# 8 S.C.R. 525 / MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH

- **Citation:** [2010] 8 S.C.R. 525
- **Court:** Supreme Court of India
- **Decided:** 2010-07-22
- **Case number:** Civil Appeal No. 5851 of 2010
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-s-c-r-525-md-alauddin-khan-v-karam-thamarjit-singh-27058
- **Pages:** 50

## Headnote

[201 O] 8 S.C.R. 525
/
MD. ALAUDDIN KHAN
v.
KARAM THAMARJIT SINGH
(Civil Appeal No. 5851 of 2010)
JULY 22, 2010
[V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA,
JJ.]
A
B
Representation of the People Act, 1951: ss. 97,
100(1 )(d)(iii) -
Election petition -
Allegation that some C
impersonators voted in the name of dead persons in named
polling station - Prayer to order recount of votes cast in the
named polling station and to declare election of returned
candidate as void -
By way of defence, the returned
candidate in the written statement stated that even the
D
petitioner had not secured the votes shown to have been cast
in his favour as even in his case there were void votes and
prayed for recount of votes of all the candidates - High Court
ordered to delete the paragraphs in written statement on the
ground that they were in the nature of counter claim and held
E
that only the votes cast in the named polling stations would
be liable to be counted and not those which were named in
the paragraphs ordered to be deleted from the written
statement - HELD: Per Dr. Mukundakam Sharma, J: In view
I
of specific provision of s.97, the returned candidate cannot
F
resort to file counter claim or recrimination petition under
Order VIII rule 6A -
Only votes cast in the named polling
station liable to be counted and not those named in paras
ordered to be deleted from written statement - Per V.S.
Sirpurkar, J: Pleas raised by returned candidate were not in
G
the nature of recrimination - By virtue of Order VIII, Rule 6
CPC, the returned candidate, could still raise his defence by
way of a counter claim - The language of s. 9 7 of the Act which
is in the nature of positive language, does not bar raising of
525
H
526
SUPREME COURT REPORTS
[201 O] 8 S.C.R.
A any such defence - Recount should be of the votes of all the
candidates.
In view of difference of opinion. the matter is referred to
larger bench - Code of Civil procedure, 1908 - Order VIII r. 6A
8 - Elections laws - Reference to larger bench.
In the legislative assembly elections, appellant
defeated the respondent-election petitioner by margin of
two votes. Respondent challenged the election of
appellant under Section 100(1)(d)(iii) and (iv) of the
C Representation of the People Act, 1951 on the ground
that number of impersonators voted in the name of dead
persons in named polling stations and prayed that the
election of the appellant be declared void. The appellant ·
filed a written statement in which apart from contesting
0 the allegations made in the election petition, the appellantreturned candidate made several statements in the nature
of counter claim/recrimination in paras 22-31. It was
contended therein that the votes were cast in the name
of dead persons in all the polling stations and prayed for
E direction to recount of votes of all the candidates. The
respondent thereafter filed an application under Order VI
Rule 16 CPC praying for striking off these paras allegedly
made by way of counter claim/recrimination. The said
application was allowed by Election Judge. Aggrieved
F appellant filed the appeal.
Referring the matter to larger bench, the Court
Held:
G
Per: DR. MUKUNDAKAM SHARMA, J:
1.1. In the present case since there was no prayer in
the election petition to declare the election petitioner or
any other candidate as elected candidate, therefore, the
provisions of Section 97 of the Representation of the
H People Act, 1951 would not be applicable or attracted. In
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 527
fact, statements which are intended and could be made
in the light of Section 97 of the Act are counter-claims.
· When the specific provision which provides for raising a
counter-claim is excluded and is not attracted, it cannot
be said that such counter-claim could be raised in terms
of the provisions of Order VIII Rule GA, CPC. The
Representation of People Act, 1951 is a self contained
code. Under the Act, a specific provision is incorporated
in the form of Section 97 providin

## Text

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[201 O] 8 S.C.R. 525
/
MD. ALAUDDIN KHAN
v.
KARAM THAMARJIT SINGH
(Civil Appeal No. 5851 of 2010)
JULY 22, 2010
[V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA,
JJ.]
A
B
Representation of the People Act, 1951: ss. 97,
100(1 )(d)(iii) -
Election petition -
Allegation that some C
impersonators voted in the name of dead persons in named
polling station - Prayer to order recount of votes cast in the
named polling station and to declare election of returned
candidate as void -
By way of defence, the returned
candidate in the written statement stated that even the
D
petitioner had not secured the votes shown to have been cast
in his favour as even in his case there were void votes and
prayed for recount of votes of all the candidates - High Court
ordered to delete the paragraphs in written statement on the
ground that they were in the nature of counter claim and held
E
that only the votes cast in the named polling stations would
be liable to be counted and not those which were named in
the paragraphs ordered to be deleted from the written
statement - HELD: Per Dr. Mukundakam Sharma, J: In view
I
of specific provision of s.97, the returned candidate cannot
F
resort to file counter claim or recrimination petition under
Order VIII rule 6A -
Only votes cast in the named polling
station liable to be counted and not those named in paras
ordered to be deleted from written statement - Per V.S.
