INAMATI MALLAPPA BASAPPA versus DESAI BASAVARAJ AYYAPPA & OTHERS

Citation: [1959] 1 S.C.R. 611 · Decided: 22-04-1958 · Supreme Court of India · Bench: NATWARLAL HARILAL BHAGWATI · Disposal: Appeal(s) allowed

Judgment (excerpt)

S.C.R. 
SUPREME COURT REPORTS 
611 
INAMATI MALLAPPA BASAPPA 
v. 
DESAI BASAV ARAJ AYYAPPA & OTHERS 
(BHAGWATI, J. L. KAPUR and A. K. SARKAR JJ.) 
Election Petition-Claim for seat-Recrimination, when right 
accr·ues-Abandonment of claim for seat, if permissible-Whether 
abandonment affects right of recrimination-Code of Civil Procedure 
(Act V of r908), 0. 23, r. I.-Representation of the People Act, r95r 
(27 of r95r), ss. 90 and 97. 
· 
. 
A, the unsuccessful candidate at an election, filed an elec-
tion petition against B, the successful candidate, claiming a 
declaration that the election of B was void and that he.had 
been duly elected as he had secured the next highest number of 
valid votes. On the first date of the hearing before the Election 
Tribunal A submitted an application under 0. 23, r. I, of the 
Code Cl'f Civil Procedure abandoning the relief claiming the seat. 
B objected to the abandonment and filed a notice of recrimina-
tion under s. 97 ofthe Representation of the People Act, 1g51, 
accompanied by the statement and necessary particulars. 
A 
contended that B was not entitled to give evidence in recrimina· 
tion as the claim for the seat had been abandoned. 
The Tribu-
nal held thats. 90(1) of the Act had made the procedure pres-
cribed by the Code of Civil Procedure applicable to proceedings 
in election petitions and as such A had a right under 0. 23, r. I, 
of the Code to abandon a part of his claim and that A having 
abandoned his claim for the seat B. was no longer entitled to 
recriminate : 
H etd, that the provisions of the Act constitute a self-con-
tained code governing the trial of an election petition and in 
spite of s. 90(1) of the Act, the provisions 0. 23, r. I, of the Code 
of Civil Procedure were not applicable to the trial of an election 
petition by the Tribunal; and it was not open to A to. withdraw 
or abandon a part of his claim once an election petition had 
been presented to the Election Commission, particularly when 
such a withdrawal or abandonment of a part of the claim would 
have had the effect of depriving B of the right of recrimination 
which had accrued to him under s. 97 of the Act. 
The right of 
recrimination accrued to B the m:iment the electiwi petition was 
presented to the Election Commission containing the claim for 
the seat, and it was not open to A to defeat this right by with-
drawing or abandoning the claim for the seat. 
An election petition once filed does not mean a contest only 
between.the parties thereto but continues for the benefit of the 
whole constituency and cannot come to an end merely by. 
the withdrawal thereof by·the petitioner or even by his death QJ; 
1& 
t 
• 
April 22. 
Basappa 
v. 
Ayyappa 
612 
SUPREME COURT REPORTS 
[1959] 
by the death or withdrawal of opposition by the respondent but 
is liable to be continued by any person who might have been a 
. petitioner. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 
76of1958. 
Appeal by special leave from the judgment and 
order dated September 26, 1957, of the Election Tribu-
nal, Dharwar, in Election Petition No. 52 of 1957. 
G. S. Pathak, H.J. Umriga1· and G. C. Mathur, for 
the appellant. 
P. Ram Reddy, for respondent No. 1. 
G. S. Pathak and S. S. Shukla, for the interveners. 
1958. 
April 22. 
The 
Judgment of the Court 
was delivered by 
• 
Bhagwati J. 
BHAGWATI J.-This is the 4th of the series of 
Civil Appeals before us arising out of election petitions 
and involving the interpretation of the relevant sec-
tions of the Representation of the People Act, 1951 
(hereinafter referred to as " the Act"). The decision 
of this appeal turns on the construction of s. 97 of the 
Act and also on the jurisdiction of the Election Tribu-
nals to allow withdrawal or abandonment of part of the 
claims before them. 
The appellant and respondents 1 to 3 were the con-
testing candidates for election to the Mysore Legisla-
tive Assembly from the Dharwar Constituency in the 
last General Elections. The appellant was the Con-
gress candiiate and th.e first respondent was the 
candidate of the Lok Sevak Sangh party. The result 
of the election was declared on March 3, 1957, and the 
appellant was declared elected by a majority of 1, 727 
votes. 
On April 14, 1957, the first respondent pre-
sented to the Election Commission a Petition, being 
Election Petition No. 52 of 1957 under s. 80 of the Act 
wherein besides claiming a declaration that the elec-
tion of the appellant was void he claimed a.furt

Excerpt shown. Read the full judgment & AI analysis in Lexace.