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PETITIONER: BADRI NARAYAN SINGH

       Vs.

RESPONDENT: KAMDEO PRASAD SINGH AND ANOTHER

DATE OF JUDGMENT: 22/09/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR GAJENDRAGADKAR, P.B. SUBBARAO, K. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1962 AIR  338            1962 SCR  (3) 759  CITATOR INFO :             1976 SC1645  (22)

ACT: Election  Dispute Res judicata-Two appeals out of  one  pro- ceeding-One Judgment but two separate decreea-Subject matter different-Decision, if one-Appeal from one decree only-main- tainability,-Representation  of the People Act, 1951 (43  of 1951),ss. 80, 81, 7.

HEADNOTE: The  Election  Tribunal on the petition of  the  first  res- pondent set aside the election of the appellant holding that the  appellant as a Ghatwal, was not a holder of  office  of profit, and t hat he was guilty of corrupt practices.   The Election  Tribunal  however  did  not  entertain  the  first respondent’s prayer to declare him as duly elected. The’  appellant  and the first respondent, both went  up  in appeal to the High Court.  Appellants appeal being No’ 7 was against  the  order setting aside his election.   The  first respondent’s  appeal being No. 8 was against the  order  not declaring  him  to be duly elected.  Both the  appeals  were disposed  of  by  the  High  Court  by  one  judgment.   The appellant’s  appeal  No. 7 was dismissed  holding  that  the appellant  was not guilty of corrupt practices and that  be, as  a Ghatwal, held an office of profit.   The  respondent’s appeal No. 8 was allowed declaring him as duly elected.  Two separate decrees were prepared in the two appeals. The  appellant filed this appeal by special leave  from  the order  in  Appeal No. 8 by the first  respondent.   All  the grounds  of  the appeal related to the finding of  the  High Court that the office of Ghatwal was an office of profit. A  preliminary  objection was taken on behalf of  the  first respondent that this appeal was incompetent as barred by the principle of res judicata inasmuch as the appellant did  not appeal  against the order of the High Court in Appeal No.  7 whose dismissal by the High Court confirmed the order of the Election   Tribunal  setting  aside  the  election  of   the appellant;  and  that it was not open to  the  appellant  to question  the  correctness of the finding that  he  held  an

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office  of profit, which was the basis of the  dismissal  of appeal No. 7. Held,  that where two appeals arose out of  one  proceeding, but the subject matter of each, appeal was different, the 760 decision  of the High Court in the appeals though stated  in one  judgment, really amounted to two decisions and  not  to one derision common to both the appeals.  The subject-matter of  Appeal  No  7  filed by the  appellant  related  to  the question  of  his election being bad or good.   The  subject matter  on  appeal No. 8 did not relate to the  validity  or otherwise  of the election of the appellant.  It related  to the further action to  be taken in case the election of  the appellant  was bad, on the  ground that’ a Ghatwal holds  an office- of profit. The High Court came to two decisions, one in respect of  the invalidity  of the appellant’s election in appeal No. 7.  It came to another decision in appeal No. 8 with respect to the justification  of  the claim of the first respondent  to  be declared  as a duly elected candidate.  That so long as  the order  in the appellant’s appeal No. 7 confirming the  order setting  aside  his  election on the ground that  he  was  a holder  of an off ice of profit stands, he  cannot  question that  finding in the present appeal, preferred  against  the decree in the first respondent’s appeal No. 8. Narhari v. Shankar [1950] S. C. R. 754, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 563 of 1960. Appeal  by special leave from the judgment and decree  dated March  20, 1959, of the Patna High Court in Election  appeal No. 8 of 1958. J. C.  Sinha, D. P. Singh,    M. K.  Ramamurthi, R.    K. Garg and S. C. Agarwala, for the appellant. B.   C. Ohosh and R. C. Datta, for respondent No. 1. Udaipratap Singh and P. C. Agarwala, for respondent No. 2. 1961.   September  22.   The  Judgment  of  the  Court   was delivered by RAGHUBAR  DAYAL, J. Badri Narain Singh, the appellant,  and four  other persons including Kam Deo Prasad,  respondents, were candidates to the Bihar Legislative Assembly during the last general election held in 1957.  Two of those candidates withdrew  before the relevant date.  The  appellant  secured the  largest  number of votes and was  declared  elected  on March  14, 1957.  Respondent No. 2 secured larger number  of votes than 761 Kam  Deo  Prasad, respondent No. 1, who  filed  an  election petition  under ss. 80 and 81 of the Representation  of  the People  Act,  1951  (Act  XLIII  of  1951)  challenging  the election of the appellant, on the ground that the nomination of  the  appellant and respondent No. 2, who,  as  Ghatwals, held an office of profit, was against the provisions of s. 7 of  the  Act,  and that the  appellant  had  also  committed corrupt  practices.  Kam Deo Prasad, by his  election  peti- tion, not only prayed for the declaration that the ,election of the appellant was void, but also for the declaration that he  himself  was  duly elected.  The  appellant  denied  the allegations  against him.  The Election Tribunal  held  that Badri  Narain  Singh, the appellant, was guilty  of  corrupt practices  and that a Ghatwal was not a holder of an  office of profit under the State of Bihar.  It therefore set  aside the  election of the appellant, but did not grant  the  dec-

