21 December 1956
Supreme Court


Case number: Appeal (civil) 333 of 1956






DATE OF JUDGMENT: 21/12/1956


CITATION:  1957 AIR  444            1957 SCR  370

ACT: Election  Dispute-Petition  grounded  on  corrupt  Practices Matter,  if  of  wider  import  than’   Particulars’-Trial’, meaning  of-Procedure if  includes  Power’s--Amendment,  if’ and when permissible-Power of Election Tribunal-Person, when can be said to be employed for Purposes of election-Contract of   service   and   contract   for    services-Distinction- Representation  of the People Act (XLIII of 1951),  ss.  81, 83, cls. (1), (2) & (3), 90(2), 92, 123 cls.(7)   & (8)-Code of Civil -Procedure (Act V of 1908), 0. VI, r. 17.

HEADNOTE:  The  respondent  filed  a  petition  under  s.  81  of  the Representation of the People Act challenging the election of the appellants to the Uttar Pradesh Legislative Assembly  on the  ground that they had committed corrupt  practices,  the material allegations                             371 being, (1) that the appellants " could in the furtherance of their  election  enlist the support  of  certain  Government servants  ", and (2) that the appellant No. 1  had  employed two  persons  in  excess of the prescribed  number  for  his election  purposes.   No  list  of  particulars  of  corrupt practices  under  S. 83(2) Of the Act was  attached  to  the petition.  Thereafter the respondent applied under s.  83(3) Of  the Act for an amendment of his petition by  adding  the names of certain village Headmen (Mukhias) as having  worked for the appellants and later on become their polling agents. The  Election Tribunal allowed the amendment, when  a  fresh petition  on those allegations would have been  time-barred, holding  that what were sought to be introduced by  it  were ’mere particulars of the charge already made, and held  that corrupt  practices  under  ss. 123(8) and  123(7)  had  been committed  by the appellants.  It accordingly  declared  the election  void  under  S.  100(2)(b) of  the  Act.   It  was contended  on  behalf of the appellants  that  the  Election Tribunal  had no power either under s. 83(3) Of the  Act  or under  0. VI, r. 17 Of the Code of Civil Procedure to  allow the amendment in question and its finding that the appellant No.  I  had  employed the two persons  in  addition  to  the



prescribed number was misconceived in law. Held,  that  although the term ’matter’ in S. 83(3)  was  of wider import than ’particulars I to be stated under s. 83(2) and  would comprehend the grounds on which the election  was sought  to  be  set aside, s. 83(3) was  not  an  exhaustive provision  on the power of amendment, its application  being limited to allegations of corrupt and illegal practices, and that,  therefore, in respect of other matters, the power  of amendment under 0. VI, r. 17, read with s. 90(2) of the  Act was  not  excluded,  and  the  maxim  expression    exclusio alterius, would not apply. The  word ’trial’ in s. 90(-2) of the Act is used in a  wide sense  as  including  the  entire  proceedings  before   the Tribunal  from the time when the petition is transferred  to it  under  s. 86 of the Act till the  pronouncement  of  its award. There  is no antithesis between ’procedure’ in s. 90(2)  and powers’ in s. 92 of the Act and Where an. application  would lie to the Tribunal under s. 90(2) it would have’ the  power to pass, the necessary order on it. The  object of the legislature in enacting s. 92 of the  Act was  to place the powers of the Tribunal in respect  of  the matters  mentioned therein as distinguished from  the  other provisions of the Code, on a higher footing. Sitaram v. Yograjsing, A.I.R. (1953) Bom. 293, approved. Jagan  Nath v. Jaswant Singh, (1954) S. C. R. 892,  referred to. Sheo  Mahadeo Prasad v. Deva Sharan, A. I. R.  (1955  Patana Si, disapproved. 372 While the Election Tribunal had undoubtedly the power  under s. 83(3) of the Act to allow an amendment. in respect of any particulars  of illegal and corrupt practices, or to  permit new  instances  to  be included,  provided  the  grounds  or charges were specifically stated in the petition, its  power to amend a petition under 0. VI, r. 17 Of the Code of  Civil Procedure could not be exercised so as to permit new grounds or charges to be raised or the character of the petition  to be  so  altered as to make it in substance a  new  petition, when  a fresh petition on those allegations would  be  time- barred. Beal  v. Smith, (1869) L. R. 4 C. P. 145; Greenock  Election Case,  (1869)  L. R. 4 C. P. 150  (footnote);  Carrickfergus Case,  (1869) 1 O’M. & H. 264; Dublin Case, (1869) 1 O’M.  & H.  270  and  Maude v. Lowley, (I 874) L. R. 9  C.  P.  165, referred to. Chayan  Das  v. Amir Khan, [192O) L. R. 47 1.  A.  255,  not followed. Held  further, that the amendment introduced a  new  charge, altered  the  character of the petition and was  beyond  the powers  of the Tribunal and necessary evidence had not  been adduced to support a finding as to the additional employment and no corrupt practices either under cl. (7) or: (8) Of  S. I23 had, therefore, been committed. In  deciding  the  question  as to  whether  any  person  in addition  to  the  number  permitted by  the  Act  had  been employed by a candidate for his election purposes, the well- established distinction between a contract for services  and a  contract of service must be borne in mind and in  absence of  any evidence to show that the contract with  the  person engaged  was  one  of service,-that he was to  do  the  Work personally,  with or without the assistance: of others,  lie could not be held to have been employed in law. Collins  v. Hertfordshire Central Council, (1947) K. B.  598 and   Dhayangadhara   Chemical  Works  Ltd.  v.   State   of



Saurashtra, (1957)S.     C. R. 152, relied on.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION     Civil  AppEal  No.333  of 1956. Appeal by special leave against the judgment and order dated March  23,  1955,  of the  Election  Tribunal,  Lucknow,  in Election Petition No. 320 of 1952. C.   K.  Daphtary, Solicitor General of India, R. C.  Gupta, J. S. Trivedi and S. S. Shukla, for the appellant. K.   S.-  Krishnaswamy Iyengar, S. P. Sinha and R.  Patnaik, for respondent No. 1.                             373 1956.  December 21.  The Judgment of the Court was delivered by VENKATARAMA  AIYAR  J.-This is an appeal  by  special  leave against  the  order  of  the  Election  Tribunal,  Faizabad, declaring the election of the appellants to the  Legislative Assembly,   Uttar   Pradesh   from   the   Lucknow   Central Constituency, void under s. 100(2)(b) of the  Representation of the People Act No. XLIII of 1951, hereinafter referred to as   the   Act.   The  Constituency   is   a   double-member Constituency.  one of the seats being reserved for a  member of the Scheduled Castes.  The -polling, took place on  31-1- 1952,  and the two appellants we-re declared  elected,  they having  secured  the largest number of votes.  On  -June  10 1952, the respondent herein filed a petition under S. 81  of the Act alleging that the appellants had committed a  number of corrupt practices, and prayed that the election might  be declared wholly void. The  appellants  filed  written.  statements  denying  these allegations,  and  on the pleadings, issues were  framed  on January   17,  1953.   Then  followed  quite  ’a  spate   of proceedings, consisting of applications for framing of fresh issues  for  better  particulars and for  amendment  of  the election  petition, to which a more detailed reference  will presently be made.  As a result of these proceedings, it was not until September, 1954, that the hearing of the  petition began On March 23, 1955, the Tribunal delivered its judgment and,  by  a  majority,  it set aside  the  election  on  two grounds, (1) that the appellants had obtained the assistance of four village officers, Mukhias, in furtherance of.  their election  prospects and had thereby contravened s.123(8)  of the  Act; and (2) that the first appellant had employed  for payment  in  connection with high election  two  persons  in addition  to’  the number permitted by Rule  118  read  with Schedule VI, ’namely, Ganga Prasad and Viswanath Pande,  and had there by infringed s. 123(7) of the Act.  Before us, the appellant’s  dispute the correctnes’s of the conclusions  on both these points. As  regards  the  first point, the main  contention  of  the appellants that the charge that they had employed 374 four Mukhias in furtherance of their, election prospects was not pleaded in the petition as originally presented and that it  came in only by an amendment dated  November  28,  1953, that. the Tribunal had no power to order that amendment, and that,   accordingly,   the   finding   thereon   should   be disregarded.  It is necessary for a correct appreciation  of the contentions on either side to state the facts leading to this amendment. The material allegations in the petition as it was presented on  June  10, 1952, are contained in para 7(c), and  are  as



