ORDER
L.N. Chhangani, J.
1. This is a miscellaneous petition by Shri Keshar Lal Kavi and Shri Radha Kishan Goyal (who shall hereafter be referred to as applicants Nos. 1 and 2 respectively) under Order 9, Rule 8 read with Section 151, Civil Procedure Code (which shall hereafter be referred to as the Code) and Section 87 of the Representation of the People Act, 1951 (which shall hereafter be referred to as the Act) containing a prayer in the following terms:--
'It is therefore prayed that the applicant No. 1's absence may kindly be excused and the order of taking proceedings ex parte against him may be set aside and further restore the petition to its original number and allow the applicants to be substituted in place of the petitioner and be allowed to prosecute the petition.'
2. The material and relevant facts under which this application has arisen may be given as follows:--
In the fourth, general election for the Lok Sabha that is, House of People, held in February, 1967, six persons including the applicant No. 1 and the five non-applicants contested for the Lok Sabha seat from the scheduled caste Parliamentary Constituency of Tonk. The non-applicant No. 2 Shri Jamna Lal and two others indicated in their nomination papers first preference in favour of allotment of symbol 'star' which was the officially approved symbol of the Swatantra party. As no authorised person on behalf of the Swatantra party had intimated to the Returning Officer either the name of its approved or substituted candidate by 3 P. M. on 23-1-1967 the Returning Officer while allotting symbols to the various candidates allotted the symbol of 'horse' to the non-applicant No. 2 and supplied to all the contesting candidates a list of the contesting candidates along with the symbols allotted to them. The non-applicant No. 2 moved an application before the Election Commission on 24-1-1967 for revising the order of the Returning Officer and allotting the symbol of 'star' to him. The Election Commission, after making queries, from the Returning Officer on the application of the non-applicant No. 2 assigned to him the official symbol 'star' of the Swatantra party. It may be mentioned that the decision of the Election Commission was given without notice to the non-applicant No. 1 or to the applicant No. 1. Eventually, as a result of the polling the non-applicant No. 2 Jamna Lal was declared elected to the Lok Sabha,
3. The non-applicant No. 1 thereupon submitted an election petition in this Court on 8th April, 1967. In that election petition the non-applicant No. 1 made no reference to the details of the results of the election but challenged the election of the non-applicant No. 2 Shri Jamna Lal on only one ground. According to the non-applicant No. 1 the ex parte decision of the Election Commission cancelling the free symbol 'horse' assigned to the non-applicant No. 2 by the Returning Officer and substituting the same by the official symbol 'star' of the Swatantra party was wholly illegal, arbitrary, without jurisdiction and ultra vires of the powers of the Election Commission. It was further the non-applicant's case that consequently, the results of the election were materially affected to the great detriment and prejudice of the non-applicant No. 1 and other contesting candidates. The non-applicant No. 1 prayed for a declaration that the election of the non-applicant No. 2 was void.
In that election petition the applicant No. 1 was impleaded as respondent No. 2. The election petition was contested by non-applicant No. 2 Jamna Lal. The applicant No. 1, who was respondent No. 2 in that petition, did not contest the election petition and allowed the case to proceed ex parte against him. Issues were framed on 7-7-1967 and the case was fixed on 16-8-1967 for recording evidence. On 16-8-1967 the election petitioner Narain Prakash, who is non-applicant No. 1 in the present petition, did not appear in Court and, therefore, his statement could not be recorded. Two witnesses were present but the counsel for the petitioner (non-applicant No. 1) did not examine them with a statement that he could not examine them in the absence of any instructions from his client. The two witnesses were thus discharged. No other witness was present in Court and the counsel for the election petitioner closed his evidence. The respondent No. 1 Jamna Lal's counsel led no evidence. Arguments were heard and eventually the election petition was dismissed on 16-8-1967 on the ground that the allegations made in the election petition remained unsubstantiated and unproved.
