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PETITIONER: THAMMANNA

       Vs.

RESPONDENT: K. VEERA REDDY & ORS.

DATE OF JUDGMENT23/07/1980

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. SARKARIA, RANJIT SINGH

CITATION:  1981 AIR  116            1981 SCR  (1)  73

ACT:      "Person aggrieved"-Defeated  candidate made  a proforma party respondent  in an election petition-He neither files a written statement  nor participates  actively in proceedings before the  High Court-Whether  he is  an  aggrieved  person entitled to  appeal against  the Order  of the  High  Court- Status  of  an  election  petitioner-Representation  of  the People Act,  1951, Sections  98, 99,  108 to  110, 116A read with Section 87(1) of the Civil Procedure Code.

HEADNOTE:      One V. Krishna Reddy filed an election petition against Veera Reddy,  respondent No.  1, a returned candidate in the elections held  for the  Andhra Pradesh Legislative Assembly in February,  1978 on the ground that the returned candidate was disqualified to be chosen to fill the post under Section 9A of  the Representation of People Act, 1951 inasmuch as he has subsisting  contracts  with  the  Government  of  Andhra Pradesh. The  appellant, Thammarna was impleaded as original respondent No.  5 though he is not a necessary party. He did not file  any written  statement. Neither  did he  lead  any evidence nor  did he cross-examine the witnesses produced by respondent No.  1 and  the election-petitioner.  In fact, he did not  even participate  in the  arguments before the High Court. In the appeal filed by Thammanna against the Judgment dated April  24, 1979  of the  High Court  of Andhra Pradesh dismissing the  election petition  filed by Krishna Reddy, a preliminary objection was raised as to whether the appellant had the locus standi to maintain the appeal.      Dismissing the appeal, the Court, ^      HELD: (1)  The appellant  cannot, by  any reckoning, be said to  be a ’person aggrieved’ by the decision of the High Court, dismissing the Election Petition. [84C]           (2) Before  a person  is entitled  to maintain  an      appeal under  Section 116C of the Representation of the      People Act, 1951 which is analogous to Section 96(1) of      the Civil  Procedure  Code,  all  the  following  three      conditions must be satisfied:           (1)   that the  subject-matter of  the appeal is a                conclusive determination by the High Court of                the rights  with regard  to all or any of the                matters in  controversy, between  the parties

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              in the election petition.           (2)   that the person seeking to appeal has been a                party in the election petition, and           (3)   that he  is a  "person aggrieved", that is a                party who  has been adversely affected by the                determination. In the present case, these conditions, particularly Nos. (1) and (3) have not been fulfilled. [79B-D] 74      (3) Just  as the  term "decree" in Section 96(1) of the Civil   Procedure   Code   means   an   adjudication   which "conclusively  determines  all  or  any  of  the  matter  in controversy in  the suit",  the expression "any final order" as used  in Section 116C of the Representation of the People Act contemplates a conclusive determination of all or any of the matters  in controversy in the election petition between the parties. [78F-G]      (4) The  appellant was  not a  necessary  party  to  be impleaded as  there was  no allegations  or  claims  in  the election petition  which would  attract section  82  of  the Representation of the People Act. In this case, the question of the Court joining him as a party respondent under Section 86(4) of  the Act  also did  not arise,  as he was impleaded before the  High Court as respondent No. 5 though it was not obligatory for  the Election-Petitioner  to do  so. Even so, respondent No.  5 did  not join  the controversy. He neither joined issue with the contesting respondent No. 1 nor did he do anything tangible to show that he had made a common cause with the  Election-Petitioner against  respondent No.  1. In fact,  the   only  parties   between  whom  the  matters  in controversy, were at issue, were the Election-Petitioner and Respondent No. 1. [79F-H]      (5) Although  the meaning  of  the  expression  "person aggrieved" may  vary according to the context of the statute and the  facts of the case, nevertheless, normally a ’person aggrieved’ must be a man who has suffered a legal grievance, a man  against whom a decision has been pronounced which has wrongfully deprived  him of  something or wrongfully refused him  something,   or  wrongfully   affected  his   title  to something. [80A-B]      Bar Council  of Maharashtra  v. M. V. Dabholkar, [1975] 2.S.C.C. 703  and J.  N. Desai  v. Roshan  Kumar A.I.R. 1976 S.C. 576 at p. 534 referred to.      (6)  The   principle  that   election  petition   is  a representative  action  on  behalf  of  the  whole  body  of electors in  the constituency has a very limited application to the  extent it  has been  incorporated in Sections 109 to 116  of  the  Representation  of  the  People  Act  and  its application cannot  be extended  to appeals  under the  Act. Firstly, these  provisions are  to be  found in  Chapter IV, under  the   main  caption:  ’WITHDRAWAL  AND  ABATEMENT  OF ELECTION PETITIONS’. Then, the provisions of these sections, also repeatedly  refer to  the withdrawal  or  abatement  of ’election-petitions’  and   also  to  procedure  in  respect thereof before  the ’High  Court’. The provision relating to Appeals in  Sections 116A, 116B and 116C, have been included separately, in  Chapter ’IV-A’, captioned "APPEALS". [81E-G, 83G-H, 84A]      Secondly, Section  116C, enjoins upon the Supreme Court to hear  and  determine  every  appeal  under  this  Act  in accordance  with   the  provisions  of  the  Code  of  Civil Procedure and  the Rules  of the  Court. No  doubt this  is, "subject to  the provisions of the Act and the rules if any, made thereunder".  But  this  clause  only  means  that  the provisions of the Code and the Rules of the Court in hearing

