Abhay Kumar @ Dheeraj Ojha vs Rakesh Kumar Verma And Others
- Court
- Allahabad High Court
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
ELECTION PETITION No. - 6 of 2022
A.F.R .
Abhay Kumar @ Dheeraj Ojha
.....Petitioner(s)
Versus
Rakesh Kumar Verma And Others
.....Respondent(s)
Counsel for Petitioner(s) : In Person, Amol Kumar Srivastava,
Chetan Kumar Tiwari, Kuldeep Pati
Tripathi, Mahendra Bahadur Singh,
Prabhat Kumar Mishra, Pramod Kumar
Pandey, Rajnish Ojha, Sakshi Singh,
Santosh Kumar Pandey, Shivanshu
Mishra, Vikas Singh
Counsel for Respondent(s) : Santosh Kumar Yadav, Abhinav
Trivedi, Aishvarya Mathur, Anil Kumar
Yadav, Anupam Mehrotra, Ashutosh
Chaurasia, Dr. Pooja Singh, Kuldeep
Pati Tripathi, Santosh Kr. Yadav Warsi,
Sudhir Pande, Vijay Vikram Singh
Court No. - 12
HON'BLE MANISH MATHUR, J.
Order On C. M. Application No.IA/43 of 2024.
1. Application has been filed for issuance of
notice on I.A. No.32 of 2024 filed by respondent
No.1 of Election Petition. The said application
has been filed pertaining to Recrimination
Petition which has been numbered as I.A. No. 32
of 2024 in the Election Petition.
2. Heard Mr. Anupam Mehrotra, learned counsel for
recriminator/ respondent no.1 to the Election
Petition, Mr. Sudeep Seth, learned senior counsel
assisted by Mr. Rajnish Ojha, learned counsel for
Election Petitioner and Mr. Sudhir Pandey,
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learned counsel for respondent no.4 in the
Election Petition.
3. Mr. Anupam Mehrotra, learned counsel for
recriminator/ respondent no.1 has submitted that
earlier subsequent to filing of Election
Petition, recrimination petition had been filed
under Section 97 of the Representation of People
Act, 1951 with the said recrimination petition
initially being registered as Writ C No.4613 of
2022 in which notice was issued vide order dated
21.07.2022 whereafter the said recrimination
petition was directed to be listed as an interim
application in the election petition itself
resulting as application no.32 of 2024.
4. It is submitted that since notice was issued
initially in the writ petition and not in a
recrimination petition, fresh notices are
required therefore to be issued in the
recrimination petition to all the respondents
particularly since even when the recrimination
petition was registered as writ petition, despite
issuance of notices, such notices have not been
served upon all the respondents.
5. Elaborating upon his submissions, learned
counsel has placed reliance on Chapter XV-A, Rule
5 of the Allahabad High Court Rules pertaining to
special provisions relating to the trial of
election petitions and submits that the said
provision clearly indicates the provision for
issuance of notices in an election petition. It
is submitted that such a notice is required to
the respondents to put up their defence, file the
written statement and for purposes of leading
evidence.
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6. He has also referred to Chapter XV-A, Rule 12
of the Allahabad High Court Rules to submit that
the Court has power to give directions in matters
of practice and procedure which is consistent
with the provisions of Section 87 of the Act of
1951 including recording of evidence.
7. He has also adverted to Section 87 of the
Representation of People Act, 1951 to submit that
before the High Court, every election petition
has to be tried as nearly as may be, in
accordance with procedure applicable under the
Code of Civil Procedure 1908, to the trial of
suits.
8. It is therefore submitted that since
provisions of Code of Civil Procedure are
applicable, provisions of Order V Rule 9, Order
VII, Rule 9 and Order VIII, Rule 6A (4) of the
Code are required to be followed.
9. It is submitted that in terms of Order VIII,
Rule 6-A, procedure in case of a counter claim by
defendant has been indicated and submits that in
case of such a counter claim in respect of cause
of action accruing to the defendant against the
plaintiff, the same procedure is required to be
followed as applicable to plaints & consequently
as indicated in Order V and Order VII of the
Code.
