KALYAN SINGH CHOUHANversusC.P. JOSHI

                         [2011] 2 S.C.R. 216


A                    KALYAN SINGH CHOUHAN
                                   v.
                             C.P. JOSHI
                   (Civil Appeal No. 870 of 2011)
                         JANUARY 24, ·2011
B
        [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

        Election Laws:

c        Election petition - Trial and adjudication of - Held: The
    procedure provided for trial of civil suits under CPC is not
    applicable in its entirety to the trial of election petition - T~
    procedure prescribed in CPC applies to election trial with
    flexibility and only as a guidelines.
D       Representation of People Act, 1951 - ss. 80, 81,
   100(1)(d)(iii) and s.97 - Election petition - Right of a party to
  lead evidence - Elections held to constitute State Legislative
  Assembly- Allegation that 10 votes were cast by imposters
  and thus, 10 tendered votes cast under the Rules - Appellant
E declared elected - Election petition filed by respondent before
  High Court - Appellant fifed written statement - Later filed
  application to summon list of all tendered votes - High Court
  rejected the application - On appeal, held: The pleadings in
  the election petition related only to 6 tendered votes - There
F was no reference in respect of the remaining 4 tendered votes
  either in the election petition or in the written statement filed
  by the appellant - In absence of any Recrimination petition,
  the appellant could not be permitted to lead evidence on a
  fact not in issue - Also, in the application, no reason nor
G justification was given by the appellant for summoning of the
  other 4 tendered votes - Therefore, the High Court rightly did
  not allow the appellant to lead evidence which was no1 in the
  line of the pleadings - Conduct of Election Rules, 1961 -
  Rule 42.
H                                 216
       KALYAN SINGH CHOUHAN v. C.P. JOSHI                     217

     Pleadings - Jurisdiction of the Court to grant relief -          A
Held: A decision of a case cannpt be based on grounds
outside the pleadings of the parties.
      Code of Civil Procedure, 1908 - Order XIV, Rule 1-
Fratning of issues - Object and purpose of - Held: The object.
of framing issues is to ascertain/ shorten the area: of dispute . B
and pinpoint the points required to be determined by the court
- /tis the issues fixed and not the pleadings that guide the
parties in the matter of adducing. evidence - It is neither
desirable nor required for the court to frame an issue not
arising on the pleadings - The Court should not decide a suit C
on a matter/point on which no issue has been framed.
    Elections were held to constitute the 13th Legislative
Assembly for the State of Rajasthan. During the process
of polling, there were allegations that in .respect of the            D
constituency in question, at least 10 votes were cast by
imposters and thus, 10 tendered votes were cast under
Rule 42 of the Conduct of Election Rules, 1961. The
appellant was declared elected from the said
constituency by a margin of one vote.                                 E
       The respondent, an unsuccessful candidCJte, filed
  election petition before the High Court under Sections 80,
· 81, 100(1 )(d)(iii) and Section 100(1)(d)(iv) of 1951 Act, inter-
  alia, alleging: (i) that the name of the appe.llant's wife was
  registered at two places in the electoral rolls of the              F
  constituency and hence she had cast two votes in the
  election; and (ii) that six (6) tendered votes cast in the
  election must be counted and the six (6) votes originally               I
  pollerl against the tendered votes must be rejected. The            GI
  appellar;~ filed written statement contesting the election
  petition. Arll'" framing of the issues, the appellant flied an
  application to summon inter a.lia the list of all tendered
  votes. The High Court rejected the application on the
  ground that it was not permissible to summon tendered
                                                                      H
    2.18       SUPREME COURT REPORTS              [2011] 2 S.C.R.

A votes in respect of which none of the parties had taken
  the pleadings nor an issue had been framed in respect
  of those tendered votes and, thus, it was not permissible
  to lead any evidence on the fact which is not in issue;
  more so, on the ground of delay, as the application had
B been filed after framing of the issues.

