Judgment

GUPTA. J.:- In this appeal by special leave the appellant questions the propriety of an order made by the High Court of Punjab and Haryana at Chandigarh in the course of trial of an election petition allowing petitioner s experts to inspect the counterfoils of the ballot papers of voters who had been found by the Court "prima facie to have been impersonated".

2. The facts leading to the order under appeal are briefly as follows. In the election held on March 11. 1973 the appellant Shri Manphul Singh was elected to the Haryana Vidhan Sabha from the Jhajjar Constituency defeating his only rival, Shri Surinder Singh, the respondent before us, by a margin of 265 votes. Shri Surinder Singh, referred to hereinafter as the petitioner, filed an election petition challenging the election of the returned candidate on various allegations of which the following are material for the present purpose:

(1) 28 votes were cast in favour of the returned candidate by some Persons impersonating voters who were dead.

(2) 710 absentee voters were impersonated by persons who polled their votes in favour of the returned candidate.

(3) 158 government servants who were registered as voters in the constituency but were not present in their respective villages and did not cast their votes, were impersonated and their votes were polled in favour of the returned candidate.

(4) 149 persons, registered as voters at two or more different places in the constituency, polled their votes twice or more than twice in favour of the returned candidate.

3. In an application filed on 1-12-1972 the petitioner suggested a procedure to enable him to prove his case of impersonation and double voting. It was stated that he would produce genuine voters who should be shown the counterfoils of the ballot papers to test whether the counterfoils carried their genuine signatures and for this purpose the petitioner asked for production of the counterfoils. This application was pending when the petitioner started examining his witnesses and the prayer was renewed when one Ranbir Singh, P. W. 17, was in the witness box. The prayer was opposed on behalf of the returned candidate but the High Court by its order dated January 5, 1973 allowed inspection of two counterfoils of ballot papers to confirm the oral evidence of the witness that he had impersonated two voters by signing their names in the counterfoils.

4. It appears that from an earlier interlocutory order passed in this election dispute, the returned candidate had preferred an appeal to this Court which was dismissed. In the Judgment in that case, reported in AIR 1973 SC 2158 (Manphul Singh v. Surinder Singh), this Court observed at page 2162 of the report referring to the petitioner s aforesaid application dated December 1, 1972:

"In the application filed in support of the petition for production of records it is pointed out that the evidence is to be led by the production of genuine voter and he is to be shown the counterfoil whether it bears his signature or not and then whether he in fact polled his vote or not or somebody else had cast his vote. It was specifically stated that the petitioner will pray for inspection of ballot papers when he succeeds in proving that they have not cast their votes and have been impersonated. Nothing could be clearer or more reasonable thus this."

5. Obviously, in this context "proving" meant proving prima facie, or there would not have been any necessity of examining the counterfoils.

6. On December 17, 1973 the High Court allowed the prayer made on behalf of the petitioner to allow two finger print experts named by the petitioner to compare the thumb impressions of some of the witnesses with the thumb impressions on the relevant counterfoils. On December 18, 1973 the returned candidate made an application, registered as Civil Miscellaneous Application No. 158-E/ 73 on which the order under appeal was passed on February 4, 1974. In that application the returned candidate contended that the cou