follows: "That  the respondents Nos. 1 and 2 could in furtherance  of their  election  enlist the support  of  certain  Government servants.   The District Magistrate, Lucknow, organised  the opening  of  eye  relief camps,  and  these  functions  were utilised for the election propaganda of the respondents Nos. 1  and  2. An eye relief camp was proposed to be  opened  on December 16, 195 1, at Kakori by Sri C. B. Gupta,  Minister, Civil  Supplies,  U.P., one of the chief organisers  of  the election  of  the  respondents Nos. 1  and  2.  An  election meeting  was  advertised by the workers of  the  respondents Nos.   I  and 2 to be’ held within a short distance  of  the proposed eye relief camp on the same day.  This meeting  was amongst others addressed by Sri G. B. Pant, Chief  Minister, U.P., Sri C. B. Gupta and the respondent No. 1. It was  also attended  by the Patwaris and Qanungo of the, Kakori  Circle including the Tahsildar, Lucknow and the Duty Superintendent of Police, Lucknow. "On  December  27, 1951, an eye relief camp  was  similarly. organised and opened at Kakori.  The ceremony this time  was performed  by  Mrs. Vijay Lakshmi  Pandit  ’and  immediately thereafter  from  the same platform and at  the  same  place election  speeches  were made and the audience  exhorted  to vote  for  Mrs. Vijay Lakahmi Pandit, a  candidate  for  the House  of the People from that area and respondents  Nos.  1 and   2.  This  meeting  was  attended  -by,  the   District Magistrate.   Lucknow, Sub Divisional  Magistrate,  Lucknow, Deputy Superintendent of Police, Lucknow, 735 Tahsildar,  Lucknow  and  Patwaris  and  Qanungo  of  Kakori Circle.   The  respondents  Nos.  I and  2  by  this  device succeeded in creating an impression on the voters that  they had the support of the district officials. There was no list of particulars attached to the petition as provided in s. 83 (2) of the Act. On December 15, 1952, the first appellant filed his  written statement,  and therein he stated with reference to  para  7 (c)  that  it  was  "wrong and  denied  that  the  answering respondent  in  furtherance  of his  election  enlisted  the support of any government servant." He also stated that  the allegations  were not accompanied by a list, and were  vague and lacking in particulars and were liable to be struck off. The  written  statement  of the second  appellant  filed  on December  20, 1952, was also on the same lines as  those  of the first appellant.  Respondent No. 4, who was’ a  defeated candidate  and  supported  the respondent  herein,  filed  a written  statement on December 3, 1952, wherein  he  alleged that  the  appellants  had  obtained  services  of   village officers,  such as Lambardars and Sarpanches in  furtherance of  their  election  prospects.  Respondent No.  9  who  was another defeated candidate also filed a written statement on the  same day, adopting the allegations in the statement  of the fourth respondent adding Mukhias to the list of  village officials  whose assistance was procured by the  Appellants. On  January 10, 1953, the respondent filed a replication  to the written statements of the appellants, wherein he  stated as follows "As  stated in the petition, the denial of  the  respondents Nos.  1  and  2  is  absolutely  wrong,  inasmuch  as   many Government  servants worked for, issued appeals  and  became polling agents for respondents I and 2. In these meetings at Kakori  many government servants took part and  some  worked for furtherance of the election of respondents Nos.  I and 2 and  issued  appeals to the public to vote  for  respondents Nos.  I and 2 and also became their polling agents."



On  January  24,  1953,  the  appellants  filed  a   written statement objecting to the reception of the replication 49 376 on the ground that the petitioner (respondent) had no  right to  file  it  and that it was a mere device to  add  to  the original  petition.  They also filed an application  on  the same  date  for  a preliminary  hearing  of  certain  issues relating to the contentions raised by them in their  written statements  that the allegations in the petition were  vague and  should be struck off for want of particulars,  and  the same was posted for hearing on February 25, 1953.  Arguments were  heard on these issues on that day and again on  August 25,  1953, and the following days, and on October 31,  1953, the  Tribunal  passed  an order striking  off  some  of  the allegations in the petition and calling upon the  petitioner to give particulars in respect of others.  Dealing with para 7 (c) of the petition, the order stated : "  Paragraph 7 (C) is not vague.  It shall remain as it  is. Corresponding  paragraph of the replication introduces  some new matters.  Therefore, the same shall be disregarded.  The Petitioner has not named ,the Government servants.  He shall supply  the  names of the officials including those  of  the Patwaris and Qanungoes." Meantime,  after  the  preliminary  argument  aforesaid  had commenced and before it was concluded, the respondent  filed on  February 27, 1953, an application for amendment  of  his petition, the order on which is the main target of attack in this  appeal.  It was presented under s. 83(3) of  the  Act, and  prayed  that the petitioner " be allowed to  amend  the details  of para 7(c) by adding the words  Village  Headmen’ with  their names and the fact that they worked  and  issued appeal  and subsequently they became the -polling agents  of respondents  Nos. 1 and 2. It mentioned for the  first  time the  names  of the Mukhias whose assistance  the  appellants have  been  held  to have obtained.   This  application  was opposed by -the appellants on the ground that the  amendment did not fall within s. 83(3),that, the matters sought to  be introduced  thereby were new charges, and if admitted,  they would alter the very character of the petition, and that  it should  not  be  granted,  as  a  fresh  petition  on  those allegations  would  be barred on that date.   It  should  be mentioned 377 that  oh  January 22, 1953, respondent No. 4  had  filed  an application to raise additional issues on his averments that the  appellants  had obtained assistance  from  the  village officers.   That  application  was  also  contested  by  the appellants.   It would appear that this application and  the amendment  petition  were heard together.  On  November  10, 1953, the Tribunal by a majority passed an order  dismissing the  application  of the fourth  respondent  for  additional issues.   ’On  November  28, 1953, it allowed,  again  by  a majority,  the application of the respondent  for  amendment observing  that  the matters sought to  be  introduced  were merely  particular in respect of the charge set out in  par& 7(c) of the petition, "that the respondents I and 2 could in furtherance of their election enlist the support of  certain Government  servants", and further that 0. VI, r. 17 of  the Civil  Procedure Code was applicable to  proceedings  before the Election Tribunal’. The  appellants attack the correctness of  this  conclusion, and  contend that the Tribunal had no power either under  s. 83(3)  or  under  0. VI, r. 171 to order  the  amendment  in question.-  They also contend that even if the Tribunal  had