4. On 15-9-1967 the applicants filed the present application with the prayer which has already been reproduced in the earlier part of the judgment.
5. In this application the applicants put forward their case as follows:
In the first instance, the applicants referring to the non-examination by the counsel for the non-applicant No. 2 or the two witnesses present in Court stated in para 3 of the application as follows:
'But surprisingly enough the said witnesses had not been examined by the petitioner's counsel on the ground that he had not received instructions from the petitioner. No fresh instructions were necessary. That he should be presumed to have continued to represent his client under the authority and instructions already given to him.' In para 4 the applicants referred to the facts, (i) that the non-applicant No. 2 was elected as Member of Parliament from Tonk Constituency of Parliament on Swatantra Party Ticket; (ii) that he crossed the floor of Parliament by resigning from the party and joined Congress; and that (iii) the non-applicant No. 2 addressed a letter dated 21-7-1967 to the President, Swatantra Party, Rajasthan, Jaipur, giving certain reasons for his resignation from the Swatantra Party. The applicants' further case is that the non-applicant No. 2 advanced absolutely false reasons for his resignation from the Swatantra Party in order to cover his own weaknesses and the bargain that he could strike between himself and the non-applicant No. 1 for the withdrawing of the election petition and his joining Congress. Proceeding further the applicants stated in para 5 that 'the non-appearance of the non-applicant No. 1 on 16-8-1967 and the non-examination of the witnesses on that date by his counsel was a deliberate act.' According to them, 'it was taken recourse to for the purposes of shutting out the evidence from being brought on record and circumvent the provisions of withdrawal of the election petition and at the same time getting it dismissed for non-prosecution. This deliberate act on his part was a result of the collusion between him and the non-applicant No. 2, and the bargain that the latter could strike between himself and the non-applicant No. 1 and the influential persons in the Congress.' The applicants then gave a number of facts in sub-paras of para (5) in support of the above statement. In para (6) the applicants averred that
'the election petition is not a mere contest between the parties only but brings about a situation in which the whole constituency is interested.' After referring to the provisions relating to the withdrawal of the election petition and relating to the substitution of parties in consequence of the death of the petitioner or the respondent the applicants pointed out that the election petition cannot be allowed to be defeated by the collusion of the parties. The applicants then stated that 'the non-applicant No. 1 adopted a method by which he has tried to circumvent the provisions of withdrawal by not appearing himself and further by seeing that the evidence was shut out from being brought on record.' In para (7) the applicants averred that had they known that the non-applicant No. 1 was likely not to pursue and prosecute the election petition and that he would abandon the same as a result of some bargain or collusion, the applicant No. 1 would have himself appeared on all the dates of hearings and not remained absent and would have seen that the petition was duly prosecuted upto the conclusion of the full trial. The applicants thereafter enumerated various grounds on which the application was based. The applicant No. 1 Kesar Lal swore an affidavit in support of the application and presented a few documents.
6. Notions of the application were issued to the various non-applicants including Shri Jamnalal non-applicant No. 2. Only Shri Jamna Lal appeared and contested the application. Others put in no appearance.
7. Shri Jamnalal in his written reply took the following defences:--
1. 'That Shri Keshar Lal applicant No. 1 was served with a summons to appear as a witness on 16-8-67. He could and should have appeared on 16-8-67 in the capacity of a party and also of a witness. At the stage at which the case was on 16-8-67 he did not perform his duty in helping the Court in doing justice. He should have been present in Court to watch the proceedings as a party and should have appeared as a witness to find out the truth, but he failed to do either. He defied the summons of the Court and did not do what he could have done at the proper stage and has now appeared in this Hon'ble Court to set aside the dismissal and reopen the case. His conduct shows that he wants to abuse the process of the Court. The application is motivated to harass the answering respondent and to put undue pressure on him to have gains in party politics.'
