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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL No.     5851         OF 2010 (Arising out of SLP (C) No.13565 of 2008)

Md. Alauddin Khan           ... Appellant

Versus

Karam Thamarjit Singh           ... Respondent

J U D G M E N T

V. S. SIRPURKAR, J.

1. I have had the benefit of the opinion expressed by my brother.  

Since  the  facts  in  this  appeal  have  been  meticulously  put  in  that  

judgment, I need not restate them.  It is held in that judgment that the  

order passed by the Learned Single Judge deleting paragraphs 22 to 31  

from the written statement of the elected candidate in pursuance of the  

application filed by the election petitioner under Order VI Rule 16, Code  

of Civil Procedure is correct.  With deepest respect to my brother, I find  

myself unable to agree with the view taken, as also the ultimate order  

passed  in  pursuance  of  that  view.   In  my  opinion,  the  Learned  

Designated  Election  Judge  was  not  right  in  striking  out  those  

paragraphs and the application made by the election petitioner under  

Order VI Rule 16, CPC was liable to be dismissed.

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2. The election petitioner was a losing candidate and he had lost his  

election  by merely  two votes.   In  the  election  petition,  the  following  

prayers were made:

“....................

(iii) to order a re-count of the votes after excluding the  void votes if required;

(iv) to declare the election of  the Respondent No.1 as  void;

(v) to pass other and further orders as may be deemed  fit  by  the  Hon’ble  Court  in  the  facts  and  circumstances of the case.”

3. During pendency of the case, an application came to be made by  

the  winning  candidate  herein  seeking  a  direction  to  the  election  

petitioner to clarify the exact relief sought for in prayer Nos.(iv) and (v)  

as probably, because the prayer in clause (v) was too general and the  

appellant  herein  probably  wanted  to  know  as  to  what  were  the  

ramifications of that direction and, more particularly, whether it included  

a prayer for a direction in favour of the election petitioner in case, if, as a  

result of the recount, it was found that he had secured more votes than  

the elected candidate.  

4. A clear cut order came to be passed to the effect that the election  

petitioner  had not  made any prayer to  declare  himself  or  any other  

candidate  as  an  elected  candidate,  which  declaration  can  be  given  

under Section 101 of the Representation of the People Act, 1950.  The  

Learned Judge, therefore, held that, under clause (v), the Court could

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grant only such reliefs or pass such reliefs which were ancillary to the  

election petition and no specific declaration could be made in favour of  

the election petitioner or any other candidate and resultantly, the elected  

candidate could  not  raise  a  defence that  the  election  petitioner  had  

secured votes which were void and hence, the appellant had secured  

more votes and was rightly elected.  

5. By way of  defence,  the appellant  herein,  who was an elected  

candidate, has enumerated from paragraphs 22 to  31 that  even the  

defeated candidate had not secured the votes which have been shown  

to have been cast in his favour as, even in his case, number of dead  

voters  had  cast  votes;    besides,  numbers  of  votes  were  illegally  

counted in his favour.  He, therefore, raised a question that,  if  at  all  

recount  had  to  be  ordered,  the  votes  of  all  the  candidates  who  

contested the election should be counted.  

6. In paragraph 21, it was suggested in the following words that:

“as  provided  and  regulated  by  the  procedure  of  CPC,  the  present answering respondent has hereby sought for raising  counter claim as to the maintainability of the total number of  votes obtained by the election petitioner”.  

7. In paragraph 22, details have been given regarding four polling  

stations, namely 6/1, 6/2, 6/3 and 6/4 suggesting the number of persons  

voted, who were, in fact, dead or who could not have otherwise cast  

their vote and also gave names of the persons who had impersonated  

the dead persons and had cast their votes.  In these paragraphs, more

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particularly, paragraph 28 says that, in the alternative, if the High Court  

has  to  direct  the  recounting,  the  High  Court  should  also  direct  

recounting of the void votes of polling station Nos. 6/1, 6/2, 6/3 and 6/4  

and cancel them.  In short, the contention was that if there is going to be  

a recount, the said recount should be of all the candidates including the  

election petitioner.  

8. Here was the case where the recount was prayed for, not of the  

votes of a returned candidate, but of all the candidates.  The prayer was  

extremely general in nature suggesting the order of the recount of the  

votes after excluding the void votes, if  required.  Therefore, at  least,  

insofar as the prayer clause is concerned, there is nothing to suggest  

that the recount was restricted to the votes of the returned candidate.   

9. In order to buttress his case and, more particularly, to raise a valid  

defence to  the  election  petition,  the  elected  candidates  alleged that  

number of dead persons had cast the votes in other polling stations.  All  

that he had claimed was scrutiny of the votes polled so that there could  

be a proper decision on the issue as to who had polled the maximum  

votes.  It could not have been said and indeed it was not said by the  

elected candidate as to in whose favour these votes had gone and it  

was  impossible  for  him  to  contend  that  the  votes  polled  by  some  

impersonators would have gone only in favour of the election petitioner  

or some other candidate.  Some of those could have been cast in his  

own favour.  Therefore, it was clear by these paragraphs that the plea

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was  to  make  a  recount  of  all  the  votes  cast  of  all  the  contesting  

candidates and for that purpose, permit him to prove that, even in some  

other polling stations, some impersonators of the dead persons were  

allowed to vote.  It was not as if the elected candidate had made any  

claim in terms of recrimination either against the election petitioner or  

any of the other candidates contesting that election and in fact, there  

were three more candidates contesting elections.  

10. In my opinion, therefore, the plea raised in these ten paragraphs  

(from 22 to 31) was not in the nature of recrimination, but, thereby the  

election candidate was setting up a valid defence and was suggesting  

that it was a case of the election petitioner that in particular number of  

polling stations, some impersonators had voted in the name of dead  

persons.  Such things had happened in other constituencies also and,  

therefore, the votes cast in the name of dead persons in all the polling  

stations, more particularly,  the named polling stations should also be  

deleted or held to be void votes.  [This, according to me, could not be  

viewed as a recriminatory plea which was barred under Section 97 of  

the Act.]

11.   True it  is  that  the  words ‘counter  claim’ have  been used in  

paragraph 21, but then the question would be as to whether by way of  

that so-called counter claim, the elected candidate wanted any other  

candidate’s proposed election to be upset.  It was not a question of this  

sort  as  no  declaration  was  ever  prayed  by  the  election  petitioner.

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Therefore, this counter claim, in my opinion, was only to raise a valid  

defence to save his own election and it was in the nature of raising or  

introducing pleadings permitting him to show that it is not only in respect  

of  the particular  polling  stations named in  the  election  petitions that  

some votes  cast  in  the name of  dead persons were  required to  be  

declared as void, but such votes, cast in other polling stations also were  

required to be declared void in order to know as to who had, in fact,  

polled the majority of votes.  

12.   In my opinion, there was nothing wrong in raising this plea, more  

particularly, because rule of democracy, which depends upon the valid  

elections, can be called to be the 'basic structure of the Constitution of  

India'.  Democratic Government is what we have assured to ourselves  

by the Constitution.  There is creation of an Election Commission to  

control the election process in the country and it goes without saying  

that obtaining of majority valid votes is the soul of valid election.  

