Mubarak Master Vs. Hansraj Tanwar and ors. - Court Judgment

Excerpt:
election - recounting - production of evidence - petitioner and respondents contested election - petitioner declared as returned candidate - respondent filed application for recounting of votes before returning officer - application rejected - respondent filed election petition before district judge - petition allowed and re-counting directed - petitioner filed revision before single bench - revision dismissed - hence, present petition - held, from facts it established that recounting of votes on ground of irregularities ordered during pendency of proceedings wherein evidences of respondent recorded and date was fixed for evidence of petitioner - however, such course was not available to the court below and only after recording the entire evidence, the court ought to consider the application for recounting on merits - without following proper course, court below had deprived petitioner from leading his evidence which is unsustainable - thus, order passed by trial court not sustainable under law and set aside - petition allowed and matter remanded back for reconsider evidence of petitioner - - the state of bihar, (1962) 2 scr 276 =(air 1961 sc 1708) it was said that save in exceptional and special circumstances this court would not exercise its power under article 186 in such a way as to by-pass the high court and ignore the latter's decision which had become final and binding by entertaining an appeal directly from orders of a tribunal. the demand of a defeated candidate for recount of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for the recount, no tribunal or court would be justified in directing the recount. (3) the court must be prima facie satisfied on the materials produced before the court regarding the truth of the allegations made for a recount; it is only when the high court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that recount can be ordered.orderk.k. lahoti, j.1. this petition is directed against the order (annexure p-l), dated 10-5-2001 by first additional district judge, shahdol in case no. 3/2000 (election petition) (hansraj tanwar v. mubarak master and ors.) by which the learned second additional district judge has directed to hold recounting of ballots for the election of president, dhanpuri nagar palika parishad, held on 2242-99.2. short facts of the case are that the petitioner and respondent nos. 1 to 7 contested the election of president of nagar palik parishad, dhanpuri in which petitioner was declared as a returned candidate. the polling was held on 22-12-99 and counting on 27-12-1999. respondent no. 1 hansraj tanwar filed an application immediately after counting, praying for recounting on various grounds. the application was rejected by the returning officer vide order (annexure p-2), dated 27-12-1999 on the ground that during counting no such objections were raised nor it was specified on which counting table the counting was not done properly or the counting supervisor and counting assistant have favoured the petitioner or interpolation in the tabulation sheet was made. thereafter petitioner was declared as returned candidate which has been challenged by respondent no. 1 by filing petition under section 20 of madhya pradesh municipalities act, 1961 before the district judge, shahdol as election petition no. 3/2000. it was subsequently transferred to second additional district judge, shahdol for the trial. the election petition was contested by the petitioner. respondent nos. 2 to 7 remained absent/in the trial, respondent no. 1 got himself and witness, govind prasad tiwari examined as p.w. 2 and the case was fixed for 2-5-2001. on 2-5-2001, respondent no. 1 moved an application (annexure p-4) under section 151 of the code of civil procedure for recounting. the court vide order dated 10-5-2001 (annexure p-1) allowed the application for recounting. this order was challenged by the petitioner by filing revision under section 26 of the m.p. municipalities act, 1961 before the high court as civil revision no. 872/2001. this revision was contested by the parties and vide order dated 4-8-2003 (annexure p-5) [2003(4) m.p.h.t. 238], the learned judge held that the impugned order is an interlocutory order, against which no revision lies under section 26 of the act, and the revision was dismissed as not maintainable. thereafter, petitioner filed this petition on following grounds :--(i) that the court below has not allowed opportunity to thepetitioner to adduce the evidence while respondent no. 1 was allowed such opportunity;(ii) that before recording evidence of both the parties the court below erred in allowing the application. this prayer ought to have been considered by the court only after recording evidence in the case;(iii) that the court below ought not to have allowed the recounting because it will affect the secrecy of ballot paper and such order could not be passed lightly as a matter of course. the recounting could only be ordered in the rarest of the rare cases on cogent reasons.3. respondent no. 1 contested the matter on merits and also raised a preliminary objection that this petition is not maintainable. as the petitioner contested the revision before the high court on merits and the order passed by the court below has merged in the order passed by the high court, such order can not be assailed in the writ jurisdiction. there are justified ground for recounting of the votes as stated in para 5 of the return. in nutshell contention of the respondent is that there was manipulation in the counting, and in the tabulation sheets, which shows that in the counting and tabulation serious irregularities were committed by the officers and the court below considering all these facts has rightly directly recounting in the matter. there is difference of only 59 votes between petitioner and respondent no. 1. the petitioner secured 6001 and respondent no. 1 secured 5952 votes. the incidences which have been quoted in para 5 of the return are as under:--(a) in ward no. 1 shri abdul sattar (s. no. 2) has secured 08 votes in polling booth no. 1. whereas in compilation sheet the number of votes mentioned against his name are 09.