Sirpurkar, J: Pleas raised by returned candidate were not in
G
the nature of recrimination - By virtue of Order VIII, Rule 6
CPC, the returned candidate, could still raise his defence by
way of a counter claim - The language of s. 9 7 of the Act which
is in the nature of positive language, does not bar raising of
525
H
526
SUPREME COURT REPORTS
[201 O] 8 S.C.R.
A any such defence - Recount should be of the votes of all the
candidates.
In view of difference of opinion. the matter is referred to
larger bench - Code of Civil procedure, 1908 - Order VIII r. 6A
8 - Elections laws - Reference to larger bench.
In the legislative assembly elections, appellant
defeated the respondent-election petitioner by margin of
two votes. Respondent challenged the election of
appellant under Section 100(1)(d)(iii) and (iv) of the
C Representation of the People Act, 1951 on the ground
that number of impersonators voted in the name of dead
persons in named polling stations and prayed that the
election of the appellant be declared void. The appellant ·
filed a written statement in which apart from contesting
0 the allegations made in the election petition, the appellantreturned candidate made several statements in the nature
of counter claim/recrimination in paras 22-31. It was
contended therein that the votes were cast in the name
of dead persons in all the polling stations and prayed for
E direction to recount of votes of all the candidates. The
respondent thereafter filed an application under Order VI
Rule 16 CPC praying for striking off these paras allegedly
made by way of counter claim/recrimination. The said
application was allowed by Election Judge. Aggrieved
F appellant filed the appeal.
Referring the matter to larger bench, the Court
Held:
G
Per: DR. MUKUNDAKAM SHARMA, J:
1.1. In the present case since there was no prayer in
the election petition to declare the election petitioner or
any other candidate as elected candidate, therefore, the
provisions of Section 97 of the Representation of the
H People Act, 1951 would not be applicable or attracted. In
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 527
fact, statements which are intended and could be made
in the light of Section 97 of the Act are counter-claims.
· When the specific provision which provides for raising a
counter-claim is excluded and is not attracted, it cannot
be said that such counter-claim could be raised in terms
of the provisions of Order VIII Rule GA, CPC. The
Representation of People Act, 1951 is a self contained
code. Under the Act, a specific provision is incorporated
in the form of Section 97 providing for considering
recrimination petition/counter-claim under certain
circumstances, and therefore, the same being a provision
under a special Act, would prevail over the provisions of
Order VIII Rule GA, CPC which is a general law. The said
legal principle is based on the latin maxim generalia
specia/ibus non derogant which means general words do
not derogate from special. In view of this mandate,
permitting the returned candidate to file a counter claim
in terms of Order VIII Rule GA, CPC when the same
cannot be done under Section 97 of the Act would
tantamount to completely obliterating the effect of Section
97 of the Act. If Section 97 of the Act expressly allows a
recrimination petition when an election petition is filed
seeking a declaration that the election petitioner or any
other candidate is the returned candidate, then there is
an implied bar on filing a recrimination petition in the
absence of such a declaration. As the principle of
statutory construction, Expressio Unius Est Exc/usio
Alterius states, the express inclusion of one thing is the
exclusion of all others. In this case, the specific inclusion
of a condition for filing a recriminatory petition under
Section 97 of the Act, namely that a declaration that the
election petitioner or any other candidate is the returned
candidate should be filed, excludes its filing in all other
cases. Section 97 of the Act bars filing of a counter-claim
by way of a recrimination petition when an election
petition is filed without seeking for a declaration that the
election petitioner or any other candidate is the returned
0
A
B
c
D
E
F
G
H
528
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A candidate. In such a case, the application of Order VIII
Rule 6A, CPC would not be permissible, as permitting the
same would amount to allowing indirectly, what is
prohibited by law to be done directly. It is settled law that
whatever is prohibited by law to be done directly cannot
B be allowed to be done indirectly. [Paras 18, 19] [543-F-G;
544-F-H; 545-A-D]
Jyoti Basu v. Debi Ghosal Al R 1982 SC 983, held
applicable.
C
1.2. Section 87 of the Act opens with the expression
"subject to the provisions of this Act and any other rules
made thereunder". This definitely means that Section 87
is subject to the provisions of Section 97 of the Act.
