judgement:
ns Nos. 89 to 92 and 94 of 1968.
Petitions under article 32 of the Constitution of India for enforcement of the fundamental rights.
M.K. Ramamurthi, for the petitioners (in all the petitions).
Niren De, Solicitor General and R.N. Sachthey, for the respondent (in all the petitions ).
The Judgment of the Court was delivered by Hidayatullah, C.J.
These are five writ petitions under Article 32 of the Constitution of India by persons detained under the (4 of 1950) by virtue of orders passed by the District Magistrate Tripura on February 2, 1968.
These detenus (and another since released) were arrested on February 11, 1968.
State Government was informed of the fact of deten sup.
CI/68 5 564 tion on February 13, and the grounds of detention were communicated to the detenus on February 15.
State Government gave the approval on February 19 and telegraphically communicated to the Central Government the fact of the detention on February 22 under section 3(4).
On March 11, the Advisory Board considered the cases.
The present petitions were filed on March 12, 1968.
The Advisory Board made its report to the State Government under section 10 of the Act on April 17, 1968.
On April 26, 1968, the State Government made the order detaining the petitioners for a period of one year.
This detention is challenged before us.
The petitions were argued by Mr. Ramamurthy together.
The law points raised by him in these cases were common and will be dealt with together.
Part of the facts were also common although some special features were pointed out in some cases.
We propose to deal with the common,points of law and facts together and then to consider the special facts separately.
The points of law were (1 ) that the detention was illegal as the report of the District Magistrate was not submitted forthwith as required by section 3(3) of the Act, (2) that the detention was again illegal as the order of approval of State Government under section 3 (3) was not communicated to the petitioners, (3) that the detention was illegal as the State Government had not reported the fact to the Central Government as soon as possible and without avoidable delay.
The common points of fact are that the grounds were vague and the detention was for a collateral purpose and mala fide.
The order of detention in each case was made on the 9th of February.
The arrest and detention commenced from the 11th.
The communication .was on February 13.
Section 3 (3) of the Act lays down: "3.
The Central Government or the State Government may (1) (3) When any order is made under this section (by an officer mentioned in sub section (2) he shall forthwith report ' the act to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion (have a bearing on the matter, and no such order made after the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government).
" 565 The question is whether the detention became illegal because 4 days were allowed to pass from the order of detention and 2 days from the date of arrest.
The third sub section quoted above uses the word 'forthwith '.
, Explaining this word Maxwell in Interpretation of Statutes (Eleventh Edn.) at p. 341 observes as follows: "When a statute requires that 'something shall be done "forthwith", or "immediately" or even "instantly", it should probably be understood as allowing a reasonable time for doing it.
" The word 'forthwith ' in section 3 (3) and the phrase 'as soon as may be ' used in the fourth sub section were considered in Keshav Nilkanth Joglekar vs The Commissioner of Police, Greater Bombay(1).
In that case the delay was of 8 days.
Giving proper meaning to the expression it was observed: "We agree that "forthwith" in section 3 (3) cannot mean the same thing as "as soon as may be" in section 7, and that the former is more preemptory than the latter.
The difference between the two expressions lies, in our opinion, in this that while under section 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under section 3 (3) what is allowed is only the period during which he could not, without any fault of his own, send the report.
" The delay of 8 days was held explained thus: "What happened on the 16th and the following days are now matters of history.
The great city of Bombay was convulsed in disorders, which are among the worst that this country has witnessed.
The Bombay police had a most difficult task to perform in securing life and property, and the authorities must have been working at high pressure in maintaining law and order.
It is obvious that the Commissioner was not sleeping over the orders which he had passed or lounging supinely over them.
The delay such as it is, is due to causes not of his making, but to causes to which the activities of the petitioners very largely contributed.
We have no hesitation in accepting the affidavit, and we hold that the delay in sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent "forthwith" within the meaning of section 3(3) of the Act.
" In the present case the delay is much shorter.
The 10th and 1 ith of February were close holidays.
The communication was (1) ; at pages 658 660. 566 on the 13th.
Thus there was only delay because the report was not made on the 12th.
Explaining the delay the District Magistrate in his affidavit says: "I say that 10th February, 1968 was a holiday, being the second Saturday of the month and 11th February, 1968 was Sunday.
I say that serious reports about the activities of the Mizo National Front and Sangkrak Party, which are tribal groups of hostiles who had set up an independent Government and were indulging in subversive acts against the local Govern.
ment and were committing dacoities, murder, arson etc.
particularly aimed at non tribals, were received at that time which kept me extremely busy during those days.
Besides this, I also say that I was in the midst of paddy procurements and there was very heavy rush of work in my office in those days.
I say that 10th and 11th February, 1968, being holidays and order being communicated on the ' 13th to the State Government, was communicated "forthwith" as required by law.
" In our judgment even if the meaning from the ruling is applied with strictness, the delay was explained sufficiently.
The District Magistrate was hard put to for time and the surrounding circumstances explain the very short delay.
A much larger delay was held in this Court not to militate against section 3 (3) and we think there is less room for interference in this case than existed in the former case.
We accordingly reject the first of .the law The second point has no force.
There is no provision in the Act that such an approval must be communicated to the detenu.
The argument is that this must be implied from the object of the Act.
The detaining authority is answerable to the State Government, Sub section (3 ) gives validity to the order for a period of 12 days even without approval.
The approval was done within the time and began to operate as soon as made.
It was contended that the approval ought to have been communicated to the detenu and without this communication the detention could not be legal.
Reliance was placed upon certain cases to show that persons affected by an order must be communicated that order if it is to be effective.
In Raja Harish Chandra Raj Singh vs The Deputy Land Acquisition Officer and another(1) (a case under the Land Acquisition Act 1894) it was held that the award of the Collector must be communicated, and that this was an essential requirement of fair play and natural justice.
The Court was considering a question of limitation Which ran 'from the date of the Collector 's (1) [1962] 1 S.C.R. 676.
567 award ' in the proviso to section 18 and was not prepared to construe those words in a literal or,mechanical way.
The reason which prevailed for making a distinction between an order passed and an order communicated do not obtain here.
In Bachhittar Singh vs The State of Punjab(1) an order of dismissal of a public servant passed by the Minister on the file was not communicated and it was held 'that it was only provisional fill communicated.
This case is not in point.
The next case Biren ' Dutta and others vs Chief Commissioner of Tripura and another(2) deals with detention under the Defence of India Rules 1962 rules 30(1)(b) and 30A(8).
The reason of rule 30A(8) was stated by this Court to be that it is in the nature of an independent decision and further detention can be justified only if the decision is recorded as required by the rule, and it must be in writing clearly and unambiguously to indicate the decision.
It was further observed that the decision must be communicated.
This case is really no authority in the context of the present ease.
Section 3 (3 ) of the does not specify that the order of approval is anything more than an administrative approval by the State Government.
If this be so the necessity of communication of the approval does not arise with that strictness as does the decision under Rule 30A(8) of the Defence of India Rules.
The Solicitor General on that occasion conceded this position.
The dispute then narrowed to the question whether article 166 applied.
This point was not decided by this Court but basing itself on the admission that the deeision to continue the detention must be in writing, this Court considered whether there was substantial compliance with this requirement.
A brief memorandum was produced which merely recorded that a decision was reached.
This Court held that the memorandum could not reasonably be said to.
include a decision that the detention of the detenus was thought necessary beyond six months.
Sueh orders were held not to contain a written record of the decision with appropriate reasons.
In our opinion the provisions of the cannot be equated to those of the Defence of India Act and the Rules.
While we are of opinion that even in detention under the it would be fair to inform the detenu of all the stages through which his detention passes and a provision to that effect should be included in it, we are not satisfied that in view of the state of the existing law we can import the strict rule here.
The scheme of the is merely to approve the original detention by the District Magistrate and the continued detention after 12 days is not under any fresh order but the same old order with the added approval and what the detenu can question if he be so minded, is the original detention and not the approval thereof.
(See in this connection also (1) [1962] Supp. 3 S.C.R. 713.
(2) ; 568 Mohammed Afzal Khan vs State of Jammu & Kashmir(1).
We accordingly consider the ruling inapplicable.
It is next contended that the State Government was also guilty of undue and unreasonable delay in reporting to the Central Government.
The State Government communicated the decision on February 22.
