Case: Ravindra Nath Vs. Raghbir Singh &amp; Anr

117 with consequential adaptations for the purposes of the proviso to S. 97 (1), it will appear that the treasury receipt showing the deposit of the security must be produced before the Tribunal along with the notice of recrimination.It follows that the recriminator must give the security referred to in Section 117 by producing the treasury receipt showing the deposit of the security at the time of the giving of the notice under the proviso to Section 97 (1).8.If the recriminator fails to give the requisite security under Section 117 at the time of giving the notice of recrimination, he loses the right to lead evidence under Section 97 sad the notice of recrimination stands virtually rejected.It was suggested that as under Section 90 (3) the Tribunal could not dismiss an election petition for non-compliance with the provisions of Section 117, the legislature could not have intended that the notice of recrimination would stand rejected for failure to give the security under Section 117. This argument overlooks the fact that under Section 85 it is the duty of the Election Commission to dismiss the election petition for non-compliance with the provisions of Section 117.9. Likewise reading Section 118 with the proviso to Section 97 (1) it will appear that during the course of the trial of the recrimination the Tribunal may at any time call upon the recriminator to give such further security for costs as it may direct and may, if he fails to do so, reject the notice of recrimination given under the proviso to Section 97 (1). It was suggested that the proviso to Section 97 (1) having enacted that the forfeiture of the right to lead evidence would be the penalty for failure to give the further security under Sec. 118, the legislature could not have intended that the rejection of the notice of recrimination would be an additional penalty for this default. This suggestion is based on fallacious assumptions.The only right conferred on the recriminator satisfying the conditions of the proviso to S. 97 (1) is the right to lead evidence that the election of the other candidate would have been void if he had been the returned candidate. If the recriminator fails to fulfil the conditions of the proviso he loses this right, and the Tribunal is entitled to record an order to this effect. An order recording that the recriminator has no right to give evidence under Section 97 is tantamount to an order rejecting the notice of recrimination. There is thus no substantial difference between the penalty prescribed by the proviso to Section 97 (l) and the penalty prescribed by Section 118 for the default in giving the further security.10. The High Court held that the recriminator loses his right to lead evidence under Section 97 for failure to give security only in cases in which the provisions of Sections 117 and 118 are not complied with before the date fixed for recording evidence. In N. R. Shishak v. R. P. Dikshit, 1965 All LJ 25 at pp. 41-42 = (AIR l965 All 454 at p. 463), a Full Bench of the Allahabad High Court also held that since no period is fixed within which the security is to be given, the security may be given at any time before the recriminator gives evidence. We are unable to agree with this decision on this point or with the judgment under appeal. We have already seen that the time for giving the initial security for the recrimination is fixed on a combined reading of the proviso to Section 97 (1) and Section 117 and the initial security must be given at the time of giving the notice of recrimination.Other considerations also show that the date fixed for recording the evidence cannot be the date within which the security referred to in Sections 117 and 118 is to be given under the proviso to Section 97 (1). The recrimination starts on the giving of the notice under the proviso. Though the taking of the recriminatory evidence may be postponed preliminary directions for discovery inspection and other matters are given long before the evidence is taken. It is, therefore desirable that the initial security referred to in Section 117 should be given along with the notice of recrimination at the very commencement of the recrimination proceeding. Moreover the date fixed for recording the evidence cannot be the time limit for giving further security under Section 118. The Tribunal may demand the further security under Section 118 at any time in course of the trial of the recrimination even after the evidence has been partly taken.11. The High Court thought that the decision in Kumaranand v Brij Mohan, (1965) 1 SCR 116 = (AIR 1965 SC 628 ) lends support to its conclusion that the Tribunal could not refuse to admit the evidence under Section 97 if the security under Section 117 is given before the date fixed for recording the evidence. That decision turned on the construction of Section 119-A and is not relevant on the questions under consideration in this appeal. As Section 119-A did not expressly provide the penalty for failure to furnish the security for costs of an appeal at the time of filing the memorandurn of appeal the failure to furnish the security did not automatically result in dismissal of the appeal, and it was for the High Court to decide having regard to the circumstances of each case whether it should decline to proceed with the hearing of the appeal. But the proviso to Section 97 (1) expressly provides that the recriminator shall not be entitled to give evidence unless inter alia he gives the security referred to in Section 117.12. The tribunal rightly held that the respondent No. l was required to produce with the notice under the proviso to Section 97(l) a Government treasury receipt showing a deposit of Rs. 2.000 as security for costs of the recrimination. The High Court was in error in quashing this order.13.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]notice of recrimination is thus in substance a counter petition calling in question the claim that the other candidate has been duly elected. In this background, it is not surprising that the legislature provided that notice of recrimination must be accompanied by the statement and particulars required by Sec. 83 in the case of an election petition and signed and verified in like manner and the recriminator must give the security and the further security for costs required under Sections 117 and 118 in the case of an electionthe taking of the recriminatory evidence may be postponed preliminary directions for discovery inspection and other matters are given long before the evidence is taken. It is, therefore desirable that the initial security referred to in Section 117 should be given along with the notice of recrimination at the very commencement of the recrimination proceeding. Moreover the date fixed for recording the evidence cannot be the time limit for giving further security under Section 118. The Tribunal may demand the further security under Section 118 at any time in course of the trial of the recrimination even after the evidence has been partly taken.The High Court thought that the decision in Kumaranand v Brij Mohan, (1965) 1 SCR 116   = (AIR 1965 SC 628  ) lends support to its conclusion that the Tribunal could not refuse to admit the evidence under Section 97 if the security under Section 117 is given before the date fixed for recording the evidence. That decision turned on the construction of Section 119-A and is not relevant on the questions under consideration in this appeal. As Section 119-A did not expressly provide the penalty for failure to furnish the security for costs of an appeal at the time of filing the memorandurn of appeal the failure to furnish the security did not automatically result in dismissal of the appeal, and it was for the High Court to decide having regard to the circumstances of each case whether it should decline to proceed with the hearing of the appeal. But the proviso to Section 97 (1) expressly provides that the recriminator shall not be entitled to give evidence unless inter alia he gives the security referred to in Section 117.The tribunal rightly held that the respondent No. l was required to produce with the notice under the proviso to Section 97(l) a Government treasury receipt showing a deposit of Rs. 2.000 as security for costs of the recrimination. The High Court was in error in quashing this order.