Section 87 also specifically provides that the procedure
D under the Code would be applicable "as nearly as may
be" meaning thereby that only those provisions for which
there is no corresponding provision in the Act could be
made applicable. Therefore, the provisions of the Code
are not wholly applicable to the trial of the election
E petitions. Accordingly, if there is no scope for filing a
recrimination petition under Section 97 of the Act, this
limitation cannot be sought to be removed or overcome
by taking resort to another provision of the Code which
will be explicitly and impliedly inconsistent with the
F provisions of Section 97 of the Act. A similar view was
taken by the Constitution Bench of this Court in the case
of *Jabar Singh. In view of the fact that there was a
pronouncement of the Constitution Bench of this Court
in *Jabar Singh and also the decision of this Court in
**T.A. Ahammed Kabeer which on an interpretation of
G Section 97 of the Act, had carved out a settled position
of law, a different view cannot be taken. So long the
Legislature does not change the law to obliterate the
discrepancy, if any, the Court cannot do so on its own. It
would not be appropriate for the Court to go beyond the
H
MD: ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 529
legislative intent as derived from the existing provisions
A
and lay down its views on a particular matter although
such a view could be a possible view. The judiciary does
not have any power to legislate and that is to be strictly
adhered to. [Paras 20, 22] [545-G-H; 546-A-D]
*Jabar Singh v. Genda Lal (1964) 6 SCR 54; **T.A.
Ahammed Kabeer v. A.A. Azees and Others (2003) 5 SCC
650, relied on.
8
Dr. Rajendra Kumari Bajpai v. Ram Adhar Yadav and
Others (1975) 2 SCC 447; N. Gopa/ Reddy v. Bona/a
C
Krishnamurthy and Others (1987) 2 SCC 58, distinguished.
Bachan Singh v. State of Punjab (1982) 3 SCC 24,
referred to.
2. The concept of counter-claim was 'for the first time
inserted in the Code of Civil Procedure in the year 1976.
Though it is true that there was no specific provision for
raising a counter-claim by the defendant in the written
statement prior to the amendment of the Code in 1976
but claims by way of counter claims were in fact raised
and considered by all the Courts including the Supreme
Court of India which would be apparent from a bare
reference of the decision in the case of Jabar Singh.
Section 97 of the Act bestows a right upon the returned
candidate to raise a defence when an additional claim
under Section 84 of the Act is made by the election
petitioner. Recrimination, as envisaged under Section 97
D
E
F
of the Act, is nothing else but a counter-claim and this
concept was incorporated in the Act, which is a special
Act, even prior to 1976 when the provision of counter
G
claim now contained in Order VIII Rule GA was inserted
in the Code. Therefore, the said change brought in the
Code, which is a general common law, would not have
any consequential effect so far as the present case is
concerned. Thus, the concept of counter-claim was not
H
530
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A foreign or totally absent prior to 1976. In view of the said
position and also in view of the fact that there is a specific
provision in the Act to raise counter-claim with certain
pre-conditions and on certain specific conditions the
provisions of Order VIII Rule GA, CPC cannot be invoked
B in view of the bar and prohibition enforced by Section 97
of the Act. [Paras 24-25] [550-E-H; 551-A-B]
'
Virendra Kumar Sak/echa v. Jagjiwan & Others (1972) 1
sec 826, referred to.
C
Per: V.S. SIRPURKAR, J.
1. The plea raised in the paragraphs 22 to 31 of the
written statement of elected candidate was not in the
nature of recrimination, but, thereby the elected candidate
0 was setting up a valid defence and was suggesting that
it was a case of the election petitioner that in particular
number of polling stations, some impersonators had
voted in the name of dead persons. Such things had
happened in other constituencies also and, therefore, the
E votes cast in the name of dead persons in all the polling
stations, more particularly, the named polling stations
should also be deleted or held to be void votes. This
could not be viewed as a recriminatory plea which was
barred under Section 97 of the Act. The counter claim
F by the elected candidate was only to raise a valid defence
to save his own election and it was in the nature of
raising or introducing pleadings permitting him to show
that it is not only in respect of the particular polling
stations named in the election petitions that some votes
cast in the name of dead persons were required to be
G declared as void, but such votes, cast in other polling
stations also were required to be declared void in order
to know as to who had, in fact, polled the majority of
votes. There was nothing wrong in raising this plea,
more particularly, because rule of democracy, which
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 531
depends upon the valid elections, can be called to be the
A
'basic structure of the Constitution of India'. [Paras 10,
11, 12] [554-G-H; 555-A-F]
Jabar Singh v. Genda Lal AIR 1964 SC 1200; lnayatullah
Khan v. Diwanchand Mahajan AIR 1959 M.P. 58; Bhim Sen
8
v. Gopali 22 Election Law Reports 288 SC; N. Gopa/ Reddy
v. Bona/a Krishnamurthy & Ors. 1987 (2) SCC 58;
P. Malaichami v. Andi Ambalam 1973 (2) SCC 170; Arun
Kumar Bose v. Mohd. Furkan Ansari 1984 (1) SCC 91;
Janardan Dattuappa Bondre v. Govind Shiv Prasad
Chaudhary 1979 (4) SCC 516; Bhag Mal v. Ch.Prabhu Ram
C
1985 (1) sec 61, referred to.
