TMI Blog1957 (10) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Election Commission. The case was listed for 10-9-1957 for hearing and was dismissed at 12-10 P.M. in default of the presence of the present respondent No. 1 or his counsel. It appears that an application for restoration supported by an affidavit was made by the counsel for respondent No. 1 on the same day at 12-30 P. M. In the affidavit it was stated by Shri B. R. Nahata, counsel for respondent No. 1, that respondent No. 1 having lost his mother-in-law asked the counsel to attend the hearing at Ujjain, that Shri Nahata left Mandsaur and reached Badnawar, when the car in which he was travelling started to give trouble, and that ten miles after Barnagar the car stopped at a river and the progress was delayed. The counsel therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having gained a position in which the election petition had been dismissed an attempt was made to keep the order going but it failed. 4. We now come to the merits of the application which has been made before us. It is contended that under the Representation of the People Act there is no power to restoration. It was frankly admitted that there is also no power of dismissal; but it was contended that under Sections 98 and 99 the Tribunal once it has dismissed the election petition and awarded costs is functus officio and cannot thereafter restore, the election petition because no such power is conceded by the Act. It was also contended that against that order there was only an appeal under Section 116A of the Representation of the People ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t because the citation instead of supporting the present petitioner in fact goes against him. The intention, if any, in deleting the proposed Section 111A must have been to leave the powers exercisable under the Civil Procedure Code intact. Now, the Civil Procedure Code also provides for dismissal of suits under the 9th Order. There is also an additional power of the Court to say that a particular proceeding before it is not being prosecuted and therefore is being struck off. The order which was made on the 10th September, was of this nature. In our opinion, no express provision in the Act was necessary to empower the Court to make the order of dismissal in default. 6. That being the position, the question arises whether having once d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so that he might be able to return to Indore forthwith. In the absence of the senior counsel, the notice of the application for restoration was served upon the junior counsel, who, as has already been stated, raised a number of contentions to avoid service. 7. The delay in this case is both unfortunate and very slight. There is no doubt that counsel did appear 20 minutes after the order had been made. There is also enough material to show that counsel attempted to communicate to the Tribunal the reason of his delay and succeeded in sending a message to the Superintendent of the Collectorate before the order had been passed. The delay which took place was between the receipt of the message by the Superintendent of the Collectorate and it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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