Sangram Singh vs Election Tribunal, Kotah

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 214 of 1954

Decision Date: 22 March, 1955

Coram: Vivian Bose, B. Jagannadhadas, Bhuvneshwar P. Sinha

In this case the Court recorded that the petition was filed by Sangram Singh against the Election Tribunal of Kotah, Bhurey Lal Baya, and that the judgment was delivered on 22 March 1955 by a three-judge Bench comprising Vivian Bose, B. Jagannadhadas and Bhuvneshwar P. Sinha. The citation of the decision was reported as 1955 AIR 425 and 1955 SCR (2) 1. The matter arose under the Representation of the People Act (Forty-third) of 1951, specifically section 105, which provides that every order of an Election Tribunal made under the Act shall be final and conclusive. The Court examined whether that statutory provision limited the jurisdiction of the High Courts under Article 226 of the Constitution and of the Supreme Court under Article 136 of the Constitution to review the Tribunal’s actions. The Court observed that, despite the language of section 105, the High Courts and the Supreme Court retain unfettered authority to determine whether the Tribunal, while exercising its jurisdiction, acted within the bounds of law. That authority, the Court emphasized, cannot be removed by any legislative device that merely seeks to confer power on a tribunal to act illegally. The legality of an act or conclusion exists independently of the decision of an inferior tribunal; it is part of the law of the land that only the superior courts can finally declare. Accordingly, an inferior tribunal may reach a tentative conclusion, but such a conclusion remains subject to judicial review under Articles 226 and 136. The Court further stated that the jurisdiction of the High Courts under Article 226, together with the supervisory jurisdiction of the Supreme Court, continues in its fullest extent notwithstanding the statutory provision of section 105. Any limitation upon the exercise of that jurisdiction can be imposed only by the Constitution itself. The powers of the High Courts under Article 226 are discretionary, and although no substantive limits can be placed on that discretion, the Court warned that the discretion must be exercised in accordance with recognized principles and not arbitrarily. The Court concluded that the High Courts and the Supreme Court alone are competent to determine what the law of the land is with respect to all other courts and tribunals, and they alone can pronounce with final authority on what is legal and what is not, while the Election Tribunal’s orders remain subject to review.

In exercising the discretion granted by Article 226, the High Courts were required to follow established principles and avoid arbitrary action. They were reminded that their jurisdiction did not make them courts of appeal or revision for correcting simple legal errors that did not cause broad injustice. The Court emphasized that it was prudent to respect the legislature’s intention that disputes concerning special rights, such as those arising in election matters, be resolved promptly. Consequently, the High Courts were advised not to entertain petitions for prerogative writs in election cases without careful consideration. The appellant had lodged an election petition under section 100 of the Representation of the People Act. He attended the initial hearing and a subsequent hearing held at Kotah. The case was then adjourned for further proceedings in Udaipur. The appellant failed to appear at the first three hearings scheduled in Udaipur, prompting the tribunal to proceed ex parte. On the fourth hearing, the appellant’s counsel appeared, but the tribunal declined to permit any further participation because no satisfactory explanation had been offered for the earlier absences, and consequently the tribunal refused to set aside its ex parte order.

The Court set out several principles. First, under section 90(2) of the Representation of the People Act, the procedure for trying election petitions must, as far as possible, mirror the procedure for adjudicating suits under the Civil Procedure Code. Second, the Civil Procedure Code does not contain a provision for an ex parte order that bars a party from appearing at a later adjourned hearing until such order is rescinded. When a party does appear at an adjourned hearing, the court possesses a judicial discretion either to admit the party on terms it deems appropriate or to refuse further participation. Third, if the court permits the party to appear and the party fails to demonstrate good cause under Order 9, Rule 7 for the earlier non-appearance, the proceedings must resume from the point of the later appearance, and the party cannot be retroactively placed in the position he would have occupied had he been present at the earlier hearings. Fourth, in exercising its discretion, the court must ensure that justice is served for all parties, including witnesses. The Court clarified that Rule 6(1)(a) of Order 9 applies only to the first hearing of a suit and does not automatically extend to subsequent hearings. Order 9, Rule 7 provides a party the right to be considered as if present at earlier hearings only when good cause is shown; it does not categorically prohibit later appearance when no good cause exists. Finally, Order 17, Rule 2 governs adjourned hearings and grants the court a broad discretion to issue any order it deems fit.