2. 'Correctly speaking there was no evidence with the election petitioner to prove the material effect on the election even if the irregularity, if any, within the meaningof section, would have been proved. According to the law as laid down by the Supreme Court it was almost impossible to prove the material effect.'
3. 'That the applicants want to reopen the case so as to change the witnesses and multiply their number and start afresh so as to put pressure on the answering respondent for fear of that and to act according to their dictates in party politics.'
4. Referring to the non-examination of the two witnesses the non-applicant No. 2 averred as follows:--
'The examination of those witnesses who were present would have served no useful purpose in absence of other evidence. In the absence, the stand taken by the Collector was not accepted by the Election Commission in the matter of the allotment of the symbol. What he reported in writing to the Election Commission was not agreed upon by the Election Commission, hence his report became disputable. The examination of the Collector and the answers elicited in the examination would have thrown light on the alleged irregularities and that might have gone in favour of or against the election petition. Hence the Advocate for the election petitioner was to decide whether to remain satisfied with the report of the Collector or to examine him and probably he wanted to seek instructions from his client. The answering non-applicant can only submit the probabilities. The Advocate for election petitioner might have acted in the best of his judgment on the circumstances as they presented themselves to him.
Simply because he did not act in a manner which according to the present applicants was more proper, it cannot be said that his action was mala fide or collusive. The advocate for the election petitioner did not represent that he had no instructions to appear in the case for his client or to conduct the case and probably he did not like to take the risk of examining the Collector ID the absence of instruction for fear of reducing the effect of written report which was already in his favour. The other official witness was formal one. The advocate for the election petitioner argued the case on the material on the record'. The non-applicant No. 2 denied the allegations relating to the crossing of the floor of the Parliament by him. Referring to his resignation from the Swatantra Party, he averred that it was an internal matter of the party and had no relevance in the proceedings. The non-applicant No. 2 emphatically denied the allegations in paras 4 (a) and (5) relating to bargain and collusion between the non-applicant No. 1 and non-applicant No. 2 for the withdrawal of the election petition. He also denied the allegations in para (6) relating to the circumvention of the provisions of law relating to the withdrawal of the election petition. In this connection the non-applicant No. 2 specifically observed as follows:-- 'The applicant No. 1 failed in his duty as a party and a witness. The least which he should have known was that he was to appear as a witness and help in expediting the disposal of the petition. His conduct in not appearing on 16-8-67 so lightly according to him amounts to the contempt of the authority of the court. The reason given by the applicant No. 1 for not appearing on 16-8-07 cannot be a sufficient cause.' The non-applicant No. 2 also gave a detailed reply to the various grounds relied upon by the applicants in para (7). The non-applicant No. 2 in his additional pleas averred that the applicants had no locus standi to present the application and that the application was not maintainable under any provisions of law.
8. I heard counsel for the parties at length.
9. In support of the application the counsel put forward some alternative contentions. In connection with the first contention the applicant's counsel formulated the following propositions:--
1. That the decision of this Court dated 16-8-67 cannot be treated as a decision on merits so as to fall within the language of Section 98 of the Act.
2. That this Court could not have dismissed the election petition in default on non-appearance of the petitioner as the dismissal of election petition on the ground of non-appearance of the petitioner is contrary to law and causes injustice and denies the rights of the entire electorate who are unquestionably interested in the proceeding.
3. That as the non-applicant No. 1 though not openly withdrawing the petition was trying collusively to keep back the available evidence for sustaining the grounds taken in the petition. The applicant No. 1 was entitled to support the grounds by leading evidence to prove them.
10. Elaborating his contention, the counsel contended that the decision of this Court being not a decision on merits but being a mere dismissal of election petition on non-appearance is legally inoperative and that the election petition should be treated as being pending and that the applicant No. 1 as one of the respondents to the election petition, is entitled to lead evidence in support of the petition.
