Inamati Mallappa Basappa vs Desai Basavaraj Ayyappa and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 76 of 1958

Decision Date: 22 April 1958

Coram: Natwarlal H. Bhagwati, J.L. Kapur, A.K. Sarkar

In the matter titled Inamati Mallappa Basappa versus Desai Basavaraj Ayyappa and others, the Supreme Court of India delivered its judgment on 22 April 1958. The judgment was authored by Justice Natwarlal H. Bhagwati, with Justices J. L. Kapur and A. K. Sarkar forming the bench. The petitioner, Inamati Mallappa Basappa, had contested an election petition against the respondent, Desai Basavaraj Ayyappa, who had been declared the successful candidate. The petitioner sought a declaration that the election of the respondent was void and that he, the petitioner, should be declared elected because he had obtained the second‑highest number of valid votes.

At the outset of the hearing before the Election Tribunal, the petitioner filed an application under Order 23, Rule 1 of the Code of Civil Procedure, 1908, seeking to abandon the portion of his relief that claimed the seat. The respondent objected to this abandonment and, invoking section 97 of the Representation of the People Act, 1951 (27 of 1951), served a notice of recrimination together with the required statement and particulars. The petitioner argued that, having abandoned his claim for the seat, the respondent could no longer introduce evidence in support of recrimination, contending that the right to recriminate depended on the existence of a claim for the seat.

The Tribunal held that section 90(1) of the Representation of the People Act incorporated the procedural provisions of the Code of Civil Procedure into election petitions, thereby granting the petitioner a right under Order 23, Rule 1 to abandon part of his claim. Consequently, the Tribunal concluded that because the petitioner had abandoned his claim for the seat, the respondent’s right to recriminate was lost.

The Supreme Court, however, observed that the provisions of the Act constitute a self‑contained code governing the trial of election petitions. Despite the incorporation made by section 90(1), the Court held that Order 23, Rule 1 of the Code of Civil Procedure did not apply to the trial of an election petition before the Tribunal. It further ruled that once an election petition containing a claim for the seat is presented to the Election Commission, the petitioner cannot withdraw or abandon any part of that claim, especially when such withdrawal would deprive the respondent of a right that had already accrued under section 97 of the Act. The Court emphasized that the right of recrimination vests in the respondent the moment the election petition, including the claim for the seat, is filed with the Election Commission, and that this right cannot be defeated by the petitioner’s subsequent withdrawal of the claim for the seat.

The Court clarified that an election petition, once filed, does not create a contest merely between the parties named in the petition. Rather, it continues as a proceeding for the benefit of the entire constituency and may not be terminated merely by the petitioner’s withdrawal, death, or any similar act, nor by the respondent’s death or withdrawal. The petition remains liable to be continued by any person who might have been a petitioner, preserving the broader public interest embodied in the electoral process.

The Court explained that an election petition concerns the entire constituency and does not terminate simply because the petitioner withdraws his claim, dies, or because the respondent, who opposes the petition, dies or withdraws. The petition may continue on behalf of any person who could have been a petitioner. The judgment concerned a civil appellate matter, specifically Civil Appeal No 76 of 1958, which was taken on special leave from the judgment and order dated 26 September 1957 of the Election Tribunal at Dharwar in Election Petition No 52 of 1957. Counsel G S Pathak, H J Umrigar and G C Mathur represented the appellant, while P Ram Reddy appeared for respondent No 1, and G S Pathak together with S S Shukla represented the interveners. The decision was announced on 22 April 1958 by Justice Bhagwati. This appeal was the fourth in a series of civil appeals arising from election petitions that required interpretation of the Representation of the People Act, 1951 (referred to as “the Act”). The crucial issues were the construction of section 97 of the Act and the authority of Election Tribunals to permit the withdrawal or abandonment of part of a claim. The appellant and respondents 1 to 3 had contested the Mysore Legislative Assembly election from the Dharwar constituency in the most recent general elections. The appellant was the candidate of the Congress party, while the first respondent stood for the Lok Sevak Sangh. The election result was declared on 3 March 1957, with the appellant being returned as the winner by a margin of 1,727 votes. On 14 April 1957, the first respondent filed Election Petition No 52 of 1957 under section 80 of the Act before the Election Commission. In that petition he sought a declaration that the appellant’s election was void and additionally claimed that he himself should be declared elected because he had obtained the second‑highest number of valid votes. The petition was published in the official gazette and referred to the Election Tribunal for trial. The appellant and respondents 2 and 3 subsequently received a notice from the Election Commission directing them to appear before the Tribunal on or before 20 July 1957. On that date the first respondent presented to the Tribunal an application, purported to be made under Order 23, Rule 1 of the Code of Civil Procedure, stating that he was abandoning part of his claim, namely the request that the Tribunal declare him duly elected as he had secured the next highest number of valid votes. He therefore limited his relief to a declaration that the election of respondent No 1 should be set aside and that he should be awarded costs. On 25 July 1957, the appellant filed objections to this application, contending inter alia that the abandonment of the relief could not affect the rights that had arisen under section 97 of the Act.

