http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

PETITIONER: INAMATI MALLAPPA BASAPPA

       Vs.

RESPONDENT: DESAI BASAVARAJ AYYAPPA & OTHERS

DATE OF JUDGMENT: 22/04/1958

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. KAPUR, J.L. SARKAR, A.K.

CITATION:  1958 AIR  698            1959 SCR  611

ACT:        Election  Petition-Claim for seat-Recrimination, when  right        accrues-Abandonment  of  claim  for  seat,  if  permissible-        Whether abandonment a affects right of recrimination-Code of        Civil   Procedure   (Act    V  of  1908),  O.   23,   r. 1.-        Representation of the People Act, 1951 (27 Of 1951), ss.  90        and 97.

HEADNOTE: A, the unsuccessful candidate at an election, filed an elec- tion petition against B, the successful candidate,  claiming a declaration’ that the election of B was void and that  lie had  been  duly elected as he had secured the  next  highest number  of  valid votes.  On the first date of  the  hearing before  the  Election Tribunal A  submitted  an  application under 0. 23, r. 1, of the Code of Civil Procedure abandoning the relief claiming the seat.  B objected to the abandonment and  filed  a  notice of recrimination under s.  97  of  the Representation  of the People Act, 1951, accompanied by  the statement and necessary particulars.  A contended that B was not entitled to give evidence in recrimination as the  claim for the seat had been abandoned.  The Tribunal held that  s. 90(1)  of the Act had made the procedure prescribed  by  the Code  of  Civil  Procedure  applicable  to  proceedings   in election petitions and as such A had a right under 0. 23, r. 1,  of  the Code to abandon a part of his claim and  that  A having  abandoned  his claim for the seat B  was  no  longer entitled to recriminate Held, that the provisions of the Act constitute a  self-con- tained code governing the trial of an election petition  and in  -spite of s. 90(1) of the Act, the provisions 0. 23,  r. 1, of the Code of Civil Procedure were not applicable to the trial  of an election petition by the Tribunal ; and it  was not  open  to A to withdraw or abandon a part of  his  claim once an election petition had been presented to the Election Commission,   particularly   when  such  a   withdrawal   or abandonment of a part of the claim would have had the effect of  depriving  B  of the right of  recrimination  which  had accrued  to  him  under  s. 97 Of the  Act.   The  right  of recrimination accrued to B the moment the election  petition was  presented  to the Election  Commission  containing  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

claim for ’the seat, and it was not open to A to defeat this right by withdrawing or abandoning the claim for the seat. An election petition once filed does not mean a contest only between the parties thereto but 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 78 612 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.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 76 of 1958. Appeal  by special leave from the judgment and  order  dated September  26, 1957, of the Election Tribunal,  Dharwar,  in Election Petition No. 52 of 1957. G.   S.  Pathak,  H. J. Umrigar and G. C.  Mathur,  for  the appellant. P.   Ram Reddy, for respondent No. 1. G.   S. Pathak and S., S. Shukla, for the interveners. 1958.  April 22.  The Judgment of the Court was delivered by BHAGWATI  J.-This is the 4th of the series of Civil  Appeals before  us arising out of election petitions  and  involving the   interpretation  of  the  relevant  sections   of   the Representation of the People Act, 1951 (hereinafter referred to  as " the Act ").  The decision of this appeal  turns  on the  construction  of  s. 97 ’of the Act  and  also  on  the jurisdiction  of the Election Tribunals to allow  withdrawal or abandonment of part of the claims before them. The  appellant  and respondents 1 to 3 were  the  contesting candidates  for election to the Mysore Legislative  Assembly from the Dharwar Constituency in the last General Elections. The  appellant  was  the Congress candidate  and  the  first respondent  was the candidate of the Lok Sevak Sangh  party. The  result of the election was declared on March  3,  1957, and  the  appellant was declared elected by  a  majority  of 1,727  votes.  On April 14, 1957, the first respondent  pre- sented to the Election Commission a Petition, being Election Petition  No.  52  of 1957 under s. 80 of  the  Act  wherein besides  claiming  a declaration that the  election  of  the appellant was void he claimed a further declaration that he, the  first  respondent,  had been duly  elected  as  he  had secured  the  next  highest  number  of  valid  votes.   The Election Petition was published in 613 the  official gazette and was then referred to the  Election Tribunal for trial.  ’The appellant and the respondents Nos. 2  and  3  received a notice from  the  Election  Commission requiring  them to appear before the Tribunal on  or  before July  20,  1957.   On the said date,  the  first  respondent submitted before the Election Tribunal what purported to  be an  application  under  0. 23, r. 1, of the  Code  of  Civil Procedure  to the following effect : " The petitioner hereby  abandons part of his claim namely " that  it  be further declared that the petitioner  has  been duly elected as the petitioner has secured the next  highest number of valid votes.  " The petitioner confines his claim, therefore, to have the election of respondent No. 1 declared void and to have costs of the proceedings awarded to him.  " On July 25, 1957, the appellant filed his objections to  the said  application contending inter alia, that by  reason  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