13.   In this behalf, when a question was put to the Learned Counsel  

appearing for  the respondent herein Shri  P.  S.  Narasimhan, he very  

candidly agreed that,  in  fact,  only those votes  will  be  declared void  

which have been cast in the name of dead persons, only in the named  

polling stations in the election petition, in the process of recount and the  

elected candidate will not be allowed to suggest that such votes have  

been cast in other polling stations also which, if proved, would have the  

effect of affecting the votes of the election petitioner or other candidates

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who had lost.  Shri Narasimhan further suggested as a sequel to his  

argument that, in the process of recount, if ordered in pursuance of the  

pleadings in the election petition, only the votes cast in favour of the  

elected candidate alone shall be counted, whereas, even if it is proved  

that, in some other polling stations also votes were cast in the name of  

dead persons, those votes cannot be invalidated, even if it is found that  

those votes had been cast in favour of the election petitioner or  other  

defeated  candidates.   In  short,  according  to  the  Learned  Senior  

Counsel,  it  is  only the votes of  the elected candidates which will  be  

counted and counting of votes in respect of all the other candidates will  

be of no consequence.  According to me, if this procedure is adopted in  

the recount, it  will be direct annihilation of the principle of majority of  

votes for declaring the elected candidate.  

14. I have already shown above that such a recount is not prayed for.  

The recount prayed for is a general recount but if the recount is to be  

made in such a peculiar fashion, then, it may be that even when the  

elected candidate has actually secured majority of votes, his election  

would have to be set aside.  In fact, there will be no way to know as to  

who has actually secured majority of votes, if  in a recount, the votes  

cast only in favour of the returned candidate are counted while ignoring  

his  plea  that  there  are  some void  votes  cast  in  favour  of  the  other  

candidates.  In my opinion, this cannot be the import of Sections 100(1)  

(d) (iii), 84 and 97 of the Act.  

Section 100(1)(d)(iii) runs as under :-

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100. Grounds for declaring election to be void:

(1) Subject  to  the  provisions  of  sub-Section  (2)  if  the  High Court is of opinion-

(a) Not relevant

(b) Not relevant

(c) Not relevant

(d) that  the result  of  the election,  in  so far  as it  concerns  a  returned  candidate,  has  been  materially affected-

(i) Not relevant

(ii) Not relevant

(iii) by  the  improper  reception,  refusal  or  rejection of any vote or the reception of  any vote which is void, or  

(iv) Not relevant

(2)    Not relevant

then the High Court may decide that the election of  the returned candidate is not void.  

Section 84 is as under:

“84. Relief  that  may be  claimed by the  petitioner.–A  petitioner may, in addition to claiming a declaration  that  the  election  of  all  or  any  of  the  returned  candidates is void, claim a further declaration that he  himself  or  any  other  candidate  has  been  duly  elected.”

Section 97 is in the following terms:

“97. Recrimination when seat claimed.–

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(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 had 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 [commencement  of the trial], given notice to 2[the High Court] 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  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.”

15.  In the present case, Sections 84 and 97 are not relevant because  

there is  no such declaration prayed for  by the election petitioner for  

declaring himself or any other candidate as duly elected candidate.  We  

shall, therefore, keep those two Sections a little aside and concentrate  

on Section 100(1)(d)(iii) of the Act.  It is only on the basis of this Section  

and, more particularly, the law laid down by this Court earlier that the  

concerned paragraphs in the Written Statement have been ordered to  

be deleted holding that the returned candidate cannot urge even by way  

of a valid defence that the other candidates have also been benefited by  

some void votes having been cast in their favour.  It was held by the  

High Court that such plea cannot be raised by an elected candidate

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where there is no prayer made under Section 84 and resultantly, if there  

is a recount of votes, it will be only of the votes secured by the elected  

candidate.  For this purpose, heavy reliance was placed on the decision  

in the case of  Jabar Singh Vs. Genda Lal [AIR 1964 SC 1200].  This  

was a case where, in addition to the prayer of election of the returned  

candidate to be declared void,  another prayer was also made under  

Section 84 of the Act.  However, the returned candidate had failed to file  

any recrimination under Section 97 of the Act.  It was on this backdrop  

that the case proceeded.  It  was found that the course taken by the  

Tribunal and confirmed by the High Court in regard to examining validity  

of the votes cast in favour of the election petitioner was not correct and  

that, on bare reading of Section 100(1)(d)(iii) of the Act, it was possible  

only  to  examine  validity  of  the  votes  cast  in  favour  of  the  returned  

candidate alone.  

16.  The factual scenario in the case of Jabar Singh Vs. Genda Lal  

(cited  supra) was that  appellant  Jabar  Singh  was declared elected  

having defeated the respondent Genda Lal by 2 votes.  The election  

petition  filed  by  respondent  Genda  Lal  before  the  Election  Tribunal  

ordered a recount and found that Genda Lal had secured 5664 votes as  

compared to Jabar Singh, who had secured 5652 votes.  This was the  

position after recount which was ordered by the Tribunal.  However, at  

that  stage,  Jabar  Singh  raised  an  objection  that  there  should  be  

recounting and re-scrutiny on the ground that improper votes had been

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accepted in favour of Genda Lal and valid votes had been improperly  

rejected  when  they  were  cast  in  favour  of  appellant  Jabar  Singh.  

Respondent  Genda  Lal,  of  course,  objected  to  this  course  on  the  

ground that Jabar Singh had neither recriminated nor had complied with  

the provisions under Section 97(1).  The Tribunal, however, rejected the  

contention raised by  respondent Genda Lal and held that, in order to  

consider  the  relief  which  respondent  Genda  Lal  had  claimed  in  his  

election petition, it was necessary to decide whether Genda Lal had, in  

fact, received majority of votes under Section 101 of the Act and so the  

Tribunal went on to   re-examine the ballot papers of the respondent, as  

also appellant Jabar Singh and came to the conclusion that 22 ballot  

papers having votes cast in favour of the respondent had been wrongly  

accepted.  Thus,  it  came to the conclusion that  respondent had not  

secured  majority of the votes.  The Tribunal, however, held the election  

of Jabar Singh to be void and also refused to grant declaration to the  

respondent Genda Lal that he was duly elected.  Two appeals came to  

be  filed  before  the  High  Court  against  the  decision  of  the  Election  

Tribunal; one by Jabar Singh and second by Genda Lal.  Relying on the  

reported decision in the case of  Inayatullah Khan Vs. Diwanchand  

Mahajan [AIR 1959 M.P. 58] as well as the decision of this Court in the  

case of Bhim Sen Vs. Gopali [22 Election Law Reports 288 SC], both  

the appeals were dismissed by the High Court.  Jabar Singh filed an  

appeal before this Court, while Genda Lal’s appeal was dismissed on  

the ground of delay.  The matter was referred to the Five Judges’ Bench

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on account of the earlier judgment by this Court in the case of  Bhim  

Sen Vs. Gopali [cited supra].  Before this Court, appellant Jabar Singh  

contended that, in fact, 22 votes received in favour of Genda Lal could  

not  have  been  so  received  by  him  and  they  could  not  have  been  

accepted as valid votes in his favour.  This Court, therefore, went into  

the true import of Section 100(1) read with Section 101 of the Act.  The  

Court noted the following contentions raised by appellant Jabar Singh:-

“Mr. Kapoor contends that in dealing with the cases falling  under  Section  100(1)(d)(iii),  Section  97  can  have  no  application and so, the enquiry contemplated in regard to   cases  falling  under  that  class  is  not  restricted  by  the  prohibition prescribed by Section 97(1).  He suggests that   when the Tribunal decides whether or not the election of   the returned candidate has been materially affected by the  improper reception,  refusal,  rejection of  any vote,  or  the  reception of any vote which is void, it has to examine the  validity of all votes which have been counted in declaring  the returned candidate to be elected, and so, no limitation  can be imposed upon the right of the appellant to require   the  Tribunal  to  consider  his  contention  that  some votes  which were rejected though cast  in  his  favour  had been  improperly rejected and some votes which were accepted  in favour of the respondent had been improperly accepted.  Basing himself on this position, Mr.Kapoor further contends  that  when Section 101 requires that  the Tribunal  has to  come to the conclusion that in fact that petitioner or such  other candidate received a majority of the valid votes, that  can be done only when a recount is made after eliminating  invalid votes, and so, no limitations can be placed upon the  scope  of  the  enquiry  contemplated  by  Section  101(a).  Since  Section  100(1)(d)(iii)  is  outside  the  purview  of   Section 97, it would make no difference to the scope of the   enquiry  even  if  the  appellant  has  not  recriminated  as  required by Section 97(1).”