the  power to order Amendment, the order in question is  not justified on the merits, and is erroneous.  It is  necessary to set out the statutory provisions bearing on the question: S.81(1).   An  election  petition calling  in  question  any election  may be presented on one or more grounds  specified in sub-ss. (1) and (2) of s. 100 and S. 101 to ’the Election Commission by any candidate at such election or any  elector in such form ’and within such time but not earlier than  the date  of  publication of the name or names of  the  returned candidate  or candidates at such I election under s. 67,  as may prescribed. S.83(1).   An  election  petition shall  contain  a  concise statement  of  the material facts on  which  the  petitioner relies and shall be signed by the petitioner and verified in the  manner laid down in the Code of ’Civil Procedure,  1908 (Act V of 1908), for the verification of pleadings. 378 (2)The  petition shall be accompanied by a list  signed  and verified  in like manner setting forth full  particulars  of any  corrupt  or  illegal  practice  which  the   petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such  corrupt or illegal practice and the date and place of commission  of each such practice. (3)  The  Tribunal  may, upon such terms  as  to  costs  and otherwise   as  it  may  direct  at  any  time,  allow   the particulars included in the said list to be amended or order such further and better particulars in regard to any  matter referred to therein-to be furnished as may in its opinion be necessary  for the purpose of ensuring a fair and  effectual trial of the petition. 85.If  the  provisions  of s. 81, s. 83 or s.  117  are  not complied  with,  the Election Commission shall  dismiss  the petition.  90  (2).  Subject to the provisions of this Act and of  any rules  made  thereunder, every election  petition  shall  be tried  by the Tribunal, as nearly as may be,  in  accordance with  the  procedure  applicable under  the  Code  of  Civil Procedure, 1908 (Act V of 1908), to the trial of suits. 90  (4).  Notwithstanding anything’ contained in s. 85,  the Tribunal  may  dismiss an election petition which  does  not comply with the provisions of s. 81,a.  83 or s. 117. 92.The Tribunal shall have the powers, which are vested in a court  under  the Code of Civil Procedure, 1908  (Act  V  of 1908),  when  trying  a suit in respect  of,  the  following matters: (a)  discovery and inspection; (b)  enforcing the attendance of witnesses and requiring the depositor their expenses; (c)  competing the production of documents; (d)  examining witnesses on oath; (e)  granting adjournments; (f)  reception of evidence taken on affidavit; and (g)  issuing  commissions for the examination of  witnesses, -and  may  summon  and examine suo  motu  any  person  whose evidence  appears to it to be material; and shall be  deemed to be a civil court within the 379 meaning  of  ss.  480  and  482  of  the  Code  of  Criminal Procedure, 1898 (Act V of 1898)." Now, we start with this that s. 83(3) grants a power to  the Tribunal to amend particulars in a list.  What is its scope? Is  it open to the Tribunal acting under this  provision  to direct new instances of the corrupt practices to be added to the list?  And if it is, is that what it did in the  present



case?   It is contended by the learned Solicitor-General  on behalf  of the appellants that s. 83(3) does  not  authorize the  inclusion  of new instances of corrupt  practices,  and that  all  that could be ordered under  that  provision  was giving  of fuller particulars in respect of instances  given in   the  petition.   The  argument  in,  support  of   this contention  might thus be stated: Section 81  requires  that the  election petition should state the grounds on which  it is founded.  Section 83(1) enacts that it should contain  -a concise  statement  of  the  material  facts  on  which  the petitioner  relies, and s. 83(2) provides that the  petition should be accompanied by a list containing full  particulars of  the  corrupt  or  illegal  practices.   When  the  three provisions   are  read  together,  it  is  clear  that   the legislature  has  made a distinction between grounds  in  s. 81(1),  facts ins. 83(1) and full particulars in  s.  83(2); and  in this context, facts in s. 83(1) must mean  instances of  the  charge on which the petition is  grounded  and  the particulars   referred  to  in  s.  83(3)  can   only   mean particulars  in  respect  of the instances set  out  in  the petition  in accordance with s. 83(1).  The  consequence  is that  an  instance of a corrupt practice not  given  in  the petition, cannot be brought in under section 83(3).  On this reasoning,  it is contended that the order of  the  Tribunal dated November 28, 1953, permitting the respondent to allege that the appellants obtained the assistance of four Mukhias, whose  names  were  mentioned  for the  first  time  in  the amendment  petition,  is  outside the  ambit  of  the  power conferred by s. 83(3). We  are  unable  to agree with this contention.   In  I  our opinion,  s.  81(1)  and s. 83, sub-ss. (1)  and  (2),  when correctly   understood,  support  the  contention   of   the respondent that the Tribunal has authority to 380 allow an amendment even when that involves inclusion of  new instances,  provided they relate to a charge  contained:  in the  petition.   Taking  first s. 81(1), it  enacts  that  a petition may be presented calling an election in question on one of the grounds specified in a. 100, sub-ss. (1) and  (2) and  section  101.   These sections enumerate  a  number  of grounds  on which the election may be set  aside,  including the commission of the corrupt practices mentioned in s.  123 of the Act, and quite clearly it is the different categories of  Objections mentioned in s. 100, sub-ss. (1) and (2),  S. 101  and s. 123 that constitute the grounds mentioned in  s. 81(1).  Then we come to s. 83(1).  It says that the petition should  contain a concise statement ’of the material  facts, and that would include facts relating to the holding of  the election,  the  result thereof the grounds on  which  it  is sought  to  be  set aside, the right of  the  petitioner  to present  the  petition and the like.  Then s.  83(2)  enacts that  when  there  is an allegation of  corrupt  or  illegal practice, particulars thereof’ should be given in a separate list.  If the grounds on which an election’ is sought to  be set aside are something other than the commission of corrupt or illegal practices, as for example, when it is stated that the  nomination  had  been  wrongly  accepted  or  that  the returned  candidate was not entitled to stand for  election, then s. 83(2) has no application, and the requirements of s. 83(1)  are  satisfied  when  the  facts  relating  to  those objections  are  stated. The facts to be  stated  :under  a. 83(1).  are thus different from the particulars -which  have to  be given -under a. 83(2).  When# therefore, an  election is challenged on the ground that the candidate hag committed the  corrupt practices mentioned in section  123,  instances



