Bijayananda Patnaik vs Satrughna Sahu And Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 603 of 1962

Decision Date: 26 March 1963

Coram: K.N. Wanchoo, A.K. Sarkar, K.C. Das Gupta

In this case the Supreme Court of India delivered its judgment on 26 March 1963 in the dispute titled Bijayananda Patnaik versus Satrughna Sahu and others. The opinion was authored by Justice K.N. Wanchoo and the bench included Justices K.N. Wanchoo, A.K. Sarkar and K.C. Das Gupta. The petitioner was identified as Bijayananda Patnaik while the respondents were Satrughna Sahu together with the additional respondents. The decision is reported in the law reports as 1963 AIR 1566 and 1964 SCR (2) 538, and it has subsequently been referenced in later citations such as RF 1973 SC 643 at paragraph 6, RF 1981 SC 116 at paragraphs 21 and 25, and RF 1983 SC 786 at paragraph 9. The matters before the Court concerned the procedure for withdrawal of an appeal that was filed under the Representation of the People Act, 1951, specifically sections 109, 110 and 116‑A, and the parallel provisions of the Code of Civil Procedure, 1908, Order XXIII, rule 1(1).

The factual background recorded that one respondent, designated as “S,” had instituted an election petition challenging the election of the appellant who had been declared elected to the State Legislative Assembly. The appellant then moved the Tribunal seeking dismissal of the election petition under section 90(3) of the Representation of the People Act, 1951, on the ground that the petition failed to comply with the requirements of section 82 of the same Act. The Tribunal accepted the application and consequently dismissed the election petition. Thereafter, respondent S filed an appeal before the High Court invoking section 116‑A of the Representation of the People Act. While the appeal was pending, the appellant applied to the High Court for a withdrawal of that appeal. The High Court refused the request, holding that its decision must be guided by the principles laid down in sections 109 and 110 of the Act, which deal with the withdrawal of election petitions. The Supreme Court, however, held that the appellant possessed an absolute right to withdraw the appeal and that the High Court was bound to grant permission for such withdrawal. Section 116‑A(2) of the Act provides that, “subject to the provisions of this Act,” the High Court in an appeal under this section shall enjoy the same powers, jurisdiction and authority as it would in an appeal from an original decree of a civil court and shall follow the same procedural rules. The phrase “subject to the provisions of this Act” was interpreted to mean that only express provisions of the Act, or those necessarily implied by an express provision, could limit the High Court’s powers. Consequently, sections 109 and 110, which regulate withdrawal of election petitions, do not apply to an appeal under section 116‑A. Because the Act contains no express rule governing withdrawal of appeals under section 116‑A, the Court applied the rules that govern ordinary civil appeals before a High Court. Under Order 38, rule 1(1) of the Code of Civil Procedure, an appellant has an unconditional right to withdraw his appeal, and the High Court must accede to such a request. Therefore, when an appellant makes an unconditional application for withdrawal of an appeal under section 116‑A, the High Court is obligated to grant the withdrawal. The judgment cited authority from Kalayan Singh v Rahmu, I.L.R. (1901) 23 All. 130 and Kanhaya Lal v Pratap Chand, (1931) 29 A.L.J.

The case was reported as Civil Appeal No. 603 of 1962, arising by special leave from the judgment and order dated 28 March 1962 of the Orissa High Court in Miscellaneous Appeal No. 112 of 1961; the appeal was heard before a bench of the Supreme Court on 26 March 1963, and the judgment was delivered by Justice Wanchoo. The appellant had contested the election to the Orissa Legislative Assembly from the Choudwar constituency in Cuttack district and was returned as the successful candidate. The election was challenged by respondent No 1, Satrughna Sahu, who filed an election petition in which the appellant and the two other candidates who had stood for election were impleaded as opposite parties. During the hearing of the election petition, the tribunal was urged to consider a preliminary objection that the petition had not been drafted in accordance with section 82 of the Representation of the People Act, 1951, and that, under section 90(3) of the same Act, this defect was fatal to the petition. After hearing the objection, the tribunal held that the failure to frame the petition pursuant to section 82 rendered the defect fatal and consequently dismissed the petition. Satrughna Sahu then filed an appeal to the High Court under section 116‑A of the Act. The High Court heard the appeal on 5 and 6 March 1962 and fixed the date for delivery of its judgment as 8 March 1962. On 7 March 1962, Satrughna Sahu filed an application seeking to withdraw his appeal, stating that he did not wish to pursue it further. The withdrawal application was listed for consideration on 8 March 1962, and the main appeal judgment, which had already been prepared for delivery, was held in abeyance pending the determination of the withdrawal request. Satrughna Sahu argued that he possessed an absolute right to withdraw the appeal, a position supported by the appellant, whereas the two other respondents opposed the withdrawal. They maintained that, unlike a civil appeal governed by Order XXIII, rule 1(1) of the Code of Civil Procedure, the appellant under section 116‑A did not enjoy an unconditional right to withdraw, and that the principles embodied in sections 109 and 110 of the Representation of the People Act applied to such a withdrawal application. The High Court concluded that it must be guided by the provisions of sections 109 and 110 of the Act when dealing with an application for withdrawal of an appeal filed under section 116‑A. After examining the submissions, the High Court decided not to grant permission to Satrughna Sahu to withdraw the appeal and consequently denied the withdrawal application.

