IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. *** J U D G M E N T Mangla Ram VS. Sital Dass & Ors. S.B. CIVIL MISC.APPEAL NO.255/2004 AGAINST THE JUDGMENT DATED 7.4.2003 PASSED BY DISTRICT JUDGE, PALI SHRI MURLIDHAR VESHNAV IN CIVIL MISC CASE NO.37/2000 REPORTABLE DATE OF JUDGMENT : 2nd August, 2004 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA Mr.Vijay Bishnoi, for the appellant. Mr.Sangeet Lodha ] Mr.Dinesh Maheshwari ], for the respondents. **** BY THE COURT: 1. Appellant-defendant no. 1 Mangla Ram has preferred this appeal under Section 46(1) of the Rajasthan Municipalities Act, 1959 (here in after referred as Act of 1959) against the judgment dated 7th April, 2003 passed by the learned District Judge, Pali. The learned District Judge, Pali vide judgment dated 7th April, 2003 allowed the election petition filed by the respondent no.1-plaintiff Shital Das against the 1 appellant-defendant no.1 and set aside the election of appellant, declaring him, ward member for ward no.10 of Municipal Council, Pali. After setting aside the election of the appellant, the court below also declared plaintiff-respondent no.1 as elected ward member for the ward no.10 of Pali Municipal Council. 2. Brief facts of the case are that election for the ward members for Municipal Council, Pali were held on 26th Nov., 1999. Counting took place on 27th Nov., 1999. The appellant was declared elected by margin of one vote only. The respondent no.1 challenged the election petition of the appellant by filing election petition under Section 34 of the Act of 1959. Election of the appellant was principally challenged on two grounds. First ground is that one of the children of the appellant born after 27th Nov. 1995 and before that date appellant already had more than two children. As per clause (xiv) of Sec. 26 read with proviso (e) of Act of 1959, a person who has more than two children and one is born after 27th No. 1995 then such person incurs disqualification to contest the municipal election. Second ground is that, when appellant and the respondent no. 1, both secured equal votes then the respondent no. 1 submitted application for recounting of the votes upon which the returning officer ordered recounting of the votes of the appellant and respondent no. 1 2 only but after recounting, one of the vote of another candidate Amba Lal was counted in favour of appellant and he was declared elected by margin of only one vote. There were other grounds also, but those grounds were not pressed by the respondent no.1- plaintiff before the court below. 3.The issues framed by the court below were; (i) whether the non-petitioners-appellants' nomination was wrongly and illegally accepted, (ii) whether the election for the ward no.10 of the Municipal Council, Pali was conducted in violation to the Rules and, therefore, they are invalid, (iii) whether the defendant no.1 was illegally allotted election symbol of Indian National Congress and it affected the election materially, (iv) whether the votes were wrongly counted and defendant no.1 was illegally declared elected and lastly, (v) whether the plaintiff is entitled to be declared as elected member of the ward no.10 of the Municipal Council, Pali. 4. In support of his case the plaintiff gave his statement on oath as AW-1 and produced witnesses AW-2 Rajendra Kumar Bhati, AW-3 Santosh and AW-4 Mangu Singh Dudawat. The plaintiff produced documentary evidence also. EX.1 and Ex.2 are the copies of declaration, submitted by the defendant-appellant 3 Mangla Ram for his children, before the Returning Officer, Ex.3 is the copy of nomination form of said Mangla Ram, Ex.4 is the copy of objections submitted by defendant no.3 Amba Lal against the candidature of the Mangla Ram’s candidature, Ex.5 is the another objection filed by Amba Lal and Ex.6 is the copy of the affidavit of Amba Lal. The plaintiff further submitted Ex.7, copy of the certificate obtained from the school to show that plaintiff's four children were admitted in the school at Pali, Ex.8 is the copy of the objection submitted by one Mangu Singh Dudawat before the Returning Officer raising objection against the candidature of candidate Mangla Ram on the ground of his having total five children, Ex.9 is copy of the affidavit of said Mangu Singh Dudawat, Ex.10 is the copy of the order passed by the returning officer, Ex.11 is the copy of the counting check memo dated 27th Nov., 1999 for round no.1 of counting, Ex.12 is the copy of counting memo for round no.2, Ex.13 is the copy of the application submitted by the plaintiff for recounting of the votes, Ex.14 is the order for recounting passed by the returning officer, Ex.15 is the another application for recounting of votes, Ex.16 is the copy of the declaration of result, Ex.17 is the copy of the final result sheet and Ex.18 is the survey report conducted by the Mahila and Bal Vikas Vibhag. 