constituteing particulars thereof will properly fall  within s.  83(2)  and not a. 83(1).  The result is that  the  power under a. 83(3) to allow further and better particulars  will include   a   power  to  allow  fresh   instances   of   the charges,which  form  the grounds on which  the  election  is Questioned. We are fortified in this conclusion by decisions of  English Courts, on statutory provisions which are in                             381 pari  materia  with  our  enactment.   Section  20  of   the Parliamentary  Elections Act, 1868 enacts that  an  election petition shall be in such form and state such matters as may be  prescribed,  that  is,  by the rules.   Rule  2  of  the Parliamentary  Election  Rules provides  that  the  election petition  "  shall  state  the holding  and  result  of  the election  and  shall  briefly state the  facts  and  grounds relied on to sustain the prayer ". Rule 5 gives the form  of an  election petition and the third paragraph therein is  as follows. " And your petitioners say (here state the facts and grounds on which the petitioners rely)." The true scope of these Provisions came up for consideration in  Beal v. Smith (1).  There, the election petition  merely stated that " the respondent by himself and other.  person.% on  his  behalf, was guilty if bribery, treating  and  undue influence."  The respondent took out an application  for  an order that the petition be taken off the file on the  ground that  it  merely  stated  the  grounds  but  not  the  facts constituting  the particulars as required by Rule 2. In  the alternative,  it was prayed that the petitioners  should  be directed to give particulars relating to the several corrupt practices.   In  rejecting the former prayer, Bovill  C.  J. observed: " Now, with regard to the form of the petition, it seems  to me that it sufficiently follows the spirit and intention  of the  rules; and no injustice can be done by its  generality, because ample provision is made by the rules to prevent  the respondent being surprised or deprived of an opportunity  of a fair trial, by an order for such particulars as the  judge may deem reasonable.  I think, therefore, it would be  quite useless  to  require anything further to be  stated  in  the petition than appears here." With  reference to the alternative prayer, it was held  that an order that the particulars be furnished three days  prior to  the  trial  was a proper one to be  passed.   A  similar decision  was given in the Greenoch Election Case, a  report of which is given in a footnote at page 150 of Beal v. Smith (1)(1869) L. R. 4 C- P.145. 382 These  decisions  establish  that  the  requirement  as   to statement of grounds and facts is satisfied when the  charge on  which the election is sought to be set aside is set  out in  the petition, that the fare to give therein  particulars of  corrupt and illegal practices on which it is founded  is not fatal to its maintainability, and that it is  sufficient if  the  particulars are ordered to be  furnished  within  a reasonable  time before the commencement of the  trial.   On the same reasoning, the conclusion should follow that s.  81 (1)  and a. 83 (1) are complied with, when the   grounds  on which the election is sought to be set aside, are stated  in the  petition, those grounds being, as already  stated,  the matters mentioned in s. 100, sub-ss. (1) and (2), s. 101 and s.  123, which is attracted by s. 100 (2) (b), and that  the particulars  in  respect  of those grounds,  when  they  are charges  of corrupt or illegal practices, fall within s.  83



(2).   There  is,  it should be  observed,  nothing  in  the Election  law  of England corresponding to s.  83  (2),  the question  of particulars being left there to be  dealt  with under  the  Rules applicable to the trial  of  causes.   The consequence  is that while under the English  practice,  the petitioners are not obliged to state particulars of  corrupt practices in their petition, under s. 83 (2) a statement  of those particulars must be made in the petition in a separate list annexed thereto.  But this difference is more a  matter of  form  than  of  substance, as s.  83  (3)  provides  for particulars being called for and furnished in the course  of the  proceedings, and does not affect the conclusion  as  to the  power  of  the Tribunal to allow new  instances  to  be pleaded. Section  83 (3) provides, it should also be noted,  for  the list  of particulars being amended or enlarged.  It is  not, however, to be inferred from this that when the  particulars are mentioned in the body of the petition, they could not be amended.   The reference to the list, in a. 83 (3)  must  be taken along with the provision in s. 83 (2) that particulars are to be set out in a list to be attached to the  petition. The substance of the matter, therefore, is that under s.  83 (3)  particulars  can be amended and supplemented,  and  the reason of it requires that the power could be exercised even when                             383 the  particulars are contained in the body of the  petition. And  even  when there is no list filed, as  in  the  present case,  it  would be competent to the Tribunal  to  allow  an amendment  giving  for the first time instances  of  corrupt practice,  provided  such corrupt practice has been  made  a ground of attack in the petition. One  other  argument urged by the  appellants  against  this conclusion  must  now  be considered.  It is  based  on  the language  of  s. 83(3).  That section, it is  urged,  allows firstly by an amendment of the particulars. included in  the list,  and  secondly  " further and  better  particulars  in regard  to  any  matters  referred  to  therein"  and  that, according  to the appellants, means the particulars  already given  in  the list. it is accordingly  contended  that  the power  to  allow  further  and  better  particulars  can  be exercised only in respect of particulars already  furnished, whether they be contained in the body of the petition or  in the list, and that, therefore, an order permitting inclusion of  new instances is outside the purview of s.  83(3).   The assumption  underlying  this  contention is  that  the  word "matter" in s. 83 (3) means the same thing as "particulars". We see no reason why we should put this narrow  construction on  the  word "matter".  That word is, in  our  opinion,  of wider import than particulars, and would also comprehend the grounds on which the election is sought to be set aside.  If the construction contended for by the appellant is  correct, the relevant portion of s. 83 (3) will read as " further and better particulars in regard to any particulars referred  to therein",  and  that does not appear to us to  be  either  a natural  or a reasonable reading of the  enactment.   Having regard to the scheme of the Act stated above, we think  that s. 83 (3) is intended to clothe the Tribunal with a  general power  to  allow  not merely  an  amendment  of  particulars already  given  but  also inclusion  of  fresh  particulars, pleading  new instances, subject to the condition that  they are in respect of a ground set out in the petition.  This is in  accordance  with the law and practice obtaining  in  the Election Courts in England.  Thus,in the Carrickfergus  Case (1), in ordering