the  fact  that  the first respondent  had  claimed  in  his Election  Petition a declaration that he was  duly  elected, the  appellant  and the other respondents  to  the  Election Petition  had  acquired a right under s. 97 of the  Act,  to file  recrimination against the first respondent subject  of course to compliance with the necessary statutory provisions in  that behalf, and that such right to  file  recrimination could  not be affected by the purported abandonment  of  the relief  by  the first respondent.  On July  29,  1957,.  the appellant gave notice of his recrimination under s. 97.  The said  notice was accompanied by the statement and  necessary particulars as required by s. 97 read with s. 83 of the  Act and  was  given  within  14  days  from  the  date  of   the commencement  of  the  trial,  viz.,  July  20,  1957.   The particulars of corrupt practices under s. 123(1) (a) and (b) and  s.  123(6)  of  the Act thus  given  by  the  appellant comprised  corrupt practices of bribery and using  of  motor vehicles  for the conveyance of voters to the poll which  if proved  would have led to his disqualification for  standing as  a candidate and from. being a member of the  Legislature for  a period of six years counting from the date  on  which the  finding  of the Election Tribunal as to  such  practice took effect under the Act (Vide s. 140). 614 On  August 1, 1957, the first respondent filed an  objection to  the  above-mentioned  notice  under  s.  97  wherein  he contended inter alia that the appellant was not entitled  to give  evidence  in recrimination as the  claim  for  further declaration  had  been abandoned by him.  There had  been  a vacancy for a Legislative Assembly seat from a  neighbouring constituency on account of the death of Shri B. R.  Tambakad on  June 26, 1957, and the first respondent decided to  con- test the election in the vacancy, filed his nomination paper for  the  said vacancy on September 17,1957,  and  was  duly elected  on  October  16, 1957, as a member  of  the  Mysore Legislative Assembly from the Kalaghatgi Constituency. The  application of the first respondent under 0. 23, r.  1, of the Code of Civil Procedure., the notice of recrimination given  by the appellant under s. 97 and the objection  filed by  the  first respondent to the same came  up  for  hearing before  the  Election Tribunal, Dharwar,  and  the  Tribunal framed the following issues:- "  (1) Whether the 1st respondent is entitled to  abandon  a part of his claim in the manner he has done ? (2)  If  so, whether the appellant will be entitled to  give notice to the Tribunal of his intention to give evidence  to prove  that the election of the first respondent would  have been void if he had been the returned candidate ? (3)  Whether  the  notice  of  recrimination  given  by  the appellant is barred by limitation ? " The  Tribunal  held that by virtue of the provisions  of  s. 90(1)  of  the Act the procedure prescribed by the  Code  of Civil  Procedure had been made applicable to proceedings  in election  petitions and as such under the provisions  of  0. 23,  r.  1,  of  the  Code  of  Civil  Procedure  the  first respondent  had a right to abandon a part of his claim.   It further held that in view of the abandonment of part of  the claim by the first respondent, viz., that he be declared  as the  duly  elected  candidate,  neither  the  appellant  nor respondents Nos. 2 and 3 would be entitled to give notice of recrimination under 615 s.   97 and consequently the appellant would not be entitled to  give  evidence to prove that the election of  the  first respondent would have been void if he had been the  returned