State Government received the communication from the District Magistrate on February 13, and approved the action on February 19.
The communication to the Central Government on February 22 was not so much delayed that it is not covered by the expression 'as early as may be ' explained by this Court in Keshav Nilkanth Joglekar vs The Commissioner of Police Greater Bombay 's(2) case.
Mr. Ramamurthy desired us to calculate the time from February 9 but we do not think that is possible.
Time can only be calculated from the moment the matter reached the State Government.
The State Government took a week to consider these cases and it is reasonable to think that there might be a few more cases which are not before us.
Having reached the decision on the February 19, the action of the State Government in communicating the matter to the Central Government on February 22 cannot be said to be so delayed as to render the detention illegal.
Various things have to be done before the report to the Central Government can be made and a gap of 3 days is understandable.
We see no forces in this point.
This brings us to the merits of the detention.
Here the charge is that the grounds furnished to the detenus were vague and the detention itself mala fide.
The grounds are practically the same except for very minor changes to which attention will be drawn when we deal with individual cases.
We may set down the grounds of detention from Petition No. 89 of 1968 as sample.
"You are being detained in pursuance of the Detention order made under sub clauses (ii) and (iii) of clause (a) of sub section (1) of section 3 as you have been acting in manner prejudicial to the maintenance of public order and supplies essential to the community as evidenced by the particulars given below : 1.
That you have been instigating the loyal villagers particularly the tribals living in and around the Forest Reserve areas to damage the forest plantation and to do Jhuming in Reserve Forest areas in violation of forest laws.
Towards the end, you have been attending a number of secret meetings in which it was decided to urge the public to start campaign against the Forest Department and to destroy the forest plantation.
That you have by your activities created resentment against (1)[1957] S.C.R. 63.
(2) 1950 S.C.R. 569 the forest ,departments and the Forest Laws under Teliamura P.S. thereby endangering the maintenance of public order.
That you have been instigating the loyal cultivators from delivering the paddy to the Government which has been requisitioned under the Tripura Foodgrains Requisition Order for the maintenance of sup plies of foodgrains to the people in lean months.
You have been instigating and inciting the people to offer organised and violent resistance against the paddy procurement staff.
Towards this end, you have been attending a number of secret meetings in which it was decided to urge the public to start campaign against the procurement of paddy.
You have been directly in 'citing the people in a number of mass meetings also.
That you have by your speeches and activities induced the people of certain areas to offer violent resistance to paddy procurement thereby preventing the Government from maintaining supplies essential to the community during times of need.
The above reports are evident from the facts that on 12 11 67 you artended a mass meeting at Kalyanpur, a secret meeting on 13 11 67 at Asha rambari, again mass meetings at Teliamura on 28 11 67 at Moharchhara Bazar on 16 12 67, on 6 1 68 at Telia mura and on 21 1 68 at Stable ground, Agartala.
Because of your activities and incitement, on 2 2 68 the procurement staff were offered a strong and violent resistance by an unruly mob at Chalitabari P section Telia mura.
" It is submicted that the grounds do not give anydetails since no particulars of time, place and circumstances have been mentioned, and relevant and irrelevant matters have been included.
Reference is made to two cases decided recently by this Court in which the grounds were found insufficient.
They are: Rameshwar Lal Patwari vs State of Bihar(x) and Motilal Jain vs State of Bihar & Others(2).
We find no such vagueness in the grounds as was found established in the two cases.
The grounds begin by stating generally what the activities were.
They consisted of instigation of tribal people to practise jhuming and preventing the authorities from delivering paddy to Government under the procurement schemes.
This instigation it is said was through mass and secret meetings and resulted in violent resistance to Government.
Having said this the grounds then specify the places where and the dates on which the meetings were held and the date on which and place at which the resistance took place.
In our judg (1) ; (2) ; 570 ment more detailed information was not necessary to give .the detenus an opportunity to make their representations.
The grounds here are specific and very unlike those in the cases relied upon.
We reject the contention.
As regards mala fides and collateral purpose alleged to be the real reason, the averment is that the detention was ordered to prevent the detenus from actively campaigning for the Panchayat elections that were to take place on the 19th and 20th February, 1968.
This has been denied and looking to the circumstances of this area which are notorious there is no doubt in our minds that the affidavit of the District Magistrate is reliable.
This ends the submissions which are common to these five cases.
We now pro ceed to discuss individual objections.
Writ Petition 89 of 1968.
There is no special objection in Writ Petition 89 of 1968 beyond what has been discussed above and it is accordingly dismissed.
Writ Petition 90 of 1968: Here too there is no special ground urged before us and the petition is accordingly dismissed.
Writ Petition 91 of 1968: The first objection is that there is a mistake of identity.
The petitioner claims to be Dasrath s/o Kfishna Deb whereas in the order of detention and other papers is described as Dasrath s/o the Late Krishna Chandra Deb Barrna.
It is also submitted that Krishna Chandra Deb is alive and, there fore, the order of detention concerned some other person.
It is denied by the District Magistrate that the order was not passed against the present detenu himself.
The addition of Barma is explained by the District Magistrate as a popular suffix to the name.
The District Magistrate has further said that in Tripura it is usual to have Barma in addition to Deb in the surname and that this ground of identity has been raised for the first time in this Court.
The address of the petitioner is accurate and the I father 's name is also correct.
Nothing much turns on the fact that the father was described as dead.
The petitioner ha.s not objected till he reached this Court and the authorities would hardlybe expected to hold a wrong man and let the real man go free.
We reject this contention.
The next contention concerns the discrepancy in the dates of meetings and what happened as a result of his activitiesand incitement.
The two sets of dates may be put side .by side: Meetings Result 25 11 67 18 6 67 16 12 67 21 6 67 26 12 67 24 6 67 27 12 67 25 6 67 30 12 67 23 12 67 3 1 68 21 1 68 571 It is argued that the results in all but two dates could not follow activities which were later.
The explanation is simple.
The results were said to be because of the activities of the peritioner.
The mention of dates of meetings is merely some evidence to show the kmd of activity.
We are concerned with preventive detention.
Ordinarily what we have to satisfy ourselves about is the satisfaction of the authority and the absence of mala fides and whether all the opportunities of making representation were given.
There were enough instances cited of the conduct on which detention was ordered for the petitioner to make an effective representation.
The situation in this area was already bad and the later activities would not make it any better.
We do not think that the detention suffers from any defect.
The petition will be dismissed.
Writ Petition 92 of 1968.
The objection here is of the same character as in Writ Petition 89/91.
An additional complaint here is that he is supposed to ' have instigated people to go on strike and prevented the motor drivers and rickshaw pullers from plying their vehicles on the ' roads and.
government employees from going to office and threatened individual shop keepers to keep their shops closed, but no details are supplied.
It is submitted that this brings the case within the rulings of this Court.
We think this case is distinguishable from the case of a black marketer who is charged with having sold contraband articles or at higher prices or hoarded goods.
General allegations there without concrete instances would be difficult to represent against.
Here the matter is different.
It is an integrated conduct of instigation against law and order which is being charged.
Several aspects of it are mentioned.
They range from jhuming in forests and resistance to procurement to arranging for strikes.
Instances Of mass and secret meetings are furnished and the ramifications of conduct in other directions are mentioned.
In these circumstances the petitioner is expected to represent against the instances and if he convinces that he took no part in the agitation, the other aspects of his activity will be" sufficiently answered.
A_case of this type stands on slightly different footing from the cases of black marketing earlier decided by this Court.
In our judgment no successful ground has been ' made out and the petition must fail.
It will be dismissed.
Writ Petition 94 of 1968.
The petitioner in this case has complained that the order of detention and the grounds supplied to him were in English and he knows only Bengali and Tripuri.
He refers to Harikisan vs The State of Maharashtra & Others(1).
In that case the detenu had" asked for a Hindi translation and had been denied that facility.
(1) [1962] 2 Supp.
S.C.R. 918.
572 We find that this objection was taken here but no request was.
made at any earlier time.
The original petition did not contain any such objection.
It was raised for the first time in the rejoinder.
The petitioner does not seem to have suffered at all.
He has filed the petition in English and questioned the implications of the language of the order and the grounds.
Of course, he had the assistance of the other detenus who know English.
