Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. Similarly in Jyoti Basu & Ors. v. Debi Ghosa/ & Ors., AIR 1982 SC 983; this Court held as under:- "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a KALYAN SINGH CHOUHAN v. C.P. JOSHI [DR. B.S. CHAUHAN, J.] Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at . ·B Common Law, nor in equity. It is a statutory proceeding to which neither ttie common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute c creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the· statute lays down. In the trial of election disputes, Court is put in a straight jacket. …… We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute." (Emphasis added)
13. In Chanda Singh v. Ch. Shiv Ram Varma & Ors., AIR 1975 SC 403, this Court held as under:- "A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers lead to the formation of gu.-arnments. A certain amount of stability in the G . electo,·11 process is ess.ential. If the counting of the ballots an, .. iterfered with by too frequent and flippantre- counts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if re-count of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a re-count Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of c declared returns, unless the court restricts recourse to re- count to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitati11g such a drastic step."
14. During the trial of an election petition, it is not D permissible for the court to permit a party to seek a roving enquiry. The party must plead the material fact and adduce evidence to substantiate the same so that the court may proceed to adjudicate upon that issue. Before the court permits the recounting, the following conditions must be satisfied: (i) The Court must be satisfied that a prima facie case is established; (ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes; (iii) A roving and fishing inquiry should not be directed by way of an order to recount the votes; (iv) An opportunity should be given to file objection; and (v) Secrecy of the ballot requires to be guarded. (Vide : Dr. Jagjit Singh v. Giani Kartar Singh & Ors., AIR 1966 SC 773; Suresh Prasad Yadav v. Jai Prakash Mishra & Ors., AIR 1975 SC 376; M. Chinnasamy v. K.C. Palanisamy & Ors., H AIR 2004 SC 541; Chandrika Prasad Yadav v. State of Bihar KALYAN SINGH CHOUHAN v. C.P. JOSHI [DR. B.S. CHAUHAN, J.] & Ors., AIR 2004 SC 2036; Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan, AIR 2006 SC 1218; Gursewak Singh v. Avtar Singh & Ors., AIR 2006 SC 1791; and Baldev Singh v. Shinder Pal Singh & Anr., (2007) 1 SCC 341).
15. In Gajanan Krishnaji Bapat & Anr. v. Dattaji Raghobaji Meghe & Ors., AIR 1995 SC 2284; this Court held that the court cannot consider any fact which is beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality the result of the election has been materially affected.
16. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that "as a rule relief not founded on the pleadings should not be ·granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. App. 195; Mis. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Raruha Singh v. Achal Singh & Ors.; AIR 1961 SC 1097; Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665; /shwar Dutt v. Land Acquisition Collector & Anr., AIR 2005 SC 3165; and State of Maharashtra v. Hindustan Construction Company Ltd., (2010) ~ sec 518.)
17. This '"'"urt in Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter Co/legrJ & Ors., AIR 1987 SC 1242 held as under: "It is well settled that in the absence ~f pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. ……. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question."
18. This Court in Bachhaj Nahar v. Ni/ima Manda/ & Ors., AIR 2009 SC 1103, held as under: 'The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expandeu 1.1.- grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue …….. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."
19. In J.K. Iron & Steel Co. Ltd, Kanpur v. The Iron and KALYAN SINGH CHOUHAN v. C.P. JOSHI [DR. B.S. CHAUHAN, J.] Steel Mazdoor Union, Kanpur, AIR 1956 SC 231, this Court A observed: "It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper."
20. Order XIV Rule 1 CPC reads: "Issues arise when a material, proposition of fact or law is affirmed by the party and denied by the other." Therefore, it is neither desirable nor required for the court c to frame an issue not arising on the pleadings. The Court should not decide a suit on a matter/point on which no issue has been framed. (Vide: Raja Bommadevara Venkata Narasimha Naidu & Anr. v. Raja Bommadevara Bhashya Karlu Naidu & Ors., (1902) 29 Ind. App. 76 (PC); Sita Ram v. Radha Bai & Ors., AIR 1968 SC 535; Gappu/al v. Thakurji Shriji Dwarkadheeshji & Anr., AIR 1969 SC 1291; and Biswanath Agarwal/a v. Sabitri Bera, (2009) 15 SCC 693).
