FAO No.1200 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1200 of 2009 (O&M) Date of Decision: 22.3.2010 Bholi Devi ..Appellant. Vs. Additional Deputy Commissioner and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Sanjay Kaushal, Advocate for the appellant. Mr.P.K.Gupta, Advocate for respondents No.2,7,9 and 11. RAKESH KUMAR JAIN, J. This appeal is directed against the order of Additional Deputy Commissioner-cum-Election Tribunal, Roop Nagar dated 21.1.2009 whereby election of the appellant for the seat of General Category (Women) Panch has been set aside and respondent No.2/election petitioner (Sunita Devi) has been declared to have been elected. Learned counsel for the appellant has vehemently argued that in the first counting, both appellant and respondent No.2 had polled 50 votes each and because of a tie, draw of lots was held which fell in favour of the appellant who was declared elected. However, later on election petition has been filed by respondent No.2 challenging the election for adopting corrupt practice much less on the ground that after she had left, her votes have been illegally rejected by the Returning Officer. FAO No.1200 of 2009 (O&M) -2- Learned counsel for the appellant has submitted that learned Court below has erred in allowing the election petition because the election petitioner has deliberately concealed the fact of draw of lots having been taken place and secondly the procedure of the Code of Civil Procedure, 1908 (for short `CPC') as prescribed under Section 81 of the Punjab State Election Commission Act, 1994 (for short `the Act') has not been followed. In reply, counsel for the respondent No.2 has submitted that there is no question of any concealment on the part of the election petitioner as there were no such proceedings, which is alleged to have taken place by way of draw of lots and secondly, the appellant has not filed written statement even to contest the election petition. It is also submitted that there is nothing on record which could suggest that draw of lots has taken place as suggested by counsel for the appellant. It is submitted by counsel for the respondents that the appellant did not ask for framing of any issue or the trial of the election petition as a statement was suffered by counsel for the appellant that it could be suffice if the rejected votes are reconsidered. On the asking of the counsel for the parties, statement was duly recorded by the learned Tribunal on the basis of which it was found that three votes have been illegally rejected which were polled in favour of election petitioner. Hence, the learned Tribunal set aside the election of the appellant and declare respondent No.2 as the elected Panch. Insofar as the argument of the counsel for the appellant is concerned that Section 81 prescribes procedure of CPC and also provides that evidence has to be taken in accordance with Indian Evidence Act, 1872 the word used by the legislature is 'as nearly as may be', means that if trial is required by the parties then the election petitioner should proceed in accordance with law laid down under the CPC FAO No.1200 of 2009 (O&M) -3- by inviting issues as per Order 14 of the CPC and after framing of issues, would ask the parties to lead their evidence for the proper adjudication. Since the appellant did not challenge the election petition by way of written statement and put forward her case, there is no question of framing any issue specifically when the statement suffered by the appellant was that they would be satisfied if the rejected votes are recounted. In view of the above, I do not find any merit in the present appeal and as such, the same is hereby dismissed. (Rakesh Kumar Jain) 22.3.2010 Judge Meenu