IMPORTANT POINT
Jabar Singh’s case (cited supra) needs reconsideration.

Per V. S. SIRPURKAR, J.

JUDGMENT

V. S. Sirpurkar, J. —

1. I have had the benefit of the opinion expressed by my brother. Since the facts in this appeal have been meticulously put in that judgment, I need not restate them. It is held in that judgment that the order passed by the Learned Single Judge deleting paragraphs 22 to 31 from the written statement of the elected candidate in pursuance of the application filed by the election petitioner under Order VI Rule 16, Code of Civil Procedure is correct. With deepest respect to my brother, I find myself unable to agree with the view taken, as also the ultimate order passed in pursuance of that view. In my opinion, the Learned Designated Election Judge was not right in striking out those paragraphs and the application made by the election petitioner under Order VI Rule 16, CPC was liable to be dismissed.

2. The election petitioner was a losing candidate and he had lost his election by merely two votes. In the election petition, the following prayers were made:

“....................

(iii) to order a re-count of the votes after excluding the void votes if required;

(iv) to declare the election of the Respondent No.1 as void;

(v) to pass other and further orders as may be deemed fit by the Hon’ble Court in the facts and circumstances of the case.”

3. During pendency of the case, an application came to be made by the winning candidate herein seeking a direction to the election petitioner to clarify the exact relief sought for in prayer Nos.(iv) and (v) as probably, because the prayer in clause (v) was too general and the appellant herein probably wanted to know as to what were the ramifications of that direction and, more particularly, whether it included a prayer for a direction in favour of the election petitioner in case, if, as a result of the recount, it was found that he had secured more votes than the elected candidate.

4. A clear cut order came to be passed to the effect that the election petitioner had not made any prayer to declare himself or any other candidate as an elected candidate, which declaration can be given under Section 101 of the Representation of the People Act, 1950. The Learned Judge, therefore, held that, under clause (v), the Court could grant only such reliefs or pass such reliefs which were ancillary to the election petition and no specific declaration could be made in favour of the election petitioner or any other candidate and resultantly, the elected candidate could not raise a defence that the election petitioner had secured votes which were void and hence, the appellant had secured more votes and was rightly elected.

5. By way of defence, the appellant herein, who was an elected candidate, has enumerated from paragraphs 22 to 31 that even the defeated candidate had not secured the votes which have been shown to have been cast in his favour as, even in his case, number of dead voters had cast votes; besides, numbers of votes were illegally counted in his favour. He, therefore, raised a question that, if at all recount had to be ordered, the votes of all the candidates who contested the election should be counted.

6. In paragraph 21, it was suggested in the following words that:

“as provided and regulated by the procedure of CPC, the present answering respondent has hereby sought for raising counter claim as to the maintainability of the total number of votes obtained by the election petitioner”.

7. In paragraph 22, details have been given regarding four polling stations, namely 6/1, 6/2, 6/3 and 6/4 suggesting the number of persons voted, who were, in fact, dead or who could not have otherwise cast their vote and also gave names of the persons who had impersonated the dead persons and had cast their votes. In these paragraphs, more particularly, paragraph 28 says that, in the alternative, if the High Court has to direct the recounting, the High Court should also direct recounting of the void votes of polling station Nos. 6/1, 6/2, 6/3 and 6/4 and cancel the