The law is intended to facilitate justice and to promote its objectives, and it must not be regarded as a statute that creates punishments or penalties. Procedural statutes are founded on the doctrine of natural justice, which obliges that individuals not be condemned without being heard, that decisions not be taken in their absence, and that legal proceedings that affect a person's life or property not continue when that person is not present. Accordingly, unless a clearly defined exception applies, procedural rules should be interpreted, as far as reasonably possible, in accordance with the principle of natural justice. The court possesses the broadest possible discretion to ensure that justice is achieved for every person affected by the proceedings. No rigid rule can be imposed, and the judge, while exercising judicial discretion, must decide in each case what consequences should follow from a party’s failure to appear. In some situations, an order for costs, an adjournment, or the immediate consideration of the written statement together with the framing of issues may suffice to meet the ends of justice. In other situations, more severe measures may be required to protect the interests of justice. The court therefore balances the need to move the case forward against the potential prejudice that a non-appearance may cause to the opposing side and to the orderly administration of the process.

The phrase “ends of justice” encompasses not only fairness to the litigants but also regard for witnesses and any other persons who may suffer inconvenience because of the proceedings. The convenience of witnesses, which deserves the highest consideration, is often overlooked in cases of this nature. Justice demands that members of the public who are compelled to perform public duties, often at personal loss and inconvenience, should not be ignored when the court evaluates what will best serve the ends of justice. Consequently, the court may, in a particular case, refuse an adjournment, allow the plaintiff to examine the witnesses who are present, and deny the defendant the opportunity to cross-examine them, if such a step furthers the fair resolution of the dispute. Nevertheless, after all relevant factors have been carefully weighed, the general aim should be to avoid hasty rulings and to give each party a genuine chance to present its case fully and fairly. The court must always exercise the discretion that the law confers, and it is not bound by a so-called “ex parts order.” If the court believes that rule 7 of Order 9 of the Code limits its freedom, then it is failing to exercise the discretion required by law, and in such circumstances judicial interference may be appropriate. The court held that the Election Tribunal had not exercised the discretion accorded to it because it incorrectly thought that no discretion existed. Accordingly, the Tribunal was directed to exercise its discretion immediately and to continue the hearing of the case in accordance with the applicable law. The decisions in Hari Vishnu v. Ahmed Ishaque ([1955] 1 S.C.R. 1104), Darga Shankar Mehta v. Thakur Raghuraj Singh ([1955] 1 S.C.R. 267) and Raj Krushna Bose v. Binod Kanungo ([1954] S.C.R. 913, 918) were applied. The case of Hariram v. Pribhdas (A.I.R. 1945 Sind 98, 102) was distinguished, and Sewaram v. Misrimal was also considered.

The Court noted several authorities that guided its analysis. It observed that the decision reported in A.I.R. 1952 Raj 12 and 14 had been overruled. It approved the earlier precedent Venkatasubbiah v. Lakshminarasimham reported in A.I.R. 1925 Mad 1274. It also applied the rulings in Balakrishna Udayar v. Vasudeva Ayyar (I.L.R. 40 Mad 793), T. M. Barret v. African Products Ltd. (A.I.R. 1928 P.C. 261-262) and Sahibzada Zeinitlabdin Khan v. Sahibzada Ahmed Baza Khan (5 I.A. 233-236). The matter was consequently remitted to the Election Tribunal for further consideration. The judgment was issued under the civil appellate jurisdiction. It concerned Civil Appeal No 214 of 1954, filed under Article 133(1)(c) of the Constitution of India. The appeal was lodged against the judgment and order dated 17 July 1953 rendered by the High Court of Rajasthan, whose bench comprised Justices Bapna and Ranawat, in Civil Writ Application No 128 of 1953. Counsel for the appellant were R. K. Rastogi and Ganpat Rai, while R. C. Prasad appeared for the second respondent, S. L. Chhibber. The judgment was delivered on 22 March 1955 by Justice Bose.

The factual background began with the filing of an election petition under section 100 of the Representation of the People Act by the second respondent, Bhurey Lal, seeking to set aside the election of the appellant, Sangram Singh, and two others. The proceedings started at Kotah. After initial hearings, the Tribunal issued an order on 11 December 1952 directing that subsequent sittings be held at Udaipur from 16 to 21 March 1953. It later emerged that 16 March was a public holiday; consequently, on 5 January 1953 the Tribunal revised the schedule to commence from 17 March onward and duly notified the parties. On 17 March the appellant failed to appear, and none of the three advocates he had retained were present. After waiting until 1:15 p.m., the Tribunal proceeded ex parte. On that day it examined Bhurey Lal and two witnesses; on 18 March it heard testimony of five additional witnesses; and on 19 March the matter was adjourned to 20 March. On 20 March one of the appellant’s three advocates, Mr Bharat Raj, arrived, but the Tribunal barred him from participating, stating that the proceedings remained ex parte at that stage. Three further witnesses were examined that day. On 21 March the appellant submitted an application requesting that the ex parte proceedings be set aside and that he be allowed to cross-examine the witnesses whose evidence had already been recorded. The Tribunal considered the arguments and issued an order the same day rejecting the application. It held that the appellant had failed to demonstrate any just or unavoidable reason for the non-appearance of either himself or any of his three learned advocates between 17 and 19 March 1953. The Tribunal further observed that paragraph 10 of the affidavit indicated that Shri Bharat Raj had already received instructions to appear on 17 March 1953, and therefore there was no justification for his absence on the 18th, 19th, or even the 17th. Following this refusal, the appellant filed a writ petition under article 226 of the Constitution in the High Court of Rajasthan, initiating further proceedings.