17. This  argument  was  resisted and the  Court  had dealt  with  the  

argument in para 9 of the judgment as under :-

“On the other hand, Mr.Garg who has addressed to us a

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very able argument on behalf of the respondent, urged that   the approach adopted by the appellant in dealing with the  problem posed for  our decision in  the present appeal  is   inappropriate.  He contends that in construing Sections 97,  100 and 101, we must bear in mind one important fact that   the returned candidate whose election is challenged can  face the challenge under Section 100 only by making pleas  which can be described as pleas affording him a shield of   defence,  whereas  if  the  election  petition  besides  challenging  the  validity  of  the  returned  candidate  claims  that some other person has been duly elected, the returned  candidate is given opportunity to recriminate and by way of   recrimination he can adopt pleas which can be described  as weapons of attack against the validity of the election of   the  other  person.   His  argument  is  that  though  Section  100(1)(d)(iii) is outside Section 97, it does not mean that in  dealing  with  a  claim  made  by  an  election  petition  challenging the validity of his election, a returned candidate  can both defend the validity of his election and assail the   validity of the votes cast in favour of the petitioner or some  other person.  It is in the light of these two rival contentions  that we must now proceed to decide what the true legal   position in the matter is.”

18. Following were the observations made in the majority judgment in  

para 10:-

“It  would be  convenient  if  we  take a  simple case of  an  election petition where the petitioner makes only one claim  and that is  that the election 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 petition 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 in so far 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 in so far as it concerns  the returned candidate has been materially affected, and

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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  100(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 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(1)(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.....   the Tribunal has to make a declaration to that effect, and  that  declaration brings to an end the proceedings in  the  election petition.” (emphasis supplied)

This  judgment  was  given  by  Hon’ble  Gajendragadkar,  J.  

However, Hon’ble Ayyangar, J., in his minority judgment, did not agree  

with the interpretation put forward by Hon’ble Gajendragadkar, J. on the

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correct import of Section 100(1)(d)(iii).  Hon’ble Ayyangar, J. had very  

painstakingly  pointed  out  that  the  interpretation  put  forward  in  the  

majority judgment was not correct.  In Para 30 of the judgment, after  

quoting the Section, the learned Judge formulated the question of law in  

the following words:-

“what is  the import of  the words  by the improper reception, refusal or rejection of any vote  or the reception of any vote which is void?

The learned Judge left out of the consideration the last clause  

i.e. “the reception of any vote which is void” and considered only the  

earlier clause.  The learned Judge further held that the jurisdiction of the  

Election Tribunal to declare the election void arises only if it is of the  

opinion that result of the election has been materially affected by the  

defects or improprieties set out in clause (i) to (iv), so that even if there  

are such improprieties or illegalities and yet if the result of the election is  

not  materially  affected,  the returned candidate would retain his  seat.  

The learned Judge then pointed out that, the Tribunal, in considering  

whether  the  result  of  an  election  had  been materially  affected,  was  

confined  to  the  consideration  of  any  impropriety  alleged as  regards  

reception  of  the  votes  of  the  returned  candidate  as  well  as  the  

improprieties alleged by the petitioner in refusal  or  rejection of  votes  

stated to have been cast in favour of that petitioner and denials of these  

charges by the returned candidate.  It  was further observed that the  

contention raised was that, in dealing with an objection under Section

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100(i)(d), the Tribunal had jurisdiction to proceed only on the allegations  

made in the petition and that, even where a case had been established  

for a scrutiny and recount was ordered, it would be so confined and that  

its  jurisdiction  would  not  extend  to  the  cases  of  complaints  by  the  

returned candidate.  The learned Judge specifically refused to accept  

this  argument.   In  para 32,  the  learned Judge then gave a specific  

example in the following words:-

“32 …….  Let  us  suppose  that  A  has  been  declared  elected as having secured, say 200 votes as against   B who has secured 190.  If B in his election petition  says that A’s votes have been wrongly counted as  200,  whereas, in  fact,  if  they were recounted they  would  only  be  180  and the  Tribunal  on  a  recount  finds the allegation in the petition made out and that  the returned candidate had obtained only 180 votes  the acceptance of Mr. Garg’s argument would mean  that  the  election  of  A would have to  be  set  aside  notwithstanding that there has been a similar mistake  in  the  counting  of  B’s  votes  and  if  these  were  properly counted they might not amount to more than  170.  Mr. Garg submitted that though if B claimed the   seat there would have to be a recount of the votes of  both the candidates and this also, only in the event of   a recrimination being filed under Section 97, still if no  seat  was  claimed  the  election  of  the  returned  candidate would be set aside and that the latter had  no  means whereby he  could  maintain  his  election  notwithstanding  that  as  a  fact  he  had  obtained  a  majority of lawful votes.”

   19.  In para 33, the learned Judge observed:-

“33. …….. I do not see any force in the contention that  the  returned  candidate  is  confined  merely  to  disproving what is alleged to dislodge him from his   seat and is forbidden from proving that votes which  under the law had to be counted in his favour, have  been wrongly omitted to be so counted.  The words  in clause (iii) do not impose any such restriction, for

17

they speak of the “improper reception or refusal of   any vote”, and as the inquiry under Section 100(1)(d)  is for ascertaining whether the result of the election  has been materially affected which in the context of  clause (iii) obviously means “the returned candidate  has  been  proved  not  to  have  obtained,  in  fact,  a  majority  of  valid  votes”,  there  appears  to  me  no  scope  for  the  argument  pressed  before  us  by  Mr.Garg.”

The learned Judge gave another example, while considering Rule  

59 under the Act, in the following words:-

“Let  us  for  instance  assume  that  the  voting  procedure  adopted in an election was that prescribed in rule 59 i.e. by  placing the ballot papers in the ballot boxes set apart for   the different contesting candidates.  The returning officer  counts  the  valid  votes  cast  in  the  several  boxes  and  declares A elected as having secured 200 votes as against  B whose votes are counted as 198.  If B files a petition and  alleges that the counting was irregular, that the totals of the  ballot papers in the result sheet are not properly computed,  and that as a matter of fact A’s papers if counted, would be  196, Mr. Garg’s submission is that though the discrepancy  disclosed in the totals is considerable, A cannot prove that   there has been a miscounting of B’s votes also, and that   though if  properly  counted his  total  is  only  190,  still  A’s   election should be set aside.  It  is  said that the position  would be different and the anomaly would be overcome in  cases  where  the  election  petitioner,  besides  claiming  a  declaration that the election of  the returned candidate is   void,  also seeks a  further  declaration that  he should  be  declared duly elected and the returned candidate files a  recrimination against such a prayer.”