11. In support of the first proposition, the counsel relied upon two premises:--
(1) That although the non-applicant No. 1's witnesses were present his counsel did not examine them on account of absence of instructions from his client. According to him, the counsel as per his own showing, had no instructions in the case and, therefore, his presence in the case was of no avail and it was a case where the non-applicant No. 1 should be treated to have committed default in appearing in the Court which could attract the provisions of Order 17 Rule 2 of the Code in the cases of suits.
(2) That 16-8-67 was fixed for recording evidence in the ordinary course of things and was not got fixed on an adjournment sought by the non-applicant No. 1 and at his instance. According to him, the necessary conditions to attract the applicability of Order 17, Rule 8 of Code, for a decision on merits were not satisfied.
12. After giving my careful consideration to the facts of the case and the relevant law bearing on the point I have no hesitation in concluding that the petitioner has not been successful in establishing the first premise. It is true that the non-applicant No. 1's counsel did not examine the two witnesses present in Court with a statement that he could not examine them in the absence of instructions from the petitioner. But, from this, it will not be legally justified to jump to the conclusion that the counsel had no instructions to appear. The counsel while expressing his inability to examine the witnesses cannot be taken to mean that he had no instructions to appear in the case. The proper interpretation of the counsel's conduct is that although there was no withdrawal of his authority and instructions to appear and act on behalf of the non-applicant No. 1 he was disabled from examining the witnesses on account of the absence of necessary and reasonable assistance from the client in properly examining the witnesses. In support of this view, I may refer to the observations made by a Division Bench of the East Punjab High Court in Sm. Ruprani Devi v. V. Christopher Southern Lewis, AIR 1949 E. P. 86. After referring to the counsel's arguments that a case of a counsel who says that he is unable to act on his client's behalf is analogous to that of one who states that he has no instructions the learned judge speaking on behalf of the Court observed as follows:--
'In my opinion the two cases are wholly distinct from each other. The scope of the authority of a counsel who is engaged by his client to represent him in a case is limited to the instructions given to him. These instructions may be either to put in appearance on his client's behalf or to act for him. When a counsel asserts that he has no instructions, the inference is that he has no instructions even to appear on his client's behalf, so his appearance is considered as tantamount to no appearance. But when a counsel appears and states that he is not able to do a particular act, he cannot be taken to mean that he has no instructions to perform that act. On the other hand, I would take him to mean that though he had been instructed to perform that act, something has happened which has disabled him from doing it, or he has otherwise failed in his duty in spite of the instructions.' That the non-applicant No. 1's counsel in the election petition had instructions to conduct the case is amply established by his act of closing the non-applicant No. 1's evidence and arguing the case. It may be also significantly pointed out that the applicants themselves have unambiguously stated in the petition that
'the non-appearance of the non-applicant No. 1 on 16-8-67 and the non-examination of the witnesses on that day was a deliberate act and it was taken recourse to for the purposes of shutting out the evidence from being brought on record and circumvent the provisions of withdrawal of the election petition and at the same time getting it dismissed for non-prosecution. This deliberate act on his part was the result of the collusion between him and the non-applicant No. 2.' It was also stated in the petition that the counsel for the non-applicant No. 1 could examine the witnesses as no fresh instructions were necessary and that he should be presumed to have represented the client under the instructions and authority already given to him.
13. Having regard to these facts relied upon by the applicant and the circumstances or the case, I am wholly unable to accept the applicant's contention that it was a case of non-appearance of the non-applicant No. 1 in court on 16-8-67 and that the petition could not have been consequently disposed of on merits. On the other hand, I am very clear that the petitioner was fully represented by his counsel who permitted the trial of the election petition to be concluded and the case disposed of on merits.