Before the Tribunal, the High Court stayed the proceedings and on 17-7-1953 rejected the petition on two grounds. First, the Court held that the Tribunal alone possessed the authority to determine whether the reasons offered by the petitioner’s counsel were sufficient, and that the Tribunal’s conclusion that those reasons were inadequate could not be reviewed in a petition of this nature. Second, the Court observed that, on the merits, the petitioner’s counsel had been grossly negligent in failing to appear on the hearing date that had been fixed more than two months earlier. Five months later, on 16-12-1953, the High Court issued a certificate under article 133(1)(C) of the Constitution granting leave to appeal to this Court. The sole issue before the High Court had been whether the Tribunal was correct in refusing to permit the appellant’s counsel to appear and take part in the proceedings after 20 March 1953, and the preliminary question for this Court was whether that issue alone conferred jurisdiction on the High Court to entertain a writ petition under article 226 of the Constitution. This Court considered that the matter was no longer res integra, having been settled by a seven-judge Bench in Hari Vishnu v. Ahmad Ishaque, where it was held that certiorari may be issued when a court or tribunal acts illegally in the exercise of its undisputed jurisdiction, for example by deciding without giving the parties an opportunity to be heard or by violating the principles of natural justice. The present case fell squarely within that principle. It was argued that election matters might be different because of section 105 of the Representation of the People Act, 1951, which states that “Every order of the Tribunal made under this Act shall be final and conclusive.” Counsel for the petitioner contended that neither the High Court nor this Court could overstep the law to correct what it perceived as an error of law by the Tribunal, asserting that the legislature intended the Tribunal’s decisions to be final on all questions, whether of fact or of law, and that therefore the Tribunal could not be said to have committed an error of law when acting within its jurisdiction, its decisions being as absolute as those of the Supreme Court in its own sphere. Accordingly, it was suggested that the only question left for examination under article 226 in an Election Tribunal case was whether the Tribunal had acted within the scope of its jurisdiction. This contention, however, was no longer open to debate, as the point had already been decided by three constitutional Benches of this Court.

In this case, the Court observed that earlier decisions of this Court addressed the scope of the jurisdiction conferred by Article 226 of the Constitution. In the earlier case of Hari Vishnu v. Ahmad Ishaque (1) the Court did not examine the effect of section 105 of the Representation of the People Act, but it pronounced in general terms that the jurisdiction granted by Article 226 is derived directly from the Constitution and therefore cannot be limited except by a constitutional amendment; the Court’s discussion of this principle can be found on pages 238 and 242 of the report. Section 105 was later considered in Durga Shankar Mehta v. Raghuraj Singh (1) where the Court held that the provision cannot diminish or affect the overriding powers of this Court under Article 136. The same rule was extended to the jurisdiction of High Courts under Article 226 in the decision of Rai Krushna Bose v. Binod Kanungo and others (1), where the Court decided that section 105 cannot remove or reduce the powers of the High Court under Article 226. Relying upon those authorities, the Court now held that the jurisdiction of a High Court under Article 226 is not taken away or curtailed by section 105.

The Court explained that the powers conferred by Articles 226 and 136 empower the High Courts and this Court to examine the decisions of all tribunals to determine whether the tribunals have acted illegally. Such jurisdiction cannot be withdrawn by any legislative device that seeks to legitimize an illegal act of a tribunal by declaring it legal at the tribunal’s own discretion. The Court clarified that the legality of an act or conclusion exists independently of the decision of an inferior tribunal; it forms part of the law of the land and cannot be finally determined or altered by any tribunal of limited jurisdiction. Only the High Courts and the Supreme Court have the authority to define what the law of the land is with respect to all other courts and tribunals, and only they can pronounce with finality on what is legal and what is not. An inferior tribunal may reach a tentative conclusion, but that conclusion remains subject to review under Articles 226 and 136.

Consequently, the Court affirmed that the jurisdiction of the High Courts under Article 226, together with the jurisdiction of the Supreme Court under Article 136, continues in its fullest extent despite the existence of section 105. However, the Court cautioned that this does not mean the jurisdiction will be exercised whenever there is a mere error of law. The High Courts are not to function as courts of appeal under Article 226; their powers are purely discretionary. Although no limits may be placed on that discretion, the Court stressed that the discretion must be exercised according to recognised principles and not arbitrarily. One self-imposed limitation is that the High Courts will not invoke jurisdiction in this class of cases unless substantial injustice has occurred or is likely to occur. They will not allow themselves to become courts of appeal or revision merely to correct errors of law that do not give rise to injustice.