The High Court rejected the appellant’s request to withdraw the appeal, but it ordered that the withdrawal application together with all counter‑affidavits filed in opposition should remain pending for determination of the withdrawal question by the election tribunal; this order was dated 28 March 1962. On the same day the High Court delivered its judgment in the principal appeal, set aside the election tribunal’s order dismissing the election petition and remanded the petition for disposal in accordance with law. Following that judgment the appellant submitted two applications for certificates of appeal to this Court, both of which were dismissed. Subsequently the appellant filed two petitions for special leave before this Court; both petitions were granted, giving rise to two separate appeals—one challenging the High Court’s decision on the withdrawal application and the other challenging the decision on the main appeal. The present appeal concerns only the withdrawal application, and the appellant’s contentions are twofold. First, the appellant argues that Satrughna Sahu, who had been the appellant before the High Court, possessed an absolute right to withdraw the appeal by analogously applying the provision contained in O.XXIII, r. 1 (1), and that the High Court erred in holding that principles analogous to sections 109 and 110 of the Act governed the withdrawal of an appeal filed under section 116‑A of the Act; consequently, after the withdrawal application was filed, the High Court had no discretion but to permit the withdrawal. Second, the appellant contends that even assuming the High Court’s view was correct, the High Court was obliged to examine all matters enumerated in sections 109 and 110 of the Act and to decide for itself whether the withdrawal should be granted, and that it was not within the High Court’s power to transform the appeal‑withdrawal application into an application for withdrawal of the election petition and refer the matter to the election tribunal for disposal. The initial question for determination, therefore, is whether Satrughna Sahu, having made the withdrawal application, indeed possessed an absolute right to withdraw the appeal on the analogy of the provision in O.XXIII, r. 1 (1), thereby obligating the High Court to allow the withdrawal. Section 116‑A, which was inserted into the Act in 1956, provides in relevant part: “(1) An appeal shall lie from every order made by a Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal is situated. (2) The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal … as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction.”

The Court explained that under this Chapter the appeal is to be treated as if it were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction. It observed that “Provided that where the High Court consists of more than two judges every appeal under this Chapter shall be heard by a bench of not less than two judges.” The statute further requires that “Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the Tribunal under section 98 or section 99; Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period.” The Court noted that “Where an appeal has been preferred against an order made under clause (b) of section 98 or section 99, the High Court may, on sufficient cause being shown, stay operation of the order appealed from and in such a case the order shall be deemed never to have taken effect under sub‑section (1) of section 107, and a copy of the stay order shall immediately be sent by the High Court to the Election Commission and the Speaker or Chairman as the case may be of the House of Parliament or of the State Legislature concerned.” It further remarked that “Every appeal shall be decided as expeditiously as possible and endeavour shall be made to determine it finally within three months from the date on which the memorandum of appeal is presented to the High Court.” The Court then pointed out that the provision relating to appeals is placed in Chapter IVA of the Act, whereas the subject of withdrawal and abatement of election petitions is dealt with in Chapter IV, which contains sections 109 and 110. Before examining the High Court’s powers to withdraw an appeal under section 116A, the Court referred to the scheme of Chapter IV, comprising sections 108 to 116, which governs withdrawal and abatement of election petitions. Section 108 provides that “an election petition may be withdrawn only by leave of the Election Commission if an application for its withdrawal is made before any Tribunal has been appointed for the trial of such petition.” Section 109 deals with withdrawal after a tribunal has been appointed and states that in such a case the petition may be withdrawn only by leave of the tribunal. It also requires that when an application for withdrawal is made before the tribunal, notice specifying the date for hearing of the application shall be given to all other parties to the petition and shall be published in the official gazette. Section 110 sets out the procedure for withdrawal before the election commission or the tribunal, and sub‑section (2) therein provides that “no application for withdrawal shall be granted if in the opinion of the election commission or of the tribunal, as the case may be, such application has been induced by any bargain or consideration which ought not be allowed.” (Section (6) is omitted.)

