SHAIK MOHAMMAD UMAR SAHEB versus KALASKAR HASHAM KARIMSAB & ORS.

Citation: [1969] 3 S.C.R. 966 · Decided: 11-03-1969 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

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Judgment (excerpt)

966 
SHAIK MOHAMMAD UMAR SAHEB 
v. 
KALASKAR BASHAM KARIMSAB & ORS. 
March 11, 1969 
[M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.J 
Election petition-Maharashtra Municipalities Act 1965, s. 21(1)-
Trial Court rejecting application to summon peti1ioner's witnesses-1'here-
after summoning them as court witnesses-Whether empo.wered lo do &o-
Cour1 not framing separate clear cut issue for each charge-Whether trial 
vitiated. 
Constitution of India Arts. 226 and 221-Jurisdiction of High Court-
A 
B 
Whether can reappreciate evidence. 
C 
The first respondent challenged the appellant's election to the Sangli 
City Municipality held in June 1967 under the Maharashtra Municipalities 
Act, 1965. 
lt was alleged that the respondent had published and cir-
culated pamphlets contaming defamatory statements against the respon-
dent and in particular instigating Muslim voters to vote against him by 
arousing their religious sentrments. 
At the trial of the petition the res-
pondents applied to have two witnesses examined but the Trial Judge re-
D 
jected the application. 
Later, however, the same 
two 
witnesses 
were 
called by the trial jud.~e as court witnesses. The Trial Court allowed the 
petition and disqualified the appellant from being a member of a Munici-
pality for five years. 
A petition under Arts. 226 and 227 of the Constitution by the appel-
lant was rejected in limine by the High Court. 
· 
In appeal to this Court it was contended inter alia by the appellant (i) 
that the trial court was wrong in callin2 as court wjtnesses the same two 
witnesses who h.i.d been cited as the 
resPondent's 
witnesses and having 
earlier rejected the respondent's 
application to 
call them; 
(ii) on the 
evidence the trial court's findina was not justifiable; (iii) that the result 
of the election was published in the Gazette on the 8th June as well as 
15th June but the limitation of JO days ran from 8th June and the petition 
was therefore time-barred; (iv) the first issue which was decided against 
the appellant was confusing and misleading whereby the appellant had 
been denied a fair trial; (v) the order of the Judge disqualifying the 
appellant for a period of five years was unduly harsh. 
HELD : Dismissing the appeal : (i) Although the trial court's earlier 
order refusing to issue summons to the two witnesses was not justifiable, 
under s. 21(7) of the Maharashtra Municipalities Act, 1965, the Trial 
Judge is given pov.:ers wider than those given by the Code of Civil Pro-
cedure under Order 16, Rule 14, as the ·section does not prescribe any 
pre-requisite to the examination of a person as a. court witness as envi-
saged by the Code of Civil Procedure .. The trial Judge thereto.re had 
jurisdiction to call the two persons as witnesses under the prov1s1ons uf 
the Act. [972 DJ 
R. M. Seshadri v. G. Vasanta Pai, [1969] 2 S.C.R. 1019, referred to. 
(ii) On the evidence, no exception could be taken to. the trial Judge 
deciding the issue against the appellant on the facts and ctrcumsta~ces of 
the case. 
It could not be said that there \vas no evidence on which the 
Judge could have come to that conclusion. 
\Vb.en the trial Judge accepted 
E 
F 
G 
H 
•
A 
B 
c 
D 
E 
F 
G 
H 
UMAR SAHEB v. KAR!MSAB !Mitter, ]. ) 
967 
the evidence with regard to the distribution of the pamphlets by the 
appellant, the High Court, which was not hearing an appeal, could not 
be expected to take a different view in exercising jurisdidtion under Arts. 
226 and 227 of the Constitution and there was no reason shown to this 
Court to interfere with the order of the High Court. [975 A] 
(iii) The appellant could have set up the first Gazette publication as 
the one fixing the period of limitation in \vhich ca!'ie the trial Judge would 
have been required to go into the matter. But the appellant had precluded 
himself from doing so by his unconditional acceotance of the statement in 
the petition that the result was published on 15th June, 1967. 
There was no error apparent on the face of the record before the qigh 
Court and consequently the jurisdiction under Art. 226 of the Constitu-
tion could not have heen exercised on the facts of the dase by the issue 
o'f a writ of certiorari. Neither could the High Court set aside the order 
of the trial court under Art. 227 of the Constitution under which the 
High Court's power of superintendence is confined to seeing that the. trial 
court had not transgressed the limits imposed by the Act. 
On the facts 
of th

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