# KALYAN SINGH CHOUHAN v. C.P. JOSHI

- **Citation:** [2011] 2 S.C.R. 216
- **Court:** Supreme Court of India
- **Decided:** 2011
- **Case number:** Civil Appeal No. 870 of 2011
- **Bench:** P. Sathasivam, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kalyan-singh-chouhan-v-c-p-joshi-27311
- **Pages:** 27

## Headnote

Election Laws:
c
Election petition - Trial and adjudication of - Held: The
D
procedure provided for trial of civil suits under CPC is not
applicable in its entirety to the trial of election petition -
T~
procedure prescribed in CPC applies to election trial with
flexibility and only as a guidelines.
Representation of People Act, 1951 - ss. 80, 81,
100(1)(d)(iii) and s.97 - Election petition - Right of a party to
lead evidence - Elections held to constitute State Legislative
Assembly- Allegation that 10 votes were cast by imposters
and thus, 10 tendered votes cast under the Rules - Appellant
E declared elected - Election petition filed by respondent before
High Court - Appellant fifed written statement - Later filed
application to summon list of all tendered votes - High Court
rejected the application - On appeal, held: The pleadings in
the election petition related only to 6 tendered votes - There
F was no reference in respect of the remaining 4 tendered votes
either in the election petition or in the written statement filed
by the appellant - In absence of any Recrimination petition,
the appellant could not be permitted to lead evidence on a
fact not in issue - Also, in the application, no reason nor
G justification was given by the appellant for summoning of the
other 4 tendered votes - Therefore, the High Court rightly did
not allow the appellant to lead evidence which was no1 in the
line of the pleadings - Conduct of Election Rules, 1961 -
Rule 42.
H
216
KALYAN SINGH CHOUHAN v. C.P. JOSHI
217
Pleadings - Jurisdiction of the Court to grant relief -
A
Held: A decision of a case cannpt be based on grounds
outside the pleadings of the parties.
Code of Civil Procedure, 1908 - Order XIV, Rule 1Fratning of issues - Object and purpose of - Held: The object.
of framing issues is to ascertain/ shorten the area: of dispute . B
and pinpoint the points required to be determined by the court
- /tis the issues fixed and not the pleadings that guide the
parties in the matter of adducing. evidence - It is neither
desirable nor required for the court to frame an issue not
arising on the pleadings - The Court should not decide a suit C
on a matter/point on which no issue has been framed.
Elections were held to constitute the 13th Legislative
Assembly for the State of Rajasthan. During the process
of polling, there were allegations that in .respect of the
D
constituency in question, at least 10 votes were cast by
imposters and thus, 10 tendered votes were cast under
Rule 42 of the Conduct of Election Rules, 1961. The
appellant was declared elected from the said
constituency by a margin of one vote.
E
The respondent, an unsuccessful candidCJte, filed
election petition before the High Court under Sections 80,
· 81, 100(1 )(d)(iii) and Section 100(1)(d)(iv) of 1951 Act, interalia, alleging: (i) that the name of the appe.llant's wife was
registered at two places in the electoral rolls of the
F
constituency and hence she had cast two votes in the
election; and (ii) that six (6) tendered votes cast in the
election must be counted and the six (6) votes originally
I
pollerl against the tendered votes must be rejected. The
G I
appellar;~ filed written statement contesting the election
petition. Arll'" framing of the issues, the appellant flied an
application to summon inter a.lia the list of all tendered
votes. The High Court rejected the application on the
ground that it was not permissible to summon tendered
H
2.18
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A votes in respect of which none of the parties had taken
the pleadings nor an issue had been framed in respect
of those tendered votes and, thus, it was not permissible
to lead any evidence on the fact which is not in issue;
more so, on the ground of delay, as the application had
B been filed after framing of the issues.
In appeal to this Court, the question which arose for
consideration was whether the result of the election had
been materially affected and, therefore, once the appellant
C raised h

## Text

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A
B
[2011] 2 S.C.R. 216
KALYAN SINGH CHOUHAN
v.
C.P. JOSHI
(Civil Appeal No. 870 of 2011)
JANUARY 24, ·2011
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Election Laws:
c
Election petition - Trial and adjudication of - Held: The
D
procedure provided for trial of civil suits under CPC is not
applicable in its entirety to the trial of election petition -
T~
procedure prescribed in CPC applies to election trial with
flexibility and only as a guidelines.
Representation of People Act, 1951 - ss. 80, 81,
100(1)(d)(iii) and s.97 - Election petition - Right of a party to
lead evidence - Elections held to constitute State Legislative
Assembly- Allegation that 10 votes were cast by imposters
and thus, 10 tendered votes cast under the Rules - Appellant
E declared elected - Election petition filed by respondent before
High Court - Appellant fifed written statement - Later filed
application to summon list of all tendered votes - High Court
rejected the application - On appeal, held: The pleadings in
the election petition related only to 6 tendered votes - There
F was no reference in respect of the remaining 4 tendered votes
either in the election petition or in the written statement filed
by the appellant - In absence of any Recrimination petition,
the appellant could not be permitted to lead evidence on a
fact not in issue - Also, in the application, no reason nor
G justification was given by the appellant for summoning of the
other 4 tendered votes - Therefore, the High Court rightly did
not allow the appellant to lead evidence which was no1 in the
line of the pleadings - Conduct of Election Rules, 1961 -
Rule 42.
