REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 870 OF 2011
(Arising out of SLP (C) NO. 16944 OF 2010)
Kalyan Singh Chouhan ...Appellant
Versus
C.P. Joshi ...Respondent
JUDGMENT
Dr. B. S. CHAUHAN, J.
1. Leave granted.
2. This appeal has been preferred against the judgment and order
dated 24.5.2010 in S.B. Election Petition No. 1 of 2009 and I.A. No.
6839 of 2010 of the High Court of Judicature for Rajasthan at
Jodhpur. By the impugned judgment and order the High Court
rejected the application dated 11.5.2010 praying for the summoning of
certain documents on the ground that it was not permissible to
summon the said documents, i.e., those tendered votes in respect of
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which none of the parties had taken the pleadings nor an issue had
been framed in respect of those tendered votes and, thus, it was not
permissible to lead any evidence on the fact which is not in issue.
More so, on the ground of delay, the application had been filed after
framing of the issues.
3. FACTS :
(A) A Notification under Section 30 of the Representation of People
Act, 1951 (hereinafter called as the `Act 1951') dated 10.11.2008 was
issued by Election Commission for holding elections to constitute 13th
Legislative Assembly for the State of Rajasthan including the election
scheduled for Nathdwara Legislative Assembly No. 176 (hereinafter
called as `the constituency'). The appellant as well as the respondent
filed their nominations and were candidates of recognised National
Parties. The poll was held on 4.12.2008.
(B) During the process of polling, there had been allegations/
challenges at various booths that at least 10 votes alleged to have been
cast by imposters and thus, 10 tendered votes were cast under Rule 42
of the Conduct of Election Rules, 1961 (hereinafter called as the
`Rules 1961'). The counting of votes took place on 8.12.2008 and the
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appellant contesting on the BJP ticket secured 62216 votes, while Shri
C.P. Joshi (INC) secured 62215 votes. At the request of the election
agent, a recounting took place under Rule 63 of the Rules 1961.
However, the result remained the same and, thus, the appellant was
declared duly elected by a margin of one vote.
(C) The respondent filed an election petition on 15.1.2009 being
S.B. Election Petition No. 1 of 2009 before the High Court of
Rajasthan under Sections 80, 81, 100(1)(d)(iii) and Section
100(1)(d)(iv) of 1951 Act, inter-alia, alleging that:
(i) Smt. Kalpana Kunwar and Smt. Kalpana Singh (wife
of Petitioner) were one and the same person, but her
name was registered at two places in the electoral rolls of
the constituency and hence she had cast two votes in the
election;
(ii) Six (6) tendered votes cast in the election must be
counted and the six (6) votes originally polled against the
tendered votes must be rejected.
(D) The appellant filed the written statement contesting the said
election petition and the trial is in progress in the High Court.
Both the parties have filed several applications before the High
Court during the trial of the election petition and the appellant has
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approached this Court time and again as is evident from the orders
dated 16.12.2009 passed in S.L.P(C) No. 33725 of 2009; 1.4.2010 in
S.L.P.(C) No. 8212 of 2010; and 23.4.2010 in S.L.P(C) No. 10633 of
2010. Appellant filed an application under Order VI Rule 16 read
with Section 151 of the Code of Civil Procedure 1908 (hereinafter
called as the `CPC') and Section 87 of the Act 1951 for the deletion of
paragraph Nos. 13 to 19 of the election petition. The said application
was dismissed by the High Court vide order dated 19.11.2009. The
appellant preferred S.L.P (C) No. 34688 of 2009 which was dismissed
by this Court vide order dated 16.12.2009.
(E) The appellant preferred an application being I.A. No.6839 of
2010 dated 11.5.2010 to summon the marked copies of the electoral
rolls; register of voters in Form No.17-A; and list of tendered votes in
Form No.17-B relating to the polling station nos.68, 124 and 192 of
the constituency. However, the said application has been dismissed
by the High Court vide impugned judgment and order dated
24.5.2010. Hence, this appeal.
4. Shri Ram Jethmalani, learned senior advocate appearing for the
appellant, has submitted that in order to do complete justice, all 10
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tendered votes have to be recounted. In view of the fact that there was
margin of only one vote, the law requires that all the tendered votes
be counted. In order to fortify his submission, Shri Jethmalani placed
reliance on the judgment of this Court in Dr. Wilfred D'Souza v.