2. The import of words "the reception of any vote
which is void" in section 100(1)(d)(iii) would cover each
and every void vote received by each and every
D
candidate because void vote cannot be counted:
whether it is cast in favour of an elected candidate or any
other candidate contesting the elections. Once the real
import of clause "the reception of any vote which is void"
is realized, it becomes clear that, in recount of the votes
E
which are void votes, those would have to be excluded
and for that purpose, the returned candidate can raise a
plea by way of defence that. the void votes were cast
either in favour of elected candidate or any other
defeated candidate. He can at least raise a plea that such
F
void votes were actually cast and he would certainly be
justified in raising a plea that the void votes were cast
not only in the polling Stations named in the election
petition, but in some other polling Stations also.
Therefore, if recount was to be ordered, the recount G
cannot be restricted only to the named polling Stations
in the election petition, but it would have to be a general
recount where the void votes would have to be avoided.
Therefore, there would have to be an opportunity to the
elected candidate to prove that there were void votes in
H
532
SUPREME COURT REPORTS
[201 O] 8 S.C.R.
A other polling Stations also and for that purpose, there
should be recount of all the votes of all the Polling
Stations. It is only thereafter that the true position as
'
regards majority of votes could be obtained. The plea
raised in the paragraphs 22-31 is not a recriminatory plea
B within the meaning of Section 97 of the Representation
of the People Act, 1950. What is raised is a mere plain
defence that, even if there was going to be a recount, then
it should be a recount of all the votes and not of the votes
cast only in his favour and for that purpose, he would be
C allowed to prove that it is not only in the particular polling
stations that the votes were cast in the name of dead
persons, but they were also cast in other polling stations.
[Paras 24, 26] [570-A-F; 571-B-D]
3. At the time when Jabar Singh's case was decided,
D the amended provisions of Order VIII, Rule GA CPC
providing for counter claim was not available on the
Statute. That provision came only by way of amendment
later on. Though, the concept of counter claim was not
unknown, even in the absence of a specific provision
E therefor, introduction of a specific provision for raising
the counter claim would be a relevant factor for
considering as to whether a candidate, in the absence of
any recrimination, could insist upon counting of the votes
cast in favour of the other losing candidates. Raising of
F a counter claim by way of a valid defence would still be
permissible considering the broad language of that
provision. In ordering counting of the votes of the elected
candidate alone, the whole election process would stand
prejudiced, inasmuch as, then, even if some invalid votes
G are cast in favour of the other candidates or void votes
are cast in the election, those votes would not be counted
and in that case, there could be no correct reflection in
respect of the votes secured by each candidate. This is
apart from the fact that a very unfair advantage can be
H secured by an election petitioner in favour of the losing
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 533
candidate by deliberately not claiming any declaration
A
either in favour of the election petitioner or in favour of
any other losing candidate so that the elected candidate
would be rendered completely helpless in showing that
he alone is a candidate having secured majority of votes.
Securing a majority of votes is the very essence of the
B
democratic elections and the democracy being a part of
the basic structure of our Constitution, the question
involved herein gains all the more importance. The theory
of basic structure of the Constitution also was not
available when Jabar Singh's case was decided. The_ c
interpretation put forth in Jabar Singh's case, in a majority
decision would, therefore, require reconsideration, more
particularly, in view of the minority decision therein which
was more in accord with the principles of securing
majority votes in a democratic elections. [Paras 27, 28)
0
[571-D-G; 573-A; 572-D-H]
Case Law Reference:
Judgment of Dr. Mukundakam Sharma, J:
AIR (1964) SC 1200
referred to
Paras 13, 18, 20,
E
22, 23, 24
(2003) 5 sec 650
referred to
Para 13, 21, 22
(1972) 1 sec 826
referred to
Para 13
F
(1975) 2 sec 447
referred to
Para 13, 21
AIR 1982 SC 983
held applicable Para 17, 18
(1979) 1 sec 560
referred to
Para 19
(2003) 5 sec 650
relied on
Para 21
G
(1975) 2 sec 447
distinguished
Para 21 ·
(1987) 2 sec 58
distinguished
Para 21, 23
(1982) 3 sec 24
referred to
Para 22 ·
H
A
B
c
D
E
534
SUPREME COURT REPORTS
[2010] 8 S.C.R.
(1979) 1 sec 560
referred to
Para 22
Judgment of V.S. Sirpurkar, J.
