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Case No: FMA No. 144 of 1997

Judge: Md. Abdul Karim,

Court: High Court Division,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Mizanur Rahman,,

Citation: 52 DLR (200) 58

Case Year: 2000

Appellant: Sudhangshu Shekhar Haldar

Respondent: Moulana Delwar Hossain Saydee

Subject: Election Matter,

Delivery Date: 1998-6-25

Supreme Court of Bangladesh
High Court Division
(Civil Appellate Jurisdiction)

Present:
Md. Abdul Karim J
Amirul Kabir Chowdhury J

Sudhangshu Shekhar Haldar
……………..Appellant
Vs.
Moulana Delwar Hossain Saydee and others
..…………..Respondents

Judgment
June 25, 1998.

Representation of the People Order (PO 155 of 1972)
Articles 51 & 62
In view of the order of the Election Tribunal allowing the appellant’s petition in part, the preliminary objection raised against maintainability of his appeal is rejected.

Cases Referred To-
Pateshwari Din Vs. Mahant Sarju Das AIR 1938 Oudh 18; Kalipada Saha Vs. Nitya Nanda Saha, 5 DLR 285; Raja Run Bahadoor Singh Vs. Lachoo Koer 12 IA 23 (8 & 14).

Lawyers Involved:
Khandker Mahbubuddin Ahmed, with Md. Abdur Razzak, SM Emdadul Haque, Md. Mizanur Rahman, Advocates- For the Appellant.
Amir-ul-Islam with SS Halder, Probir Kumar Halder, Advocates— For the Respondents.

FMA No. 144 of 1997

JUDGMENT

Md. Abdul Karim J.

1. This application on behalf of respondent No.1 Moulana Delwar Hossain Saydee in First Miscellaneous Appeal No.144 of 1997 is for an order dismissing the appeal on the preliminary point of maintainability.

2. The facts of the case, in short, are that the election in constituency No.129, Pirojpur-1, took place on the day of the general election to Parliament on 12-6-1996 and in the said election both appellant Sudhangshu Shekhar Haldar and the respondent took part along with other candidates Respondent No.1 having been declared appellant Mr. Sudhangshu Shekhar Haldar filed an election petition before the District Judge and Election Tribunal, Pirojpur, and the Election Tribunal by the Judgment and order dated 19th May 1997, declared the election of respondent No.1 void with an order for fresh poll in Garghata Government Primary School polling centre and by the said order the tribunal modified the results of two centres. Aggrieved by this Judgment and order of the Election Tribunal, the appellant filed First Miscellaneous Appeal No.144 of 1997. There is another appeal being First Miscellaneous Appeal No.109 of 1997 preferred by respondent No.1 of the instant appeal, namely, Moulana Delwar Hossain Saydee, against the decision of the tribunal. Both the first miscellaneous appeals were taken up together for hearing and, in the midst of the hearing, the present application was moved on behalf of respondent No.1 Moulana Delwar Hossain Saydee in First Miscellaneous Appeal No.144 of 1997.

3. Mr. Khandakar Mahbubuddin Ahmed, learned Advocate appearing on behalf of respondent No.1, submits that there are some findings in the Judgment of the Election Tribunal which may be adverse to the appellant of First Miscellaneous Appeal No. 144 of 1997, but the decision given in the judgment is one, which is exactly what the appellant had prayed for, merely, for declaring the election of the returned candidate to be void. It is submitted that this being the position, the appellant in the above noted appeal had completed relief and there was nothing in the Judgment for him to be aggrieved of and, as such, he was not legally entitled to take any appeal against the decision of the Election Tribunal. Mr. Khandakar submits that the appeal preferred by the appellant is totally misconceived and incompetent and, as such, the same is liable to be dismissed. He further submits that when a preliminary point as to the maintainability of an appeal is raised, the appeal cannot be gone into on merit before disposal of the preliminary point. He, therefore, prays for deciding the question of maintainability of the appeal before hearing of the same on merit.

