BIJAYANANDA PATNAIK v. SATRUGHNA SAHU & Ors.

an appellant has the right to withdraw his appeal uncondi· tionally and if he makes such application the High Court has to grant it. Therefore, when an appellant under s. 116-A of the Act makes an application for an unconditional with· drawal of the appeal , the High Court must grant the same. Kalyan Singh v. Rahm ii, I.L.R. ( 190 I) 23 All. 130 ; Kanhaya Lal v. Pratap Chand, (1931) 29 A.L,J. 232 Dhondo Narayan Shiralkar v. Annaji Pandurang Kokalnur, I.L.R. (1939) Born. 66 referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 603 of 1962. Appeal by special leave from the judgment and order dated March 28, 1962, of the Orissa High Court in Misc. Appeal No. 112 of 1961. M. C. S~talvad, Ranadeb Chaudhri, M. K. Banerjee, S.N. Andley and Rameshwar Nath, the appellant. R. Gopalakrishnan, for respondent No. 2.

#1963. March 26. The Judgment of the Court was delivered by WANCHOO J.-This is an appeal by special leave against the order of the Orissa High Court. The appellant stood for election to the Orissa Legislative Assembly from the Choudwar consti· tuency; in the district of Cuttack. He was oppos· ed by three persons who are the respondents before us. The appellant was elected. Then followed an election petition by respondent No. 1, Satru'ghna Sahu. To this election petition, the appellant as well as the other two candidates who had stood for election were made opposite parties. When election petition came to be heard an objection was raised before the tribunal that the petition was not in accordance with s. 82 of the Representation of the feople Act, 1951 (43 of 1951), (hereinafter referreq 540 SUPREME COURT REPORTS (1964] VOL. /963 BijaytJtUUJda Pa/nail; •• SatrugA11a Sahu ?Vanchoo J. to as the Act), and that this defect was fatal to the petition in view of s. 90 (3) thereof. This objection was heard as a preliminary objection and the tribunal the petition s. 82, It therefore dismissed the the defect was petition. conclusion fatal. accordance with framed that as Satrughna Sahu then appealed to the High Court under s.1 Hi-A of the Act. This appeal was heard on March 5 and 6, I 962, and apparently was fixed for judgment on March 8, l!l62. On March 7, an applica tion was filed by Satruglwa Sahu for withdrawal of the appeal, as he did not want to prosecute it further. It was put up for cousideration on l\Iarch 8, 1962, and the judgment in the main appeal, which had already been prepared for delivery, was therefore the withdrawal withheld pending the disposal of application. The contention on behalf of Satrughna Sahu was that he was cnt itle<l as of right to with draw the appeal. He was supported in this by the appellant but the other two respondents objected to withdrawal and contended that Satrughna Sahu had no absolute right to withdraw the appeal on the analogy of 0. XX III. r. I (I) of the Code of Civil Procedure, and that principles analogous to ss. IO!l and I 10 of the Act applied to an application for withdrawal of an appeal. The High Court held that it must be guided by the principles contained in ss. 109 and I JO of the Act when considering an application for withdrawal of the appeal before it. It therefore went on to consider whether Satrughna Sahu should be given permission to withdraw the appeal and decided not to give him such permission. Finally it ordered appellant for withdrawal was rejected, the applica· tion for withdrawal with all the counter-affidavits filed in opposition be kept alive for the disposal of the question of withdrawal of the election petition by the tribunal. This order was passed on nfarcb that though the prayer of 2 s.c.R. SUPREME COtJR t REPOR ts 541 then proceeded to 28, 1962, anq the High Court deliver judgment in the main appeal on the same day and the order of the election tribunal dismissing the election petitiou was set aside, and the petition was remanded for disposal according to law. 1963 Bijayanonda Patnaik v. Satrughna Sahu Wanchoo J. the appeal before The appellant then made two applications for certificates to appeal to this Court, which were dis missed. Thereupon he filed two petitions for speeial leave before this Court, which were allowed, and two appeals resulted therefrom one against the j udg ment of the High Court in the matter of withdrawal the other in the matter of the main application and appeal. The present appeal is with respect to the withdrawal application, and the contention of the In the first place it appellant before us is two-fold. is urged that Satrughna Sahu who was the appe the High Court the appeal had an absolute right to withdraw on the analogy of the provision contained 0. XXIII, r. 1 (1), and the High Court wa~ in error in holding that principles analogous to ss. 109 and llO of the Act applied to the withdrawal of an appeal filed under s. 116-A of the Act, and there fore after the withdrawal application had been filed there was no option to the High Court but to permit second place, it is urged that even if the view taken by the High Court was correct it was the duty of the High Court to consider all the matters specified