(b) in ward no. 6 shri subhash chandra (s. no. 3) secured only 04 votes in polling booth no. 11 and 01 vote in polling booth no. 12. thus he secured only 5 votes in both the polling booths. however, in the compilation sheet he has shown to have secured 46 votes from polling booth no. 12. how the figure of 01 votes became 46 votes is a serious matter.(c) in ward no. 14 polling both no. 24 shri albella secured only 01 vote but the compilation sheet mentioned 02 votes. similarly in ward no. 22 polling booth no. 38 he secured only 03 votes however in the final compilation sheet it is mentioned 04 votes.(d) similar, in the case of shri motilal, in ward no. 9 polling booth no. 17 he secured only 14 votes but in the final result sheet it is mentioned 15 votes.(e) in ward no. 14 polling booth no. 24 shri abdul sattar secured55 votes but in the final compilation sheet it is mentioned 56 votes.(f) the applicant, mubarak master secured 209 votes in pollingbooth no. 28 (ward no. 16) but in the compilation sheet it ismentioned 210 votes. in paras 6 and 7 of the return following allegations are made :--'6. that as per final result sheet indicating the number of candidates and polling booth numbers of ward no. 6 the names of 8 candidates are enumerated in column no. 2 while in column nos. 4 and 5 the valid votes polled by each candidates are mentioned against the names of each candidates. in both these columns the total entries are 8-8 whereas in the column meant for 'grant total' of the votes secured by each candidates are 9 (nine). figure 50 votes is not the grand total of votes polled by any candidate but has been surreptitiously interleneated just make the total number of votes polled as 753. the figure 50 represents bogus votes not counted in any one's favour.7. that, a bare reading of the chart prepared wardwise and the final compilation sheet there is a difference of number of votes secured by the respective candidates for which no further evidence is necessary. it is on account of this reason the learned iind additional district judge has directed recount of the votes. the order is within the jurisdiction of the learned judge and, therefore, there appears to be no illegality in the impugned order. the petition is thus devoid of substance.'4. the learned counsel for respondent no. 1 submitted that in view of the settled law by the apex court in shankar ramchandra abhyankar v. krishnaji dattatraya bapat, air 1970 sc 1, this petition is not maintainable and may be dismissed. on merits also, he has placed reliance on supreme court's judgments in mahendra pal v. ram dass malanger and ors., (2000) 1 scc 261; t.a. ahammed kabeer v. a.a. azeez and ors., (2003) 5 scc 650 and jibontara ghatowar v. sarbananda sonowal and ors., (2003) 6 scc 452, and contended that the order passed by the court below is just and proper and need not be interfered by this court.5. the learned counsel for petitioner has placed reliance to various judgments of the apex court and this court and contended that without recording the evidence, order of recounting is without jurisdiction. he has placed reliance to the following apex court's judgments :--(1) bhabhi v. sheo govind, air 1975 sc 2117;(2) had ram v. him singh, air 1984 sc 396;(3) p.k.k. shamsudeen v. k.k.m. mapillai, air 1989 sc 640;(4) satyanarayan v. uday kumar, 1992 air scw 3449;(5) m.r. gopal krishn v. thachady, 1995 air scw 156;(6) sadhna lodh v. national insurance company, air 2003 sc 1561;(7) surya devi v. ramchander, air 2003 sc 3044.; and the judgment of this court in,(1) gayotri v. alka, 1997 (ii) mpwn 98(2) kailash v. narayan, 1999 (1) jlj 342.6. so far as preliminary objection raised by the respondent no. 1 is concerned, the learned counsel for petitioner submits that the revision was dismissed as not maintainable and in fact, the high court has not exercised its jurisdiction in revision and the revision was dismissed as it did not lie without considering the case on merits. in the circumstances, the only remedy available to the petitioner is by invoking the jurisdiction of the high court under article 227 of the constitution and this petition may be entertained and case may be decided on merits.7. to consider the contention of the parties firstly preliminary objection may be considered.8. petitioner before filing this petition filed a revision under section 26 of the madhya pradesh municipalities act, 1961, challenging the impugned order. the matter was argued by the parties on preliminary objection and on merits also. the high court in order (annexure p-5), dated 4-8-2003 considered only preliminary objections and dismissed the revision as not maintainable. for ready reference, the relevant part of the order dated 4-8-2003 are quoted herein as under :--'4. besides the rival contention of the parties aforesaid, it has been contended that against the impugned order dated 10-5-2001 directing recounting of votes revision does not lie. learned counsel for applicant has referred to the reliefs claimed by non-applicant in petition (annexure a-7) and stated that relief of recounting has been prayed in the petition (annexure a-7), therefore, the order impugned directing recounting of votes must be treated as final order. recounting of votes can not be a final relief under section 24 of the act. in petition (annexure a-7) seeking relief of recounting of votes, it has been prayed that election of the returned candidates- applicant be quashed and the non-applicant-hansraj be declared as an elected. therefore, the main relief of declaration flows from the request of