The appellant argued that, because the first respondent had originally sought a declaration in his Election Petition that he was duly elected, the appellant and the other respondents to that petition acquired a statutory right under section 97 of the Act to file a recrimination against the first respondent, provided that they complied with the procedural requirements prescribed in the statute, and that this right could not be defeated by the first respondent’s alleged abandonment of his relief. Accordingly, on 29 July 1957 the appellant served a notice of recrimination pursuant to section 97. That notice was accompanied by a statement and the particulars required by section 97 read with section 83 of the Act, and it was served within the fourteen‑day period prescribed from the date deemed to be the commencement of the trial, namely 20 July 1957. The particulars alleged corrupt practices under sections 123(1)(a) and (b) and section 123(6) of the Act, specifically bribery and the use of motor vehicles to transport voters to the poll; if those allegations were proved, they would have resulted in the appellant’s disqualification from standing as a candidate and from being a member of the Legislature for a period of six years measured from the date on which the Election Tribunal’s finding on such practices took effect under section 140. On 1 August 1957 the first respondent filed an objection to the appellant’s notice under section 97, contending that the appellant was not entitled to adduce evidence in a recrimination because the first respondent had abandoned the claim for a further declaration. The first respondent also explained that a vacancy had arisen in a neighbouring Legislative Assembly constituency following the death of Shri B. R. Tambakad on 26 June 1957; he consequently decided to contest that vacancy, filed his nomination on 17 September 1957 and was duly elected on 16 October 1957 as a member of the Mysore Legislative Assembly from the Kalaghatgi constituency. The application of the first respondent under Order 23, rule 1 of the Code of Civil Procedure, the notice of recrimination issued by the appellant under section 97, and the first respondent’s objection to that notice were all placed before the Election Tribunal at Dharwar for hearing. The Tribunal then framed three issues for determination: (1) whether the first respondent was permitted to abandon the part of his claim in the manner he had done; (2) if the abandonment was permitted, whether the appellant would be entitled to give notice of his intention to present evidence showing that the first respondent’s election would have been void had he been returned as the candidate; and (3) whether the appellant’s notice of recrimination was barred by limitation. After hearing the parties, the Tribunal held that, by virtue of the provisions of section 90(1) of the Act, …

The Tribunal observed that the provisions of the Code of Civil Procedure were made applicable to proceedings in election petitions by virtue of the Act. Consequently, under Order 23, rule 1 of the Code, the first respondent possessed the right to abandon a part of his claim. The Tribunal further noted that the first respondent had abandoned the portion of his claim that sought a declaration that he should be recognized as the duly elected candidate. Because this specific relief was withdrawn, the Tribunal concluded that neither the appellant nor respondents numbered two and three could give a notice of recrimination pursuant to section 97 of the Act. As a result, the appellant was not permitted to produce evidence intended to demonstrate that the election of the first respondent would have been void had the first respondent been the returned candidate. The Tribunal also examined the question of limitation with respect to the appellant’s notice of recrimination. It held that the notice was not barred because, according to the explanation to section 90(4), the trial of the petition was deemed to commence on the date fixed for the appellant and respondents two and three to appear before the Tribunal, which was July 20, 1957. The appellant had served the required notice of recrimination within fourteen days of that deemed commencement date, satisfying the statutory time limit. Accordingly, the Tribunal ordered that the abandonment of the first respondent’s claim be formally noted on the petition. Moreover, the Tribunal directed that the appellant could not sustain any evidence intended to prove the election of the first respondent would have been void, since the abandonment of that portion of the claim extinguished the appellant’s right of recrimination.