In a broad and general sense, the Court observed that although no legislature may impose restrictions on constitutional powers, it is prudent exercise of discretion to remember the legislature’s policy of resolving disputes concerning special rights as swiftly as possible; consequently, writ petitions in this category should not be entertained lightly. Turning to the Tribunal’s decision, the Court noted that the tribunals operate under the procedure specified in section 90 of the Act, and that the relevant portion is sub-section (2), which states: “Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Act V of 1908) to the trial of suits.” Accordingly, the Court directed its attention to the part of the Civil Procedure Code governing the trial of suits. It emphasized that a procedural code is meant to facilitate justice, not to serve as a penal instrument or to entrap parties; therefore, an overly technical interpretation that allows no reasonable flexibility must be avoided, provided that justice is secured for both sides. The Court repeatedly reminded that procedural law is founded on the principle of natural justice, which requires that no person be condemned unheard, that decisions not be made in their absence, that proceedings affecting a person’s life or property not proceed without them, and that individuals be allowed to participate in those proceedings. While acknowledging that there are clearly defined exceptions which must be respected, the Court held that, subject to those exceptions, procedural rules should be interpreted, wherever reasonably possible, in accordance with the natural-justice principle. It noted that this principle had been questioned and even dismissed as impractical by O’Sullivan, J. in Hariram v. Pribhdas, a view later shared by Wanchoo, C. J. and Bapna, J. in Rajasthan: Sewa Ram v. Misrimal. Nevertheless, the Court affirmed that the existence of a natural-justice requirement—namely that a party must be heard in a court of law or at least be given an opportunity to appear and defend themselves unless a specific provision provides otherwise—is beyond dispute. The Court cited the observations of the Privy Council in Balakrighna Udayar v. Vasudeva Ayyar and, particularly, in T. M. Barrett v. African Products Ltd., where Lord Buckmaster stated that “Do forms or procedure …” should never be allowed to exclude a litigant’s defence.

In this case the Court observed that procedural rules must never be allowed to prevent a litigant from presenting a defence. The observation cited the decision of Hari Vishnu and affirmed the view expressed by Wallace, J. in Venkata Subbiah v. Lakshminarassimham (5). According to Wallace, J., a fundamental principle in any trial is that a party possesses the right to appear and plead his cause whenever the matter is called for hearing. The Court reiterated that this right cannot be taken away except where the Code of Civil Procedure expressly provides otherwise. The passage further quoted the language that a court has no discretion to deny a party the opportunity to be heard, and that any deprivation of that right must be grounded in a specific statutory provision. The Court therefore set the stage for a detailed examination of the relevant provisions of the Code, beginning with an analysis of the statutory sections that govern the issuance of summons and the consequences of non-appearance.

The Court proceeded to examine the provisions of the Code of Civil Procedure. Section 27 was noted to require that, once a suit has been properly instituted, a summons may be issued to the defendant directing him to appear and answer the claim. Section 30 was identified as empowering the Court to issue summons to persons whose attendance is necessary for the purpose of giving evidence, producing documents, or producing other relevant items. The penalties for default were found in Section 32, but the Court emphasized that these penalties apply only to summons issued under Section 30. No penalty is prescribed for a refusal or failure to appear in response to a summons issued under Section 27. While the Court recognized that a defendant’s failure to appear may lead to certain consequences that could be described as a penalty in a colloquial sense, it emphasized that such consequences are not punishments authorised by the Court for disobeying its orders. The distinction drawn by Section 32 between the two types of summons was highlighted: an omission to appear after a Section 27 summons carries no strict penalty, whereas disregard of a Section 30 summons may attract punishment. The Court urged that this distinction be reflected in the First Schedule, criticizing the tendency of some judges to treat such matters as punishments rather than as matters of compensation and the avoidance of injustice to both parties. Turning to the Rules in the First Schedule, the Court noted that they differentiate between the first hearing and subsequent hearings, with the first hearing being either for settlement of issues only or for final disposal of the suit. Order V, rule 1 was quoted as providing that a summons may be issued to the defendant to appear and answer the claim on a specified day, and that the summons must state whether the hearing is for settlement of issues only or for a final hearing.

