# INAMATI MALLAPPA BASAPPA v. DESAI BASAV ARAJ AYYAPPA & OTHERS

- **Citation:** [1959] 1 S.C.R. 611
- **Court:** Supreme Court of India
- **Decided:** 1957-09-26
- **Case number:** Civil Appeal No. 76of1958
- **Bench:** Bhagwati, J. L. Kapur, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/inamati-mallappa-basappa-v-desai-basav-araj-ayyappa-others-1533
- **Pages:** 18

## Headnote

Election Petition-Claim for seat-Recrimination, when right
accr·ues-Abandonment of claim for seat, if permissible-Whether
abandonment affects right of recrimination-Code of Civil Procedure
(Act V of r908), 0. 23, r. I.-Representation of the People Act, r95r
(27 of r95r), ss. 90 and 97.
·
.
A, the unsuccessful candidate at an election, filed an election petition against B, the successful candidate, claiming a
declaration that the election of B was void and that he.had
been duly elected as he had secured the next highest number of
valid votes. On the first date of the hearing before the Election
Tribunal A submitted an application under 0. 23, r. I, of the
Code Cl'f Civil Procedure abandoning the relief claiming the seat.
B objected to the abandonment and filed a notice of recrimination under s. 97 ofthe Representation of the People Act, 1g51,
accompanied by the statement and necessary particulars.
A
contended that B was not entitled to give evidence in recrimina·
tion as the claim for the seat had been abandoned.
The Tribunal held thats. 90(1) of the Act had made the procedure prescribed by the Code of Civil Procedure applicable to proceedings
in election petitions and as such A had a right under 0. 23, r. I,
of the Code to abandon a part of his claim and that A having
abandoned his claim for the seat B. was no longer entitled to
recriminate :
H etd, that the provisions of the Act constitute a self-contained code governing the trial of an election petition and in
spite of s. 90(1) of the Act, the provisions 0. 23, r. I, of the Code
of Civil Procedure were not applicable to the trial of an election
petition by the Tribunal; and it was not open to A to. withdraw
or abandon a part of his claim once an election petition had
been presented to the Election Commission, particularly when
such a withdrawal or abandonment of a part of the claim would
have had the effect of depriving B of the right of recrimination
which had accrued to him under s. 97 of the Act.
The right of
recrimination accrued to B the m:iment the electiwi petition was
presented to the Election Commission containing the claim for
the seat, and it was not open to A to defeat this right by withdrawing or abandoning the claim for the seat.
An election petition once filed does not mean a contest only
between.the parties thereto but continues for the benefit of the
whole constituency and cannot come to an end merely by.
the withdrawal thereof by·the petitioner or even by his death QJ;
1&
t
•
April 22.
Basappa
v.
Ayyappa
612
SUPREME COURT REPORTS
[1959]
by the death or withdrawal of opposition by the respondent but
is liable to be continued by any person who might have been a
. petitioner.

## Text

_Characters 0–39,477 of 40,346. This is a partial read: ask again with offset=39477 for what follows._

S.C.R.
SUPREME COURT REPORTS
611
INAMATI MALLAPPA BASAPPA
v.
DESAI BASAV ARAJ AYYAPPA & OTHERS
(BHAGWATI, J. L. KAPUR and A. K. SARKAR JJ.)
Election Petition-Claim for seat-Recrimination, when right
accr·ues-Abandonment of claim for seat, if permissible-Whether
abandonment affects right of recrimination-Code of Civil Procedure
(Act V of r908), 0. 23, r. I.-Representation of the People Act, r95r
(27 of r95r), ss. 90 and 97.
·
.
A, the unsuccessful candidate at an election, filed an election petition against B, the successful candidate, claiming a
declaration that the election of B was void and that he.had
been duly elected as he had secured the next highest number of
valid votes. On the first date of the hearing before the Election
Tribunal A submitted an application under 0. 23, r. I, of the
Code Cl'f Civil Procedure abandoning the relief claiming the seat.
B objected to the abandonment and filed a notice of recrimination under s. 97 ofthe Representation of the People Act, 1g51,
accompanied by the statement and necessary particulars.
A
contended that B was not entitled to give evidence in recrimina·
tion as the claim for the seat had been abandoned.