Subsequently, the appellant applied for and obtained, on January 13, 1958, special leave to appeal from this Court under Article 136 of the Constitution, thereby initiating Civil Appeal No. 76 of 1958 against the Tribunal’s decision. The appeal therefore presented before this Court arises from the Tribunal’s order rejecting the appellant’s recrimination claim. For the purpose of adjudicating the matter, the Court reproduced the relevant statutory provision, namely section 97 of the Act, which reads as follows: “Recrimination when seat claimed: (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election, provided that the returned candidate or such other party shall not be entitled to give such evidence unless he has, within fourteen days from the date of the commencement of the trial, given notice to the Tribunal of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively. (2) Every notice referred to in sub‑section (1) shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner.” Under the terms of this provision, the right of recrimination is conditioned upon timely notice and the fulfilment of security requirements, which the Tribunal had found were not satisfied after the first respondent’s abandonment of the relevant part of his claim.

Under the provision, a right of recrimination attached to the returned candidate or any other party to the election petition when the petitioner, besides seeking a declaration that the election of all or any of the returned candidates was void, also sought a further declaration that a candidate other than the returned candidate had been duly elected. The Court considered whether the petitioner could abandon that portion of his relief which sought the further declaration, thereby stripping the returned candidate or another party of the recrimination right that had therefore accrued to them. In other words, the Court examined whether the Election Tribunal possessed the authority to permit the petitioner to withdraw or abandon part of his claim, which would render the exercised right of recrimination ineffective. At the beginning of its analysis, the Court emphasized the need to understand the nature and scope of an election petition. It recalled its earlier observation in Civil Appeals Nos. 763 and 764 of 1957 and Civil Appeal No. 48 of 1958 that an election contest was “not an action at law or a suit in equity but a purely statutory proceeding unknown to the common law and that the court possesses no common‑law power.” The Court further noted that an election petition was not a matter confined to the competing candidates alone; the public also had a substantial interest, not merely because elections had news value, but because elections formed an essential component of the democratic process.

The Court explained that an election petition was not a suit between two individuals but a proceeding in which the constituency itself was the principal interested party, as reflected in authorities such as Jagan Nath v. Jaswant Singh, A. Sreenivasan v. Election Tribunal, Madras, and the Tipperary case. When an election petition was presented to the Election Commission, the Commission examined it and, if the petition was not dismissed for non‑compliance with sections 81, 82 or 117 of the Act, the Commission accepted it, caused a copy to be published in the Official Gazette, and served a copy by post on each respondent. In this way, not only the respondents received notice, but the entire constituency was informed through Gazette publication, ensuring that every voter and all interested parties became aware of the petition’s existence. The Gazette copy also disclosed that the petitioner, in the specific election petition, claimed a declaration that the election of all or any of the returned candidates was void and additionally claimed a further declaration that either the petitioner himself or another candidate had been duly elected.

The Court explained that the entire electorate became aware that the officially declared election result was being challenged on lawful grounds, and that such a challenge could lead to the election of one or more returned candidates being declared void. Consequently, the petitioner or any other candidate could be declared duly elected in place of the returned candidate. The electorate might therefore wish either to preserve the existing outcome or, if the election of the returned candidate were set aside, to see another qualified candidate elected instead of the petitioner or any candidate sponsored by the petitioner, whose election might itself be vulnerable under the grounds listed in section 100(1). This collective interest of the electorate gave the proceedings before the Election Tribunals a distinctive character that set them apart from ordinary civil litigation, as noted in the authorities (1) [1954] S.C.R. 892, 895; (2) (1955) II E.L.R. 278, 293; and (3) (1875) 3 O'M. & H. 19, 23. After the petitioner initiated the process, he unleashed forces that he could not later withdraw, binding him to pursue the petition to its logical conclusion. If the petitioner failed to prove his claim that the election of any returned candidate was void, he would inevitably lose, and no further question would arise about obtaining a declaration that he or any other candidate had been duly elected. In such a circumstance, all grounds raised under section 100(1) would fail, the election would stand, and the voters would be vindicated. Conversely, if the petitioner succeeded in establishing that the election of the returned candidate was void, the next issue would be whether the petitioner himself or any other candidate he sponsored should be declared duly elected. Should the election of the petitioner or his sponsored candidate be susceptible to challenge under any of the grounds in section 100(1), that election would be void if the candidate had been returned and the petition had contested his election. In that event, a recrimination could be filed by the returned candidate or any other party to the petition pursuant to section 97. The required notice under section 97 would have to include the statement and particulars mandated by section 83 in an election petition, and it would need to be signed and verified in the same manner, effectively constituting a counter‑petition presented by the returned candidate or any other interested party.