If there had been the slightest feeling that he was handicapped, we would have seriously considered the matter but in his case it appears that this point was presented not to start with but after everything was over.
We cannot entertain such a belated complaint.
The petition will be dismissed.
In conclusion all the petitions fail and will be dismissed.
G.C. Petitions dismissed.

summary:
The petitioners were arrested and detained on February 11, 1968 under the by the orders of the District Magistrate, Tripura.
They challenged their detention on the following among other grounds: (i) that the District Magistrate passed the orders of detention on February 9, 1968 but made his 'report to the State Government only on February 13 and therefore the report was not made 'forthwith ' as required by section 3(3),; (ii) that the State Government did not communicate the approval to the detenus and without such communication the order could not be effective; (iii) that the State Government recorded its approval under section 3(3) on February 19 but communicated it to the Central Government only on February 22 and this was not done 'as soon as may be ' within the meaning of section 3(4); (iv) that the grounds supplied were vague; (v) that the detention order was mala fide.
One of the petitioners also relied on 'the fact that the grounds were supplied to him in English which he did not understand.
HELD: (i) The word 'forthwith ' has been interpreted by this Court in Joglekar 's case to mean the period during which the detaining authority could not "without any fault of his own" send the report.
In the present case the order of detention passed on February 9 was communicated to the State Government on February 13 but the District Magistrate in his affidavit had explained that he was occupied with urgent official work and that 10th and 11th were holidays.
Thus the 're was delay only because the report was not made on the 12th.
Even if the meaning from the 'ruling in Joglekar 's case is applied strictly, the delay was explained sufficiently.
[565 C; 566A, D] Keshav Nilkanth Joglekar vs The Commissioner of Police Greater Bombay, ; at p. 658 60, applied.
(ii) There is no provision in the Act that the approval under section 3(3) must be communicated to the detenu.
Section 3(3) does not specify that the order of approval is anything more than an administrative aproval by the State Government.
If this be so the necessity of communication of the approval does not arise with that strictness as does the decision under r. 30A (8) of the Defence of India Rules.
Although it may be fair even under the to inform the detenu of all the stages through which his detention passes, and it may be desirable to have a provision to that effect included in it, the existing state of the law did not justify the importation of the strict 'rule to cases under this Act.
D, G] 563 The scheme of the is merely to approve the original detention by the District Magistrate and the continued detention after 12 days is not under any fresh order but the same old order with the added approval, and what the detenu can question is the original detention and not the approval thereof.
[567 H] Raja Harish Chandra Raj Singh vs Deputy Land Acquisition Officer [1962] 1 S.C.R. 676, Bachhittar Singh vs State of Punjab,[1962] Supp.
3 S.C.R. 713 and Biren Dutta & Ors.
vs Chief Commissioner of Tripura & Anr.
, [19641 8 S.C.R. 295, distinguished.
(iii) The State Government having reached its decision on February 19, its communication under section 3(4) to the Central Government on February 22 was not so delayed that it is not covered by the expression 'as early as may be ' which was explained in Joglekar 's case to mean 'what is reasonably convenient '.
Various things have to be done before the report to the Central Government can be made and a gap of 3 days is understandable.
[568 D] (iv) The grounds in the present case had been supplied to the detenu with sufficient particularity to enable them to make an effective representation.
The cases of Rameshwar Lal Patwari and Motilal Jain were distinguishable.
[569 F 570 A] Rameshwar Lal Patwari vs State of Bihar, ; and Motilal Jain vs State of Bihar, ; distinguished.
(v) On the facts and circumstances of the case the allegation of mala fides against the detaining authority could not be accepted.
[570 B] (vi) The objection that the grounds of detention were given in a language which the detenu did not understand was raised in this Court for the first time.
The Court could not entertain this belated complaint especially when the detenu did not seem to have suffered at all for this reason.
If there was the slightest feeling that he had been handicapped the court would have seriously considered the matter.
[572 A B] Harikisan vs State of Maharashtra & Ors., [1962] 2 Supp.
S.C.R. 918, referred to.


judgement:
Appeal No. 1109 of 1965.
Appeal from the judgment and decree dated December 3, 1962 of the Patna High Court in Appeal from Original Decree No. 300 of 1959.
section Mitra and R.C. Prasad, for the appellant.
621 K.K. Sinha, for respondent No. 2.
The Judgment of the Court was delivered by Bachawat, J.
The plaintiff Bank lent moneys to defendant No. 1 Damodar Prasad on the guarantee of defendant No. 2 Paras Nath Sinha.
On the date of the suit Damodar Prasad was indebted to the plaintiff for Rs. 11,723.56 nP on account of principal and Rs. 2,769.37 nP on account of interest.
In spite of demands neither he nor the guarantor paid the dues.
The plaintiff filed a suit against them in the Court of the Subordinate Judge, 1st Court, Patna, claiming a decree for the amount due.
The Trial Court decreed the suit against both the defendants.
While passing the decree, the Trial Court directed that the "plaintiff bank shall be at liberty to enforce its dues in question against defendant No. 2 only after having exhausted its remedies against defendant No. 1".
The plaintiff filed an appeal challenging the legality and propriety of this direction.
The High Court dismissed the appeal.
The plaintiff has filed the present appeal after obtaining a certificate.
The guarantee bond in favour of the plaintiff bank is dated June 15, 1951.
The surety agreed to pay and satisfy the liabilities of the principal debtor upo Rs. 12,000/ and interest thereon two days after demand.
The bond provided that the plaintiff would be at liberty to enforce and to recover upon the guarantee notwithstanding any other guarantee security or remedy which the Bank might hold or be entitled to in respect of the amount secured.
The demand for payment of the liability of the principal debtor was the only condition for the enforcement of the bond.
That condition was fulfilled.
Neither the principal debtor nor the surety discharged the admitted liability of the principal debtor in spite of demands.
Under sec.
128 of the Indian Contract Act, save as provided in the contract, the liability of the surety is coextensive with that of the principal debtor.
The surety became thus liable to pay the entire amount.
His liability was immediate.
It was not deferred until the creditor exhausted his remedies against the principal debtor.
Before payment the surety has no right to dictate terms to the creditor and ask him to pursue his remedies against the principal in the first instance.
As Lord Eldon observed in Wright V. Simpson(1). "But the surety is a guarantee; and it is his business to see whether the principal pays, and not that of the creditor.
" In the absence of some special equity the surety has no fight to restrain an action against him by the creditor on the ground that the principal is solvent or that the creditor may have relief against the principal in some other proceedings.
(1) ; 734: ; , 1282.
622 Likewise where the creditor has obtained a decree against the surety and the principal, the surety has no right to restrain execution against him until the creditor has exhausted his remedies against the principal.
In Lachhman Joharirmal V. Bapu Khandu and Surety Tukaram Khandoji(1) the judge of the Court of Small Causes, Ahmedabad, solicited the opinion of the 13Bombay High Court on the subject of the liability of sureties.
The creditors having obtained decrees in two suits in the Court of Small Causes against the principals and sureties presented applications for the, imprisonment of the sureties before levying execution against the principals.
The judge stated that the practice of his court had been to restrain a judgment creditor from recovering from a surety until he had exhausted his remedy against the principal but in his view the surety should be liable to imprisonment while the principal was at large.
Couch, C.J. and Melvell, J. agreed with this opinion and observed : "The court is of opinion that a creditor is not bound to exhaust his remedy against the principal debtor before suing the surety and that when a decree is obtained against a surety, it may be enforced in the same manner as a decree for any other debt.
" It is now suggested that under Order XX r. 11 (1 ) and sec.
151 of the Code of Civil Procedure the Court passing the decree had the power to impose the condition that the judgment creditor would not be at liberty to enforce the decree against 'the surety.
until the creditor has exhausted his remedies against the principal.
Order XX r. 11 ( 1 ) provides that "where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without 'interest, notwithstanding anything contained in the contract under which the money is payable.
" For making an order under O. XX r. 11 (1 ) the Court must give sufficient reasons.
The direction postponing payment of the amount decreed must be clear and specific.
The injunction upon the creditor not to proceed against the surety until the creditor has exhausted his remedies against the principal is of the vaguest character.
It is not stated how and when the creditor would exhaust his remedies against the principal.