The Tribunal held thats. 90(1) of the Act had made the procedure prescribed by the Code of Civil Procedure applicable to proceedings
in election petitions and as such A had a right under 0. 23, r. I,
of the Code to abandon a part of his claim and that A having
abandoned his claim for the seat B. was no longer entitled to
recriminate :
H etd, that the provisions of the Act constitute a self-contained code governing the trial of an election petition and in
spite of s. 90(1) of the Act, the provisions 0. 23, r. I, of the Code
of Civil Procedure were not applicable to the trial of an election
petition by the Tribunal; and it was not open to A to. withdraw
or abandon a part of his claim once an election petition had
been presented to the Election Commission, particularly when
such a withdrawal or abandonment of a part of the claim would
have had the effect of depriving B of the right of recrimination
which had accrued to him under s. 97 of the Act.
The right of
recrimination accrued to B the m:iment the electiwi petition was
presented to the Election Commission containing the claim for
the seat, and it was not open to A to defeat this right by withdrawing or abandoning the claim for the seat.
An election petition once filed does not mean a contest only
between.the parties thereto but continues for the benefit of the
whole constituency and cannot come to an end merely by.
the withdrawal thereof by·the petitioner or even by his death QJ;
1&
t
•
April 22.
Basappa
v.
Ayyappa
612
SUPREME COURT REPORTS
[1959]
by the death or withdrawal of opposition by the respondent but
is liable to be continued by any person who might have been a
. petitioner.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
76of1958.
Appeal by special leave from the judgment and
order dated September 26, 1957, of the Election Tribunal, Dharwar, in Election Petition No. 52 of 1957.
G. S. Pathak, H.J. Umriga1· and G. C. Mathur, for
the appellant.
P. Ram Reddy, for respondent No. 1.
G. S. Pathak and S. S. Shukla, for the interveners.
1958.
April 22.
The
Judgment of the Court
was delivered by
•
Bhagwati J.
BHAGWATI J.-This is the 4th of the series of
Civil Appeals before us arising out of election petitions
and involving the interpretation of the relevant sections of the Representation of the People Act, 1951
(hereinafter referred to as " the Act"). The decision
of this appeal turns on the construction of s. 97 of the
Act and also on the jurisdiction of the Election Tribunals to allow withdrawal or abandonment of part of the
claims before them.
The appellant and respondents 1 to 3 were the contesting candidates for election to the Mysore Legislative Assembly from the Dharwar Constituency in the
last General Elections. The appellant was the Congress candiiate and th.e first respondent was the
candidate of the Lok Sevak Sangh party. The result
of the election was declared on March 3, 1957, and the
appellant was declared elected by a majority of 1, 727
votes.
On April 14, 1957, the first respondent presented to the Election Commission a Petition, being
Election Petition No. 52 of 1957 under s. 80 of the Act
wherein besides claiming a declaration that the election of the appellant was void he claimed a.further
declaration that he, the first respondent, had been duly
.elected as he had secured the next highest number of
valid votes. The Election Petition was published in
t •
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S.C.R.
SUPREME COURT REPORTS
613
the official ga_zette and was then referred to the Election Tribunal for trial. The appellant and the respondents Nos. 2 and 3 received a notice from the Election
Commission requiring them to appear before the Tribunal on or before July 20, 1957. On the said date, the
first respondent submltted before the Election Tribunal
what purported to be an application under 0. 23, r. 1, of
the Code of Civil Procedure to the following effect :-
" The petitioner hereby abandons part of his claim
namely "that it be further declared that the petitioner
has been duly elected as the petitioner has secured the
next highest number of valid votes. "
The petitioner
confines his claim, therefore, to have the election of
respondent No. 1 declared void and to have costs of
the proceedings a warded to him. "
On July 25, 1957, the appellant filed his objections
to the said application contending inter alia, that by
reason of the fact that the first respondent had claimed
in his Election Petition a declaration that he was duly
elected, the appellant and the other respondents to the
Election Petition had acquired a right under s. 97 of
the Act, to file recriminati9n against the first respondent subject, of course to compliance with the necessary statutory provisions in that behalf, and that such
right to file recrimination could not be affected by the
purported abandonment of the relief by the first
respondent. On July 29, 1957, the appellant gave
notice of his recrimination under s. 97.
The said
notice was accompanied by the statement and necessary particulars as required by s. 97 read with s. 83 of
the Act and was given within 14 days from the date
of the commencement of the trial, viz., July 20, 1957.
The particulars of corrupt practices under s. 123(1) (a)
and (b) and s. 123(6) of the Act thus given by the
appellant comprised corrupt practices of bribery and
using of motor vehicles for the conveyance of voters
to the poll which if proved would have led to his disqualification for standing as a candidate and from
being a member of the Legislature for a period of six
years <ll:mnting from the date on which the finding of
the E;lection Tribunal as to such practice took effect·
under the Act (Vide s. 140).