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an appeal  to this  Court will  apply except  to the  extent their  application   has  been   excluded  expressly  or  by necessary implication  by any provision of the Act. There is no provision  in Chapter  IV-A  of  the  Act,  analogous  to Sections 109 to 116 of the Act, which curtails, restricts or fetters an  appellants’ right  to withdraw an appeal. Nor is there any  such provision  in the  Code or the Rules of this Court which does so. If the intention of the Legislature was that the provision of Sections 109 to 116 which apply to the withdrawal of  election petition,  should  also  govern  the withdrawal of  appeals, there was no difficulty in inserting similar provisions  in Section  116C or elsewhere in Chapter IV-A. [81G-H, 82A-C] 75      Bijayananda Patnaik  v. Satrughna Sahu, [1964] 2 S.C.R. 538 at p. 545, followed.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1950 of 1979      From the  Judgment and  Order dated  24-4-1979  of  the Andhra Pradesh High Court in Election Petition No. 8/78.      Govindan Nair and A. Subba Rao for the Appellant.      P.  P.   Rao,  T.   Ramachandran,   K.   Ramkumar   and Venkataramani for the Respondent.      The Judgment of the Court was delivered by      KAILASAM, J.  This appeal by Shri Thammanna is directed against a  judgment, dated  April 24, 1979 of the High Court of Andhra  Pradesh, whereby  the election  petition filed by Shri V.  Krishna Reddy,  respondent 7  herein,  against  the returned  candidate,  Shri  K.  Veera  Reddy  (Respondent  1 herein) was dismissed. The material facts are these:      In  the   elections  held   for  the   Andhra   Pradesh Legislative Assembly  in February,  1978 respondents 1 to 4, 6,  7   and  the   appellant  filed  their  nominations  for Amarchinta Assembly  Constituency.  Polling  took  place  on February 25, 1978 and Shri K. Veera Reddy, respondent 1, was declared elected  on February  27, 1978.  He  secured  34727 votes while  his nearest  rival, respondent  2,  got  29,419 votes. The appellant obtained 822 votes only.      Shri V.  Krishna Reddy,  (Respondent 7 herein), being a voter  for   198   Amarchinta   Assembly   Constituency   in Mahabubnagar District filed an election petition in the High Court to  get the  election of the first respondent declared void on the ground that on the date of filing the nomination paper  as  well  as  on  the  date  of  the  election,  this respondent had  subsisting contracts  with the Government of Andhra Pradesh  and as  such, he was under Section 9A of the Representation of the People Act, 1950 (hereinafter referred to as  the Act)  disqualified to be chosen to fill the seat. All the  candidates who  had filed  their nominations,  were joined  in   the  election   petition  as  respondents.  The appellant  was  impleaded  as  original  respondent  5.  The election petition  was contested  by respondent 1, (K. Veera Reddy) only.  The appellant (i.e. original Respondent 5) did not  file  any  written  statement.  He  did  not  lead  any evidence, nor did he cross-examine the witnesses produced by respondent  1   or  the   Election-Petitioner.  He  did  not participate even in the arguments.      A preliminary  objection has been raised by the learned counsel  for   respondent  1.  It  is  submitted  that  Shri Thammanna is  not competent to maintain this appeal, because he does not fulfil the character