H
216
KALYAN SINGH CHOUHAN v. C.P. JOSHI
217
Pleadings - Jurisdiction of the Court to grant relief -
A
Held: A decision of a case cannpt be based on grounds
outside the pleadings of the parties.
Code of Civil Procedure, 1908 - Order XIV, Rule 1Fratning of issues - Object and purpose of - Held: The object.
of framing issues is to ascertain/ shorten the area: of dispute . B
and pinpoint the points required to be determined by the court
- /tis the issues fixed and not the pleadings that guide the
parties in the matter of adducing. evidence - It is neither
desirable nor required for the court to frame an issue not
arising on the pleadings - The Court should not decide a suit C
on a matter/point on which no issue has been framed.
Elections were held to constitute the 13th Legislative
Assembly for the State of Rajasthan. During the process
of polling, there were allegations that in .respect of the
D
constituency in question, at least 10 votes were cast by
imposters and thus, 10 tendered votes were cast under
Rule 42 of the Conduct of Election Rules, 1961. The
appellant was declared elected from the said
constituency by a margin of one vote.
E
The respondent, an unsuccessful candidCJte, filed
election petition before the High Court under Sections 80,
· 81, 100(1 )(d)(iii) and Section 100(1)(d)(iv) of 1951 Act, interalia, alleging: (i) that the name of the appe.llant's wife was
registered at two places in the electoral rolls of the
F
constituency and hence she had cast two votes in the
election; and (ii) that six (6) tendered votes cast in the
election must be counted and the six (6) votes originally
I
pollerl against the tendered votes must be rejected. The
G I
appellar;~ filed written statement contesting the election
petition. Arll'" framing of the issues, the appellant flied an
application to summon inter a.lia the list of all tendered
votes. The High Court rejected the application on the
ground that it was not permissible to summon tendered
H
2.18
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A votes in respect of which none of the parties had taken
the pleadings nor an issue had been framed in respect
of those tendered votes and, thus, it was not permissible
to lead any evidence on the fact which is not in issue;
more so, on the ground of delay, as the application had
B been filed after framing of the issues.
In appeal to this Court, the question which arose for
consideration was whether the result of the election had
been materially affected and, therefore, once the appellant
C raised his statutory right to lead evidence, in order to
prevent miscarriage of justice, it was necessary that all
the tendered votes were summoned and taken into
consideration i.e. be counted.
0
Dismissing the appeal, the Court
HELD: 1. The trial of an election petition is entirely
different from the trial of a civil suit, as in a civil suit trial
commences on framing the issues while trial of an
election petition encompasses all proceedings
E commencing from the filing of the election petition up to
the date of decision. Therefore, the :Jrocedure provided
for the trial of civil suits under CPC is not applicable in
its entirety to the trial of the election petition. For the
purpose of the election petition, the word 'trial' includes
F the entire proceedings commencing from the time of filing
the election petition till the pronouncement of the
judgment. The applicability of the procedure in Election
Tribunal is circumscribed by two riders: firstly, the
procedure prescribed in CPC is applicable only "as
nearly as may be", and secondly, the CPC would give
G way to any provisions of the Act or any rules made
thereunder. Therefore, the procedure prescribed in CPC
applies to election trial with flexibility and only as
guidelines. [Para 10) (230-A-D]
H
Kai/ash v. Nanhku & Ors. AIR 2005 SC 2441; Harcharan
KALYAN SINGH CHOUHAN v. C.P. JOSHI
219
Singh v. S. Mohinder Singh & Ors. AIR 1968 SC 1500; Jyoti
A .
Basu & Ors. v. Debi Ghosal & Ors. AIR 1982 SC 983; Chanda
Singh v. Ch. Shiv Ram Varma & Ors. AIR 1975 SC 403 -
·relied on.
.
~· ~uring the trial of an el7ction petition, it is ~ot , B
perm1ss1ble for the court to permit a party to seek a roving
enquiry. The party must plead the material fact and
adduce evidence to substantiate the same so that the
court may proceed to adjudicate upon that issue. Before
the court permits the rQcounting, the following conditions C
must be satisfied: i) the Court must be satisfied that a
prima facie case is established; ii) the material facts and
full . particulars have been pleaded stating the
irregularities in counting of votes; iii) a roving and fishing
inquiry should not be directed by way of an order to
recount the votes; iv) an opportunity should be given to · D
file objection; and.v) secrecy of the ballot requires to be
guarded. [Para 14] [232-D-G]
Dr. Jagjit Singh v. Giani Kartqr Singh & Ors, AIR 1966
SC 773; Suresh Prasad Yadav v. Jai Prakash Mishra & Ors.
E
·AIR 1975 SC 376; M. Chinnasamy v. K.C. Palanisamy & Ors.
AIR 2004 SC 541; Chandrika Prasad Yadav v. State of Bihar
& Ors. AIR 2004 SC 2036; Tanaji Ramchandra Nimhan v.
Swati Vinayak Nimhan AIR 2006 SC 1218; Gursewak Singh
v. Avtar Singh & Ors. AIR 2006 SC 1791; Baldev Singh v.
F
Shinder Pal Singh & Anr. (2007) 1 SCC 341; Gajanan
Krishnaji Bapat & Anr. v. Dattaji Raghobaji Meghe & Ors. AIR
1995 SC 2284 - relied on.
3. Pleadings and particulars are required to enable
the court to decide the rights of the parties in the trial.