(1)  [1869] 1 O’M. & H. 264, 265. 50 384 an  application for amending particulars, so as  to  include matters  which  had only then come to the knowledge  of  the petitioner, O’Brien, J., observed : " In some respects the Petitioner came down here  manifestly ignorant  of  the exact grounds upon which  several  of  the charges of the Petition were founded. " I therefore thought it reasonable upon a proper case being made  out  to  allow the Petitioner to  amend  his  bill  of particulars  by adding such facts as only -recently came  to his  knowledge.   I  consider that in  the  trial  of  these petitions,  where the purity of the election is  questioned, the  most searching enquiry should be instituted, and it  is the duty of the Judge to afford every facility in his  power to that investigation." In the Dublin Case (1), the order was one directing a  list. of particulars to be amended, the Court observing: " I shall allow the utmost ’latitude to amend, unless it  is a  case in which I see that the party kept back  information at the time the list was furnished." In this view, the order of amendment in question is not open to attack on the ground that it has permitted new  instances to  be  raised.   What  has to  be  seen  is  whether  those instances  are, in fact, particulars in respect of a  ground put  forward  in  the  petition, or  whether  they  are,  in substance, new grounds of attack. Before dealing with this question, it will be convenient  to consider   the   alternative  contention  raised   for   the respondent -that even if the Tribunal had no power to  order the amendment in question under s. 83 (3) of the Act, it was competent to do so under o.   VI,  r.  17,  Civil  Procedure Code,  and  that  this Court should not  in  special  appeal interfere with the discretion exercised by it in making  the order.   That raises the question which has been  very  much debated  both  in  the Election Tribunals and  in  the  High Courts  of the States as to whether 0. VI, r. 17 applies  to proceedings  before  Election Tribunals.  Mr. K.  S.  Krish- naswami  Ayyangar,  learned  counsel  for  the   respondent, contends  that  it does, by force of s. 90 (2) of  the  Act, under which the Tribunal is to try a petition "as (1)  [1869] 1 O’M. & H. 270, 272.                             385 nearly as may be in accordance with the procedure applicable under  the  Code of Civil Procedure, 1908, to the  trial  of suits."  Now, in A. G. v. Sillem (1) it was stated  by  Lord Westbury  that the word "practice"and it means, as  observed in  Poyser  V.  Mixors (2) the same -  thing  as  procedure- denotes  " the rules that make or guide the  Curcus  cirise, and regulate the proceedings ina cause within the  walls or  limits  of  the Court itself ".  And  these  proceedings include all ,steps, which might be taken in the  prosecution or defence thereof, including an application for  amendment. In Maude v. Lowley (3), the point arose for decision whether the power conferred on the Election Court by s. 21(5) of the Corrupt  Practices (Municipal Elections) Act, 1872,  to  try the petition, subject to the provisions of the Act, as if it were  a  cause within its jurisdiction, carried  with  it  a power to order amendment of the petition.  It was held  that it did.  That precisely is the point here. But  it  is contended for the appellants that 0. VI,  r.  17 cannot  be held to apply to proceedings before the  Tribunal by  reason of s. 90 (2), because (1) under that section,  it is only the trial of the election petition that has to be in



accordance with the provisions of the Civil Procedure  Code, and  the question of amendment of the petition relates to  a stage anterior to the trial;(2)    s. 92 enumerates  certain matters in respect of which the    Tribunal  is to have  the powers of a court under the   Civil  Procedure Code, and  as amendment of pleadings is not one of them, 0. VI, r. 17 must be held to have been excluded from its jurisdiction; (3) the Act makes a distinction between procedure and powers, s.  90 (2)  extends the provisions of the Civil Procedure  Code  to proceedings  before Tribunals only in respect of  procedure, and  power  to  order amendment under 0. VI, r.  17  is  not within  the  extension; and (4) s. 90(2) is, in  any  event, subject  to  the provisions of the Act and  the  rules  made thereunder, and the power of amendment under s. 83 (3) being limited to particulars, the (1)  [1864] 10 H.L.C. 704,723; II E.R. 1200, 12O9. (2)  [1881]7 Q.B.D. 329,333. (3)  (1874) L.R. 9 CP. 165. 172. 386 general  power of amendment under 0. VI, r. 17 must be  held to have been excluded.  The correctness of these contentions must now be examined. (1)Taking the first contention, the point for decision is as to  what the word ’trial’ in s. 90 (2) means.  According  to the appellants, it must be understood in a limited sense, as meaning  the  final hearing of the petition,  consisting  of examination  of witnesses, filing documents  and  addressing arguments.   According  to the respondent, it  connotes  the entire  proceedings before the Tribunal from the  time  that the  petition  is transferred to it under s. 86 of  the  Act until  the  pronouncement  of the award.   While  the  word’ trial’ standing by itself is susceptible of both the  narrow and the wider senses indicated above, the question is,  what meaning  attaches to it in s. 90 (2), and to decide that  we must  have  regard  to the context and the  setting  of  the enactment.   Now, the provisions of the Act leave us  in  no doubt as to in what sense the word is used in s. 90(2).   It occurs  in Chapter III which is headed " Trial  of  election petitions  ".  Section 86 (4) provides that  if  during  the course  of the trial any member of a Tribunal is  unable  to perform his functions, the Election Commission is to appoint another member, and thereupon the trial is to be  continued. This provision must apply to retirement or relinquishment by a  member,  even  before  the  hearing  commences,  and  the expression " during the course of the trial " must therefore include  the stages prior to the hearing.  Section 88  again provides that the trial is to be held at such places as  the Election  Commission  may  appoint.   The  trial  here  must necessarily  include the matters preliminary to the  hearing such as the settlement of issues, issuing directions and the like.   After  the petition is transferred to  the  Election Tribunal under s. 86,, various steps have to be taken before the stage can be set for hearing it.  The respondent has  to file his written statement ; issues have to be settled.   If ’trial’ for the purpose of s. 90(2) is to be interpreted  as meaning only the hearing, then what is the provision of  law under  which the Tribunal is to call for written  statements and settle issues ?  Section 90(4) enacts                             387 that  when  an election petition does not  comply  with  the provisions  of  s.  81, s. 83 or s. 117,  the  Tribunal  may dismiss  it.   But  if  it does  not  dismiss  it,  it  must necessarily  have the powers to order rectification  of  the defecte  arising  by  reason  of  non-compliance  with   the requirements of s. 81, s. 83 or section 117.  That not being



a  power expressly conferred on it under s. 92 can  only  be sought  under ’Is. 90(2), and resort to that section can  be had  only  if trial is understood as  including  proceedings prior to hearing.  Section 92 enacts that the Tribunal shall have  powers in respect of various matters which are  vested in  a  court under the Civil Procedure Code  when  trying  a suit,  and among the matters set out therein  are  discovery and  inspection,  enforcing  attendance  of  ’witnesses  and compelling the production of documents, which clearly do not form  part of the hearing but precede it.  In  our  opinion, the provisions of Chapter III read as a whole, clearly  show that  ’trial’  is  used as meaning  the  entire  proceedings before  the  Tribunal  from the time when  the  petition  is transferred to it under s. 86 until the pronouncement of the award. (2)The  second contention urged on behalf of the  appellants is  that if the provisions of the Civil Procedure  Code  are held  to  be applicable in their entirety to  the  trial  of election petitions, then there was no need to provide  under s.  92  that the Tribunal was to have the powers  of  courts under the Code of Civil Procedure in respect of the  matters mentioned therein, as those powers would pass to it under s. 90(2).  But this argument overlooks that the scope of s.  90 (2)  is in a material particular different from that  of  s. 92.   While  under  s. 90(2) the  provisions  of  the  Civil Procedure Code are applicable only subject to the provisions of  the Act and the rules made thereunder, there is no  such limitation as regards the powers conferred by s. 92. It  was obviously the intention of the legislature to put the powers of the Tribunal in respect of the matters mentioned in s. 92 as distinguished from the other provisions of the Code on  a higher  pedestal, and as observed in Sitaram v.  Yoqrajising (1), they are (1)  A.I.R. [1953] BOM. 293. 388 the irreducible minimum which the Tribunal is to possess. (3)  It  is  then argued that s. 92 confers  powers  on  the Tribunal  in  respect  of certain matters,  while  s.  90(2) applies  the  Civil  Procedure Code in  respect  of  matters relating  to procedure, that there is a distinction  between power  and  procedure, and that the  granting  of  amendment being  a  power  and not a matter of procedure,  it  can  be claimed only under s. 92 and not under a. 90(2).  We do  not see  any  antithesis  between procedure’  in  s.  90(2)  and ’powers’  under s. 92.  When the respondent applied  to  the Tribunal for amendment, he took a procedural step, and that, he was clearly entitled to do under s. 90(2).  The  question of  power  arises  only with reference to the  order  to  be passed  on the petition by the Tribunal.  Is it to  be  held that  the presentation of a petition is competent,  but  the passing of any order thereon is not?  We are of opinion that there is no substance in this contention either. (4)  The last contention is based on the provision in s.   90(2) that the procedure prescribed in the Code of Civil Procedure is  to  apply subject to the provisions of the Act  and  the Rules.   It is argued that s. 83(3) is a  special  provision relating  to amendments, -and that it must be  construed  as excluding  0.  VI,  r. 17.  The  result,  according  to  the appellants,  is  that if an amendment could not  be  ordered under s. 83(3), it could not be ordered under 0. VI, r.  17. This  contention appears to us to be wholly untenable.   The true  scope  of the limitation enacted in s.  90(2)  on  the application of the procedure under the Civil Procedure  Code is  that when the same subject-matter is covered both  by  a provision  of  the Act or the rules and also  of  the  Civil