in ss. 109 and 110 of the Act and decide for itself whether application for withdrawal should be granted and it was not open to the High Court to convert the application for withdrawal of the appeal as if it was an application for withdrawal of the election petition and refer it to the election tribunal for disposal. the withdrawal. In the The therefore that falls for consideration is whether Satrughna Sahu who made first question J.163 Bijo_ ·..ia11da Patnai~ v. S 1~rutlrr.1 Sahu Wanth90 J. 542 SUPREME COURT REPORts tI964] vot. the withdrawal application had an absolute right to withdraw the appeal on the analogy of the provi sion contained in O.XXIII, r. I (I), and therefore when the application for withdrawal was made in this case the High Court was bound to allow it and permit the withdrawal of the appeal. Section 116-A was inserted, in the Act in 1956, and the relevant part thereof is in these terms :- "] 16A. Appeals against orders of Electio11 Tribunals-( 1) An appeal shall lie from every order made by a Tribunal under section 98 or section !l!) 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, the same jurisdiction and authority, and follow procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an origiAal decree passed by a civil court situated within the local limits of its civil appellate jurisdiction : 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. this Chapter shall (3) Every appeal under be preferred within a period of thirty days from the date of the order of the Tribunal under section 98 or section !)!) ; 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 appe llant had sufficient cause for not preferring the appeal within such period. (4) Where an appeal has been preferred against an order made under clause (b) of 1963 Bij41an1nic Pctw.ik v. Satru:hna S.zhu Wanchoo /, ~ S.C.R. SUPR.ENIE COURT REPORTS 543 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 Com mission and the Speaker or Chairman as the case may be of the House of Parliament or of the State Legislature concemed. (5) Every appeal shall be decided as expedi tiously 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. (6) ... " It will be seen that the provision as to appeals is in Chap. IVA of the Act while the subject of withdra wal and abatement of election petition is dealt with in Chap. IV, in which ss. 109 and llO occur. Before we deal with the powers of the High Court in the matter of withdrawal of an appeal under s. ll6A, we may refer to the scheme of Chap. IV, which contains ss. 108 to 116, relating to withdrawal and abatement of election petitions. Section 108 provides that "an election petition may be withdrawn only by leave of the Election Commision if an appli cation for its withdrawal is made before any Tribunal has been appointed for the trial of such petition." Section 109 makes provision for withdrawal of petitions after appointment of a tribunal, and provides that in such a case an election petition may be withdrawn only by leave of the tribunal. It also provides that where an application for withdrawal is made before the tribunal, notice thereof specifying the date for the hearing of application shall be given to all other parties to the petition and shall be 1963 /J1ji1;ana,,,da Patr.a1A v. Sauughna Saf.u 1Va11clioo J. 544 SUPREME COURT REPORTS [1964] VOL. the official gazette. Section ll 0 published provides for procedure for withdrawal of petitions the election commission or the tribunal, and sub·s. (~)thereof lays down 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 to be allow that if the appli ed." Sub-section (:~) provides cation for withdrawal is granted, the petitioner shall be ordered to pay the costs of the respondents thereto· fore incurred or such portion thereof as the tribunal may think fit ; further notice of the withdrawal shall be published in the oflicial gazette by the election commission or by the tribunal, as the case may be ; and finally any person who might himself have been a petitioner, may within fourteen days of such publi cation, apply to be substituted as petitioner in place of the party withdrawing, and upon compliance with the conditions of s. II i as to security, shall be enti tied to be so substituted and lo continue the proceedings upon such terms as the tribunal may think fit. Section 11 l provides for report of withdrawal by the the election commission. Sections 112 tribunal to to 116 deal with abatement of election petitions on the death of a sole petitioner -provision is made therein for publication of the notice of abatement in the official gazette, and s. I Hi provides that on such notice, any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions of s. 117 as to security shall be entitled to be so substituted and to continue the proceedings upon such terms as the tribunal may think fit. Section 116 makes a similar provision in the case of death of a sole respondent. It will be seen from these provisions in Chap. IV that the petitioner in an election petition has J I I ' I 1963 Bljayananda Pa,,,.;a •• Sahwghna Sahu Wao<hOf/, 2S.C.R. SUPREME COURT REPORTS 545 thereto to