G
Thus, the pleadings are more to help the court in
narrowing the controversy involved and to inform the
parties concerned to the question in issue, so that the
parties may adduce appropriate evidence on the said
H
220
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A issue. It is settled legal proposition that "as a rule relief
not founded on the pleadings should not be granted."
Therefore, a decision of a case cannot be based on
grounds outside the pleadings of the parties. The
pleadings and issues are to ascertain the real dispute
B between the parties to. narrow the area of conflict and to
see just where the two sides differ. [Para 16] [233-D-F]
Sri Mahant Govind Rao v. Sita Ram Kesho (1898) 25
Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa
C Chettiar AIR 1953 SC 235; Raruha Singh v. Achal Singh &
Ors.; AIR 1961 SC 1097; Om Prakash Gupta v. Ranbir 8.
Goyal AIR 2002 SC 665; /shwar Dutt v. Land Acquisition
Collector & Anr. AIR 2005 SC 3165; State of Maharashtra v.
Hindustan Construction Company Ltd. (2010) 4 SCC 518;
Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter
D College & Ors., AIR 1987 SC 1242; Bachhaj Nahar v. Nilima
Manda/ & Ors. AIR 2009 SC 1103; J.K. Iron & Steel Co. Ltd,
Kanpur v. The Iron and Steel Mazdoor Union, Kanpur, AIR
1956 SC 231 - relied on.
E
4.1. It is neither desirable nor required for the court
to frame an issue not arising on the pleadings. The Court
should not decide a suit on a matter/point on which no
issue has been framed. The object of framing issues is
to ascertain/shorten the area of dispute and pinpoint the
F points required to be determined by the court. The issues
are framed so that no party at the trial is taken by surprise.
It is the issues fixed and not the pleadings that guide the
parties in the matter of adducing evidence. [Paras 20, 21]
(235-C-F]
G
Sita Ram v. Radha Bai and Ors. AIR 1968 SC 535;
H
Gappula/ v. Thakurji Shriji Dwarkadheeshji and Anr. AIR 1969
SC 1291; Biswanath Agarwal/a v. Sabitri Bera (2009) 15 SCC
693; Kashi Nath (Dead) through L.Rs. v. Jaganath (2003) 8
sec 740 - relied on.
.KALYAN SINGH CHOUHAN v. C.P. JOSHI
221
Raja Bommadevara Venkata Naiasimha Naidu & Anr.
A
v. Raja Bommadevara Bhashya Karl11 Naidu & Ors. (1902)
29 Ind. App. 76 (PC); Sayad Muhammad. v. Fatteh
Muhammad (1894-95) 22 Ind. App. 4 (PC) and Siddik Mohd.
Shah v. Saran AIR 1930 PC 57 - referred to.
B
4.2 However, there may be an exceptional case
. wherein the parties proceed to trial fully knowing the rival
case and lead all the evidence not only in support of their
contentions but in refutation thereof by the other side. In
such an eventuality, absence of an issue would not be
C
fatal and it would not be permissible for a party to submit
that there has been a mis-trial and the proceedings stood
vitiated. [Para 23] [235-H; 236-A-B] ·
Nagubai Amma/ and Ors. v. B .. Shama Rao & Ors. AIR
1956 SC 593; Nedunuri Kameswaramma v. Sampati Subba
D
Rao AIR 1963 SC 884; Kunju Kesavan v. M.M. Philip & Ors.
AIR 1964 SC 164; Kali Prasad Agarwal/a (dead) by L.Rs. &
Ors. v, Mis. Bharat Coking Coal Ltd. & Ors. AIR 1989 SC
1530; Sayed Akhtar v. Abdul Ahad (2003) (7) SCC 52;
Bhuwan Singh v. Oriental Insurance Co. Ltd. AIR 2009 SC
E
2177 - relied on.
5.1. A party to the election petition must plead the
material fact and substantiate its averment by adducing
sufficient evidence. The court cannot travel beyond the
F
pleadings and the issue cannot be framed unless there
are pleadings to raise the controversy on a particular fact
or law. It is, therefore, not permissible for the court to
allow the party to lead evidence which is not in the line
of the pleadings. Even if the evidence is led that is just
to be ignored as the same cannot be taken into G
consideration. [Para 24] [236-D-E]
5.2. In the case at hand, the election petitioner/
respondent claimed that there was irregularity/illegality in
counting of 6 tendered votes and the case squarely fell
H
222
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A within the ambit of Section 100(1)(d)(iii) of the 1951 Act.
The election petitioner further pleaded that the result of
the election stood materially affected because of improper
reception of the six tendered votes and in absence of any
Recrimination petition in the case (at the instance of
B appellant-returned candidate), the appellant cannot be
permitted to lead evidence on the fact which is not in
issue. It is evident from the pleadings that the case was
limited only to 6 tendered votes and there had been no
pleading in respect of the remaining 4 tendered votes
c either in the election petition or the written statement filed
by the appellant. There is no reference to the other 4
tendered votes either in the election petition or in the
written statement. The said other 4 tendered votes neither
had been relied upon in the reply by the appellant nor had
0 been entered in the list of documents. Also, in the
application in question, the other 4 tendered votes were
stated to be required by the parties to resolve the
controversy without giving any reason or justification for
the same. The facts and circumstances of the case,
therefore, do not warrant review of the order passed by
E the High Court. [Paras 9, 27, 28, 29] [240-E-F; 229-G-H;
241-F-H; 242-A-B]
F
G
H
Dr. Wilfred D'Souza v. Francis Menino Jesus Ferrao AIR
1977 SC 286 - distinguished.
Jabar Singh v. Genda Lal AIR 1964 SC 1200 - followed.
