Full Judgment Text
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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 .............................................
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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
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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