recounting. final order means the formal expression of an adjudication which so far as regard the court expressing it, conclusively determines the right of the parties with regard to or any other matter in controversy in the suit. therefore, the order impugned directing recounting of votes, can not be termed as a final order. it is an interlocutory order allowing application under section 151, cpc for recounting in furtherance of seeking declaration as prayed in petition (annexure a-7).5. section 23 of the act provides procedure to be followed in disposal of election petition. an election petition shall be enquired into and disposed of according to such summary procedure as may be prescribed by rules made under the act. section 26 of the act is to the effect that no appeal shall lie against the decision of the judge on the petition. however, any person aggrieved by the decision of the judge on the petition, within thirty days from the date of such decision apply to the high court for revision on any of the grounds enumerated. thus, as against the decision on the petition alone, the revision would lie under section 26. m.p. municipalities (election petitioner) rules, 1962 were framed to regular the proceedings of election petition. rule 19 reads under :--19. revision.-- (1) no petition by way of revision shall lie against any interlocutory order passed by the judge.6. no petition by way of revision shall lie against the interlocutory order passed by judge. the impugned order dated 10-5-2001 being an interlocutory order in the main petition under section 26 of the act, revision would not lie.7. consequently, revision fails and is dismissed. no order as to cost.'8. from the perusal of the aforesaid order, it is apparent that only preliminary objection was considered by the high court and the revision was dismissed on the ground that the order dated 10-5-2001 being an interlocutory order in the main petition, under section 26 of the act, revision would not lie. the merits of the case were not considered in the aforesaid revision. the apex court in shankar ramchandra abhyankar (supra) considering the fact that where revisional jurisdiction being invoked against the order of the appellate court and the high court dismisses the revision, after hearing both the parties, the order of the appellate court merged with the order in revision, and, thereafter, the appellate order can not be challenged or attacked by another set of proceedings in the high court under article 226 or 227 of the constitution. the principle of merger of orders of inferior courts would not become affected or inapplicable by making any distinction between a petition for revision and an appeal. the apex court held thus:--'7. it may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us. in u.j.s. chopra v. state of bombay, air 1955 sc 633 the principle of merger was considered with reference to section 439 of the criminal procedure code which confers revisional jurisdiction on the high court. in the majority judgment it was held, inter alia, that a judgment pronounced by the high court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the lower court thus constituting the judgment of the high court the only final judgment to be executed in accordance with law by the court below. in chandi prasad chokhani v. the state of bihar, (1962) 2 scr 276 = (air 1961 sc 1708) it was said that save in exceptional and special circumstances this court would not exercise its power under article 186 in such a way as to by-pass the high court and ignore the latter's decision which had become final and binding by entertaining an appeal directly from orders of a tribunal. such exercise of power would be particularly inadvisable in a case where the result might lead to a conflict of decisions of two courts of competent jurisdiction. in our opinion the course which was followed by the high court, in the present case, is certainly one which leads to a conflict of decisions of the same court.8. even on the assumption that the order of the appellate court had not merged in the order of the single judge who had disposed of the revision petition we are of the view that a writ petition ought not to have been entertained by the high court when the respondent had already chosen the remedy under section 115 of the code of civil procedure. if there are two modes of invoking the jurisdiction of the high court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. the refusal to grant relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own decisions.'9. in view of the law laid down by the apex court that in the majority judgment, it was held, inter alia, that a judgment pronounced by the high court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the lower court thus constituting the judgment of the high court the only final judgment to be executed in accordance with law by the court below. the apex court held that a writ petition ought not to have been entertained by the high court when the respondent had already chosen the remedy under section 115 of the code of civil procedure. if there are two modes of invoking the jurisdiction of the high court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. in the present case, two modes of invoking the jurisdiction of the high court were not available to the petitioner. the revisional jurisdiction under section 26 of the m.p. municipalities act can not be revoked as no petition by way of revision shall lie against any interlocutory order passed by the election judge. the aforesaid bar is created under rule 19 of m.p. municipalities (election petition) rules, 1962. while under section 26 of m.p. municipalities act, 1961, any person aggrieved by the decision of the judge on the petition may, within thirty days from the date of such decision, apply to the high court for revision on the grounds enumerated in sub-section (2) of section 26 of