20.   The learned Judge proceeded to hold:-

“Therefore we would have the anomalous situation wherein  the election of the returned candidate is declared void by  reason of his not obtaining the majority of valid votes so far  as the decision under Section 100(1)(d) is concerned and  then after the matter set out in the claim to the seat and the  recrimination  is  inquired  into  and  decided  the  election  tribunal holds that the returned candidate had a majority of   lawful  votes  but  that  this  affected  only  the  right  of  the

18

defeated candidate to claim the seat.  In my judgment the  provisions  of  Section  100 read with  Section 101 do not  contemplate this position of a candidate’s election being set   aside because he did not get a majority of lawful votes but  in the same proceedings and as part of the same inquiry,   he being held to have obtained a majority of lawful votes.   A construction of Section 100(1)(d) which would lead to this  result must, in my opinion, be rejected as unsound.”

In para 35 also, the learned Judge had shown, again taking an  

example of multi-cornered contest, that the interpretation put forward by  

the majority judgment was incorrect.  The learned Judge observed:-

“35. ……. I cannot accept the position that either Section  100(1)(d)(iii) or Section 101(a) contemplate this result  which  is  at  once  so  unjust  and  anomalous  and  appears  to  me  to  contradict  the  basic  principles  underlying  election  law  viz.,  (1)  that  apart  from  disqualification, corrupt practices etc., the election of   a candidate who obtains the majority of valid votes  shall not be set aside, and (2) no candidates shall be  declared  duly  elected  who  has  not  obtained  the  majority of valid votes.”

21.    In para 36, the learned Judge had shown the findings where  

majority proceeded on the misconception of the procedure involved in a  

scrutiny.   In that para, the learned Judge had considered Rule 57(3)  

also.  The learned Judge ultimately observed in para 37:-

“37. ……… I do not consider that it is possible to contend  that it is beyond the power of the returned candidate  to  establish  this  fact  which  he  might  do  in  any  manner he likes.  He might do this by establishing  that though a few votes were wrongly counted as in  his favour, still a larger number of his own votes were  counted in favour of the petitioner or that votes which  ought to have been counted as cast for him, have  been  improperly  counted  as  cast  in  favour  of   defeated  candidates  other  than  the  petitioner.  

19

Without  such a scrutiny it  would manifestly not  be  possible  to  determine  whether  the  election  of  the  returned candidate has been materially affected or  not.  Nor do I see anything in the language of clause  (iii)  which  precludes  the  returned  candidate  from  establishing this…….”

In para 38, the language of Section 101 was also considered on  

the backdrop of Section 100(i)(d)(iii) alongwith Rule 57(1) and 57(3) and  

ultimately, the learned Judge held that the construction put forward by  

the majority judgment was not correct.  

22. Therefore, the view that has been taken by me is in consonance  

with the view taken by the minority judgment, which according to the law  

of precedents is not possible.  However, the judgment in the case of  

Jabar  Singh Vs.  Genda Lal (cited supra) was doubted by a  Two  

Judge Bench in the decision in the case of N.Gopal Reddy Vs. Bonala  

Krishnamurthy  &  Ors.  [1987  (2)  SCC  58],  where  the  identical  

controversy was involved.  In that case, the learned Judges considered  

the law laid down in P.Malaichami Vs. Andi Ambalam [1973 (2) SCC  

170], Arun Kumar Bose Vs. Mohd. Furkan Ansari [1984 (1) SCC 91],   

Janardan Dattuappa Bondre Vs. Govind Shiv Prasad Chaudhary  

[1979 (4) SCC 516]   and   Bhag Mal Vs. Ch.Prabhu Ram [1985 (1) SCC    

61] and recommended that this question should be referred to a larger  

Bench for reconsidering the views expressed in the decision in the case  

of Jabar Singh Vs. Genda Lal (cited supra).  It was specifically noted  

that in the decision in Janardan Dattuappa Bondre Vs. Govind Shiv

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Prasad Chaudhary (cited supra), the Division Bench had taken a view  

which was not strictly in accordance with the principles laid down in the  

decision in  Jabar Singh Vs. Genda Lal (cited supra) and the High  

Court  had  refused  to  grant  benefit  of  250  votes  to  the  returned  

candidate  while  recounting  in  view  of  the  absence  of  recriminating  

notice under Section 97 of the Act.  In that case, this Court had held that  

the claim of the returned candidate that he should be granted benefit of  

250 votes  cast  in  his  favour  although placed in  another  candidate’s  

package,  was  justified  and  his  claim  could  not  be  rejected  in  the  

absence of recriminatory notice under Section 97 as the claim of the  

returned  candidate  did  not  involve  reconsideration  of  validity  of  the  

votes.  However, unfortunately, it is reported at the Bar that the matter  

never came to be considered by the larger Bench, though a specific  

reference was made, probably on the ground that the period of election  

was over by the time the matter came up before this Court again.  

23. Now, the law is settled that a Two Judge Bench cannot make a  

direct reference to Seven Judge Bench and can only make a reference  

to Three Judge Bench.  Therefore, I am not in a position to recommend  

a reference to a larger Bench to reconsider the decision in the case of  

Jabar Singh Vs. Genda Lal (cited supra).  However, in view of the  

peculiar history of this controversy and further, in view of  importance of  

the question and its direct impact on the principle of majority of valid  

votes for winning an election, it would be worthwhile if the position is

21

reconsidered.  

24. It  must  be  noted  that,  the  present  matter,  with  which  we are  

dealing, more or less depends upon incorrect acceptance of votes but  

not  the  void  votes.   According to  the election  petitioner,  the elected  

candidate  has  received  some  votes  which  were  cast  by  some  

impersonators  of  the  dead  voters.  In  reality,  therefore,  the  question  

before the present Election Tribunal is whether the election petitioner  

proves that some dead voters were impersonated and in their name,  

votes  were  cast.   Again,  it  will  have  to  be  proved  by  the  election  

petitioner that those impersonated had voted in favour of the elected  

candidate because that will be the only way to prove that the void votes  

have affected the result in favour of elected candidate materially.  The  

question  of  void  votes  was  not  considered  in  Jabar  Singh's case.  

Even, in the minority judgment, Hon'ble Ayyanger, J. restricted himself  

to the earlier part of clause 100 (1) (d) (iii) and left the clause of “the  

reception of any vote which is void”. The import of words “the reception  

of any vote which is void” would, in my opinion, cover each and every  

void  vote  received by each  and  every candidate  because void  vote  

cannot be counted: whether it is cast in favour of an elected candidate  

or any other candidate contesting the elections. Once the real import of  

clause “the reception of any vote which is void” is realized, it becomes  

clear that, in recount of the votes which are void votes, those would  

have to be excluded and for that purpose, the returned candidate can  

raise a plea by way of defence that the void votes were cast either in

22

favour of elected candidate or any other defeated candidate.  He can at  

least raise a plea that such void votes were actually cast and he would  

certainly be justified in raising a plea that the void votes were cast not  

only in the polling Stations named in the election petition, but in some  

other polling Stations also. Therefore, if recount was to be ordered, the  

recount cannot be restricted only to the named polling Stations in the  

election petition, but it would have to be a general recount where the  

void votes would have to be avoided.  Therefore, there would have to be  

an opportunity to the elected candidate to prove that there were void  

votes in other polling Stations also and for that purpose, there should be  

recount of all the votes of all the Polling Stations. It is only thereafter  

that the true position as regards majority of votes could be obtained. In  

this view also, I cannot agree with my learned brother Sharma J, as also  

the Judgment of the High Court holding that it is only the votes cast in  

the named polling Stations which are liable to be counted and not those  

which have been named in the questioned paragraphs which have been  

ordered  to  be  deleted  from  the  Written  Statement  of  the  elected  

candidate.  

25. There is one more reason why I felt compelled to differ with my  

learned brother and recommend reconsideration of this question.  

