Sangram Singh v Election Tribunal, Kotah

Facts

In an election petition under the Representation of the People Act, 1951 tried by the Election Tribunal at Kotah, Sangram Singh had appeared and filed a written statement at the Kotah stage. When the hearing shifted to Udaipur (17-21 March 1953) he and his counsel failed to appear on 17-18 March, and the Tribunal proceeded ex parte and recorded evidence. On 20 March his counsel appeared but was refused permission to participate on the strength of the ex parte order, and on 21 March the application to set aside the ex parte order was rejected for want of a 'just or unavoidable reason'. His writ petition under Article 226 was dismissed by the Rajasthan High Court, leading to this appeal.

Issues

• Whether the jurisdiction of the High Court under Article 226 (and of the Supreme Court under Article 136) is ousted by Section 105 of the Representation of the People Act, 1951 making tribunal orders 'final and conclusive'.
• What 'ex parte' means under Order 9 Rule 6 CPC and whether such an order continues to bar the defendant from appearing at later adjourned hearings.
• Whether Order 9 Rule 7 CPC absolutely prevents a defendant from appearing at an adjourned hearing unless he shows good cause, or merely prevents him from being relegated to the earlier stage.
• The scope of the court's discretion at an adjourned hearing under Order 17 Rule 2 CPC.

Arguments

The appellant contended that Article 226 jurisdiction survived Section 105, that the Tribunal violated natural justice by shutting out his counsel, and that an ex parte order does not perpetually bar future appearance. The respondents contended that Section 105 made the Tribunal's orders final and beyond review, and that the ex parte order, unexplained by good cause, justified excluding the appellant from further participation.

Held

The Court held that Section 105 does not curtail the jurisdiction of the High Courts under Article 226 or of the Supreme Court under Article 136, though that power is discretionary and not to be used as an ordinary appeal. Procedural codes are meant to facilitate justice and must be construed in harmony with natural justice so that no party is condemned unheard. An 'ex parte' order under Order 9 Rule 6 means only that the court may proceed in the defendant's absence; it is not an order that must be formally set aside, and Order 9 Rule 7 merely prevents the defaulting defendant from being relegated to the earlier stage rather than barring his appearance altogether. At an adjourned hearing the court has the widest discretion under Order 17 Rule 2 and is not bound by the supposed ex parte order. Accordingly the Tribunal's refusal to let the appellant's counsel participate was quashed and the matter remitted for the discretion to be exercised afresh.

Ratio decidendi

An order to proceed 'ex parte' under Order 9 Rule 6 CPC does not bar the defendant from appearing at a subsequent adjourned hearing; it only disentitles him from being placed back at the stage he missed, and at adjourned hearings the court retains wide discretion under Order 17 Rule 2. Procedural law must be construed liberally to advance, not defeat, the ends of justice and natural justice.

Significance

A leading authority on the interpretation of the CPC and on the meaning of 'ex parte' proceedings, repeatedly followed for the propositions that procedural rules are handmaids of justice, that no party should be condemned unheard, and that statutory finality clauses cannot oust the writ jurisdiction under Articles 226 and 136. It remains the classic exposition of Order 9 Rules 6-7 and the court's discretion at adjourned hearings under Order 17.

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