MD. ALAUDDIN KHAN versus KARAM THAMARJIT SINGH

Citation: [2010] 8 S.C.R. 525 · Decided: 22-07-2010 · Supreme Court of India · Bench: V.S. SIRPURKAR · Disposal: Matter referred to larger bench

Judgment (excerpt)

[201 O] 8 S.C.R. 525 
/ 
MD. ALAUDDIN KHAN 
v. 
KARAM THAMARJIT SINGH 
(Civil Appeal No. 5851 of 2010) 
JULY 22, 2010 
[V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA, 
JJ.] 
A 
B 
Representation of the People Act, 1951: ss. 97, 
100(1 )(d)(iii) -
Election petition -
Allegation that some C 
impersonators voted in the name of dead persons in named 
polling station - Prayer to order recount of votes cast in the 
named polling station and to declare election of returned 
candidate as void -
By way of defence, the returned 
candidate in the written statement stated that even the 
D 
petitioner had not secured the votes shown to have been cast 
in his favour as even in his case there were void votes and 
prayed for recount of votes of all the candidates - High Court 
ordered to delete the paragraphs in written statement on the 
ground that they were in the nature of counter claim and held 
E 
that only the votes cast in the named polling stations would 
be liable to be counted and not those which were named in 
the paragraphs ordered to be deleted from the written 
statement - HELD: Per Dr. Mukundakam Sharma, J: In view 
I 
of specific provision of s.97, the returned candidate cannot 
F 
resort to file counter claim or recrimination petition under 
Order VIII rule 6A -
Only votes cast in the named polling 
station liable to be counted and not those named in paras 
ordered to be deleted from written statement - Per V.S. 
Sirpurkar, J: Pleas raised by returned candidate were not in 
G 
the nature of recrimination - By virtue of Order VIII, Rule 6 
CPC, the returned candidate, could still raise his defence by 
way of a counter claim - The language of s. 9 7 of the Act which 
is in the nature of positive language, does not bar raising of 
525 
H 
526 
SUPREME COURT REPORTS 
[201 O] 8 S.C.R. 
A any such defence - Recount should be of the votes of all the 
candidates. 
In view of difference of opinion. the matter is referred to 
larger bench - Code of Civil procedure, 1908 - Order VIII r. 6A 
8 - Elections laws - Reference to larger bench. 
In the legislative assembly elections, appellant 
defeated the respondent-election petitioner by margin of 
two votes. Respondent challenged the election of 
appellant under Section 100(1)(d)(iii) and (iv) of the 
C Representation of the People Act, 1951 on the ground 
that number of impersonators voted in the name of dead 
persons in named polling stations and prayed that the 
election of the appellant be declared void. The appellant · 
filed a written statement in which apart from contesting 
0 the allegations made in the election petition, the appellant-
returned candidate made several statements in the nature 
of counter claim/recrimination in paras 22-31. It was 
contended therein that the votes were cast in the name 
of dead persons in all the polling stations and prayed for 
E direction to recount of votes of all the candidates. The 
respondent thereafter filed an application under Order VI 
Rule 16 CPC praying for striking off these paras allegedly 
made by way of counter claim/recrimination. The said 
application was allowed by Election Judge. Aggrieved 
F appellant filed the appeal. 
Referring the matter to larger bench, the Court 
Held: 
G 
Per: DR. MUKUNDAKAM SHARMA, J: 
1.1. In the present case since there was no prayer in 
the election petition to declare the election petitioner or 
any other candidate as elected candidate, therefore, the 
provisions of Section 97 of the Representation of the 
H People Act, 1951 would not be applicable or attracted. In 
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 527 
fact, statements which are intended and could be made 
in the light of Section 97 of the Act are counter-claims. 
· When the specific provision which provides for raising a 
counter-claim is excluded and is not attracted, it cannot 
be said that such counter-claim could be raised in terms 
of the provisions of Order VIII Rule GA, CPC. The 
Representation of People Act, 1951 is a self contained 
code. Under the Act, a specific provision is incorporated 
in the form of Section 97 providing for considering 
recrimination petition/counter-claim under certain 
circumstances, and therefore, the same being a provision 
under a special Act, would prevail over the provisions of 
Order VIII Rule GA, CPC which is a general law. The said 
legal principle is based on the latin maxim generalia 
specia/ibus non derogant which means general words do 
not derogate from special. In view of this mandate, 

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