withdraw. Another reason not an absolute right to withdraw it; nor has the right to withdraw from respondent the absolute opposing the petition in certain circumstances. The basis for this special provision as to withdrawal or election petitions is to be found in the well establish ed principle that an election petition is not a matter in which the only persons interested are candidate& who strove against each other at the elections. The public of the constituency also is substantially in terested in it, as an election is an essential part of the democratic process. That is why provision is made in election law circumscribing the right of the parties such provision is that the citizens at large have an interest in seeing and they are justified in insisting that all elections are fair and free and ncit vitiated by corrupt or illegal practices. That is why pro' vision is made for substituting any elector who might have filed the petition in order to preserve the purity [see Kamaraja Nadar v. Kunju of elections Thevar (')] . At the same time, though these princi ples are the basis of the provisions to be found in Chap. IV of the Act, it is equally clear that but for these provisions it may have been possible for a petitioner petition absolutely, Section 90 (1) provides that "subject to the provisions of this Act and of any rules made thereunder, every election petition shall be by the tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of In view of this provision, 0. XXIII r. 1 (1) suits". would have applied even to an election petition before the tribunal but for the provisions contained in Chap. IV. It is because the provisions of the Code of Civil Procedure apply to election petitions subject to the provisions of the Act and the Rules framed thereunder that 0. XXIII, r. 1 (1) cannot be applied to the withdrawal of election petitions in thereof, but for these special view of ss. 108 to 111 (!) [1959] S. C.R. 583. to withdraw the election 546 SUPREME COURT REPORTS [1964) VOL. 196S BiiaJononda PaJnaik •• Sat1111h .. Sahu Wa11Uioo J. provisions, 0. XXIII, r. 1 (l) would have been applicable, and it is well established that that pro· vision gives an absolute right to the plaintiff to with· draw his suit or abandon any part of his claim. This position with respect to withdrawal of an election petition is not in dispute. The question however is whether the same position applies to the withdrawal of an appeal and this brings us to the consideration of the provisions of 1. I 16 A of the Act, which we have already set out above. The powers of the High Court in respect of an appeal under that section arc contained in sub-s. (2), which lays down that "the High Court shall, subject to the provisions of this Act, have the same powers, jurisdic tion and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the app@al were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction". Sub-s. (2) therefore confers all the powers on the High Court and enjoins upon it to follow the same procedure as in the case of appeals from original decree in suits. It is true that the powers of the High Court under sub-s. (2) are subject to the provisions of the Act. This Court had occasion to consider this matter in T. K. GaWJi Reddy v. M. C. Anjaneya Reddy('). ,. in connection with an argument that the High Court had no jurisdiction to set aside the finding of the election tribunal on questions of fact arrived at on In that connec an appreciation of the evidence. tion this Court observed with respect to sub-s. (2) of s. 116A that "it was manifest that the jurisdiction in the disposal of appeals of the High Court is similar to that it has in the disrosal of appeals from original decrees. No doubt this was subject to the provisions of the Act and no provision has been brought to the notice of the Court which jurisdiction. Therefore when curtailed reopened an appeal is filed the entire case (I) (196-0) 22 E. L. R. 261. 1969 Bijay.,,anda Pat .. il: •• SaJrvghn• G"'"' w ...... 1. 2 S.C.R. SUPREME COURT REPORTS 547 court". Clearly, the appellate therefore, when sub-s. (2) says that the powers, jurisdiction and authority of the High Court is subject to the provisions of the Act, it means that the provision must be an ex:press provision in the Act or such as arises by necessary implication from aa express pro· vision. One such express provision is to be found in the proviso to sub-s. (2) of s. 116A, which lays down 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 is to be found in sub-s. (4) which gives express power to the High Court to stay the operation of the order appealed from and provides that where such a stay order is the order appealed from shall be deemed made, never to have taken effect under sub-s. (1) of s. 107. Again sub-s. ( 5) enjoins on the High Court to decide the appeal as expeditiously as possible with a direc finally within three tion that it shall be determined months as far as possible. There is, however, no express provision in Chap. IV -A dealing with ap· peals, which deals with the question of withdrawal of appeals under that Chapter. Nor do we think that