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I SUPREME COURT REPORTS BADRINARAYANSINGH v. KAMDEO PRASAD SINGH AND ANOTHER (P. B. GAJENDRAGADKA.R, K. SUBBA RAO, M. HIDAYATULLAH, J. c. SHAH and RAGHUBAR DAYAL, JJ.) lflection Di•pute-Resjudicata-Two appeals out of one pro ceeding-OneJudgment but two separate decreeB-Subject matter different-Detision, if one-Appeal from one decree only-main tainability,-Repretentation of the People Act, 1951 (~3 of 1951), ••. 80, 81, 7. TheElectionTribunalon the petition of the first res pondentset asidethe election of theappellantJ.olding that the appellant as a Ghatwal,was not a holder of office of profit, and thathe wasguilty of corruptpractices. The Election Tribunalhowever did hot entertain the firstrespondent'sprayer todeclarehim as dulyelected. . The appellant and the firstrespondent,both went up in appeal to the IfighCourt. Appellant'sappeal being No.7 wasagainstthe ordersettingaside his electio.n. The first respondent'sappeal being No. 8 wasagainstthe order notdeclaringhim to be dulyelected.Both the appeals were disposed of by the High Court byoneJudgment. The appellant'sappeal. No. 7 wasdismissedholding that the appellant was not guilty of corruptpractices and that he, as a Ghatwal,held an office of profit. The respondent's appealNo. 8 wasalloweddeclaringhim as duly elected. Two separatedecrees were prepared in the two appeals. The appellantfiled this appealby specialleave from theorderin AppealNo. 8 by the firstrespondent.All the grounds of the appeal relatedto the finding of the High Court that the office of Ghatwalwas an office of profit. Apreliminaryobjection was takenon behalf of the first respondent that thisappealwas incompetent as barredby the principle of resjudicata inasmuch as the appellantdid not appeal against the order of the High Court in Appeal No.7 whosedismissalby the High Court confirmedthe order of the ElectionTribunalsetting a•ide the election of the appellant; and thatit wasnot opento theappellantto questionthe correctness of the finding that he held an office of profit,whichwas the basis of the dismissal of appeal No. 7. Held, that wheretwo appeds arose out of one proceeding, but thesubject matter of eachappealwas different, the 759 116l September 82. • 1161 . • 760 SUPREME OOURT REPORTS [1962] decuion of the HighCourtin theappealsthough •lated in onejudgment, reallyamounted to twodecisionsand not to one deci!ion commonto boththe appeals. The subject-matter of appeal No7 flied by theappellantrelated to thequestion of his election l>eing bad or good. The subjectmatter of appeal No. 8 did not relat~ tothevalidityor otherwiseof the election of theappellant. It related to the furtheraction to betakenin case tbe electionof the appellantwas bad,on the ground that a G.hatwalholds an office of profit. The High Clourt cameto two decioions, onein respect of theinvalidityof the appellant'selection in appeal No. 7. It cameto anotherdecisionin appealNo. 8 withrespectto the justification of theclaimof thefirstrespondentto bedeclared as a duly electedcandidate. That so long as the order in the appellant's appeal No. 7 confirming the ordersettingaside hia electionon thegroundthat he wa5 a 11-0lder of an off ice of profit stands, he cannot queation thatfindingin the present appeal, preferredagainst the decreein the first respondent's •ppeal No.8. ;Varhari v. SM.11/car rl950J S. C. R. 754, distinguished. CrvIL APPELLATE .JunrsDIOTION: CivilAppeal No. 56~ of 190{). Appeal by special leave from tl1e judgment and decreedated March 20, l!l59, of tho Patna High Court in Electionappeal No. 8 of 1958. J.C. Sinha, D. P. Singh, M. K. Ramamurthi, R. K. Garg and S. C. Ag11rwala, for tho appellant. B. C. GTWsli and R. C. Dattti, for res ondont No. I. ....-~ UdaipralapSingh and P. C. Agarwala, for res· pondent No. 2. 1961. September 22. The Judgmentof the Courtwas delivered by RAOHUBJ.R DAYAL, J. -Badri NarainSingh, the appellant,and four otherpersonsinoluding KamDeo Pratad, respondcnte, werecandidates to the Bihar Legislative Assemblyduring the las.t gtnera.lelection held in 1957. Twoof those candi dateswithdrewbefore the relevant date. The appellant secured thelargestnumber of votes and was declaredelected on March 14, 1957. Respon dentNo. 2 securedlarger numberof votes than '"' , ' '• ' t 3 S.C.R. SUPREME COURT REPORTS 761 Kam Deo Prasad, respondent No. 1, who tiled an electionpetitionunder as. 80 and 81 of the Repre sentation of the PeopleAct, 1951 (Act XLIII of 1951), challengingthe election of theappellanton theground that the nominationof theappellantand respondentNo. 