14. As for the second premise, I agree with the counsel for the applicants that the provisions of Order 17, Rule 3 of the Code could not be invoked in the present case. Order 17, Rule 3 of the Code enables a Court to dispose of the case on merits when a party had been granted time to do one or other of the three things mentioned in the rule viz. to produce evidence or to cause the attendance of his witness, or to perform any other act necessary to the further progress of the suit when the default has been committed by such party in doing the act for which the time was granted. In the present case, 16-8-67 was fixed in the ordinary course of things and the non-applicant No. 1 had not been granted time for doing any one of the three things mentioned above. In this view of the matter, Order 17, Rule 3 of the Code could not have been applied. To say this, however, cannot amount to saying that this Court could not have disposed or the election petition on merits. Order 17, Rule 3 of the Code permits decision on merits in cases of certain defaults. It has no relevance when the trial is otherwise concluded without any default by either side. In that case there could be decision on merits without invoking Order 17, Rule 3 of the Code. One can easily imagine the parties producing their evidence and concluding the trial on one day and it will be ridiculous to state that there was no decision on merits since Order 17, Rule 3 of the Code could not be invoked as none of the parties had committed any default. In the present case, the non-applicant No. 1's counsel did not examine the two witnesses present in Court and closed the non-applicant No. 1's evidence. The respondent (non-applicant No. 2) also closed his evidence. They then addressee the Court and eventually this Court held that the allegations in the petition remained unsubstantiated and dismissed the election petition. The decision, in my opinion, was clearly on merits and the applicants' counsel cannot be heard to say that the decision could not be treated as one on merits. Having regard to these findings in connection with the two premises relied upon by the applicant's counsel, the applicant's counsel has not been successful in establishing the first proposition. This Court's decision dated 16-8-67 having been given on merits an application for setting aside the decision with the help of Order 9, Rule 8 read with Section 151 of the Code is unmaintainable and deserves to be rejected on this ground alone. However, as the learned counsel for the parties addressed lengthy arguments on the various other points I have thought it proper to record my findings on them also.
15. Taking up the second proposition I may at once state that the Courts had occasions to consider the question of the competence of the Election Tribunal to dismiss the election petition in default under the provisions of the Code of Civil Procedure under the law as it stood prior to the amendment by the Amendment Act No. 47 of 1966. In Sunderlal Mannalal v. Nand-ram Das Dwarkadas, AIR 1958 Madh Pra 260 the law was laid down as follows:--
'Now the Act does not give any power of dismissal. But it is axiomatic that no Court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. The dismissal, therefore, is an inherent power which every tribunal possesses.'
16. The Full Bench of the Kashmir High Court in Dina Nath Kaul v. Election Tribunal Jammu and Kashmir, AIR 1960 J and K 25 (F. B.), however, expressed a contrary opinion. After referring to Supreme Court cases Mallappa Basappa v. Basavaraj Avyappa, AIR 1958 SC 698, Jagan Nath v. Jawant Singh, AIR 1954 SC 210, and Kamaraja Nadar v. Kunju Tevar, AIR 1958 SC 687 the Bench observed:
'These authorities establish that once an election petition is before the Election Tribunal, it has to proceed to completion according to the provisions of the Representation of the People Act, and it is not open to the petitioner to exercise his option to prosecute the petition or not or to abandon or withdraw it wholly or in part.
It follows that the dismissal o an election petition on the ground of non-appearance of the petitioner is contrary to law and causes injustice and denies the rights of the entire electorate who are unquestionably interested in the proceedings.
The order of the Election Tribunal dated 3-12-57 dismissing the election petition preferred by the second respondent under the provisions of Order 9, Rule 8, is therefore, plainly erroneous, unjust and untenable in law.'
The Full Bench, therefore, refused to issue a writ of certiorari under Article 226 of the Constitution, to quash a subsequent order setting aside the order of dismissal dated 3-12-57 and restoring the petition.