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

candidate.   It also held that the notice  of  recrimination given  by  the  appellant  was  not  barred  by  limitation, inasmuch as -under explanation to s. 90(4) the trial of  the petition  was deemed to commence on the date fixed  for  the appellant and the respondents Nos. 2 and 3 to appear  before the  Tribunal,  viz.,  July  20, 1957,  and  the  notice  of recrimination had been given by the appellant within 14 days thereof.   The   Tribunal  accordingly  ordered   that   the abandonment  of  a part of his claims  aforesaid  should  be noted on the petition and further ordered that the appellant could  not give evidence to prove that the election  of  the first  respondent  would have been void if he had  been  the returned  candidate inasmuch as on the abandonment  of  that part of the claim by the first respondent the  recrimination put in by the appellant did not survive. The appellant applied for and obtained on January 13,  1958, from  this Court special leave to appeal under Art.  136  of the  Constitution  to  appeal against the  decision  of  the Election  Tribunal and that is how this Civil Appeal No.  76 of 1958 has come before us. Section 97 of the Act reads as under :- " Recrimination when, seat claimed: (1) When in an  election petition  a  declaration that any candidate other  than  the returned  candidate  has been duly elected is  claimed,  the returned  candidate or any other party may give evidence  to prove  that the election of such candidate would  have  been void  if he bad been the returned candidate and  a  petition had been presented calling in question his election: Provided that the returned candidate or such other party  as aforesaid shall not be entitled to give such evidence unless he   has,  within  fourteen  days  from  the  date  of   the commencement  of the trial, given notice to the Tribunal  of his  intention to do so and has also given the security  and the  further  security referred to in sections 117  and  118 respectively. (2)  Every notice referred to in sub-section (1) shall 616 be accompanied by the statement and particulars required  by section 83 in the case of an election petition and shall  be signed and verified in like manner. Under  the  terms of this section a right  of  recrimination accrues to the returned candidate or any other party to  the Election  Petition where the petitioner besides  claiming  a declaration that the election of all or any of the  returned candidates  is void, claims a further declaration  that  any candidate  other than the returned candidate has  been  duly elected.  Would it then be open to the petitioner to abandon that  part  of  ’the  relief  which  claimed  such   further declaration  so as to deprive the returned candidate or  any other  party to the petition of the right  of  recrimination which  has thus accrued to him; or in other words,  has  the Election  Tribunal  the  power to allow  the  petitioner  to withdraw  or abandon a part of his claim as  aforesaid  thus rendering  the exercise of the said right  of  recrimination nugatory ? It is necessary at the outset, therefore, to understand  the nature  and  scope  of an Election Petition.   As  has  been observed  by  us  in the judgment just  delivered  in  Civil Appeals  Nos. 763 & 764 of 1957 and Civil Appeal No.  48  of 1958:- "  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

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.".......................... An election petition is not a suit between two persons,  but is  a  proceeding in which the constituency  itself  is  the principal party interested. 617 (Vide  Jagan  Nath v. Jaswant Singh (1), A.  Sreenivasan  v. Election Tribunal, Madras (2), The Tipperary case (3)). An Election Petition presented to the Election Commission is scrutinised  by it and if the Election Commission  does  not dismiss it for want of compliance with the provisions of  s. 81,  s.  82 or s. 117 of the Act, it accepts  the  same  and causes  a  copy  thereof to be  published  in  the  official gazette  and  a copy thereof to be served by  post  on  each respondent.   The respondents to the petition not  only  get notice of the same but the constituency as a whole  receives such  notice by publication thereof in the official  gazette so  that  each and every voter of the constituency  and  all parties  interested  become duly aware of the fact  of  such Election  Petition  having been presented.  A  copy  of  the Election  Petition published in the official  gazette  would also show to all of them that the petitioner in a particular Election  Petition,  in addition to claiming  a  declaration that  the election of all or any of the returned  candidates is  void,  has also claimed a further  declaration  that  he himself  or any other candidate has been duly elected.   The whole constituency is thus alive to the fact that the result of  the  election  duly declared is  questioned  on  various grounds  permitted  by law with the likely result  that  the election  of  all or any of the returned candidates  may  be declared void and the petitioner or any other candidate  may be declared duly elected, in place and stead of the returned candidate.  The constituency may have an interest in  either maintaining  the status quo or if perchance the election  of the  returned  candidate is set aside, in seeing  that  some other  deserving candidate is declared elected in his  place and  stead and not necessarily the petitioner or  any  other candidate   sponsored  by  him  whose  election   could   be challenged on any of the grounds mentioned in s. 100(1).  It is  this  interest  of the constituency  as  a  whole  which invests the proceedings before the Election Tribunals with a characteristic of their own and differentiates them from (1) [1954] S.C.R. 892, 895.  (2) (1955) II E.L.R.  278, 293. (3)  (1875) 3 O’M. & H. 19,23. 618 ordinary civil proceedings.  Once this process has been  set in  motion by the petitioner he has released certain  forces which  even  he himself would not be able to recall  and  he would  be bound to pursue the petition to its  logical  end. It may be that he may not be able to substantiate his  claim for  a  declaration that the election of all or any  of  the returned  candidates  is void.  In that event  he  would  of course  fail and no question would arise of his obtaining  a further declaration that lie himself or any other  candidate has been duly elected. All the grounds urged in the Election Petition against the returned candidates under s. 100(1)  of the Act would fail and the election would stand.  The voters would  thus  be  vindicated.  If  the  petitioner,  however, succeeds in establishing his first claim and the election of the returned candidate is declared void, the question  would necessarily  arise when such a further declaration has  been claimed  by  him whether he himself or any  other  candidate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