The notice to the tribunal must be accompanied by the statement and particulars that section 83 requires in an election petition, and it must also be supported by the deposit of security and the additional security mentioned in sections 117 and 118 of the Act. Consequently, the contest would not be limited to the petitioner on one side and the returned candidate on the other; it would also involve the returned candidate or any other party to the petition against the candidate who has been sponsored by the petitioner for that election. Such a contest would lead to the declaration of the properly qualified candidate as duly elected, thereby preserving the integrity of the election, which is of vital interest to the entire constituency, and preventing any individual from being elected through blatant violations of election law or corrupt practices.

The purpose of a recrimination is precisely this preservation of electoral purity, and the right to file a recrimination belongs to the returned candidate or any other party to the petition at the moment an election petition is filed that includes a claim for a further declaration that the petitioner himself or another candidate has been duly elected. The proviso to section 97(1) merely sets conditions for exercising that right. It provides that the returned candidate or other party may not present such evidence unless, within fourteen days from the start of the trial, he has given notice to the tribunal of his intention to do so and has furnished the security and additional security required by sections 117 and 118 respectively. If these conditions are satisfied in the prescribed manner, the returned candidate or other party becomes entitled to present the evidence; the right cannot be exercised if either condition remains unmet.

Importantly, the accrual of this right is not delayed until the conditions are fulfilled. The right arises as soon as an election petition containing a claim for a further declaration is presented to the Election Commission. Once that right has accrued to the returned candidate or any other party, the question arises whether the petitioner can defeat that right by withdrawing or abandoning the portion of his claim that seeks a further declaration that he or any other candidate has been duly elected. If the petitioner were allowed, by analogy with Order 23, rule 1 of the Code of Civil Procedure, to withdraw or abandon that part of his claim, he could use that loophole to avoid any investigation within the election petition concerning himself or any candidate he sponsored on any of the grounds listed in section 100(1), including corrupt practices as defined in section 123, which, if proven, would

The Court explained that a finding of corrupt practice under section 123, if proved, would trigger a disqualification from standing as a candidate or even from voting for a period of six years in accordance with sections 140 and 141(b). Regarding the withdrawal of election petitions, the Act contains specific provisions that begin with section 108. Section 108 governs the withdrawal of a petition before any Tribunal has been appointed. It states that an election petition may be withdrawn only with the permission of the Election Commission, provided that the application for withdrawal is filed before a Tribunal is appointed to try the petition. Section 109 deals with withdrawal after a Tribunal has been appointed. Under this provision, an application for withdrawal filed after the appointment of a Tribunal may be granted only by the Tribunal’s leave. The Tribunal must issue a notice of the application, fixing a hearing date, and must serve that notice on all other parties to the petition and publish it in the official gazette. Section 110 prescribes the procedure for withdrawal before either the Election Commission or the Tribunal. Sub‑section 110(2) specifically provides that an application for withdrawal must not be granted if, in the opinion of the Election Commission or the Tribunal, the application has been induced by any bargain or consideration that ought not to be allowed. If the application is approved, the withdrawal notice must be published in the official gazette by the appropriate authority, either the Election Commission or the Tribunal. Moreover, any person who could have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the withdrawing party, provided that the conditions of section 117 concerning security are satisfied. Upon meeting those conditions, the applicant is entitled to substitution and may continue the proceedings on terms that the Tribunal deems appropriate. In the event that the Tribunal grants a withdrawal application and no substitution is made, the Tribunal must report the fact to the Election Commission, which will then publish the report in the official gazette. Such publication effectively ends the election contest, and the result that has already been declared can no longer be disturbed.