Is the creditor to ask for imprisonment of the principal ? Is he bound to discover at his peril all the properties of the principal and sell them; and if he cannot, does he lose his remedy against the surety ? Has he to file an insolvency petition against the principal ? The Trial Court gave no reasons for this extraordinary direction.
The Court rejected the prayer of the principal debtor for payment of the decretal amount in instalments as there was no evidence to show (1) (1869) 4 Bom.
High Court Reports.
623 that he could not pay the decretal amount in one lump sum.
It is therefore said that the principal was solvent.
But the solvency of the principal is not a sufficient ground for restraining execution of the decree against the surety.
It is the duty of the surety to pay the decretal amount.
On such payment he will be subrogated to the rights of the creditor under sec.
140 of the Indian Contract Act.
and he may then recover the amount from the principal.
The very object of the guarantee is defeated if the creditor is asked to postpone his remedies against the surety.
In the present case the creditor is a banking company.
A guarantee is a collateral security usually taken by a banker.
The security will become useless if his rights against the surety can be so easily cut down.
The impugned direction cannot be justified under O. XX r. 11 (1).
Assuming that apart from O. XX r. 11 ( 1 ) the Court had the inherent power under section 151 to direct postponement of execution of the decree, the ends of justice did not require such postponement.
In the result, the appeal is allowed, the direction of the court below that the "plaintiff bank shall be at liberty to enforce its dues in question against defendant No. 2 only after having exhausted its remedies against defendant No. 1" is set aside.
The respondent Dr. Paras Nath Sinha shall pay to the appellant costs in this Court and in the High Court.
Y.P. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant creditor lent moneys to the first respondent on the guarantee of the second respondent.
, The appellant filed a suit against the respondents for recovery of the amount due.
and the suit was decreed.
While passing the decree, the Trial Court directed that the appellant would not be at liberty to enforce the decree against the second respondent ' until he had exhausted his remedies against the first respondent.
The appellant challenged this direction.
The High Court dismissed the appeal.
In appeal on certificate, this Court : HELD: The direction must be set aside.
In the absence of some special equity the surety has no right to restrain execution against him until the creditor has exhausted his remedies against the principal.
For making an order under O.XX r. 11 (1 ) of C.P.C. the court must give specific reasons.
The direction postponing payment of the amount decreed must be clear and specific.
The injunction upon the creditor not to proceed against the surety until the creditor has exhausted his remedies against the principal was of the vaguest character.
It was not stated how and when the creditor would exhaust his remedies against the principal.
[622 A, F G] It is the duty of the surety to pay the decretal amount.
On such payment he will be subrogated to the rights of the creditor under section 140 of the Indian Contract Act.
and he may then recover the amount from the principal.
The very object of the guarantee is defeated if the creditor is asked to postpone his remedies against the surety.
In the present case the creditor is banking company.
A guarantee is a collateral security usually taken by a banker.
The security will become useless if his rights against the surety can be so easily cut down.
The impugned direction cannot be justified under O.XX r. 11 (1).
Assuming that apart from O.XX r. 11(1) the Court had the inherent power under section 151 to direct postponement of the execution of the decree, the ends of justice did not require such postponement.
[623 A C] Lachhman ,Joharimal V. Bapu Khandu and Surety Tukaram Khandoji, (1869) 4 Bom.
High Court Reports, 241.


judgement:
vil Appeal No. 683 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the Judgment and order dated January 10, 1968 of the Judicial Commissioner of Manipur in Election Petition Case No. 2 of 1967.
D. Goburdhun, for the appellant.
K.R. Chaudhuri, K. Rajendra Chaudhuri and C.S. Sreenivasa Rao, for respondent No. 1.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal from the Court of the Judicial Commissioner for Manipur at Imphal under section 116A of the Representation of People Act.
The appeal arises 'from an election to the Outer Mareput Parliamentary Constituency at which the appellant, who was the returned candidate, and five others were the contesting candidates.
This Outer Mareput Constituency comprised 14 Assembly constituencies.
The dates of poll were 15th, 20th, 24th, 28th February, and 6th March, 1967 and the time of poll was from 7 30 A.M. to 4 30 P.M.
This constituency had 2,19,554 registered voters.
The total number of votes polled was 1,20,008.
Of these 4,166 votes were declared invalid.
The returned candidate received 30,403 votes as against the next candidate who received 28,862 votes.
There was thus a majority of 1,541 votes in favour of the returned candidate.
The result of the poll was declared on March 10, 1967.
The candidate who secured the second largest number of votes filed this election petition on April 20, 1967.
The main ground of attack, which succeeded in the Judicial Commissioner 's Court, was that the poll was disturbed because of numerous circumstances.
These were that the polling centres were in some cases changed from the original buildings to other buildings of which due notification was not issued earlier with the result that many of the ' voters who went to vote at the old polling booths found no arrangement for poll and rather than go to the new polling station, went away without casting their votes. 'The second ground was that owing to firing by the Naga Hostiles, the voting at some of the polling stations was disturbed and almost no votes were cast.
It was lasfly contended that the polling hours at some stations were reduced with the result that some of the voters who went to the polling station were unable to cast their votes.
639 It is hardly necessary to set down here the names of the polling stations at which these things happened.
In any event, these pelting stations carry rather strange names and it would not help to state them here.
The net result may be stated.
It was this there were 12 polling centres, at 4 of which the venue for the poll was altered.
There were 6 others at which the firing disturbed the poll and In 2 of the polling.
centres not a single vote was cast and lastly in one of the polling centres out of 513 voters only one voted.
The following chart discloses the break up of the figures at these polling centres: SR.
No. of No. of No. Name of the polling stations voters votes (as notified) attached actually to the cast station 1.Tungam Khullen High School . . 1,242 522 2.ChandelJunior Basic School . . 1,060 172 3.
Purum Pantha L.P. School . . 654 338 4.
Litan L.P. School . . 449 347 5.
Toupokpi M.E. School . 584 128 6.Chakpikarong M.E School. . 715 67 7.Bolyang Tampak L.P. School. . . 868 249 8.Oklu L.P.School . . . . 725 17 9.Lorong Khullen J.B.School. . 581 53 10.Lakhmei M.E.School. . . 665 11.Nagri Khullen M.E.School . . 564 12.Karong Dak Bumgalow. . . 513 1 It will be noticed from this chart that out of 8,620 votes which could have been polled, only 1,894 votes were actually received.
In other words, 6,726 voters did not vote or could not vote.
The election petitioner who ran a deficit of 1,541 votes claimed in the election petition that the result of the poll was prejudicial to him in particular and friar by the non compliance with the provisions of the Act and its rules, the result of the election in so, far as the returned candidate was concerned had been materially affected.
The Judicial Commissioner after examining a large number of witnesses on both sides, came to the conclusion that there was this flaw in the election for this constituency.
He went further and held that the result of the election in so far as it concerned the returned candidate had been materially affected.
He, therefore, avoided the election and ordered fresh poll in the 12 polling stations.
In this appeal, the returned candidate attempted to establish that polling was not so disorganised that it could be said that 340 it did not take place.
He attempted to show that even where the polling station was shifted, it was a matter of few hundred yards and the people went to vote knew the new location of the polling booths.
He also submitted that, in any event, this had, affected all the contesting candidates equally and the election.
petitioner could not, therefore, be said to have suffered more ' than the other candidates.
Lastly, the returned candidate contended that it had not been established in accordance with the ruling of this Court in Vashist ,Narain Sharma vs Dev Chandra and others(1) that the result of the election had been materially affected so far as his election was concerned.
In this connection, the returned candidate relies upon the majority which he had already obtained and refers to the votes which had not been cast, pointing out that on the general pattern of the voting as disclosed in the case it cannot possibly be said that the election petitioner would have carried such a majority from those votes as to neutralise the successful lead he had already established.
The election petitioner as the answering respondent tried to establish that the pattern of the voting clearly showed that the returned candidate had obtained a fortuitous lead which was capable of being wiped off if the voting had proceeded according to the Act and the Rules.
Both sides relied upon statistics to establish their cases.
The election petitioner in addition relied upon the evidence of witnesses which he pointed out had been accepted by the Juclicial Commissioner and upon the observations of this Court contended that we should not lightly depart from the findings given by the learned Judicial Commissioner.
This case without entering into the numerous details, is confined to the above contentions of the rival parties.