should  be  declared  duly  elected.   In  that  event,  the occasion would arise for considering whether the  petitioner himself  or any other candidate sponsored by him  should  be declared duly elected.  If the election of the petitioner or such  other candidate could have been challenged on  any  of the  grounds  mentioned  in s. 100(1)  such  election  would certainly have been void if he had been a returned candidate and the petition had been presented calling in question  his election.  A recrimination could there. fore be filed by the returned candidate or any other party to the petition  under s.   97.   The  requisite  notice  under  s.  97  would   be accompanied by the statement and particulars required by  s. 83  in  the  case of an election  petition  and  signed  and verified in like manner. , This notice would be, in  effect, a  counter’ petition presented by the returned candidate  or any other party to the petition accompanied by the statement and  particulars  required  by  s. 83 in  the  case  of  ,in election petition and would also be supported by the deposit of security and further security referred to in ss. 117  and 118 of the Act.  The election contest would then not only be between  the  petitioner on the one hand  and  the  returned candidate on the other but 619 also  between the returned candidate or any other  party  to the petition and the candidate who has been sponsored by the petitioner  for  such  election.   An  election  contest  as aforesaid  would result in the declaration of  the  properly qualified  candidate as duly elected and the maintenance  of the  purity of the elections in which the constituency as  a whole is vitally interested and no person would get  elected by  flagrant  breaches  of the election law  or  by  corrupt practices. This is the purpose of a recrimination and the right to file a  recrimination  accrues to the returned candidate  or  any other party to the petition the moment an election  petition is  presented containing a claim for a  further  declaration that the petitioner himself or any other candidate has  been duly  elected.   The  proviso  to  s.  97(1)  merely  enacts conditions  for the exercise of such right of  recrimination and  states that the returned candidate or such other  party is  not to be entitled to give such evidence unless he  has, within  fourteen days from the date of commencement  of  the trial,  given notice to the Tribunal of his intention to  do so and has also given the security and the further  security referred  to  in  ss. 117 and 118  respectively.   If  these conditions are fulfilled in the manner therein specified the returned  candidate or such other party will be entitled  to give  such  evidence  which right of  course  would  not  be capable of being exercised if either of these two conditions has not been fulfilled.  The accrual of this right, however, is  not postponed till the fulfilment of  these  conditions. It  accrues  the moment an election  petition  containing  a claim  for  such  further declaration is  presented  to  the Election Commission. If  once such a right has accrued to the returned  candidate or  any  other  party to the petition,  can  that  right  be affected  by the petitioner seeking to withdraw  or  abandon that  part  of  his  claim, viz.,  a  claim  for  a  further declaration that he himself or any other candidate has  been duly elected ? If it were permissible for him to withdraw or abandon  a part of his claim on the analogy of 0. 23, r.  1, of the Code of Civil Procedure, 79 620 he would make a virtue of necessity and withdraw or  abandon