'
•
Basappa
v.
Ayyappa
Bhagwati ].
Rasapp~
v.
Ayyappa
Bhagwati ].
614
SUPREME COURT REPORTS
[1959]
On August 1, 1957, the first respondent filed an
objection to the above-mentioned notice under s. 97
wherein he contended inter alia that the appellant was
not entitled to give evidence in recrimination as the
claim for further declaration had been abandoned by
him.
There had been a vacancy for a Legislative
Assembly seat from a neighbouring constituency on
account of the death of Shri B. R. Tambakad on
Juno 26, 1957, and the first respondent decided to contest the election in the vacancy, filed his nomination
pa per for the said vacancy on September 17, 1957, and
was duly elected on October-16, 1957, as a member of
the Mysore Legislative Assembly from the Kalagh11tgi
Constituency.
The application of the first respondent under 0. 23,
r. l, of the Code of Civil Procedure, the notice of ;ecrimination given by the appellant under s. 97 and the
objection filed by the first respondent to the same
came up for hearing before the Election Tribunal,
Dharwar, and the Tribunal framed the following
issues:-
" (1) Whether the 1st respondent is entitled to
abandon a part of his claim in the manner he has
done?
(2) If so, whether the appellant will be entitled to
give notice to the Tribunal of his intention to give
evidence to prove that the election of the first respondent would have been void if he had been the returned
candidate ?
(3) \Vhether the notice of recrimination given by
the appellant is barred by limitation?"
The Tribunal held that by virtue of the provisions of
s. 90(1) of the Act the procedure prescribed by the
Code of Civil Procedure had been made applicable to
proceedings jn election petitions and as such under the
provisions of 0. 23, r. 1, of the Code of Civil Procedure
the first respondent had a right to abandon a part of
his claim. It further held that in view of the abandonment of part of the claim by the first respondent,
viz., that he be declared as the duly elected caiididate,
·neither the appellant nor respondents Nos. 2 and 3
would be entitled to give notice of recrimination under
t
•
•
••
•
·,.
S.C.R.
SUPREME COURT REPORTS
615
s. 97 and consequently the appellant would not be
entitled to give evidence to prove that the election of
the first respondent would have been void if he had
been the returned candidate. It also held that the
notice of recrimination given by the appellant was not
barred by limitation, inasmuch as under explanation
to s. 90(4} the trial of the petition was deemed to commence on the date fixed for the appellant and the
respondents Nos. 2 and 3 to appear before the Tribunal, viz., July 20, 1957, and the notice of recrimination
had been given by the appellant within 14 days thereof.
The Tribunal accordingly
ordered that the
abandonment of a part of his claim as aforesaid should
be noted on the petition and further ordered that the
~ppellant could not give evidence to prove that the
election of the first respondent would· have been void
if he
0 had been the returned candidate inasmuch as on
the abandonment of that part of the claim by the first
respondent the recrimination put in by the appellant
did not survive.
The appellant applied for and obtained on January 13, 1958, from this Court special le'ave to appeal
under Art. 136 of the Constitution to appeal against
the decision of the Election Tribunal and that is how
this Civil Appeal No. 76 of 1958 has come before us.
Section 97 of the -A<;t reads as under:-
"Recrimination when seat claimed: (1) When in
an election petition a declaration that any candidate
other than the returned candidate has been duly elected is claimed, the returned 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 :
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 the commencement of the trial, given
notice to the Tribunal of his intention to do so and
has a1so given the security and the further security
referred to in sections 117 and 118 respectively.
·
(2) Every notice referred to in sub-section (1) shall
•
I
•
Ba.sappa
v.
Ayyappa
Bhagwati ]•
Basappa
v:
Ayyappa
Bltagwati J.
616
St'PREME COURT REPORTS
[1959]
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.
Under the terms of this section a right of recrimination accrues to the returned candidate or any other
party to the Election Petition where the petitioner
besides claiming a decln,ration that the election of all
or any of the returned candidates is void, claims a
further declaration tha.t any candidate other than the
returned candidate has been duly elected.
vVould it
then be open to the petitioner to abn,ndon that part of
the relief which claimed such further declaration so as
to deprive the returned candidate or any other pn,rty
to the petition of the right of recrimination which has
thus accrued to him ; or in other words, has the ~lec
tion Tribunal the power to allow the petitioner to
withdraw or abandon a part of his claim as aforesaid
thus rendering the exercise of the &'tid right of recrimination nugatory?