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laration that Kam Deo Prasad was a duly elected candidate.  The  appellant filed Election Appeal No. 7 of 1958  in  the High Court of Judicature at Patna, against the order of  the Election  Tribunal  setting aside his election,  and  prayed that  the  order of the Election Tribunal be set  aside  and that  it  be held that he had been duly  elected.   Kam  Deo Prasad also filed Election Appeal No. 8 against the order of the  Election  Tribunal  not declaring him to  be  the  duly elected candidate and prayed for a declaration that he,  had been  duly  elected.  The grounds of appeal  questioned  the correctness  of  the finding of the Election  Tribunal  that Badri  Narain Singh and respondent No. 2, as Ghatwals,  were not  the  holders  of offices of profit and  that  Kam  Dec) Prasad could not be declared duly elected. Both these appeals were disposed of by the High Court by one judgment.   It  did not accept the finding of  the  Election Tribunal  that Badri Narain Singh had committed any  corrupt practice  and accepted the contention for respondent  No.  1 that Badri Narain Singh and respondent No. 2 held 762 offices  of profit under the Bihar Government as  they  were Ghatwals.   It  was  in this view of the  matter    that  it confirmed  the order of the Election Tribunal setting  aside the  election  of the appellant and allowing the  appeal  of respondent No.. 1, declared him duly elected. The concluding portion of the judgment of the High Court may be usefully quoted here :               "To  conclude,  the election of  the  returned               candidate  is not valid, and the order of  the               Tribunal  is,  therefore,  right,  though   on               different  grounds.  Further, there, was  only               one  seat,  and three  persons  contested  it,               namely,    the   petitioner   and   the    two               respondents.    The   two   respondents   were               disqualified  for  being chosen  as,  and  for               being,  members  of  Legislative  Assembly  or               Legislative   Council  of  the   State,   and,               therefore,  their nomination papers  were  not               validly accepted.  If their nomination  papers               are  rejected, and it cannot but be  rejected,               the  only  person left in the  field  was  the               petitioner   Kam   Deo  Prasad   Singh,   and,               therefore,  be  must be declared  to  be  duly               elected.               In  the result, Election Appeal No. 7 of  1958               is  dismissed,  and Election Appeal No.  8  of               1958  is allowed, and Kam Deo Prasad Singh  is               declared  to be duly elected to  Bihar  Legis-               lative   Assembly  from  the   Sarnath   State               Assembly  Constituency  in  the  district   of               Santal Parganas." As a result of this order, separate decrees were As a result of  this  order, separate decrees were As a result  of  this order,  separate decrees were prepared in the  two  appeals. Decree  in  Election Appeal No. 7 said, ’It is  ordered  and decreed  that  this  appeal  be  and  the  same  is   hereby dismissed’.  The decree in appeal No. 8 said, ’It is ordered and  decreed  that  this appeal be and the  same  is  hereby allowed  and  Kam Deo Prasad Singh is declared  to  be  duly elected  to the Bihar Legislative Assembly from the  Sarnath State  Assembly  constituency in the  District  of  Santhal Parganas’. 763 The appellant has filed this appeal by special leave against the order in Election Appeal No. 8 of 1958.  All the grounds