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

that  part of his claim so as to avoid any investigation  in the  Election  Petition itself in regard to himself  or  any other  candidate  sponsored  by him on any  of  the  grounds mentioned  in s. 100(1) including corrupt  practices  within the  meaning  of  s.  123 which if  proved  would  entail  a disqualification  for  standing as a candidate or  even  for voting for a period of 6 years under ss. 140 and 141(b). So  far  as withdrawal of petitions is concerned  there  are specific  provisions  enacted in the Act beginning  with  s. 108.   Section  108 deals with the withdrawal  of  petitions before  the  appointment of Tribunals and provides  that  an election  petition  may be withdrawn only by  leave  of  the Election Commission if an application for its withdrawal  is made before any Tribunal has been appointed for the trial of such  petition.   Section 109 deals with the  withdrawal  of petitions after the appointment of Tribunals and enacts that where an application for withdrawal of an election  petition is made after a Tribunal has been appointed for the trial of such  petition, the election petition may be withdrawn  only by leave of the Tribunal and a notice of such an application fixing  a date for the hearing of the application is  to  be given  to  all other parties to the petition and  is  to  be published  in the official gazette.  Section 110  prescribes the  procedure  for  withdrawal  of  petitions  before   the Election  Commission or the Tribunal and s. 110(2)  provides that  no application for withdrawal is to be, granted if  in the  opinion of the Election Commission or of the  Tribunal, as the case may be, such application has been induced by any bargain or consideration which ought not to be allowed.   If such an application is granted, notice of the withdrawal  is to  be  published in the official gazette  by  the  Election Commission  or  by the Tribunal as the case may  be;  and  a person who might himself have been a petitioner may,  within fourteen days of such publication apply to be substituted as petitioner  in  -place of the party  withdrawing,  and  upon compliance with the conditions of s. 117 as to security,  is to  be  entitled to be so substituted and  to  continue  the proceedings 621 upon  such  terms as the Tribunal may think  fit.   When  an application for withdrawal is granted by the Tribunal and no person  has been substituted as, petitioner in place of  the party  withdrawing as above, the Tribunal is to  report  the fact  to the Election Commission and thereupon the  Election Commission shall publish the report in the official gazette. This  will ring the curtain on the election contest and  the result of the election which has been duly declared will  no more be liable to be disturbed. There  are also provisions enacted in the Act which  provide for the consequences of the death of a sole petitioner or of the  survivor  of  several  petitioners  or  the  death   or withdrawal  of  opposition by the sole  respondent  therein. Section  112 provides that an election petition shall  abate on  the  death of a sole petitioner or of  the  survivor  of several  petitioners.  If an election petition  thus  abates before  a Tribunal has been appointed for the trial  of  the petition, notice of the abatement shall be published in  the official  gazette by the Election Commission (Vide s.  113). If  on  the other hand an election petition abates  after  a Tribunal  has been appointed for the trial of the  petition, notice of the abatement has to be published in the  official gazette by the Tribunal (Vide s. 114).  The death of a  sole petitioner  or  of  the  survivor  of  several  petitioners, however,  does not spell the termination of the  proceedings and s. 115 provides that after a notice of the abatement  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

