JUDGMENT

FAZAL ALI, J.:— This election appeal is directed against a judgment dated December 28, 1982 of the single Judge of the Himachal Pradesh High Court, who was assigned as an election Judge under the provisions of the Representation of the People Act (hereinafter referred to as the Act). The appeal arises out of an election to the Himachal Pradesh Legislative Assembly from the Simla Constituency. The poll was held on May 19, 1982 and the result was declared on May 21, 1982 whereby the appellant was declared elected by a margin of 2945 votes. The respondent. Anand Sharma filed an election petition in the High Court challenging the election of the appellant on the around that he (appellant) was guilty of indulging in several corrupt practices as envisaged by the provisions of the Act. The High Court after going through the entire evidence of the parties and considering the documents, came to the conclusion that the allegations of corrupt Practices against the appellant were fully proved and accordinally set aside his election, hence this appeal to this Court by the elected candidate Daulat Ram Chauhan. We may also mention here that two other candidates, besides others. K. D. Batish and Pooran Chand Sood (hereinafter referred to as Batish and Sood respectively) were also in the field but they had withdrawn.

2. Mr. Shanti Bhushan appearing for the appellant raised a preliminary objection which according to him, if accepted, was sufficient to dismiss the election petition of the respondent in limine. We had decided to go into the validity of the preliminary objection because if it was accented then the election petition would have to be dismissed and it would not be necessary to hear the appeal on merits but if the preliminary objection was overruled then the appeal would have to be heard on merits.

3. The only important point raised by the counsel for the appellant before us is that as the election petitioner (respondent) had alleged that Batish and Sood, committed corrupt practices with the consent of the appellant and yet they were not made parties to the election petition the High Court should have dismissed the election petition in limine under the provisions of S. 82 (b) read with S. 86 of the Act. It is not disputed before us that Batish and Sood were candidates for election to the Simla constituency and that they were not made parties to the election petition filed by the respondent in the High Court. Section 82 (b) runs thus :

"82. Parties to the petition

A Petitioner shall join as respondents to his petition-

(b) any other candidate against whom allegations of corrupt practice are made in the petition.

4. Section 86 provides that where there is a violation of S. 82, the High Court shall dismiss the petition.

5. The dominant question for consideration is as to whether or not the respondent had alleged that Batish and Sood indulged in corrupt practice as defined in S. 123 of the Act. Mr. Bhandare appearing for the respondent, however submitted that the allegations made against the aforesaid persons did not amount to corrupt practice as contemplated by S. 123 because from the averments made by the respondent there is nothing to show that these two persons had indulged in corrupt practice either at the instance or with the consent of the appellant or his election agent.

6. In view of the arguments of the parties the matter lies within a very narrow compass because Mr. Shanti Bhushan with his usual ingenuity and brevity hag invited us to consider the effect of the allegations made in para 16 of the election petition read with para 4, which according to him is a sort of an index to para 16. It appears that an additional issue regarding the allegation contained in para 16 was raised in the High Court in the following terms :

"Whether any allegations of corrupt practices have been made in the petition against Sarvashri Kali Das Batish and Puran Chand Sood who were admittedly candidates at the election. If so to what effect?"

7. Howeve