the act. the high court in civil revision no. 872/2001 considering aforesaid legal position found that the revision was not maintainable. in these circumstances, it can not be said that there were two modes of invoking the jurisdiction of the high court and one of those modes has been chosen and exhausted by the petitioner in view of the order dated 4-8-2003 passed by the high court in civil revision. the mode of challenging the impugned order by filing revision petition was not available to the petitioner and only recourse available to the petitioner is invoking the jurisdiction of the high court under articles 226 and 227 of the constitution of india. in these circumstances, the preliminary objection raised by the respondent can not be sustained and it is held that in view of the order dated 4-8-2003 passed in civil revision no. 872/2001, this petition may be entertained.10. now the case is considered on merits. it is not in dispute that in the case the evidence of respondent no. 1, who is petitioner before the court below has been recorded and the case was fixed for recording evidence of the petitioner on 2-5-2001. on 2-5-2001, respondent no. 1 moved an application under section 151 of the code for re-counting of the votes and the court below without recording the evidence of petitioner allowed the application on the grounds that there are serious irregularities in the counting and recounting is necessary. the apex court in m.r. gopalakrishnan's case (supra) considering the entire legal position and law held thus :--'16............ the election petitioner, in order to seek an order of recount, has to place material and make out a prima facie case on the threshold and before an order of recount is actually made. the demand of a defeated candidate for recount of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for the recount, no tribunal or court would be justified in directing the recount. 17. this court in bhabhi v. sheo govind, (1976) 1 scc 687 : (air 1975 sc 2117) while dealing with the question of direction for inspection and recount, on a close and careful consideration of various authorities of this court laid down certain guidelines and conditions which are imperative before a court can grant inspection of the ballot papers. the said conditions and guidelines are set out below (para 15 of air):'(1) that it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;(2) that before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;(3) the court must be prima facie satisfied on the materials produced before the court regarding the truth of the allegations made for a recount;(4) that the court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;(5) that the discretion conferred on the court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and(6) that on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.'in a recent decision in satyanarayan dudhani v. uday kumar singh, 1993 supple (2) scc 82 : (1992 air scw 3449), this court again reiterated the similar view by observing that the secrecy of the ballot papers can not be permitted to be tinkered lightly and an order of recount can not be granted as a matter of course. it is only when the high court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that recount can be ordered. when there is no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition.'11. the judgments relied on by the learned counsel for respondent have no application in the present case and in those cases the recounting was directed after recording the evidence and the point involved in this case was not before the apex court. in the present case before recording complete evidence of the parties, the court below on the basis of the evidence produced by respondent no. 1 passed the order for recounting. such course was not available to the court below and only after recording the entire evidence of the parties, the court below ought to have considered the application on merits and thereafter to record a finding that recounting in the case is necessary. without following such recourse, the court below in the mid of the evidence when the petitioner, is yet to produce the evidence has directed recounting. this deprived the petitioner for leading evidence to rebut the contention of the respondent and has caused prejudice to the petitioner. the court below ought to have considered this application after recording the entire evidence in the case. in these circumstances, the order passed by the court below can not be sustained under the law. consequently, this petition is allowed. the impugned order directing recounting of the votes is hereby quashed. matter is remitted back to the trial court with a direction to record the evidence of petitioner on a date to be fixed by the court in this regard. as the matter is urgent one, in the circumstances, the trial court shall fix a date for recording the evidence of the petitioner in this regard. on that date, petitioner shall produce all his evidence and if it is necessary for the petitioner to summon any witness then he may apply to the court on next date of hearing and the court on the request of the petitioner shall issue summon to the witnesses. after recording the evidence of petitioner, the trial court shall consider afresh the application filed by respondent no. 1 under section 151 of cpc for recounting of the votes. the trial court shall consider the application afresh without being prejudiced with this order. it is made clear that no opinion on the application filed by respondent under section 151 of cpc has been expressed by this court and the trial court shall consider the application on merits after hearing the parties and considering the material on record.12. as both the parties are present here are directed to appear before the trial court on 23rd june, 2004.with the aforesaid, this petition is allowed with no order as to costs.