T.A. Ahammed Kabeer v. A.A. Azeez & Ors. AIR 2003
SC 2271 - relied on.
Case Law Reference:
AIR 1977 SC 286
AIR 2005 SC 2441
distinguished Para
4,5, 28
relied on
Para 10
KALYAN SINGH CHOUHAN v. C.P. JOSHI
223
AIR 1968 SC 1500
relied on
Para 11
A
AIR 1982 SC 983
relied on
Para 12
AIR 1975 SC 403
relied on
Para 13
AIR 1966 SC 773
relied· on
Para 14
B
AIR 1975 SC 376
relied on
Para 14
AIR 2004 SC 541
relied on
Para 14
AIR 2004 SC 2036
relied on
Para 14
c
AIR 2006 SC 1218
relied on
Para 14
AIR 2006 SC 1791
relied on
Para 14
(2001) 1 sec 341
relied on
Para 14
AIR 1995 SC 2284
relied on
Para 14
D
(1898) 25 Ind. App. 195
referred to Para 16
AIR 1953 SC 235
relied on
Para 16
AIR 1961 SC 1097
relied on
Pam 16
E
AIR 2002 SC 665
relied on
Para 16
AIR 2005 SC 3165
relied on
Para 16
(201 o) 4 sec 518
relied on
Para 16
F
AIR 1987 SC 1242
relied on
Para 17
AIR 2009 SC 1103
relied on
Para 18
AIR 1956 SC 231
relied on
Para 19
(1902) 29 Ind. App. 76 (PC)
referred to Para 20
G
AIR 1968 SC 535
relied on
Para 20
AIR 1969 SC 1291
relied on
Para 20
H
A
B
c
D
E
224
SUPREME COURT REPORTS
[2011) 2 S.C.R.
(2009) 15 sec 693
(2003) 8 sec 740
relied on
Para 20
relied on
Para 22
AIR 1930 PC 57
referred to Para 22
(1894-95) 22 Ind. App. 4 (PC) referred to Para 21
AIR 1956 SC 593
AIR 1963 SC 884
AIR 1964 SC 164
AIR 1989 SC 1530
(2003) (7) sec 52
AIR 2009 SC 2177
AIR 1964 SC 1200
AIR 2003 SC 2271
relied on
Para 23
relied on
Para 23
relied on
Para 23
relied on
Para 23
relied on
Para 23
relied on
Para 23
followed
Para 25
relied on
Para 26
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 870
of 2011.
From the Judgment & Order dated 24.05.2010 of the High
Court of Judicature for Rajasthan at Jodhpur in I.A. No. 6839
of 2010 in S.B. Election Petition No. 1 of 2009.
F
Ram Jethmalani, U.U. Lalit, Miss P.R. Mala, Pranav Diesh,
Karan Kalia, Samir Ali Khan for the Appellant.
M.R. Calla, Mukul Kumar, V.K. Biju, Pratiksha Sharma,
Milind Kumar for the Respondent.
G
The Judgment of the Court was delivered by
DR. B. S. CHAUHAN, J. 1. Leave granted.
H
2. This appeal has been preferred against the judgment
and order dated 24.5.2010 in S.S. Election Petition No. 1 of
KALYAN SINGH CHOUHAN v. C.P. JOSHI
225
[DR. B.S. CHAUHAN, .J.]
2009 and I.A. No. 6839 of 2010 of the High Court of Judicature
A
' for Rajasthan at Jodhpur. By the impugned judgment an.d order
1 the High Court rejected the application dated 11.5.201 O praying
·1 for the summoning of certain documents on the ground that it
[was not permissible to summon the said documents, i.e., those
' tendered votes in respect of which non~ of the parties h.ad taken
B
the pleadings nor an issue had been framed in respect of those
tendered votes and, thus, it was not permissible to lead any
evidence on the fact which is not in issue. More so, on the
ground of delay, the application had been filed after framing of
the issues.
c
3. FACTS:
(A) A Notification under Section 30 of the Representation
of People Act, 1951 (hereinafter called as the 'Act 1951 ') dated
10.11.2008 was issued by Election Commission for holding
D
elections to constitute 13th Legislative Assembly for the State
. of Rajasthan including the election scheduled for Nathdwara
Legislative Assembly No. 176 (hereinafter called as 'the
constituency'). The appellant as well as the respondent filed
their nominations and were candidates of recognised National
E
Parties. The poll was held on 4.12.2008.
(B). During the process of polling, there had been
allegations/ challenges at various booths that at least 10 votes
alleged to have been cast by imposters and thus, 1 O tendered
votes were cast under Rule 42 of the Conduct of Election Rules,
1961 (hereinafter called as the 'Rules 1961 '). The counting of
votes took place on 8.12.2008 and the appellant contesting on
F
the BJP ticket secured 62216 votes, while Shri C.P. Joshi (INC)
secured 62215 votes. At the request of the election agent, a
recounting took place under Rule 63 of the Rules 1961.
G
However, the result remained the same and, thus, the appellant
was declared duly elected by a margin of one vote.
(C) The respondent filed an election petition on 15.1.2009
being S.B. Election Petition No. 1 of 2009 before the High
H .