It is necessary at the outset, therefore, to understand
the nature and scope of an Election Petition. As has
been observed by us in the judgment just delivered in
Civil Appeals Nos. 763 & 764 of 1957 and Civil Appeal
No. 48of1958:-
" An election contest is not,an action at law or a
suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power."
"An election petition is not a matter in which the
only persons interested are candidates who strove
against each other at the elections. The public also
are substantially interested in it and this is not merely
in the sense. that an election has news value.
An
election is an essential part of the democratic process.''
.............................. ; .................................. .
" An election petition is not a suit between two
persons, but is a proceeding in which the constituency
itself is the principal party interested. "
,.
I •
•
...
. ,
s:c.R.
SUPREME COURT REPORTS
617
(Vide Jagan Nath v. Jaswant Singh (1), A. Sreenivasan v. Election Tribunal, Madras (2), The Tipperary
case (3)).
An Election Petition presented to'the Election Commission is scrutinised by it and if the Election Commisc
sion does not dismiss it for want of compliance with
the provisions of s. 81, s. 82 or s. 117 .. of the Act~ it
accepts the same and causes a copy thereof to be
published in the official gazette·and a copy thereof to
be served· by post on each respondent. The respondents to the petition not only get . notice of the same
but the constituency as a whole receives sttch n6tice
by publication thereof in the official gazette so that
each and every voter of the c9nstituency and all
parties interested become duly aware of the fact of
such Election Petition having been presented. A copy
of tlie Election Petition published in the official gazette
would also show to all of them that the petitioner in a
particular Election Petition, in addition to claiming a
declaration that the .election of all or any of the
returned candidates is void, has also claimed a- further
declaration that he himself or any other candidate has
been duly elected. The whole constituency is thus
alive to the fact that the result of the election duly
declared is questioned on various grounds permitted
by law with the likely result that the election of all or
any of the returned candidates may be declared void
and the petitioner or any othe1· candidate may be
declared duly elected, in place and stead of the
·returned candidate. The constituency may have an
interest in either maintaining the status quo or if perchance the election ·of the returned candidate is set
aside, in seeing that some other deserving candidate is
declared elected in his place and stead and not necessarily the petitioner or any other candidate sponsored
by him whose election could be challengtld on any of
the grounds mentioned in· s. 100(1). It is this interest
of the constituency as a whole which invests the proceedings before the Election Tribunals with a characteristie 9f their own and differentiates them from
(1) (19541 s.c:R. s9i. 895.
(2) (1955) " E.L.R. 278, 293.
(3) (1875) 3 O'M, & Ii. 19, 23 •
. '
Basappa
v.
Ayyappa
Bhagwati ].
Basappa
v.
Ayyappa
Bhagwati ].
G18
SUPREME COURT REPORTS
[1959]
ordinary civil proceedings. Once this process has been
set in motion by the petitioner he has released certain
forces which even he himself would not be able to
recall and he would be bound to pursue the petition to
its logical end. It may be that he may not be able to
·substantiate his claim for a declaration that the election of all or any of the retnrned candidates is void.
In that event he would of course fail and no qnest.ion
would arise of his obtaining a further declaration that
he himself or any other candidate has been duly elected.
All the grounds urged in the Election Petition
against the returned candidates under s. 100( 1) of the
Act would fail and the election would stand. The
voters would thus lie vindicated. If the petitioner,
however, succeeds in establishing his first claim and
the election of the returned candidate is declared void,
the question would necessarily arise when such a
further declaration has been claimed by him whether
he himself or any other candidate should be declared
duly elected. In that event, the occasion would arise
for considering whether the petitioner himself or any
other candidate sponsored by him should be declared
duly elected. If the election of the petitioner or such
other candidate could have been challenged on any of
the grounds mentioned ins. 100(1) such election would
certainly have been void if he had been a retnrned
candidate and the petition had been presented calling
in question his election.
A recrimination could therefore be filed by the returned candidate or any other
party to the petition under s. 97.
The requisite notice
under s. 97 would be accompanied by the statement
and particulars required by s. 83 in the case of an
election petition and signed and verified in like
manner. This notice would be, in effect, a counter
petition presented by the returned candidate or any
other party to the petition accompanied by the statement and particulars required by s. 83 in the case of
an election petition' and would also be supported by
the deposit of security and further secnrity referred to
in ss. 117 and 118 of the Act. The election contest
would then not only be between the petitioner on the
one ha.nd and the returned ca.ndidate on the other but
••
'
i.