10. It is submitted that Order VII, Rule 9 of the
Code indicates procedure on admitting a plaint
and where the Court orders summons to be served
upon defendant in the manner provided in Order V,
Rule 9, the said procedure is required to be
followed. He therefore submits that Order V, Rule
9 pertains to delivery of summons by the Court
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and the manner in which such service of summons
is required to be delivered and effected.
11. Learned counsel therefore submits that a
conjoint reading of Chapter XV-A of Allahabad
High Court Rules, Order V, Rule 9, Order VII,
Rule 9 and Order VIII, Rule 6A of the Code
clearly indicates that even in case of a counter
claim in an election petition particularly as in
the case of recrimination petition under Section
97 of the Representation of the People Act, 1951,
the procedure as indicated in the Code is
required to be followed by issuance of and
effecting notices upon respondents.
12. He has also adverted to Section 97 of the
Representation of People Act to submit that the
said provision indicates that 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 returned candidate and a
petition had been presented calling in question
his election. It is thus submitted that since
Section 97 of the Representation of the People
Act clearly indicates the aspect of providing
evidence, such evidence can be given only in case
such other party being returned candidate or any
other party are provided notice of recrimination
petition, failing which, they would not have
notice of recrimination petition and therefore
would be deprived from giving evidence. It is
therefore submitted that in case notices are not
issued on the recrimination petition, it would
deem a failure of provisions of Section 97 of the
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Representation of People Act. He has also
adverted to Section 86(4) of the Representation
of People Act particularly the explanation
thereto to submit that the word 'respondents'
indicated in the explanation also indicates a
date fixed for appearance before the High Court
for answering the claim or claims made in the
petition. It is thus submitted that the words
'respondents' in plural indicate an opportunity
to all the respondents not only in the election
petition but also in the recrimination petition
to give their evidence in rebuttal, which can be
achieved only in case notice is issued even in
the recrimination petition.
13. Learned counsel has also placed reliance on
Eighth Edition to indicate
Black’s Law Dictionary
that the term recrimination has been indicated as
a counter charge. Although the said designation
is in terms of a divorce suit, it is submitted
that the meaning attached in term recrimination
would be applicable in terms of Section 97 of the
Representation of the People Act as well.
Reliance has also been made to the
Legal
Glossary, 1988 issued by the Government of India
in which the term recrimination specifically in
terms of Section 97 of the Act of 1951 has also
been defined a counter charge. It is in terms
thereof that learned counsel submits that
provisions of a recrimination petition under
Section 97 of the Representation of the People
Act is in the nature of a counter-claim and since
in terms of Section 87 of the Representation of
People Act read with Chapter XV-A of the
Allahabad High Court Rules, principles of the
Code of Civil Procedure are applicable, therefore
the recrimination petition being a counter claim,
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procedure indicated in terms of Order VIII, Rule
6A(4) is required to be followed for purposes of
issuance of notice.
14. Learned counsel has placed reliance on
judgments rendered by Hon’ble the Supreme Court
in the case of ; AIR
Jabar Singh versus Genda Lal
1964 Supreme Court 1200 as also in the case of
(1985)1
Bhag Mal versus Ch. Parabhu Ram & Ors.;
SCC 61 .
15. Mr. Sudhir Pandey, learned counsel for
respondent no.4 has also submitted and placed
reliance on particularly
Black’s Law Dictionary
with regard to the aspect that words to which
reference is made in an instrument have the same
effect and operation as if they were inserted in
the clauses referring to them. In terms thereof,
it is submitted that the procedure indicated in
Section 87 of the Representation of People Act
indicates legislation by reference and therefore
since the procedure indicated under Order VIII
Rule 6-A(4) indicates notices to be issued in
case of a counter claim and recrimination
petition under Section 97 of the Representation
of the People Act being in the nature of a
counter-claim, notices are therefore required to
be issued.