an election petition is published under s. 113 or s. 114 any person who might himself have been a petitioner may,  within fourteen  days of such publication, apply to be  substituted as petitioner and upon compliance with the conditions of  s. 117  as to security shall be entitled to be  so  substituted and  to  continue  the proceedings upon such  terms  as  the Tribunal  may think fit.  The position as it obtains on  the death or withdrawal of opposition by a respondent is  worked out  in s. 116 which provides that if before the  conclusion of  the  trial of an election petition the  sole  respondent dies  or gives notice that he does not intend to oppose  the petition or any of the respondents dies or gives such notice and 622 there  is no other respondent who is opposing  the  petition the  Tribunal  shall  cause  notice  of  such  event  to  be published in the official gazette, and thereupon any  person who  might have been a petitioner may, within fourteen  days of  such  publication, apply to be substituted in  place  of such  respondent  to  oppose  the  petition,  and  shall  be entitled to continue the proceedings upon such terms as  the Tribunal may think fit. The  above provisions go to show that an  election  petition once filed does not mean a contest only between the  parties thereto but creates a situation which the whole constituency is entitled to avail itself of. Any person who might himself have been a petitioner is entitled to be substituted, on the fulfilment  of the requisite conditions and upon such  terms as  the Tribunal may think fit, in place of the party  with- drawing and even the death of the sole petitioner or of  the survivor  of several petitioners does not put an end to  the proceedings,  but  they can be continued by any  person  who might  himself  have been a petitioner.  Even  if  the  sole respondent  dies or gives notice that he does not intend  to oppose the petition or any of the respondents dies or  gives such notice and there is no other respondent who is opposing the petition, a similar situation arises and the  opposition to  the  petition can be continued by any person  who  might have  been a petitioner, of course on the fulfilment of  the conditions prescribed in s. 116.  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. If, therefore, an election petition duly presented cannot be thus  withdrawn by the petitioner, is there any warrant  for the  contention  that  even though he may  not  be  able  to withdraw  his  petition in the manner aforesaid  he  can  at least  abandon a part of his claim on the analogy of 0.  23, r. 1, of the Code of Civil 623 Procedure?   The  whole petition cannot  be  withdrawn;  but would  it not be possible for the petitioner to withdraw  or abandon a part of his claim as above?  The provisions of  s. 90  of  the Act are sought to be relied upon in  support  of this contention.  Section 90(1) provides that subject to the provisions  of  the Act and of any  rules  made  thereunder, every  election petition shall be tried by the Tribunal,  as nearly   as  may  be,  in  accordance  with  the   procedure applicable under the Code of Civil Procedure to the trial of suits,  provided  however that the Tribunal shall  have  the discretion  to refuse for reasons to be recorded in  writing to examine any witness or witnesses if it is of the  opinion

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

that their evidence is not material for the decision of  the petition  or  that  the  party  tendering  such  witness  or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.  Under s. 90(2) the provisions of the Indian  Evidence Act, 1872, shall subject to the  provisions of this Act, be deemed to apply in all respects to the trial of  an election petition.  Section 90(4) provides  that  any candidate  not already a respondent shall, upon  application made  by him to the Tribunal within fourteen days  from  the date  of  commencement  of  the trial  and  subject  to  the provisions  of  s.  119,  be entitled  to  be  joined  as  a respondent.   Section 90(5) provides that the Tribunal  may, upon  such  terms as to costs and otherwise as it  may  deem fit,  allow the particulars of any corrupt practice  alleged in the petition to be amended or amplified in such manner as may  in  its opinion be necessary for ensuring  a  fair  and effective  trial  of the petition, but shall not  allow  any amendment  of  the petition which will have  the  effect  of introducing particulars of a corrupt practice not previously alleged  in the petition.  It is clear from the  above  that the section only provides for the procedure for the trial of election  petitions by the Tribunals.  It provides  for  the examination  of  witnesses,  the rules  of  evidence  to  be followed, the joinder of candidates not already  respondents as  respondents  and  the  amendment  or  amplification   of particulars  of  a corrupt practice already alleged  in  the petition.  The powers of a Tribunal are, however, separately dealt with in s. 92 624 which  enacts that the Tribunal shall have the powers  which are  vested  in a court under the Code of  Civil  Procedure, when trying a suit in respect of the following  matters:-(a) discovery  and inspection; (b) enforcing the  attendance  of witnesses, and requiring the deposit of their expenses;  (e) compelling  the  production  of  documents;  (d)   examining witnesses on oath; (e) granting adjournments; (f)  reception of evidence taken on affidavit; and (g) issuing  commissions for the examination of witnesses, and may summon and examine suo  motu  any  person whose evidence appears to  it  to  be material; and shall be deemed to be a civil court within the meaning  of  ss.  480  and  482  of  the  Code  of  Criminal Procedure, 1898.  It will be noticed that the procedure  for trial before the Tribunal and the powers of the Tribunal are treated separately thus distinguishing between the procedure to  be  followed  by  the Tribunal  and  the  powers  to  be exercised  by  it.  There are also other  provisions  to  be found  in  the Act which relate to place of trial  (s.  88); Power  of  Election  Commission  to  withdraw  and  transfer Petitions  (s.  89);  appearance before  Tribunal  (s.  91); documentary  evidence  (s.  93);  answering  of  criminating questions and certificate of indemnity (s. 95) and  expenses of  witnesses (s. 96).  The effect of all  these  provisions really is to constitute a self-contained Code governing  the trial  of  election petitions and it would  appear  that  in spite of s. 90(1) of the Act, the provisions of 0. 23, r. 1, of  the Code of Civil Procedure, would not be applicable  to the  trial of election petitions by the Tribunals.   If  the withdrawal of a petition cannot be permitted and any  person who might have been a petitioner is entitled to continue the proceedings,  on a parity of reasoning, the withdrawal of  a part  of  the  claim also could  not  be  permitted  without allowing another person who might have been a petitioner  an opportunity  of  proceeding with that part of the  claim  by substituting  himself in place and stead of  the  petitioner who withdraws or abandons -the same.  If the constituency as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