Procedure  Code, and there is a conflict between  them,  the former  is  to  prevail over the  latter.   This  limitation cannot   operate,  when  the  subject-matter  of   the   two provisions  is not the same.  Section 83(3) relates only  to amendment  of particulars, and when the amendment sought  is one of particulars, that section will apply to the exclusion of any rule of the Civil Procedure Code which might conflict with  it, though it does not appear that there is  any  such rule.  But where the amendment 389 relatesnot to particulars but to other matters, that is a field  not  occupied  by s. 83(3), and 0.  VI,  r.  17  will apply.The fallacy in the argument of the appellants lies  in the  assumption that s. 83(3) is a comprehensive   enactment on the whole subject of amendment, which it clearly is  not. In  this view, there is no scope for the application of  the maxim,  expressio  unius  exclusio alterius,  on  which  the appellants rely.  It should be mentioned that the  provision in s. 83(2) for stating the particulars separately in a list attached  to  the  petition is one peculiar  to  the  Indian Statute,  and  the  legislature  might  have  considered  it desirable  ex  abundanti cautela to provide for a  power  of amendment  in  respect thereto.  To such  a  situation,  the maxim  quoted  above  has no  application.   In  Maxwell  on Interpretation  of Statutes, Tenth Edition,  pages  316-317, the position is thus stated : "   Provisions   sometimes  found  in   statutes,   enacting imperfectly  or  for particular cases only  that  which  was already and more widely the law, have occasionally furnished ground  for  the contention that an intention to  alter  the general  law was to be inferred from the partial or  limited enactment,  resting on the maxim expressio  unius,  exclusio alterius.   But  that maxim is inapplicable in  such  cases. The  only  inference  which  a  court  can  draw  from  such superfluous provisions (which generally find a place in Acts to  meet unfounded objections and idle doubts), is that  the legislature  was  either ignorant or unmindful of  the  real state  of the law, or that it acted under the  influence  of excessive caution." Vide  also Halsbury’s Laws of England,  Hailsham’s  Edition, Volume  31,  page  506, para 651.   We  are  accordingly  of opinion that the application of 0. VI, r. 17, Civil Procdure Code to the -proceedings before the Tribunal is not excluded by a. 83(3). Turning next to the authorities, the decision of this  Court in Jagan Nath v. Jaswant  Singh (1) goes far to conclude the question  in  favour  of the respondent.  In  that  case,  a petition  to  set  aside  an  election  was  filed   without impleading one of the candidates, Baijnath, (1)[1954] S.C.R. 892, 390 who had been nominated but had withdrawn -from the  contest. That  was  against s. 82 of the Act.   The  respondent  then applied  for an order dismissing the petition on the  ground that  it  could not go on in the absence of  Baijnath.   The Tribunal  held  on  this petition that  the  non-joinder  of Baijnath  was  not  fatal  to  the  maintainability  of  the petition, and passed an order directing him to be impleaded. This  order was challenged on the ground that there  was  no power in the Tribunal to order a new party to be  impleaded. But  this  Court  repelled this contention, and  held  on  a review of the provisions of the Act including s. 90(2)  that the  Tribunal  had the power to pass the order  in  question under 0. 1, rr. 9, 10 and 13.  This is direct authority  for the  position that trial for purposes of s.  90(2)  includes



the  stages  prior to the hearing of the petition,  and  the word  I procedure’ therein includes power to pass orders  in respect  of matters not enumerated in s. 92.  In Sitaram  v. Yograjsingh (1) it was held that ’Procedure’ in s. 90(2) and I  powers’  in s. 92 were interchangeable  terms,  that  the procedure  applicable  under s. 90(2) was  wider  than  what would be applicable to the hearing of a. suit, and that  the Tribunal had power in a proper case to order amendment of  a petition.  In Sheo Mahadeo Prasad v. Deva Sharan(2), it  was held  that  the application of 0. VI, r. 17  to  proceedings before  the  Tribunal was excluded by section 83(3)  of  the Act.  For the reasons already given, we are unable to  agree with  this  view.   We  are of  opinion  that  the  law  was correctly  laid  down in Sitaram v. Yograjsingh(1),  and  in agreement  with it, we hold that the Tribunal has  power  in appropriate cases to direct amendment of the petition under, O. VI, r. 17. It is next contended for the appellants that even if s.83(3) does not exclude the application of 0. VI, r. 17 to    the proceedings  before the Tribunal, the exercise of the  power under  that  rule  must, nevertheless,  be  subject  to  the conditions  prescribed  by  a. 81  for  presentation  of  an election petition, that one of those conditions was that  it should be presented within the (1) A.I.R. [1953] Bom. 293. (2) A.I.R. [1955] Patna 81. 391 time  allowed  therefor, and that accordingly  no  amendment should  be allowed which would have the effect of  defeating that  provision.   The decisions in Maude v.  Lowley(1)  and Birkbeck and others v. Bullard (1) are relied on in  support of this contention.  In Maude v. Lowley (1), the facts  were that  an  election  petition was  filed  alleging  that  the successful   candidate  had  employed  as  paid   canvassers residents  of  the  ward,  and that  the  election  was,  in consequence,  void.   Then  an  application  was  filed  for amending  the petition by alleging that residents  of  other wards were also similarly employed, and that was ordered  by Baron Pollock.  The correctness of this order was questioned on  the  ground  that on the date  of  the  application  for amendment  a  fresh petition on those allegations  would  be barred, and that therefore the Court had no jurisdiction  to pass the order which it did.  In upholding this  contention, Lord Coleridge C. J. observed that section 21(5) gave  power to  the  Court to amend the petition, that  that  power  was subject  to  the provisions of the Act, that  one  of  those provisions was s. 13(2), which prescribed- the period within which an election petition could be filed, that the power of amendment could be exercised only subject to this provision, and that accordingly an amendment which raised a new  charge should be rejected if a fresh petition on that charge  would be  barred on that date.  He also observed that  the  matter was  not  one of discretion but of jurisdiction.   This  was followed in Clark v. Wallond (3).  In Birbeck and others  v. Bullard  (2)  the application was to amend the  petition  by adding  a new charge, and it was held tha that could not  be done after the expiry -of the period of limitation fixed  in the  Act for filing an election petition, and  the  decision was put on the ground that the power to grant amendment  was " subject to the provisions of the Act." On  these  authorities, it is contended for  the  appellants that  even  if the Tribunal is held to possess  a  power  to order amendments generally under 0. VI, (1)  [1874] L.R. 9 C.P. 165.        (3) (1883)  52  L.J.Q.B. 321.