Francis Menino Jesus Ferrao, AIR 1977 SC 286, wherein it had
been directed that all the tendered votes would be summoned and
taken into consideration, i.e., that all the tendered votes have to be
counted. The material issue in all the cases falling under Clause (d) of
Section 100 of the Act 1951 remains whether the result of the election
has been materially affected and, therefore, once the appellant raised
his statutory right to lead evidence, in order to prevent the miscarriage
of justice, it is necessary that all the tendered votes be counted. Thus,
the impugned order is liable to be set aside.
5. On the other hand, Shri M.R. Calla, learned senior advocate
appearing for the respondent, has vehemently opposed the appeal
contending that the principles of equity and concept of substantial
justice cannot be pressed into service in the present case. The election
petition is to be adjudicated giving strict adherence to the statutory
provisions without being influenced by any other concepts. The Court
cannot permit a party to lead evidence unless an issue has been framed
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on the controversy and an issue cannot be framed unless there are
actual pleadings in respect thereof. The pleadings in the instant case
related only to the 6 tendered votes and an issue has been framed only
to that extent. Therefore, it is not permissible to take into
consideration all 10 tendered votes. The judgment so heavily relied
upon by Shri Ram Jethmalani, learned senior counsel, in Wilfred
D'Souza's case (Supra) is quite distinguishable as Recrimination
Petition under Section 97 of Act 1951 had been filed in that case.
Thus, the ratio of the said judgment has no bearing in the case at hand.
The appeal lacks merit and is liable to be dismissed.
6. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
The relevant pleadings, taken in the election petition, in this
regard, are in paragraph Nos. 13 to 19 of the election petition which
cumulatively specifically provide:
The names of Smt. Kamla W/o Shri Champa Lal R/o Near
Charbhuja Temple, Village Gudla, Tehsil Nathdwara, District
Rajasmand appeared at serial number 311 in Part 27; Shri Mana S/o
Shri Roda R/o Guda, Village Sema, Tehsil Nathdwara, District
Rajsamand, appeared at serial number 1122 in Part 61; Ms. Bargat
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Banu D/o Shri Gani R/o Talesara Bhawan, Ward No. 19, Nathdwara,
District Rajsamand appeared at serial number 146 in Part 73; Shri
Dalu S/o Shri Navla R/o Village Soi Ki Bhagai, Post Khamnor, Tehsil
Nathdwara, District Rajsamand appeared at serial no. 714 in Part 117;
Smt. Nanu W/o Shri Peer Mohammed R/o Neelgar Basti, Village
Railmagra, Tehsil Railmagra, District Rajsamand appeared at serial
number 866 in Part No. 180; and Shri Shamboo Lal S/o Shri Tulsi
Ram R/o Kalbelia Basti, Village Banerdia, Tehsil Railmagra, District
Rajsamand appeared at serial number 502 in Part 199 of the electoral
roll of the constituency. When the aforesaid six voters reached the
concerned polling station to cast their respective votes, they found that
some imposters had already cast their votes by electronic voting
machine. They completed the legal formalities by filling up Form 17-
B and were allowed to have tendered ballot papers and, thereafter,
they cast their votes.
7. It was further pleaded in paragraph 19 of the election petition
that the aforesaid 6 tendered votes have been cast by genuine voters
and must be counted. In paragraph 20, it has been submitted that
because of the non-counting of the 6 tendered votes, the result of the
election stood materially affected on account of improper reception of
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those votes. Thus, the same was liable to be rejected being not cast by
genuine voters but by imposters.
8. In the written statement, the appellant has raised his doubts in
respect of the aforesaid 6 tendered votes but has not taken any specific
pleadings in respect of remaining 4 tendered votes. In paragraph 20
of the written statement, it has been denied that the result of the
election stood materially affected on account of improper reception of
those 6 tendered votes.
In fact, the pleadings by both the parties in the election petition
as well as in the written statement make reference only to 6 tendered
votes and not to 10 tendered votes.