17. In Vishwanath Prasad v. Malkkan Singh, AIR 1964 All 181, a Division Bench of the Allahabad High Court commenting upon the view taken in AIR 1958 Madh Pra 260 stated as follows:--
'We, with great respect, are unable to agree with this line of argument. A tribunal cannot be said to possess inherent powers to dismiss an election petition in any way it likes. If the party does not appear before the Tribunal and does not produce the necessary evidence for the issue and the burden of proof is upon that party or does not submit arguments before the Tribunal to convince it to decide the issue in its favour, then the Tribunal may decide it against that party, but it must be a decision on the merits. The issue which is before the Tribunal must be decided. It is not necessary for the Tribunal to wait on indefinitely. The Tribunal may close the case and decide the issue but there is no reason for holding that the Tribunal has power to dismiss the petition without deciding the issues.' It was further observed as follows:-- 'Since we have already held that the Tribunal had no power to dismiss the election petition for default, the question of restoring does not arise. In the eye of law the election petition was still pending and not disposed of. By the subsequent order the Tribunal had merely removed the effect of an order which was wrong and had no effect on the proceedings. The election petition had never been properly disposed of and therefore the tribunal was right in deciding to proceed with it.'
18. In Sawalia Behari Lall Verma v. Tribikram Deo Narain Singh, AIR 1965 Pat 378 a Division Bench of the Patna High Court scrutinised the Supreme Court cases relied upon by the Full Bench of the Kashmir High Court in AIR 1960 J and K 25 (FB) for their conclusion and examined the relevant provisions of the statutory law and eventually recorded agreement with the decision of the Division Bench of the Madhya Pradesh High Court in AIR 1958 Madh Pra 260. The Bench observed-
'The position, indeed would be a baffling one if it were to be laid down that even if the petitioner chose not to prosecute a petition or lead evidence the Tribunal must go on with the case. I may only add to the reason assigned in the judgment that Section 90(1) is sufficiently wide to make Order 9 of the Code of Civil Procedure applicable to all election disputes under the Representation of the People Act. It is no doubt, true that there is an observation in the judgment of their Lordships of the Supreme Court that the powers of the Tribunal under Section 92 of the Act are different from the powers of a Court under the Code of Civil Procedure. That, however, cannot be taken to have the effect of nullifying the clear provision of Section 90(1) of the Act that the procedure to be followed by the Tribunal in disposing of the election petition would be that of the Code of Civil Procedure. Order 9 is a part of the Code of Civil Procedure, and there is no reason to hold that it would not apply to the present case, because there is no such restriction provided in the Representation of the People Act itself making this Order 9 inapplicable to the election cases.'
After the amendment of the Representation of the People Act in the year 1966 the point came up for consideration in a Full Bench case: Jugal Kishore v. Doctor Baldev Prakash, Elec. Petn. No. 9 of 1967, D/- 1-9-1967 = (Reported in AIR 1968 Punj 152 (FB)) in which Grover, J. as he then was, dealing with the point observed as follows:--
'I venture to think, with respect, that the Patna view is correct. It is quite clear that there is no distinct provision in the Act laying down any particular or special procedure which is to be followed when the petitioner chooses to commit default either in appearance or in production of evidence or generally in prosecuting the petition. The provisions of the Code of Civil Procedure would, therefore, be applicable under Section 87 of the Act. I am further of the opinion that any argument which could be pressed and adopted for saying that the inherent powers or the Court could not be exercised in such circumstances would be of no avail now as the High Court is a Court of record and possesses all inherent powers of a Court while trying election petitions. There can be no manner of doubt that the observations made by Ilidayatullah, C. J. (as he then was) in AIR 1956 Madh Pra 260 would be fully applicable.' With great respect, I agree with the opinion expressed by Grover, J. and hold that the High Court has power to dismiss an election petition on non-appearance of the election petitioner. The second proposition advanced on behalf of the applicants cannot, therefore, be accepted.
