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PETITIONER: GOKA RAMALINGAM

       Vs.

RESPONDENT: BODDU ABRAHAM & ANR.

DATE OF JUDGMENT: 27/11/1968

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) MITTER, G.K.

CITATION:  1970 AIR  741            1969 SCR  (2) 992  1969 SCC  (1)  24

ACT: Practice-Election  petition-Election to reserved  seat  from scheduled  caste  constituency-Election  challenged  on  the ground   that   successful  candidate   was   converted   to Christianity-Petition     dismissed-Plea    that     parents successful  candidate were converts sought to be  raised  in Supreme Court-Belated plea, if should be allowed. Constitution  (Scheduled Castes) Order, 1950  cl.  (3)-Scope of.

HEADNOTE: The  appellant  and  respondents  were  contestants  for   a reserved  seat  from  ’a scheduled  caste  constituency  for election  to the State Legislative Assembly, and  the  first respondent was elected.  The election was challenged by  the appellant on the ground that the respondent was not a member of  scheduled  caste because, he embraced  Christianity  and professed  the  Christian religion, and therefore,  was  not eligible  to  stand  for election  for  the  reserved  seat. During  the  trial,  the High  Court  summoned  a  Register, containing  the  names of all converted  Christians  of  the locality,  which was maintained by the local church.   There was no entry showing that the first respondent was converted to  Christianity. On the issue whether the first  respondent was  converted  to  Christianity,  the  High  Court,  on   a consideration of the entire evidence held that there were no proof of such conversion and dismissed the petition.     In  appeal to this Court, a petition was flied  alleging that the Register contained entries showing that the parents of  the first respondent were converted to Christianity  and it  was prayed that the case should proceed on the  plea  of conversion  to  Christianity  of the parents  of  the  first respondent,  in  place of the original plea that  the  first respondent himself was so converted.     HELD:  The prayer in the petition could not  be  granted because: (a) The plea changed the entire nature of t e  case and  required fresh evidence, (b) it was belated and  beyond the  period of limitation prescribed for filing of  election petitions; and (c) the application should have been filed in the High Court itself, for, the Register was produced in the High Court and it was inspected by the parties who had  thus

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ample  opportunity to discover the basis for the  new  plea. [995 D--F]     Under  cl.  (3) of the Constitution  (Scheduled  Castes) Order, 1950, it would have been sufficient if the  appellant pleaded and proved that the first respondent was a Christian that  therefore he was not a Hindu and was not competent  to stand for the reserved seat; but he chose to establish  that the  first respondent was himself converted to  Christianity and failed to do so. [996 B-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION:  Civil Appeal No. 61 of 1968.     Appeal  under  s.  116-A of the  Representation  of  the People  Act, 1951 from the judgment and order  dated  August 21,  1967  of  the Andhra Pradesh  High  Court  in  Election Petition No. 3 of 1967. 993 P. Ram Reddy and A.V.V. Nair, for the appellant.     R.K. Garg, D.P. Singh, S.C. Agarwal and Asif Ansari, for respondent No. 1. The Judgment of the Court was delivered by     Hidayatullah, C.J. This appeal arises from the  decision of  the Andhra Pradesh High Court dated August 21,  1967  by which  an election petition filed by the  present  appellant Goka  Ramalingam to question the election of  the  answering respondent Boddu Abraham was dismissed.  The matter concerns the Cheriyal (Scheduled Caste) constituency in the  election to the Andhra Pradesh Legislative Assembly held in February, 1967.  Three candidates had offered themselves for election. Two  of  them  we  have already  named,  the  third  is  one Devadanam.  The answering respondent obtained 15000 and odd, the   appellant-election  petitioner  12000  and   odd   and Devadanam  7000  and odd votes. The  election  petition  was based  only on one issue, namely, that the  respondents  who had stood for a scheduled caste Reserved seat had "converted themselves  into  Christianity  long  time  back  and   they continue  to  profess the said  religion  Christianity  even today."  Under  the Constitution (Scheduled  Castes)  Order, 1950, it is provided as follows:                     "(2)  Subject to the provisions of  this               Order,  the castes, races or tribes  or  parts               of,  or  groups  within,  castes  or   tribes,               specified  in Parts I to XIII of the  Schedule               to this Order shall, in relation to the States               to  which those parts respectively relate,  be               deemed  to  be  Scheduled  Castes  so  far  as               regards   members  thereof  resident  in   the               localities  specified in relation to  them  in               those Pans of that Schedule.                      (3) Notwithstanding anything contained’               in  paragraph  2, no person  who  professes  a               religion different from the Hindu or the  Sikh               religion  shall be deemed to be a member of  a               Scheduled Caste." It  would therefore appear that if the answering  respondent and  Devadanam were not members of a named  scheduled  caste (in  this case the Madiga caste) they were not  eligible  to stand  for election for the Reserved Seat.  The case as  put forward in the High Court was that these two candidates  had themselves  got converted into Christianity a long time  ago and  that  they  did not therefore  profess  Hindu  religion although  in the plea it is stated affirmatively  that  they profess  Christian religion. The case went to trial on  this