ss. 109 and 110 necessarily imply that an appeal also cannot be withdrawn as a matter of right, unless the procedure laid down in those sections is followed. One reason for this view may at once be stated. The losing party is not bound to file an appeal and if. he does not, nobody else has the right to do so. The object apparently is that the election petition filed should, if any voter so desire, be heard and decided. The !ections dealing with substitution on death of the petitioner lead to that view: see ss. 112-115. There is no such provision that if Parliament for appeals. intended that the provisions of ss. I 09 and 110 which deal with withdrawal of election petitions before a tribunal shall also apply to withdrawal of appeals before the High Court under Chap. IV-A an express It seems to us 1963 11Ua JlllWlda Pahlaik •• SarughM SaJru Wan1kto J. 548 SUPREME COURT REPORTS [1964) VOL. provision could have been easily made to that effect ms. 116-A by adding a suitable provision in the section that the provisions of ss. IO!l and 110 would to withdrawal of appeals before the High Court as they apply to withdrawal 9f election peti lu the absence of such a tions before the tribunal. provision in Chap. IV-A, we do not think that the importing the principles High Court was right in of as. 109 and 110 in the matter of withdrawal of appeals before the High Court. So far therefore as the question of withdrawal of appeals before the High Court under Chapter IV-A is concerned, it seems to us that the High Court has the same powers, jurisdic tion and authority in the matter of withdrawal as it would have in the matter of withdrawal of an appeal from an original decree passed by a civil court within the local limits of its civil appellate jurisdic tion without any limitation on such powers because of ss. 109 and I 10. The High Court thus has the same powers, jurisdiction and authority and has to follow the same procedure in the matter of withdra wal of appeals under s. 116-A as in the matter of an appeal from an original decree before it, and there is no warrant for importing any limitation in the matter on the analogy of ss. lO!l and 110 of the Act, which expressly deal only with election petitions and not with appeals under s. 116-A. Let us therefore see what powers the High Court has in the matter of withdrawal of an appeal from an original decree before it and what procedure in that behalf. The pro\'isions in it has to follow the Code relating to withdrawal of suits 2re be found thereof time after the institution of a lays down that at any suit the plaintiff may. as against all or any of the defen dants, withdraw his suit or abandon part of his claims. Sub-rule (2) provides that "where the Court is satis fied (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds in O.XXIII, r. I. Sub-rule (1) 1963 Bijayananda Patnaik v. Satrughtia Y•h• w .. o1i .. r. 2 S.C.R. SUPREME COURT REPORTS 549 r. 1 (1), for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim." We have already said that sub-rule (1) gives absolute power to the plaintiff to withdraw his suit or abandon part of his claim against all or any of the defendants, and where an application for withdrawal of a suit is made under O.XXIII, the Court has to allow that the . suit stands withdrawn. It application and is only under sub-rule (2) where a suit is not being withdrawn absolutely but is being withdrawn on condition that the plaintiff may be permitted to institute a fresh suit for the same subject-matter that the permission of the court for such withdrawal is necessary. The provisions of O.XXIII r. 1 (l) and (3) also apply in the same manner to withdrawal of appeals. In. Kalycm Singh v. Rahmu (1 ), it was held that where absolute right to withdraw his appeal at any time be fore judgment. This view was followed by the Allahabad High Court v. Partap Chand (2 ), where it was held that having regard to 0. XXIII, r. 1 (1) and s. 107 (2) of the Code of Civil Procedure, where no cross-objection has been filed by the respondent, an appellant has the right to withdarw his appeal unconditionally, his only liability being to pay costs. In Dhondo Narayan Shiralkar v. Annaji Pandurang Kokatnur ('), it was held that "an appellant is entitled as of right to withdraw his appeal, provided the respondent has not acquired any interest thereunder". There was how ever difference between the Allahabad and Bombay High Courts as to whet)ler s. 107 (2) of the Code of the Civil Procedure would help an appellant in such It is unnecessary for our present purpose to a case. respondent, objection had been the appellant had in Kanhaya Lal (I) I.L.R. (1901) 23 All. 130. (2) (1931) 29 A,L.J. 232, (SJ I.L.R, (\9~9) Bom, 66, 1961 BUaJanonU Pal111ill •• it1 1ru1lr11• Salt• w...i .. 1. 