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

J U D G M E N T   

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  

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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  

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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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