Rule 5 of the First Schedule deals with the nature of the hearing. When the hearing is designated as a final hearing, Rule 8 requires that the summons must also direct the defendant to bring, on the appointed day, every witness whose testimony the defendant intends to rely upon in support of his case. Following this, Order VIII, Rule 1 expressly refers to “the first hearing”. Order IX then appears, headed “Appearance of parties and consequence of non-appearance”. The use of the term “consequence” rather than the term “penalty”, which is employed in section 32, is purposeful and underscores the distinction already highlighted by the Court. A similar emphasis is found in Rule 12, whose marginal heading reads “Consequence of non-attendance”. The body of Rule 12 provides that a party who fails to appear and cannot demonstrate sufficient cause shall be subject to all the provisions of the preceding rules that apply to plaintiffs and defendants who do not appear, thereby deliberately avoiding the word “penalty”. Counsel drew attention to Rule 6(2) and suggested that Order IX contemplated the imposition of penalties. The Court, however, interpreted that portion of the rule narrowly, concluding that the plaintiff’s only obligation in such a situation is to bear the costs caused by the postponement. In practice, these costs ordinarily include the expense of issuing a fresh summons, the diet money, and any other charges incurred for witnesses who are present, and the plaintiff must pay them regardless of the outcome of the suit. Rule I of Order IX begins with the words “On the day fixed in the summons for the defendant to appear and answer…”, and the remaining provisions of that Order are based on this opening premise. This emphasis is reinforced by the repeated use of “postponement” in Rule 6(1)(c), and “adjournment” in both Rule 7 and Rule 1. Consequently, the Court held that Order IX, Rule 6(1)(a)—the rule on which the petition relied—is limited to the first hearing of a suit and does not automatically apply to later hearings, as illustrated in Sahibzada Zeinulabdin Khan v. Sahibzada Ahmed Raza Khan.

The Court then examined the effect of Rule 6 on the first hearing. When the plaintiff appears before the court and the defendant fails to appear on the scheduled date, provided that the summons has been duly served, the rule states that the court “may proceed ex parte”. The precise meaning of the term “ex parte” has been the subject of sharply divided judicial opinions. One line of authority, expressed by Wallace, J. in Venkatasubbiah v. Lakshminarasimham, interprets “ex parte” to mean simply that the proceeding continues in the absence of the other party. The opposite view, articulated by O’Sullivan, J. in Hariram v. Pribhdas, holds that “ex parte” authorises the court to continue the proceedings without the defendant until final determination, unless the defendant can show a satisfactory reason for his non-appearance. Numerous subsequent decisions have adopted one of these two approaches. The Court, after reviewing the authorities, aligned with the view that “ex parte” permits the court to proceed when the defendant has been properly served and given an opportunity to appear, but chooses not to do so, thereby allowing the case to move forward in his absence.

In this case, the Court observed that the two earlier views concerning the meaning of ex parte were represented by Wallace, J. and by judges who follow his reasoning, and that the Court considered this position to be correct. The Court reiterated that procedural law is founded upon the principle that, wherever possible, a legal proceeding should not be conducted to the disadvantage of a person who is not present. The Court recognised that the law contains exceptions to that principle, and stated that the present rule is one of those exceptions. Accordingly, when a defendant has been properly served with summons and has been given a chance to appear, the Court may continue the proceeding even though the defendant is absent. However, the Court emphasized that the rule does not oblige the Court to issue an ex parte order. The record of the proceeding will note that the case is being heard ex parte, but that notation is only a factual statement. It does not constitute an order against the defendant in the same sense as an ex parte decree or any other ex parte order that the Code permits the Court to make. The effect of rule 6(1)(a) is limited to removing a procedural bar; it simply authorises the Court to act in a manner that would otherwise be prohibited, namely to proceed in the absence of one of the parties. The difference in wording between rule 7 and rule 13 highlights this limitation. The Court then explained that the first hearing of a suit may be either a hearing for settlement of issues or a final hearing. If the first hearing is only for settlement, the Court cannot pass an ex parte decree on that day because the proviso to Order XV, rule 3(1) allows a decree to be passed only when “the parties or their pleaders are present and none of them objects”. Conversely, if the first hearing is a final hearing, the Court is empowered to pass an ex parte decree. When such a decree is passed, Order IX, rule 13 becomes applicable, and before the decree can be set aside the Court must issue an order to that effect. By contrast, rule 7 does not require the setting aside of what is sometimes, though incorrectly, described as “the ex parte order”. The Code does not provide for an order to set aside such an order, and therefore none is contemplated. A decree, being a command of the Court, can be set aside only by another formally recorded order. Rule 7 further provides that if, at an adjourned hearing, the defendant appears and shows good cause for his previous non-appearance, he may be heard in answer to the suit “as if he had appeared on the day fixed for his appearance”. This provision cannot be interpreted, as some judges have done, to mean that the defendant may never be allowed to appear unless he demonstrates good cause.