2, who, M Ghatwal.s, held an office of profit, wae against the provisionsof s. 7 of the Act, and that the appellant had alsocommittedcorrupt practices.Kam Deo Prasad,by hiselection peti tion, not onlyprayedfor the declaration that the electionof theappellantwas void,but alsofor the declaration that he hi~self wasdulyelected.The appellantdenied the allegations againet him.The ElectionTribunalheld that Badri Narain Singh, the appellant,was guilty of corruptpracticesand that a Ghatwal was not a holder of anoffice of profit under the State of Bihar. It thereforeset asidethe electionof theappellant, but did not grantthe dec laration that Kam Deo Prasad was a dulyelected candidate. The appellantfiled ElectionAppeal No. 7 of 1958 in . the HighCourt of Judicature at Patna, against the order of the ElectionTribunalsetting asidehis election, and prayed that theorder of the ElectionTribunalbe setasideand that it be held tha.t he had beenduly elected. Kam Deo Prasad also.filedElectiqn Appeal No. 8 against the order of theElectionTribunal .not dPclaring him to be thedulyelectedcandidateand prayedfor a decla ration that he had beenduly elected..The grounds , of appealquestionedthe correctness of thefinding of the ElectionTribunal that Badri Narain Singh and respondentNo. 2, as Ghatwals, were not the holders of officee of profit and that Kam Deo Prasad could not be declared dulyelected. Boththese appealswere dispoeed of by the High Courtby one judgment. It did not accept the finding of theElectionTribunal that Badri Narain Singh hadcommittedany corruptpractice and accepted the' contentionfor respondentNo. 1 that BadriNarain Singh and r~11pondent No. 2 hold 1111 8ctlri "••:JM 8;.,h ,v. Ir-"• Pr.,_. SU.,h l!a1nobar Day•/ J. 11161 Beiri NatlfldTl Sinth v. Jr.....,, Prosed Sint h R.,hbor Da.JO/ J. .. 762 SUPREMECOURT REPORTS [1962] offices of profit underthe BiharGovernment as thoy wero Gliatwal,a. It was in thisview of the mt1.ttcr that it confirmedthe order of tho ElectionTribunal ~etting aside tho election of the appellant and allow· mg thoappoal of respondentNo. 1, declared hini duly elected. Thoconcludingportion of the judgment of the High Court may be usefully quotedhere : "To conclude, the election of the returned candidateis not "Valid, and, the mdor of the Tribunal is, therefore,right, thoughon differentgrounds.Further, there, was only onescat,and threepersonscontestedit, name ly, the petitionerand the tworespondents. Thotwo respondents wore disqualifiedfor be· ing chosenas, and for being,members of Legislative Assembly or LegislativeCouncil. of the State, and, therefore,their nomination paperswore not validlyaccopted. If their nominationpapers are rejected, and it cannot but berejected, the onlypersonleft in the field was the petitionerKam Doo PrB11ad Singh, and, therefore,he mustbe declared to he duly elected. In theresult,ElectionAppeal No. 7 of l!lil8is dismissed, and ElectionAppeal No. 8 of 1958 is allowed, and KamDco PrasadSingh is declared to bedulv elected to Bihar Legis lativeAssembly from the Sa.mathState AssemblyConstituencyin th<> district of Santai Parganas." As aresult of thisorder,separatedecrees were preparedin the two appeals.Decreo in Election Appeal No. 7 said, 'It is ordered and decreed that thisappeal be and the same is herebydismissed'. The decree in appeal ~ o. 8said, 'It i~ ordereda.nd decreed that thisappealbe and thti ~.m~e is hereby allowed and Kam Doo Praspellant's electionin AppealNo. 7. It came to another dcoisionin AppealNo. 8 withrespectto the justification oftheclaimof respondentNo. 1 to be decla.redas a dulyelectedcandidate, a, decision which had to followthe decision that the cleotiou of theappellant was invalid andalso the finding that respondent No. 2, as Ghatwal, waa not a properlynominated candidate. Wo a.re therefore of opinion that so long as theorderin the appellant's appeal No. 7confirmingthe order settiugaside his electionon the ground that he was a holder of an office of profitunderthe Bihar Governmentand thereforecould not have bee'n a properlynominatedcandidate stands, ho cannot nuestion tbe fir.ding about his holding an officeof profit,in thepresentappeal, which is foundedon thecontention th.,_t that finding is incorrect. Ve therefore acceptthe preliminaryobjection and |