·,
S.C.R;
SUPREME COURT REPORTS
619
also between the ·returned candidate or any other
party to the petition and the candidate who has been
sponsored by the petitioner for such election.
An
election contest as aforesaid would result in the declaration of the properly qualified candidate as duly
elected and the maintenance of the purity of the elections in which the constituency as a whole is vitally
. interested and no person would get elected by flagrarit
breaches of the election law or by corrupt pract~ces.
This is the purpose of a recrimination and the right
to file a recrimination accrues to the returned candidate
or any other party to the petition the moment an election petition is presented containing a claim for a
further declaration that the petitioner himself or any
other candidate has been duly elected. The proviso
to s . .97(1) merely enacts conditions for the exercise
of such right of recrimination and states that the
returned candidate or such other party is not to be
entitled to give such evidence unless he has, within
fourteen days from the date of comme_ncement of the
trial,· given notice to the Tribunal of his intention to
do so and has also given the security and the further
security referred to in ss. 117 and 118 respectively:
If these conditions are fulfilled in the manner therein
specified the returned candidate or such other party
will be entitled to give such evidence which right of
course would not be capable of being exercised if either
of these two conditions has not been fulfilled. The
accrual of this right, however, is not postponed till
the fulfilment of these conditions.
It accrues the
moment an election petition containing a claim for
such further declaration is presented to the Election'
Commission.
If once such a right has accrued to the returned
candidate or any other party to the petit\on, can that
right be affected by the petitioner seeking to withdraw
or abandon that part of his claim, viz., a claim for a
further declaration that he himself or any other candidate has been duly elected? If it were permissible for
him to" withdraw or abandon a part of his claim on the
a.nalogy of 0. 23, r. 11 of the Code of Civil Procedurei
19
. '
Basappa
V,
Bhagwati J.
x958
Basappa
v.
Ayyappa
Bhagwati ].
620
SUPREME COURT REPORTS
[1959]
he would make a virtue of necessity and withdraw
or abandon that part of his claim so as to avoid
any investigation in the Election Petition itself in
regard to himself or any other candidate sponsored
by him on any of the grounds mentioned in s. 100(1)
including corrupt practices within the meaning of
s. 123 which if proved would entail a disqualification
for standing as a candidate or even for voting for a .
period of 6 years under ss. 140 and 14l(b).
So far as ·withdrawal of petitions is concerned there
are specific provisions enacted in the Act beginning
with s. 108. Section 108 deals with the withdrawal of
petitions before the appointment of Tribunals and
provides that an election petition may be withdrawn
only by leave of the Election Commission if an application for its withdrawal is made before any TriQunal
has been appointed for the trial of such petition.
Section 109 deals with the withdrawal of petitions
after the appointment of Tribunals and enacts that
where an application for withdrawal of an election
petition is made after a Tribunal has been appointed
for the trial of suah petition, the election petition may
be withdrawn only by leave of the Tribunal and a
notice of such an application fixing a date for the
hearing of the application is to be given to all other
parties to the petition and is to be published in the
official gazette. Section 110 prescribes the procedure
for withdrawal of petitions before the Election Commission or the Tribunal and s. 110(2) provides that no
application for withdrawal is to be granted if in the
opinion of the Election Commission or of the Tribunal,
as the case may be, such application has been induced
by any bargain or.consideration which ought not to be
allowed.
If such an application is granted, notice of
~he withdrawal is to be published in the official gazette
by the _Election Commission or by the Tribunal as the
case may be; and a person who might himself have
peen a petitioner may, within fourteen days of such
publication apply to be substituted as petitioner in
;place of the party withdrawing, and upon compliance
with the conditions of s. 117 as to security, is to be entitled to be BO substituted and to continue the proceedings
'
.
.
•
'
·,
S.O.R.
SUPREME COURT REPORTS
621
upon such terms as the Tribunal may think fit.·
When an application for withdrawal is granted
by the Tribunal and no person has been substituted as
petitioner in place of the party withdrawing as above,
the Tribunal is to report the fact to the Election Commission and thereupon the Election Commission shall
publish the report in the official gazette. This will
ring the curtain on the election contest and the result
of the election which has been duly declared will no
more be liable to be disturbed.