26. The  plain  language,  according  to  me,  does  not  suggest  that  

where the declaration is not prayed for by the election petitioner, the  

elected candidate cannot raise any plea in his written statement that, in

23

fact,  he has secured the majority  of  votes.   In  my opinion,  the plea  

raised herein is not a recriminatory plea within the meaning of Section  

97 of the Representation of the People Act, 1950.  What is raised is a  

mere plain defence that, even if there was going to be a recount, then it  

should be a recount of all the votes and not of the votes cast only in his  

favour and for that purpose, he would be allowed to prove that it is not  

only in the particular polling stations that  the votes were cast in the  

name of dead persons, but they were also cast in other polling stations.  

All that the elected candidate is doing here is trying to show that it is he  

who is  actually the elected candidate having secured the majority of  

valid votes.  

27. At the time when Jabar Singh’s case (cited supra) was decided,  

the amended provisions of  Order  VIII,  Rule  6A of  the Code of  Civil  

Procedure providing for counter claim was not available on the Statute.  

That provision came only by way of amendment later on.  Though, the  

concept of counter claim was not unknown, even in the absence of a  

specific provision therefor, introduction of a specific provision for raising  

the  counter  claim  would,  in  my  opinion,  be  a  relevant  factor  for  

considering  as  to  whether  a  candidate,  in  the  absence  of  any  

recrimination, could insist upon counting of the votes cast in favour of  

the other losing candidates.  The provisions of Order VIII, Rule 6A have  

not been considered in the later decisions.  In my opinion, raising of a  

counter  claim  by  way  of  a  valid  defence  would  still  be  permissible  

considering  the  broad language of  that  provision.   Shri  Singh,  very

24

earnestly argued that an election petition has to be tried in accordance  

with  Civil  Procedure  Code  and,  therefore,  the  amended  provisions  

providing for laying of a counter claim has to be read in favour of the  

elected candidate for raising a plea that it is he, who has secured the  

maximum votes.  The recount order should, therefore, be not limited to  

counting of his votes alone, but it should be a general recount in respect  

of  the  votes  secured by  all  the  contesting  candidates.   Shri  Singh,  

therefore, urged that, by introducing the paragraphs, which have been  

ordered to be struck off from the written statement of the appellant, the  

appellant, who was an elected candidate, had raised a valid defence by  

way of a counter claim.  The argument is undoubtedly a novel one and  

has not been so far considered by this Court.  At this juncture, I must  

point out again, at the cost of repetition that, in ordering counting of the  

votes of the elected candidate alone, the whole election process would  

stand prejudiced, inasmuch as, then, even if some invalid votes are cast  

in favour of the other candidates or void votes are cast in the election,  

those votes would not be counted and in that case, there could be no  

correct reflection in respect of the votes secured by each candidate.  

28. This is apart from the fact that a very unfair advantage can be  

secured by an election petitioner in favour of the losing candidate by  

deliberately not claiming any declaration either in favour of the election  

petitioner or in favour of any other losing candidate so that the elected  

candidate would be rendered completely helpless in showing that he  

alone  is  a  candidate  having  secured  majority  of  votes.   As  I  have

25

already expressed, securing a majority of votes is the very essence of  

the democratic elections and the democracy being a part of the basic  

structure of our Constitution, the question involved herein gains all the  

more importance.  I may point out here that the theory of basic structure  

of the Constitution also was not available when  Jabar Singh’s case  

(cited supra) was decided.  In my opinion, the interpretation put forth in  

Jabar  Singh’s case,  in  a  majority  decision  would,  therefore,  require  

reconsideration,  more  particularly,  in  view  of  the  minority  decisions  

therein which is more in accord with the principles of securing majority  

votes in a democratic elections.  The very roots of the democracy would  

be shaken if the majority view expressed in Jabar Singh’s case, which  

was  already recommended to  be  reconsidered,  is  valid.   For  these  

reasons, I am not in a position to agree with my learned brother, nor can  

I agree with the judgment of the High Court (Election Tribunal).  

In short, my conclusions are as follows:-

(1) Jabar Singh’s case (cited supra), which was referred to the  

Seven  Judge  Bench  needs  reconsideration,  since  the  

question  involved  therein  goes  to  the  very  root  of  the  

democratic election process.  

(2) The interpretation put forward to the provision of Section  

100(1)(d)(iii) read with section 97 of the Representation of  

the  People  Act  would  be  very  unfair  for  an  elected  

candidate, particularly where the election petition seeks for

26

recount of  votes.   In  such a petition where the question  

involved is of recount, it  will  be extremely unfair to count  

only  the  votes  of  returned  candidate  and  ignore  all  his  

objections regarding the votes improperly accepted in case  

of  the  other  candidates  or  the  other  candidates  having  

secured void votes.  Such unfairness cannot be permitted  

at least to maintain the purity of election process.  

(3) The observations in Jabar Singh’s case particularly in para  

10 thereof, could amount to obiter dicta, particularly, in view  

of the factual position in Jabar Singh’s case.  It  is to be  

remembered that the observations in para 10 were taken  

only by way of an example.  This position is all the more  

obtained because in that case though the declaration was  

claimed, there was no recrimination filed and, therefore, the  

observations  in  Jabar  Singh’s  Case  would  become  a  

binding  law only  in  case  where  though  a  declaration  is  

claimed in favour of other candidate than the elected one,  

yet  the  elected  candidate  has  not  claimed  any  

recrimination.  In short, the observations made in para 10  

thereof may not become a binding law in case where no  

declaration  is  sought  for  at  all  and,  therefore,  no  

recrimination is claimed by the elected candidate.

(4)   When  a recount is  ordered at  the instance of  a election

27

petitioner,  it  cannot  be  a  partial  recount.  It  has  to  be  a  

general recount where the void votes can be located and  

ignored to arrive at a conclusion that this will also apply to  

the votes improperly accepted of the other candidates than  

the  elected  candidates.   It  is  only  then  that  a  correct  

position could be arrived at as to which candidate has, in  

fact, secured majority of votes.  It has to be remembered  

that securing of majority of votes is the basis of democratic  

election.

(5)  In the wake of amended provision of Order VIII, Rule 6 of  

the Code of Civil Procedure introducing counter claim, the  

defendant in this case – the elected candidate, could still  

raise his defence by way of a counter claim.  The language  

of  Section  97  of  the  Representation  of  the  People  Act,  

1950, which is in the nature of positive language, does not  

bar raising of any such defence.

29. In view of the difference of opinion, the papers be kept before the  

Hon’ble,  the  Chief  Justice  of  India  for  referring  the  matter  to  an  

appropriate bench.  

          ................................J.  [V. S. Sirpurkar]

New Delhi; July 22, 2010.

28

REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5851           OF 2010 [Arising out of SLP (C) No. 13565 of 2008]

Md. Alauddin Khan        …. Appellant

Versus

Karam Thamarjit Singh        .…  Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. The present appeal is directed against the order dated 11.02.2008  

passed by the Designated Election Judge of the Gauhati High  

Court in M. C. (Election Petition) No. 1 of 2008 in Election Petition  

No. 2 of 2007, whereby the learned Election Judge allowed the  

miscellaneous application filed by the election petitioner,  

respondent herein, with an order that the statements, in the  

nature of recrimination and counter claim, made in the written  

statement of the returned candidate, appellant herein, more  

particularly, in paragraph nos. 22-31 would stand struck off from

29

the defence of the appellant.  

3. Being aggrieved by the aforesaid order, the appellant filed the  

present Special Leave Petition on which notice was initially issued  

and on service the respondent entered appearance. The learned  

senior counsel appearing for the parties have been heard at length.  