AIR 1964 SC 1200
referred to
Paras 15, 16, 22,
24, 27, 28
AIR 1959 M.P. 58
referred to
Para 16
22 ELR 288 SC
referred to
Para 16
1987 (2) sec 58
referred to
Para 22
1973 (2) sec 110
referred to
Para 22
1984 (1) sec 91
referred to
Para 22
1919 (4) sec 516
referred to
Para 22
1985 (1) sec 61
referred to
Para 22
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5851 of 2010.
From the Judgment & Order dated 11.2.2008 of the Court
of Gauhati, Imphal Bench in M.C. (Election Petition) No.1 of
2008 in Election Petition No.2 of 2007.
Hijam N.K. Singh, Lenin Singh Hijam, Ashok Kumar
Sharma, Shivaji M. Jadhav, Rahul Joshi for the Appellant.
F
P.S. Narasimhan, L. Roshmani, K. Parameshwar, Ritesh
G
H
Choudhary (for Aribam Guneshwar Sharma) for the
Respondent.
The Judgment of the Court was delivered by.
DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.
2. The present appeal is directed against the order dated
11.02.2008 passed by the Designated Election Judge of the
Gauhati High Court in M. C. (Election Petition) No. 1 of 2008
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 535
[DR. MUKUNDAKAM SHARMA, J.)
in Election Petition No. 2 of 2007, whereby the learned Election
A
Judge allowed the miscellaneous application filed by the
election petitioner, respondent herein, with an order that the
statements, in the nature of recrimination and counter claim,
made in the written statement of the returned candidate,
appellant herein,. more particularly, in paragraph nos. 22-31
B
would stand struck off from the defence of the appellant.
3. Being aggrieved by the aforesaid order, the appellant
filed the present Special Leave Petition on which notice was
initially issued and on service the respondent entered
C
- appearance. The learned senior counsel appearing for the
parties have been heard at length.
4. The appellant and the respondent and few other
candidates had contested the election of the 9th Manipur
Legislative Assembly from 6-Keirao Assembly Constituency.
D
The said election was held on 14.02.2007 and 16.02.2007
(re-poll in polling station No. 615) and the election result was
declared on 27.02.2007, wherein the appellant emerged as the
winner after defeating the respondent-election petitioner by a
margin of only two votes. The aforesaid election of the appellantE
returned candidate was challenged by the respondent by filing
an election petition basically under Section 100(1 )(d) (iii) and
(iv) of the Representation of the People Act, 1951 [for short ·~the
Act"], with a prayer that the election of the appellant be declared
void.
5. In order to appreciate the contention of the counsel
appearing for the parties, the relevant portion of the prayer
made in the election petition viz., paras iii to v, is extracted
hereinbelow: -
(iii)
to order a re-count of the votes after excluding the
void votes if required;
F
G
H
A
B
c
536
SUPREME COURT REPORTS
[2010j 8 S.C.R.
(iv)
to declare the election of the Respondent No. 1 as
void;
(v)
to pass other and further orders as may be
deemed fit by the Hon'ble Court in the facts and
circumstances of the case."
So far as the reliefs prayed in paragraphs i) & ii) are
concerned, they relate to seeking for a direction and for calling
certain records. As the same are not directly connected with
the contentions raised herein, they have not been extracted.
6. Immediately after appearance in the election petition,
the appellant filed a miscellaneous application before the
Gauhati High Court which was registered as MC (EP) No. 6 of
2007 whereby the appellant challenged the maintainability of
0 the election petition on technical grounds. The said
miscellaneous application was however dismissed on
31.10.2007. After taking a few adjournments, the appellant filed
the written statement on 04.01.2008, in which, apart from
contesting the allegations made in the election petition, the
E appellant-returned candidate made several statements in the
nature of counter claim/recrimination in paragraph nos. 22-31.
7. The respondent thereafter filed an application under
Order VI Rule 16 of the Code of Civil Procedure [for short 'the
Code') praying for striking off the aforesaid paragraphs
F allegedly made by way of counter claim/recrimination. The said
application came up for consideration before the learned
Election Judge, who after an elaborate discussion on the merits
of the said application allowed the same by holding that the
statements in the nature of recrimination and counter claim
G made in the written statement by the appellant, more
particularly, in paragraphs nos. 22-31 would stand struck off
from the defence pleaded. Being aggrieved by the aforesaid
order this appeal was filed.
H
8. The main contention of the counsel appearing for the
MO, ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 537
[DR. MUKUNDAKAM SHARMA, J.]
appellant is that under Order VIII Rule 6A of the Code the
A
appellant has a right and a prerogative to raise certain
defences by way of counter claim and the said right can be
exercised even in a case where there is no additional claim in
terms of Se"Ction 84 of the Act; and despite the fact that a
recrimination petition as such·may not be maintainable in terms
B
of Section 97 of the Act. It was further submitted that since in
the present case the election petitioner has intentionally avoided
to make additional claim as provided under Section 84 of the
Act, the appellant-returned candidate had no other option
except to fall back upon Order VIII, Rule 6-A of the Code.
c
9. The short question that falls for consideration in the
present appeal is: when there is no provision and right vested
in the returned candidate to file a recrimination petition due to
absence ofa prayer by the election petitioner in the election
petition-seeking.for his declaration (or any other candidate) as
D
a returned candidate, can the returned candidate in his written
statement take up pleas which are in fact counter claims with
the aid of Order VIII; Rule.6A of the Code?