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76 of a  "person aggrieved"  by the judgment of the High Court. It is emphasised that it was not necessary for the election- petitioner to join Shri Thammanna as a respondent because no relief was  claimed against  him; that  he was  impleaded as respondent 5  only as  a matter  of form  that  he  did  not participate in  the proceedings  before the  High Court; nor joined issue  with Respondent  1. It  is  pointed  out  that according to the judgment of the High Court, the contest was only between the Election-Petitioner and Respondent 1, while the original  Respondents 2  to 7, including Thammanna, were proceeded against  ex-parte. In short, the objection is that since the  appellant  could  not  be  said  to  be  a  party adversely affected by the judgment of the High Court, he has no locus standi to prefer this appeal.      In reply,  Shri Govindan  Nair, learned counsel for the appellant  submits  that  Shri  Thammanna  was  not  a  mere proforma respondent  but was  a person  who was  entitled to apply and  join as  a party  under Section  86(4) of the Act within fourteen  days from  the date  of commencement of the trial and  subject to  any order  as to  security for costs. Such a  person is  entitled under  the law  by virtue of his status as  a party  respondent to file an appeal against the decision of  the High  Court, if  he feels  aggrieved by the same. The  very fact  that the  original respondent  5,  has filed this appeal shows that he is a person aggrieved by the decision  of   the  High  Court,  dismissing  the  Election- Petition. It  is maintained  that the  mere  fact  that  the appellant did  not file any written statement or participate actively in  proceedings before  the High Court, or that the Election-Petitioner has not joined him as a co-appellant, is not  sufficient   to  deny  him  the  status  of  a  "person aggrieved". It  is argued  that in an election-petition, the petitioner  is   not  the   dominus  litis  but  acts  as  a representative  of   the  whole  body  of  electors  in  the constituency, that  is why  an election petitioner cannot at his sweet-will  abandon the  election petition  or  withdraw from it without complying with the procedure prescribed, and if he  does so,  in view of sections 109 and 110 of the Act, the Court  can allow another voter or respondent to continue the petition.  According to  the counsel, since an appeal is only a  re-hearing of the original petition any party to the original proceedings  who feels  aggrieved, is  entitled, in accordance with  the principle  underlying Sections  108 and 109 of  the Act,  to file  an appeal,  even if  the original Election-Petitioner neglects or abstains from doing so.      Shri Nair  further submits  that  the  High  Court  has wrongly stated that the appellant (being original respondent 5) was  also proceeded  against ex-parte; that, in fact, the appellant was present in the High Court on most of the dates of hearing, although he remained quiescent. 77      In the  alternative, it  is submitted  that  if  it  is assumed that the appellant was proceeded against ex-parte in the High  Court, the  final determination  in  the  impugned judgment will  be deemed  to be in the nature of an ex-parte decree against  him.  In  that  view  of  the  matter  also, according to  the learned  counsel, the  appellant  has  the necessary locus  to maintain  this appeal,  against that ex- parte determination. In support of his contention, Shri Nair has referred  to K.  K. Kamaraja  Nadar v.  Kunju Thevan and Ors(1), Inamati  Mallappa Basappa v. Desai Basavaraj Ayyappa & Ors.(2),  A. Sreenivasan  v. Election  Tribunal, Madras(3) and Adi Pherozshah Gandhi v. H. M. Seervai, Advocate-General of Maharashtra, Bombay.(4)

