KARAM THAMARJIT SINGH Vs. ALLAUDDIN KHAN

JUDGEMENT

(1.) THIS miscellaneous application has stemmed out of Election Petition no. 2 of 2007. The election petitioner has filed this application objecting the counterclaim made in the written statement filed by the respondent in the main election petition.

(2.) BEFORE I step in the legal question raised in this miscellaneous application, it would be apposite to set out the facts of the case giving raise to the filing of the election petition, as well as this application. 2. 1 The election petitioner and the respondent and few other candidates contested the election of the 9th Manipur Legislative Assembly from 6-Keirao Assembly constituency. The election result was declared on 27-2-2007. The respondent defeated the election petitioner by a thin margin of 2 (two) votes only. Having realized that due to improper and illegal reception of few votes materially effecting the election of the respondent, one of the defeated candidates namely Shri Thamarjit Singh has challenged the election of the respondent namely Md. Allauddin Khan basically under Section 100 (l) (d) (iii) and (iv) of the Representation of the People Act, 1951 (hereinafter referred to as "the R. O. P. Act" for short)so as to declare the election of the sole respondent as void. The relevant prayers made in the election petition are reproduced below :-

(3.) ON being notified the sole respondent appeared in the election petition No. 2 of 2007 on 11-6-2007. Filing of the written statement was deferred till the disposal of another miscellaneous application No. 6 of 2007, challenging the maintainability of the election petition on technical grounds. The said miscellaneous case was dismissed on 31 -10-2007. Even thereafter the respondent took few adjournments and finally filed his written statement on 4-1-2008. In his written statement, apart from disputing the allegations of anomaly in the election, the respondent/returned candidate has also made several recriminating statements in paragraph Nos. 22 to 31. Precisely in these paragraphs, the respondent has made counter allegation that as many as 240 void votes have also been cast in favour of the election petitioner and if these alleged void votes are deducted from the total votes secured by the election petitioner, the respondent would emerge with more comfortable victory. Basically the recriminating statements are in the nature of 'counter-Claim' as prescribed under Order VIII, Rule 6-A of the Civil procedure Code (briefly 'cpc' ). According to the learned counsel for the petitioner the counter-claim made in the written statement are not maintainable within the provisions of the ROP Act, hence liable to be struck off under Order VI, Rule 16 of CPC.