4 5.The appellant defendant himself gave statement on oath as DW-1 before the trial court and produced witnesses DW-2 Shankar Singh and DW-3 Ganpat Ram. 6. It will be worthwhile to mention here that the trial court suo motu raised a question at the time of final arguments that whether all votes, valid, invalid and tender votes are required to be recounted. The plaintiff opposed the recounting of the votes whereas the defendant had no objection if recounting is ordered. The trial court influenced by the difference of only one vote between plaintiff and defendant and in view of the fact that plaintiff himself made request for recounting before the Returning Officer, (though opposed before the trial court itself), ordered recounting of all votes. This suo motu order for recounting of the trial court dated 8.10.2002 was challenged by defendant by filing writ petition (S.B. Civil writ petition No.4137/2002), which was allowed by this court by order dated 17th Dec., 2002 and the order of recounting was set aside by this court. 7. The trial court after evidence and opportunity of hearing to both the parties held that defendant had five children and at the time of filing of nomination paper he had one child born after 27th Nov., 1995, 5 which was the cut out date and, therefore, the appellant was disqualified to contest the election and his nomination paper was wrongly accepted by the Returning Officer. The issues no.2 and 3 about the election being in violation of rules and wrong allotment of election symbol to the returned candidate were not pressed by the plaintiff, therefore, decided against the plaintiff-respondent no.1. The court below further held that when in first counting plaintiff Shital Dass secured 452 votes and returned candidate-appellant secured only 451 votes then the plaintiff Shital Dass should have been declared elected, by not doing so, the returning officer committed error in counting and declaring appellant as elected and consequentially, the trial court decided issue no.5 in favour of the plaintiff and declared him as elected ward member from ward no.10 of the Municipal Council, Pali. 8.Being aggrieved against the judgment of the court below, the appellant returned candidate challenged the judgment of the trial court in this appeal. 9.First of all learned counsel for the appellant submitted that in view of the settled law and as held by the Hon'ble Apex Court in the case of Prakash Khandre Vs. Dr. Vijay Kumar Khandre & Ors. reported in (2002) 5 SCC 568 where there are more than two 6 candidates for one seat and the elected candidate subsequently found to be disqualified, the candidate who secured more votes than the remaining candidates cannot be declared as elected as votes cast in favour of the disqualified candidate cannot be regarded as thrown away, nor can it be presumed that those votes would have been secured by the next candidate who secured more votes. The Hon’ble Apex Court further held that it cannot be predicted as to in whose favour the voters would have voted if they were aware that the elected candidate was disqualified. The proposition laid down by the Hon’ble Apex Court fully applies to the facts of this case and learned counsel for the respondent Shri. Sangeet Lodha could not seriously dispute this proposition. Therefore, the part of the finding so far as declaration of respondent no.1 as elected candidate by the court below is liable to be set aside, hence, set aside and issue no.5 is decided against the plaintiff- respondent no.1 in view of the said judgment delivered in the case of Prakash Khandre Vs. Dr.Vijay Kumar Khandre & Ors. (supra). 10.Learned counsel for the appellant returned candidate vehemently submitted that the court below exceeded its jurisdiction in deciding issue no.1 in favour of the plaintiff-respondent no.1. According to learned counsel for the appellant in the election petition, 7 the plaintiff is required to plead all the facts on the basis of which he wants to challenge the election of the returned candidate. Learned counsel for the appellant vehemently submitted that since there was no sufficient pleading about the birth of any of the child of the appellant after cut out date, i.e., 27th Nov., 1995, therefore, the trial court did not frame an issue that whether any of the child of the appellant born after 27th Nov., 1995. Learned counsel for the appellant further submitted that though there was only one issue and it was also vague, still the trial court divided the issue in two parts whereas the said issue could not have been bifurcated in two parts. The trial court under assumption that issue no.1 has two parts while deciding issue no.1 specifically held that second part of the issue; one of the child born to the appellant after the cut out date, decided the issue against the appellant and declared that one of the child of the appellant born after 27th Nov., 1995. According to learned counsel for the appellant because of lack of pleading and because of non- framing of proper issue finding recorded against the appellant vitiated. Learned counsel for the appellant relied upon the judgment delivered in the case of Nedunuri Kameswaramma Vs. Sampati Subba Rao reported in AIR 1963 (SC) 884 in support of his plea that omission to frame issue vitiates the proceedings. 