550 SUPREME COURT REPORTS (1964] VOL. decide whether the absolute right of the appellant to withdraw an appeal unconditionally i. 107 (2) or is an inherent right of the appellant on the analogy of 0, XXIII r. 1 (1). But there can be no doubt that au appellant has the right to with draw hi! appeal unconditionally and if he makes such an application to the court, it has to grant it. The difficulty arising out of any cross-objection under which the respondent might have acquired an interest as pointed out by the Bombay High Court, no longer remains in veiw of 0. XLI r. 22 (4), which now permits the cross-objectiou to be heard even though the appeal is withdrawn. Therefore when the High Court is hearing an appeal from an original decree and an application is made to it to withdrew the appeal unconditionally, it must permit such with drawal subject to costs and has no power to say that it will not permit the appeal to be withdrawn and will go on with the hearing of the appeal. The l l 6A (2) when power of the High Court under s. hearing an appeal from an election petition is the· same as its power when hearing an appeal from an original decree, and the procedure is also the same, for there is no express rrovision to the contrary in the matter of withdrawa of an appeal in the Act. Therefore when an appellant under s. 116-A makes an application for an unconditional withdrawal of the appeal, the power of the High Court, consistently with its power in an appeal from an original decree, is to allow such withdrawal, and it cannot say that it will not permit the appeal to be withdrawn. We arc therefore of opinion that the High Court was in error in importing the principles of 91, I 09 and 110 of the Act which deal only with the withdrawal of election petitions and not with the withdrawal or appeals. It has been urged that in this view an appeal may be withdrawn even where withdrawal haa been induced by bargain or consideration which ought not - 1963 Bijoyananda Paln•ik v. Satrughna S•hr. Wliln&hn /. 2 S.C.R. SUPREME COURT REPORTS 551 be allowed and this would interfere with purity of elections. As the statute stands it seems that the intention was that the provisions about withdrawal and abatement would apply to a petition only when it is either before the commission or the tribunal. It may have been intended that only one proceeding should be specially provided for and that would ensure the purity of elections. If it was intended that ss. 109 and llO should also apply to an appeal for which provision was made bys. 116-A, that inten tion has not been given effect to by proper language. In any case, the position is not the same when an appeal is being withdrawn for generally speaking at that stage a trial has taken place before the tribunal which would ordinarily safeguard such purity. We therefore see no reason to import the principles of ss. 109 and 110 into withdrawal of appeals on this ground. · We are, therefore, of op1mon the High Court should have allowed the application for uncon ditional withdrawal made by Satrughna Sahu, the appellant before it. Further the High Court in this connection rn~ed not have referred to the affidavits filed on behalf of the other two defeated candidates before it, for such affidavits were irrelevant, if Satrughna Sahu, the appellant before the High Court, was entitled to withdraw the appeal unconditionally refuse such withdrawal. the High Court could not In the view we have taken on the first question raised before us, it is not necessary to deal with the second question, though we may add that as at present advised it seems to us that the High Court was in error in treating the application for with drawal of the appeal as if it were an application for withdrawal of an election petition under s. 109 and referring the matter to the election tribunal. Even if the High Court had power to refuse an application 552 SUPREME COURT REPORTS [1!164] VOL. 1963 8ijayt111011da Pot11ait v. Ga1,.,glina Sa/w w ...... J. for withdrawal of an appeal, the proper course for the High Court would be to consider all that is required bys. 110 itself. However in view of our decision on the first question we need not pursue the point further. We, therefore, allow the appeal, set side the order of the High Court and in view of the unconditional application for withdrawal made by Satrughna Sahu, the appellant before the High Court, order that the appeal before the High Court should stand with drawn. In the circumstances we pass no order as to costs. Appeal allowed. 19/JJ SMT. SRILEKHA BANERJEE AND OTHERS M.,<11 11 v. COMMISSIONER OF INCOME-TAX, BIHAR AND ORISSA (S.K. DAS, A.K. SARKAR and M. HIDAYATUJ,LA.H JJ.) [1\COl1\t Tax-Sale of high denominalio1' notts-Sale tax-Indian Incomeo-ta~ Act, 1922 if liable procud•, (11 of 1922). The asscssee had encashed 51 high denomination note• of R1. 1,000/- each injanuary, 1946. The assessee'• explanation in his application for encashment of the notes was that he '"1.'.U a colliery proprietor and contractor, that for conducting the buainess and for payment to labour which came tc a!,out Rs.30,000/-to 4-0,000/- every week he had to keep large sums of money to meet emergency and that the sum of R.. 5r ,000/ - realised by cncashment of the notes wa• neither profit nor part of profit but was floating capit~l for.the purpose of.condu.liaJ business. The Income-tax Officer did not accept thu explana tion and treated this amount •• profit from 10me undisclosed