9. In view of the pleadings taken by the parties, the High Court
framed only two issues:
(i) Whether Smt. Kalpana Kunwar, wife of the
respondent, is also known as Kalpana Singh and
whether she cast her vote at two Polling Stations
Viz. Polling Station No. 39 and Polling Station No.
40 of the Nathdwara Legislative Assembly
Constituency No. 176 and if so, what is the effect
on the election of the respondent?
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(ii) Whether the six votes mentioned in Para Nos. 13
to 18 of the election petition were initially
improperly received and should be removed from
the valid votes and in their place tendered votes
should be taken into account?
Therefore, it is evident from the pleadings that the case has
been limited only to 6 tendered votes and there had been no pleading
in respect of the remaining 4 tendered votes either in the election
petition or the written statement filed by the appellant.
10. In Kailash v. Nanhku & Ors., AIR 2005 SC 2441, this Court
held that the trial of an election petition is entirely different from the
trial of a civil suit, as in a civil suit trial commences on framing the
issues while trial of an election petition encompasses all proceedings
commencing from the filing of the election petition up to the date of
decision. Therefore, the procedure provided for the trial of civil suits
under CPC is not applicable in its entirety to the trial of the election
petition. For the purpose of the election petition, the word `trial'
includes the entire proceedings commencing from the time of filing
the election petition till the pronouncement of the judgment. The
applicability of the procedure in Election Tribunal is circumscribed
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by two riders : firstly, the procedure prescribed in CPC is applicable
only "as nearly as may be", and secondly, the CPC would give way to
any provisions of the Act or any rules made thereunder. Therefore,
the procedure prescribed in CPC applies to election trial with
flexibility and only as guidelines.
11. In Harcharan Singh v. S. Mohinder Singh &
Ors., AIR 1968 SC 1500, this Court considered the application of
doctrine of equity and substantial justice etc. in election law and came
to the conclusion as under :-
"The statutory requirements of election law must
be strictly observed. An election dispute is a
statutory proceeding unknown to the common law;
it is not an action at law or in equity. ...... The
primary purpose of the diverse provisions of the
election law which may appear to be technical is
to safeguard the purity of the election process, and
the Courts will not ordinarily minimise their
operation." (Emphasis added)
12. Similarly in Jyoti Basu & Ors. v. Debi Ghosal &
Ors., AIR 1982 SC 983; this Court held as under :-
"A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a
fundamental right nor a Common Law Right. It is
pure and simple, a statutory right. So is the right
to be elected. So is the right to dispute an election.
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Outside of statute, there is no right to elect, no
right to be elected and no right to dispute an
election. Statutory creations they are, and
therefore, subject to statutory limitation. An
election petition is not an action at Common Law,
nor in equity. It is a statutory proceeding to which
neither the common law nor the principles of
equity apply but only those rules which the statute
makes and applies. It is a special jurisdiction and
a special jurisdiction has always to be exercised in
accordance with the statute creating it. Concepts
familiar to Common Law and Equity must
remain strangers to Election Law unless
statutorily embodied. A Court has no right to
resort to them on considerations of alleged policy
because policy in such matters, as those, relating
to the trial of election disputes, is what the statute
lays down. In the trial of election disputes, Court
is put in a straight jacket. ......We have noticed
the necessity to rid ourselves of notions based on
Common Law or Equity. We see that we must
seek an answer to the question within the four
corners of the statute."
(Emphasis added)
13. In Chanda Singh v. Ch. Shiv Ram Varma &
Ors., AIR 1975 SC 403, this Court held as under:-
"A democracy runs smooth on the wheels of
periodic and pure elections. The verdict at the
polls announced by the Returning Officers lead to
the formation of governments. A certain amount of
stability in the electoral process is essential. If the
counting of the ballots are interfered with by too
frequent and flippant re-counts by courts a new
threat to the certainty of the poll system is
introduced through the judicial instrument.