8 11.On merit of the issue no.1, learned counsel for the appellant submitted that assuming for the sake of arguments that the court could have gone into the issue of birth of any child of the appellant then it was the duty cast upon the plaintiff respondent no.1 to prove the issue of fact by producing evidence. In this case, according to learned counsel for the appellant, there arose no occasion for appellant to rebut the allegation of birth of the child of the appellant after cut out date as the plaintiff failed to discharge his burden of proving the fact demanding any rebuttal from the appellant. It is also submitted that the court below committed serious error of law and ignored the settled law about proving a fact in court of law and, therefore, the finding of the trial court on issue no.1 factually wrong and illegal, cannot be sustained. 12.Learned counsel for the appellant-defendant elected candidate vehemently submitted that even if evidence produced by the appellant-defendant is ignored, still election petition was liable to be dismissed as there is no iota of evidence on record to prove that appellant had two or more children before cut out date and any more children born to the appellant after the cut out date. Learned counsel for the appellant heavily relied upon the judgment of the 9 Hon'ble Apex Court delivered in the case of Birad Mal Singhvi Vs. Anand Purohit reported in AIR 1988 SC 1796 and one judgment of this court (by me) delivered in S.B. Civil writ petition No.4553/2002-Lala Ram Vs. Civil Judge (Sr.Div.), Jodhpur. 13.With equal force and vehemence, learned counsel for the appellant submitted that the issue no.4 has also been decided wrongly by the court below as the court below failed to appreciate even the facts of the case and proceeded on wrong assumptions. According to learned counsel for the appellant, the learned trial court absolutely erroneously proceeded on assumption that after complete counting of the votes plaintiff- respondent secured 452 votes and defendant-appellant secured 451 votes. According to learned counsel for the appellant, there was no reason for court below to proceed on this assumption, except due to mis-reading of not only evidence of both the parties and further because of mis-reading of Ex.11, which is the counting check memo sheet for round no.1 only and not the sheet of final vote counting and court below’s mistake is also because Ex.12, vote counting sheet for second round, must have escaped the notice of the court. 14.In reply, learned counsel for the plaintiff- respondent no.1 vehemently submitted that plaintiff 10 clearly pleaded his case about the disqualification of the appellant in contesting the election on the ground of birth of one child to him after the cut out date. The plaintiff in pleadings referred the documents Ex.4 to Ex.9, which were submitted before the Returning Officer in which objection has been raised by defendant Amba Lal and one Mangu Singh Dudawat against the candidature of the appellant on the ground of his having disqualification under Clause (XIV) of Section 26 of the Act of 1959. The plaintiff after relying on those documents specifically in the plaint at page no.4 submitted that defendant no.2 raised objection that appellant- defendant no.1 has total five children, out of which three born after 1992 and youngest issue of defendant no.1 was of the age of 1 ½ years only at the time of filling of the nomination, which makes the plea of the plaintiff absolutely clear. It is also submitted that issue no.1 was framed by the trial court only on this plea of the plaintiff respondent. It is also submitted that, in fact, there is no specific denial of the fact by the appellant in his written statement and the appellant even did not produce his wife, who was the best witness to disprove the allegations. Non-production of this material witness by the appellant clearly shows that in case she would have been produced as witness she would have given true and correct statement on the fact in issue and which 11 would have gone against the appellant. It is also submitted that the plaintiff had personal knowledge about the number of the children of the appellant and also has knowledge about the timings of their birth. The plaintiff also produced independent witnesses and not only independent witnesses but one of them, is supporter of the appellant's political party and he is AW-4 Mangu Singh Dudawat. 