      In appeal to this Court, the question which arose for
  consideration was whether the result of the election had
  been materially affected and, therefore, once the appellant
C raised his statutory right to lead evidence, in order to
  prevent miscarriage of justice, it was necessary that all
  the tendered votes were summoned and taken into
  consideration i.e. be counted.
           Dismissing the appeal, the Court
0
       HELD: 1. The trial of an election petition is entirely
  different from the trial of a civil suit, as in a civil suit trial
  commences on framing the issues while trial of an
  election petition encompasses all proceedings
E commencing from the filing of the election petition up to
  the date of decision. Therefore, the :Jrocedure provided
  for the trial of civil suits under CPC is not applicable in
  its entirety to the trial of the election petition. For the
  purpose of the election petition, the word 'trial' includes
F the entire proceedings commencing from the time of filing
  the election petition till the pronouncement of the
  judgment. The applicability of the procedure in Election
  Tribunal is circumscribed by two riders: firstly, the
  procedure prescribed in CPC is applicable only "as
  nearly as may be", and secondly, the CPC would give
G way to any provisions of the Act or any rules made
  thereunder. Therefore, the procedure prescribed in CPC
  applies to election trial with flexibility and only as
  guidelines. [Para 10) (230-A-D]
H          Kai/ash v. Nanhku & Ors. AIR 2005 SC 2441; Harcharan
       KALYAN SINGH CHOUHAN v. C.P. JOSHI                219

 Singh v. S. Mohinder Singh & Ors. AIR 1968 SC 1500; Jyoti      A .
 Basu & Ors. v. Debi Ghosal & Ors. AIR 1982 SC 983; Chanda
 Singh v. Ch. Shiv Ram Varma & Ors. AIR 1975 SC 403 -
·relied on.

   . ~· ~uring the trial of an el7ction petition, it is ~ot , B
perm1ss1ble 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 rQcounting, the following conditions C
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 · D
file objection; and.v) secrecy of the ballot requires to be
guarded. [Para 14] [232-D-G]
      Dr. Jagjit Singh v. Giani Kartqr Singh & Ors, AIR 1966
 SC 773; Suresh Prasad Yadav v. Jai Prakash Mishra & Ors.       E
·AIR 1975 SC 376; M. Chinnasamy v. K.C. Palanisamy & Ors.
 AIR 2004 SC 541; Chandrika Prasad Yadav v. State of Bihar
 & 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; Baldev Singh v.        F
 Shinder Pal Singh & Anr. (2007) 1 SCC 341; Gajanan
 Krishnaji Bapat & Anr. v. Dattaji Raghobaji Meghe & Ors. AIR
 1995 SC 2284 - relied on.

    3. Pleadings and particulars are required to enable
the court to decide the rights of the parties in the trial.     G
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
                                                                H
    220     SUPREME COURT REPORTS              [2011] 2 S.C.R.

A 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
B between the parties to. narrow the area of conflict and to
  see just where the two sides differ. [Para 16] [233-D-F]

       Sri Mahant Govind Rao v. Sita Ram Kesho (1898) 25
  Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa
C Chettiar AIR 1953 SC 235; Raruha Singh v. Achal Singh &
  Ors.; AIR 1961 SC 1097; Om Prakash Gupta v. Ranbir 8.
  Goyal AIR 2002 SC 665; /shwar Dutt v. Land Acquisition
  Collector & Anr. AIR 2005 SC 3165; State of Maharashtra v.
  Hindustan Construction Company Ltd. (2010) 4 SCC 518;
  Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter
D College & Ors., AIR 1987 SC 1242; Bachhaj Nahar v. Nilima
  Manda/ & Ors. AIR 2009 SC 1103; J.K. Iron & Steel Co. Ltd,
  Kanpur v. The Iron and Steel Mazdoor Union, Kanpur, AIR
  1956 SC 231 - relied on.