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    Before dealing  with the  contentions advanced  on this preliminary point,  let us  have  a  look  at  the  relevant provisions of  the Act  and the  Code  of  Civil  Procedure. Section 87(1)  of the  Act lays  down that  every  election- petition shall  be tried by the High Court, as nearly as may be, in  accordance with  the procedure  applicable under the Code of  Civil Procedure,  1908 to  the trial  of suits.  In other words  the provision  of the  Code of  Civil Procedure apply to  the trial of an election-petition only where there is  no  express  provision  in  the  Act  and  there  is  no inconsistency  with   the  Act.  Section  98  indicates  the categories of  orders which  the High  Court may make at the conclusion of  the trial  of an  election-petition. Such  an order may be an order-      "(a) dismissing the election petition, or       (b)  declaring the  election of  all  or  any  of  the           returned candidates to be void; or       (c)  declaring the  election of  all  or  any  of  the           returned candidates  to be void and the petitioner           or any other candidate to have been duly elected."      Section 99  requires that  the High  Court shall at the time of  making an  order under Section 98 in the case where any charge  of corrupt practice having been committed at the election is  proved, make  a further order naming the person or persons  guilty of  the corrupt  practice and also paying costs.      Section 116A runs thus:           "Notwithstanding anything  contained in  any other      law for the time being in force, an appeal shall lie to      the Supreme Court 78      on any  question (whether  of law  or fact)  from every      order made  by a High Court under Section 96 or Section      99."      Sub-section (2)  prescribes a  period  of  thirty  days limitation within which such an appeal is to be preferred.      In this context Section 116C may also be seen. It reads as follows:           "116C(1)-Subject to the provisions of this Act and      of the  rules, if  any, made  thereunder, every  appeal      shall be  heard and  determined by the Supreme Court as      nearly as  may be  in  accordance  with  the  procedure      applicable to  the  hearing  and  determination  of  an      appeal from  any final  order passed by a High Court in      the exercise  of its  original civil  jurisdiction; and      all the provisions of the Code of Civil Procedure, 1908      and the  Rules of the Court (including provisions as to      the furnishing  of security  and the  execution of  any      order of  the Court)  shall, so far as may be, apply in      relation to such appeal."      It may  be seen  that although  Section 116A  confers a right of appeal from an "order" made under Section 96 or 99, and Section  116C from  "any final order" passed by the High Court in  proceedings in  an election-petition,  neither  of these two  sections mentions  or catalogues  the  person  or persons who  have a  right of  appeal against  such  orders. Barring the  exceptional provision  in Section  116A,  which marks a  departure from the Code of Civil Procedure, Section 116C is substantially analogous to Section 96(1) of the Code of Civil Procedure, 1898 which provide "Save where otherwise expressly provided  in the body of this Code or by any other law for  the time  being in  force, an appeal shall lie from every  decree   passed  by  any  court  exercising  original jurisdiction to  the Court  authorized..." Just  as the term "decree" in  Section 96(1) of the Code means an adjudication

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which "conclusively  determines all or any of the matters in controversy in  the suit",  the expression "any final order" as used in Section 116C of the Act contemplates a conclusive determination of all or any of the matters in controversy in the election-petition between the parties.      Clauses (a),  (b) and (c) of Section 98 illustrate such "final orders" which have been made appealable under Section 116C of the Act. In the instant case, the order sought to be impeached in  this appeal  is of  the category  mentioned in clause (a)  of Section  98 of  the Act. Section 98 also does not specifically  mention as  to who  can appeal against the final orders mentioned therein.      Section 116C  of  the  Act  makes  the  Code  of  Civil Procedure applicable  to the  hearing and  determination  of appeals  filed  under  the  Act.  Since  the  substance  and principle embodied in Section 96(1) of 79 the Code  is not  inconsistent with  anything in the Act, we may legitimately  look for  guidance to  Section 96  (1) and other provisions of the Code and also the general principles which govern  the right of appeal thereunder. This being the position, the  basic conditions  and postulates which govern the right  of appeal  under Section  96(1) of  the Code will apply to an appeal under Section 116C of the Act, also. As a general proposition, therefore, it may safely be stated that before a  person is  entitled to  maintain an  appeal  under Section 116C,  all the  conditions mentioned  below, must be satisfied:      (1)   that  the  subject-matter  of  the  appeal  is  a           conclusive determination  by the High Court of the           rights with regard to all or any of the matters in           controversy, between  the parties in the election-           petition,      (2)  that the person seeking to appeal has been a party           in the election-petition, and      (3)   that he  is a "person aggrieved", that is a party           who   has   been   adversely   affected   by   the           determination. In the present case, these conditions, particularly Nos. (1) and (3),  have not been fulfilled. Before the High Court the appellant did  not, at  any stage,  join the contest. He did not file  any written  statement or  affidavit. He  did  not engage any  counsel. He  did not cross-examine the witnesses produced by  the  Election  Petitioner  and  the  contesting respondent 1.  He did  not appear in the witness-box. He did not address any arguments. In short, he did nothing tangible to participate in the proceedings before the High Court.      It was  not obligatory  for the  Election-Petitioner to join  the   appellant  as   a  respondent.   There  were  no allegations or  claims in  the election-petition which would attract Section  82 of the Act. From that point of view, the appellant was  not a  necessary party  to be  impleaded.  Of course, if  the appellant had made an application within the time prescribed,  in compliance  with Section  86(4) of  the Act, the  Court would  have been  bound to  join  him  as  a respondent. But  the question  of Section 86 (4) coming into play never  arose as  the  Election-Petitioner  had  already impleaded the  appellant as  Respondent 5  in the  election- petition.  Even   so,  Respondent   5  did   not  join   the controversy. He  neither joined  issue with  the  contesting respondent 1,  nor did  he do anything tangible to show that he had  made a  common cause  with  the  Election-Petitioner against Respondent 1. In fact, the only parties between whom the matters in controversy were at issue, were the Election- Petitioner  and   Respondent  1.   The  other   respondents,

