T.A. AHAMMED KABEER versus A.A. AZEEZ AND ORS.

Citation: [2003] 3 S.C.R. 511 · Decided: 10-04-2003 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Dismissed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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T.A. AHAMMED KABEER 
A 
V. 
A.A. AZEEZ AND ORS. 
APRIL 10, 2003 
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] 
B 
Election laws: 
Representation of the People Act, 1951-Sections !00(/)(d)(iii), (iv) 
~9W 
C 
Election petition-Enquiry-Scope of-Discussed. 
Election petition-Seeking declaration that election of returned candidate 
void and also that petitioner be declared elected-Recrimination petition filed-
Case made out for decoding of votes cast through electronic voting machine- D 
Decoding and recounting of ballot cast-Dismissal of election petition on the 
ground that election result not materially affected-Appeal-Plea that High 
Court could not have travelled beyond pleadings specifically raised in 
recrimination petition-Held: Ballot having been merely recounted during the 
process of decoding bar on enquiry not attracted and matter covered under E 
Section JOO (J)(d)(iv) and not /OO{l)(d)(ii;) . . 
Election/Recrimination petition-Recounting of votes-Result of recount 
at variance with the pleadings-Effect of-Held: Once the jurisdiction to order 
recount is found to have been rightly exercised, result of recounting has to be 
given effect even though it is at variance with the pleadings. 
F 
Election to a State Legislative Assembly seat was held, using 
electronic voting machines. Respondent No. 1 was declared elected. He 
defeated his nearest rival viz. the appellant by a margin of 21 votes. 
Aggrieved appellant challenged the election of respondent No. I alleging 
that there was double voting, impersonation, defective voters' list and 
invalid postal votes. He prayed that the election of respondent No. I be 
set aside and he be declared elected. Respondent No. I gave recrimination 
notice as contemplated by proviso to section 97(1) of the Representation 
of the People Act, 1951 alleging double voting and impersonation. The 
511 
G 
H 
512 
SUPREME COURT REPORTS 
[2003] 3 S.C.R. 
A Designated Election Judge held that the case warranted recounting and 
decoding of votes cast through electronic voting machines. Decoding and 
recounting of votes was carried out. Thereafter, the election petition was 
dismissed on the ground that the election result was not materially affected. 
Hence the present appeals. 
B 
Appellant contended that in the matter of decoding and thereafter 
re-counting of votes, High Court could not have travelled beyond the 
pleadings specifically raised in the Recrimination Petition and validity or 
invalidity of votes beyond the one specifically pleaded in the Recrimination 
Petition could not have been taken into consideration by the High Court 
C even if it had come to its notice; and that for the rule of divergence between 
pleadings and evidence applied with all force and rigour to the trial of 
any election dispute and any evidence contrary to the pleadings is liable 
to be ignored. 
Dismissing the appeals, the Court 
D 
HELD: I. In the instant case on the available evidence an inference 
as to the result of the election having been materially affected could not 
be drawn insofar as the returned candidate is concerned. There was a 
divergence between the pleadings and proof and hence the plea was rightly 
discarded by the High Court. Further, a Recrimination Petition was filed 
E and the High Court has on the basis of material available arrived at a 
finding that a case for decoding of votes (equivalent to inspection of ballot 
papers) cast through electronic voting machines was made out and 
thereupon proceeded to decode the ballots cast. To the extent to which 
the ballots have been merely recounted through the process of decoding, 
p the case would be covered by Section 100 (1 )( d)(iv) and not Section 
toO(l)(d)(iii). Thus, Jabar Singh 's case has no applicability to the instant 
case. [531-D, G, H; 532-A-B[ 
Jabar Singh v. Genda Lal, [1964[ 6 SCR 54, distinguished. 
G 
Janardan Dattuappa Bondre v. Govind Prasad Shivprasad Choudhari 
and Ors., (1979[ 4 SCC 516; Azmat Khan v. Khillan Singh and Ors., [1984[ 
I SCC 143; P. Malai Chami v. M Andi Ambalam and Ors., (1973[ 2 SCC 
170; Arun Kumar Bose v. Mohd. Furkan Ansari and Ors., (1984) I SCC 91; 
Bhag Mal v. Ch. Prabhu Ram and Ors., [1985) I SCC 61; N.E. Haro v. 
H Leander Tiru and Ors., [1989[ 4 SCC 364; N Gopal Reddy v. Bona/a 
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T.A. AHAMMED KABEER v. A.A. AZEEZ 
513 
Krishnamurthy and Ors., [1987) 2 SCC 58; Anirudh Prasad v. Rajeshwari A 
Saro) Das and Ors., [1977) I SCC 105 and Ram Sewak Yadav v. Hussain 
Kami/ Kidwai and Ors.,

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