Moreover, the secrecy of the ballot which is
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sacrosanct becomes exposed to deleterious prying,
if re-count of votes is made easy. The general
reaction, if there is judicial relaxation on this
issue, may well be a fresh pressure on luckless
candidates, particularly when the winning margin
is only of a few hundred votes as here, to ask for a
re-count Micawberishly looking for numerical
good fortune or windfall of chance discovery of
illegal rejection or reception of ballots. This may
tend to a dangerous disorientation which invades
the democratic order by injecting widespread
scope for reopening of declared returns, unless the
court restricts recourse to re-count to cases of
genuine apprehension of miscount or illegality or
other compulsions of justice necessitating such a
drastic step."
14. During the trial of an election petition, it is not
permissible for the court to permit a party to seek a roving enquiry.
The party must plead the material fact and adduce evidence to
substantiate the same so that the court may proceed to adjudicate
upon that issue. Before the court permits the recounting, the following
conditions must be satisfied:
(i) The Court must be satisfied that a prima facie case
is established;
(ii) The material facts and full particulars have been
pleaded stating the irregularities in counting of
votes;
(iii) A roving and fishing inquiry should not be
directed by way of an order to recount the votes;
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(iv) An opportunity should be given to file objection;
and
(v) Secrecy of the ballot requires to be guarded.
(Vide : Dr. Jagjit Singh v. Giani Kartar Singh & Ors., AIR 1966
SC 773; Suresh Prasad Yadav v. Jai Prakash Mishra & Ors., AIR
1975 SC 376; M. Chinnasamy v. K.C. Palanisamy & Ors., AIR
2004 SC 541; Chandrika Prasad Yadav v. State of Bihar & Ors.,
AIR 2004 SC 2036; Tanaji Ramchandra Nimhan v. Swati
Vinayak Nimhan, AIR 2006 SC 1218; Gursewak Singh v. Avtar
Singh & Ors., AIR 2006 SC 1791; and Baldev Singh v. Shinder Pal
Singh & Anr., (2007) 1 SCC 341).
15. In Gajanan Krishnaji Bapat & Anr. v. Dattaji
Raghobaji Meghe & Ors., AIR 1995 SC 2284; this Court held that
the court cannot consider any fact which is beyond the pleadings of
the parties. The parties have to take proper pleadings and establish by
adducing evidence that by a particular irregularity/illegality the result
of the election has been materially affected.
16. Pleadings and particulars are required to enable the court to
decide the rights of the parties in the trial. Thus, the pleadings are
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more to help the court in narrowing the controversy involved and to
inform the parties concerned to the question in issue, so that the
parties may adduce appropriate evidence on the said issue. It is
settled legal proposition that "as a rule relief not founded on the
pleadings should not be granted." Therefore, a decision of a case
cannot be based on grounds outside the pleadings of the parties. The
pleadings and issues are to ascertain the real dispute between the
parties to narrow the area of conflict and to see just where the two
sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho,
(1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa
Chettiar, AIR 1953 SC 235; Raruha Singh v. Achal Singh & Ors.;
AIR 1961 SC 1097; Om Prakash Gupta v. Ranbir B. Goyal, AIR
2002 SC 665; Ishwar Dutt v. Land Acquisition Collector & Anr.,
AIR 2005 SC 3165; and State of Maharashtra v. Hindustan
Construction Company Ltd., (2010) 4 SCC 518.)
17. This Court in Ram Sarup Gupta (dead) by L.Rs. v. Bishun
Narain Inter College & Ors., AIR 1987 SC 1242 held as under:
"It is well settled that in the absence of pleading,
evidence, if any, produced by the parties cannot be
considered. It is also equally settled that no party
should be permitted to travel beyond its pleading
and that all necessary and material facts should be
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pleaded by the party in support of the case set up
by it. The object and purpose of pleading is to
enable the adversary party to know the case it has
to meet........ In such a case it is the duty of the
court to ascertain the substance of the pleadings to
determine the question."
18. This Court in Bachhaj Nahar v. Nilima Mandal & Ors. , AIR
2009 SC 1103, held as under:
"The object and purpose of pleadings and
issues is to ensure that the litigants come to trial
with all issues clearly defined and to prevent cases
being expanded or grounds being shifted during
trial. Its object is also to ensure that each side is
fully alive to the questions that are likely to be
raised or considered so that they may have an
opportunity of placing the relevant evidence
appropriate to the issues before the court for its
consideration.