In this case, the Court explained that the expression “good cause” only prevented a party from being placed in the position he would have occupied had he appeared, and did not bar his later participation. The Court then turned to the procedure for an adjourned hearing as set out in Order XVII. Under Order XVII, Rule I (1), the Court possessed the authority to adjourn a hearing and, when doing so, it was required to designate a specific day for the further hearing of the suit. However, once the evidence-taking stage had started, the hearing was to continue day by day until every witness present had been examined, unless the Court, recording its reasons in writing, decided that another adjournment was necessary. Following this, Rule 2 of the same Order provided that if, on any day to which the suit had been adjourned, either party or any of the parties failed to appear, the Court could either dispose of the suit in one of the modes directed by Order IX or pass any other order that it deemed appropriate. Consequently, Rule 2 operated only in the situation where one or both parties were absent on the day fixed for the adjourned hearing. In such an event, the matter was returned to Order IX, which additionally empowered the Court to make “such order as it thinks fit.” When the Court returned to Order IX, it again found that it could proceed ex parte at the adjourned hearing in the same manner as it could have done at the original hearing when a party had not appeared. In other words, the right to proceed ex parte arose afresh at each adjourned hearing because the Court was repeatedly referred back to Order IX, Rule 6. This right was not a future-looking mortgage; it applied only to the particular hearing at which a party had been given an opportunity to appear and chose not to take it. Therefore, if a party did appear on the day fixed for the adjourned hearing, the Court could not prevent him from taking part in the proceedings merely because he had missed an earlier appearance. Nevertheless, although the party acquired the right to appear at the adjourned hearing, he did not acquire the right to reverse the procedural clock. Order IX, Rule 7 made this limitation explicit. Accordingly, unless the party was able to demonstrate good cause, he was required to accept the state of the proceedings as they stood and to continue from the point at which he entered the case. To ascertain the precise effect of this principle, the Court noted that it was necessary to refer back to the first hearing. The Court also recalled that, at the issuance of a summons to the defendant, Order V, Rule 5 required the summons to state whether the hearing was intended only for the settlement of issues or for the final disposal of the suit. In either circumstance, Order VIII, Rule I became relevant, and if the defendant did not present a written statement, the Court could act according to the powers conferred by those provisions.

The Court observed that if a defendant failed to file his defence, the Court could demand compliance, and if the defendant nonetheless refused, the Court was authorised by Order VIII, rule 10 to pronounce judgment against him or to make any other order it considered appropriate in relation to the suit. This provision gave the Court a very wide discretion, enabling it to ensure justice for both parties and also for any witnesses who might be present, a point the Court indicated it would discuss later. The Court noted that when a defendant did not appear at the first hearing, the Court could proceed ex parte, meaning it could continue without a written statement. Order IX, rule 7, however, stipulated that unless the defendant showed good cause, he could not be placed in the position he would have occupied had he appeared. Consequently, the defendant could not file a written statement unless the Court permitted him to do so. If the Court decided that a written statement should have been filed, the consequences prescribed by Order VIII, rule 10 would apply. Determining what those consequences should be in each case was left to the Court’s exercise of judicial discretion; no rigid rule could be imposed. In some cases, the Court might find that awarding costs to the plaintiff would satisfy the requirements of justice, perhaps together with an adjournment or the immediate consideration of a written statement and framing of issues. In other situations, the ends of justice might require more severe measures. The Court explained that “the ends of justice” meant fairness not only to the defendant and the plaintiff but also to witnesses and others who might suffer inconvenience. It was observed that the convenience of witnesses was often ignored in such matters, even though witnesses deserved the greatest consideration. Generally, a witness was not a party to the dispute but was compelled to leave his own affairs to assist one of the parties. As a result, his personal business suffered, he might be away from his family for many days, and he often incurred expenses. Frequently, the witness was a poor individual from a remote village who had to walk long distances on foot. Upon arriving at the court, he usually found no accommodation, no waiting room, and was forced to sit in verandas or under trees, exposed to winter cold, summer heat, rain, and other hardships, after having wasted many hours waiting for his turn.

When a layperson who has been summoned to assist the Court spends several days awaiting his turn, he is sometimes told in a blunt manner to return on another day, a situation that the Court recognised as unjust. Justice demanded that this unfortunate segment of the public, compelled to perform public duties at personal loss and inconvenience, should not be ignored in the broader assessment of what best serves the ends of justice. Accordingly, the Court held that, in a particular case, it may be a prudent exercise of discretion to refuse an adjournment, to allow the plaintiff to examine witnesses who are present, and to deny the defendant the opportunity to cross-examine those witnesses or to present his own evidence. The Court emphasized that the appropriate course depends upon the facts of each case, but that, after all relevant factors have been carefully considered and weighed, the aim must be to avoid hasty rulings and to give the parties a genuine chance to argue their cases fairly and squarely. The Court further observed that, in many instances, an award of costs provides adequate compensation for inconvenience, while in other situations the Court retains a virtually unlimited discretion to impose terms, provided that such discretion is exercised judicially and not arbitrarily.