16. Mr. Sudeep Seth, learned Senior counsel has
refuted submissions advanced by learned counsel
for recriminator as well as learned counsel for
respondent no.4 and submits that Section 97 of
the Representation of People Act applies only in
case a composite claim is made in an election
petition. He has referred to the aforesaid
provision to submit that in terms of the
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aforesaid Section 97, recrimination can be
claimed where in an election petition a
declaration apart from challenge to the returned
candidate is sought that in case that any other
candidate in whose favour a declaration has been
sought or claimed, the returned candidate or any
other party may give evidence to prove that the
election of such candidate would have been void
had he been a returned candidate. It is submitted
that although the recrimination petition filed in
terms of Section 97 of the Representation of
People Act is in the nature of a counter claim
but would depend on the final out come of the
election petition itself and therefore the
recrimination petition would only be
consequential in nature, due to which, no notices
are required to be issued in the recrimination
petition particularly at this stage when the
election petition is still pending.
17. It is further submitted that Section 97 of
the Representation of the People Act does not
contemplate any issuance of notice either to the
returned candidate or any other party to the lis
and in fact indicates only the aspect of notice
to be given to the High Court for intention to
file a recrimination petition within 14 days from
the date of commencement of trial. Learned
counsel has also adverted to provisions of
Chapter XV-A Rules 5 and 12 of the Allahabad High
Court Rules read with Section 87 of the
Representation of Peoples Act to submit that the
provisions clearly indicate that the procedure
required to be adopted by High Court for
adjudication in election petitions are required
to be as nearly as may be, in accordance with the
procedure applicable under the Code of Civil
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Procedure. It is therefore submitted that
applicability of the Code of Civil Procedure is
only for convenience in following procedure
pertaining to the conduct of an election petition
and provisions of the Code are not strictly
applicable either for decision in an election
petition or even a recrimination petition. He has
placed reliance on judgments rendered by Hon’ble
the Supreme Court in the case of Jabar Singh
reported in AIR 1964 Supreme
versus Genda Lal
Court 1200 , Janardan Dattuappa Bondre versus
; (1979)4 SCC
Govind Prasad Shiv Prasad Choudhar
516 , N. Gopal Reddy versus Bonala Krishnamurthy &
(1987) 2 SCC 58 ,
Ors. B. Sundara Rami Reddy
versus Election Commission of India & Ors. 1991
Supplementary (2) SCC 624 .
18. Learned counsel has also adverted to
Application I.A. No.2 of 2024 in the
recrimination petition and has particularly
placed reliance on paragraphs 4, 5, 6 & 8 to
submit that recriminator himself has admitted
that in a recrimination petition filed under
Section 97 of the Representation of People Act,
no notice is required to be issued.
19. Upon consideration of submissions advanced by
learned counsel for parties and perusal of
material on record, it would be conducive to
refer to the relevant provisions:
“
86. Trial of election petitions.
..............(4) Any candidate not
already a respondent shall, upon
application made by him to the High Court
within fourteen days from the date of
commencement of the trial and subject to
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any order as to security for costs which
may be made by the High Court, be entitled
to be joined as a respondent.
—(1)
87. Procedure before the High Court.
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 (5
of 1908) to 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 (1 of 1872), shall, subject to
the provisions of this Act, be deemed to
apply in all respects to the trial of an
election petition.]
.—(1)
97. Recrimination when seal claimed
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
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candidate and a petition had been
presented calling in question his
election:
that the returned candidate or
Provided
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 to in sub-
section (1) shall be accompanied by the
statement and 24[] particulars required *
by section 83 in the case of an election
petition and shall be signed and verified
in like manner.”
CHAPTER XV-A SPECIAL PROVISIONS RELATING
TO THE TRIAL OF ELECTION PETITIONS Rules
5 & 12 of the Allahabad High Court Rules
as under:
5. Issue of notice to respondent. The
election petition shall be laid before the
Bench so constituted without delay, and
unless it is dismissed under sub-section
(1) of Section 86 of the Act or for being
otherwise defective, the Bench may direct
issue of notice to the respondent to
appear and answer the claim on a date to
be specified therein. Such notice shall
also direct that if he wishes to put up a
defence he shall file his written
statement together with a list of all
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documents, whether in his possession or
power or not, upon which he intends to
rely as evidence in support of his defence
on or before the date fixed; and further,
that in default of appearnace being
entered on or before the date fixed in the
notice the election petition may be heard
and determined in his absence. The notice
shall be in Form No.34-A.
