UPADHYAYA HARGOVIND DEVSHANKER versus DHIRENDRASINH VIRBHADRASINHJI SOLANKI & OTHERS

Citation: [1988] 2 S.C.R. 1043 · Decided: 17-02-1988 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

)' 
UPADHYAYA HARGOVIND DEVSHANKER 
A 
v. 
.,, ' 
DHIRENDRASINH VIRBHADRASINHJI SOLANKI & OTHERS 
FEBRUARY 17, 1988 
[E.S. VENKATARAMIAH AND K.N. SINGH, JJ.] 
B 
t 
y 
Whether a Letters Patent Appeal lies to a Division Bench of 
Gujarat High Court from an inter-locutory Order of a Single Judge of 
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that High Court in the course of trial of an election petition filed under 
the Representation of the People Act, 1951-Determination of question. 
'~ 
The question ~hlch arose for determination in this case was c 
1 
whether a Letters Patent Appeal would lie to a Division Bench of the 
High Court of Gujarat from an interlocutory order of a Single Judge of 
that High Court in the course of the trial of an election petition filed 
under the Representation of the People Act, 1951. 
D 
• 
The appellant and respondents Nos. 1 to 6 were candidates at an 
election held to fill a seat in the Legislative Assembly of the Gujarat 
State. The appellant was declared elected. Thereupon, the lst respon-
dent filed an election petition in the High Court, challenging the validity 
y 
of the election of the appellant on a number of allegations, and in order 
to establish his case, he filed an application before the Single Judge who 
E 
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was trying the election petition, to direct the Returning Officer to pro-
duce all the records.of the election, mentioned in the application, and 
prayed for permission to inspect the same. The appellant opposed the 
prayers made by the lst respondent. 
The Single Judge declined to grant the application made by the Ist F 
~ 
respondent .. Against the order of the Single Judge, the Ist respondent 
preferred an appeal under clause 15 of the Letters Patent of the Gujarat 
High Court. The Division Bench of the High Court allowed the appeal 
to the extent indicated in its judgment, overruling the contention of the 
fl , ,, 
appellant that the appeal was not maintainable as there was no pro-
vision in the Act, permitting an appeal to the Division Bench of the High 
G 
~ 
Court against an interlocutory order of a Single Judge hearing an elec-
tion petition filed under the Act. Aggrieved by the decision of the 
Division Bench, the appellant moved this Court for relief by special 
leave. 
Allowing the appeal, setting aside the judgment of the Division 
H 
1043 
1044 
SUPREME COURT REPORTS 
[1988] 2 S.C.R. 
A 
Bench of the High Court and dismissing the Letters Patent Appeal while 
expressing no opinion on the merits of the case, the Court, 
B 
c 
HELD: The only point urged in this appeal by the appellent was 
that the appeal filed under clause 15 of the Letters Patent of the High 
Court against the interlocutory order passed by the Single Judge was 
not maintainable and, therefore, the judgment of the Division Bench 
was liable to be set aside. [1048C·Dl 
Under the provisions of the Act as amended and the provisions of 
the Constitution of India, no Court exercising power under any ordi· 
nary law otlter than the Judge of a High Court who had been assigned 
the work of trying an election petition under ~ub-section (2) of section~ 
80 A of the Act and the Supreme Court which was empowered to hear 
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an appeal against any order passed by the judge of the High Court 
, 
under section 98 or section 99 of the Act, could decide any question 
arising out of an election petition. The power of the Supreme Court 
under the provisions of the Constitution was, however, unaffected by 
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!! 
D 
any of the provisions of the Act. It meant that when an election petition 
was pending in the High Court, only the judge who was asked to try the 
election petition could deal with the questions arising in it and no other 
judge or judges of the High Court could deal with them. When an order ·1
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F 
was passed under section 98 or section 99 of the Act by a judge of the 
High Court in an election petition, it was subject to the appellate juris-
diction of the Supreme Court under section 116-A of the Act, Article 
l36 of the Constitution being excluded in view of the express provisions 
of section 116-A of the Act, and being resorted to by any party 
aggrieved by any order passed by the judge trying an election petition 
not falling under section 98 or section 99 of the Act. It followed that the 
Division Bench of the High Court, which was entitled to hear an appeal 
against any order of a Single Judge under clause 15 of the Letters 
Patent of the High Court, which was an ordinary law, could not hear an _.,., 
appeal against any interlocut

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