To begin with, it is hardly necessary for us to go over the evidence with a view to ascertaining whether there had been or not a breach of the Act and the rules in the conduct of the election at this constituency.
We may say at once that having read the evidence we are in entire agreement with the decision of the learned Judicial Commissioner that by the change of venue and owing to the firing, a number of voters probably failed to record their votes which they would have gone if the poll had gone on smoothly and according to rules.
This shows that the matter is governed by section 100(1) (d) (iv).
The question remains still whether the condition precedent to the avoidance of the election of the returned candidate which requires proof from the election petitioner 'that the result of the election had been materially affected in so far as the returned candidate was concerned, has been established in the present case.
This part of the case depends upon the ruling of this Court in (1) [1955] 1 section
C.R. 509.
641 Vashist Narain Sharmas case(1).
In that case there was a difference of 111 votes between the returned candidate and the candidate who had obtained the next higher number of votes.
One candidate, by name Dudh Nath Singh, was found not competent to stand and the question arose whether the votes wasted on Dudh Nath Singh, if they had been polled in favour of the remaining candidates, would have materially affected the fate of the election.
Certain principles were stated as to how the probable effect upon the election of the successful candidate of votes which were.
wasted (in this case not cast) must be worked out.
Two witnesses were brought to depose that if Dudh Nath Singh had not, been a candidate for whom no voting had to be done, the voters would have voted for the next successful candidate.
Ghulam Hasan, J. did not accept this kind of evidence.
It is observed as follows: "It is impossible to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground.
The question is one of fact and has to be proved by positive evidence.
If the petitioner.
is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand.
" In another passage, it is observed: "It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate.
The casting of votes at an election depends upon a variety of factors and ' it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100(1)(c) and hold without evidence that the.
duty has been discharged.
" Further it is pointed out that the burden of proof in England the exact reverse of that laid down by the Indian statutes.
There, the returned candidate has to prove that the non compliance or mistake does not affect the result of the election.
In our country, the burden is upon the election petitioner to 'show affirmatively that the result of the 'election has been materially ' affected.
(1) ; 642 Therefore, what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating to the court either positively or even reasonably that the.
poll would have gone against the returned candidate if the breach the rules had not occurred and proper poll had taken place at ' all the polling stations including those at which it did not.
The evidence in tiffs case which led by the election petitioner is the kind of evidence which was criticised by this Court.
Witnesses have stated that a number of voters did not vote because of the change of venue or because of firing and that they had decided to vote en bloc for the election petitioner.
This kind of evidence is merely an assertion on the part of each witness, and he cannot speak for 500 voters for the simple reason that as this Court said the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates.
We cannot therefore accept the statement even of a Headman that the whole village would have voted in favour of one candidate to the exclusion of the others.
This conclusion is further fortified if one examines the polling pattern in this election.
To begin with, it is wrong for the election petitioner to contend that of the 6,726 votes which were not cast, he would have received all of them.
The general pattern of poll not only in this constituency but in the whole of India is that a11 the voters do not always go to the polls.
In fact, in this case, out of 2,19,554 voters, only 1,20,008 cast their votes.
Even if we were to add to them the 6,726 votes, it is obvious that not more than 5 5 % of the voters would have gone to the polls.
This immediately cuts down the figure of 6,726 to a little over half and the margin from which the election petitioner could claim additional votes therefore.
becomes exceedingly small.
When we turn to the pattern of voting, as is disclosed at the various polling booths at which the voters had in fact gone, we get reasonably clear picture.
At 9 polling centers, 1893 votes were actually polled.
Of these, 524 votes were received by the election petitioner and 413 by the returned candidate and 1,097 votes went to the other candidates.
In other words, out of 20 votes, 11 went to other candidates, 5 to the election petitioner and 4 to the returned candidate.
If one goes by the law of averages and applies these figures reasonably to half of the votes which were not cast, it is demonstrated at once that the election petitioner could not expect to wipe off the large arrears under which he labored and that he could not have therefore made a successful bid for the seat even with the assistance of the voters who did not cast their votes.
It is pointed out that at Tungam Khullen High 643 School, he received 401 out of 522 votes.
If this had been the general pattern, one could say that he would have got almost the votes that had not been cast.
But look at the other polling stations.
At Litan L.P. School, he obtained 41 out of 347, at Chandel Junior Basic School he got 34 out of 172, at Purum Pantha L.P. School he got 11 out of 338, at Toupokpi M.E. School 18 out of 128, at Oklu L.P. School 8 out o.f 17, at Chakpi Karong M.E. School 2 out of 67, at Larong Khullen L.P. School 1 out of 53 and at Bolyang Tampak L.P. School 8 out of 249.
While we do not think that statistics can be called in aid to prove such facts, because it is notorious that statistics can prove anything and made to lie for either case, it is open to us in reaching our conclusion to pay attention to the demonstrated pattern of voting.
Having done so, we are quite satisfied that 1,541 votes could not, by any reasonable guess, have been taken off from the lead of the returned candidate so as to make the election petitioner successful.
In so far as the other contesting candidates are concerned, they had received so few votes that even if they had received all the votes that had not been cast, it would not have mattered little to the result of the election.
The learned Judicial Commissioner reached his conclusion by conrefitting the same error which was criticised in Vashist Narain Sharing 's(1)) case.
He took the statement of the witnesses at their word and held on the basis of those statements that all the votes that had not been cast would have gone to the election petitioner.
For this, there is no foundation in fact; it is a surmise and it is anybody 's guess as to how these people, who did not vote, would have actually voted.
In our opinion, the decision of the learned Judicial Commissioner that the election was to contravention of the Act and the Rules was correct in the circumstances of this case; but that does not alter the position with regard to section 100( 1 )(d)(iv) of the Act.
That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected.
How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided.
It is no doubt true that the burden which is placed by law is very strict; even if it.
is strict it is for the courts to apply it.
It is for the Legislature to consider whether it should be altered.
If there is another way of determining the burden, the law should say it and not the courts.
It is only in given instances that, taking the law as it is, the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not.
We are satisfied that in this case this burden has not been discharged.
The result is Sup.
Cl/69 10 644 that the appeal must succeed and it is allowed.
The election of the returned candidate will stand.
The costs in the Judicial Com.missioner 's Court will be as ordered.
The election petitioner who apparently was not so much at fault as the Government in changing the polling stations, shall bear only half the costs of the appellant in this Court.
Y.P. lippeal allowed.

summary:
In an election to a Parliamentary constituency, having 2,19,554 voters 1,20,008 votes were polled.
of these 4,168 votes were declared invalid.
The appellant won by securing 1,541 votes more than the next candidate the respondent.
The respondent filed an election petition on the ground that the polling was disturbed as the polling centres were in some cases changed without due notification, at some polling stations almost no votes were cast because of fi 'ring at rioters and at some polling stations the polling hours were reduced.
Only 1,894 votes were polled at these polling booths, in which the total number of voters attached were 8,620.
so 6,726 voters could not vote.
The Judicial Commissioner ordered fresh poll in these polling stations.
In appeal by the returned candidate, this Court.
HELD: The appeal must succeed.
The decision of the Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances this case but that did not alter the position with regard to section 100(1)(d) (iv) of the Representation of the People Act.
That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected.
And in this case this burden had not been discharged.
[643 F] The evidence in this case which had been brought by the election 'petitioner was the kind of evidence which was criticised by this Court.
Witnesses were brought forward to state that a number of voters did not vote because of the change of venue or because of firing and that they had already decided to vote en bloc for the election petitioner.
This kind of evidence was merely an assertion on the part of a witness, who could not speak 'for 500 voters for the simple reason that as this Court said the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes wilt go to one or the other candidates.
This conclusion is further forified if one examines the polling pattern in this election.
Not more than 55% of the voters cast their votes. !This immediately cut down the ' figure of 6,726 to a little over half and the margin from which the election petitioner could claim additional votes therefore becomes exceedingly small.
From the pattern of voting as was disclosed at the various polling booths to which the voters had gone, it was clear, that 1,541 votes could not.
by any reasonable guess, have been taken off from the lead of the returned candidates so as to make the election petitioner successful. 'In ,so far as the other contesting candidates were concerned, they had received so few votes that even if they had received all the votes that had not been cast, it would have mattered little to the result of the election.