Judgment:
ORDER

K.K. Lahoti, J.

1. This petition is directed against the order (Annexure P-l), dated 10-5-2001 by First Additional District Judge, Shahdol in Case No. 3/2000 (Election Petition) (Hansraj Tanwar v. Mubarak Master and Ors.) by which the learned Second Additional District Judge has directed to hold recounting of ballots for the election of President, Dhanpuri Nagar Palika Parishad, held on 2242-99.

2. Short facts of the case are that the petitioner and respondent Nos. 1 to 7 contested the election of President of Nagar Palik Parishad, Dhanpuri in which petitioner was declared as a returned candidate. The polling was held on 22-12-99 and counting on 27-12-1999. Respondent No. 1 Hansraj Tanwar filed an application immediately after counting, praying for recounting on various grounds. The application was rejected by the Returning Officer vide order (Annexure P-2), dated 27-12-1999 on the ground that during counting no such objections were raised nor it was specified on which counting table the counting was not done properly or the counting supervisor and counting Assistant have favoured the petitioner or interpolation in the tabulation sheet was made. Thereafter petitioner was declared as returned candidate which has been challenged by respondent No. 1 by filing petition under Section 20 of Madhya Pradesh Municipalities Act, 1961 before the District Judge, Shahdol as Election Petition No. 3/2000. It was subsequently transferred to Second Additional District Judge, Shahdol for the trial. The election petition was contested by the petitioner. Respondent Nos. 2 to 7 remained absent/In the trial, respondent No. 1 got himself and witness, Govind Prasad Tiwari examined as P.W. 2 and the case was fixed for 2-5-2001. On 2-5-2001, respondent No. 1 moved an application (Annexure P-4) under Section 151 of the Code of Civil Procedure for recounting. The Court vide order dated 10-5-2001 (Annexure P-1) allowed the application for recounting. This order was challenged by the petitioner by filing revision under Section 26 of the M.P. Municipalities Act, 1961 before the High Court as Civil Revision No. 872/2001. This revision was contested by the parties and vide order dated 4-8-2003 (Annexure P-5) [2003(4) M.P.H.T. 238], the learned Judge held that the impugned order is an interlocutory order, against which no revision lies under Section 26 of the Act, and the revision was dismissed as not maintainable. Thereafter, petitioner filed this petition on following grounds :--

(i) That the Court below has not allowed opportunity to thepetitioner to adduce the evidence while respondent No. 1 was allowed such opportunity;

(ii) That before recording evidence of both the parties the Court below erred in allowing the application. This prayer ought to have been considered by the Court only after recording evidence in the case;

(iii) That the Court below ought not to have allowed the recounting because it will affect the secrecy of ballot paper and such order could not be passed lightly as a matter of course. The recounting could only be ordered in the rarest of the rare cases on cogent reasons.

3. Respondent No. 1 contested the matter on merits and also raised a preliminary objection that this petition is not maintainable. As the petitioner contested the revision before the High Court on merits and the order passed by the Court below has merged in the order passed by the High Court, such order can not be assailed in the writ jurisdiction. There are justified ground for recounting of the votes as stated in Para 5 of the return. In nutshell contention of the respondent is that there was manipulation in the counting, and in the tabulation sheets, which shows that in the counting and tabulation serious irregularities were committed by the Officers and the Court below considering all these facts has rightly directly recounting in the matter. There is difference of only 59 votes between petitioner and respondent No. 1. The petitioner secured 6001 and respondent No. 1 secured 5952 votes. The incidences which have been quoted in Para 5 of the return are as under:--

(A) In Ward No. 1 Shri Abdul Sattar (S. No. 2) has secured 08 votes in Polling Booth No. 1. Whereas in compilation sheet the number of votes mentioned against his name are 09.