There are also provisions enacted in the Act which
provide for the consequences of the death of a sole
petitioner or of the survivor of several petitioJ?_ers or the
death or withdrawal of opposition by the sole respondent therein. Section 112 provides that an election
petition shall abate on the death of a sole petitioner or
of th~ survivor of several petitioners. If an election
petition thus abates before a Tribunal has been
appointed for the trial of the petition, notice of the
abatement shall be published in the official gazette by
the Election Commission (Vide s. 113). If on the other
hand an election petition abates after a Tribunal has
been appointed for the trial of the petition, notice of
the abatement has to be published in the official
gazette by the Tribunal (Vide s. 114). The death of a
sole petitioner or of the survivor of several petitioners,
however, does not spell the termination of the proceedings ands. 115 provides that after a notice of the
abatement of an election petition is published under
s. 113 ors. 114 any person who might himself have
been a petitioner may, within fourteen days of such
publication, apply to be substituted. as petitioner
and upon compliance with the conditions of s. 117
as to security shall be entitled to be so substituted and to continue the proceedings upon · such
terms as the Tribunal may think fit~
The position as it obtains on the death or withdrawal of
opposition by a respondent is worked out in s. 116
which provides that if before the conclusion of the trial
of an ~lection petition the sole respondent dies or gives
notice that he does not intend to oppose the petition or.
any of the respondents dies or gives such notice and
...
. '
Basappa
v.
Ayyappa
Bhagwati ].
Basappa
v.
Ayyappa
Bhagwati ].
622
SUPREME COURT REPORTS
[1959]
there is no other respondent who is opposing the
petition the Tribunal shall cause notice of such event
to be published in the official gazette, and thereupon
any person who might have been a petitioner may,
within fourteen days of such publication, apply to be
substituted in place of such respondent to oppose the
petition, and shall be entitled to continue the proceedings upon such terms as the Tribunal may think
fit.
The above provisions go to show that an election
petition once filed does not mean a contest only
between the parties thereto but creates a situation
which the whole constituency is entitled to avail itself
of.
Any person who might himself have been a petitioner is entitled to be substituted, on the fulfilment of
the requisite conditions and upon such terms as the
Tribunal may think fit, in place of the party \,·ithdrawing and even the death of the sole petitioner or
of the survivor of several petitioners does not put an
end to the proceedings, but they can be continued by
any person who might himself have been a petitioner.
Even if the sole respondent dies or gives notice that
he does not intend to oppose the petition or any of the
respondents dies or gives s.uch notice and there is no
other respondent who is opposing the petition, a similar
situation arises and the opposition to the petition can be
continued by any person who might have been a petitioner, of course on the fulfilment of the conditions
prescribed in s. 116. These provisions therefore show
that the election petition once presented continues for
the benefit of the whole constituency and cannot come
to an end merely by the withdrawal thereof by the
petitioner or even by hi's death or by the death or
withdrawal of opposition by the respondent but is
liable to be continued by any person who might have
been a petitmner.
If, therefore, an electfon petition duly presented cannot be thus withdrawn by the petitioner, is there any
warrant for the contention that even thougJ:t he may
not be able to withdraw· his petition in the :manner
-aforesaid he can at least abandon a part of his claim
on the analogy of O. 23, r. 1, of the Code of Civil
,.
.
'. .
.
-
·,
S:C.R.
SUPR'.EME COURT REPORTS
623
Procedure? The whole petition cannot be withdrawn;
but would it not be possible for the petitioner to withdraw or abandon a part of his claim as above? The
provisions of s. 90 of the Act are sought to be relied
upon in support of this contention. Section 90(1) provides that subject to the provisions of the Act and of
any rules made thereunder, every election petition
shall be tried by the Tribunal, as nearly as may be, in
accordance with the procedure applicable under the
Code of Civil Procedure to the trial of suits, provided
however that the Tribunal shall have the discretion
to refuse for reasons to be recorded in writing to
examine any witness or witnesses if it is of the opinion
that their evidence 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. Under s. 90(2) 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. Section
90(4) provides that any candidate not already a respondent shall, upon application made by him to the Tribunal witfrin fourteen days from the date of commencement of the trial and subject to the provisions of s. 119,
be entitled to be joined as a respondent. Section 90(5)
provides that the Tribunal may, upon such terms as
to costs and otherwise as it may deem fit, allow the
particulars of any corrupt practice alleged in the petition to be amended or amplified .in such manner as
may in its opinion be necessary for ensuring a fair and
effective trial of the petition, hut shall not allow any
amendment of the petition which will have the effect
of introducing particulars of a corrupt practice not
previously alleged in the petition. It is clear from the
above that the section only pro\Tides for the procedure
for the trial of election petitions by the Tribunals. It
provides for the examination of witnesses, the rules of
evidence to be followed, the joinder of candidates not
already respondents as respondents and the amendment er amplification of particulars of a corrupt practice already alleged in the petition. The powers of a
Tribunal are, however, separately dealt with in s. 92
-:-'-.