a  whole is interested in the petition presented before  the Election  Tribunal  no such withdrawal or abandonment  of  a part of the claim could ever be permitted without giving an 625 opportunity  to any person who might have been a  petitioner to  continue the proceedings and pursue the petition to  its logical conclusion. The  provisions  of  0.  23, r. 1,  of  the  Code  of  Civil Procedure  also  contain inherent evidence  which  militates against  this  contention.  Order 23, r.  1,  sub-rule  (2), provides  for  liberty being given by the Court to  a  party withdrawing  or  abandoning a part of his claim  to  file  a fresh  suit on the same cause of action, if so advised.   In the very nature of things such liberty could not be reserved to  a  petitioner in an election petition.   The  provisions above  referred to in regard to withdrawal of  petitions  do not provide for the same and if they do not do so, can it be urged  that  the provisions of 0. 23, r.  1,  sub-rule  (2), though  they  may not apply to the cases  of  withdrawal  of petitions  may  nevertheless  apply  where  the   petitioner withdraws  or  abandons  a  part of his  claim  ?  If  these provisions do not apply to the withdrawal or abandonment  of a  part  of the claim in the case of an  election  petition, could   it  then  be  urged  that  nevertheless  the   other provisions  of O. 23, r. 1, would apply and  the  petitioner would be at liberty to   withdraw  or abandon a part of  his claim ? On  a due consideration of all these provisions, we  are  of opinion that the provisions of O. 23, r. 1, do not apply  to the  election  petitions  and  it would not  be  open  to  a petitioner  to withdraw or abandon a part of his claim  once an   election  petition  was  presented  to   the   Election Commission, more so when such a withdrawal or abandonment of a  part of the claim would have the effect of depriving  the returned candidate or any other party to the petition of the right of recrimination which had accrued to him under s.  97 of the Act. This  is also the position in England.  Halsbury’s  Laws  of England,  3rd Ed., Vol. 14, para. 451, p. 258, contains  the following passage under the caption Amendment of petition  " :- " The withdrawal of that portion of a petition which  claims the  seat cannot, however, be effected by way  of  amendment because  the  rights of the electors would  be  affected  by their  not  having the opportunity of  substituting  another petitioner. 626 See also the passage at ibid p. 300, para. 541 :- "  It  seems  that  where  the  petition  prays  the   seat, recriminatory evidence may be offered, notwithstanding, that the prayer for the seat is abandoned at the trial. The case of Aldridge v. Hurst (1) elucidates this  position. Grove J. in that case observed as follows:- "  Numerous provisions of the Act have reference not  merely to  the  individual interests or rights  of  petitioners  or respondents,  but to rights of electors, of  constituencies, and  of the public, in purity of election and in having  the member  seated who is duly returned by a majority of  proper votes.  It appears to us also that the scope of the Act  is, that petitions should not be mere pleadings, nor framed  for the  purpose  of intimidating or in any  way  inducing,  the respondent  to  abandon  his seat; still  less,  of  course, should they be collusive; but that they should be real, well considered,  and  not lightly withdrawn either in  whole  or part .............................................