226
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A Court of Rajas than under Sections 80, 81, 100(1 )(d)(iii) and
B
c
D
Section 100(1)(d)(iv) of 1951 Act, inter-alia, alleging that:
(i) Smt. Kalpana Kunwar and Smt. Kalpana Singh (wife of
Petitioner) were one and the same person, but her name
was registered at two places in the electoral rolls of the
constituency and hence she had cast two votes in the ·
election;
(ii) Six (6) tendered votes cast in the election must be
counted and the six (6) votes originally polled against the
tendered votes must be rejected.
(D) The appellant filed the written statement contesting the
said election petition and the trial is in progress in the High
Court.
Both the parties have filed several applications before the
High Court during the trial of the election petition and the
appellant has approached this Court time and again as is
evident from the orders dated 16.12.2009 passed in S.L.P(C)
No. 33725 of 2009; 1.4.2010 in S.L.P.(C) No. 8212 of 2010;
E and 23.4.2010 in S.L.P(C) No. 10633 of 2010. Appellant filed
an application under Order VI Rule 16 read with Section 151
of the Code of Civil Procedure 1908 (hereinafter called as the
'CPC') and Section 87 of the Act 1951 for the deletion of
paragraph Nos. 13 to 19 of the election petition. The said
F application was dismissed by the High Court vide order dated
19.11.2009. The appellant preferred S.L.P (C) No. 34688 of
2009 which was dismissed by this Court vide order dated
16.12.2009.
G
(E) The appellant preferred an application being I.A.
No.6839 of 201 O dated 11.5.201 O to summon the marked
copies of the electoral rolls; register of voters in Form No.17A; and list of tendered votes in Form No.17-B relating to the
polling station nos.68, 124 and 192 of the constituency.
H However, the said application has been dismissed by the High
KALYAN SINGH CHOUHAN v. C.P. JOSHI
227
[OR. S.S. CHAUHAN, J.]
Court vide impugned judgment and order dated 24.5.2010.
A
Hence, this appeal.
·
4. Shri Ram Jethmalani, learned senior advocate
appearing for the appellant, has submitted that in order to do
complete justice, all 10 tendered votes have to be recounted.
B
In view of the fact that there was margin of only one vote, the
law requires that all the tendered votes be counted. In order to
fortify his submission, Shri Jethmalani placed reliance on the
judgment of this Court in Dr. Wilfred D'Souza v. Francis
Menino Jesus Ferrao, AIR 1977 SC 286, wherein it had been
directed that all the tendered votes would be summoned and
C
taken into consideration, i.e., that all the tendered votes have
to be counted. The material issue in all the cases falling under
Clause {d) of Section 100 of the Act 1951 remains whether the
result of the election has been materially affected and,
therefore, once the appellant raised his statutory right to lead
D
evidence, in order to prevent the miscarriage of justice, it is
necessary that all the tendered votes be counted. Thus, the
impugned order is liable to be set aside.
5. On the other hand, Shri M:R. Calla, learned senior
E
advocate appearing for the respondent, has vehemently
opposed the ai'.'~eal contending that the principles of equity and
concept of substantial justice cannot be pressed into service
in the present case. The election petition is to be adjudicated ·
giving strict adherence to the statutory provisions without being
F
influenced by any other concepts. The Court cannot permit a
party to lead evidence unless an issue has been framed on the
controversy and an issue cannot be framed unless there are
actual pleadings in respect thereof. The pleadings in the instant
case related only to the 6 tendered votes and an issue has been
framed only to that extent. Therefore, it is not permissible to take
G
into consideration all 10 tendered votes. The judgment so
heavily relied upon by Shri Ram Jethmalani, learned senior
counsel, in Wilfred D'Souza's case {Supra) is quite
distinguishable as Recrimination Petition under Section 97 of H
228
SUPREME COURT REPORTS
(2011) 2 S.C.R.
A Act 1951 had been filed in that case. Thus, the ratio of the said
judgment has no bearing in the case at hand. The appeal lacks
merit and is liable to be dismissed.
6. we· ha11.: considered the rival submissions made by
8 learned counsel for the parties and perused the record.
The relevant pleadings, taken in the election petition, in this
regard, are in paragraph Nos. 13 to 19 of the election petition
which cumulatively specifically provide:
c
The names of Smt. Kamla W/o Shri Champa Lal Rio Near
Charbhuja Temple, Village Gudla, Tehsil Nathdwara, District
Rajasmand appeared at serial number 311 in Part 27; Shri
Mana S/o Shri Roda Rio Guda, Village Serna, Tehsil
Nathdwara, District Rajsamand, appeared at serial number
D 1122 in Part 61; Ms. Bargat Banu D/o Shri Gani Rio Talesara
Bhawan, Ward No. 19, Nathdwara, District Rajsamand
appeared at serial number 146 in Part 73; Shri Dalu S/o Shri
Navia Rio Village Soi Ki Bhagai, Post Khamnor, Tehsil
Nathdwara, District Rajsamand appeared at serial no. 714 in
Part 117; Smt. Nanu Wlo Shri Peer Mohammed Rio Neelgar
E Basti, Village Railmagra, Tehsil Railmagra, District Rajsamand
appeared at serial number 866 in Part No. 180; and Shri
Shamboo Lal S/o Shri Tulsi Ram Rio Kalbelia Basti, Village
Banerdia, Tehsil Railmagra, District Rajsamand appeared at
serial number 502 in Part 199 of the electoral roll of the
F constituency. When the aforesaid six voters reached the
concerned polling station to cast their respective votes, they
found that some imposters had a'.ready cast their votes by
electronic voting machine. They completed the legal formalities
by filling up Form 17-8 and were allowed to have tendered
G ballot papers and, thereafter, they cast their votes.