J"y\
Basappa
v.
Ayyappa
Bhagwati ].
Basappa
v.
A;•yappa
Bhagwati ]:
624
SUPREME COURT REPORTS
[1959]
which enacts that the Tribunal shall have the powers
which are vested in a court under the Code of Civil
Procedure, when trying a suit in respect of the following matters :-(a} discovery and inspection; (b} enforc-
.ing the attendance of witnesses, and requiring the deposit of their expenses; (c) compelling the production of
documents; (d) examining witnesses"on oath; (e) granting adjournments ; (f) reception of evidence taken on
affidavit; and (g) issuing commissions for the examination of witnesses, and may summon and examine suo
motu any person whose evidence appears to it to be
material ; and shall be deemed to be a civil court
within the meaning of ss. 480 and 482 of the Code of
Criminal Procedure, 1898. . It will be noticed that the
procedure for trial before the Tribunal and the powers
of the Tribunal are treated separately thus distinguishing between the procedure to be followed by the Triounal
and the powers to be exercised by it. There are also
other provisions to be found in the Act which relate to
place of trial (s. 88) ; Power of Election Commission to
withdraw and transfer Petitions (s. 89); appearance
before Tribunal (s. 91); documentary evidence (s. 93};
answering of criminating questions and certificate of
indemnity (s. 95) and expenses of witnesses (s. 96). The
effect of all these provisions really is to constitute a
self-contained Code governing the trial of election petitions and it would appear that in spite of s. 90( 1) of
the ·Act, the provisions of 0. 23, r. l, of the Code of
Civil Procedure, wo1o1ld not be applicable to the trial of
election petitions by the Tribunals. If the withdrawal
of a petition cannot be permitted and any person who
might have been a petitioner is entitled to continue
the proceedings, on a parity of reasoning, the withdrawal of a part of the claim also could not be permitted without allowing another person who might have
been a petitioner an opportunity of proceeding with
that part of the claim by substituting himself in place
and stead of the petitioner who withdraws or abandons
the same. If the constituency as a. whole is interested
in the petition presented before the Election Tribunal
no such withdrawal or abandonment of a part of the
claim .could ever be permitted without giving an
..,_
~..,t.
;.
'
f
. '
S.C.R.
SUPREME COURT REPORTS
625
opportunity to any person who might have been a
petitioner to cohtinue the proceedings and pursue the
petition to its logical conclusion.
The prQvisions of 0. 23, r; 1, of the Code of Civil
Procedure also contain inherent evidence which militates against this contention: Order 23, r. 1, sub-rule (2),
provides for liberty being given by the Court to a party
withdrawing or abandoning a part of· his claim to file
a fresh suit on the same cause of action, if so ad vised.
In the very nature of things such liberty could not be
reserved to a petitioner in an election petition. The
provisions above referred to in regal'd to withdrawal of
petitions do not provide for the same and if they do
not do so, can it be urged that the provisions of 0. 23,
r. 1, sub-rule (2), though they may not apply to the
•cases. of withdrawal of petitions may nevertheless
apply where the petitioner withdraws or abandons a
part of his claim? If these provisions· do not apply to
the withdrawal or abandonment of a part of the claim
in the case of an election petition, could it then be
urged that nevertheless the other provisions of 0. 2:3,
r. 1, would apply and the petitioner would be at liberty
to withdraw or abandon a part of his claim?
On a due consideration of all these provisions, we
are of opinion that the provisions of 0. 23, r. 1, do not
apply to the election petitions and it would not be
open to a petitioner to withdraw or abandon a part of
his claim once an election petition was presented to the
Election Commission, more so when such a withdrawal
or abandonment of a part of the claim would have the
effect of depriving the returned candidate or any other
party to the petition of the right of recrimination
which had accrued to him under s. 97 of the Act.
This is also the position in England.
Halsbury's
Laws ·of England, 3rd Ed., Vol. 14, para. 451, p. 258,
contains the following passage under• the caption
" Amendment of petition " :-
"The withdrawal of that portion of a petition
which claims the seat cannot, however, be effected by
way or amendment because the rights of the electors
would be affected by their not having the opportunity
of substituting another petitioner. "
Basappa
v.
Ayyappa
Bhagwali ].
Basappa
V,
Ayyappa
Bhagwati ].
626
SUPREME COURT REPORTS
[1959]
See also the passage at ibid p. 300, para. 541 :-
"It seems that where the petition prays the ~eat,
recriminatory evidence may be offered, notwithstanding that the prayer for the seat is abandoned at the
trial."