21. The object of framing issues is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court. The issues are framed so that no party at the trial is taken by surprise. It is the issues fixed and not the pleadings that guide the parties in the matter of adducing evidence. [Vide : Sayad Muhammad. v. Fatteh Muhammad (1894-95) 22 Ind. App. 4 (PC).]
22. In Kashi Nath (Dead) through L.Rs. v. Jaganath, (2003) 8 SCC 740, this Court held that wtiere the evidence is not in line with the pleadings and is at variance with it, the said G evidence cannot be looked into or relieq upon. While deciding the said case, this Court placed a very heavy reliance on the judgment of the Privy Council in Siddik Mohd. Shah v. Saran, AIR 1930 PC 57.
23. There may be an exceptional case wherein the parties A proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation thereof by the other side. In such an eventuality, absence of an issue would not be fatal and it would not be permissible for a party to submit that there has been a mis-trial and the B proceedings stood vitiated. (vide: Nagubai Ammal & Ors. v. B. Shama Rao & Ors., AIR 1956 SC 593; Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884; Kunju Kesavan v. M.M. Philip & Ors., AIR 1964 SC 164; Kali Prasad Agarwal/a (dead) by L.Rs. & Ors. v. Mis. Bharat c Coking Coal Ltd. & Ors., AIR 1989 SC 1530; Sayed Akhtar v. Abdul Ahad, (2003) (7) SCC 52; and Bhuwan Singh v. Oriental Insurance Co. Ltd., AIR 2009 SC 2177).
24. Therefore, in view of the above, it is evident that the party to the election petition must plead the material fact and D substantiate its averment by adducing sufficient evidence. The court cannot travel beyond the pleadings and the issue cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is, therefore, not permissible for the court to allow the party to lead evidence which is not in the E line of the pleadings. Even if the evidence is led that is just to be ignored as the same cannot be taken into consideration.
25. In Jabar Singh v. Genda Lal, AIR 1964 SC 1200, a Constitution Bench of this court while dealing with a similar F issue observed as under: "It would be convenient if we take a simple case of an election petition whether the petitioner makes only one claim and that is that the election of the returned candidate is void. This claim can be made under Section 100. Section 100(1)(a),(b) and (c) refer to three distinct grounds on which the election of the returned candidate can be challenged. We are not concerned with any of these grounds. In dealing with the challenge to the validity of the election of the returned candidate under Section 100(1)(d), KALYAN SINGH CHOUHAN v. C.P. JOSHI [DR. B.S. CHAUHAN, J.] it would be noticed that ~hat the election petitioner has to · A ' prove is not only the existence of one or the. other of the grounds specified in clauses (i) to (iv) of Section 100(1 )(d), · b~t it has also to establish that as a result ·of the existence . of the said ground the result of the election insofar as. it concerns a returned ciandidate has been materially affected. It is thus obvious that what the Tribuna/has to find is whether or not the election insofar as it .concerns the returned candidate· has been materially affected, and that means ~hat the only point which the Tribunal has to decide is has the election of the returned candidate been c materially affected? And no other enquiry is legitimate or permissible in such a case. This requirement of Section 100(1)(d) necessarily imports limitations on the scope of the enquiry. Confining ourselves to clause (iii) of Section 100(1)(d), what the Tribunal has to consider is . 0 whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate or whether there has been· · a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate. In other words, the scope of the enquiry in a case falling under Section 100(1)(d)(iii) is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in Section 100(1 )(d)(iii), the result of the returned candidate's election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry. Therefore, it seems to us that in the case of a petition where the only claim ma.de is that the election of the returned candidate is void, ·c the scope of the. enquiry is clearly limited by the requirement of Section 100(1)(d) itself. The enquiry is limited not because the returned candidate has not recriminated under Section 97(1); in fact, Section 97(1) has no application to the case falling under Section 100(1)(d)(iii); the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition." (Emphasis added) 26. In T.A Ahammed Kabeer v. A.A. Azeez & Ors., AIR 2003 SC 2271, this Court dealt with the judgment of the Constitution Bench observing: "We have already stated that the rigorous rule propounded by the Constitution Bench in Jabar Singh v. Genda Lal, AIR 1964 SC 1200, has met with criticism in some of the subsequent decisions of this Court though by Benches of lesser coram and an attempt at seeking reconsideration of the majority opinion in Jabar Singh case (supra) has so far proved to be abortive. The view of the law taken by the Constitution Bench in Jabar Singh (supra) is binding on us. Analysing the majority opinion in Jabar Singh case (supra) and the view taken in several decisions of this Court, referred to hereinabove, we sum up the law as under: (1) In an election petition wherein the limited relief sought for is the declaration that the election of the returned candidate is