Civil Appeal No 236 of 1983
From the Judgment and Order dated the 11th January 1983 of the Punjab and Haryana High Court in Election Petition No2 of 1982
M C Bhandare and Prem Malhotra for the Appellant
Hardev Singh and R section Sodhi for the Respondent
The Order of the Court was delivered by FAZAL ALI J
This election appeal arises out of the election held in 1980 from the constituency No 56 called Hathin to the 796 Legislative Assembly of the State of Haryana
At the counting held by the Returning Officer the Appellant secured 12828 votes whereas respondent No 1 Khillan Singh got 12655 votes and one Ramjilal got 12213 votes
Accordingly the appellant was declared as elected
Aggrieved by the result of the election Khillan Singh and Ramjilal filed election petitions in the High Court
In the course of the election petition the appellant filed a recrimination petition in which one of the grounds related to the errors committed in the counting of votes of respondent No 1
All the parties agreed that the court should order a recount and that the parties would be bound by the result of the recount
The recount was accordingly held as a result of which Khillan Singh respondent No 1 got 12751 ie the highest number of valid votes and the appellant got 12698 votes
In view of the higher votes secured by Khillan Singh respondent No 1 at the recount ordered by the High Court his petition was allowed the election of the appellant was set aside and Khillan Singh was declared as elected
This appeal is filed against the decision of the High Court
In support of the appeal Mr Bhandare with the usual ingenuity pressed only one point before us
He submitted on the basis of the Judgment of this Court in Jabar Singh vs Genda Lal that even if the result had gone in favour of respondent No 1 he could not have been declared elected
We have gone through this authority and we find that the facts of the present case are clearly distinguishable
In the decision referred to above the returned candidate did not recriminate as provided under section 97 of the Representation of the People Act 1951 and this was the important ground on which the Court said that it could not make any attack against the alternative claim made by the petitioner
In the instant case the appellant had admittedly recriminated and in the recrimination petition one of the grounds taken related to the errors committed at the time of the counting of votes of the Ist respondent by the Returning Officer
The appellant had also agreed to the recounting of the votes secured by all the parties
In these circumstances this case does not appear to be of any assistance to the appellant
The decision of the High Court is in accordance with the result of the recount ordered by it
For the foregoing reasons the appeal is dismissed but in the circumstances of the case there will be no order as to costs
HSK Appeal dismissed


Summary:
The appellant who was a returned candidate filed a recrimination petition in the election petition filed by the first respondent and another
As a result of the recount to which all the parties had agreed the High Court declared the first respondent as elected
Hence this appeal
Dismissing the appeal
 HELD The case of Jabar Singh vs Genda Lal on which the appellant relies is of no assistance to him because the facts of the present case are clearly distinguishable from that case
In that case the returned candidate did not recriminate as provided under sec
97 of the Representation of the People Act 1951
In the instant case the appellant had admittedly recriminated and in the recrimination petition one of the grounds taken related to the errors committed at the time of the counting of votes of the Ist respondent by the Returning Officer
The appellant had also agreed to the recounting of the votes secured by all the parties
796 E G Jabar Singh vs Genda Lal   referred to and distinguished