E       4.1. It is neither desirable nor required for the court
  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. The object of framing issues is
  to ascertain/shorten the area of dispute and pinpoint the
F 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. [Paras 20, 21]
  (235-C-F]

G       Sita Ram v. Radha Bai and Ors. AIR 1968 SC 535;
    Gappula/ v. Thakurji Shriji Dwarkadheeshji and Anr. AIR 1969
    SC 1291; Biswanath Agarwal/a v. Sabitri Bera (2009) 15 SCC
    693; Kashi Nath (Dead) through L.Rs. v. Jaganath (2003) 8
    sec 740 - relied on.
H
       .KALYAN SINGH CHOUHAN v. C.P. JOSHI                221


     Raja Bommadevara Venkata Naiasimha Naidu & Anr.             A
 v. Raja Bommadevara Bhashya Karl11 Naidu & Ors. (1902)
 29 Ind. App. 76 (PC); Sayad Muhammad. v. Fatteh
 Muhammad (1894-95) 22 Ind. App. 4 (PC) and Siddik Mohd.
 Shah v. Saran AIR 1930 PC 57 - referred to.
                                                                 B
       4.2 However, there may be an exceptional case
. wherein the parties 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          C
  fatal and it would not be permissible for a party to submit
  that there has been a mis-trial and the proceedings stood
  vitiated. [Para 23] [235-H; 236-A-B] ·

     Nagubai Amma/ and Ors. v. B.. Shama Rao & Ors. AIR
 1956 SC 593; Nedunuri Kameswaramma v. Sampati Subba D
 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 Coking Coal Ltd. & Ors. AIR 1989 SC
 1530; Sayed Akhtar v. Abdul Ahad (2003) (7) SCC 52;
 Bhuwan Singh v. Oriental Insurance Co. Ltd. AIR 2009 SC E
 2177 - relied on.

      5.1. A party to the election petition must plead the
 material fact and substantiate its averment by adducing
 sufficient evidence. The court cannot travel beyond the         F
 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 line
 of the pleadings. Even if the evidence is led that is just
 to be ignored as the same cannot be taken into                  G
 consideration. [Para 24] [236-D-E]
     5.2. In the case at hand, the election petitioner/
 respondent claimed that there was irregularity/illegality in
 counting of 6 tendered votes and the case squarely fell         H
    222       SUPREME COURT REPORTS            [2011] 2 S.C.R.


A within the ambit of Section 100(1)(d)(iii) of the 1951 Act.
  The election petitioner further pleaded that the result of
  the election stood materially affected because of improper
  reception of the six tendered votes and in absence of any
  Recrimination petition in the case (at the instance of
B appellant-returned candidate), the appellant cannot be
  permitted to lead evidence on the fact which is not in
  issue. It is evident from the pleadings that the case was
  limited only to 6 tendered votes and there had been no
  pleading in respect of the remaining 4 tendered votes
c either in the election petition or the written statement filed
   by the appellant. There is no reference to the other 4
  tendered votes either in the election petition or in the
  written statement. The said other 4 tendered votes neither
   had been relied upon in the reply by the appellant nor had
0 been entered in the list of documents. Also, in the
   application in question, the other 4 tendered votes were
   stated to be required by the parties to resolve the
   controversy without giving any reason or justification for
   the same. The facts and circumstances of the case,
   therefore, do not warrant review of the order passed by
E the High Court. [Paras 9, 27, 28, 29] [240-E-F; 229-G-H;
   241-F-H; 242-A-B]

        Dr. Wilfred D'Souza v. Francis Menino Jesus Ferrao AIR
    1977 SC 286 - distinguished.
F
          Jabar Singh v. Genda Lal AIR 1964 SC 1200 - followed.
        T.A. Ahammed Kabeer v. A.A. Azeez & Ors. AIR 2003
    SC 2271 - relied on.