In this part of the judgment, the Court explained the provisions of Chapter IV that dealt with the withdrawal and abatement of election petitions. It noted that sub‑section (2) of the relevant section barred any application for withdrawal if, in the opinion of the Election Commission or the tribunal, the application had been induced by any bargain or consideration that should not be permitted. The Court then described sub‑section (3), which provided that when an application for withdrawal was granted, the petitioner would be ordered to pay the costs incurred by the respondents, or such portion of the costs that the tribunal deemed appropriate. The Court further stated that the withdrawal had to be announced in the official Gazette by the Election Commission or the tribunal, as the case might be. Additionally, any person who might have been a petitioner himself could, within fourteen days of that Gazette publication, apply to be substituted as the petitioner in place of the party who withdrew. Upon satisfying the security conditions prescribed in section 117, such a person would be allowed to be substituted and to continue the proceedings on terms that the tribunal thought fit.

The Court went on to describe the procedural requirements for reporting a withdrawal. Section III required the tribunal to send a report of the withdrawal to the Election Commission. Sections 112 to 116 dealt with the abatement of an election petition in the event of the death of a sole petitioner. Those sections mandated the publication of a notice of abatement in the official Gazette, and section 115 allowed any person who might have been a petitioner to apply, within fourteen days of that notice, to be substituted as petitioner, provided he complied with the security conditions of section 117 and the tribunal approved the substitution. Section 116 made a similar provision for the death of a sole respondent.

From these provisions, the Court observed that a petitioner in an election petition did not enjoy an absolute right to withdraw, nor did a respondent have an absolute right to refrain from opposing the petition in certain situations. The Court explained that the special rules on withdrawal were rooted in the well‑established principle that an election petition concerned not only the competing candidates but also the electorate of the constituency. Because the public had a substantial interest in the conduct of elections, the law limited the parties’ ability to withdraw a petition. The Court further noted that citizens were justified in insisting that elections be free, fair, and free from corrupt or illegal practices. Consequently, the legislation provided for substituting any elector who might have filed the petition, in order to preserve the purity of elections, citing the case of Kamaraja Nadar v Kunju Thevar as authority.

Finally, the Court affirmed that although these principles formed the basis of the provisions in Chapter IV, it was equally clear that the statutory scheme intentionally prevented a petitioner from withdrawing an election petition absolutely, thereby safeguarding the broader public interest in the integrity of the electoral process.

If the special statutory provisions contained in Chapter IV had not existed, a petitioner could have withdrawn an election petition completely and without restriction. Section 90(1) of the Act states that, subject to the Act and any rules made under it, every election petition must be tried by the tribunal in a manner that closely follows the procedure laid down in the Code of Civil Procedure, 1908, for the trial of suits. Because of this provision, Order XXIII, rule 1(1) of the Code would have applied to an election petition before the tribunal were it not for the specific provisions in Chapter IV. The Code’s procedural rules are applicable to election petitions only to the extent that they do not conflict with the Act and its Rules. Consequently, Order XXIII, rule 1(1) cannot be used to permit the withdrawal of election petitions where sections 108 to 111 of the Act are operative. Had those special provisions—cited in the 1959 Supreme Court Reporter at page 583—not been in force, Order XXIII, rule 1(1) would have applied, and that rule is well settled to give a plaintiff an absolute right to withdraw his suit or abandon any part of his claim. The Court recognized that the right to withdraw an election petition is therefore not contested. However, the issue that required examination was whether the same unrestricted right to withdraw also extended to the withdrawal of an appeal, a question that led the Court to consider the provisions of section 116A of the Act.

Section 116A endows the High Court with specific powers in relation to appeals under that chapter. Sub‑section (2) provides that, subject to the provisions of the Act, the High Court shall possess the same powers, jurisdiction, and authority, and must follow the same procedural rules as it would when hearing an appeal from an original decree issued by a civil court within its local appellate jurisdiction. In effect, sub‑section (2) transfers to the High Court all the powers it exercises in civil appeals and obliges it to apply the same procedural framework as it does for appeals from original decrees. While these powers are expressly subject to the Act, the Court previously addressed a related point of law in T. K. Gangi Reddy v. M. C. Anjaneya Reddy. That case involved an argument that the High Court lacked jurisdiction to overturn the factual findings of an election tribunal that were based on an assessment of the evidence. In that context, the Court observed that sub‑section (2) of section 116A makes it clear that the High Court’s jurisdiction in disposing of such appeals mirrors its jurisdiction in disposing of appeals from original civil decrees, subject, of course, to any limitation expressly provided in the Act, and no contrary provision had been identified.

