VASHIT NARAIN SHARMA v. DEV CHANDRA AND OTHERS
Citation: [1955] 1 S.C.R. 509; 1954 INSC 68
Court: Supreme Court of India
Bench: SUDHI RANJAN DAS , GHULAM HASAN, B. JAGANNADHADAS
Judgment date:
Case summary
1954 INSC 68. Supreme Court of India judgment dated 1954-05-20. VASHIT NARAIN SHARMA v. DEV CHANDRA AND OTHERS. Read the judgment and case details on...
Judgment text
of the defendants that they had discharged the hundi ; and that that clearly imported an acknowledgment of liability on the bill, and was sufficient to clothe the plaintiff with a right of action thereon. Assume that the plea of discharge of a hundi implies an acknowledgment of liability thereunder-an assumption which we find it difficult to accept. The question still remains whether that is sufficient in law to fasten a liability on the defendants on the hundi. What is requisite for fixing the drawees with liability under section 32 is the acceptance by them of the instrument and not an acknowledgment of liability. As the law prescribes no particular form for acceptance, there sltould be no difficulty in construing an acknowledgment as an acceptance ; but then, it must satisfy the requirements of section 7, and must appear on the bill and be signed by the drawees. In the present case, the acknowledgment is neither in writing; nor is it signed by the defendants.
It is a matter of implication arising from the discharge of the instrument. That is not sufficient to fix a liability on the defendants under section 32. In conclusion, we must hold that there was neither a valid presentment of the hundi for acceptance, nor a valid acceptance thereof. In the result, the appeal fails, and is dismissed with costs. Appeal dismissed. VASHIT NARAIN SHARMA v. DEV CHANDRA AND OTHERS. [S. R. DAs, GHULAM HASAN and JAGANNADHADAS JJ. ] Representation of the People Act, 1951 (Act XL/II of 1951), s. 100(1) (c)-Words "the result of the election has been materially affected"-lnterpretation of-Improper acceptance or rejection of a nomination paper-Election-Validity of-Onus of proving that the result has been materially affected-Finding of Election Tribunal based on speculation and conjecture-Misdirection in law.
The words "the result of the election has been materially affected" in section 100(1) (c) of the Representation of the People Act, 1951, indicate that the result should not be judged by the n1ere increase or decrease in the total nun*-r of votes secured by the returned candidate but by proof of the fact that the \Vasted votes \voul hold that the mere fact that the wasted votes are-greater than the margin of votes between the returned' candidate and the candidate securing the next highest number of votes must lead to the necessary inference-that the result of the election has been materially affected. That is a matter which has to be proved and' the onus of proving it lies upon the petitioner. It wi11' 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 depend" 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. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand . In two cases [Lakhan Lal Mishra v. Tribeni Kumar etc. (1) and Manda! Sumitra Devi v. Sri Surajnarain Singh etc. ( ) ], the Election Tribunal, Bhagalpur, had to consider the question of improper acceptance of the nomination paper.
They agreed that the question whether the result of election had been materially affected must be proved by affirmative evidence. They laid down the following test :- "If the number of votes secured by the candidate, whose nomination paper has been improperly accepted, is lower than the difference between the number of votes secured by the successful candidate and the candidate who has secured the next highest number of votes, it is easy to find that the result has not been materially affected. If, however, the i;i. umber of votes secured by such a candidate is higher than the difference just mentioned, it is impossible to foresee what the result would have been if that candidate had not been in the field. It will neither be possible to say that the result would actually have been the same or different nor that it would have been in all probability the same or different.
" In both the cases the margin of votes between the successful candidates and the next highest candidate was less than the number of votes secured by the candidate whose nomination was improperly accepted . They held that the result was materially affected. We are unable to accept the soundness of this view. It seems to us that where the margin of votes is greater (2) Gazette oflndia (Extry. J Feby. 2, 1953. (1) Gazette oflndia (Extry. ) Fcby. 26, 1953. than the votes secured by the candidate whose nomination paper had been improperly accepted, the result is not only materially not affected but not affected at all ; but where it is not possible to anticipate the result as in the above mentioned cases, we think that the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand.
The Tribunal in the present case rightly took the view that they were not impressed with the oral evidence about the probable fate of votes wasted on Dudh Nath Singh, but they went on to observe : "Considering that Dudh Nath respondent No. 4 received more votes than the margin of votes by which respondent No. 1 was returned we are constrained ·to hold that there was reasonable possibility of respondent No. 2 being elected in place of respondent No. l, had Dudh Nath not been in the field. " We are of opinion that the language of section 100(1) ( c) is too clear for any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has· been materially affected. The number of wasted votes was lll.
It is impossible to accept the ipse dixit of witnes3es 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 questi<m 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. Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter ·entirely for the Legislature to consider. The English Act to which we have referred presents ..
no such conundrum and lays down a perfectly sensible criterion upon which the Tribunal can proceed to declare its opinion. It directs the Tribunal not to set aside the election if it is of opinion that the irregularity has not materially affected the result. Mr. Naunit Lal argued that the finding that the result of the election has been materially affected is a finding of fact which this Court should not interfere with in special appeal but there is no foundation for the so-called finding of fact. If the Tribunal could not be sure that the respondent No. 1 would get only 56 out of the wasted votes to give him_ an absolute majority, how could the Tribunal conjecture that all the wasted votes would go to the second best candidate. The Tribunal misdirected itself in not comprehend-ing what they had to find and proceeded merely upon a mere possibility. Their finding upon the matter is speculative and conjectural. Mr.
Naunit Lal also attempted to argue that he could support the decision of the Tribunal on other grounds which had been found against him and referred to the analogy of the Code of Civil Procedure which permits a respondent to take that course. That provision has no application to an appeal granted by special leave under article 136. We have no appeal before us on behalf of the respondents and we are unable to allow that question to be reagitated. The result is that we set aside the order of the Tribunal and hold that it is not proved that the result of the election has been materially affected by an improper acceptance of the nomination, assuming that the case falls within the purview of section 36(6) :md that finding is correct. We accordingly set aside the order of the Tribunal and uphold the election of the appellant. The appellant will get his costs from the respondents incurred here and in the proceedings before the Tribunal. Order accordingly.
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