TMI Blog2011 (1) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... the election petition up to the date of decision. Therefore, the procedure provided for the trial of civil suits under CPC is not applicable in its entirety to the trial of the election petition. For the purpose of the election petition, the word `trial' includes the entire proceedings commencing from the time of filing the election petition till the pronouncement of the judgment. The applicability of the procedure in Election Tribunal is circumscribed by two riders: firstly, the procedure prescribed in CPC is applicable only as nearly as may be , and secondly, the CPC would give way to any provisions of the Act or any rules made thereunder. Therefore, the procedure prescribed in CPC applies to election trial with flexibility and only as guidelines. The object of framing issues is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court. The issues are framed so that no party at the trial is taken by surprise. It is the issues fixed and not the pleadings that guide the parties in the matter of adducing evidence - There may be an exceptional case wherein the parties proceed to trial fully knowing the rival case and lead all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S : (A) A Notification under Section 30 of the Representation of People Act, 1951 (hereinafter called as the `Act 1951') dated 10.11.2008 was issued by Election Commission for holding elections to constitute 13th Legislative Assembly for the State of Rajasthan including the election scheduled for Nathdwara Legislative Assembly No. 176 (hereinafter called as `the constituency'). The appellant as well as the respondent filed their nominations and were candidates of recognised National Parties. The poll was held on 4.12.2008. (B) During the process of polling, there had been allegations/ challenges at various booths that at least 10 votes alleged to have been cast by imposters and thus, 10 tendered votes were cast under Rule 42 of the Conduct of Election Rules, 1961 (hereinafter called as the `Rules 1961'). The counting of votes took place on 8.12.2008 and the appellant contesting on the BJP ticket secured 62216 votes, while Shri C.P. Joshi (INC) secured 62215 votes. At the request of the election agent, a recounting took place under Rule 63 of the Rules 1961. However, the result remained the same and, thus, the appellant was declared duly elected by a margin of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D'Souza v. Francis Menino Jesus Ferrao, AIR 1977 SC 286, wherein it had been directed that all the tendered votes would be summoned and taken into consideration, i.e., that all the tendered votes have to be counted. The material issue in all the cases falling under Clause (d) of Section 100 of the Act 1951 remains whether the result of the election has been materially affected and, therefore, once the appellant raised his statutory right to lead evidence, in order to prevent the miscarriage of justice, it is necessary that all the tendered votes be counted. Thus, the impugned order is liable to be set aside. 5. On the other hand, Shri M.R. Calla, learned senior advocate appearing for the respondent, has vehemently opposed the appeal contending that the principles of equity and concept of substantial justice cannot be pressed into service in the present case. The election petition is to be adjudicated giving strict adherence to the statutory provisions without being influenced by any other concepts. The Court cannot permit a party to lead evidence unless an issue has been framed on the controversy and an issue cannot be framed unless there are actual pleadings in respect ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... election stood materially affected on account of improper reception of those votes. Thus, the same was liable to be rejected being not cast by genuine voters but by imposters. 8. In the written statement, the appellant has raised his doubts in respect of the aforesaid 6 tendered votes but has not taken any specific pleadings in respect of remaining 4 tendered votes. In paragraph 20 of the written statement, it has been denied that the result of the election stood materially affected on account of improper reception of those 6 tendered votes. In fact, the pleadings by both the parties in the election petition as well as in the written statement make reference only to 6 tendered votes and not to 10 tendered votes. 9. In view of the pleadings taken by the parties, the High Court framed only two issues: (i) Whether Smt. Kalpana Kunwar, wife of the respondent, is also known as Kalpana Singh and whether she cast her vote at two Polling Stations Viz. Polling Station No. 39 and Polling Station No. 40 of the Nathdwara Legislative Assembly Constituency No. 176 and if so, what is the effect on the election of the respondent? (ii) Whether the six votes mentioned in Para Nos. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. (Emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Swati Vinayak Nimhan, AIR 2006 SC 1218; Gursewak Singh v. Avtar Singh Ors., AIR 2006 SC 1791; and Baldev Singh v. Shinder Pal Singh Anr., (2007) 1 SCC 341). 15. In Gajanan Krishnaji Bapat Anr. v. Dattaji Raghobaji Meghe Ors., AIR 1995 SC 2284; this Court held that the court cannot consider any fact which is beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality the result of the election has been materially affected. 16. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Union, Kanpur, AIR 1956 SC 231, this Court observed: It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper. 20. Order XIV Rule 1 CPC reads: Issues arise when a material proposition of fact or law is affirmed by the party and denied by the other. Therefore, it is neither desirable nor required for the court to frame an issue not arising on the pleadings. The Court should not decide a suit on a matter/point on which no issue has been framed. (Vide: Raja Bommadevara Venkata Narasimha Naidu Anr. v. Raja Bommadevara Bhashya Karlu Naidu Ors., (1902) 29 Ind. App. 76 (PC); Sita Ram v. Radha Bai Ors., AIR 1968 SC 535; Gappulal v. Thakurji Shriji Dwarkadheeshji Anr., AIR 1969 SC 1291; and Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693). 21. The object of framing issues is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court. The issues are framed so that no party at the trial is taken by surprise. It is the issues fixed and not the pleadings that guide the parties in the matter of adducing evidence. [Vide: Say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enge to the validity of the election of the returned candidate under Section 100(1)(d), it would be noticed that what the election petitioner has to prove is not only the existence of one or the other of the grounds specified in clauses (i) to (iv) of Section 100(1)(d), but it has also to establish that as a result of the existence of the said ground the result of the election insofar as it concerns a returned candidate has been materially affected. It is thus obvious that what the Tribunal has to find is whether or not the election insofar as it concerns the returned candidate has been materially affected, and that means that the only point which the Tribunal has to decide is has the election of the returned candidate been materially affected? And no other enquiry is legitimate or permissible in such a case. This requirement of Section 100(1)(d) necessarily imports limitations on the scope of the enquiry. Confining ourselves to clause (iii) of Section 100(1)(d), what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Jabar Singh case (supra) and the view taken in several decisions of this Court, referred to hereinabove, we sum up the law as under: (1) In an election petition wherein the limited relief sought for is the declaration that the election of the returned candidate is void on the ground under Section 100(1)(d)(iii) of the Act, the scope of enquiry shall remain confined to two questions: (a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an enquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or (b) any votes were improperly refused or rejected in regard to the returned candidate. (2) A recrimination by the returned candidate or any other party can be filed under Section 97(1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected. (3) For the purpose of enabling an enquiry that any votes have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of Section 100(1)(d)(iii) of the Act, 1951. Election petitioner has further pleaded that the result of the election stood materially affected because of improper receiving the six tendered votes and in absence of any Recrimination Petition in the case the appellant cannot be permitted to lead evidence on the fact which is not in issue. 28. The judgment in Wilfred D'Souza's case (Supra) has distinguishable features. In that case, the appellant had asserted that the result of the election of the respondent had been materially affected by the improper reception, refusal and rejection of votes and a specific prayer had been made by the appellant in the election petition that the election of the respondent be declared void and the appellant be declared to be duly elected. The respondent had denied that the tendered votes were cast by genuine voters. The issue had been framed in that case as under: Whether the petitioner proves that the vote or votes were initially improperly received and should be removed and in their place tendered vote or votes should be taken into account. The Election Tribunal therein did not record any evidence on behalf of the respondents and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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