G                        Case Law Reference:
          AIR 1977 SC 286                distinguished Para
                                                     4,5, 28
          AIR 2005 SC 2441               relied on    Para 10
H
  KALYAN SINGH CHOUHAN v. C.P. JOSHI            223

AIR 1968 SC 1500              relied on    Para 11    A
AIR 1982 SC 983               relied on    Para 12

AIR 1975 SC 403               relied on    Para 13
AIR 1966 SC 773               relied· on   Para 14
                                                      B
AIR 1975 SC 376               relied on    Para 14

AIR 2004 SC 541               relied on    Para 14

AIR 2004 SC 2036              relied on    Para 14
                                                      c
AIR 2006 SC 1218              relied on    Para 14

AIR 2006 SC 1791              relied on    Para 14

(2001) 1 sec 341              relied on    Para 14
AIR 1995 SC 2284              relied on    Para 14    D

(1898) 25 Ind. App. 195       referred to Para 16
AIR 1953 SC 235               relied on    Para 16
AIR 1961 SC 1097              relied on    Pam 16     E
AIR 2002 SC 665               relied on    Para 16

AIR 2005 SC 3165              relied on    Para 16

(201 o) 4 sec 518             relied on    Para 16
                                                      F
AIR 1987 SC 1242              relied on    Para 17
AIR 2009 SC 1103              relied on    Para 18
AIR 1956 SC 231               relied on    Para 19
                                                      G
(1902) 29 Ind. App. 76 (PC)   referred to Para 20
AIR 1968 SC 535               relied on    Para 20
AIR 1969 SC 1291              relied on    Para 20
                                                      H
    224      SUPREME COURT REPORTS             [2011) 2 S.C.R.


A         (2009) 15 sec 693              relied on     Para 20
          (2003) 8 sec 740               relied on     Para 22
          AIR 1930 PC 57                 referred to Para 22
          (1894-95) 22 Ind. App. 4 (PC) referred to Para 21
B
          AIR 1956 SC 593                relied on     Para 23
          AIR 1963 SC 884                relied on     Para 23
          AIR 1964 SC 164                relied on     Para 23
c
          AIR 1989 SC 1530               relied on     Para 23
          (2003) (7) sec 52              relied on     Para 23
          AIR 2009 SC 2177               relied on     Para 23
D         AIR 1964 SC 1200               followed      Para 25
          AIR 2003 SC 2271               relied on     Para 26
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 870
    of 2011.
E
         From the Judgment & Order dated 24.05.2010 of the High
    Court of Judicature for Rajasthan at Jodhpur in I.A. No. 6839
    of 2010 in S.B. Election Petition No. 1 of 2009.
F       Ram Jethmalani, U.U. Lalit, Miss P.R. Mala, Pranav Diesh,
    Karan Kalia, Samir Ali Khan for the Appellant.
         M.R. Calla, Mukul Kumar, V.K. Biju, Pratiksha Sharma,
    Milind Kumar for the Respondent.
G         The Judgment of the Court was delivered by
          DR. B. S. CHAUHAN, J. 1. Leave granted.
        2. This appeal has been preferred against the judgment
    and order dated 24.5.2010 in S.S. Election Petition No. 1 of
H
           KALYAN SINGH CHOUHAN v. C.P. JOSHI                   225
                  [DR. B.S. CHAUHAN, .J.]
    2009 and I.A. No. 6839 of 2010 of the High Court of Judicature     A
  ' for Rajasthan at Jodhpur. By the impugned judgment an.d order
1   the High Court rejected the application dated 11.5.201 Opraying
·1 for the summoning of certain documents on the ground that it
 [was not permissible to summon the said documents, i.e., those
 ' tendered votes in respect of which non~ of the parties h.ad taken   B
    the pleadings nor an issue had been framed in respect of those
    tendered votes and, thus, it was not permissible to lead any
    evidence on the fact which is not in issue. More so, on the
    ground of delay, the application had been filed after framing of
    the issues.                                                        c
        3. FACTS:
        (A) A Notification under Section 30 of the Representation
  of People Act, 1951 (hereinafter called as the 'Act 1951 ') dated
  10.11.2008 was issued by Election Commission for holding             D
  elections to constitute 13th Legislative Assembly for the State
. of Rajasthan including the election scheduled for Nathdwara
  Legislative Assembly No. 176 (hereinafter called as 'the
  constituency'). The appellant as well as the respondent filed
  their nominations and were candidates of recognised National         E
  Parties. The poll was held on 4.12.2008.
         (B). During the process of polling, there had been
    allegations/ challenges at various booths that at least 10 votes
    alleged to have been cast by imposters and thus, 1O tendered
    votes were cast under Rule 42 of the Conduct of Election Rules,
                                                                     F
    1961 (hereinafter called as the 'Rules 1961 '). The counting of
    votes took place on 8.12.2008 and the appellant contesting on
    the BJP ticket secured 62216 votes, while Shri C.P. Joshi (INC)
    secured 62215 votes. At the request of the election agent, a
    recounting took place under Rule 63 of the Rules 1961. G
    However, the result remained the same and, thus, the appellant
    was declared duly elected by a margin of one vote.
        (C) The respondent filed an election petition on 15.1.2009
    being S.B. Election Petition No. 1 of 2009 before the High         H.
    226       SUPREME COURT REPORTS                [2011] 2 S.C.R.