The Judicial Commissioner reached his conclusion by committing the same error which was criticised in Vashist Narain Sharmas case.
He took the statement of witnesses at their word and held on the basis of 638 these statements that all the votes that had not been cast would have gone to the election petitioner.
[642 B 643 E] Vashist Narain Sharma V. Der Chandra and Ors. ; , followed.


judgement:
Appeal No. 1801 of 1967.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated October 10, 1967 of the Rajasthan High Court in Election Petition No. 13 of 1967.
R.M. Hazarnavis and B.R.Agarwala, for the appellant.
S.V. Gupte, Sardar Bahadur Saharya, Vishnu Bahadur Saharya and Yogindra Khusalani, for respondent No. 1.
H.K. Puri, for respondent No. 2.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal by the unsuccessful election petitioner against the judgment of the High Court of Rajasthan dated October 10, 1967.
The election petition was filed to challenge the election of the first respondent at the Pali Parliamentary Constituency in the Fourth General Elections.
At that election seven nomination papers were filed.
Two of the candidates withdrew.
Amongst them was one R.D. Periwal.
There were thus only five contesting candidates.
of these, the first respondent obtained 1,47,509 votes.
His closest rival respondent No. 2 (now deceased) obtained 1,21,438 votes.
The remaining candidates got a little over thirty thousand votes between them.
The election petitioner (appellant here) is an elector of Pali.
In his petition he joined the returned candidate and the other four contesting candidates.
Many grounds were urged in the petition.
The first ground was that the returned candidate or his election agent prompted hatred against the Congress, appealed to religion and sent persons dressed as Sadhus preaching that if Congress was returned to power there would be go hatya and took pledges or oaths from the voters.
The second was that the returned candidate and his election agent were guilty of suppression of true expenses and filed false returns.
The third ground was that the candidate or his election agent obtained the services of Government servants in furthering the election of the returned candidate.
6 3 2 The last ground was that the returned candidate and his election agent and other persons with the consent of the returned candidate paid and offered bribes between January 13, 1967 to February 14, 1967 to induce the electors directly or indirectly to vote for the returned candidate.
The petition was scrutinised and was found to be in order.
The returned candidate entered appearance on May 15, 1967 and filed a written statement a month later.
He took the objection that the allegations were vague and lacking in necessary particulars.
The High Court thereupon ordered better and fuller particulars on July 2, 1967.
The election petitioner was asked to file an application for amendment and a draft of the amended petition.
This was done but there were objections.
The objections were decided on August 1, 1967.
Some of the allegations of corrupt practices were deleted for want of sufficient particulars.
The other amendments were allowed.
16 of the petition in the amended form read as follows: "That the respondent No. 1 and his election agents Messrs. R.D. Penwal and Shri Lunia and other persons with the consent of the respondent No. 1 paid and offered bribes between 13 1 67 to 20 2 67 with the object of inducing directly or indirectly electors to vote for respondent No. 1.
The following amongst other are some of the instances" (Instances were mentioned) On August 24, 1967 written statement was filed in which an objection was taken that as R.D. Periwal, against whom corrupt practices had been alleged, was not joined as a party, the petition was liable to be dismissed under section 86( 1) of the Representation of the People Act.
This preliminary objection was heard by the Judge on August 29, 1967.
Same day an application for amendment of the election petition was fled.
It was stated in the election petition that the election petitioner had gathered the impression that Inder Kumar Lucia was the election agent, from a telegram sent by Lunia; that the name of R.D. Periwal in paragraph 16 crept in because of 'uncertainty and inadvertence ' and the reference to election agent 'came to be made in an omnibus manner '.
What this statement means is not very clear.
However, it was pointed out that there was no intention to make any allegation against R.D. Periwal but two or three allegations of corrupt practice were imputed to Lunia.
A request was, therefore, made that the reference to 'election agent ' in all the paragraphs charging, corrupt practices should be deleted and it was specifically prayed that.
the name of R.D. Periwal in paragraph 16 should also be 633 deleted.
In short, it was intended to withdraw allegations against Periwal.
This application was not separately considered by the High Court but the election petition itself was dismissed under section 86(1) since Periwal, who was a duly nominated candidate (who withdrew later), had to be compulsorily joined under section 82(b) if allegations of corrupt practice against him were made.
It will be noticed, therefore, that in the original election petition allegations were made against the returned candidate or his election agent.
Two of the allegations of corrupt practice were against the returned candidate and his election agent.
They were charges of taking assistance of Government servants and bribing voters.
In connection with the bribery charge, no names were mentioned.
In his reply to the petition the returned candidate denied the charges in respect of himself and his election agents (using the plural).
In the amended petition, in one place, the returned candidate and his, election agent were mentioned with Lunia as the election agent and in another,.
which we have quoted earlier, two election agents,.
Lunia and Periwal were mentioned by name.
The returned candidate in reply denied that Lunia was the election agent.
In the second application for amendment filed on August 29, 1967 attempt was made to withdraw allegations against the election agent and to delete all references to Periwal.
This was resisted and it was stated that Periwal was the only election agent appointed by the returned.
candidate.
The question is whether the election petition was liable to be dismissed for not joining Periwal who was a duly nominated candidate and against whom charges of corrupt practice were made ? Mr. Hazarnavis contends that the amendments were made in answer to the order for better and fuller particulars.
He submits that the original petition did not name Periwal although the amended petition did and the High Court need not have mixed up the two petitions to find out whether Periwal had to be joined or not According to him, the original petition could not be dismissed since it did not name Periwal and the amended petition only supplied particulars as required by the Judge.
He submits that even in giving instances of bribery in paragraph 16, although the name of Periwal was mentioned in the opening part, no instance was cited with Periwal 's name although other names were mentioned.
Therefore, he submits that Periwal was not in the mind of the election petitioner at all and the mention of Periwal was merely an error.
In reply it is pointed out that all allegations were supported by affidavits and that all references to the election agent and allegations against him were affirmed on personal knowledge by the election petitioner.
In the Original ' petition no names were given but when better particulars were ordered a categoric refer to the election agents was made by referring to Lunia and Periwal and this was again affirmed on personal knowledge by the 634 petitioner.
It is pointed out that in the list of workers of time returned candidate Periwal was shown as 'the election agent and the returned candidate affirms that Periwal was the only election agent.
It is shown by way of illustration that the return of election expenses was filed by Periwal as the election agent and the allegations of corrupt practice in respect of the election expenses related to Periwal.
On examining the entire record with the assistance of counsel we are satisfied that Periwal was always meant when the reference was to an election agent and tiffs was more clearly specified when the amended petition was filed.
Therefore, the attempt was first to name him and now to withdraw his name to save the petition.
This, in our opinion, could not be done and the High Court last right in dismissing the election petition and disallowing the amendment by implication.
We give our reasons briefly: It is necessary to read the Act backwards from section 86( 1 ).
That section reads: "86.
Trial of election petitions.
( 1 ) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.
This is a peremptory provision and admits of no exception.
The Court must enforce it strictly if there is a non compliance with the requirements of section 82 among others.
In this connection we have to read section 82(b) which reads as follows: "82.
Parties to the petition.
A petition shall join as respondents to his petition: (a) (b) any other candidate against whom allegations of any corrupt practice are made in the petition.
" This makes it incumbent that any candidate against whom a charge of corrupt practice is made must be joined as a party.
Who is a candidate is laid down in section 79(b).
That provision reads as follows: "79. Definitions.
In this Part and in Part VII unless the context otherwise requires.
(a) (b) 'candidate ' means a person who has been or claims to have been duly nominated as a candidate at any election.
and any such person shall 635 be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate." Since Periwal was a candidate who was duly nominated at an election he would be a candidate within the meaning assigned to that word by this definition.
The question raised is that Periwal was a candidate at the election since he had withdrawn and, in any ease, this definition need not be read in section 82(b) which should be limited to contesting candidates.
Under section 37 a candidate may withdraw and once the notice of withdrawal is given it is final.
After the date of withdrawal passes a list of contesting candidates is drawn up under section 38.
It is submitted that section 82(b) should be limited to the contesting candidates.
It is also submitted that when sections 100 and 123 speak of a candidate they refer to a candidate whose candidature subsists to the time of the election, that is to say, after the time for withdrawal passes.