The Court referred to the Code of 1859, specifically section 119, which provided that “No appeal shall lie from a judgment passed ex parte against a defendant who has not appeared.” It noted that the Privy Council, in Sahibzada Zeinulabdin Khan v. Sahibzada Ahmed Raza Khan, interpreted this provision to apply only when a defendant had failed to appear at any stage; once an appearance was entered, the right of appeal was not extinguished. One of the reasons for that decision was the quoted principle that “The general rule is that an appeal lies to the High Court from a decision of a civil or subordinate Judge, and a defendant ought not to be deprived of the right of appeal, except by express words or necessary implication.” The Court affirmed that this general rule, grounded in the principles of natural justice, obliges that court proceedings not be conducted behind the back of a party absent an explicit provision to that effect. However, the Court cautioned that it would be anomalous to hold that the effect of an ex parte order ends with the trial court, thereby allowing a defendant subsequently to appear before an appellate court and to raise matters that had been barred in the trial, or to be remanded without overturning the original ex parte order under Order IX, rule 7. In the present matter, the Court observed that the defendant under consideration had indeed appeared at the first hearing, which was conducted on 11-12-1952 at Kotah, where the appellant, the first defendant, appeared through counsel, filed a written statement, and the issues were subsequently framed.

In that hearing the issues were framed and the matter was adjourned until 16 March at Udaipur, where the petitioner was to produce his evidence between 16 March and 21 March. Consequently, the provisions of Order IX, rules 6 and 7 were not applicable to the proceedings. Nevertheless, the Court felt compelled to examine the relevance of those rules in detail because different High Courts had expressed divergent opinions on the matter, and because there was a contention that Order XVII, rule 2 would revert the situation to the position created by Order IX, rules 6 and 7. According to one set of authorities, specifically the decision reported as (1) 5 I.A. 233, the view was that once an ex parte order had been passed against a defendant, that defendant could not participate further in the suit unless the order was set aside by demonstrating good cause under rule 7. The Court held that this interpretation was incorrect.

The Court explained that if a defendant failed to appear at the adjourned hearing—regardless of whether he had been present at the earlier hearing—Order XVII, rule 2 became operative. Under that rule, the Court possessed the broadest possible discretion, either to dispose of the suit in any of the modes authorized by Order IX or to pass any other order it deemed appropriate. The essential point, according to the Court, was that the Court always retained a discretionary power that it was obliged to exercise. The Court’s authority was not constrained by a prior ex parte order, and if a judge were to claim that the discretion was limited by Order IX, rule 7, that would constitute a failure to exercise the discretion that the law required, potentially inviting judicial interference in that case.

The Court referred to a Full Bench of the Lucknow Chief Court in the case of Tulsha Devi v. Sri Krishna, where the learned judges had held that if an original ex parte order did not continue to apply to all subsequent hearings, a fresh ex parte order should be issued at each later hearing. The Court considered that view to be based on a mistaken premise that a new ex parte order was necessary each time. The Court clarified that the order sheet or the minutes of the proceedings must record which parties were present at each hearing. If a party was absent, the record should state whether the Court intended to proceed ex parte against that party—that is, to continue in his absence—or whether it chose to adjourn the matter. This record-keeping must be done at every hearing because the presence or absence of each party must be noted each time the case is heard.

While respecting the judges who advanced the earlier view, the Court expressed that the objection was not a serious one. A more compelling consideration, the Court observed, was the risk of serious prejudice to the plaintiff. The Court cited observations of learned Rajasthan judges and the opinion of O’Sullivan J., noting that when a case proceeds ex parte, as reported in (1) A.I.R. 1949 Oudh 59, the plaintiff does not present as much evidence as he might have if the case were contested. The plaintiff is likely to rely only on enough evidence to establish a prima facie case. Consequently, if the plaintiff had closed his case and was later confronted with a contested proceeding in which the defendant introduced a large number of witnesses, the plaintiff could be taken by surprise and suffer grave prejudice.

The Court concluded that such a potential prejudice could be addressed by the wide discretion vested in the Court. If the Court believed that the defendant’s conduct had misled the plaintiff into an unfavorable position, it could, in the exercise of its discretion, limit the defendant to arguing at the stage of oral arguments and restrict further cross-examination or evidence. Conversely, if the plaintiff had not been misled, the Court could allow the defendant to present evidence. Ultimately, the Court emphasized that the most sound rule was to leave the Court with unfettered discretion so that it could consider all surrounding circumstances and act in a manner that best served the ends of justice in the particular case before it.

