Judgment

N. H. 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 Tribunal to allow withdrawal or abandonment of part of the claims before them.

2. 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 respondent 1 was the candidate of the Lok Sevak Sangh party. The result of the election was declared on 3rd March, 1957 and the appellant was declared elected by a majority of 1, 727 votes. On 14th April, 1957, respondent 1 presented 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, respondent 1 had been duly elected as he had secured the next highest number of valid votes. The Election Petition was published in the official gazette and was then referred to the Election Tribunal for trial. The appellant and respondents 2 and 3 received a notice from the Election Commission requiring them to appear before the Tribunal on or before 20th July, 1957. On the said date, respondent 1 submitted before the Election Tribunal what purported to be an application under O. 23, R. 1, Civil P. C., 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 1 declared void and to have costs of the proceedings awarded to him."

3. On 25th July 1957, the appellant filed his objections to the said application contending inter alia, that by reason of the fact that respondent 1 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 respondent 1 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 purported abandonment of the relief by respondent 1. On 29th July 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., 20th July 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).

4. On 1st August 1957, respondent 1 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 26th June 1957, and respondent 1 decided to contest the election in the vacancy, filed his nomination paper for the said vacancy on 17th September 1957, and was duly elec