15.It is also submitted that plaintiff proved, as a matter of fact, that counting was not properly conducted and not only this, but the recounting was conducted in violation to the order passed by the returning officer himself and in the back of the even elected contesting candidates. It is also submitted that if what has been ordered by the returning officer in the order for recounting would have been adhered to then also result would have remained same, equal votes for plaintiff and defendant and defendant could not have been declared elected. Therefore, according to learned counsel for the plaintiff- respondent that if the reasons given by the trial court on one point may not found to be sufficient for deciding issue no.4 in favour of the plaintiff, still appellant could not point out any error of fact or illegality in the finding of the trial court that the appellant defendant was illegally declared elected by the returning officer after illegally adding one vote 12 of the another candidate Amba Lal in the votes of defendant-appellant. Therefore, appeal of the appellant is liable to be dismissed. It is also submitted that in the light of finding of the trial court that one vote wrongly added in favour of the defendant and if this addition is ignored then plaintiff and defendant both secured equal votes, therefore also, declaration of the Returning Officer declaring appellant-defendant elected is void. In such a situation the Returning Officer could have drawn lot for plaintiff and defendant as per sub- clause (a) of sub-sec. (7) of Section 44 of the Act of 1959. It is also submitted that in case plaintiff can not be declared elected and it is held that both, plaintiff and defendant secured equal votes then this court may draw lot between plaintiff and defendant as per sub-clause (b) of sub-sec. (7) of Section 44 of the Act of 1959. 16.Learned counsel for the appellant also cited judgments of the Hon'ble Apex court delivered in the case of Chanda Singh Vs. Ch.Shiv Ram Varma & Ors reported in AIR 1975 (SC) 404, S.Baldev Singh Vs. Teja Singh Swatantra (Dead) & Ors reported in AIR 1975 (SC) 693, V.S. Achuthanandan Vs. P.J.Francis & Anr. reported in (2001) 3 SCC 81, Ananga Uday Singh Deo Vs. Ranga Nath Mishra & Ors. reported in (2002) 1 13 SCC 499, Mahendra Pal Vs. Ram Dass Malanger & Ors. reported in (2002) 3 SCC 457, P.H.Pujar Vs. Kanthi Rajashekhar Kidiyappa & Ors. reported in (2002) 3 SCC 742 and Mahender Pratap Vs. Krishan Pal & Ors. reported in (2003) 1 SCC 390. These authorities are on the issue relating to the situation in which the recounting can or cannot be ordered by the court. Hon'ble Supreme court the case P.K.K.Shamsudeen Vs. K.A.M. Mappillai Mohindeen and others (AIR 1989 SC 640) set aside the election tribunal’s order for recounting even after it was found that the candidate declared elected in fact secured 528 votes only as against 649 he was originally held to have secured and petitioner secured 556. The Supreme Court set aside the order of recounting passed by the election tribunal as there was no factual foundation laid down for recounting by the petitioner in the election petition. In this case also neither any factual foundation was laid down by the plaintiff in the pleadings nor there was any prayer of the plaintiff in the election petition for recounting of vote rather plaintiff himself opposed the recounting of the votes before the trial court, which is clear from the order of the trial court dated 8.10.2002. This court has already set aside the court below’s order for recounting by order dated 17.12.2002. Therefore, in the facts of this case there arises no question for recounting of the votes. 14 17. I considered the rival submissions and perused the record. 18.On merit, first of all it is to be seen whether the trial court recorded the finding about defendant’s children against the defendant-appellant without there being any pleading or recorded the findings without sufficient pleadings? Whether the court below had not framed the proper issue on this point and issue as framed by the court below caused prejudice to the defendant-appellant? 