The Court observed that when an appeal was filed, the entire case was reopened in the appellate court, as recorded in (1) (1960) 22 E. L. R. 261. Accordingly, when subsection (2) of section 116A declared that the powers, jurisdiction and authority of the High Court were subject to the provisions of the Act, it required that such limitation be found in an express provision of the Act or arise necessarily by implication from an express provision. One such express provision was identified in the proviso to subsection (2) of section 116A, which provided that “where the High Court consists of more than two judges, every appeal under this Chapter shall be heard by a bench of not less than two judges.” Another express provision was located in subsection (4) of the same section, which expressly empowered the High Court to stay the operation of the order appealed from and declared that, when such a stay order was made, the order appealed from would be deemed never to have taken effect under subsection (1) of section 107. Furthermore, subsection (5) imposed on the High Court a duty to decide the appeal as expeditiously as possible, directing that the appeal should be finally determined within three months, as far as practicable. The Court noted, however, that Chapter IV‑A contained no express provision dealing with the question of withdrawal of appeals under that Chapter. It was also observed that sections 109 and 110 of the Act did not necessarily imply that an appeal could not be withdrawn as a matter of right unless the specific procedure laid down in those sections was followed.

The Court explained that the reason for this view was that the losing party was not bound to file an appeal, and if the losing party chose not to file, no other party possessed a right to do so; the apparent object was to ensure that an election petition, if any voter desired, should be heard and decided. The Court further pointed to the provisions dealing with substitution on the death of the petitioner, namely sections 112 to 115, which reinforced this perspective. It was held that, had Parliament intended the provisions of sections 109 and 110, which govern withdrawal of election petitions before a tribunal, to apply equally to withdrawal of appeals before the High Court under Chapter IV‑A, Parliament could have easily inserted a suitable clause in section 116A stating that the provisions of sections 109 and 110 would apply to withdrawal of appeals as they do to withdrawal of election petitions. In the absence of such an express provision in Chapter IV‑A, the Court concluded that the High Court was not correct in importing the principles of sections 109 and 110 to the matter of withdrawal of appeals before the High Court. Consequently, as far as the question of withdrawal of appeals before the High Court under Chapter IV‑A was concerned, the Court found that it seemed to

It appears to the Court that the High Court possesses the same powers, jurisdiction and authority in relation to the withdrawal of an appeal as it would have when dealing with the withdrawal of an appeal from an original decree passed by a civil court within the territorial limits of its ordinary civil appellate jurisdiction. No restriction on those powers arises from sections 109 and 110 of the Act, because those provisions expressly address election petitions and do not apply to appeals governed by section 116‑A. Consequently, the High Court must exercise the same authority and must follow the same procedural rules when a party seeks to withdraw an appeal under section 116‑A as it does when a party seeks to withdraw an appeal from an original decree that is before the Court. There is therefore no justification for importing any limitation on the power to withdraw an appeal by analogy with sections 109 and 110, which are confined to election‑petition matters. The Court therefore examined the powers that the High Court holds when an appeal from an original decree is withdrawn, and the procedure that must be observed in that context.

The relevant provisions of the Code of Civil Procedure dealing with the withdrawal of suits are contained in Order XXIII, rule 1. Sub‑rule (1) of that rule provides that, at any stage after a suit has been instituted, the plaintiff may, against all or any of the defendants, withdraw the suit or abandon part of his claim. Sub‑rule (2) states that, where the Court is satisfied either (a) that the suit must fail because of a formal defect, or (b) that there are sufficient grounds to allow the plaintiff to commence a fresh suit on the same subject‑matter, the Court may, on terms it deems appropriate, grant the plaintiff permission to withdraw from the suit or abandon part of the claim, thereby giving the plaintiff liberty to institute a fresh suit on that subject‑matter. The Court previously observed that sub‑rule (1) confers an absolute right on the plaintiff to withdraw the suit or abandon any part of the claim against any of the defendants, and that when an application for withdrawal is made under Order XXIII, rule 1(1), the Court is bound to allow the application, resulting in the suit being withdrawn. By contrast, sub‑rule (2) applies only when the withdrawal is conditional upon the Court’s permission, such as when the plaintiff may be allowed to institute a fresh suit on the same subject‑matter. The provisions of Order XXIII, rule 1(1) and rule 1(3) are likewise applicable to the withdrawal of appeals. In Kalyan Singh v. Rahmu, the Court held that where the respondent had not filed any objection, the appellant possessed an absolute right to withdraw the appeal at any time before a judgment was rendered. This principle was subsequently affirmed by the Allahabad High Court in Kanhaya Lal v. Partap Chand, which endorsed the same view.

