parliament from constituency No. 129, Pirojpur-1 that was held on 12 June 1996. The petitioner was declared elected after his having secured the highest number of votes. The first respondent who was unsuccessful filed an election petition, being Election Petition Case No.1 of 1996 before the Election Tribunal, Pirojpur, questioning the election of the returned candidate on various grounds.
2. All other candidates were impleaded as parties to the election petition, besides several officials.
3. The petitioner alone contested the case.
4. The Election Tribunal, by a judgment and order dated 19 May, 1997, allowed the election petition in part with a direction for fresh poll in one of the 93 centres namely, Garghata Government Primary School Centre.
5. The petitioner preferred First Miscellaneous Appeal No. 109 of 1997 under Article 62(3) of the Representation of the Peoples Order, 1972, hereinafter referred to as the Order.
6. The first respondent also filed another appeal, being First Miscellaneous Appeal No. 1144 of 1997. In order to have an expeditious hearing of his appeal he made an application under Order 41, rule 14(3) of the Code of Civil Procedure for dispensing with the service of notice of the appeal upon the non-contesting parties to the election petition. The petitioner raised objections thereto.
7. A Division Bench of the High Court Division allowed the prayer of the first respondent by an order dated 26 October 1997. The petitioner being aggrieved thereby now seeks leave to appeal therefrom.
8. The gravamen of the petitioners’ grievance is that the High Court Division has traveled beyond its jurisdiction in dispensing with the service of notice of the appeal upon the non-contesting parties to the election petition inasmuch as the provision of Order 41, rule 14(3) of the Code of Civil Procedure has no manner of application to an appeal under Article 62(3) of the Order which is a special statute and has made no express provision therefor.
9. Articles 57(1) and 59(1) of the Order have made the Code of Civil Procedure applicable to the proceedings before an Election Tribunal subject to the provisions of the Order and the rules made thereunder. The Order is silent as to the procedure applicable to appeals provided under Article 62(3). Since the appeal is a continuation of the election petition, the provisions of the Code of Civil Procedure will apply to appeals as well. The Order does not expressly debar dispensing with service of notice on non-contesting parties. In the absence of such a bar the learned Judges of the High Court Division do not appear to have committed any illegality in dispensing with the service of notice upon the non-contesting parties in terms of the principle underlying Order 41, rule 14(3) of the Code of Civil Procedure. A contrary view would impede the course of the appeal frustrating the intendment of the statute that election matters should be expeditiously disposed of.
We, therefore, find no substance in this petition which is dismissed.