(2)  (1885-86) 2 Times Law Reports 273. 392 r.   17, an order under that Rule cannot be made when a  new ground  or  charge  is raised, if the  application  is  made beyond  the  period  of  limitation  prescribed  for  filing election  petitions.  The Tribunal sought to get  over  this difficulty by relying on the principle well established with reference  to  amendments under 0. VI, r. 17 that  the  fact that a suit on the claim sought to be raised would be barred on  the date of the application would be a material  element in  deciding whether it should be allowed or not  but  would not  affect  the jurisdiction of the court to  grant  it  in exceptional circumstances as laid down in Charan Das v. Amir Khan (1).  But this is to ignore the restriction imposed  by s.  90(2) that the procedure of the Court under the Code  of Civil  Procedure in which 0. VI, r. 17 is comprised,  is  to apply  subject to the provisions of the Act, and the  rules, and there being no power conferred on the Tribunal to extend the  period of limitation prescribed, an order of  amendment permitting a new ground to be raised beyond the time limited by s. 81 and r. 119 must contravene those provisions and is, in  consequence, beyond the ambit of authority conferred  by s. 90(2).  We are accordingly of opinion that the contention of the appellants on this point is well-founded, and must be accepted as correct. The  result of the foregoing discussion may thus  be  summed up: (1)Under  s.  83(3)  the  Tribunal  has  power  to   allow particulars in respect of illegal or corrupt practices to be amended, provided the petition itself specifies the  grounds or  charges,  and  this  power  extends  to  permitting  new instances to be given. (2)The  Tribunal  has power under 0. VI, r.  17  to  order amendment of a petition, but that power cannot be  exercised so as to permit new grounds or charges to be raised or to so alter  its  character  as  to make it  in  substance  a  new petition, if a fresh petition on those allegations will then be barred. We  have  now  to decide whether on  the  principles  stated above,  the order of amendment dated November 28, 1953,  was right and within the competence of (1)[1920] L.R. 47 I.A. 255.                             393 the Tribunal.  To decide that, we must examine whether  what the respondent sought to raise by way of amendment was  only particulars in respect of a charge laid in the petition,  or whether it was a new charge.  The paragraph in the  petition relevant to the present question is 7(c), and that has  been already  set  out in extenso.  Leaving out  the  allegations relating  to the meetings held at Kakori, what remain of  it is  only the allegation that " respondents I and 2 could  in furtherance   of  their  election  enlist  the  support   of Government servants." The word " could " can only mean  that the respondents were in a position to enlist the support  of Government  servants.   It does not amount  to  an  averment that, in fact, they so enlisted their support.  It is argued for  the respondent that the allegation in para 7(c) really -means  that  the  appellants had,  in  fact,  enlisted  the support  of Government servants, and that that amounts to  a charge  under  s.  123(8)  of  the  Act  of  procuring   the assistance of Government- servants for furtherance of  their election prospects.  Why then does the petition not state it in plain terms ? The difference between "could" and "did" is too elementary to be mistaken.  The respondent has in  other paragraphs   relating   to   other   charges   clearly   and



categorically  asserted  what the appellants  did  and  what their  agents  did.   And why was  a  different  phraseology adopted  in  para 7(c) 9 It is to be noted that  apart  from this allegation, the rest of the paragraph is taken up  with details of the two meetings at Kakori, and it winds up  with the following allegation: "  The  respondents  1 and 2 by  this  device  succeeded  in creating  an  impression  on the voters that  they  had  the support of the District officials." This suggests that the charge which the respondent sought to level  against the appellants was that they moved in  public so  closely with high dignitaries as to create in the  minds of  the  voters the impression that they  were  favoured  by them.   We are unable to read into the allegations  in  para 7(c)   as  originally  framed  any  clear  and   categorical statement of a charge under 394 s. 123(8), or indeed under any of the provisions of the Election law. The  respondent does not dispute that the language in  which the allegation in para 7(c) is couched does not import  that any  corrupt practice had, in fact, been committed,  but  he contends  that this defect is merely one of expression,  and that  the appellants had understood it correctly as  meaning commission  of corrupt practices by them, which is what  the respondent meant to assert.  It is no doubt true that plead- ings  should not be too strictly construed, and that  regard should  be  had to the substance of the matter and  not  the form.   Even  so, what, in substance, is  the  charge  which could  be gathered from a general and vague allegation  that the  appellants " could " enlist the support  of  Government officials  ?  It  should not be forgotten  that  charges  of corrupt practices are quasi-criminal in character, and  that the allegations relating thereto must be sufficiently  clear and precise to bring home the charges to the candidates; and judged  by  that standard, the allegation in  para  7(c)  is thoroughly worthless.  The contention of the respondent that the  appellants  understood the allegation as  meaning  that they  had committed corrupt practices, is not borne  out  by the  record.  In the application which the appellants  filed on  January  24,  1953, for trial of  certain  questions  as preliminary issues, they stated in para 7 as follows: "Para 7(c).  The allegation contained in this para is  vague and indefinite.  It nowhere alleges that the respondent nos. 1  and  2 obtained or procured or abetted, or  attempted  to obtain or procure the assistance of any government servants. No list given." And  again, in the objection filed by the appellants to  the application  of  the respondent for amendment,  they  stated that it was doubtful whether even the original allegation in para  7(c)  amounted to a major corrupt practice  within  s. 123(8)  of  the Act.  The Tribunal does not deal  with  this aspect of the matter and simply assumes that the petition as presented  did  raise a charge under s. 123(8).  We  are  of opinion                             395 that  this assumption is erroneous and that its  finding  is vitiated thereby. But even if we are to read " could " in para 7(c) as meaning " did ", it is difficult to extract out of it a charge under s.  123(8).   The  allegation  is  not  clear  whether   the Government servants were asked by the appellants to  support their candidature, or whether they were asked to assist them in furtherance of their election prospects, and there is  no allegation at all that the Government servants did, in fact,