A Court of Rajas than under Sections 80, 81, 100(1 )(d)(iii) and
  Section 100(1)(d)(iv) of 1951 Act, inter-alia, alleging that:

          (i) Smt. Kalpana Kunwar and Smt. Kalpana Singh (wife of
          Petitioner) were one and the same person, but her name
          was registered at two places in the electoral rolls of the
B
          constituency and hence she had cast two votes in the ·
          election;

          (ii) Six (6) tendered votes cast in the election must be
          counted and the six (6) votes originally polled against the
c         tendered votes must be rejected.

         (D) The appellant filed the written statement contesting the
    said election petition and the trial is in progress in the High
    Court.
D      Both the parties have filed several applications before the
  High Court during the trial of the election petition and the
  appellant has approached this Court time and again as is
  evident from the orders dated 16.12.2009 passed in S.L.P(C)
  No. 33725 of 2009; 1.4.2010 in S.L.P.(C) No. 8212 of 2010;
E and 23.4.2010 in S.L.P(C) No. 10633 of 2010. Appellant filed
  an application under Order VI Rule 16 read with Section 151
  of the Code of Civil Procedure 1908 (hereinafter called as the
  'CPC') and Section 87 of the Act 1951 for the deletion of
  paragraph Nos. 13 to 19 of the election petition. The said
F application was dismissed by the High Court vide order dated
  19.11.2009. The appellant preferred S.L.P (C) No. 34688 of
  2009 which was dismissed by this Court vide order dated
  16.12.2009.

G      (E) The appellant preferred an application being I.A.
  No.6839 of 201 O dated 11.5.201 O to summon the marked
  copies of the electoral rolls; register of voters in Form No.17-
  A; and list of tendered votes in Form No.17-B relating to the
  polling station nos.68, 124 and 192 of the constituency.
H However, the said application has been dismissed by the High
       KALYAN SINGH CHOUHAN v. C.P. JOSHI                    227
              [OR. S.S. CHAUHAN, J.]
Court vide impugned judgment and order dated 24.5.2010.             A
Hence, this appeal.                            ·