10. In order to answer the aforesaid issues, it would be
E
necessary to peruse· some of the relevant provisions of the Act
and some of the decisions of this Court referred to and relied
upon by the counsel appearing for the parties and also the
contents of the paragraph nos. 22-31 of the written statement
filed by the appellant. However, before proceeding with the
F
same, it would be· appropriate to refer to an order passed by
the Election Judge on 29.08.2007, on the application filed by
the appellant under Section 101 of the Act read with Section
151 of the Code; seeking a direction to the election petitioner
to·ctarify the exact'relief sought for in the prayer nos. (iv) to (v)
G
(already extracted hereinabove). The said application came
up for hearing:and after conclusion of the hearing, an order was
passed'on·29:08~2007 to the following effect: -
"Under Section 82 of the Representation of People Act,
1951, all the candidates to the election are required to be
H
A
B
c
D
E
F
G
H
538
SUPREME COURT REPORTS
(2010] 8 S.C.R.
impleaded as a party in the Election Petition if the
petitioner makes any prayer to declare himself or any other
candidate as duly elected representative. In the present
case, the election petitioner has not impleaded the
remaining candidates. Hence, it is implied that the
petitioner has not made any prayer to declare himself or
any other candidate as elected representative, which
declaration can be given u/s 101 of the Representation of
People Act, 1951.
In my considered opinion, under clause (v) of the prayer,
this Court can only grant the relief to the petitioner or pass
appropriate orders, which are ancillary to the Election
Petition and no specific declaration can be granted that
either the election petitioner or any other candidate shall
be construed as elected candidate."
It is, therefore, established from the aforesaid order
passed by the Election Judge by way of a clarification that
in the election petition what survives for consideration is
the prayer as to whether or not to declare the election of
the appellant-returned candidate as void. Therefore, there
is no dispute with regard to the fact that in the said election
petition no additional prayer was made by the election
petitioner seeking for a declaration that he or any other
candidate be declared as the elected candidate.
11. The relevant statutory provisions, which may now be
referred to, read as follows:
"Section 84: Relief that may be claimed by the petitioner:-
A petitioner may, in addition to claiming a declaration
that the election of all or any of the returned candidates
is void. claim a further declaration that he himself or any
other candidate has been duly elected.
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 539
[DR. MUKUNDAKAM SHARMA, J.)
Section 87: PcoEedure before the High Court -
A
(1)
Subject to the provisions of this Act and of any rules
made thereunder every election petition shall be
tried by the High Court as nearly as may be, in
accordance with the procedure applicable under
8
the code of Civil Procedure, 1908 for the trial of
suits.
(2)
Provided that the High Court shall have the
discretion to refuse, for reasons to be recorded in
writing to examine any witness or witnesses if it is
C
of the opinion that the evidence of such witness or
witnesses is not material for the decision of the
petition or that the party tendering such witness or
witnesses is doing so on frivolous grounds or with
a view to delay the proceedings.
D
The provisions of the Indian Evidence Act, 1872,
shall, subject to the provisions of this Act, be
deemed to apply in all respects to the trial of an
election petition.
E
Section 97: Recrimination when seat claimed -
(1)
When in an election petition a declaration that any
candidate other than the returned candidate has
been duly elected_i~ claimed, the returned
F
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:
G
Provided that the returned candidate or such other
party as aforesaid shall not be entitled to give such
evidence unless he has within fourteen days from
the date of commencement of the trial given notice
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540
A
B
c
D
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[2010) 8 S.C.R.
to the High Court 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 by 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.
Section 100 - Grounds for declaring election to be voidS.100 (1) (d) (iii): -
By the improper reception, refusal or rejection of
any vote or the reception of any vote which is void;
or
12. The provisions of Order VIII Rule 6A of the Code, which
was repeatedly referred to during the course of the arguments,
E may also be extracted here: -
F
G
H
"Order VIII - Written Statement, Set-off and CounterClaim
Rules 6A - Counter-claim by defendant -
(1)
A defendant in a suit may, in addition to his right of
pleading a set-off under rule 6, set up, by way of
counter-claim against the claim of the plaintiff, any
right or claim in respect of a cause of action
according to the defendant against the plaintiff
either before or after the filing of the suit but before
the defendant against the plaintiff either before or
after the filing of the suit but before the defendant
has delivered his defence or before the time limited
for delivering his defence has expired, whether such
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 541
[DR MUKUNDAKAM SHARMA, J.]
counter-claim is in the nature of a claim for damages
A
or not;
Provided that such counter-claim shall not exceed
·the pecuniary limits of the jurisdiction of the Court.