assist   the   appellants  in  the   election.    On   these allegations,  it is difficult to hold that the  petition  in fact  raised  a charge under s. 123(8).  It is a  long  jump from  the  petition  as  originally  laid  to  the   present amendment,  wherein for the first time it is  asserted  that certain  Mukhias  no Mukhias are mentioned in  the  petition assisted  the  appellants in furtherance of  their  election prospects,  and that thereby the corrupt practice  mentioned in s. 123(8) had been committed.  The new matters introduced by  the  amendment so radically alter the character  of  the petition  as originally framed as to make it  practically  a new  petition,  and  it  was not within  the  power  of  the Tribunal to allow an amendment of that kind. Counsel  for the appellants also contended that even if  the Tribunal  had  the  power under 0. VI, r. 17  to  permit  an amendment  raising  a  new  charge, it  did  not  under  the circumstances  exercise a sound and judicial  discretion  in permitting the amendment in question.  There is considerable force  in this contention.  The election petition was  filed on  June 10, 1952, which was the last date allowed under  a. 81  and  r. 119.  It contained in para 7(c)  only  the  bare bones of a charge under a. 123(8), assuming that it could be spelt  out of it.  Nothing further is heard of this  charge, until  we come to December, 1952, when respondents 4  and  9 who  sailed with the petitioner, -filed statements  alleging that  the  appellants  had  obtained  the  assistance   from Government  servants  including Mukhias  in  furtherance  of their   election  prospects.   On  January  16,  1953,   the respondent herein filed a replication in which he sought  to weave the above 396 allegations into the fabric of his petition, but the  result was a mere patchwork.  It should be mentioned that there  is no provision of law under which a replication could be filed as a matter of right, nor was there an order of the Tribunal allowing  it.  On February 25, 1953, the  appellants  opened their arguments at the hearing of the preliminary issue, and thereafter,  with  a view to remedy the defects  which  must have been then pointed out, the respondent filed his present application for amendment.  Even that was defective, and had to  be  again amended.  And what is  remarkable  about  this application  is that no at tempt was made to explain why  it was  made after such long delay and why the new  allegations were not made in the original petition.  The position  taken up  by  the  respondents was that the  amendment  only  made express what was implicit in para 7(c).  The Tribunal was of opinion   that  notwithstanding  all  these  features,   the amendment  should be allowed as it was in the  interests  of the  public that purity of elections should  be  maintained. But  then,  public interests equally  demand  that  election disputes  should be determined with despatch.  That  is  the reason  why a special jurisdiction is created and  Tribunals are  constituted for the trial of election petitions.   Vide the  observations  of  Lord Simonds L.C.  in  Senanayake  v. Navaratne (1). In  the  present case, having regard  to  the  circumstances stated above, the order of amendment would be open to  grave criticism   even  if  it  had  been  made  in  an   ordinary litigation,  and in an election matter, it is  indefensible. The  strongest point in favour of the respondent is that  we should not in special appeal interfere with what is a matter of  discretion  with the Tribunal.  It is not  necessary  to pursue  this matter further, as we are of opinion  that  the order  of  amendment dated November 28, 1953,  is,  for  the reasons  already stated. beyond the powers of the  Tribunal,



and  therefore  must be set aside and the finding  based  on that amendment that the appellants had committed the corrupt practice mentioned in s. 123(8) of the Act must be reversed. In this view, it becomes unnecessary (1)  [1954] A.C. 640.                             397 to  deal with the further contention of the appellants  that there is no legal evidence in support of the finding of  the Tribunal  that  they  had obtained the  assistance  of  four Mukhias in furtherance of their election prospects. Then there is the question whether the first -appellant has, as held by the Tribunal, again by a majority, contravened s. 123(7)  of  the  Act.  The facts found are  that  one  Ganga Prasad  was engaged by the first appellant to prepare  three carbon copies of the Electoral Rolls and was paid Rs.  550/- at the rate of Re. 0-8-0 per hundred voters and likwise, one Viswanath Pande was engaged to enter the names of the voters in  printed  cards and was paid Rs. 275/- at Re.  0-4-0  per hundred cards.  Both these are undoubtedly expenses incurred in  connection  with the election and have,  in  fact,  been shown  by  the  first appellant in the  return  of  election expenses  against  column  K.  Now  the  contention  of  the respondent which has found favour with the Tribunal is  that both  Ganga Prasad and Viswanath Pande must be held to  have been  employed for payment in connection with the  election, and  as with their addition, the, number of persons  allowed to  be  employed under Schedule VI has  been  exceeded,  the corrupt practice mentioned in s. 123(7) of the Act has  been committed.  It is contended by the Solicitor-General that on the  facts found Ganga Prasad and Viswanath Pande cannot  be said  to have been employed by the first appellant,and  that the conclusion of the Tribunal to the contrary is based on a misconception of law.  Now’ whether a person is an  employee or  not  is a question of fact, and if there  had  been  any evidence  in support of it, this Court would  not  interfere with the finding in special appeal.  But the respondent,  on whom  the  burden lies of establishing contravention  of  r. 118, has adduced no evidence whatsoever, and all that is  on record  is what the first appellant deposed while he was  in the  box.  He merely stated that Ganga Prasad and  Viswanath Pande were asked to do the work on, contract basis.  That is wholly  insufficient to establish that there was a  contract of  employment of those persons by him.  It was  argued  for the respondent that there could be a contract of  employment in 398 respect of piece-work as of time-work, and that the evidence of  the first appellant was material on which  the  Tribunal could  come  to the conclusion to which it did.  It  may  be conceded that a contract of employment may be in respect  of either piece-work or time-work; but it does not follow  from the fact that the contract is for piece-work that it must be a  contract  of  employment.   There  is  in  law  a   well- established distinction between a contract for services, and a contract of service, and it was thus stated in Collins  v. Hertfordshire Central Council (1): In  the one case the master can order or require what is  to be  done  while in the other case he can not only  order  or require what is to be done but how it shall be done." This  Court had occasion to go into this  question  somewhat fully  in  Dharangadhara  Chemical Works Ltd.  v.  State  of Saurashtra  (2) , and it was there held that the  real  test for deciding whether the contract was one of employment  was to  find  out  whether the agreement was  for  the  personal labour  of the person engaged, and that if that was so,  the



contract  was one of employment, whether the work was  time- work or piece-work or whether the employee did the whole  of the  work himself or whether he obtained the  assistance  of other persons also for the work.  Therefore, before it could be held that Ganga Prasad and Viswanath Pande were  employed by  the first appellant, it must be shown that the  contract with them was that they should personally do the work,  with or  without  the  assistance of  other  persons.   But  such evidence  is  totally lacking, and the  finding,  therefore, that  they had been employed by the first appellant must  be set aside as based on no evidence. Neither  of  the  grounds  on  which  the  election  of  the appellants  has been declared void, could be supported.   We must  accordingly allow the appeal, set aside the  order  of the Tribunal and dismiss the election petition filed by  the respondent,  with costs of the appellants  throughout. Appeal allowed. Election petition dismissed. (1) [1947] K.B. 598, 615.       (2) [1957] S.C.R. 152. 399