(B) In Ward No. 6 Shri Subhash Chandra (S. No. 3) secured only 04 votes in Polling Booth No. 11 and 01 vote in Polling Booth No. 12. Thus he secured only 5 votes in both the polling booths. However, in the compilation sheet he has shown to have secured 46 votes from Polling Booth No. 12. How the figure of 01 votes became 46 votes is a serious matter.

(C) In Ward No. 14 Polling Both No. 24 Shri Albella secured only 01 vote but the compilation sheet mentioned 02 votes. Similarly in Ward No. 22 Polling Booth No. 38 he secured only 03 votes however in the final compilation sheet it is mentioned 04 votes.

(D) Similar, in the case of Shri Motilal, in Ward No. 9 Polling Booth No. 17 he secured only 14 votes but in the final result sheet it is mentioned 15 votes.

(E) In Ward No. 14 Polling Booth No. 24 Shri Abdul Sattar secured55 votes but in the final compilation sheet it is mentioned 56 votes.

(F) The applicant, Mubarak Master secured 209 votes in Polling

Booth No. 28 (Ward No. 16) but in the compilation sheet it ismentioned 210 votes. In Paras 6 and 7 of the return following allegations are made :--

'6. That as per final result sheet indicating the number of candidates and polling booth numbers of Ward No. 6 the names of 8 candidates are enumerated in column No. 2 while in column Nos. 4 and 5 the valid votes polled by each candidates are mentioned against the names of each candidates. In both these columns the total entries are 8-8 whereas in the column meant for 'Grant Total' of the votes secured by each candidates are 9 (nine). Figure 50 votes is not the Grand Total of votes polled by any candidate but has been surreptitiously interleneated just make the total number of votes polled as 753. The figure 50 represents bogus votes not counted in any one's favour.

7. That, a bare reading of the chart prepared wardwise and the final compilation sheet there is a difference of number of votes secured by the respective candidates for which no further evidence is necessary. It is on account of this reason the learned IInd Additional District Judge has directed recount of the votes. The order is within the jurisdiction of the learned Judge and, therefore, there appears to be no illegality in the impugned order. The petition is thus devoid of substance.'

4. The learned Counsel for respondent No. 1 submitted that in view of the settled law by the Apex Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1, this petition is not maintainable and may be dismissed. On merits also, he has placed reliance on Supreme Court's judgments in Mahendra Pal v. Ram Dass Malanger and Ors., (2000) 1 SCC 261; T.A. Ahammed Kabeer v. A.A. Azeez and Ors., (2003) 5 SCC 650 and Jibontara Ghatowar v. Sarbananda Sonowal and Ors., (2003) 6 SCC 452, and contended that the order passed by the Court below is just and proper and need not be interfered by this Court.

5. The learned Counsel for petitioner has placed reliance to various judgments of the Apex Court and this Court and contended that without recording the evidence, order of recounting is without jurisdiction. He has placed reliance to the following Apex Court's judgments :--

(1) Bhabhi v. Sheo Govind, AIR 1975 SC 2117;

(2) Had Ram v. Him Singh, AIR 1984 SC 396;

(3) P.K.K. Shamsudeen v. K.K.M. Mapillai, AIR 1989 SC 640;

(4) Satyanarayan v. Uday Kumar, 1992 AIR SCW 3449;

(5) M.R. Gopal Krishn v. Thachady, 1995 AIR SCW 156;

(6) Sadhna Lodh v. National Insurance Company, AIR 2003 SC 1561;

(7) Surya Devi v. Ramchander, AIR 2003 SC 3044.; and the judgment of this Court in,

(1) Gayotri v. Alka, 1997 (II) MPWN 98

(2) Kailash v. Narayan, 1999 (1) JLJ 342.

6. So far as preliminary objection raised by the respondent No. 1 is concerned, the learned Counsel for petitioner submits that the revision was dismissed as not maintainable and in fact, the High Court has not exercised its jurisdiction in revision and the revision was dismissed as it did not lie without considering the case on merits. In the circumstances, the only remedy available to the petitioner is by invoking the jurisdiction of the High Court under Article 227 of the Constitution and this petition may be entertained and case may be decided on merits.