(2)
Such counter-claim shall have the same effect as
B
a cross-suit so as to enable the Court to pronounce
a final judgment, in the same suit, both on the
original claim and on the counter-claim.
(3)
The plaintiff shall be at liberty to file a written
C
.statement in answer to the counter-claim of the
defendant within such period as may be fixed by the
.Court.
(4)
'The counter-claim shall be treated as a plaint and
0
governed by the rules applicable to plaints."
13. Reference was also made to the decisions of this
Court in Jabar Singh v. Genda Lal [AIR 1964 SC 1200]; TA.
Ahammed Kabeer v. A.A. Azees and Others [(2003) 5 SCC
650]; Virendra Kumar Saklecha v. Jagjiwan & Others [(1972)
E
1 SCC 826]; Dr. Rajendra Kuman· Bajpai v. Ram Adhar
Yadav and Others [(1975) 2 SCC 447]. Reference was also
made to Order VI Rule 16 of the Code and relying on the same
eounsel appearing for the appellant submitted that interference
by the Hjgh Court at the behest and request of. the respondent
F
was unjustified and uncalled for as none of the conditions laid
down in Rule 16 was attracted in the present case. This
argument may be dealt with·at the outset.
14. Order VI Rule 16 of the Code has been incorporated
therein with the idea of empowering the Courts to strike out or
G
amend:any matter in any pleading, including the statement in
the written statement, at any stage of the proceedings when the
same is found to be unnecessary, scandalous, frivolous and
vexatious; or which may tend to prejudice, embarrass or delay
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[2010] 8 S.C.R.
A the fair trial of the suit; or which is otherwise an abuse of the
process of the Court.
15. Order VIII Rule 6A empowers the defendant in a suit
to raise by way of counter-claim against the claim of the plaintiff,
8
any right or claim in respect of a cause of action accruing to
the defendant against the plaintiff and that such a counter-claim
would have the same effect as a cross-suit so as to enable the
Court to pronounce the final judgment in the same suit, both on
the original claim and on the counter-claim. It is also provided
C therein in sub-rule (4) of Rule 6A that the counter-claim shall
be treated as a plaint and governed by the rules applicable to
plaints. So far as in the present case the statements made by
the appellant-returned candidate in the written statement,
particularly in paragraph nos. 22-31 are concerned, it would
indicate that those statements are by way of counter-claim
D against the claim of the election petitioner and relate to the right
or claim in respect of the same cause of action.
16. Section 97 of the Act which deals with an election
petition provides that when an election petition is filed claiming
E a declaration that any candidate other than the returned
candidate has been duly elected, in that event, the returned
candidate or any other party would be entitled to give evidence
to prove that the election of such candidate would have been
void had he been the returned candidate. Therefore,
F
paragraphs nos. 22-31 of the written statement relate to matters
in respect of which evidence should have to be laid to prove
that if those allegations are established then the election of such
candidate would be void.
17. An election petition is required to be considered and
G decided in accordance with the procedure laid down in the
Representation of People Act, 1951 which constitutes a
complete and self-contained code. This view was endorsed
by this Court in the case of Jyoti Basu v. Debi Ghosal [AIR
1982 SC 983 : (1982) 1 SCC 691] in the following words:-
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 543
[DR. MUKUNDAKAM SHARMA, J.)
"8 ............... An election petition is not an action at
A
common law, nor in equity. It is a statutory proceeding to
which neither the common law nor the principles of eq-uity
apply but only those rules which the statute makes and
applies. It is a special jurisdiction, and a special jurisdiction
B
has always to be exercised m
accordance with the statute
creating it. Concepts familiar to common law and equity
must remain strangers to election law unless statutorily
embodied. A court has no right to resort to them on
considerations of alleged policy because policy in such
matters as those, relating to the trial of election disputes, c
is what the statute lays down. In the trial of election
disputes, court is put in a strait-jacket. Thus the entire
election process commencing from the issuance of the
notification calling upon a constituency to elect a member
or members right up to the final resolution of the dispute,
D
if any, concerning the election is regulated by the·
Representation of the People Act, 1951, different stages
· of the process being dealt with by different provisions of
the Act ..................... So the Representation of the
People Act has been held to be a complete and selfcontained code within which must be found any rights
claimed in relation to an election or an election
dispute ............... "
18. Now since there is a specific provision in the J\ct as
E
to how a recrimination petition is to be dealt with, the same is
F
required to be decided in the manner as provided therein. In
the present case since there was no prayer in the election
petition to declare the election petitioner or any other candidate
as elected candidate, necessarily therefore, the provisions of
Section 97 of the Act could not be said to be applicable or
G
attracted. In fact, statements which are intended and could be
made in light of Section 97 of the Act are counter-claims, which
are so stated in the Five-Judge Bench decision of this Court
in Jabar Singh (supra). When the specific provision which
provides for raising a counter-claim is excluded and not
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[2010] 8 S.C.R.