The Court also noted that the Act contains provisions dealing with the consequences of the death of a sole petitioner, the death of the surviving petitioner where there were several petitioners, and the death or withdrawal of the sole respondent. Section 112 provides that an election petition shall abate on the death of a sole petitioner or on the death of the surviving petitioner when there were multiple petitioners. If such abatement occurs before a Tribunal has been appointed to try the petition, a notice of the abatement must be published in the official gazette by the Election Commission. This procedural step ensures that the relevant parties are informed of the termination of the petition due to the petitioner’s death.

The Court observed that Section 113 required the Election Commission to publish a notice of abatement of an election petition in the official gazette. In contrast, Section 114 mandated that when a petition abated after a Tribunal had already been appointed for its trial, the Tribunal itself had to publish the notice of abatement in the official gazette. The Court further noted that the death of a sole petitioner, or the death of the surviving petitioner among several, did not automatically terminate the proceedings because Section 115 expressly provided that, after a notice of abatement was published under either Section 113 or Section 114, any person who might have been a petitioner could, within fourteen days of such publication, apply to be substituted as petitioner. The Court explained that, upon satisfying the security requirements prescribed in Section 117, the applicant would be entitled to substitution and could continue the proceedings on such terms as the Tribunal might deem appropriate. Regarding the position of a respondent, the Court explained that Section 116 dealt with the death or withdrawal of opposition by a respondent. It stated that if, before the trial concluded, the sole respondent died or gave notice that he would not oppose the petition, or if any respondent died or gave such notice and no other respondent remained in opposition, the Tribunal was obligated to cause a notice of that event to be published in the official gazette. Thereafter, any person who might have been a petitioner could, within fourteen days of the publication, apply to be substituted in place of the deceased or withdrawn respondent to continue opposing the petition, and the Tribunal could allow the continuation of the proceedings on terms it considered fit. The Court emphasized that these statutory provisions demonstrated that an election petition, once filed, was not confined to a simple contest between the original parties but created a situation that the entire constituency could invoke. Accordingly, any person who might have been a petitioner was entitled, upon meeting the prescribed conditions, to be substituted for a withdrawing party, and even the death of a sole petitioner or of the surviving petitioner among several did not end the proceedings. Likewise, when the sole respondent died or withdrew opposition and no other respondent remained, the opposition to the petition could be continued by any person who might have been a petitioner, subject to the conditions set out in Section 116. The Court concluded that, because of these provisions, an election petition continued for the benefit of the whole constituency and could not be terminated merely by the withdrawal of the petitioner or by the death or withdrawal of the respondent.

In this case, the Court observed that an election petition, once properly presented, could not be withdrawn merely by the petitioner’s own action, by his death, or by the death or withdrawal of opposition from the respondent; instead, the petition could continue through any person who might have been a petitioner. The Court then posed the question whether, although the petitioner could not withdraw the entire petition in the manner described, he might nevertheless be permitted to abandon or withdraw a part of his claim by analogy with Order 0. 23, Rule 1 of the Code of Civil Procedure. The Court noted that the whole petition could not be withdrawn, but considered whether a partial withdrawal could be allowed. For this purpose, the petitioners relied upon the provisions of Section 90 of the Representation of the People Act.

Section 90(1) of the Act required that, subject to the Act and any rules made thereunder, every election petition be tried by the Tribunal in a manner as close as possible to the procedure applicable under the Code of Civil Procedure for the trial of suits. However, the Tribunal retained the discretion to refuse, for reasons recorded in writing, the examination of any witness or witnesses if it deemed the evidence immaterial to the decision of the petition, or if the party offering the witness did so on frivolous grounds or with an intention to delay the proceedings. Under Section 90(2), the provisions of the Indian Evidence Act, 1872 were deemed to apply, subject to the Act, in all respects to the trial of an election petition. Section 90(4) allowed any candidate who was not already a respondent to apply to the Tribunal within fourteen days from the commencement of the trial, and, subject to Section 119, to be joined as a respondent. Section 90(5) empowered the Tribunal, on terms it deemed appropriate with respect to costs and otherwise, to permit amendment or amplification of the particulars of any corrupt practice alleged in the petition, provided such amendment was necessary for a fair and effective trial, but it barred any amendment that would introduce new particulars of corrupt practice not previously alleged.