7. To consider the contention of the parties firstly preliminary objection may be considered.

8. Petitioner before filing this petition filed a revision under Section 26 of the Madhya Pradesh Municipalities Act, 1961, challenging the impugned order. The matter was argued by the parties on preliminary objection and on merits also. The High Court in order (Annexure P-5), dated 4-8-2003 considered only preliminary objections and dismissed the revision as not maintainable. For ready reference, the relevant part of the order dated 4-8-2003 are quoted herein as under :--

'4. Besides the rival contention of the parties aforesaid, it has been contended that against the impugned order dated 10-5-2001 directing recounting of votes revision does not lie. Learned Counsel for applicant has referred to the reliefs claimed by non-applicant in petition (Annexure A-7) and stated that relief of recounting has been prayed in the petition (Annexure A-7), therefore, the order impugned directing recounting of votes must be treated as final order. Recounting of votes can not be a final relief under Section 24 of the Act. In petition (Annexure A-7) seeking relief of recounting of votes, it has been prayed that election of the returned candidates- applicant be quashed and the non-applicant-Hansraj be declared as an elected. Therefore, the main relief of declaration flows from the request of recounting. Final order means the formal expression of an adjudication which so far as regard the Court expressing it, conclusively determines the right of the parties with regard to or any other matter in controversy in the suit. Therefore, the order impugned directing recounting of votes, can not be termed as a final order. It is an interlocutory order allowing application under Section 151, CPC for recounting in furtherance of seeking declaration as prayed in petition (Annexure A-7).

5. Section 23 of the Act provides procedure to be followed in disposal of election petition. An election petition shall be enquired into and disposed of according to such summary procedure as may be prescribed by rules made under the Act. Section 26 of the Act is to the effect that no appeal shall lie against the decision of the judge on the petition. However, any person aggrieved by the decision of the Judge on the petition, within thirty days from the date of such decision apply to the High Court for revision on any of the grounds enumerated. Thus, as against the decision on the petition alone, the revision would lie under Section 26. M.P. Municipalities (Election Petitioner) Rules, 1962 were framed to regular the proceedings of election petition. Rule 19 reads under :--

19. Revision.-- (1) No petition by way of revision shall lie against any interlocutory order passed by the Judge.

6. No petition by way of revision shall lie against the interlocutory order passed by Judge. The impugned order dated 10-5-2001 being an interlocutory order in the main petition under Section 26 of the Act, revision would not lie.

7. Consequently, revision fails and is dismissed. No order as to cost.'

8. From the perusal of the aforesaid order, it is apparent that only preliminary objection was considered by the High Court and the revision was dismissed on the ground that the order dated 10-5-2001 being an interlocutory order in the main petition, under Section 26 of the Act, revision would not lie. The merits of the case were not considered in the aforesaid revision. The Apex Court in Shankar Ramchandra Abhyankar (supra) considering the fact that where revisional jurisdiction being invoked against the order of the Appellate Court and the High Court dismisses the revision, after hearing both the parties, the order of the Appellate Court merged with the order in revision, and, thereafter, the appellate order can not be challenged or attacked by another set of proceedings in the High Court under Article 226 or 227 of the Constitution. The principle of merger of orders of inferior Courts would not become affected or inapplicable by making any distinction between a petition for revision and an appeal. The Apex Court held thus:--

'7. It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us. In U.J.S. Chopra v. State of Bombay, AIR 1955 SC 633 the principle of merger was considered with reference to Section 439 of the Criminal Procedure Code which confers revisional jurisdiction on the High Court. In the majority judgment it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the Lower Court thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below. In Chandi Prasad Chokhani v. The State of Bihar, (1962) 2 SCR 276 = (AIR 1961 SC 1708) it was said that save in exceptional and special circumstances this Court would not exercise its power under Article 186 in such a way as to by-pass the High Court and ignore the latter's decision which had become final and binding by entertaining an appeal directly from orders of a Tribunal. Such exercise of power would be particularly inadvisable in a case where the result might lead to a conflict of decisions of two Courts of competent jurisdiction. In our opinion the course which was followed by the High Court, in the present case, is certainly one which leads to a conflict of decisions of the same Court.

8. Even on the assumption that the order of the Appellate Court had not merged in the order of the Single Judge who had disposed of the revision petition we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions.'