19. I do not consider it necessary to adjudicate upon the controversy relating to the third proposition formulated by the applicant's counsel who start with an assumption that where a election petitioner though not openly withdrawing the petition was trying collusively to keep back the available evidence for sustaining the grounds taken in the petition any respondent can claim to lead evidence to prove the allegations made in the election petition. Indeed, the two cases Lahri Singh v. Attar Singh, (1953) 3 Ele LR 403 (Ele. Tri.-Patiala) and Roop Chandra Sogani v. Rawat Man Singh, (1953) 5 Ele LR 327 (Ele.-Tri.-Jaipur) support them. The applicants, however, do not derive any assistance in the present case from the proposition formulated by them and the two cases relied upon by them. In both these cases the election petitions were pending and before their disposal when the respondents came forward alleging non-production by the petitioners and expressing their intention to lead evidence in support of the election petitions. In the present case the election petition stood disposed of by this Court's order dated 16-8-1967. At the time of the filing of the present application by the applicants the petition was not pending and, therefore, there could be no question of the respondent being permitted to lead evidence in support of the election petition. I may also observe that the principle relied upon in these two cases cannot be extended to enable a respondent who allowed the election petition to proceed ex parte and who remained absent till the disposal of the election petition and who did not even care to appear on the date of the dismissal of the election petition in spite of his being summoned to appear as a witness in the case, to challenge the order of dismissal and to obtain restoration of the election petition and then to lead evidence in support of the allegations contained in the petition.
20. The contention of the petitioners in support of the present petition on the basis of the three propositions initially formulated by them thus has no force and is rejected.
21. The alternative contention of the applicants is that the non-applicant No. 1 and non-applicant No. 2 entered into some land of bargain for securing the dismissal of the election petition and that they adopted tactics of getting the election petition dismissed by an omission to produce evidence and in doing so they circumvented the provisions of the Act relating to the withdrawal of the election petition. It was contended that in doing so the non-applicant No. 1 committed a fraud upon the constituency in securing an order of dismissal of the election petition. An order obtained by fraud should not be treated as valid and operative and deserves to be ignored. It was prayed that this Court should ignore the order and permit the applicants to lead evidence in support of the allegations contained in the election petition so as to do justice to the constituency. I regret, I cannot accept this contention also. As pointed out by Grover, J. as he then was, in the Full Bench case: Roop Chandra Sogani v. Rawat Man Singh, (953) 5 Ele LR 327 (Ele.-Tri.-Jaipur), 'there is no provision whatsoever by which a respondent who might have been a petitioner can be compelled or forced by the Court to prosecute the petition or adduce evidence in support of it owing to the default of the original petitioner and on his refusal to do so notice of such event can be published in the official gazette to enable some one, who might have been a petitioner, to apply and get substituted and then prosecute the petition. Nor can the Court give any decision on the merits worth the name in a petition which is not being prosecuted in the absence of any evidence which might have been adduced by the parties. It is difficult to believe that the Legislature intended that the Court in such circumstances should embark suo motu on an enquiry which it will be impossible to successfully complete unless some one is prepared to provide the material and the evidence and incur the expense.' The learned Judge in that case referred to the position under the English Law and quoted extensively from Halsbury's Laws of England, including the observations.
'If there are any indications of impurity in the election, it is impossible to shorten the case by concession between the parties. The Court must sit as long as there is anything which can be brought before it by the parties or the Director of Public Prosecutions relating to these allegations.'
The learned Judge further observed,
'There is no such authority or officer in India who has been entrusted with the task which is being performed by the Director of Public Prosecutions in England in the matter of election petitions and election offences and unless such an agency is set up, it is not possible to see how the real purpose of the election petitions can be fully achieved where a petitioner after filing the election petition decides for some reason or the other to make persistent defaults in its prosecution, or even to deliberately withhold all the material evidence,'
22. Having considered the principle laid down by Grover, J. as also the reasoning in support of the principle. I am not prepared to accept the alternative contention of the applicants.
23. The application, therefore, fails and is hereby dismissed. There will be no order as to costs.