The Court concluded that these provisions primarily dealt with the procedural framework for trying election petitions before the Tribunals, covering matters such as witness examination, evidentiary rules, joinder of additional respondents, and amendment or amplification of alleged corrupt practices. The Court further noted that the Tribunal’s substantive powers were set out separately in Section 92, which conferred on the Tribunal the powers vested in a civil court under the Code of Civil Procedure for matters such as discovery, attendance of witnesses, production of documents, examination of witnesses on oath, granting of adjournments, and other procedural functions.

The Tribunal was affirmed to have the powers that are vested in a court under the Code of Civil Procedure when a suit is tried, namely the authority to order discovery and inspection, to enforce the attendance of witnesses and to require the deposit of their expenses, to compel the production of documents, to examine witnesses on oath, to grant adjournments, to receive evidence taken on affidavit, and to issue commissions for the examination of witnesses. In addition, the Tribunal may summon and examine suo motu any person whose evidence appears to be material, and it is deemed to be a civil court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898. It is observed that the statute distinguishes between the procedure to be followed by the Tribunal and the substantive powers that the Tribunal may exercise, treating them as separate matters. The Act also contains several other provisions that regulate aspects of the election‑petition trial. Section 88 deals with the place of trial, section 89 confers on the Election Commission the power to withdraw and transfer petitions, section 91 governs appearance before the Tribunal, section 93 addresses documentary evidence, section 95 provides for answering criminating questions and the issuance of a certificate of indemnity, and section 96 prescribes the payment of expenses of witnesses. Collectively, these provisions form a self‑contained code that governs the trial of election petitions. Accordingly, even though section 90(1) of the Act is present, the provisions of O. 23, r. 1 of the Code of Civil Procedure are not applicable to the trial of election petitions before the Tribunals. The Court reasoned that if a complete withdrawal of a petition cannot be permitted, then, by parity of reasoning, the withdrawal of a part of the claim also cannot be allowed without giving another person who might have been a petitioner the opportunity to substitute himself and continue that part of the claim. When the electorate as a whole has an interest in the petition presented before the Election Tribunal, any withdrawal or abandonment of a portion of the claim would be impermissible unless the court permits a suitable replacement to pursue the claim to its logical conclusion. The provisions of O. 23, r. 1 of the Code of Civil Procedure contain inherent evidence that opposes the view that a petitioner may unilaterally withdraw a portion of the claim. Specifically, sub‑rule (2) of O. 23, r. 1 provides that the court may, at its discretion, allow a party who withdraws or abandons a part of his claim to file a fresh suit on the same cause of action. Such liberty, however, is not available to a petitioner in an election petition. The provisions concerning withdrawal of petitions do not contain a similar exception, and if they

In considering whether the provisions of Order 23, rule 1, sub‑rule (2) could be invoked when a petitioner withdrew or abandoned a portion of his claim in an election petition, the Court first examined if those provisions, although not applicable to the outright withdrawal of petitions, might nevertheless govern the partial withdrawal of a claim. The Court then asked whether, if sub‑rule (2) were inapplicable, the remaining provisions of Order 23, rule 1 would still give the petitioner freedom to withdraw or abandon part of his claim. After a careful review of the relevant rules, the Court concluded that none of the provisions of Order 23, rule 1 applied to election petitions. Consequently, a petitioner could not withdraw or abandon any part of his claim after the election petition had been presented to the Election Commission, particularly because such a withdrawal would deprive the returned candidate or any other interested party of the right of recrimination that had accrued to him under section 97 of the Representation of the People Act. The Court noted that the same position was recognized in English law. It referred to Halsbury’s Laws of England, third edition, volume 14, paragraph 451, page 258, which states that the withdrawal of the portion of a petition that seeks the seat cannot be effected by amendment because the electors’ rights would be affected by the loss of an opportunity to substitute another petitioner. The Court also cited the same source at page 300, paragraph 541, observing that when a petition includes a prayer for the seat, recriminatory evidence may still be introduced even if the prayer for the seat is abandoned at trial. The Court highlighted the case of Aldridge v. Hurst (1876) L.R. C.P. 410, 413‑417, where Justice Grove observed that many provisions of the Act refer not merely to the individual interests or rights of petitioners or respondents, but to the rights of electors, constituencies, and the public in maintaining the purity of elections and ensuring that the member seated is duly returned by a majority of proper votes. The Court further emphasized that the scope of the Act demands that petitions should not be frivolous pleadings, nor should they be framed to intimidate or induce the respondent to abandon his seat, nor should they be collusive; rather, they must be genuine, well considered, and not lightly withdrawn either in whole or in part. The passages quoted demonstrate that the Act envisions not only the possibility for a candidate who was not returned to claim the seat, but also that any voter may claim the seat on behalf of a candidate who was not returned. This reflects the legislation’s intention that petitions protect the rights of the constituency to ensure that the person truly elected serves as their member, without resorting to a costly and disruptive fresh election, and that a decision in favor of such a claim is final.