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including the  appellant, did  not participate  or side with either contestant in that controversy. 80      Although  the   meaning  of   the  expression   "person aggrieved" may  vary according to the context of the statute and the facts of the case, nevertheless, normally "a ’person aggrieved’ must be a man who has suffered a legal grievance, a man  against whom a decision has been pronounced which has wrongfully deprived  him of  something or wrongfully refused him  something   or  wrongfully   affected  his   title   to something." (As  Per James  L. J. in Re Sidebothem (1880) 14 Ch.D. 458)  referred to  by this  Court in  Bar  Council  of Maharashtra v.  M.V. Dabholkar(1)  and J. N. Desai v. Roshan Kumar.(2)      In the  face of  the stark  facts of the case, detailed above, it  is not  possible to  say that  the appellant  was aggrieved or  prejudicially affected  by the decision of the High Court, dismissing the election-petition.      We are further unable to accept the wide argument, that since  an   election-petition  is   in  the   nature  of   a representative  action  on  behalf  of  the  whole  body  of electors in  the constituency,  on neglect or failure of the election-petitioner to  file an  appeal against the order of dismissal  of  his  election-petition,  any  other  elector, particularly who  is a  respondent in the election-petition, can, in  view of Sections 109/110 of the Act, be substituted for him for the purpose of filing and continuing the appeal. It is  true that  an election-petition  once filed cannot be abandoned or  withdrawn by the petitioner at his sweet-will. Section 109 provides:           "(1) An election-petition may be withdrawn only by      leave of the High Court.           (2) Where  an application  for withdrawal  is made      under sub-section  (1) notice thereof fixing a date for      the hearing  of the  application shall  be given to all      other parties to the petition and shall be published in      the Official Gazette."      Section 110 provides the procedure for withdrawal of an election-petition. Its  sub-section (2)  mandates  that  "no application for  withdrawal shall  be  granted  if,  in  the opinion of the High Court, such application has been induced by any  bargain or  consideration  which  ought  not  to  be allowed". Sub-section  (3) lays down that if the application for withdrawal  is granted,  the petitioner shall be ordered to pay  the whole  or part  of the  costs  incurred  by  the respondent. It  further requires  that notice  of withdrawal shall be  published in  the Official  Gazette. Clause (c) of Sub-section (3) is material. It provides that any person who might himself have been a petitioner, may within 81 fourteen days  of such  publication, apply to be substituted as petitioner  in place  of the  party withdrawing,  and  on compliance with  the conditions  as to  security,  shall  be entitled to be substituted and continue the proceedings upon such terms  as the  High Court  may deem  fit.  Section  111 provides for  report of  the withdrawal by the High Court to the  Election   Commission.  Section   112(1)  provides  for abatement  of   election-petition  on   death  of  the  sole petitioner. Sub-section  (2) requires  the fact of abatement to be  published. Sub-section  (3) entitles  any person  who might himself  have  been  a  petitioner  to  apply  and  be substituted  in  place  of  the  deceased  to  continue  the proceeding upon  such terms as the High Court may think fit. Section 116  makes a  similar provision  on the  death of  a respondent.