The petition under section 83(1 )(b), it is said, can set out particulars of corrupt practices "against parties" and that would include contesting candidates, election and other agents and persons other than candidates and their agents.
It is submitted that a candidate who has withdrawn is no longer a candidate and hence cannot be a party.
The argument cannot be entertained.
These questions have already been considered by 'this Court on more than one occasion.
They were first considered in K. Kamaraja Nadar V. Kunju Thevar and Others(1) but that ruling may not strictly be appropriate since it was based on section 55A(2) which is now repealed.
However, other cases (Amin Lal V. Hunna Mal(2) and Har Swarup & Anr.
V. Brij Bhushan Saran & Ors.) (3) consider this point.
It is there laid down that a candidate who is duly nominated continues to be a candidate for purposes of section 82(b) in spite of withdrawal.
This really decides the question which has been mooted before us.
A very detailed examination of the same question is to be found in Chaturbhuj V. Election Tribunal, Kanpur & Ant.(4).
In that case our brother Bhargava (M. L. Chaturvedi, J. concurring) has examined in the Allahabad High Court these provisions from every angle which is presented to us and has adequately answered all the arguments.
It is argued that the Civil Procedure Code applies and O. VI, r. 17 and O. 1, r. 10 enable the High Court respectively to order amendment of a petition and to strike out parties.
It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of reference to Periwal.
This argument cannot be accepted.
No doubt the power of amendment is preserved (1) (2) [19651 1 S.C.R. 393.
(3) ; (4) 636 to the court and O. 1, r. 10 enables the court to strike out parties but the court cannot use O. VI, r. 17 or O. 1, r. 10 to avoid the consequences of non joinder for which a special provision is to be found in the Act.
The court can order an amendment and even strike out a party who is not necessary.
But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all.
The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder (see section 87).
When the Act enjoins the penalty of dismissal of the petition for non joinder of a party the provisions of the Civil Procedure ' Code cannot be used as curative means to save the petition.
An attempt is made to distinguish the cases cited by us on the ground that now the provisions of sections 4 to 25 of the Indian Limitation Act are applicable to election petitions and the amendment of the petition and joining of parties can take place at any time.
It is subtitled that now the cases must be decided under the amended law.
We need not go into this matter.
It is doubtful whether these provisions of the Limitation Act apply at all.
The petitioner has not asked to join Periwal.
He only wants an amendment to delete allegations of corrupt practice against him.
This cannot be permitted since it will defeat the provisions of section 86(1 ).
Every election petition can be saved by amendment in this way but that is not the policy of the law.
The dismissal is peremptory and the law does not admit of any other approach.
It is significant that in Amin Lal V. Hunna Mal(1), although the matter was not gone into from this angle it was said that the amendment for better particulars was not intended to enable the election petitioner to remove the defect in presentation or in the joinder of parties.
Sheopat Singh V. Ram Pratap(2), since the facts were assumed, cannot be said to record any decision.
Lastly, it is submitted that Periwal was being charged in character as an election agent and not as a candidate.
This submission runs counter to the amendment petition which says that he was not an election agent and therefore he was really charged in his capacity as an individual and as he was a duly nominated candidate he had to be joined.
The argument really contradicts the last amendment petition and cannot be entertained.
For the reasons above stated it must be held that the decision of the High Court under appeal was correct.
The appeal fails and will be dismissed with costs.
V.P.S. Appeal dismissed.

summary:
Seven candidates were duly nominated for election from a Parliamentary constituency, but two of the candidates withdrew.
The first respondent, who was one of the remaining five contesting candidates, was declared elected.
His election was challenged on various grounds by the appellant who was an elector.
To the petition, only the returned candidate (first respondent) and the other four contesting candidates were made parties.
On the first respondent 's objection that the allegations were vague, the appellant amended his petition.
In his amended petition, with respect to one of the grounds, namely, offering bribes to voters, the appellant gave instances of bribes having been offered or paid by the first respondent, his election agents, and others.
Two persons were referred to as the election agents of the first respondent.
One of them was one of the candidates who had withdrawn and who was not made a party to the election petition.
The first respondent in his written statement contended that the petition should be dismissed under section 86(1) of the Representation of the People Act, 1951, as the candidate against whom corrupt practices were alleged and who was a necessary party under section 82(b) was not made a party to the election petition.
The appellant then filed an application for amendment of his petition wherein he stated that by 'election agent ' he never meant the candidate who had withdrawn, that there was never any intention to make any allegations against that candidate and that his name may be deleted from the petition, as he was not the first respondent 's election agent and reference to him was.
made by inadvertence.
The High Court dismissed the election petition under section 86(1).
In appeal to this Court, HELD: (1) A candidate who is duly nominated continues to be a candidate for purposes of section 82(b) in spite of withdrawal, and if he is not joined as a party when allegations of corrupt practice are made against him, the election petition shall be dismissed under section 86(1).
F] Aminlal V. Hunna Mal, ; and Har Swarup V. Brij Bhushan Saran; , , followed.
Chaturbhuj V. Election Tribunal, Kanpur, (1958) 15 E.L.R. 301, approved.
(2) The record showed that allegations of corrupt practice were made against the candidate who had withdrawn.
It could not be contended by the appellant that the allegations were made against him not as a candidate but in the character of an election agent, because, the appellant had himself stated in his application for amendment that the candidate who had withdrawn was not the election agent of the first respondent.
Therefore, the 631 allegations were made against an individual who was a candidate within the meaning of section 82(b) and who had to be joined as a necessary party to the election petition.
[634 B C; 636 F G] (3) The Court cannot use O. VI, r. 17 or O. I, r. 10 of the Civil procedure Code to avoid the consequences of non joinder for which a special provision, namely section 86, is found in the Act.
The Civil procedure Code applies to the trial of election petitions only subject to the provision of the Representation of the People Act and the rules, made thereunder.
When the Act makes a person a necessary party and provides that the petition shall be dismissed if he is not joined, the power in the Code, of amendment or to strike out parties.
cannot be used at all.
If the deletion prayed for by the appellant was granted, every election petition can be by amendment and the provisions of section 86(1) and the policy of frae law will be defeated.
[636 A C, D E]


judgement:
Appeal No. 1057 of 1965.
Appeal by special leave from the judgment and order dated November 21, 1963 of the Gujarat High Court in Special Civil Application No. 560 of 1961.
N.S. Bindra, S.K. Dholakia and S.P. Nayar, for the appellant.
Somnath R. Upadhya and Bhuvanesh Kumari, for the respondent No. 1. 616 The Judgment of the Court was 'delivered by Hegde, J.
This is an appeal by special leave.
Herein we have to determine the true scope of section 14(1) of the Bombay Merged Territories and Areas (Jagir Abolition) (Bombay Act No. XXXIX of 1954).
That question arises thus: Respondent No. 1 was the Bhayyat of the Jagir of Ghantoil.
That Jagir was situated in the Idar State, a former Indian State.
The area comprised in that State is a part of the State of Gujarat at present.
The said Jagir was a proprietary Jagir and for the purpose of succession and inheritance, it was governed by the rule of primogeniture.
The eldest son succeeded to the Gaddi: the other junior members of the family were granted maintenance known as Jiwarak, out of the Jagir estate.
The former Thakore of Ghantoil, Shri Dalpatsinhji Kumansingh granted as Jiwarak to the father of the present respondent, a half share in a village by means of a deed dated Feb. 18, 1916.
In 1928 dispute arose between the Thakore and the Bhayyats in the matter of aforesaid Jiwarak.
Hence the first respondent and his brother filed a suit in the Sadar Court of the then Idar State claiming Jiwarak.
The Court of first ' instance decreed the suit in favour of the first respondent and his brothers.
The Thakore went in appeal against the said judgment.
When the appeal was pending, the dispute was compromised and a consent decree was passed on September 23, 1940.
Under the consent decree the following rights were given to the first respondent and his brothers as Jiwarak.
(1) Rights to recover assessment (Vighoti) of Survey Nos.
382 387, 396, 398, 399, 542, 543, 544, 545 and 546 assessed at Rs. 175/ .
(2) Right to own and possess Gharkhed Lands consisting of Survey Nos. 219, 220, 225, 227, 228 and 229 assessed at Rs. 74/8/ free from payment of assessment; and ( 3 ) Right to receive a cash allowance of Rs. 234/12/annually from the Jagir.