In considering Order XXIII rule 1(1) together with Section 107(2) of the Code of Civil Procedure, the Court observed that where the respondent had not filed any cross‑objection, the appellant possessed an unconditional right to withdraw his appeal, the only obligation imposed on him being the payment of costs. The Court then referred to the decision in Dhondo Narayan Shiralkar v. Annaji Pandurang Kokatnur, where it was held that an appellant is entitled as of right to withdraw his appeal provided that the respondent has not acquired any interest in the matter. The Court noted that the Allahabad High Court and the Bombay High Court differed on the question of whether Section 107(2) of the Code of Civil Procedure could be invoked by an appellant in such circumstances. The Court stated that it was unnecessary for the present purpose to determine whether the absolute right of an appellant to withdraw an appeal unconditionally derived from Section 107(2) or whether it was an inherent right analogous to Order XXIII rule 1(11). Nonetheless, the Court affirmed that there could be no doubt that an appellant has the right to withdraw his appeal unconditionally and that, upon making an application to the court for such withdrawal, the court is bound to grant it.

The Court further explained that the difficulty raised by the Bombay High Court concerning a cross‑objection, under which the respondent might have acquired an interest, no longer persisted after the amendment introduced by Order XLI rule 22(4), which now permits a cross‑objection to be heard even though the appeal has been withdrawn. Consequently, when a High Court is hearing an appeal from an original decree and an application is presented for unconditional withdrawal of that appeal, the Court must allow the withdrawal subject to costs and does not possess the authority to refuse the withdrawal and continue hearing the appeal. The Court observed that the power of a High Court under Section 116A(2) when hearing an appeal from an election petition is identical to its power when hearing an appeal from an original decree, and that the procedural steps are likewise the same because there is no specific provision to the contrary in the statute governing the withdrawal of an appeal.

Therefore, when an appellant invokes Section 116A and makes an application for unconditional withdrawal of the appeal, the Court’s power, consistent with its authority in appeals from original decrees, is to allow such withdrawal and it cannot decline to permit the appeal to be withdrawn. The Court expressed the view that Sections 109 and 110 of the Act pertain solely to the withdrawal of election petitions and not to the withdrawal of appeals. The Court acknowledged an argument that permitting withdrawal of an appeal even where the withdrawal is induced by a bargain or consideration could compromise the purity of elections. However, the Court concluded that the statutory language appears to intend that the provisions concerning withdrawal and abatement apply only to petitions that are pending before the commission or the tribunal, and that these provisions were not meant to extend to appeals filed under Section 116A.

In this case the Court observed that the statutory provisions dealing with withdrawal and abatement are intended to apply only to a petition that is pending before either the election commission or the election tribunal, and that the legislature may have meant that only a single proceeding – namely the petition stage – should be specially regulated so as to preserve the purity of elections. The Court further noted that if the legislature had also wanted sections 109 and 110 to govern an appeal made under section 116‑A, the language of the statute does not give effect to such an intention. Moreover, the situation is different when an appeal is being withdrawn because, at that stage, a trial has usually already been conducted before the tribunal, and that trial ordinarily serves to protect electoral integrity. Consequently the Court found no justification for importing the principles of sections 109 and 110 into the context of withdrawing an appeal. Accordingly the Court was of the opinion that the High Court should have allowed the unconditional withdrawal application filed by Satrughna Sahu, the appellant before it, and that the High Court had no reason to consider the affidavits filed by the two other defeated candidates, since those affidavits were irrelevant once it was established that the appellant was entitled to withdraw the appeal unconditionally and that the High Court could not lawfully refuse such withdrawal. Having resolved the primary issue, the Court held that it was unnecessary to decide the secondary issue, although it observed that the High Court erred in treating the withdrawal request as if it were an application for withdrawal of an election petition under section 109 and in referring the matter to the election tribunal. Even assuming the High Court possessed power to refuse a withdrawal of an appeal, the correct procedure would have been to apply the requirements of section 110, a point that did not require further examination because of the decision on the first question. Therefore the Court allowed the appeal, set aside the order of the High Court and, in view of the unconditional withdrawal request by Satrughna Sahu, ordered that the appeal before the High Court be deemed withdrawn. No order as to costs was made and the appeal was allowed.