9. In view of the law laid down by the Apex Court that in the majority judgment, it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the Lower Court thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below. The Apex Court held that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. In the present case, two modes of invoking the jurisdiction of the High Court were not available to the petitioner. The revisional jurisdiction under Section 26 of the M.P. Municipalities Act can not be revoked as no petition by way of revision shall lie against any interlocutory order passed by the Election Judge. The aforesaid bar is created under Rule 19 of M.P. Municipalities (Election Petition) Rules, 1962. While under Section 26 of M.P. Municipalities Act, 1961, any person aggrieved by the decision of the Judge on the petition may, within thirty days from the date of such decision, apply to the High Court for revision on the grounds enumerated in Sub-section (2) of Section 26 of the Act. The High Court in Civil Revision No. 872/2001 considering aforesaid legal position found that the revision was not maintainable. In these circumstances, it can not be said that there were two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted by the petitioner in view of the order dated 4-8-2003 passed by the High Court in Civil Revision. The mode of challenging the impugned order by filing revision petition was not available to the petitioner and only recourse available to the petitioner is invoking the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India. In these circumstances, the preliminary objection raised by the respondent can not be sustained and it is held that in view of the order dated 4-8-2003 passed in Civil Revision No. 872/2001, this petition may be entertained.

10. Now the case is considered on merits. It is not in dispute that in the case the evidence of respondent No. 1, who is petitioner before the Court below has been recorded and the case was fixed for recording evidence of the petitioner on 2-5-2001. On 2-5-2001, respondent No. 1 moved an application under Section 151 of the Code for re-counting of the votes and the Court below without recording the evidence of petitioner allowed the application on the grounds that there are serious irregularities in the counting and recounting is necessary. The Apex Court in M.R. Gopalakrishnan's case (supra) considering the entire legal position and law held thus :--

'16............ The election petitioner, in order to seek an order of recount, has to place material and make out a prima facie case on the threshold and before an order of recount is actually made. The demand of a defeated candidate for recount of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for the recount, no Tribunal or Court would be justified in directing the recount. 17. This Court in Bhabhi v. Sheo Govind, (1976) 1 SCC 687 : (AIR 1975 SC 2117) while dealing with the question of direction for inspection and recount, on a close and careful consideration of various authorities of this Court laid down certain guidelines and conditions which are imperative before a Court can grant inspection of the ballot papers. The said conditions and guidelines are set out below (Para 15 of AIR):

'(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;

(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;

(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;

(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;

(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and

(6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.'

In a recent decision in Satyanarayan Dudhani v. Uday Kumar Singh, 1993 Supple (2) SCC 82 : (1992 AIR SCW 3449), this Court again reiterated the similar view by observing that the secrecy of the ballot papers can not be permitted to be tinkered lightly and an order of recount can not be granted as a matter of course. It is only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that recount can be ordered. When there is no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition.'

11. The judgments relied on by the learned Counsel for respondent have no application in the present case and in those cases the recounting was directed after recording the evidence and the point involved in this case was not before the Apex Court. In the present case before recording complete evidence of the parties, the Court below on the basis of the evidence produced by respondent No. 1 passed the order for recounting. Such course was not available to the Court below and only after recording the entire evidence of the parties, the Court below ought to have considered the application on merits and thereafter to record a finding that recounting in the case is necessary. Without following such recourse, the Court below in the mid of the evidence when the petitioner, is yet to produce the evidence has directed recounting. This deprived the petitioner for leading evidence to rebut the contention of the respondent and has caused prejudice to the petitioner. The Court below ought to have considered this application after recording the entire evidence in the case. In these circumstances, the order passed by the Court below can not be sustained under the law. Consequently, this petition is allowed. The impugned order directing recounting of the votes is hereby quashed. Matter is remitted back to the Trial Court with a direction to record the evidence of petitioner on a date to be fixed by the Court in this regard. As the matter is urgent one, in the circumstances, the Trial Court shall fix a date for recording the evidence of the petitioner in this regard. On that date, petitioner shall produce all his evidence and if it is necessary for the petitioner to summon any witness then he may apply to the Court on next date of hearing and the Court on the request of the petitioner shall issue summon to the witnesses. After recording the evidence of petitioner, the Trial Court shall consider afresh the application filed by respondent No. 1 under Section 151 of CPC for recounting of the votes. The Trial Court shall consider the application afresh without being prejudiced with this order. It is made clear that no opinion on the application filed by respondent under Section 151 of CPC has been expressed by this Court and the Trial Court shall consider the application on merits after hearing the parties and considering the material on record.

12. As both the parties are present here are directed to appear before the Trial Court on 23rd June, 2004.

With the aforesaid, this petition is allowed with no order as to costs.