The object of issues is to identify from the
pleadings the questions or points required to be
decided by the courts so as to enable parties to let
in evidence thereon. When the facts necessary to
make out a particular claim, or to seek a
particular relief, are not found in the plaint, the
court cannot focus the attention of the parties, or
its own attention on that claim or relief, by
framing an appropriate issue........ Thus it is said
that no amount of evidence, on a plea that is not
put forward in the pleadings, can be looked into to
grant any relief.
The jurisdiction to grant relief in a civil suit
necessarily depends on the pleadings, prayer,
court fee paid, evidence let in, etc."
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19. In J.K. Iron & Steel Co. Ltd, Kanpur v. The Iron and Steel
Mazdoor Union, Kanpur, AIR 1956 SC 231, this Court observed:
"It is not open to the Tribunals to fly off at a
tangent and, disregarding the pleadings, to reach
any conclusions that they think are just and
proper."
20. Order XIV Rule 1 CPC reads:
"Issues arise when a material proposition of fact
or law is affirmed by the party and denied by the
other."
Therefore, it is neither desirable nor required for the court to
frame an issue not arising on the pleadings. The Court should not
decide a suit on a matter/point on which no issue has been framed.
(Vide: Raja Bommadevara Venkata Narasimha Naidu & Anr. v.
Raja Bommadevara Bhashya Karlu Naidu & Ors., (1902) 29 Ind.
App. 76 (PC); Sita Ram v. Radha Bai & Ors., AIR 1968 SC 535;
Gappulal v. Thakurji Shriji Dwarkadheeshji & Anr., AIR 1969
SC 1291; and Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC
693).
21. The object of framing issues is to ascertain/shorten the area of
dispute and pinpoint the points required to be determined by the
1
court. The issues are framed so that no party at the trial is taken by
surprise. It is the issues fixed and not the pleadings that guide the
parties in the matter of adducing evidence. [Vide : Sayad
Muhammad. v. Fatteh Muhammad (1894-95) 22 Ind. App. 4
(PC).]
22. In Kashi Nath (Dead) through L.Rs. v. Jaganath, (2003) 8
SCC 740, this Court held that where the evidence is not in line with
the pleadings and is at variance with it, the said evidence cannot be
looked into or relied upon. While deciding the said case, this Court
placed a very heavy reliance on the judgment of the Privy Council in
Siddik Mohd. Shah v. Saran, AIR 1930 PC 57.
23. There may be an exceptional case wherein the parties proceed
to trial fully knowing the rival case and lead all the evidence not only
in support of their contentions but in refutation thereof by the other
side. In such an eventuality, absence of an issue would not be fatal
and it would not be permissible for a party to submit that there has
been a mis-trial and the proceedings stood vitiated. (vide: Nagubai
Ammal & Ors. v. B. Shama Rao & Ors., AIR 1956 SC 593;
Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC
1
884; Kunju Kesavan v. M.M. Philip & Ors., AIR 1964 SC 164;
Kali Prasad Agarwalla (dead) by L.Rs. & Ors. v. M/s. Bharat
Coking Coal Ltd. & Ors., AIR 1989 SC 1530; Sayed Akhtar v.
Abdul Ahad, (2003) (7) SCC 52; and Bhuwan Singh v. Oriental
Insurance Co. Ltd., AIR 2009 SC 2177).
24. Therefore, in view of the above, it is evident that the party to
the election petition must plead the material fact and substantiate its
averment by adducing sufficient evidence. The court cannot travel
beyond the pleadings and the issue cannot be framed unless there are
pleadings to raise the controversy on a particular fact or law. It is,
therefore, not permissible for the court to allow the party to lead
evidence which is not in the line of the pleadings. Even if the evidence
is led that is just to be ignored as the same cannot be taken into
consideration.
