Shri Ram Autar Singh Bhadauria Vs. Chaudhari Ram Gopal Singh and ors. - Court Judgment

Excerpt:
.....from liability as surety on the same grounds. the trial court, the first appellate court and the high court held that the suit was barred by res judicata in view of the judgment of the high court on the writ petition. in appeal to the supreme court, held (per sarkar, raghubar dayal, rajagopala ayyangar and mudholkar jj.) : on general principles of res judicata, the decision of the high court on a writ petition under art. 226 of the constitution, on the merits, on a matter, after full contest, will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter. [574 e-f] the provisions of s. 11, civil procedure code, 1908, are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same..........considered would be, (ii) whether such supply would answer the legal requirement of 'instrument' supplied for the purpose' in rule 56(2)(b). if both these issues (i) and (ii) are answered in the positive, then and then only he may proceed to inspection and recount of these 41 votes mentioned in the petition. similarly, after considering the legal questions indicated above, he may order recount of the 9 votes alleged to have counterfoils attached thereto. there appears to be no justification for ordering a general inspection of the ballots on the facts of this case.2. the learned judge shall proceed with the trial of the election petition in the light of what has been said above. costs to abide the event in the high court.

Judgment:
ORDER

V.R. Krishna Iyer. J.

1. We allow the appeal and set aside the order of the High Court for general scrutiny and recount of the ballot papers. However, the High Court will have to determine, inter alia, (i) whether the instrument which was used for making the 41 votes (referred to in the election petition) was supplied to the voters by the Presiding Officer or any other member of this Polling Staff. If on evidence adduced, the learned Judge finds this issue in the affirmative, the further questions to be considered would be, (ii) whether such supply would answer the legal requirement of 'instrument' supplied for the purpose' in Rule 56(2)(b). If both these Issues (i) and (ii) are answered in the positive, then and then only he may proceed to inspection and recount of these 41 votes mentioned in the petition. Similarly, after considering the legal questions indicated above, he may order recount of the 9 votes alleged to have counterfoils attached thereto. There appears to be no justification for ordering a general inspection of the ballots on the facts of this case.

2. The learned Judge shall proceed with the trial of the election petition in the light of what has been said above. Costs to abide the event in the High Court.