If a plaintiff closed his case and later faced a contested proceeding in which the defendant produced a large number of witnesses, the plaintiff would be surprised and seriously prejudiced. The objection raised by the plaintiff could be addressed by the broad discretion that the Court possesses in exercising its procedural authority. When the Court believes that the defendant’s conduct has misled the plaintiff, it may properly limit the defendant to making arguments without permitting cross-examination or the introduction of further evidence. Conversely, there are situations in which the plaintiff has not been, and should not be, misled by the defendant’s actions. In such cases, it is preferable to allow the Court to retain unrestricted discretion so that it can evaluate every relevant circumstance and choose the course that best serves justice. Thus, the Court’s primary aim is to ensure that its discretion remains unfettered to meet the ends of justice in each individual matter. This principle is especially relevant when a case has proceeded ex parte and the plaintiff’s opportunity to present evidence may have been limited. The Court must balance the need to protect the plaintiff from prejudice against the requirement to allow the defendant a fair chance to be heard. Accordingly, the discretion may be exercised either to restrict the defendant’s participation or to permit his arguments, depending on the specific facts.

In the case before the Tribunal, the Court found that the Tribunal had not exercised its discretion because it claimed the Tribunal possessed none and believed that, until the ex parte order was set aside, the defendant could not appear either personally or through counsel. The Court agreed with both the Tribunal and the High Court that the defendant had failed to demonstrate any good cause for being excluded from the proceeding. Consequently, the Court held that the defendant was not entitled to be placed in the position he would have occupied had he appeared on 17-3-1953. However, the Court recognised that the defendant had a right to appear through counsel on 20-3-1953 and to participate from the stage at which the proceedings had then reached, subject to any conditions the Tribunal might impose. The Court did not express an opinion on whether the defendant should have been allowed to cross-examine the three witnesses who were examined after his counsel’s appearance or to adduce further evidence. That decision, the Court said, depended on the discretion of the Tribunal in the particular circumstances of the case. Nevertheless, the Court found no justification for denying the defendant’s counsel the opportunity to present oral arguments before the Tribunal. The Tribunal’s order of 23-3-1953 explained that, as of 21-3-1953, the case stood before it under the clear impression that respondent No 1 had not appeared since the first date of the final hearing when the ex parte order was issued, and consequently the petitioner had closed his case after presenting only the minimal evidence he deemed necessary to obtain an ex parte disposal. The Tribunal further claimed that allowing respondent No 1 to intervene at that stage would handicap the petitioner and would constitute an injustice which the Tribunal could not contemplate. The Court noted that this assertion rested on the assumption that the petitioner had been misled, an assumption that required verification. The Tribunal’s order read as follows: “The exact stage at which the case had reached before us on the 21st of March 1953 was that under the clear impression that respondent No. 1 had failed to appear from the very first date of the final hearing when the ex parte order was passed, the petitioner must have closed his case after offering as little evidence as he thought was just necessary to get his petition disposed of exparte. Therefore, to all the respondent No. 1 to step in now would certainly handicap the petitioner and would amount to a bit of injustice which we can neither contemplate nor con done”. But this assumes that the petitioner was misled and

The Tribunal had stated that the petitioner had “closed his case after offering as little evidence as he thought was just necessary to get his petition disposed of ex parte”. That statement did not amount to a finding that this was in fact what had happened. If it were shown that the defendant’s conduct had created the impression that the petitioner could proceed with minimal evidence and that the petitioner would in truth have produced more evidence, the order would have been ordinary. However, until such facts are established, a mere assumption cannot serve as a sound foundation for the kind of discretion that must be exercised in cases of this nature after a careful weighing of all relevant circumstances. Accordingly, the Court disagreed with the High Court’s decision to uphold the Tribunal’s order, set aside that order, and directed the Tribunal to exercise the discretion vested in it by law in the manner indicated by the Court.

The Tribunal is required to examine whether the plaintiff was actually misled, or could have been misled, had he acted with the diligence and caution expected of a party in his position. In doing so, the Tribunal must take into account several factual circumstances: the defendant did enter an appearance, filed a written statement, and the issues were framed in his presence; the hearing had been scheduled exclusively for the petitioner’s evidence and not for the appellant’s; the petitioner examined all witnesses who were present on the 17th and 18th of March and did not relinquish any of them; an adjournment was granted on 19-3-1953 to examine witnesses who were absent on that date, and three additional witnesses were examined on 20-3-1953 after the defendant’s counsel entered an appearance and claimed the right to plead. The Tribunal must also consider whether, when the appellant’s only objection concerned the dates fixed solely for the petitioner’s evidence, a prudent and diligent party could reasonably assume that the opposite side had abandoned its right to present its own evidence, especially if the hearing for that evidence were to be scheduled at a different venue or on a different date at the same venue. Moreover, the Tribunal shall decide whether, given the specific circumstances of this case, it would be appropriate to permit the appellant to adduce his own evidence.

Consequently, the Tribunal is instructed to revisit its orders of 20 March, 21 March and 23 March 1953 in light of the observations made by the Court and to act accordingly. The case files shall be forwarded to the Election Commission together with directions for that authority to reconstitute the Tribunal if necessary and to guide it to proceed with the matter following the lines indicated above. No order concerning costs was made.