12. Court's power to give directions in
matters of practice and procedure. The
Bench may, consistently with the
provisions of Section 87 of the Act, give
such directions in matters of practice and
procedure (including the recording of
evidence) as it shall consider just and
expedient.
ORDER VII Plaint of the Code of Civil
Procedure, 1908 ……………... 9. Procedure on
—Where the Court orders
admitting plaint.
that the summons be served on the
defendants in the manner provided in rule
9 of Order V, it will direct the plaintiff
to present as many copies of the plaint on
plain paper as there are defendants within
seven days from the date of such order
along with requisite fee for service of
summons on the defendants.
ORDER V Issue and Service of Summons Issue
of Summons of the Code of Civil Procedure,
: ………………...
1908 Rule 9. Delivery of
summons by Court. —(1) Where the defendant
resides within the jurisdiction of the
Court in which the suit is instituted, or
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has an agent resident within that
jurisdiction who is empowered to accept
the service of the summons, the summons
shall, unless the Court otherwise directs,
be delivered or sent either to the proper
officer to be served by him or one of his
subordinates or to such courier services
as are approved by the Court.
(2) The proper officer may be an officer
of a Court other than that in which the
suit is instituted, and, where he is such
an officer, the summons may be sent to him
in such manner as the Court may direct.
(3) The services of summons may be made by
delivering or transmitting a copy thereof
by registered post acknowledgment due,
addressed to the defendant or his agent
empowered to accept the service or by
speed post or by such courier services as
are approved by the High Court or by the
Court referred to in sub-rule (1) or by
any other means of transmission of
documents (including fax message or
electronic mail service) provided by the
rules made by the High Court:
Provided that the service of summons under
this sub-rule shall be made at the
expenses of the plaintiff.
(4) Notwithstanding anything contained in
sub-rule (1), where a defendant resides
outside the jurisdiction of the Court in
which the suit is instituted, and the
Court directs that the service of summons
on that defendant may be made by such mode
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of service of summons as is referred to in
sub-rule (3) (except by registered post
acknowledgment due), the provisions of
rule 21 shall not apply.
(5) When an acknowledgment or any other
receipt purporting to be signed by the
defendant or his agent is received by the
Court or postal article containing the
summons is received back by the Court with
an endorsement purporting to have been
made by a postal employee or by any person
authorised by the courier service to the
effect that the defendant or his agent had
refused to take delivery of the postal
article containing the summons or had
refused to accept the summons by any other
means specified in sub-rule (3) when
tendered or transmitted to him, the Court
issuing the summons shall declare that the
summons had been duly served on the
defendant:
Provided that where the summons was
properly addressed, pre-paid and duly sent
by registered post acknowledgment due, the
declaration referred to in this sub-rule
shall be made notwithstanding the fact
that the acknowledgment having been lost
or mislaid, or for any other reason, has
not been received by the Court within
thirty days from the date of issue of
summons.
(6) The High Court or the District Judge,
as the case may be, shall prepare a panel
of courier agencies for the purposes of
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sub-rule (1).
ORDER VIII 1 [Written statement, set-off
and counter-claim] of the Code of Civil
Procedure, 1908
[6A(4). Counter-claim by defendant. —
………... (4) The counter-claim shall be
treated as a plaint and governed by the
rules applicable to plaints.
20. A perusal of Section 97 of the Act of 1951
indicates a provision for filing of a
recrimination petition and also indicates the
twin aspect with regard to relief claimed
whereunder only, a recrimination petition would
be entertain-able particularly when in an
election petition a declaration that any other
candidate other than the returned candidate has
been duly elected is claimed, provision has been
made for returned candidate or any other party to
provide evidence to prove that election of such
candidate would have been void if he had been a
returned candidate.
21. Chapter III of the Act of 1951 pertains to
trial of election petitions with Section 87
adverting to the procedure required to be
followed by the High Court for trial of election
petitions. Sub-section 1 thereof clearly
indicates that every election petition shall be
tried by the High Court, as nearly as may be, in
accordance with procedure applicable under the
Code of Civil Procedure.