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of  appeal relate to the finding of the High Court that  the office  of a Ghatwal is an office of profit.   The  petition for special leave to appeal does not mention the relief  the appellant  seeks from this Court.  Presumably, he prays  for the  setting aside of the order in Appeal No.  7  confirming the  order  of  the Election  Tribunal  setting  ’aside  his election and also the order in Appeal No. 8. A  preliminary  objection  has  been  taken  on  behalf   of respondent  Kam  Deo  Prasad  Singh  that  this  appeal   is incompetent  as  barred  by the principle  of  res  judicata inasmuch  as the appellant did not appeal against the  order of  the  High Court in Appeal No. 7 whose dismissal  by  the High  Court  confirmed the order of  the  Election  Tribunal setting  aside the election of the appellant.  It  is  urged that the order setting aside the appellant’s election having become  final, it cannot be set aside and that  the  finding arrived at in that appeal about a Ghatwal being a holder  of an office of profit operates as res judicata in this  appeal and  therefore no appeal against the order in Appeal  No.  8 declaring respondent No. 1 to be the duly elected  candidate can be pressed on the ground that the view of the High Court about the appellant’s holding an office of profit is  wrong. If  the correctness of that view cannot be  challenged,  the correctness of the declaration in favour of respondent No. 1 cannot be challenged in this appeal on any other ground when no  other  ground  had been taken  in  the  application  for special leave.  The contention in effect, therefore, is that it  is not open to the appellant in this appeal to  question the  correctness  of the finding that he held an  office  of profit  under the Bihar Government, a finding  which  formed the  basis  of  the  dismissal  of  Appeal  No.  7  and  the confirmation of the order setting aside his election. 764 The  learned  counsel  for the  appellant  relied    on  the judgment of this Court in Narhari v.   Shankar(1) in support of his contention that the judgment in Election Appeal No. 7 cannot operate as res judicata in this appeal.  That case is distinguishable  on  facts  and  is  with  respect  to   the interpretation of s. 11 of the Code of Civil Procedure. In   the  suit.,  in  that  case,  the  plaintiffs   claimed possession  over 2/3rds of the plot No. 214.   They  claimed 1/3rd which was in the possession of’ one set of defendants, namely, defendants ,Nos.  1 to 4 and the other 1/3rd was  in possession of another set of defendants, namely,  defendants Nos.  5 to 8. Each set of defendants claimed that they  were entitled  to the land in their possession as their share  of the  family  property  and denied  the  allegations  of  the plaintiffs that the senior branch was under custom  entitled to exclusive possession of the plot which was Inamland.  The suit was decreed by the trial Court.  Each set of defendants then filed an appeal claiming 1/3rd of the plot.  The  first appellate  Court allowed both the appeals and dismissed  the plaintiffs  suit by one judgment and ordered a copy  of  the judgment  to  be placed on the file of the  other  connected appeal.   Naturally, it decided the one point of  contention common  to both the appeals, namely, that the senior  branch was not entitled to exclusive possession of the plot.   This was the finding in each of the appeals. The  plaintiffs  thereafter filed two appeals  to  the  High Court,  one  against  the  decree in  the  appeal  filed  by defendants Nos.  1 to 4 and the other against the decree  in the  appeal  filed  by defendants Nos. 5 to  8.  The  latter appeal  was  filed  beyond limitation  and  the  High  Court refused to condone the delay.  It was contended at the hear- ing of the appeal that the second appeal was filed

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(1) (1950) S.C.R. 754. 765 beyond the period of limitation and was not maintainable and that  when  it was dismissed as not maintainable  the  first appeal  would  we barred by the principle of  res  judicata. The  High  Court agreed with the contention,  dismissed  the second  appeal  as time-barred and the first on  the  ground that the judgment in the appeal by the defendants Nos. 5  to 8  operated as res judicata.  The plaintiffs then filed  two appeals  to  the Judicial Committee of the  Hyderabad  State and, ultimately, they were disposed of by this Court in view of Art. 374(4) of the Constitution. The   plaintiffs  had  impleaded  all  the   defendants   as respondents  in their first appeal to the High Court.   They had paid the full court-fee necessary for an appeal  against the  dismissal  of the entire suit.  Their  prayer covered both  the appeals.  This indicated that it was sought to  be an  appeal against the dismissal of the entire suit.  It  is not  clear whether the common judgment passed by  the  first appellate Court specifically stated that ,it dismissed  the plaintiffs suit with respect to one-third of the plot by its order  allowing  one  appeal and  dismissed  the  suit  with respect  to  the other one-third by its order  allowing  the second  appeal.  Possibly it just said that as a  result  of its finding the appeals are allowed and the plaintiffs’ suit is  dismissed and that such an order led the  plaintiffs  to actually  file  one appeal against all  the  defendants  and against the dismissal of the entire suit.  The prayer in the first appeal covered the subject matter of both the appeals. Thus  the  first  appeal was really  a  consolidated  appeal against the decrees in both the appeals and could have  been split  up  for  the purposes of  record  into  two  separate appeals.   This Court itself felt that the circumstances  of the  case were such that the High Court should have  allowed the   benefit  of  s.  5  of  the  Limitation  Act  to   the appellant. . 766 It  was in these circumstances that this Court observed,  at page 757 :               "It is now well settled that where there     has               been one trial, one finding, and one decision,               there need not be two appeals even though  two               decrees may have been drawn up." This  does  not mean that whenever there be  more  than  one appeal arising out of one suit, only one appeal is competent against  the order in Any. of those appeals irrespective  of the  fact whether the issues for decision in  those  appeals were  all  common  or some were  common  and  others  raised different  points for determination.  The existence  of  one finding  and  one  decision mentioned  in  this  observation simply contemplates the presence of common points in all the appeals  and  the absence of any different  point  in  those appeals,  and consequently of one decision on  those  common points in all the appeals.               This Court, further observed at page 758:               "The question of res judicata arises only when               these are two suits.  Even when there are  two               suits  it has been held that a decision  given               simultaneously  cannot  be a decision  in  the               former suit.  When there is only one suit, the               question of res judicata does not arise at all               and in the present case, both the decrees  are               in  the  same  case  and  based  on  the  same               judgment, and the matter decided concerns  the               entire suit.  As such there is no question  of