It was observed that the election law does not protect only the interests of candidates who were not returned; it also safeguards the right of the constituency to ensure that the individual who was truly elected becomes its member. This protection is intended to avoid the expense and disruption of conducting a new election, because a judge’s decision in favour of such a claim is regarded as final. The Court further stated that it would be an infringement of this collective right if a petition filed by a single person—here a candidate—claiming the seat could be withdrawn merely by the petitioner’s motion after the twenty‑one‑day period during which no other petition may be presented. Such a withdrawal would consequently prevent the voters from asserting their claim to the seat for a person who might be the duly elected representative, or from using the recriminative charges raised in the petition to demonstrate that the claimant is either not entitled to the seat by that election or is disqualified from future elections. The withdrawal, however, is not accompanied by any authority to replace the original petitioner with another person, which would otherwise permit the inquiry to continue at trial. The Court emphasized that the partial withdrawal of the prayer in the petition is, in substance, comparable to the provisions of the Act that deal with the withdrawal of an entire petition, even if it does not fall precisely within those provisions.

The judgment also noted that, although petitions may be filed at the last possible moment, it is commonly known within the relevant county or borough that such petitions are likely to be presented. When there is any suspicion that the petitions are sham, earnest individuals take steps to lodge genuine petitions, and the Act contains safeguards that prevent the complete withdrawal of collusive petitions. From one perspective, an argument against allowing the withdrawal of the prayer is that, in the absence of any power under the withdrawal clauses to substitute another petitioner for this specific prayer, the constituency would be left without a means to prove either that the petitioner is the duly elected member, to answer his allegation of election, or to show that he is unfit to serve in a future parliament, especially when the petitioner himself has raised the issue by claiming the seat. Consequently, it is clear that the Election Commission possesses no authority to permit a petitioner to withdraw or abandon part of his claim, whether by resorting to rule 0.23 r.1 of the Code of Civil Procedure or by any other means. If this is so, the right of recrimination that has once accrued to the returned candidate or any other party to the petition under section 97 of the Act cannot be removed, and the returned candidate or any other party to the petition would retain that right.

In this case the Court held that when the situation described arises, the returned candidate or any other party to the petition is entitled to present evidence showing that the election of the petitioner or any other candidate that the petitioner sponsored would have been invalid had that returned candidate actually been declared the winner and a petition had been filed to challenge his election. The Court further stated that the counter‑petition, which in effect has been filed by the returned candidate or by any other interested party, must be permitted to proceed, and the right of recrimination must remain exercisable even though the petitioner has attempted to abandon a portion of his claim. The Court explained that, if corrupt practices defined in section 123 were proved against the petitioner or against any candidate he sponsored, such proof would lead to the disqualification of that person from standing as a candidate and, under sections 140 and 141(b), would also disqualify him from voting for a period of six years. Applying these principles to the facts before it, the Court observed that the appellant’s evidence would have resulted not only in the first respondent’s loss of the right to vote but also in his loss of the right to contest elections for six years, which in turn would have made his election to the Mysore Legislative Assembly from the Kalaghatgi constituency on 16 October 1957 void and would have required his removal from office. Consequently the Court concluded that the order of the Election Tribunal, which had allowed the first respondent to abandon part of his claim and had barred the appellant from offering evidence to show that the first respondent’s election would have been void had he been the returned candidate, was manifestly erroneous and should be set aside. Accordingly, the appeal was allowed, the Tribunal’s order dated 26 September 1957 was reversed, and the Tribunal was directed to resume trial of the election petition on the original claims and to permit the appellant to exercise his right of recrimination under section 97 of the Act. The first respondent was ordered to pay the appellant’s costs of this appeal together with the costs expended before the Election Tribunal. Appeal was allowed.