22. It is thus evident that for purposes of trial
of election petition before this Court, procedure
required to be followed is to be by and large in
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accordance with the Code of Civil Procedure. The
said aspect has also been indicated in Chapter
XV-A, Rule 5 which pertains to issuance of notice
to respondent and also indicates that unless an
election petition is dismissed in terms of
Section 86(1) of the Act of 1951 or for being
otherwise defective, notices are required to be
issued to respondents to appear and answer the
claim. Rule 12 indicates the power of Court to
give directions in matters of practice and
procedure which are consistent with the
provisions of Section 87 of the Act of 1951.
23. Learned counsel for recriminator has placed
special emphasis on provisions of Order VIII,
Rule 6A(4) which indicates the procedure required
to be followed in cases of a counter claim by a
defendant.
24. The said provision provides a right to a
defendant in a suit to setup by way of counter
claim against the plaintiff, any right or claim
in respect of a cause of action in terms of
stipulations provided therein. Sub Rule 4 of
Order VIII Rule 6A provides that the counter
claim shall be treated as a plaint and governed
by the Rules applicable to plaints.
25. Order VII Rule 9 of the Code pertains to
procedure on admitting a plaint and refers to
Order V Rule 9 with regard to procedure for
serving of summons upon defendants.
26. Hon'ble the Supreme Court in the cases of
and (supra) has clearly
Jabar Singh Bhag Mal
enunciated the aspect that a recrimination
petition filed in terms of Section 97 of the Act
of 1951 is in the nature of a counter claim.
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27. In the case of (supra), it has
Jabar Singh
been held that the result of Section 97(1) of the
Act is that in dealing with a composite election
petition, the tribunal inquires into not only the
case made out by petitioner but also the counter
claim made by returned candidates. It is
therefore the nature of proceedings contemplated
under Section 97(1) that it is a counter claim.
It has also been held that until and unless the
returned candidate does not recriminate as
provided under Section 97, he cannot make any
attack against the alternative claim made in
petition and in such a case an inquiry is
required to held under Section 100 of the Act of
1951 and it is only when as a result of the said
inquiry, declaration is made that the election of
returned candidate is void, then the tribunal
will proceed to deal with the alternative claim.
28. The relevant portion of judgment is 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
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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. The
result of Section 97(1) therefore, is that
in dealing with a composite election
petition, the Tribunal enquires into not
only the case made out by the petitioner,
but also the counter-claim made by the
returned candidate. That being the nature
of the proceedings contemplated by Section
97(1), it is not surprising that the
returned candidate is required to make his
recrimination and serve notice in that
behalf in the manner and within the time
specified by Section 97(1) proviso and
Section 97(2). 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
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raising any pleas against the validity of
the claim of the alternative candidate.”
29. The same aspect has been enunciated in the
case of (supra) placing
Janardan Dattuappa Bondre
reliance on the case of Jabar Singh (supra) and
it has been held that proceedings under Section
97 of the Act of 1951 are consequential upon the
outcome of the Election Petition.
30. It is thus established from the aforesaid
pronouncements that the proceedings under Section
97 of the Act of 1951 are in the nature of a
counter claim but are consequential to the final
outcome of the election petition itself.
31. So far as the aspect of issuance of notice to
respondents in a recrimination petition is
concerned, the Supreme Court in the case of
Janardan Dattuappa Bondre (supra) has held as
follows:
“9. The inclusion of the 250 votes cast in
favour of the appellant was material for
the purpose of determining the total
number of votes received by him. The
accident that they were not placed in his
packet but in Bahekar's packet did not
render them any the less votes belonging
to the appellant. Their inclusion in
calculating the appellant's total was a
necessary part of the process involved in
deciding whether he had been duly elected
or whether on the election petition his
election should be declared void. It was a
process relevant to the first of the
reliefs claimed by the election
petitioner, that is to say, that the
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election of the appellant be declared
void. The other relief claimed by the
election petitioner was that the fifth
respondent be declared duly elected. Now,
as we observed in Jabar Singh v. Genda
Lal; (1964) 6 SCR 54, where both reliefs
are claimed in an election petition the
Court must first
decide the question whether the
election of the returned candidate
is valid or not, and if it is found
that the said election is void, it
makes a declaration to that effect
and then deals with the further
question whether the petitioner
himself or some other person can be
said to have been duly elected.
