Dr. A. Krishnaswamy vs V. Natesan and Others

Krishnaswami Nayudu, J.—This is a petition to revise the order of the learned Chief Judge of the Court of Small Causes ordering inspection

of the marked electoral roll, counterfoils of the ballot papers, unused ballot papers, tendered and challenged votes and the return of the polling

officers, to respondent 1 who was the petitioner in Election petition No. 1 of 1948 on the file of the Court of Small Causes, Madras.

Respondent 1 was the unsuccessful candidate in a municipal election, and he filed Election petition No. 1 of 1918 for declaring that the election

of respondent 1 (sic) who is the petitioner here who was the successful candidate for the 26th division, as invalid and for setting aside the election.

There was also a prayer that a fresh election be ordered. The ground on which he filed the election petition was, among others, that there was false

personation and the election has been materially affected by such false personation. During the pendency of the election petition, respondent 1 filed

C. M. P. No. 8960 of 1948 for directing that the documents referred to, viz., the marked electoral roll, counterfoils of the ballot papers, unused

ballot papers, tendered and challenged votes and the return of the polling officers be brought to Court by respondent 5 who is the Commissioner

of the Corporation of the Madras and that the parties thereto be granted inspection of the same. On that, notice was ordered returnable on 30th

November 1948. A consent memo was filed on 1st December 1948 which was signed by Messrs. John and Row, counsel for the Corporation of

Madras, and Mr. K. V. Rajagopalan, Advocate for respondent 1, i.e. the petitioner in the election petition. The consent memo states as follows :

Inspection of the documents mentioned in the application will be given at the Corporation office by some responsible officer of the Corporation of

Madras by breaking open the seals after previous notice to the parties and in their presence and after inspection to reseal the packets in the

parties'' presence. If the inspection lasts more than a day, the packets will be resealed at the close of each day and be broken open on the next day

likewise in the presence of parties till inspection is over.

It is contended on behalf of the petitioner that the order of inspection has been passed without notice to the petitioner who was the successful

candidate, and notice of the application for inspection of the documents referred to in the petition was necessary before an order for inspection

could be passed by the learned Judge. On this point it is clear that either the signature of the senior or junior counsel for the petitioner is not found

in the consent memo filed before the Court and in which an order was made, but the signatures of only the counsel for respondent 1 and the

Commissioner, respondent 5 are found. Even though the notice appears to have been ordered returnable on 30th November 1948, I find that

there has been no notice given to the petitioner. It is further argued that even if notice had been given to the petitioner or his counsel, he was not

heard, and a consent order was passed to which the parties were only respondent 1 and the Commissioner of the Corporation of Madras. On

similar facts Tadulingh Mudaliar v. Sakuntala Bai, C. R. P. no. 12 of 1949 : A. I. R. 1949 Mad. 835 was filed in High Court and it was heard by

Govinda Menon J., and after examining the law on the question the learned Judge held that in an application of this kind the maxim audi alteram

partem has to be applied and that no order should have been passed with-out hearing the opposite side. I am in entire agreement with the

observation of the learned Judge. Though, ordinarily, under the rules of Small Causes Court, i.e., Order 11, Rule 1, governing inspection, it would

be competent for the learned Judge to give inspection during the pendency of any suit to any party of such of the documents in possession of the

other party relating to any matter in question in the suit, the lower Court should have considered that in an election petition the powers of ordering

inspection must be exercised with some circumspection. It is necessary that before an order is made, the learned Judge should be satisfied that the

inspection of the documents was required bona fide for the purpose of the enquiry. Since great sanctity is attached to the secrecy of the ballot it is

not advisable to give a roving inspection of the ballot papers and other documents and thus violate the principle of secrecy of ballot. I would refer

to the observation of Denman J. in Stowe v. Jolliffe, (1874) 9 C. P. 446:48 L. J. C. P. 173 where the learned Judge observes that

the Court must be satisfied by evidence on oath that the inspection is reasonably and bona fide required for that purpose. The grounds alleged for

requiring it must be looked into.

In this case it does not appear that the Court applied its mind and considered whether in fact the inspection was required for the bona fide purpose

of proving the petitioner''s case, since the order that has been made was in terms of the consent memo filed by respondent 1 and the Commissioner

of the Corporation of Madras.

I therefore allow the revision petition and remand the application to the learned Chief Judge of the Small Causes, Madras, for fresh disposal,

after giving notice to the other parties including the petitioner. The petitioner will have his costs from respondent 1.