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             the  application  of  the  principle  of   res               judicata.  " These observations do not apply to cases which are  governed by the general principles of res judicata which rest on  the principle that a judgment is conclusive regarding the points decided between the same parties and that the parties should not be vexed twice over for the same cause. We  are therefore of opinion that both in view of the  facts of the case and the provision of law  767 applicable  to  that  case, that case can be  no  guide  for determining the question before us in this appeal. It  is  true that both the appeals Nos. 7 and 8  before  the High Court arose out of one proceeding, before the  Election Tribunal.   The subject matter of each appeal was,  however, different.  The subject matter of appeal No. 7 filed by  the appellant related to the question of his election being  bad or good, in view of the pleadings raised before the Election Tribunal.  It. had nothing to do with the question of right of  respondent  No.  1  to  be  declared  as  duly   elected candidate.   The  claim  on such a right is  to  follow  the decision of the question in appeal No. 7 in case the  appeal was dismissed.  If appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration.  The subject matter of appeal No. 8 simply did not relate to the validity or  otherwise of the election of the appellant.  It  related to  the further action to be taken in case the  election  of the appellant was bad, on the ground that a Ghatwal holds an office of profit.  The decision of the High Court in the two appeals,  though stated in one judgment, really amounted  to two  decisions  and not to one decision common to  both  the appeals.   It  is  true  that  in  his  appeal  No.  8,  the respondent  No.  1  had referred to  the  rejection  of  his contention by the Election Tribunal about the appellant  and respondent  No. 2 being holders of an office of profit.   He had to challenge the finding on this point because if he did not  succeed on it, he could not have got a  declaration  in his  favour when respondent No. 2 was also in the field  and had  secured a larger number of votes.  He  could,  however, rely  on the same contention in supporting the order of  the Election   Tribunal  setting  aside  the  election  of   the appellant and which was the subject matter of Appeal No.  7. This  contention was considered by the High Court in  Appeal No. 7 in that context and it was therefore that even  though the 768 High  Court did not agree with the Election  Tribunal  about the appellant’s committing a corrupt practice, it  confirmed the setting aside of his election on the ground that he held an  office  of  profit.  The finding about  his  holding  an office of profit served the purpose of both the appeals, but merely  because  of this the decision of the High  Court  in each  appeal  cannot be said to be one decision.   The  High Court  came  to two decisions.  It came to one  decision  in respect  of  the invalidity of the  appellants  election  in Appeal  No. 7. It came to another decision in Appeal  No.  8 with respect to the justification of the claim of respondent No. 1 to be declared as a duly elected candidate, a decision which  had to follow the decision that the election  of  the appellant  was invalid and also the finding that  respondent No.  2, as Ghatwal, was not a properly nominated  candidate. We are therefore of opinion that so long as the order in the appellant’s appeal No. 7 confirming the order setting  aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not

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have  been a properly nominated candidate stands, he  cannot question the finding about his holding an office of  profit, in  the present appeal, which is founded on  the  contention that  finding is incorrect. We  therefore accept the preliminary objection  and  dismiss the appeal with costs. Appeal dismissed. 769