25. In Jabar Singh v. Genda Lal, AIR 1964 SC 1200, a
Constitution Bench of this court while dealing with a similar issue
observed as under:
"It would be convenient if we take a simple case
of an election petition whether the petitioner
makes only one claim and that is that the election
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of the returned candidate is void. This claim can
be made under Section 100. Section 100(1)(a),(b)
and (c) refer to three distinct grounds on which the
election of the returned candidate can be
challenged. We are not concerned with any of
these grounds. In dealing with the challenge to the
validity of the election of the returned candidate
under Section 100(1)(d), it would be noticed that
what the election petitioner has to prove is not
only the existence of one or the other of the
grounds specified in clauses (i) to (iv) of Section
100(1)(d), but it has also to establish that as a
result of the existence of the said ground the result
of the election insofar as it concerns a returned
candidate has been materially affected. It is thus
obvious that what the Tribunal has to find is
whether or not the election insofar as it concerns
the returned candidate has been materially
affected, and that means that the only point
which the Tribunal has to decide is has the
election of the returned candidate been
materially affected? And no other enquiry is
legitimate or permissible in such a case. This
requirement of Section 100(1)(d) necessarily
imports limitations on the scope of the enquiry.
Confining ourselves to clause (iii) of Section
100(1)(d), what the Tribunal has to consider is
whether there has been an improper reception of
votes in favour of the returned candidate. It may
also enquire whether there has been a refusal or
rejection of any vote in regard to any other
candidate or whether there has been a reception of
any vote which is void and this can only be the
reception of a void vote in favour of the returned
candidate. In other words, the scope of the
enquiry in a case falling under Section
l00(1)(d)(iii) is to determine whether any votes
have been improperly cast in favour of the
returned candidate, or any votes have been
improperly refused or rejected in regard to any
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other candidate. These are the only two matters
which would be relevant in deciding whether the
election of the returned candidate has been
materially affected or not. At this enquiry, the onus
is on the petitioner to show that by reason of the
infirmities specified in Section 100(1)(d)(iii), the
result of the returned candidate's election has
been materially affected, and that, incidentally,
helps to determine the scope of the enquiry.
Therefore, it seems to us that in the case of a
petition where the only claim made is that the
election of the returned candidate is void, the
scope of the enquiry is clearly limited by the
requirement of Section 100(l)(d) itself. The enquiry
is limited not because the returned candidate has
not recriminated under Section 97(1); in fact,
Section 97(1) has no application to the case falling
under Section 100(1)(d)(iii); the scope of the
enquiry is limited for the simple reason that what
the clause requires to be considered is whether the
election of the returned candidate has been
materially affected and nothing else. If the result
of the enquiry is in favour of the petitioner who
challenges the election of the returned candidate,
the Tribunal has to make a declaration to that
effect, and that declaration brings to an end the
proceedings in the election petition."
(Emphasis added)
26. In T.A. Ahammed Kabeer v. A.A. Azeez & Ors., AIR 2003
SC 2271, this Court dealt with the judgment of the Constitution Bench
observing:
"We have already stated that the rigorous rule
propounded by the Constitution Bench in Jabar
Singh v. Genda Lal, AIR 1964 SC 1200, has met
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with criticism in some of the subsequent decisions
of this Court though by Benches of lesser coram
and an attempt at seeking reconsideration of the
majority opinion in Jabar Singh case (supra) has
so far proved to be abortive. The view of the law
taken by the Constitution Bench in Jabar Singh
(supra) is binding on us. Analysing the majority
opinion in Jabar Singh case (supra) and the view
taken in several decisions of this Court, referred to
hereinabove, we sum up the law as under:
(1) In an election petition wherein the limited
relief sought for is the declaration that the election
of the returned candidate is void on the ground
under Section 100(1)(d)(iii) of the Act, the scope of
enquiry shall remain confined to two questions:
(a) finding out any votes having been improperly
cast in favour of the returned candidate, and (b)
any votes having been improperly refused or
rejected in regard to any other candidate. In such
a case an enquiry cannot be held into and the
election petition decided on the finding (a) that
any votes have been improperly cast in favour of a
candidate other than the returned candidate, or
(b) any votes were improperly refused or rejected
in regard to the returned candidate.
(2) A recrimination by the returned candidate
or any other party can be filed under Section 97(1)
in a case where in an election petition an
additional declaration is claimed that any
candidate other than the returned candidate has
been duly elected.
