1. The petitioner applies to have revised an order of the Subordinate Judge of Tinnevelly declaring his election as councillor for the Kila Viraraghavapuram Ward of the Palamcottah Municipality, which was held on 25th September 1926, invalid and directing that a fresh election should be held to elect a councillor. The petitioner in that application, now the respondent, advanced six grounds for unseating his opponent. The learned Subordinate Judge rejected five of them but upon the sixth, which was in point of order the first, held that the election was marked by irregularity which materially affected it. The substance of that ground relates to the construction of Rule 15 of the rules for the conduct of election of municipal councillors. According to that rule, if a voter is unable to read the ballot paper or to make a cross thereon, and applies for assistance in doing so, the polling officer shall read; it for him and, if so required, mark the ballot paper according to the directions of the voter and give it to him to put in the ballot box. The contention on behalf of the respondent was that, in applying the provisions of this rule, the polling officers marked the ballot papers secretly and without allowing the candidates or their agents to see how the marks were made, and that, that was in contravention, of the rule which, properly construed, recquired that they should perform these functions in the presence of the candidates or their agents. The learned Subordinate Judge has adopted this latter construction and I am asked to accept this civil revision petition on the ground that it is erroneous.
2. I have heard a good deal of argument upon the merits of this question and it seems clear that 'the rule is reasonably open either to the one construction or to the other. I have come to the conclusion however, that, in attaching to it the significance which he did, the learned Subordinate Judge has neither acted with material irregularity in the exercise of his jurisdiction nor assumed jurisdiction which he did not possess. It was merely a matter of the construction of a legal provision and in a similar case, C.R.P. No. 541 of 1923, which was decided by the learned Chief Justice and Phillips and Kumaraswami Sastri, JJ. where a similar question arose, this was the view taken. The question there was whether the failure of a polling officer to initial a ballot paper which was subsequently properly marked by the voter rendered that ballot paper one which was not 'duly marked' within the meaning of Rule 17 (1) of the rules above referred to. The Court which held the election enquiry decided that the ballot paper had not been duly marked and upon that the learned Chief Justice remarks:
It is unnecessary to express any opinion as to whether that view on the whole was right, but it does not matter because that is one of the matters which is east upon the learned Judge to decide by the rules framed under the Act. There is no question here of jurisdiction or of acting illegally. He had a point of construction before him and he decided it to the best of his ability. It seems to me that no point under Section 115, Civil P.C. can possibly arise.
3. There is another case Makam Chandrayudu v. P. Rangappa A.I.R. 1927 Mad. 1000 decided by Phillips, J. in which the question arose of the construction of Rule 15 but in the converse manner to that in which it arises here. It is true that disagreeing with the construction placed upon it by the lower Court the learned Judge reversed the order, acting under Section 115 Civil P.C. I do not find, however, from the judgment that the question whether jurisdiction was involved was brought to his attention. I am clear myself that it is not involved here in the way, for instance, it enters into the decision which was the cause of the civil revision petition in Parthasaradhi Naidu v. Kotestcara Rao A.I.R. 1924 Mad. 561. In that case the Judge making an enquiry under Section 57 Local Boards Act, entered into the question whether the President of a Taluk Board had been duly appointed as a member of that Board by the Government, and it was held that in so entering into the question he acted wholly without jurisdiction and that the High Court could interfere in revision under Section 115, Civil P.C. My conclusion accordingly is that on this part of the case I am in revision bound by the decision of the learned Subordinate Judge and that it cannot be questioned now
4. There is, however, a further point and it relates to the terms of Rule 11 (c) of the rules for the decision of disputes as to the validity of an election. That rule enables a Judge to declare an election void if the result of the election has been materially affected by any noncompliance with the provisions of the Act or the rules made thereunder. From the manner in which the rule is drafted one would suppose that the important aspect of the matter is that the result of the election should have been materially affected by an irregularity rather than that there was a mere noncompliance with the provisions of the Act or the rules. In his order the learned 'Judge no doubt purports to record a finding upon this point because in para. 15 he says
Considering the large number (about 406) of illiterate voters whose votes have been marked in the above manner by the polling officers, it is impossible to hold that the result of the election has not been materially affected by the recording of such votes. I find that the irregularity in this respect has been such as to affect the validity of the whole election.
5. Again in para. 17 he records his finding that the irregularity found was one which had materially affected the result of the election. But, although there are these findings, these is no clue whatever to the judicial grounds upon which they were based and reading the judgment I am inclined to draw the conclusion that the Court considered that the irregularity ipse facto materially affected the result of the election. There is no trace in it of an endeavour to ascertain whether the result of the election would, in point of fact, have been different if the rule as construed by the lower Court had been adhered to. The necessity has more than once been emphasized of a properly based finding upon this question, as for instance in Palaniyappa Chettiar v. Krishnaswami Chettiar A.I.R. 1925 Mad. 877, where the learned Judges say:
The real question which the lower Court had to put to itself was, supposing that the rule now found to have been broken had not been broken and the nomination proceedings had been conducted by the proper authority properly constituted under Rule 32, would the result, namely, the petitioner's nomination, have been different?
6. And so here, the question which the learned Subordinate Judge had to put to himself was whether the result would have been different had the polling officers recorded the votes in the presence of the candidates or their agents. The same point is emphasized in Sevuga Pandia Thevar v. Srirama Desikan Aiyangar A.I.R. 1927 Mad. 546. Assuming, therefore, as I must, that he has not applied his mind to this question, I must conclude that he exercised his jurisdiction with material irregularity and, therefore, these proceedings are revisable under Section 115, Civil P.C.
7. Mr. T. M Krishnaswami Ayyar for the respondent desires to address to me an argument which is neither to be found in the original petition nor in the judgment of the lower Court, to the effect that the ballot papers marked in the circumstances described in this case were not duly marked with advertance to Rule 17 (1) and must therefore be excluded, in which case without doubt room would he given for the contention that the result of the election had been materially affected. I cannot myself entertain this argument, because it would involve me in a positive finding on the first part of the case, whether the lower Court was right or wrong. I have accordingly come to the conclusion that the only course that I can take and I take it on the ground that the case was not completely -dealt with is to remand it to the lower Court for fresh finding upon the issue whether the election was materially affected by the irregularity found and for disposal accordingly, no further evidence being adduced. The civil revision petition is accordingly allowed. Costs to follow the result.
8. In a memorandum of objections the respondent has contended firstly, that he should be declared duly elected which, of course, cannot be done in the circumstances and, secondly, that the finding of the learned Subordinate Judge on grounds 5 and 6 is vitiated owing to his failure to take into consideration two affidavits which were filed. The learned Subordinate Judge states that there is no evidence to establish that the respondent hired any motor cars, and these affidavits assert to the contrary. I suppose that the lower Court did not accept them because the respondent did not examine the witnesses who had sworn them and, in the circumstances, I do not think it is a matter which should be interfered with in revision. The memorandum of objections is accordingly dismissed.