19. After going through the pleading in the election petition and entire record, I found the plaintiff in his election petition pleaded that one Amba Lal (defendant no. 1) and one Mangu Lal submitted written objections before the returning officer that defendant- appellant is disqualified to contest election as he has five children and one was born after cut out date. Plaintiff also placed on record the copies of those objections. Plaintiff also pleaded that one of the child was of the age of 1-1/2 years only at the time of submitting nomination by the defendant, therefore, defendant was disqualified to contest the election. A plain and simple reading of the election petition itself makes clear the ground for challenge to the validity of the 15 petitioner’s nomination paper. I do not find pleadings as insufficient or vague. 20.Not only above but in fact both the parties proceeded with the trial of the election petition knowing it well that what the plaintiff pleaded and what were the grounds for challenge to the election of the petitioner. Defendant was fully aware from the pleadings of the plaintiff about factual foundation laid down by the plaintiff in his election petition and also had full knowledge of specific issue raised by the plaintiff, including the allegation, of his having more children than two, with birth of one child after the cut out date, i.e., 27th Nov., 1995. Both the parties led evidence on this issue and argued the matter before the court below without there being any objection about the lack of the pleading in the election petition filed by the respondent no.1-plaintiff. It is true that learned court below framed the issues in wider language rather than framing the issue in very specific language, but this neither created any confusion nor any doubt in mind of both the contesting parties, therefore, the objection of learned counsel for the appellant about the lack of the pleading is factually wrong and finding recorded by the court below on this issue cannot be set aside on the ground of lack of pleading or on the ground of not framing the issue in 16 proper language. 21. It appears that plaintiff pleaded that the Returning Officer accepted the defendant-appellant’s nomination paper by passing interim order only (as word Philhal is used in the order of Returning Officer accepting defendant’s nomination paper) and without finally deciding the objection, therefore, it is wrong acceptance of defendant’s nomination paper by the Returning Officer. Other ground in election petition, as stated above is disqualification of the defendant under clause (xiv) of Sec. 26 Act of 1959. The trial court framed one issue only and which is that whether defendant’s nomination was wrongly accepted by the Returning Officer? 22.The trial court examined plaintiff’s above both the pleas while deciding issue no.1. Since both the points were relating to the validity of candidature of the defendant, therefore the trial court appears to have framed the issue no.1 in wider form so as cover two grounds in one issue. In these facts, both the grounds could have been decided by the trial court only while deciding issue no.1, which is relating to the wrongful acceptance of defendant’s nomination paper. The trial court if framed an issue in wider form and decided the issue point-wise then 17 the court has acted in better way only while deciding the issue. If there is no issue at all and prejudice has been caused to a party then the aggrieved party can have objection for not framing the issue. If issue is not framed properly and because of this the party was misled to reasonably believe that issue was abandoned by the party alleging it and has not cross examined the party alleging and his witnesses and prevented from giving evidence and did not produce his evidence because of this reason then he may raise grievance. In this case the issue framed by the trial court can not be said to be “not properly framed issue”. 23.The trial court decided the issue about the children of the defendant as an issue of fact for which the defendant was given full opportunity to meet with and the defendant-appellant availed that opportunity. The trial court has not set aside the election of the defendant on the ground that the Returning Officer had not decided the objection of the objector finally. It was more a legal ground only. I perused the said order of the returning officer by which defendant’s nomination paper was accepted, which is also quoted at page no.8 of the judgment of the trial court. The Returning Officer specifically recorded finding that objector could not prove that applicant (appellant) has faced any sentence in case 18 No.CR.62/1999 registered under the NDPS Act. The returning officer, thereafter, by speaking order recorded its satisfaction that objector could not prove that children of the appellant born after 27th Nov., 1995 and, thereafter, passed the order ‘at present nomination is accepted’. It appears that word “Philhal” (at present) in the order of the