A attracted in terms of the provisions of Section 97 of the Act, it
cannot be said that such counter-claim could be raised in terms
of the provisions of Order VIII Rule 6A. The decision in the
case of Jyoti Basu (supra) is clearly applicable as the provision
of common law is held to be not applicable when specific
B special law would apply. The legality and validity of the
provisions contained either in Section 97 or in Section 87 of
the Act has not been challenged. Therefore, in line with the
provisions in Section 97 of the Act, the counter-claims could
not be allowed to be raised by following the procedure under
c Order VIII Rule 6A. The learned Senior counsel for the appellant
also did not contend that the provision of filing recrimination
petition under Section 97 is in the nature of filing a counter-claim
under the provision in the Code. The same could not have also
been done in view of the ratio of the decision in Jabar Singh
0 (supra).
19. The Representation of People Act, 1951 is a self
contained code and the enacted provisions therein have
substituted the general provisions under the common law.
Under the Act, a specific provision has been incorporated in
E the form of Section 97 providing for considering recrimination
petition/counter-claim under certain circumstances, and
therefore, the same being a provision under a special Act,
would prevail over the provisions of Order VIII Rule 6A of the
Code which is a general law. The said legal principle is based
F on the latin maxim generalia specialibus non derogant which
means general words do not derogate from special. It is also
to be kept in mind that when the legislation inserted the
provision of Order VIII Rule 6A into the Code, it never intended
to bring a corresponding change in Section 97 of the Act,
G despite being fully conscious of the change. In view of this
mandate, permitting the returned candidate to file a counter
claim in terms of Order VIII Rule 6A, when the same cannot
be done under Section 97 of the Act would tantamount to
completely obliterating the effect of Section 97 of the Act. If
H Section 97 of the Act expressly allows a recrimination petition
MD. ALAUDD.IN KHAN v. KARAM THAMARJIT SINGH 545
[DR. MUKUNDAKAM SHARMA, J.]
when an election petition is filed seeking a declaration that the
A
election petitioner or any other candidate is the returned
candidate, then there is an implied bar on filing a recrimination
petition in the absence of such a declaration. As the principle
of statutory construction, Expressio Unius Est Exclusio Alterius
states, the express inclusion of one thing is the exclusion of all
others. In this case, the specific inclusion of a condition for filing
a recriminatory petition under Section 97 of the Act, namely that
a declaration that the election petitioner or any other candidate
is the returned candidate should be filed, excludes its filing In
B
all other cases. Simply put, Section 97 of the Act bars filing of c
a counter-claim by way of a recrimination petition when an
election petition is filed without seeking for a declaration that
the el.ection petitioner or any other candidate is the returned
candidat~. In such a case, the application of Order VIII Rule 6A
would not be permissible, as permitting the same would amount 0
to allowing indirectly, what is prohibited by law to be done
directly. It is settled law that whatever is prohibited by law to
be done directly cannot be allowed to be done indirectly. The
decision of the Court in Jagir Singh v. Ranbir Singh & Anr.
[(1979) 1 sec 560], maybe referred to, where it was held thus:
"5 ........................... We do not think that it is permissible
to do so. What may not be done directly cannotbe allowed
to be done indirectly; that would be an evasion of the
statute. It is a "well-known principle of law that the.provisions
E
of an Act of Parliament shall not be. evaded by shift or
F
contrivance" (per Abbot, C.J. in Fox v. Bishop of Chester).
"To carry out effectually the object of a Statute. it must be
construed as to defeat all attempts to do, or avoid doing,
in an indirect or circuitous manner that which it has
prohibited or enjoined."(Maxwe//, 11th Edn., p.109)
G
"
20. Section 87 of the Representation of People Act, 1951
opens with the expression "subject to the provisions of this Act
and any other rules made thereunder''. This definitely means
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[2010] 8 S.C.R.
A that Section 87 is subject to the provisions of Section 97 of the
Act. Section 87 also specifically provides that the procedure
under the Code would be applicable "as nearly as may be"
meaning thereby that only those provisions for which there is
no corresponding provision in the Act could be made
B applicable. The distinction between sub-section (1) and subsection (2) of Section 87 of the Act brings out the
contradistinction between the two provisions inasmuch as subsection (2) makes the entire Evidence Act applicable subject
to the provisions of the Act but in extenso whereas sub-section
c (1) makes the Code of Civil Procedure applicable subject to
the provisions of the Act and as nearly as possible. Therefore,
the provisions of the Code are not wholly applicable to the trial
of the election petitions.