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    As pointed  out in  Bijayananda  Patnaik  v.  Satrughna Sahu(1), the  principle behind  these provisions is that "an election-petition is  not a matter in which the only persons interested are  candidates who  strove against each other at the elections.  The  public  of  the  constituency  also  is substantially  interested  in  it,  as  an  election  is  an essential part  of  the  democratic  process.  That  is  why provision is  made in  election law circumscribing the right of the  parties thereto to withdraw. Another reason for such provision is that the citizen’s at large have an interest in seeing  and   they  are  justified  in  insisting  that  all elections are  fair and  free and not vitiated by corrupt or illegal  practices.  That  is  why  provision  is  made  for substituting any  elector who  might have filed the petition in order to preserve the purity of elections."      But it  is equally clear from the language, setting and scheme of the provision in Sections 109 to 116, that they do not, either, in terms, or, in principle, apply to appeals or the procedure  to be  followed at the appellate stage before the Supreme Court.      Firstly, these  provisions are  to be  found in Chapter IV, under  the main  caption :  ‘WITHDRAWAL AND ABATEMENT OF ELECTION PETITIONS’. Then, the provisions of these sections, also, repeatedly  refer to  the withdrawal  or abatement  of ‘election-petitions’  and   also  to  procedure  in  respect thereof before  the ‘High  Court’. The provision relating to Appeals in  Sections 116A, 116B and 116C, have been included separately, in Chapter ‘IV-A’, captioned "APPEALS".      Secondly, Section  116C, as  already  noticed,  enjoins upon the  Supreme Court  to hear  and determine every appeal under this Act in accordance with the provisions of the Code of Civil  Procedure and  the Rules  of the  Court. No doubt, this is,  "subject to the provisions of the Act the rules if any, made thereunder". But this clause 82 only means  that the provisions of the Code and the Rules of the Court  in hearing  an appeal  to this  Court will  apply except to  the extent  their application  has been  excluded expressly or  by necessary  implication by  any provision of the Act.  There is  no provision in Chapter IV-A of the Act, analogous to Sections 109 to 116 of the Act, which curtails, restricts or  fetters an  appellant’s right  to withdraw  an appeal. Nor  is there  any such provision in the Code or the Rules of  this Court  which does so. If the intention of the Legislature was  that the  provision of  Sections 109 to 116 which apply  to the  withdrawal of election-petitions should also  govern   the  withdrawal  of  appeals,  there  was  no difficulty in  inserting similar  provisions in Section 116C or elsewhere in Chapter IV-A.      In this  view we  are fortified by the decision of this Court in Bijayananda Patnaik’s case (ibid). In that case the provisions of Sections 116-A, 109 to 116 of the Act, as they stood  before   the  Amendment   of  1966,   came   up   for consideration. The  facts were that one S filed an election- petition against  the appellant  B  who  had  been  declared elected to the State Legislative Assembly. On the appellant, B’s application,  the Tribunal  dismissed the petition under Section 90(3),  for non-compliance  with the  provisions  of Section 82  of the Act. S went in appeal under Section 116-A to the High Court. Subsequently, S applied for withdrawal of the appeal  but the High Court refused to permit withdrawal, holding that  it had  to be  guided  by  the  principles  of Sections  109   and  110  of  the  Act  in  considering  the application for withdrawal.      In appeal  by special leave, this Court held that S had

