GOPALAKRISHNAN NAIR J.:

This writ petition was referred to a Full Bench by a Division Bench of this court, as it involved important questions.

(2) The proceedings arise out of an election petition filed by the second respondent¢challenging the election of the petitioner to the Jammu and Kashmir Legislative Council from the Kashmir Teachers Constituency. The petitioner .and the second respondent contested the seat, but the former was declared elected. The second respondent thereupon preferred an election petition; ¢under the Representation of the People Act to the Election Commission which duly referred it to the Election Tribunal for trial. The petitioner filed his written statement before the Election Tribunal on 14-10-57. On 24-10-1957 he applied for an amendment of the written statement by adding certain grounds to show that the petitioner was not qualified under the law to contest the election and that he was not even eligible to be a voter in the Kashmir Teachers constituency.

The petitioner sought to establish on these new grounds that the second respondent was not competent to file the election petition. The amendment of his written statement sought by the petitioner, though opposed by the second respondent, was allowed by the Election Tribunal on 9-11-57. The second respondent thereupon wanted to file "his statement to traverse the new grounds taken by the petitioner in his written statement. The Election Tribunal posted the case to 3rd December 1957 to enable the second respondent to file his statement. But on that day neither the second respondent nor his counsel appeared before the Tribunal, nor did the second respondent file his statement. The Tribunal thereupon dismissed the election petition saying that "the petitioner (second respondent) does not appear to be serious about prosecuting the petition.

(3) On 10-12-1957, the second respondent filed an application before the Election Tribunal for restoration of the petition which was dismissed by the Tribunal on 3rd December. The petitioner raised several objections to the maintainability of the restoration application. He even urged that the dismissal of the petition on 3rd December was not a dismissal for default. But the Tribunal in its order dated 10th January 1958 overruled these objections and came to the conclusion that the petition was dismissed under the provisions of O. 9 R. 8 of the Code of Civil Procedure and that, therefore, an application for restoration was maintainable under O. 9 R. 9 of that Code.

He then posted the petition to another date for giving the second respondent an opportunity to show that there were sufficient grounds for restoring his petition and for enabling the petitioner to show to the contrary. The Tribunal recorded the evidence of the counsel who appeared for the second respondent as well as the petitioner and also took other evidence, and came to the conclusion that there were good and sufficient grounds for restoring the application. It, therefore, passed an order restoring the application on 15th July 1958. The petitioner has now come up to this court asking for a writ of certiorari to quash the order passed by the Election Tribunal restoring the election petition filed by the second respondent.

(4) I shall first refer briefly to the facts which led up to the dismissal of the election petition on 3-12-57. The Election Tribunal was sitting at Jammu. The second respondent and his counsel are permanent residents of Srinagar which is about 200 miles from Jammu. The Srinagar-Jammu road remained breached at certain places on 3rd December and for some days preceding. The second respondent and his counsel hoped that the breaches would be repaired early and they would be able to travel to Jammu by road and reach there in time to appear before the Tribunal on the 3rd December.

But contrary to their expectations the road was not repaired in time, they could not, therefore, reach Jammu on the 3rd December. The second respondent dispatched a telegram to the Election Tribunal asking for an adjournment, but this telegram reached the Tribunal only a short while after the Tribunal had dismissed the election petition. It was on the strength of these facts that the Election Tribunal came to the conclusion that it was a fit case for restoration.

(5) I have stated the above facts only to show the hardships caused to the second respondent. But the main question remains whether the petitioner is entitled to a certiorari to quash the Tribunals order of restoration. The obvious effect of quashing that order will be to keep the order of dismissal dated 3-12-57 in full force and effect. This takes me to a consideration whether the order of dismissal which according to the Election Tribunal itself was under the provisions of O. 9 R. 8 of the Civil Procedure Code was in any manner justified?

(6) For default in the circumstances set out above is dismissal of an election petition repugnant to the Scheme and the provisions of the Representation of the People Act and is plainly opposed to the nature and scope of an election contest before an Election Tribunal. In Mallappa Basappa v. Basavaraj Ayyappa, AIR 1958 SC 698 at p. 701 the following passages from another judgment of the Supreme Court have been quoted:

"An election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power." "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 also are substantially interested in it and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process."

2. "An election petition is not a suit between two persons, but is a proceeding in. which the constituency itself is the principle party interested." Observations to the same effect have been made in Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 at p. 212. Furthermore, the express provisions in the Representation of the People Act themselves forbid a person who has filed an election petition from withdrawing it as he chooses. Even if the Election Tribunal accords him permission to withdraw the Act expressly provides for giving an opportunity to any other person who could have filed the election petition to come in "the place and stead of the withdrawing petitioner and prosecute the petition. Even if an election petitioner dies, the petition does not abate. The Act provides ample opportunity for another person to step in and continue the proceedings. In view of these provisions, the Supreme Court in AIR 1958 SC 698 at pp. 703 and 704 observed:

"These provisions therefore show that the election petition once presented continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of opposition by the respondent but is liable to be continued by any person who might have been a petitioner."