The Act came into force on August 1, 1954 as a result of which all Jagirs in the merged territories of Bombay including the Jagir of Ghantoil were abolished.
Thereafter respondent No. 1 claimed compensation under section 14(1) of the Act.
He applied to the Jagir Abolition Officer for fixing the compensation due to him in respect of his aforementioned rights.
That officer rejected his claim but when the matter was taken up in appeal to the Gujarat Revenue Tribunal, 'the Tribunal granted him compensation in respect of his rights to recover assessment of Rs. 175/annually but it rejected his claim for compensation under the remaining two heads.
The first respondent then took up the matter to the Gujarat High Court under article 227 of the Constitu 617 tion in Special Civil Application No. 560 of 1961.
The High Court allowed that application.
It held that the first respondent is entitled to compensation in accordance with the provisions of the Act both in respect of Gharkhed lands as well as in respect of his right to receive cash allowance of Rs. 234/12/ annually.
The Jagir Abolition Officer was directed to hold further inquiry for determining a compensation payable to the first respondent in respect of those rights.
This appeal is directed against the said order of the High Court.
The long title of the Act shows that it is an Act to abolish Jagirs in the merged territories and merged areas in the State of Bombay.
Its preamble reads: "Whereas it is expedient in the public interest to abolish jagirs of various kinds in the merged ' territories and merged areas in the State of Bombay and to provide for matters consequential and incidental thereto; It is hereby enacted as follows . . " Section 2 defines the various expressions including Gharkhed land, Jagir, Jiwai Jagir, used in the Act.
Jagirs are abolished under section 3.
That Section reads: "Notwithstanding anything contained in any usage, grant, sanad, order, agreement or any law for the time being in force, on and from the appointed date, (i) all jagirs shall be deemed to have been abolished; (ii) save as expressly provided by or under the provisions of this Act, the right of a jagirdar to recover rent or assessment of land or to levy or recover any kind of tax, cess, fee, charge of any hak and the right of reversion or lapse, if any, vested in a jagirdar, and all other rights of a jagirdar or of any person legally subsisting on the said date, in ' respect of a jagir village as incidents of jagir shall be deemed 'to have been extinguished." Section 4 provides that all Jagir villages shall be liable to pay land revenue in accordance with the provisions of the Code and the rules relating to unalienated lands shall apply to these villages.
In this case we are not concerned with the compensation payable to the Jagirdar.
We are dealing with the case of a person coming under section 14(1) of the Act.
That section prescribes the method of awarding compensation to persons other than Jagirdars who are aggrieved by the provisions of the Act as abolishing, extinguishing or modifying any of their rights to, or interest in property.
The section reads thus: 618 "Section 14 ( 1 ).
If any person other than a jagirdar is aggrieved by the provisions of this Act as abolishing, extinguishing or modifying any of his rights to, or interest in property and if compensation for such abolition, extinguishment or modification has not been provided for in the provisions of this Act, such person may apply to the Collector for compensation.
" The real question for decision is whether the right to own and possess Gharkhed land and the right to receive cash allowance annually from the Jagir are rights to property or at any rate interest in property.
Before a person can claim compensation under section 14(1) he has to establish (1) that he is not the Jagirdar of the concerned Jagir (2) he is aggrieved by the provisions of the Act as abolishing, extinguishing or modifying any of his rights to, or interest in property as a result of the abolition of the Jagir and (3 ) compensation for such abolishing, extinguishment, modification has not been provided in the provisions of this Act.
It is admitted that the petitioner was not a Jagirdar.
It is also admitted that he is aggrieved by the provisions of this Act.
It was not said that for abolition of any of the privileges enjoyed by him any compensation had been provided ' under the provisions of the Act.
The only point in controversy is whether the claim put forward by him can be considered as right to, or interest in property.
We shall first take up the Gharkhed lands.
Admittedly the first respondent was enjoying those lands without any liability to pay assessment.
That was a right conferred on him under the compromise decree.
No material was placed before us to show that the Jagirdar was competent in spite of the compromise decree to collect assessment from him in respect of those lands.
This was not a case of suspension of land revenue.
The first respondent 's right was to enjoy the land free of the liability to pay the land revenue.
That was the position on 'the date the Act came into force.
So far as the Thakore was concerned the right to collect the assessment of those lands had been given as Jagir to the Jagirdar.
We see no merit in the contention of Mr. N.S. Bindra, the learned Counsel for the appellant that the Sovereign had an inherent right to levy assessment and any agreement not to collect assessment has necessarily to be considered as a concession and not a right.
That question is wholly irrelevant for our present purpose.
In this case we are not called upon to consider the nature of the power of the Sovereign to levy assessment.
The only question for our decision is that whether by abolishing the Jagir and by levying assessment on the Gharkhed lands any of the respondent 's right to or interest in property were abolished, extinguished or modified.
We are considering the plaintiff respondent 's 919 right to or interest in property as it stood before the Act and not after section 5 of the Act came into force.
There is no denying the fact that right to enjoy a property without the liability to assessment is a more valuable right than the right to enjoy the same property with the liability to pay assessment.
Before the Act, the first respondent was enjoying Gharkhed land without the liability to pay assessment but after the Act came into force he enjoying those very.
lands with the liability to pay assessment.
Therefore there is hardly any doubt that his interest in that property stands modified.
In this case it is not necessary to consider whether that interest can be considered as a right in the property.
We are also in agreement with the High Court that the right to receive cash allowance of Rs. 234/12/ annually from the Jagir is one of those rights that have got to be compensated under section 14(1).
That liability was not the personal liability of the Jagirdar.
The first respondent was entitled to get that amount from the Jagir.
In other words it was a charge on the Jagir.
Therefore it is an interest in property.
We are unable to agree with Mr. Bindra that the decision of this Court in Civil Appeals Nos.
517 534 of 1965 (The State of Gujarat etc.
V. Vakhatsinghji Sursinghji Vaghela)(1) to which two of the members of this Bench were parties is of any assistance to the appellant.
Therein this Court was called upon to consider the scope of section 14(1) of the Bombay Taluqdari Abolition Act, 1949.
The language of that provision is substantially different from the language of section 14( 1 ) of the Act.
Further therein this Court held that the concerned Taluqdar was not entitled to enjoy the lands with the liability of paying only 60% of the assessed assessment though for some years only 60% of the assessed assessment was collected as a matter of concession.
That was only a concession and not a right.
Mr. Bindra tried to extract one or two sentences from the decision of the Bombay High Court in Shapurji Jivanji V. The Collector of Bombay(2) and found an argument on the basis of those sentences to the effect that the right to collect assessment can never be given up.
Far from supporting that contention the decision actually proceeded on the basis that the said right can be given up either by contract or on the basis of legislation.
For the reasons mentioned above we see no merit in this appeal.
It is accordingly dismissed with costs.
V.P.S. Appeal dismissed.

summary:
Under section 14(1) of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1954, if any person other than a jagirdar is aggrieved by the abolishing, extinguishing or modifying of his.
interest in property, by the provisions of the Act and if compensation for such abolition, extinguishment or modification has not been provided for in the Act, he could apply to the collector for compensation.
The first respondent was enjoying as jiwarak (maintenance) three rights under a compromise decree namely: (i) the right to recover the assessment in respect of certain lands in a jagir; (ii) the right to own and possess Gharkhed lands in the jagir free from payment of assessment; and (iii) the right to receive a cash allowance annually from the jagir, when the jagir was abolished by the Act.
On the question whether the respondent was entitled to claim compensation in respect of items (ii) and (iii) under section 14(1) of the Act, HELD: (i) The first respondent was entitled to enjoy and was enjoying the Gharkhed lands without the liability to pay assessment, but after the Act came into force.
he was to enjoy those very lands with the liability to pay assessment under section 4 of the Act '.
Therefore, his interest in the property was modified to his disadvantage and so, he was entitled to claim compensation.
[619 A C] (ii) The first respondent was entitled to get the cash allowance from the jagir, that is, it was a charge on the Jagir.
Since it was also an interest in property which was extinguished on the abolition of the jagir, the first respondent was entitled to claim compensation.
[619 C D] State of Gujarat V. Vakhatsinghji Sursinghji Vaghela, ; and Shapurji Jivanji V. Collector of Bombay, I.L.R. , explained.