void on the ground under Section ·100(1)(d)(iii) of the Act, the scope of enquiry shall remain KALYAN SINGH CHOUHAN v. C.P. JOSHI [DR. B.S. CHAUHAN, J.] confined to two questions: (a} finding out any votes having' 'A been improperly cast in favour of the returned candidate, and (b} any votes having been improperly refused or rejected in regard to any other candidate. In such a case an enquiry cannot be held into and the election petition .decided on the finding (a} that any votes have been improperly cast in favour of a candidate other than the returned candidate, or (b} any votes were improperly refused or rejected in regard to the returned candidate. (2) A recrimination by the returned candidate or any other party can be filed under Section 97(1} in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected. (3) For the purpose of enabling an enquiry that any votes have been improperly cast in favourof any candidate other than the returned candidate or any votes have been · improperly refused or rejected in regard to the returned candidate the Election Court shall acquire jurisdiction to do so only on two conditions being satisfied: (i} the election petition seeks a declaration that any candidate other than the returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii} a recrimination petition under Section 97(1} is filed. (4) A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfil within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act. (5) The bar on enquiry enacted by Section 97 read with Section 100(1 )(d}(iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in c other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into. The bar is not attracted to a case where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a re-count the Election Judge finds the result of re-count to be different from the one arrived at by .the Returning Officer or when the Election Judge finds that there was an error of counting the bar is not attracted because the court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or re-counting by placing the vote at the place where it ought to have been placed. A case of error in counting would fall within the purview of sub-clause (iv), and not sub-clause (iii) of clause (d) of sub-section (1) of Section 1 00 of the Act.• 27. Therefore, in the case at hand, the election petitioner/ respondent has claimed only that there has been irregularity/ illegality in counting of 6 tendered votes and the case squarely falls within the ambit of Section 100(1)(d)(iii) of the Act, 1951. Election petitioner has further pleaded that the result of the F election stood materially affected because of improper receiving the six tendered votes and in absence of any Recrimination Petition in the case the appellant cannot be permitted to lead evidence on the fact which is not in issue. 28. The judgment in Wilfred D'Souza's case (Supra) has G distinguishable features. In that case, the appellant had asserted that the result of the election of the respondent had been materially affected by the improper reception, refusal and rejection of votes and a specific prayer had been made by the H appellant in the election petition that the election of the KALYAN SINGH. CHOUHAN v. C.P. JOSHI [DR. B.S. CHAUHAN, J.] re_spondent be declared void and the appellant be declared A to be duly elected. The respondent' had denied that the tendered votes were cast by genuine voters. !he issue had been framed in that case as under: "Whether the petitioner proves that the vote or votes were initially improperly received and should be removed and in their place tendered vote or votes should be taken into account." The Election Tribunal therein did not record any evidence on behalf of the respondents and proceeded to decide the case after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant papers had been opened and those papers were examined. In view of the fact that the appellant had adduced prima facie proof in respect of two of the ter'.dered ballot papers, the Election Tribunal was to call upon the respondent to adduce his evidence and the evidence should not be constrained only to the two tendered ballot papers in respect of which the appellant had not adduced any evidence, but would relate to some or all the other 8 tendered ballot papers in respect of which the appellant had not adduced any evidence. That was, admittedly, a case wherein a Recrimination Petition under Section 97 of the Act 1951 had been filed. In the instant case, there is no such claim made by the parties. In the instant case, an application had been filed to summon the other 4 tendered votes, also making a submission that those documents were required by the parties to resolve the controversy without giving any reason or justification for the same. Admittedly, there is no reference to these 4 tendered votes either in the election petition or in the written statement. The said 4 tendered votes neither had been relied upon in the reply by the appellant nor had been entered in the list of ·locuments. Thus, the judgment in this case is quite distinguishable from the case at hand. [2011) 2 S.C.R. 29. In view of the above, we do not find any cogent reason to interfere with the well reasoned judgment and order of the High Court impugned herein. The facts and circumstances of the case do not warrant review of the order passed by the High Court. The appeal lacks merit and is accordingly dismissed. B.B.B. Appeal dismissed.