LexBABUBHAI MULJIBHAI PATEL versus NANDLAL KHODIDAS BAROT & ORS.
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A B c D E F G H 71 BABUBHAI MULJIBHAI PATEL v. NANDLAL KHODIDAS BAROT & ORS. September 17, 1974 [H. R. KHANNA, M. H. BEG AND V. R. KRISHNA IYER, IJ.) Constitution of lndia, 1950-Art. 226-Nature and stope of jurisdiction of the High Court-Whether the High Court could decide writ petitions on affi-· davits-Whether the High Court should call all the deponents for cross-examina- tion-Difiertnce between a motion of no confidence and ce11SUre motion. A vote of no confidence was moved by respondent no. 1 against the appellant who was the elected President of a Mllllicipality. The appellant's party claimed that the motion was lost while the respondent no. 1 claimed that it was carried. Since the appellant did not vacate his office respondent no. 1 filed a writ petition under article 226 of the Constitution. Before the High Court a number of affi. davits had been filed on behalf of the appellant and the respondent. After cross- examining six persons fdr respondent and two for the appellant the High Court held that the appellant had ceased to be the President. On appeal to this Court it was contended ( 1 ) that as the dispute between the parties involved questions of fact the High Court should have referred the parties to a separate suit, (2) that the High Court should have permitted cross- examination of all deponents, (3) that as the cross-examination of only a few of the (feponents had beeq permitted the affidavits of others who were not cross" examined could not be taken into consideration; ( 4) that the High Court was wrong In relying upon the version of respondent no. l that one of the councillors who was a supporter of the appellant had supported the motion of no confidence; . ( 5) that the councillors had to stick to the ground specified in the notice and :ould not depart from it in passing the motion of no confidence. Dismissing the appeal, HELD : (I )(a) The appellant could not be heard to say that the Court should have relegated respondent no. 1 to the remedy of a suit. Had the respondent no. 1 been directed to seek his remedy by way of a suit the relief secured by him would have been wholly illusory because by· the time he would succeed. in the litigation, the term of the office of the President would have either already expired or be about .to expire. The appellant in that event would have continued as the President of the Municipality even though he had ceased to enjoy the confidence of the requisite number of councillors. The entire' concept of a democratic institution would thus have been set at naught. [79H; 80B-C] (b) In a petition under Art. 226 the High Court has jurisdiction to try issues: both of fact and law. The words "as far as it can be made applicable'' occurring in s. 141 of the Code of Civil Procedure make it clear that in applying the various provisions of the' Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue orde~s or writs. If the procedure of a suit had also to be adhered to in the case of wnt petitions the entire purpose of having a quick 2nd inexpensive remedy would b.c defeated. A writ petiiion under article 226 is essentially different from a smt and it would be incorrect to assimilate and incorporate the procedure of a smt into the proceedings of a petition under article 226. The High Court is not dep- rived of this jurisdiction to entertain a petition under article 226 merely because in considering the petitioner:s right of relief, questions of fact may fall to be de- termined. [SOD-G] 72 SUPREME COURT REPORTS [1975] 2 s.c.R. Gunwant Kaur v. Bhatinda Municipality A.I.R. 1970 SC 802 relied on. (2) It is difficult to accede to this contention. Normally writ petitions are decided on the basis of affidavits. In some cases, however, where it is not possi- ble for a court to arrive at a definite r.onclusion on account of there being 1affi. davits of either side containing allegations and counter-allegations it would not only be desirable but in the interest of justice. it is the dut;v also of the court to summon a deponent for cross-examination in order to amve at the truth. The fact that the court permits cross-examination of some of the deponents in a peti- tion does not warrant the
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