(3) For the purpose of enabling an enquiry that
any votes have been improperly cast in favour of
any candidate other than the returned candidate
or any votes have been improperly refused or
rejected in regard to the returned candidate the
Election Court shall acquire jurisdiction to do so
only on two conditions being satisfied: (i) the
election petition seeks a declaration that any
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candidate other than the returned candidate has
been duly elected over and above the declaration
that the election of the returned candidate is void;
and (ii) a recrimination petition under Section
97(1) is filed.
(4) A recrimination petition must satisfy the
same requirements as that of an election petition
in the matter of pleadings, signing and verification
as an election petition is required to fulfil within
the meaning of Section 83 of the Act and must be
accompanied by the security or the further security
referred to in Sections 117 and 118 of the Act.
(5) The bar on enquiry enacted by Section 97
read with Section 100(1)(d)(iii) of the Act is
attracted when the validity of the votes is to be
gone into and adjudged or in other words the
question of improper reception, refusal or
rejection of any vote or reception of any vote
which is void is to be gone into. The bar is not
attracted to a case where it is merely a question of
correct counting of the votes without entering into
adjudication as to propriety, impropriety or
validity of acceptance, rejection or reception of
any vote. In other words, where on a re-count the
Election Judge finds the result of re-count to be
different from the one arrived at by the Returning
Officer or when the Election Judge finds that there
was an error of counting the bar is not attracted
because the court in a pure and simple counting
carried out by it or under its directions is not
adjudicating upon any issue as to improper
reception, refusal or rejection of any vote or the
reception of any vote which is void but is
performing mechanical process of counting or re-
counting by placing the vote at the place where it
ought to have been placed. A case of error in
counting would fall within the purview of sub-
clause (iv), and not sub-clause (iii) of clause (d) of
sub-section (1) of Section 100 of the Act."
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27. Therefore, in the case at hand, the election
petitioner/respondent has claimed only that there has been
irregularity/illegality in counting of 6 tendered votes and the case
squarely falls within the ambit of Section 100(1)(d)(iii) of the Act,
1951. Election petitioner has further pleaded that the result of the
election stood materially affected because of improper receiving the
six tendered votes and in absence of any Recrimination Petition in the
case the appellant cannot be permitted to lead evidence on the fact
which is not in issue.
28. The judgment in Wilfred D'Souza's case (Supra) has
distinguishable features. In that case, the appellant had asserted that
the result of the election of the respondent had been materially
affected by the improper reception, refusal and rejection of votes and
a specific prayer had been made by the appellant in the election
petition that the election of the respondent be declared void and the
appellant be declared to be duly elected. The respondent had denied
that the tendered votes were cast by genuine voters. The issue had
been framed in that case as under:
"Whether the petitioner proves that the vote or
votes were initially improperly received and
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should be removed and in their place tendered
vote or votes should be taken into account."
The Election Tribunal therein did not record any evidence on
behalf of the respondents and proceeded to decide the case after the
evidence of the witnesses of the appellant had been recorded and after
the box containing the relevant papers had been opened and those
papers were examined. In view of the fact that the appellant had
adduced prima facie proof in respect of two of the tendered ballot
papers, the Election Tribunal was to call upon the respondent to
adduce his evidence and the evidence should not be constrained only
to the two tendered ballot papers in respect of which the appellant had
not adduced any evidence, but would relate to some or all the other 8
tendered ballot papers in respect of which the appellant had not
adduced any evidence.
That was, admittedly, a case wherein a Recrimination Petition
under Section 97 of the Act 1951 had been filed. In the instant case,
there is no such claim made by the parties. In the instant case, an
application had been filed to summon the other 4 tendered votes, also
making a submission that those documents were required by the
parties to resolve the controversy without giving any reason or
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justification for the same. Admittedly, there is no reference to these 4
tendered votes either in the election petition or in the written
statement. The said 4 tendered votes neither had been relied upon in
the reply by the appellant nor had been entered in the list of
documents. Thus, the judgment in this case is quite distinguishable
from the case at hand.
29. In view of the above, we do not find any cogent reason to
interfere with the well reasoned judgment and order of the High Court
impugned herein. The facts and circumstances of the case do not
warrant review of the order passed by the High Court. The appeal
lacks merit and is accordingly dismissed.
..............................J.
(P. SATHASIVAM)
................................J.
(Dr. B.S. CHAUHAN)
New Delhi,
January 24, 2011
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