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an absolute  right to withdraw the appeal and the High Court was bound  to  grant  him  permission  to  do  so.  In  this connection, the observations made by Wanchoo, J. (as he then was), speaking for the Court, at page 547 of the Report, are apposite and may be extracted :           "When  sub-section   (2)  says  that  the  powers,      jurisdiction and authority of the High Court is subject      to the  provisions  of  the  Act,  it  means  that  the      provision must  be an  express provision  in the Act or      such as arises by necessary implication from an express      provision.........There   is    however,   no   express      provision in  Chap. IV-A  dealing with  appeals,  which      deals with  the question of withdrawal of appeals under      that Chapter.  Nor do  we think  that ss.  109 and  110      necessarily  imply   that  an  appeal  also  cannot  be      withdrawn as  a matter  of right,  unless the procedure      laid down in those sections is followed. One reason for      this view  may at  once be  stated. The losing party is      not bound  to file an appeal and if he does not, nobody      else has the right to do so. The 83      object apparently  is that  the election-petition filed      should, if  any voter so desires, be heard and decided.      The sections  dealing with substitution on death of the      petitioner lead  to that  view : see ss. 112-115. There      is no  such provision  for appeals. It seems to us that      if Parliament  intended that  the provisions of ss. 109      and  110   which  deal  with  withdrawal  of  election-      petitions  before   a  tribunal  shall  also  apply  to      withdrawal of appeals before the High Court under Chap.      IV-A an  express provision  could have been easily made      to that  effect  in  s.  116-A  by  adding  a  suitable      provision in the section that the provisions of ss. 109      and 110 would apply to withdrawal of appeals before the      High Court  as they  apply to  withdrawal of  election-      petitions before the tribunal. In the absence of such a      provision in  Chap. IV-A, we do not think that the High      Court was  right in importing the principles of ss. 109      and 110  in the  matter of withdrawal of appeals before      the High  Court. So  far therefore  as the  question of      withdrawal of  appeals  before  the  High  Court  under      Chapter IV-A is concerned, it seems to us that the High      Court has  the same  powers, jurisdiction and authority      in the  matter of  withdrawal as  it would  have in the      matter of  withdrawal of  an appeal  from  an  original      decree passed  by a civil court within the local limits      of  its   civil  appellate   jurisdiction  without  any      limitation on  such powers  because of ss. 109 and 110.      The High  Court thus  has the same powers, jurisdiction      and authority  and has  to follow the same procedure in      the matter  of withdrawal  of appeals under s. 116-A as      in the  matter of  an appeal  from an  original  decree      before it,  and there  is no  warrant for importing any      limitation in  the matter on the analogy of ss. 109 and      110  of   the  Act,  which  expressly  deal  only  with      election-petitions and  not with  appeals under s. 116-      A."      On the  above reasoning,  it was  further held that the provisions regarding withdrawal applicable to ordinary Civil Appeals before  the High  Court  are  applicable,  also,  to appeals under Section 116-A. Under Order XXIII, Rule 1(1) of the code  of Civil  Procedure, an appellant has the right to withdraw his  appeal unconditionally,  and if  he is to make such application, the High Court has to grant it.      If an  appellant, who  is  an  aggrieved  person  under

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Section 116-C  of the  Act, has  got a  right to withdraw or abandon his appeal unconditionally, a fortiori, he has every right not  to file  an appeal  against the  dismissal of his Election-Petition, much  less has  any other  respondent who never joined  the contest  in the Election-Petition, a right to file  an appeal if the aggrieved party does not do so. In other words,  the principle  that an  Election-Petition is a representative  action  on  behalf  of  the  whole  body  of electors in the constituency, has a very 84 limited application  to the  extent it has been incorporated in Sections  109 to  116 of  the Act,  and  its  application cannot be extended to appeals under the Act.      In the instant case, the appellant or any other elector did not  make any  application or  complaint at the trial of the Election-Petition  in the High Court, that the election- petitioner has  abandoned the prosecution of the petition or withdrawn from  it and that the applicant be substituted for the election-petitioner  to continue  the  proceeding  under Section 110(3)  (c) of the Act. It will bear repetition that the appellant took no interest, whatever, in the controversy in the  Election Petition  which was  confined only  to  the election-petitioner and  respondent 1.  Conditions 1  and 3, the satisfaction  of which is necessary to give locus standi to a  person to file an appeal under Section 116-C, have not been fulfilled in the instant case. The appellant cannot, by any reckoning,  be said  to be  a ‘person  aggrieved’ by the decision  of   the  High  Court,  dismissing  the  Election- petition.      We, therefore,  allow this preliminary objection and on that ground dismiss this appeal with costs. S. R.                                      Appeal dismissed. 85