A notice of recrimination under Section 97
of the Act is necessary only where the
returned candidate or other candidate
disputes the grant of the further
declaration sought by the election
petitioner that he or some other candidate
should be declared duly elected. When the
re-count was taken, the High Court had not
yet concluded that the election of the
appellant was invalid. It was in the
process of determining that question, and
the question could properly be determined
only after giving to the appellant the
benefit of all the votes cast for him.
These would include the 250 votes cast in
his favour, even though they were found
placed in Bahekar's packet. Once the
benefit of his 250 votes is given to the
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appellant, he becomes the candidate with
the highest number of votes. His election
cannot be declared void. That being so, no
question arises of the appellant wanting
to give evidence to prove that the
election of any other candidate would have
been void if he had been the returned
candidate. Therefore, no notice for
recrimination under Section 97 was
necessary. In the circumstances, the High
Court erred in declining to count the
appellant's 250 votes in his total on the
ground that no notice of recrimination
under Section 97 of the Act had been
given.”
32. The same aspect has been propounded by
Hon'ble the Supreme Court in the case of N. Gopal
(supra) in the following manner:-
Reddy
“12. A plain reading of the aforesaid
section indicates that a notice of
recrimination is to be given to the High
Court by the returned candidate within a
stipulated time if he desires to adduce
evidence to prove that the election of the
candidate in whose favour a declaration
may have been asked would be void. The
proviso to Section 97(1) further indicates
that the returned candidate is not
entitled to give such evidence unless he
gives notice within 14 days from the date
of the commencement of the trial to the
High Court. It is relevant to note that
Section 97 does not require notice of
recrimination to be given to the election
petitioner; instead it is to be given to
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the High Court. Absence of recriminatory
notice does not prejudicially affect the
candidate in whose favour relief of
declaration may have been claimed.
Moreover when the returned candidate
points out the validity or invalidity of
ballot papers already on record, he is not
tendering any evidence before the court as
contemplated by Section 97 of the Act;
instead he is referring to the material
which is already on record. If the High
Court takes cognizance of such a material
on record without a notice under Section
97 we do not think that the High Court
would commit a jurisdictional error.”
33. In the case of (supra),
B. Sundara Rami Reddy
the aspect of applicability of Code of Civil
Procedure in election petition has been indicated
that such provisions and procedure are not
strictly applicable but have been made applicable
to a limited extent only as indicated under
Section 87 of the Act of 1951.
34. With regard to judgments cited by learned
counsel for petitioner, it is relevant that all
the judgments pertain to the aspect of recount of
votes and it is in that context that Hon'ble the
Supreme Court has held that since all the
material evidence was already on record, there
was no occasion for production of fresh evidence
due to which fresh notices were not required to
be issued for furnishing of fresh evidence.
35. However the aspect which requires
adjudication is not confined only to the aspect
of recount of votes but also the aspect of
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improper acceptance of the nomination form or any
other aspect which would vitiate the election
itself and would thus require submission of fresh
evidence including in a recrimination petition
filed under Section 97 of the Act.
36. It is in such premise that in the considered
opinion of this Court, judgments relied upon by
learned counsel for petitioner would be
inapplicable where the election is challenged not
only on the aspect of recount of votes but also
on the aspect of improper acceptance of
nomination form or any other aspect which
materially affects the outcome of the election.
37. Learned counsel for election petitioner has
also adverted to Section 86(4) of the Act to
submit the said provision provides for any
candidate not already a respondent, to be
impleaded as one upon application made by him to
the High Court within the time stipulated. It is
also submitted that in explanation of Section
86(4) of the Act, although Section 97 has been
indicated but it is only for the purpose of
ascertaining the date of commencement of trial of
a petition and not for any other purpose and
therefore on a perusal of the entire Section 86
of the Act, there is no provision for issuance of
notice under Section 97.