4. The appellant and the respondent and few other candidates had  

contested the election of the 9th Manipur Legislative Assembly from  

6-Keirao Assembly Constituency. The said election was held on  

14.02.2007 and 16.02.2007    (re-poll in polling station No. 615)  

and the election result was declared on 27.02.2007, wherein the  

appellant emerged as the winner after defeating the respondent-

election petitioner by a margin of only two votes. The aforesaid  

election of the appellant-returned candidate was challenged by the  

respondent by filing an election petition basically under Section  

100(1)(d) (iii) and (iv) of the Representation of the People Act, 1951  

[for short “the Act”], with a prayer that the election of the appellant  

be declared void.

5. In order to appreciate the contention of the counsel appearing for  

the parties, the relevant portion of the prayer made in the election  

petition viz., paras iii to v, is extracted   hereinbelow: -

“…………….

30

iii) to order a re-count of the votes after excluding  the void votes if required;

iv) to declare the election of the Respondent No. 1  as void;

v) to pass other and further orders as may be  deemed fit by the Hon’ble Court in the facts  and circumstances of the case.”

So far as the reliefs prayed in paragraphs i) & ii) are concerned, they  

relate to seeking for a direction and  for calling certain records. As the  

same are not directly connected with the contentions raised herein,  

they have not been extracted.

6. Immediately after appearance in the election petition, the appellant  

filed a miscellaneous application before the Gauhati High Court  

which was registered as MC (EP) No. 6 of 2007 whereby the  

appellant challenged the maintainability of the election petition on  

technical grounds. The said miscellaneous application was however  

dismissed on 31.10.2007. After taking a few adjournments, the  

appellant filed the written statement on 04.01.2008, in which,  

apart from contesting the allegations made in the election petition,  

the appellant-returned candidate made several statements in the  

nature of counter claim/recrimination in paragraph nos. 22-31.

7. The respondent thereafter filed an application under Order VI Rule  

16 of the Code of Civil Procedure [for short ‘the Code’] praying for  

striking off the aforesaid paragraphs allegedly made by way of  

counter claim/recrimination. The said application came up for

31

consideration before the learned Election Judge, who after an  

elaborate discussion on the merits of the said application allowed  

the same by holding that the statements in the nature of  

recrimination and counter claim made in the written statement by  

the appellant, more particularly, in paragraphs nos. 22-31 would  

stand struck off from the defence pleaded. Being aggrieved by the  

aforesaid order this appeal was filed.

8. The main contention of the counsel appearing for the appellant is  

that under Order VIII Rule 6A of the Code the appellant has a right  

and a prerogative to raise certain defences by way of counter claim  

and the said right can be exercised even in a case where there is no  

additional claim in terms of Section 84 of the Act; and despite the  

fact that a recrimination petition as such may not be maintainable  

in terms of Section 97 of the Act. It was further submitted that  

since in the present case the election petitioner has intentionally  

avoided to make additional claim as provided under Section 84 of  

the Act, the appellant-returned candidate had no other option  

except to fall back upon Order VIII, Rule 6-A of the Code.  

9. The short question that falls for consideration in the present  

appeal is: when there is no provision and right vested in the  

returned candidate to file a recrimination petition due to absence of  

a prayer by the election petitioner in the election petition seeking  

for his declaration (or any other candidate) as a returned  

candidate, can the returned candidate in his written statement

32

take up pleas which are in fact counter claims with the aid of  

Order VIII, Rule 6A of the Code?

10.In order to answer the aforesaid issues, it would be necessary to  

peruse some of the relevant provisions of the Act and some of the  

decisions of this Court referred to and relied upon by the counsel  

appearing for the parties and also the contents of the paragraph  

nos. 22-31 of the written statement filed by the appellant. However,  

before proceeding with the same, it would be appropriate to refer to  

an order passed by the Election Judge on 29.08.2007, on the  

application filed by the appellant under Section 101 of the Act read  

with Section 151 of the Code, seeking a direction to the election  

petitioner to clarify the exact relief sought for in the prayer nos. (iv)  

to (v) (already extracted hereinabove). The said application came up  

for hearing and after conclusion of the hearing, an order was  

passed on 29.08.2007 to the following effect: -

“Under Section 82 of the Representation of People Act,   1951, all the candidates to the election are required to be  impleaded as a party in the Election Petition if the petitioner  makes any prayer to declare himself or any other candidate  as duly elected representative. In the present case, the  election petitioner has not impleaded the remaining  candidates. Hence, it is implied that the petitioner has not  made any prayer to declare himself or any other candidate  as elected representative, which declaration can be given  u/s 101 of the Representation of People Act, 1951.

In my considered opinion, under clause (v) of the prayer,   this Court can only grant the relief to the petitioner or pass  appropriate orders, which are ancillary to the Election  Petition and no specific declaration can be granted that  either the election petitioner or any other candidate shall be  construed as elected candidate.”

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It is, therefore, established from the aforesaid order passed by the  

Election Judge by way of a clarification that in the election petition  

what survives for consideration is the prayer as to whether or not to  

declare the election of the appellant-returned candidate as void.  

Therefore, there is no dispute with regard to the fact that in the said  

election petition no additional prayer was made by the election  

petitioner seeking for a declaration that he or any other candidate be  

declared as the elected candidate.

11.The relevant statutory provisions, which may now be referred to,  

read as follows:  

“Section 84: Relief that may be claimed by the  petitioner:-

A petitioner may, in addition to claiming a declaration  that the election of all or any of the returned  candidates is void, claim a further declaration that he  himself or any other candidate has been duly elected.  

       Section 87: Procedure before the High Court –

(1) Subject to the provisions of this Act and of any rules  made thereunder every election petition shall be tried  by the High Court as nearly as may be, in  accordance with the procedure applicable under the  code of Civil Procedure, 1908 for the trial of suits.

Provided that the High Court 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 that the evidence of such witness or  witnesses 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.

(2) The provisions of the Indian Evidence Act, 1872,

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shall, subject to the provisions of this Act, be deemed  to apply in all respects to the trial of an election  petition.

Section 97: 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 had 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 commencement of the trial given notice to the  High Court 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 by in sub-section (1) shall 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.

Section 100 – Grounds for declaring election to be  void -

S.100 (1) (d) (iii): -  

By the improper reception, refusal or rejection of any  vote or the reception of any vote which is void; or

……………..”

12.The provisions of Order VIII Rule 6A of the Code, which was  

repeatedly referred to during the course of the arguments, may also  

be extracted here: -

“Order VIII – Written Statement, Set-off and Counter- Claim

Rules 6A – Counter-claim by defendant –

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(1) A defendant in a suit may, in addition to his right of   pleading a set-off under rule 6, set up, by way of   counter-claim against the claim of the plaintiff, any  right or claim in respect of a cause of action according  to the defendant against the plaintiff either before or   after the filing of the suit but before the defendant  against the plaintiff either before or after the filing of   the suit but before the defendant has delivered his  defence or before the time limited for delivering his  defence has expired, whether such counter-claim is  in the nature of a claim for damages or not;

Provided that such counter-claim shall not exceed the  pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a  cross-suit so as to enable the Court to pronounce a  final judgment in the same suit, both on the original  claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written  statement in answer to the counter-claim of the  defendant within such period as may be fixed by the  Court.

(4) The counter-claim shall be treated as a plaint and  governed by the rules applicable to plaints.”

13. Reference was also made to the decisions of this Court in Jabar  

Singh v. Genda Lal [AIR 1964 SC 1200]; T.A. Ahammed Kabeer v.  