7. It was further pleaded in paragraph 19 of the election
petition that the aforesaid 6 tendered votes have been cast by
genuine voters and must be counted. In paragraph 20, it has
H been submitted that because of the non-counting of the 6
KALYAN SINGH CHOUHAN v. C.P. JOSHI
229
[DR. B.S. CHAUHAN, J.]
ltendered votes, the result of the election stood. materially A
I affected on account of improper reception of those votes. Thus,
the same was liable to be rejected being not cast by· genuine.,,
voters but by imposters.
.. .•
8. In the written statement, the appellant has raised his
8
,
doubts in respect of the aforesaid 6 tendered votes but has not
taken any specific pleadings in respect of remaining 4 tendered
votes. In paragraph 20 of the written statement, it has been
denied that the result of the election stood materially affected
on account of improper reception of those 6 tendered votes.
In fact, the pleadings by both the parties in the election
petition as well as in the written statement make reference only
to 6 tendered votes and not to 10 tendered votes.
c
9. In view of the pleadings taken by the parties, the High
DI
Court framed only two issues:
(i)
Whether Smt. Kalpana Kunwar, wife of the
respondent, is also known as Kalpana Singh and
whether she cast her vote at two Polling Stations
Viz. Polling Station No. 39 and Polling Station No.
E
40 of the Nathdwara Legislative Assembly
Constituency No. 176 and if so, what is the effect
on the election of the respondent?
(ii)
Whether the six votes mentioned in Para Nos. 13
F
to 18 of the election petition were initially improperly
received and should be removed from the valid ·
votes and in their place tendered votes should be
taken into account?
Therefore, it is evident from the pleadings that the case G
has been limited only to 6 tendered votes and there had been
no pleading in respect of the remaining 4 tendered votes either
in the election petition or the written statement filed by the
appellant.
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230
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A
10. In Kai/ash v. Nanhku & Ors., AIR 2005 SC 2441, this
Court held that the trial of an election petition is entirely different
from the trial of a civil suit, as in a civil suit trial commences on
framing the issues while trial of an election petition
encompasses all proceedings commencing from the filing of
B the election petition up to the date of decision. Therefore, the
procedure provided for the trial of civil suits under CPC is not
applicable in its entirety to the trial of the election petition. For
the purpose of the election petition, the word 'trial' includes the
entire proceedings commencing from the time of filing the
c election petition till the pronouncement of the judgment. The
applicability of the procedure in Election Tribunal is
circumscribed by two riders : firstly, the procedure prescribed
in CPC is applicable only "as nearly as may be", and secondly,
the CPC would give way to any provisions of the Act or any
0 rules made thereunder. Therefore, the procedure prescribed in
CPC applies to election trial with flexibility and only as
guidelines.
1 ·1. In Harcharan Singh v. S. Mohinder Singh & Ors., AIR
1968 SC 1500, this Court considered the application of
E doctrine of equity and substantial justice etc. in election law and
came to the conclusion as under :-
F
G
"The statutory requirements of election Jaw must be
strictly observed. An election dispute is a statutory
proceeding unknown to the common law; it is not an
action at law or in equity. . ..... The primary purpose of
t/1e diverse provisions of the election law which may
appear to be technical is to safeguard the purity of the
election process, and the Courts will not ordinarily
minimise their operation." (Emphasis added)
12. Similarly in Jyoti Basu & Ors. v. Debi Ghosa/ & Ors.,
AIR 1982 SC 983; this Court held as under:-
"A right to elect, fundamental though it is to democracy, is,
H
anomalously enough, neither a fundamental right nor a
/
KALYAN SINGH CHOUHAN v. C.P. JOSHI
231
[DR. B.S. CHAUHAN, J.]
Common Law Right. It is pure and simple, a statutory right.
A
So is the right to be elected. So is the right to dispute an
election. Outside of statute, there is no right to elect, no
right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to
statutory limitation. An election petition is not an action at . ·B
Common Law, nor in equity. It is a statutory proceeding to
which neither ttie common law nor the principles of equity
apply but only those rules which the statute makes and
applies. It is a special jurisdiction and a special jurisdiction
has always to be exercised in accordance with the statute c
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,
D
is what the· statute lays down. In the trial of election
disputes, Court is put in a straight jacket. ...... We have
noticed the necessity to rid ourselves of notions based
on Common Law or Equity. We see that we must seek
an answer to the question within the four corners of the
E
statute."
(Emphasis added)
13. In Chanda Singh v. Ch. Shiv Ram Varma & Ors., AIR
1975 SC 403, this Court held as under:-
F
"A democracy runs smooth on the wheels of periodic
and pure elections. The verdict at the polls announced
by the Returning Officers lead to the formation of
gu.-arnments. A certain amount of stability in the G .
electo,·11 process is ess.ential. If the counting of the
ballots an, .. iterfered with by too frequent and flippantrecounts by courts a new threat to the certainty of the poll
system is introduced through the judicial instrument.
Moreover, the secrecy of the ballot which is sacrosanct
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232
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A
becomes exposed to deleterious prying, if re-count of
votes is made easy. The general reaction, if there is
judicial relaxation on this issue, may well be a fresh
pressure on luckless candidates, particularly when the
winning margin is only of a few hundred votes as here,
B
to ask for a re-count Micawberishly looking for numerical
good fortune or windfall of chance discovery of illegal
rejection or reception of ballots. This may tend to a
dangerous disorientation which invades the democratic
order by injecting widespread scope for reopening of
c
declared returns, unless the court restricts recourse to recount to cases of genuine apprehension of miscount or
illegality or other compulsions of justice necessitati11g
such a drastic step."