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plea and the issues framed were as follows:       "1.  Whether  the  respondents  who  admittedly   once belonged to ’Madiga’ community embraced Christianity 994               and professed the religion of Christianity  at               the time of election and hence respondent  No.               1  was not qualified to be chosen to fill  the               seat  in the Assembly of the State as  per  s.               5(a)  read with Rule (3) of  the  Consittution               (Scheduled Castes) Order, 1950 (C.O. 19  dated               10-8-59) ?                     2. Whether the nomination papers of both               the  respondents were improperly received  and               as a result thereof the result of the election               has been materially affected?                        3. What is the effect of admission of               respondent 2               in his W.S. as to his status on this  election               petition?" Evidence was led to prove that the answering respondent  was converted to Christianity. This evidence was not accepted by the  High Court.  As regards the other respondent,  he  went out  of  the  fight admitting that he was  a  Christian  and nothing more need -be said of him.     It  appears  that  while this-case  was  going  on,  the learned Judge was informed that a Register of all  converted Christians  was  maintained by the church.   He  accordingly sent  for  the  Register and marked it as Ex.  C-1.  In  the judgment  the  learned Judge gives his order  pertaining  to this action.  It reads as follows:                      "I may mention here that since it  came               out  in the evidence of R.W. 2 that the  names               of  all  converts to Christianity  within  the               jurisdiction  of Hanumakonda  Baptist  Mission               would be entered in the General Record of  the               Field   Association,  Hanumakonda,  and   that               register  was  flied as an exhibit in  a  suit               pending  in the District Court at Warangal,  I               summoned it and marked it as Ex. C-1.  I  gave               opportunity for the lawyers appearing on  both               sides  to inspect the register and make  their               submissions.    The   entries   relating    to               Dharmasangaram  village  are to  be  found  in               pages  50 to 52 and 182. It is true  that  the               name  of  the 1st respondent is not  found  in               this Record; but since this register does  not               appear to be an exhaustive and complete record               of  all the Christians in that area, I do  not               propose  to  rely  on  the  entries  in   this               register for any purpose."     The  Register was inspected by the parties.   They  went into  it  with a view to finding out whether  the  answering respondent  and his wife Chinna Mariamma had been  converted or  not.  There was no entry showing that they had  been  so converted.   It  appears,  however, that  the  Register  did contain two entries show- 995 ing the conversion of Boddu Kumaraiah and China Buchamma who are  now  said  to be the father  and  mother  of  answering respondent.   An  affidavit  has also been  filed  from  the Pastor  of  the  Church in which it  is  stated  that  these entries  refer to the parents of the  answering  respondent. Even  though  the  Register was in court  and  was  open  to inspection  of the parties, care was not taken  to  discover these two names, with the result that the case was fought on

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the  original plea and issue that the  answering  respondent was  converted to Christianity.  That apparently was  not  a fact, because if he was born of Christian parents he did not need  conversion.   The fact, however, is only  alleged  now before us and has not been subjected to proof.     The question therefore is whether in view of this  fresh evidence,  we  should  allow  this  appeal.   On  a   proper consideration of the entire matter we are of opinion that we cannot.  An application was made to us asking for  amendment of  the plea of conversion of the answering respondent  into one  of conversion of his parents to Christianity.  We  have been  unable to allow that petition, because it changes  the nature of the case requiring fresh evidence to be taken  and is filed also beyond the period of limitation prescribed for filing  of  election  petitions.  That it  does  change  the entire nature of the case is obvious, because instead of the plea   that  the  answering  respondent  was  converted   to Christianity,  it  is now sought to be  substituted  a  plea that the parents were converted to Christianity.  We  should have understood such an application being made in the  Court of trial when the Register was produced, because that  might have been a matter not within the knowledge of the  election petitioner  till the register was produced.  But  after  the Register  had  been  produced and it lay in  the  Court  for nearly  an  year  and had been inspected  by  the  answering respondent, it does not lie in his mouth to say that he  had no notice of the true facts.  He had notice of them  because he  had the register with him and the names of  the  alleged parents  of the answering respondent are  clearly  mentioned therein.  In  fact  the register seems  to  be  a  well-kept document  written extremely legibly and there was no  danger of  any  name  having been  overlooked.  Therefore  we  must consider  this  as a belated plea and reject it on  the  two grounds already mentioned by us.     Once  the application for amendment is out the way,  the question  is whether the appeal of the  election  petitioner can  be otherwise sustained.  Mr. Ram Reddy  contended  that under el. (3) of the Presidential Order, it is sufficient to prove  that  if  a  person  professes  religion  other  than Hinduism  or  Sikhism it disentitles him to  contest  for  a reserved   seat.   He  says  that for  whatever  reason  the answering respondent be regarded as a 986     Christian today or at any rate at the time he filed  his nomination      paper, he would be incompetent to stand  for the  election from     the reserved seat if he  professed  a religion  other  than  Hinduism "   or  Sikhism.   In  other words, ’he wants to extract from the plea     and the  issue a  very much narrower field for enquiry,   namely,      that the  answering  respondent  was not a Hindu  on  that  date. This  would  have been a proper plea to take  in  the  first instance.      It is because of clumsy blundering  that  the petitioner undertook     a much greater burden than the  law required him to take.  He     should have pleaded only  that the returned candidate was a Christian on the date he  filed his nomination paper and therefore was     not ,a Hindu  and was  not  competent  to stand  for  the  Reserved      Seat. Instead  he  proceeded to demonstrate through his  plea  and his  evidence  that  the  returned  candidate  was   himself converted      to Christianity and failed.  In this view  of the  matter we do not     think that we should allow him  to change his front and narrow     the field of enquiry to  one which he should have adopted in the     first instance.  Not having done so, we think that it is too late     for him  to change   his   case  now.   For  these   reasons,   we   are

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constrained to dismiss the appeal.  We may say that it is an odd     situation, because probably a  Christian occupies  a Reserved     Seat, but this is the result of the vagaries of litigation  which      have to be carried  on  according  to rules.  The rules do not permit us to give relief where  the party himself is at fault in making     a wrong plea and  in not  making  the  right  plea  in  time.   But  in       the circumstances of the case, we think that the parties  should be     directed to bear their costs throughout. V.P.S.                                     Appeal dismissed.