The case of Aldridge v. Hurst"(') elucidates this position.
Grove J. in that case observed as follows :-
"Numerous provisions of the Act have reference
not merely to the individual interests or rights of peti- ·
tioners or respondents, but to rights of electors, of constituencies, and of the public, in purity of election and
in having the member seated who is dnly returned by
a majority of proper votes. It appears to ns also that
the scope of the Act is, that petitions should not be
mere pleadings, nor framed for the purpose of intimidating or in any way inducing the respondent to
abandon his seat ; still less, of course, should they be
collusive; but that they should be real, well considered,
and not lightly withdrawn either in whole or inpart."
.....................................................................
" These sections show that not merely may the
candidate who is not returned claim the seat, or in
other words, claim to have been duly elected, but that
any other voter might claim the seat for a candidate
who has not been returned."
......................................................................
"This right of petitioning shows that the Act contemplates, in regard to petitions, not merely the rights
of candidates not returned, but the rights of the constituency to insure that the person really elected should
be their member; and this without the cost and disturbance of a new election, as the judge's decision in
favour of such claim is final."
.....................................................................
" It apLJears to us that it would be an infringement of this right, if, a petition having been presented
by one person (in this case a candidate) claiming the
seat, the claim to the seat could be withdrawn by the
mere motion of the person presenting it, after the
twenty -one days,· when no other petition could 'be pre-
·sented, and thus the voters be prevented from claiming
(•) (1876) L.R. t C.P. 410, 4';!• 4q, 4'S• 417.
, ·
.
_._.
"
S.C.l{.
SUPREME COURT REPORTS
627
the seat for one who may be the duly elected representative; or, on the other hand, from shewing by means
of the recriminative charges which put in issue the
claim, that the claimant is not a person entitled to the
seat by that election or that he is disqualified for
future elections; such withdrawal not being accompanied by the power to substitute another person as
petitioner, by means of which the inquiry might be
gone into at the trial."
"It appears to us that the withdrawal of this portion of the prayer of the petition is in pari materia
with, even if it is not within, the provisions of the Act
relative to the withdrawal of a whole petition."
l' It is also to be observed that, although petitions
may be presented at the last. moment, it is commonly
known in the county or borough that such petitions
are likely to be presented ; and if any suspicion exists
that they are sham petitions, means are taken by those
who are in earnest to lodge petitions; and the entire
withdrawal of collusive petitions is guarded against by
the provisions of the Act to which we have alluded."
" In one point of view it is an argument against
our allowing this prayer to be withdrawn, that, if
there be no power under the withdrawal clauses to
substitute a person for the petitioner as to this prayer,
the constituency will be without means of proving
either that the petitioner is the duly-elected member,
or to answer his allegation that he is elected, or to shew
that he is unfit to serve in a future parliament, he
himself having raised this issue by claiming the seat."
It is, therefore, clear that there is no power in the
Election Commission to allow a petitionen. to withdra·w
or abandon a part of his claim either by having resort
to the provisions of 0. 23, r. I, of the Code of Civil
Procedure or otherwise. If that is so, the right of
reorimjnation .which has once accrued to the returned
candidate or any other party to the petition under s. 97 ·
of the Act cannot be taken away, and the ·returned·
candidate or any other party to the petitio~ would in
So
'
Basappa
v.
Ayyappa
Bhagwati ].
nasuppa
v.
Ayyappa
13hagwati J.
628
SUPREME COURT REPORTS
[1959]
such circumstances be entitled to give evidence to
prove that the election of the petitioner or any other
candidate sponsored by him would have been void if
he had been the returned candidate and a petition had
been presented calling in question his election. The
counter petition which ha.s in effect been thus filed by
the returned candidate or any other party to the petition must be allowed to proceed and the right of
recrimination should continue to be exercised notwithstanding the attempted abandonment of a part of his
claim by the petitioner with the inevitable result that
if any corrupt practice within the meaning of s. 123
were proved against the petitioner or any other candidate sponsored by him it would entail upon him the
disqualification for standing as a candidate or even for
voting for a period of 6 years under ss. 140 and 14l(b).
In the present case, such proof on the part of the
appellant would have not only entailed upon the 1st
respondent a disqualificn,tion for voting but even for·
standing as n, candidate for a period of six years, with
the inevitable consequence that his election to the
Mysore Legislative Assembly from the Kalaghatgi
constituency on October 16, 1957, would hn,ve been
void and he would hn,ve been unseated.