14. During the trial of an election petition, it is not
D permissible for the court to permit a party to seek a roving
enquiry. The party must plead the material fact and adduce
evidence to substantiate the same so that the court may
proceed to adjudicate upon that issue. Before the court permits
E
F
G
the recounting, the following conditions must be satisfied:
(i) The Court must be satisfied that a prima facie case is
established;
(ii) The material facts and full particulars have been
pleaded stating the irregularities in counting of votes;
(iii) A roving and fishing inquiry should not be directed by
way of an order to recount the votes;
(iv) An opportunity should be given to file objection; and
(v) Secrecy of the ballot requires to be guarded.
(Vide : Dr. Jagjit Singh v. Giani Kartar Singh & Ors., AIR 1966
SC 773; Suresh Prasad Yadav v. Jai Prakash Mishra & Ors.,
AIR 1975 SC 376; M. Chinnasamy v. K.C. Palanisamy & Ors.,
H AIR 2004 SC 541; Chandrika Prasad Yadav v. State of Bihar
KALYAN SINGH CHOUHAN v. C.P. JOSHI
233
[DR. B.S. CHAUHAN, J.]
& Ors., AIR 2004 SC 2036; Tanaji Ramchandra Nimhan v.
A
Swati Vinayak Nimhan, AIR 2006 SC 1218; Gursewak Singh
v. Avtar Singh & Ors., AIR 2006 SC 1791; and Baldev Singh
v. Shinder Pal Singh & Anr., (2007) 1 SCC 341).
15. In Gajanan Krishnaji Bapat & Anr. v. Dattaji
8
Raghobaji Meghe & Ors., AIR 1995 SC 2284; this Court held
that the court cannot consider any fact which is beyond the
pleadings of the parties. The parties have to take proper
pleadings and establish by adducing evidence that by a
particular irregularity/illegality the result of the election has been
C
materially affected.
16. Pleadings and particulars are required to enable the
court to decide the rights of the parties in the trial. Thus, the
pleadings are more to help the court in narrowing the
controversy involved and to inform the parties concerned to the
D
question in issue, so that the parties may adduce appropriate
evidence on the said issue. It is settled legal proposition that
"as a rule relief not founded on the pleadings should not be
·granted." Therefore, a decision of a case cannot be based on
grounds outside the pleadings of the parties. The pleadings
E
and issues are to ascertain the real dispute between the
parties to narrow the area of conflict and to see just where the
two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram
Kesho, (1898) 25 Ind. App. 195; Mis. Trojan & Co. v. RM. N.N.
Nagappa Chettiar, AIR 1953 SC 235; Raruha Singh v. Achal
F
Singh & Ors.; AIR 1961 SC 1097; Om Prakash Gupta v.
Ranbir B. Goyal, AIR 2002 SC 665; /shwar Dutt v. Land
Acquisition Collector & Anr., AIR 2005 SC 3165; and State
of Maharashtra v. Hindustan Construction Company Ltd.,
(2010) ~ sec 518.)
G
17. This '"'"urt in Ram Sarup Gupta (dead) by L.Rs. v.
Bishun Narain Inter Co/legrJ & Ors., AIR 1987 SC 1242 held
as under:
"It is well settled that in the absence ~f pleading, evidence,
H
234
SUPREME COURT REPORTS
[2011] 2 S.C.R. .
A
if any, produced by the parties cannot be considered. It is
also equally settled that no party should be permitted to
travel beyond its pleading and that all necessary and
material facts should be pleaded by the party in support
of the case set up by it. The object and purpose of pleading
B
is to enable the adversary party to know the case it has to
meet. ....... In such a case it is the duty of the court to
ascertain the substance of the pleadings to determine the
question."
C
18. This Court in Bachhaj Nahar v. Ni/ima Manda/ & Ors.,
AIR 2009 SC 1103, held as under:
D
E
F
G
H
'The object and purpose of pleadings and issues is
to ensure that the litigants come to trial with all issues
clearly defined and to prevent cases being expandeu 1.1.-
grounds being shifted during trial. Its object is also to
ensure that each side is fully alive to the questions that are
likely to be raised or considered so that they may have an
opportunity of placing the relevant evidence appropriate to
the issues before the court for its consideration.
The object of issues is to identify from the pleadings
the questions or points required to be decided by the courts
so as to enable parties to let in evidence thereon. When
the facts necessary to make out a particular claim, or to
seek a particular relief, are not found in the plaint, the court
cannot focus the attention of the parties, or its own attention
on that claim or relief, by framing an appropriate
issue ........ Thus it is said that no amount of evidence, on
a plea that is not put forward in the pleadings, can be
looked into to grant any relief.
The jurisdiction to grant relief in a civil suit necessarily
depends on the pleadings, prayer, court fee paid, evidence
let in, etc."
19. In J.K. Iron & Steel Co. Ltd, Kanpur v. The Iron and
KALYAN SINGH CHOUHAN v. C.P. JOSHI
235
[DR. B.S. CHAUHAN, J.]
Steel Mazdoor Union, Kanpur, AIR 1956 SC 231, this Court A
observed:
"It is not open to the Tribunals to fly off at a tangent
and, disregarding the pleadings, to reach any conclusions
that they think are just and proper."