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

These  section show that not mearely may the  candidate  who is  not returned claim the seat, or in other words claim  to have  been   duly elected, but that any  other  voter  might claim the seat for a candidate who has not been returned." This  right    petitioning shows that the Act  contemplates, in regard to petitions, not merely the rights of  candidates not  returned, but the rights of the constituency to  insure that  the person really elected should be their member;  and this without the cost and disturbance of a new election,  as the judge’s decision in favour of such claim is final."    "   It appears to us that it would be an  infringement  of this  right,  if, a petition having been  presented  by  one person  (in  this case a candidate) claiming the  Beat,  the claim  to the seat could be withdrawn by the mere motion  of the person presenting it, after the twenty-one days, when no other  petition could be presented, and thus the  voters  be prevented from claiming (1)  (1876) L.R. C.P. 410, 413, 414. 415, 417- 627 the seat for one who may be the duly elected representative; or,  on  the  other  hand, from  shewing  by  means  of  the recriminative charges which put in issue the claim, that the claimant  is  not  a person entitled to  the  seat  by  that election  or that he is disqualified for  future  elections; such  withdrawal  not  being accompanied  by  the  power  to substitute  another person as petitioner, by means of  which the inquiry might be gone into at the trial.  " "  It appears to us that the withdrawal of this  portion  of the prayer- of the petition is in pari materia with, even if it is not within, the provisions of the Act relative to  the withdrawal of a whole petition." " It is also to be observed that, although petitions may  be presented  at the last moment, it is commonly known  in  the county  or  borough  that such petitions are  likely  to  be presented  ; and if any suspicion exists that they are  sham petitions,  means are taken by those who are in  earnest  to lodge  petitions;  and the entire  withdrawal  of  collusive petitions is guarded against by the provisions of the Act to which we have alluded." "  In  one  point  of view it is  an  argument  against  our allowing  this prayer to be withdrawn, that, if there be  no power  under the withdrawal clauses to substitute  a  person for the petitioner as to this prayer, the constituency  will be  without means of proving either that the  petitioner  is the duly-elected member, or to answer his allegation that he is elected, or to shew that he is unfit to serve in a future parliament, he himself having raised this issue by  claiming the seat." It  is,  therefore,  clear that there is  no  power  in  the Election  Commission  to allow a petitioner to  withdraw  or abandon  a part of his claim either by having resort to  the provisions of 0. 23, r. 1, of the Code of Civil Procedure or otherwise.  If that is so, the right of recrimination  which has  once  accrued to the returned candidate  or  any  other party to the petition under s. 97 of the Act cannot be taken away,  and the returned candidate or any other party to  the petition would in 80 628 such  circumstances  be entitled to give evidence  to  prove that  the election of the petitioner or any other  candidate sponsored  by  him would have been void if he had  been  the returned candidate and a petition had been presented calling in question his election.  The counter petition which has in effect  been  thus filed by the returned  candidate  or  any other  party to the petition must be allowed to proceed  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

the  right of recrimination should continue to be  exercised notwithstanding  the attempted abandonment of a part of  his claim  by the petitioner with the inevitable result that  if any  corrupt  practice  within the meaning of  s.  123  were proved  against  the  petitioner  or  any  other   candidate sponsored   by   him   it  would   entail   upon   him   the disqualification  for  standing as a candidate or  even  for voting for a period of 6 years under ss. 140 and 141(b).  In the  present case, such proof on the part of  the  appellant would  have  not  only entailed upon the  lst  respondent  a disqualification  for  voting  but even for  standing  as  a candidate  for  a period of six years, with  the  inevitable consequence  that  his election to  the  Mysore  Legislative Assembly  from  the Kalaghatgi constituency on  October  16, 1957, would have been void and lie would have been unseated. We  have, therefore, come to the conclusion that  the  order passed  by the Election Tribunal allowing abandonment  of  a part of the claim by the first respondent and precluding the appellant from giving evidence to prove that the election of the first respondent would have been void if he had been the returned  candidate was clearly erroneous and liable  to  be set aside. We accordingly allow the appeal and reverse the order passed by  the  Election Tribunal dated September  26,  1957.   The Election  Tribunal  shall  proceed with  the  trial  of  the election  petition  on the claims as  they  were  originally included  in the petition and will also allow the  appellant to  exercise his right of recrimination under s. 97  of  the Act.  The first respondent will pay the appellant’s costs of this  appeal and the costs thrown away before  the  Election Tribunal. Appeal allowed. 629