Their Lordships also addressed themselves to the question that if the whole petition cannot be. withdrawn is it permissible for the petitioner to withdraw or abandon a part of his claim, and they answered emphatically in the negative.

(7) In Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687 at p. 697 the Supreme Court held that the Election Tribunal has no power to grant an amendment by way of withdrawal or abandonment of a part of the claim made in the election petition.

I (8) These authorities establish that once an election petition is before the Election Tribunal, it has to proceed to completion according to the provisions of the Representation of the People Act, and it is not open to the petitioner to exercise his option to prosecute the petition or not or to abandon or withdraw it wholly or in part.

(9) It follows that the dismissal of an election petition on the ground of non-appearance of the petitioner is contrary to law and causes injustice and denies the rights of the entire electorate who are unquestionably interested in the proceedings. The order of the Election Tribunal dated 3-12-57 dismissing the election petition preferred by the second respondent under the provisions of O. 9 R. 8 is. therefore, plainly erroneous, unjust and untenable in law.

(10) It would be maintaining this unfortunate result to issue a certiorari to quash the order of restoration passed by the Election Tribunal on 15th July 1958. But it is strenuously urged by the learned counsel for the petitioner that the order of restoration which was purported to be passed under O. 9 R. 9 of the Code of Civil Procedure is without jurisdiction. It is pointed out that once the election petition was dismissed, the Election Tribunal became functus officio and that it had no jurisdiction to do anything more in respect of the petition, and the order directing restoration of the election petition was. therefore, incompetent and has to be quashed by a certiorari. The result of acceding to the request of the petitioner I will be practically to confirm the order dismissing the election petition for default. Thus, the issue of a certiorari in this case will only serve to establish a thoroughly unjust and incorrect order of dismissal of the election petition. It is unnecessary to consider whether or not such an order on dismissal could properly be carried in appeal to the High Court under the provisions of the Representation of the People Act. What I am here concerned to examine is whether a certiorari should issue in the circumstances of this case.

(11) The issue of a writ of certiorari is discretionary with the court. The court is not bound to issue such a writ even if there lie some error on law or defect of jurisdiction in a given case, unless it- is satisfied that the interests of justice demand the granting of it. In Sangram Singh v. Election Tribunal Kotah, (S) AIR 1955 SC 425 at page 429 the Supreme Court while dealing with the powers of a court to issue writs of certiorari pointed out:

"That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not act as Courts of appeal under Art. 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued or is likely to ensue."

To the same effect is the decision in A. M. Allison v. B. L. Sen, (S) AIR 1957 SC 227 at p. 231 where Bhagwati J. stated:

"Proceedings by way of certiorari are "not of course." (vide Halsburys Laws of England Hail-sham Ed. Vol. 9 paras 1480 and 1481 Pp. 877-878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice, and in these appeals which are directed against the orders of the High Court in application under Art. 226, we could refuse to interfere unless We are satisfied that the justice of the case requires it."

Applying the principle stated in the above decisions to the facts of the present case, it emerges that justice does not require the issue of a writ of certiorari. On the contrary, the grant of such a writ will make for substantial injustice and will as I indicated earlier, .result in an unjust and untenable order being maintained.

(12) An almost similar case arose in Bhuvanesh Bhvsnan v. Election Tribunal, Farrukhabad, AIR 1958 All 587. There also an election petition was dismissed for default on 13-8-1957 and was restored to file on 13-9-1957. The respondent before the Election Tribunal (the successful candidate at the election) preferred a writ to the Allahabad High Court to quash the order of restoration. A Division Bench of the Allahabad High Court dealt with the question as follows:

"The order of 13th August 1957 rejecting the petition was, therefore, a very unjust order and, in the interest of justice, it was essential that it should be set aside. The Election Tribunal has set it aside purporting to exercise its powers under O. IX, R. 9 of. the Code of Civil Procedure. If that provision of law is applicable, the order passed by the Election Tribunal is correct and must be upheld.

If that provision of law is not applicable, we Consider that this is a fit case where, the matter having come up before this court under Art. 226 of the Constitution, this court should now pass an order vacating that order of the 13th of August 1957 and consequently, this judgment of ours is to be read as setting aside the order of 13-8-1957 rejecting the petition, in case it be held that the provisions of Order IX, R. 9 of the Code of Civil Procedure are not applicable and that the Election Tribunal was incompetent to pass the order dated 13-9-1957. In these circumstances, we need not issue any writ quashing the order of 13-9-1957." The above course adopted by the Division Bench of the Allahabad High Court commends itself to me, if I may say so with respect. I consider that the right course in the present case is to declare the order of the Tribunal dated 3-12-57 dismissing the election petition to be set aside and to decline to issue a writ of certiorari to quash the order of restoration passed by the Election Tribunal on 15th July 1958. As I already stated, the interests of justice clearly demand the adoption of this course. The result sought to be achieved by the order of the Election Tribunal restoring the election petition is just and salutary and I should refrain from issuing a writ to demolish that result.

(13) The petition is dismissed but without making any order us to costs in the rather peculiar circumstances of this case.

(14) Syd. MYRTAZA FAZL ALI, J. I agree.

(15) J. N. WAZIR, C. J. I agree.