20. Order XIV Rule 1 CPC reads:
"Issues arise when a material, proposition of fact or law is
affirmed by the party and denied by the other."
Therefore, it is neither desirable nor required for the court
B
c
to frame an issue not arising on the pleadings. The Court
should not decide a suit on a matter/point on which no issue
has been framed. (Vide: Raja Bommadevara Venkata
Narasimha Naidu & Anr. v. Raja Bommadevara Bhashya
Karlu Naidu & Ors., (1902) 29 Ind. App. 76 (PC); Sita Ram v.
D
Radha Bai & Ors., AIR 1968 SC 535; Gappu/al v. Thakurji
Shriji Dwarkadheeshji & Anr., AIR 1969 SC 1291; and
Biswanath Agarwal/a v. Sabitri Bera, (2009) 15 SCC 693).
21. The object of framing issues is to ascertain/shorten the
E
area of dispute and pinpoint the points required to be
determined by the court. The issues are framed so that no party
at the trial is taken by surprise. It is the issues fixed and not
the pleadings that guide the parties in the matter of adducing
evidence. [Vide : Sayad Muhammad. v. Fatteh Muhammad
F
(1894-95) 22 Ind. App. 4 (PC).]
22. In Kashi Nath (Dead) through L.Rs. v. Jaganath,
(2003) 8 SCC 740, this Court held that wtiere the evidence is
not in line with the pleadings and is at variance with it, the said G
evidence cannot be looked into or relieq upon. While deciding
the said case, this Court placed a very heavy reliance on the
judgment of the Privy Council in Siddik Mohd. Shah v. Saran,
AIR 1930 PC 57.
23. There may be an exceptional case wherein the parties
H
236
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A proceed to trial fully knowing the rival case and lead all the
evidence not only in support of their contentions but in refutation
thereof by the other side. In such an eventuality, absence of an
issue would not be fatal and it would not be permissible for a
party to submit that there has been a mis-trial and the
B proceedings stood vitiated. (vide: Nagubai Ammal & Ors. v.
B. Shama Rao & Ors., AIR 1956 SC 593; Nedunuri
Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884;
Kunju Kesavan v. M.M. Philip & Ors., AIR 1964 SC 164; Kali
Prasad Agarwal/a (dead) by L.Rs. & Ors. v. Mis. Bharat
c Coking Coal Ltd. & Ors., AIR 1989 SC 1530; Sayed Akhtar
v. Abdul Ahad, (2003) (7) SCC 52; and Bhuwan Singh v.
Oriental Insurance Co. Ltd., AIR 2009 SC 2177).
24. Therefore, in view of the above, it is evident that the
party to the election petition must plead the material fact and
D substantiate its averment by adducing sufficient evidence. The
court cannot travel beyond the pleadings and the issue cannot
be framed unless there are pleadings to raise the controversy
on a particular fact or law. It is, therefore, not permissible for
the court to allow the party to lead evidence which is not in the
E line of the pleadings. Even if the evidence is led that is just to
be ignored as the same cannot be taken into consideration.
25. In Jabar Singh v. Genda Lal, AIR 1964 SC 1200, a
Constitution Bench of this court while dealing with a similar
F issue observed as under:
"It would be convenient if we take a simple case of an
election petition whether the petitioner makes only one
claim and that is that the election of the returned
candidate is void. This claim can be made under Section
G
100. Section 100(1)(a),(b) and (c) refer to three distinct
grounds on which the election of the returned candidate
can be challenged. We are not concerned with any of these
grounds. In dealing with the challenge to the validity of the
election of the returned candidate under Section 100(1)(d),
H
KALYAN SINGH CHOUHAN v. C.P. JOSHI
237
[DR. B.S. CHAUHAN, J.]
it would be noticed that ~hat the election petitioner has to · A
' prove is not only the existence of one or the. other of the
grounds specified in clauses (i) to (iv) of Section 100(1 )(d),
· b~t it has also to establish that as a result ·of the existence
. of the said ground the result of the election insofar as. it
concerns a returned ciandidate has been materially
B
affected. It is thus obvious that what the Tribuna/has to
find is whether or not the election insofar as it .concerns
the returned candidate· has been materially affected, and
that means ~hat the only point which the Tribunal has to
decide is has the election of the returned candidate been c
materially affected? And no other enquiry is legitimate
or permissible in such a case. This requirement of
Section 100(1)(d) necessarily imports limitations on the
scope of the enquiry. Confining ourselves to clause (iii) of
Section 100(1)(d), what the Tribunal has to consider is . 0
whether there has been an improper reception of votes
in favour of the returned candidate. It may also enquire
whether there has been a refusal or rejection of any vote
in regard to any other candidate or whether there has been· ·
a reception of any vote which is void and this can only be
E
the reception of a void vote in favour of the returned
candidate. In other words, the scope of the enquiry in a
case falling under Section 100(1)(d)(iii) is to determine
whether any votes have been improperly cast in favour
of the returned candidate, or any votes have been
improperly refused or rejected in regard to any other
F
candidate. These are the only two matters which would be
relevant in deciding whether the election of the returned
candidate has been materially affected or not. At this
enquiry, the onus is on the petitioner to show that by reason
of the infirmities specified in Section 100(1 )(d)(iii), the
G
result of the returned candidate's election has been
materially affected, and that, incidentally, helps to
determine the scope of the enquiry.