LexBIJAYANANDA PATNAIK versus SATRUGHNA SAHU AND OTHERS
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lffY
538 SUPREME COURT REPORTS (1964) VOL·
BIJAYANANDA PATNAIK
v.
SATRUGHNA SAHU AND OTHERS
(A. K. SARKAR, K. N. WANCHOO and
K. c. DAS GUPTA JJ.)
Election Pelifion-Appeal w High Court-Proctdurt-
Withdrawal of appeal, if pumi•1ib/e-Reprmnlation of Peopk.
.Act, .1951 (43 of 19!'JJ), s.•. J{}fJ, 110. 116-.A-Code of Civil
Procedure, 1908 (Act 5 of 1908), 0 . .\XIII, r. 1 (l).
One S filed an election petition against the appellant who
had been declared elected to the State Legislative &.embly.
The appellant applied to the Tribunal for dismissing the
petition under s. 90 (3) of the Representation of the People
Act, 1951, for noncompliance with the provisions of s. 82 of the
Act. The Tribunal accepted the application and dismissed
the election petition. Thereupon S filed an appeal under s.
116-A before the High Court. Subsequently, S applied for with-
drawal of the appeal but the High Court refused to pennit
withdrawal holding that it had to be guided by the principles
of u. 109 anrl I JO of the Act ln considering the application
Cor withdrawal.
Held that S had an absolute right to withdraw the appeal
and the High Court wa• bound to grant him permission to do
so.
Section I 16-A (2) of the Act provides that "subject to the
provisions of this Act" the High Court shall, in an appeal
under the section, have the same po\vers, jurisdiction
and
authority and shall follow the ,.me procedure as if the appeal
were an appeal from an original decree passed by a Civil
Court. The words "subject to the provisions of this Act" in
sub·s. (2) mean that the provision must be an express provision
in the Act or such as arises by necessary implication from an
express provision. Accordingly ss. 109 and I 10 of the Act
which deal with the withdrawal of election petitions do not
apply to the appeal under s. I 16-A.
There is no exp!'CS'
provision in the Act <!ealing with appeals which deals with
the question of withdrawal of appeals and so the provisions
regarding withdrawal
applicable to ordinary civil appeals
before the High Court are applicable also to arpeals under
J. I 16-A. Under 0.33, r. I (1), Code or Clvl Procedure,
2 S.C.R.
SUPREME COURT REPORTS
539
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
and
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,
for
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 the
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
1963
Bi}a)'Qnanda Patnait
••
Satrug%~• S~lu!
/963
BijaytJtUUJda Pa/nail;
••
SatrugA11a Sahu
?Vanchoo J.
540
SUPREME COURT REPORTS (1964] VOL.
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
came to
the
conclusion that
as the petition
was
not
framed
in
accordance with
s. 82,
the defect was fatal. It therefore dismissed the
petition.
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 waExcerpt shown. Read the full judgment & AI analysis in Lexace.