4. Mr. M Amir-ul Islam, learned Advocate appearing for the appellant, submits that the Representation of the People Order, 1972 (President’s Order 155 of 1972) is a special law providing for hearing of an appeal by a Division Bench of the High Court Division against any decision of the Election Tribunal for which any person may feel aggrieved, and that there is no provision in this special law for disposal of an appeal on a preliminary point like maintainability. He further submits that the decision of the Tribunal as a whole was not in favour of the appellant, which is apparent from the order of the Tribunal allowing the election petition in part. He submits that there was serious allegation in the body of the election petition regarding illegality in the conduct of poll in respect of several centres, which were not taken into consideration and properly decided by the tribunal and, as such, being aggrieved by the said decision, the petitioner, namely, the present appellant, has a right of appeal against the decision.

5. By the impugned Judgment and order, the Tribunal, in allowing the election petition in part, ordered fresh poll in Garghata Government Primary School polling centre after declaring the election as a whole void and the Tribunal modified the results of Bhairampur Government Primary School centre and Char Baleswar Government Primary School centre after excluding 18 ballot papers from the result of respondent No.1 for the former centre and 8 ballot papers from the latter centre. The order of the Tribunal is that the result of the fresh poll at Garghata Government Primary School should be taken into consideration with the modified results of Char Baleswar Government Primary School centre and Bhairampur Government Primary School centre, keeping the results of other centres intact and, after consolidating these results, election result is to be declared afresh.

Article 62 of Presidents Order 155 of 1972 reads as follows:

“(1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order-
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring the election as a whole to be void.
(2) Save as provided in clause (3) the decision of a Tribunal on an election petition shall be final.
(3) Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the High Court Division of the Supreme Court of Bangladesh and the decision of High Court Division of the Supreme Court of Bangladesh on such appeal shall be final. Every such appeal shall be heard by a division Bench of two judges of the High Court Division of the Supreme Court of Bangladesh.”

6. It appears that Election Tribunal gave the decision under sub-clause (b) of clause (1) of Article 62 of the President’s Order 155 of 1972.

7. Mr. Khandakar Mahbubuddin Ahmed, learned Advocate appearing for the respondent, submits that when an appeal is liable to be dismissed on a preliminary ground, the appellant cannot demand hearing of the appeal on merit. In this connection he has referred to the decision of a division bench reported in AIR 1916 Mad 473. The learned Advocate has not referred to any decision or authority on the question whether, if in any special statute there is no provision for disposal of the appeal on a preliminary point, the Court hearing the appeal can dismiss it on a preliminary point. As it appears President’s Order 155 of 1972 does not contain any provision for hearing or dismissal of an appeal on a preliminary point.

8. Mr. Abdur Razzaque, learned Advocate appearing with Mr. Khandakar Mahbubuddin Ahmed for the respondent, has referred to the decision in the case of Pateshwari Din Vs. Mahant Sarju Das AIR 1938 Oudh 18. In this case decided by a Single Bench it was held that where a decree in a previous suit is in favour of a person and gives him all the relief sought for by him, he has no right of appeal against the decree so as to enable him to contest any adverse finding against him in such a suit. Hence such an adverse finding cannot operate as res judicata as against him in a subsequent suit. The learned Advocate has argued that there is a great deal of difference between a decision and a finding made by a Court in the Judgment. If the decision in the suit is in favour of a party, he has no right of appeal against the decision so as to contest any adverse finding made by the Court in its Judgment. Any appeal against the decision is incompetent in the eye of law. Mr Abdur Razzaque, learned Advocate, has referred to another decision of this Court (Single Bench) in the case of Kalipada Saha Vs. Nitya Nanda Saha, 5 DLR 285. In this case it was held that a decision is not res judicata if the decree is not based on it, but is made in spite of it. This decision was given relying on a decision of the Privy Council in Raja Run Bahadoor Singh Vs. Mussumut Lachoo Koer 12 IA 23. Having given anxious consideration to this aspect of the matter, we are of the view that if the decision in a case is in favour of a party and gives him all the relief sought for by him, he has no right of appeal in spite of any adverse finding against him in the case.

9. Mr. Khandakar Mahbubuddin Ahmed submits that the decision given by the tribunal in the instant case is exactly what the appellant had prayed for, namely, for declaring the election of the returned candidate to be void. The appellant, he submits, having got complete relief by the decision, there is nothing in it for him to be aggrieved of and, as such, the appeal preferred by him against the decision of the Election Tribunal is incompetent and liable to be dismissed on the preliminary point of maintainability.

