CHHANGANI, J.—By means of Miscellaneous Application No.57 Shri Bobde appearing for the respondent No. 2 Shri Radhey Shyam Morarka has raised an objection of a preliminary nature relating to the non-maintainability of the recrimination petition filed on behalf of Shri R. K. Birla—respondent No. 1 the returned candidate. The case of the respondent No. 2 is that the additional declaration sought by the election petitioner that the respondent No. 2 was duly elected, could not have been claimed by him. According to him, such a declaration could be claimed by a candidate petitioner and not merely a voter petitioner. Since the petitioner could not in law, claim such a relief, the respondent No. 1 did not acquire any right to file the recrimination petition and as such, the recriminatory petition is not maintainable in law. The respondent No. 2 further submits that the question is purely of law and does not need any additional evidence and goes to the root of the jurisdiction of the court to decide the recrimination. He prayed for raising and trying a preliminary issue to be framed as follows :—

"Is the recrimination petition maintainable ?"

2. It may be stated at the out set that the present stand of the respondent No. 2 is inconsistent with his stand originally taken in the case. In his written statement filed in reply to the election petition, the respondent No. 2 entirely supported the petitioners case. In para 15 of his written statement the respondent No. 2 stated as follows :—

"This respondent, therefore, submits that the petition of the petitioner be allowed and the election of respondent No. 1 be declared void and it may be declared that this respondent has been duly elected to the House of the People from the Jhunjhunu Parliamentary Constituency."

At that stage the respondent No. 2 not only supported the petitioners prayer for a declaration that the election of the respondent No. 1 be declared void but also supported the additional prayer for a declaration that the respondent No. 2 should be declared elected. The respondent No. 2 also took no plea as has been taken in the miscellaneous petition, in his reply to the recrimination petition.

3. As the question raised in the miscellaneous petition is purely one of law and as the learned counsel for the respondent No. 1 and the petitioner did not seriously dispute that right of the respondent No. 2 to raise such a purely legal controversy, the learned counsel for the parties were heard on the controversy.

4. In support of his prayer, the counsel for the respondent No. 2 relied upon the use of the expressions "he himself or any other candidate "and all the contesting candidates other than the petitioner" appearing in sec. 82 of the Representation of the People Act (hereinafter to be referred to as the Act; and similar words in sec. 84 of the Act and contended that on a proper construction of the language in these two sections a petitioner who is merely a voter and who was not one of the contesting candidates, cannot be entitled to seek the additional declaration that he himself or any other candidate has been duly elected.

5. As the respondent No. 2 questioned the right of the petitioner to claim additional declaration, I heard Mr. Pai appearing for the petitioner on the controversy. He, in the first instance, pointed out his incapacity and inability to withdraw the prayer for additional declaration made in the election petition having regard to the decision of the Supreme Court on the point. He also sought to justify the petitioners additional relief for the additional declaration by referring to some observations of the Supreme Court but hastened to add that the observations of the Supreme Court were of the casual nature and should not be held to lay down a binding law. He did not take any positive stand and frankly stated that much could be said on either side. He, however, placed some considerations favouring Shri Bobdes case and showed his eventual leaning in support of the miscella

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