A.A. Azees and Others [(2003) 5 SCC 650]; Virendra Kumar  

Saklecha v. Jagjiwan & Others [(1972) 1 SCC 826]; Dr. Rajendra  

Kumari Bajpai v. Ram Adhar Yadav and Others [(1975) 2 SCC  

447]. Reference was also made to Order VI Rule 16 of the Code and  

relying on the same counsel appearing for the appellant submitted  

that interference by the High Court at the behest and request of  

the respondent was unjustified and uncalled for as none of the  

conditions laid down in Rule 16 was attracted in the present case.

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This argument may be dealt with at the outset.  

14.Order VI Rule 16 of the Code has been incorporated therein with  

the idea of empowering the Courts to strike out or amend any  

matter in any pleading, including the statement in the written  

statement, at any stage of the proceedings when the same is found  

to be unnecessary, scandalous, frivolous and vexatious; or which  

may tend to prejudice, embarrass or delay the fair trial of the suit;  

or which is otherwise an abuse of the process of the Court.  

15.Order VIII Rule 6A empowers the defendant in a suit to raise by  

way of counter-claim against the claim of the plaintiff, any right or  

claim in respect of a cause of action accruing to the defendant  

against the plaintiff and that such a counter-claim would have the  

same effect as a cross-suit so as to enable the Court to pronounce  

the final judgment in the same suit, both on the original claim and  

on the counter-claim. It is also provided therein in sub-rule (4) of  

Rule 6A that the counter-claim shall be treated as a plaint and  

governed by the rules applicable to plaints. So far as in the present  

case the statements made by the appellant-returned candidate in  

the written statement, particularly in paragraph nos. 22-31 are  

concerned, it would indicate that those statements are by way of  

counter-claim against the claim of the election petitioner and relate  

to the right or claim in respect of the same cause of action.  

16.Section 97 of the Act which deals with an election petition provides

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that when an election petition is filed claiming a declaration that  

any candidate other than the returned candidate has been duly  

elected, in that event, the returned candidate or any other party  

would be entitled to give evidence to prove that the election of such  

candidate would have been void had he been the returned  

candidate. Therefore, paragraphs nos. 22-31 of the written  

statement relate to matters in respect of which evidence should  

have to be laid to prove that if those allegations are established  

then the election of such candidate would be void.  

17.An election petition is required to be considered and decided in  

accordance with the procedure laid down in the Representation of  

People Act, 1951 which constitutes a complete and self-contained  

code.  This view was endorsed by this Court in the case of Jyoti  

Basu v. Debi Ghosal [AIR 1982 SC 983 : (1982) 1 SCC 691] in the  

following words:-  

“8. …………..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  strait-jacket.  Thus  the  entire  election  process  commencing from the issuance of  the notification  calling upon a constituency to elect a member or   members  right  up  to  the  final  resolution  of  the

38

dispute, if any, concerning the election is regulated  by  the  Representation  of  the  People  Act,  1951,  different stages of the process being dealt with by  different provisions of the Act…………………So the  Representation of the People Act has been held to  be  a  complete  and  self-contained  code  within  which must be found any rights claimed in relation  to an election or an election dispute……………”

18.Now since there is a specific provision in the Act as to how a  

recrimination petition is to be dealt with, the same is required to be  

decided in the manner as provided therein. In the present case  

since there was no prayer in the election petition to declare the  

election petitioner or any other candidate as elected candidate,  

necessarily therefore, the provisions of Section 97 of the Act could  

not be said to be applicable or attracted.   In fact, statements  

which are intended and could be made in light of Section 97 of the  

Act are counter-claims, which are so stated in the Five-Judge  

Bench decision of this Court in Jabar Singh (supra). When the  

specific provision which provides for raising a counter-claim is  

excluded and not attracted in terms of the provisions of Section 97  

of the Act, it cannot be said that such counter-claim could be  

raised in terms of the provisions of Order VIII Rule 6A.  The  

decision in the case of Jyoti Basu (supra) is clearly applicable as  

the provision of common law is held to be not applicable when  

specific special law would apply. The legality and validity of the  

provisions contained either in Section 97 or in Section 87 of the Act  

has not been challenged. Therefore, in line with the provisions in  

Section 97 of the Act, the counter-claims could not be allowed to be

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petition when an election petition is filed seeking a declaration that  

the election petitioner or any other candidate is the returned  

candidate, then there is an implied bar on filing a recrimination  

petition in the absence of such a declaration. As the principle of  

statutory construction, Expressio Unius Est Exclusio Alterius states,  

the express inclusion of one thing is the exclusion of all others. In  

this case, the specific inclusion of a condition for filing a  

recriminatory petition under Section 97 of the Act, namely that a  

declaration that the election petitioner or any other candidate is  

the returned candidate should be filed, excludes its filing in all  

other cases. Simply put, Section 97 of the Act bars filing of a  

counter-claim by way of a recrimination petition when an election  

petition is filed without seeking for a declaration that the election  

petitioner or any other candidate is the returned candidate. In  

such a case, the application of Order VIII Rule 6A would not be  

permissible, as permitting the same would amount to allowing  

indirectly, what is prohibited by law to be done directly.  It is  

settled law that whatever is prohibited by law to be done directly  

cannot be allowed to be done indirectly. The decision of the Court  

in Jagir Singh v. Ranbir Singh & Anr. [(1979) 1 SCC 560],  

maybe referred to, where it was held thus:

“5……..……………….We do not think that it is  permissible  to do so.  What may not be done  directly  cannot  be  allowed  to  be  done  indirectly;  that  would  be  an  evasion  of  the  statute.  It  is  a  “well-known  principle  of  law  that  the  provisions  of  an  Act  of  Parliament

41

shall  not  be  evaded  by  shift  or  contrivance”  (per Abbot,  C.J. in Fox  v.  Bishop of  Chester).  “To carry out effectually the object of a Statute,  it must be construed as to defeat all attempts  to  do,  or  avoid  doing,  in  an  indirect  or  circuitous manner that which it has prohibited  or enjoined.”(Maxwell, 11th Edn., p.109) ……………………………”

20.Section 87 of the Representation of People Act, 1951 opens with  

the expression “subject to the provisions of this Act and any other  

rules made thereunder”. This definitely means that Section 87 is  

subject to the provisions of Section 97 of the Act. Section 87 also  

specifically provides that the procedure under the Code would be  

applicable “as nearly as may be” meaning thereby that only those  

provisions for which there is no corresponding provision in the Act  

could be made applicable. The distinction between sub-section (1)  

and sub-section (2) of Section 87 of the Act brings out the  

contradistinction between the two provisions inasmuch as sub-

section (2) makes the entire Evidence Act applicable subject to the  

provisions of the Act but in extenso whereas sub-section (1) makes  

the Code of Civil Procedure applicable subject to the provisions of  

the Act and as nearly as possible.  Therefore, the provisions of the  

Code are not wholly applicable to the trial of the election petitions.  

Accordingly, if there is no scope for filing a recrimination petition  

under Section 97 of the Act, this limitation cannot be sought to be  

removed or overcome by taking resort to another provision of the  

Code which will be explicitly and impliedly inconsistent with the

42

provisions of Section 97 of the Act. A similar view was taken by the  

Constitution Bench of this Court in the case of Jabar Singh v.  