Article 51 contains provisions for preparing an election petition before the Election Tribunal. We may quote Article 51, which runs as follows:

“51. (1) Every election petition shall contain-
(a) a precise statement of the material fact on which the petitioner relies;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
(c) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations, namely-
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or
(c) that the election as a whole is void.”
In the election petition the petitioner, namely, the appellant before us, prayed for an order as follows:
“(a) that the election of the opposite party No. 5 declaring him to be elected is void.
(b) that further relief or reliefs may be granted to this petitioner to which he is found entitled.”

10. Mr. Khandakar Mahbubuddin Ahmed has submitted that the relief sought for by the petitioner in the election petition falls in sub-clause (a) of clause (2) of Article 51 of President’s Order 155 of 1972. Mr. Khandakar submits that accordingly, the petitioner was given the relief under sub-clause (b) of clause (1) of Article 62 and that was what he had prayed for in the election petition. He having not prayed for any relief under sub-clause (b) of clause (2) of Article 51, he got all relief he had prayed for and had no reason to be aggrieved by the decision of the tribunal.

11. Mr. Khandakar submits that the result of fresh poll at Garghata Government Primary School Centre is to be consolidated with the modified result of Bharirampur Government Primary School Centre and Char Baleswar Government Primary School Centre and existing result of 90 other polling centres for declaring the election result of the constituency afresh. This order of the Tribunal has declared the election of respondent No.1 Moulana Delwar Hossain Saydee void and he had to get stay order from this Court against the decision of the Tribunal pending disposal of the appeal. The learned Advocate submits that the appellant got all the relief he had prayed for in his election petition for declaring the election of opposite party No. 5 Moulana Delwar Hossain Saydee void and the petitioner having not sought for declaring him to be elected in terms of Article 51 (2) (b), he is not entitled to get any further relief in the election petition with the result that the present appeal is incompetent and liable to be dismissed as such.
12. Mr. Amir-ul Islam, learned Advocate appearing for the appellant, has argued that the Election Tribunal having ordered fresh poll only in one centre in spite of serious allegations of irregularities and illegalities in respect of many other centres, it cannot be said that the petitioner got all reliefs he had prayed for in the election petition. In this connection he has drawn our attention to the order of the Tribunal under which the result of two centres, namely, Bharirampur Government Primary School Centre and Char Baleswar Government Primary School Centre was modified. He said there was allegation of illegal obstruction of voters of the minority community from coming to the polling centres because of disturbance created by the supporters of respondent Mr. Moulana Delwar Hossain Saydee. There is allegation in the election petition that voters belonging to the minority community could not come to cast their votes at Baraibuniya High School polling centre and Maddha Baniyari Government School centre by reason of disruption of communication through taking off the bamboo bridge over river Balaswar and sinking of boats plying for carrying the voters across the river. Mr. Amir-ul-Islam submits that the election tribunal failed to consider all these serious allegations, which materially affected the result of the election and came to a wrong decision. He further submits that there is a serious allegation also against the Thana Nirbahi Officer, Pirojpur, about opening sealed packets of ballots papers, counting a few hundred ballot papers in favour of opposite party No. 5 Moulana Delwar Hossain Saydee and excluding a few hundred ballot papers from those cast in favour of the present appellant. The learned Advocate submits all these allegations were not properly considered by the Tribunal thereby materially affecting the election result as a whole. The learned Advocate has also mentioned that the tribunal allowed the election petition in part. Mr Amir-ul-Islam concludes by arguing that if these can be called merely adverse findings, the conclusion based on these findings led the Election Tribunal to reach a decision, which is not fully in favour of the appellant and being aggrieved, he filed the instant appeal.

13. We have heard at length the arguments of the learned Advocates of both sides, perused the Judgment and order of the Tribunal and all other relevant papers, though we are not in a position to make any observation on the merit of the appeal.

14. In view of the order of Tribunal allowing the election petition in part, we are of the view that the decision of the Tribunal does not seem to be fully in favour of the appellant. In this view of the matter, it is difficult to hold that First Miscellaneous Appeal No.144 of 1997 is not competent. The preliminary objection raised in the present application is rejected. These two appeals may proceed according to law. Whatever observations we have made in the body of this order, have been made solely for disposal of the application only.

Mr. Abdur Razzaque, learned Advocate, prays for adjournment of ten days for hearing of the appeals. The prayer is allowed.

Ed.

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