083-NLR-NLR-V-49-P.-SARAVANAMUTTU-Petitioner-and-R.-A.-DE-MEL-Respondent.pdf
DIAS J.—P. Saravanamuilu v. R. A. de Mel.
281
1948Present.- Dias J.
P.SARAVANAMUTTU, Petitioner, and R. A. DE MEL,Respondent.
In the Matter of the Trial of Election Petition No. 13of 1947 (Election for Colombo South Electoral District)
AND IN THE MATTER TO WITHDRAW THE PETITIONER’SCLAIM TO BE DECLARED DULY ELECTED AND RETURNED
in Paragraph 4 of the Petition.
Election petition—Withdrawal of part of the relief claimed—Rules 21 and 22 ofSchedule III of Ceylon (Parliamentary Elections) Order in Council, 1946—Non-compliance—JPften pennissible.
The petitioner in an election petition prayed for two kinds of relief : (a) for adeclaration that the respondent was not duly elected or returned, and (6) fora declaration that the petitioner was duly elected and ought to be returned.Pending the inquiry he moved to withdraw his claim to be duly elected andreturned.
Held, that the petitioner’s application to withdraw this parti of his prayerdid not amount to a withdrawal of the election petition and was, therefore,not governed by Rules 21 and 22 of the Third Schedule of the ParliamentaryElections Order in Council, 1946.
Qrder made pending the hearing of Election Petition, ColomboSouth Electoral District.
S. Barr-Kumarakulasingham., with A. 1. Rajasingham and SamWijesinha. for the petitioner.
G. Wikramanayake, with D. S. Jayewickreme, E. A. G. deSilva, G. T. Samerawickreme, Cecil de S. Wijeyeratne and G. Pere.ra,for the respondent.
Cur. adv. vult.
April 20, 1948. Dias J.—
It is necessary that before making my final order I should delivermy order in this application which was made after the main inquirybegan.
In his petition the petitioner prayed for two kinds of relief: (a) fora declaration that the respondent was not duly elected or returned,and (b) for a declaration that the petitioner was duly elected andought to be returned, or that the election was void. This petitionwas filed on October 10, 1947. The inquiry was fixed for April 19,1948.
On April 1, 1948, the petitioner moved to withdraw his claim to beduly elected and returned. The respondent having- cause to show Idirected that this matter should also be fixed for inquiry on April 19,1948.
The respondent objects to the application on the ground that underRules 21 and 22 in the Third Schedule of the Ceylon (ParliamentaryElections) Order in Council, 1946 (hereinafter referred to as “ TheOrder in Council ”), the withdrawal must be with the leave of the24 – N.L.R. Vol – jli*
282
DIAS J.—CheUiah u. Aron.
Court, that with the application there should be filed affidavits whichmust be sworn to by certain persons and state certain things, andthat a notice of the application should be published forthwith in theGazette.
I do not consider that these objections have substance. Rules 21and 22 of The Order in Council refer to the withdrawal of thepetition. The petitioner is not seeking to withdraw the petition. Itherefore think that Rules 21, 22, 23 and 24 have no application tothe matter now under consideration.
The counsel for the petitioner states that the reason why this partof the prayer is sought to be withdrawn is because it is untenablein law. He further submits that notice of the application was giveneighteen days before the inquiry so as to give the respondent thefullest notice so that he might not be taken by surprise.
In my opinion this application should be granted, particularly asit causes no prejudice whatever to the respondent, but rather makeshis task lighter by restricting the scope of this inquiry which promisesto be protracted. I, therefore, allow the petitioner’s application towithdraw this part of his prayer.
It is conceded that if the petitioner’s application succeeds therecriminatory objections filed by the respondent do not arise. It is,therefore, unnecessary for me to say anything about that.
The costs of this application will be costs in the cause.
Application granted.