Genda Lal [AIR 1964 SC 1200 : (1964) 6 SCR 54]. In para 11 this  

Court has held as follows:-

11. There  are,  however,  cases  in  which  the  election  petition makes a double  claim; it  claims  that the election of the returned candidate is void,  and also asks for a declaration that the petitioner   himself  or  some  other  person  has  been  duly  elected.  It is  in  regard to  such a composite case  that  Section 100  as  well  as  Section 101  would  apply, and it is in respect of  the additional claim  for  a declaration  that some  other  candidate has  been duly elected that Section 97 comes into play.  Section 97(1) thus allows the returned candidate to  recriminate and raise pleas in support of his case  that the other person in whose favour a declaration  is  claimed  by  the  petition cannot  be  said to  be   validly elected, and these would be pleas of attack  and it would be open to the returned candidate to  take these pleas, because when he recriminates,   he really becomes a counter-petitioner challenging  the  validity  of  the  election  of  the  alternative  candidate…………………If  the  returned  candidate  does  not  recriminate as required  by  Section 97,  then  he  cannot  make  any  attack  against  the  alternative claim made by the petition. In such a  case an enquiry would be held under Section 100  so far as the validity of  the returned candidate’s  election is concerned, and if as a result of the said  enquiry declaration is made that the election of the  returned candidate is void, then the Tribunal will   proceed to deal with the alternative claim, but in  doing  so,  the  returned  candidate  will  not  be  allowed  to  lead  any  evidence  because  he  is  precluded  from  raising  any  pleas  against  the  validity of the claim of the alternative candidate.”

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21.Reliance was, however, placed by the counsel appearing for the  

appellant on the decision of this Court in the case of Dr. Rajendra  

Kumari Bajpai v. Ram Adhar Yadav and Others [(1975) 2 SCC  

447]. The said decision does not in any manner advance the case of  

the appellant because of the fact that it has already been held  

hereinbefore that the provision of Order VIII Rule 6A cannot be  

substituted in place of provision of Section 97 and that Section 97  

excludes the applicability of the provisions of Order VIII Rule 6A of  

the Code. Attention was also drawn to the decision of this Court in  

the case of N. Gopal Reddy v. Bonala Krishnamurthy and Others  

[(1987) 2 SCC 58], which is distinguishable inasmuch as in the  

said case the issue was whether the returned candidate can refer  

to and rely upon the evidence already on record, in the light of the  

fact that he is not entitled to lead evidence as he had failed to file  

the recrimination petition in a case where there was an additional  

prayer for declaring the election petitioner as the elected candidate.  

The said decision was taken notice by this Court in the case of T.A.  

Ahammed Kabeer v. A.A. Azees and Others [(2003) 5 SCC 650]  

and after referring to all the existing decisions of this Court on the  

issue in question, the Division Bench summed up the legal position  

as follows:-  

“33. We have already stated that the rigorous rule   propounded  by  the  Constitution Bench  in  Jabar  Singh case has met with criticism in some of  the  subsequent  decisions  of  this  Court  though  by  Benches of lesser coram and an attempt at seeking

44

reconsideration of  the  majority opinion  in  Jabar  Singh case has so far proved to be abortive. The  view of the law taken by the Constitution Bench in  Jabar Singh case is binding on us. Analysing the   majority opinion in Jabar Singh case and the view  taken in several decisions of this Court, referred to  hereinabove, we sum up the law as under:       ………………………………

(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  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.

………………………..”

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22.In view of the fact that there is a pronouncement of the  

Constitution Bench of this Court in Jabar Singh (supra) and also  

the decision of this Court in T.A. Ahammed Kabeer (supra) which  

on an interpretation of Section 97 of the Act, has carved out a  

settled position of law, a different view cannot be taken. So long the  

Legislature does not change the law to obliterate the discrepancy, if  

any, the Court cannot do so on its own. It would not be appropriate  

for the Court to go beyond the legislative intent as derived from the  

existing provisions and lay down its views on a particular matter  

although such a view could be a possible view. The judiciary does  

not have any power to legislate and that is to be strictly adhered to.  

The Constitution-bench decision of this Court in the celebrated  

case of Bachan Singh v. State of Punjab (1982) 3 SCC 24 may be  

cited here to bring out the position clearly:

“77.  Now it is true that there are cases where   the court  lays down principles and standards  for  guidance  in  the  exercise  of  the  discretion  conferred upon it by a statute, but that is done  by  the  court  only  in  those  cases  where  the  principles or standards are gatherable from the  provisions  of  the  statute.  Where  a  statute  confers discretion upon a court, the statute may  lay  down  the  broad  standards  or  principles  which should guide the court in the exercise of   such discretion or such standards or principles  may be discovered from the object and purpose  of  the  statute,  its  underlying  policy  and  the  scheme of  its  provisions and sometimes,  even  from the surrounding circumstances. When the  court lays down standards or principles which  should guide it in the exercise of its discretion,   the court does not evolve any new standards or  principles of its own but merely discovers them  from  the  statute.  The  standards  or  principles  laid down by the court in such a case are not

46

standards  or  principles  created or  evolved  by  the court but they are standards or  principles  enunciated by the legislature in the statute and  are merely discovered by the court as a matter  of statutory interpretation. It is not legitimate for   the court to create or evolve any standards or   principles  which  are  not  found  in  the  statute,  because  enunciation  of  such  standards  or  principles is a legislative function which belongs  to  the  legislative  and  not  to  the  judicial  department.          

(emphasis supplied)

23.It is no doubt true that a two-Judges Bench of this Court in the  

case of N. Gopal Reddy (supra) opined that the law laid down in  

Jabar Singh (supra) requires reconsideration but the reference  

made could not be finally decided as the petition became  

infructuous on expiry of the term of five years and the parties  

having lost interest in view of that eventuality. Therefore, the field  

continues to be governed by the position of law as laid down in the  

Jabar Singh (supra). Since then there has been no change in the  

law regarding the issue at hand.  

24.It was at one stage argued by the counsel appearing for the  

appellant that the concept of counter-claim was for the first time  

inserted in the Code of Civil Procedure in the year 1976 and  

therefore when Jabar Singh (supra) was decided, the concept of  

counter-claim was not there and what was available was only a  

concept of written statement and set-off. It is to be pointed out that  

though it is true that there was no specific provision for raising a  

counter-claim by the defendant in the written statement prior to

47

the amendment of the Code in 1976 but claims by way of counter  

claims were in fact raised and considered by all the Courts  

including the Supreme Court of India which would be apparent  

from a bare reference of the decision in the case of Jabar Singh  

(supra).  It is needless to point out that Section 97 of the Act  

bestows a right upon the returned candidate to raise a defence  

when an additional claim under Section 84 of the Act is made by  

the election petitioner.  Recrimination, as envisaged under Section  

97 of the Act, is nothing else but a counter-claim and this concept  

was incorporated in the Act, which as noted earlier is a special Act,  

even prior to 1976 when the provision of counter claim now  

contained in Order VIII Rule 6A was inserted in the Code.  

Therefore, the aforesaid change brought in the Code, which is a  

general common law, would not have any consequential effect so  

far as the present case is concerned.  It is thus apt to note that the  

concept of counter-claim was not foreign or totally absent during  

the period prior to 1976.  

25.In view of the aforesaid position and also in view of the fact that  

there is a specific provision in the Act to raise counter-claim with  

certain pre-conditions and on certain specific conditions the  

provisions of Order VIII Rule 6A of the Code cannot be invoked in  

view of the bar and prohibition enforced by Section 97 of the Act.

26.The present petition is an election petition. In view of the mandate  

of Section 86(7), an Election Petition is required to be considered

48

and finally decided within a period of six months.  Two and a half  

years have already passed and the matter is still pending in the  

Gauhati High Court and that too at a preliminary stage. The  

instant situation is one which warrants urgent consideration by  

the High Court.

27.In view of the foregoing discussion, there is no merit in this appeal,  

and the same is hereby dismissed, leaving the parties to bear their  

own costs.

       .....……………………….....      [Dr. Mukundakam Sharma]

New Delhi, July 22, 2010.