38. With regard to such submission, it is quite
evident from a perusal of Section 86(4) of the
Act that it would be applicable where the
election petition has been filed seeking
challenge to the election of returned candidate
and not where a composite election petition has
been filed as indicated here-in-above. Even
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23
otherwise the explanation to Section 86(4) of the
Act indicates that Section 97 has been referred
to not only for the purposes of ascertainment of
the date of commencement for trial but also for
the date which is fixed for respondents to appear
before the High Court and answer the claim or
claims made in the petition.
39. For compliance of the explanation clause of
Section 86(4) of the Act, therefore it is evident
that for the respondents to appear before the
High Court and answer the claim made in the
petition, obviously a notice is required to be
issued and since the explanation to Section 86(4)
of the Act refers to Section 97 as well, it would
naturally follow that notice would be required to
be issued in a recrimination petition under
Section 97 as well fixing for appearance of the
respondents without which no date can be fixed
for respondents to appear.
40. It is also relevant to refer to provisions of
Section 87 of the Act which clearly prescribes
that every election petition shall be tried, as
nearly as may be, in accordance with procedure
applicable under the Code of Civil Procedure.
41. Although Section 97 of the Act does not
indicate any provision for issuance of notice to
any of the respondents but the said aspects as to
the nature of a recrimination petition under
Section 97 of the Act has clearly been defined
and enunciated upon by Hon'ble the Supreme Court
as observed here-in-above and is in the nature of
a counter claim. It is in such circumstances that
applicability of the Code of Civil Procedure is
required to be examined.
ELEP No. 6 of 2022
24
42. Once it is already determined that the nature
of recrimination petition under Section 97 of the
Act is that of a counter claim and since Code of
Civil Procedure is applicable to the trial of
election petitions, it would necessarily follow
that provisions of Order VIII Rule 6A pertaining
to counter claim filed by defendant would apply.
Since the aforesaid Rule also prescribes issuance
of notice on a counter-claim and there is no
prohibition on the applicability of the Code of
Civil Procedure with regard to Section 97 of the
Act, in the considered opinion of this Court, the
said provision of Order VIII Rule 6A(4) shall be
applicable and a counter claim shall be treated
as a plaint and would be governed by Rules
applicable to the plaints whereby obviously
notice would require to be issued in a
recrimination petition under Section 97 of the
Act.
43. In view of discussion made here-in-above, it
is thus held that in recrimination petition filed
under Section 97 of the Act, separate notices are
required to be issued to the respondents of
recrimination petition.
44. However at this stage, issuance of notice in
the recrimination petition is also required to be
examined and in that context, as delineated here-
in-above,it has been held by Hon'ble the Supreme
Court that a recrimination petition is required
to be examined by the High Court subsequent to
the outcome of the election petition itself since
the recrimination under Section 97 of the Act is
consequential. In such circumstances, Section 98
of the Act also requires examination and is in
the following nature:
ELEP No. 6 of 2022
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"98. Decision of the High Court.—
At the conclusion of the trial of an
election petition the High Court shall
make an order—
(a) dismissing the election petition; or
(b) declaring the election of all or any
of the returned candidates to be void; or
(c) declaring the election of all or any
of the returned candidates to be void and
the petitioner or any other candidate to
have been duly elected."
45. The aforesaid Section, particularly sub-
section(c) thereof clearly indicates that
decision of the High Court at the conclusion of
trial of election petition includes a decision on
the recrimination petition under Section 97
itself in case the outcome of the election
petition itself warrants a further adjudication
of the recrimination petition.
46. In view thereof, since recrimination petition
is in the nature of a consequential petition,
subject to outcome of the election petition
itself, the notices on such recrimination
petition are required to be issued only in case
recrimination petition is required to be
adjudicated subject to final outcome of the
election petition itself.
47. In view of observation made here-in-above,
application for notices to be issued to the
respondents in the recrimination petition is
directed to be kept in abeyance and shall be
subject to final decision of the election
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26
petition itself, particularly in case any
adjudication on the recrimination petition is
warranted.
48. As prayed, list this case on 07.07.2026 at
03.30 P.M. for arguments on applications I.A
No.22 of 2024 and I.A No.56 of 2025.
May 25, 2026
Subodh/-
(Manish Mathur,J.)
Digitally signed by :-
SUBODH KUMAR SINGH
High Court of Judicature at Allahabad,
Lucknow Bench