      4. Shri Ram Jethmalani, learned senior advocate
appearing for the appellant, has submitted that in order to do
complete justice, all 10 tendered votes have to be recounted.       B
In view of the fact that there was margin of only one vote, the
law requires that all the tendered votes be counted. In order to
fortify his submission, Shri Jethmalani placed reliance on the
judgment of this Court in Dr. Wilfred D'Souza v. Francis
Menino Jesus Ferrao, AIR 1977 SC 286, wherein it had been
directed that all the tendered votes would be summoned and          C
taken into consideration, i.e., that all the tendered votes have
to be counted. The material issue in all the cases falling under
Clause {d) of Section 100 of the Act 1951 remains whether the
result of the election has been materially affected and,
therefore, once the appellant raised his statutory right to lead    D
evidence, in order to prevent the miscarriage of justice, it is
necessary that all the tendered votes be counted. Thus, the
impugned order is liable to be set aside.
      5. On the other hand, Shri M:R. Calla, learned senior E
advocate appearing for the respondent, has vehemently
opposed the ai'.'~eal contending that the principles of equity and
concept of substantial justice cannot be pressed into service
in the present case. The election petition is to be adjudicated ·
giving strict adherence to the statutory provisions without being F
influenced by any other concepts. The Court cannot permit a
party to lead evidence unless an issue has been framed on the
controversy and an issue cannot be framed unless there are
actual pleadings in respect thereof. The pleadings in the instant
case related only to the 6 tendered votes and an issue has been
framed only to that extent. Therefore, it is not permissible to take G
into consideration all 10 tendered votes. The judgment so
heavily relied upon by Shri Ram Jethmalani, learned senior
counsel, in Wilfred D'Souza's case {Supra) is quite
distinguishable as Recrimination Petition under Section 97 of
                                                                     H
    228      SUPREME COURT REPORTS                  (2011) 2 S.C.R.

A Act 1951 had been filed in that case. Thus, the ratio of the said
  judgment has no bearing in the case at hand. The appeal lacks
  merit and is liable to be dismissed.
         6. we· ha11.: considered the rival submissions made by
    learned counsel for the parties and perused the record.
8
        The relevant pleadings, taken in the election petition, in this
    regard, are in paragraph Nos. 13 to 19 of the election petition
    which cumulatively specifically provide:
c      The names of Smt. Kamla W/o Shri Champa Lal Rio Near
  Charbhuja Temple, Village Gudla, Tehsil Nathdwara, District
  Rajasmand appeared at serial number 311 in Part 27; Shri
  Mana S/o Shri Roda Rio Guda, Village Serna, Tehsil
  Nathdwara, District Rajsamand, appeared at serial number
D 1122 in Part 61; Ms. Bargat Banu D/o Shri Gani Rio Talesara
  Bhawan, Ward No. 19, Nathdwara, District Rajsamand
  appeared at serial number 146 in Part 73; Shri Dalu S/o Shri
  Navia Rio Village Soi Ki Bhagai, Post Khamnor, Tehsil
  Nathdwara, District Rajsamand appeared at serial no. 714 in
  Part 117; Smt. Nanu Wlo Shri Peer Mohammed Rio Neelgar
E Basti, Village Railmagra, Tehsil Railmagra, District Rajsamand
  appeared at serial number 866 in Part No. 180; and Shri
  Shamboo Lal S/o Shri Tulsi Ram Rio Kalbelia Basti, Village
  Banerdia, Tehsil Railmagra, District Rajsamand appeared at
  serial number 502 in Part 199 of the electoral roll of the
F constituency. When the aforesaid six voters reached the
  concerned polling station to cast their respective votes, they
  found that some imposters had a'.ready cast their votes by
  electronic voting machine. They completed the legal formalities
  by filling up Form 17-8 and were allowed to have tendered
G ballot papers and, thereafter, they cast their votes.
        7. It was further pleaded in paragraph 19 of the election
  petition that the aforesaid 6 tendered votes have been cast by
  genuine voters and must be counted. In paragraph 20, it has
H been submitted that because of the non-counting of the 6
            KALYAN SINGH CHOUHAN v. C.P. JOSHI                   229
                   [DR. B.S. CHAUHAN, J.]
    ltendered votes, the result of the election stood. materially       A
    Iaffected on account of improper reception of those votes. Thus,
    the same was liable to be rejected being not cast by· genuine.,,
    voters but by imposters.               .. .•
        8. In the written statement, the appellant has raised his       8
,   doubts in respect of the aforesaid 6 tendered votes but has not
    taken any specific pleadings in respect of remaining 4 tendered
    votes. In paragraph 20 of the written statement, it has been
    denied that the result of the election stood materially affected
    on account of improper reception of those 6 tendered votes.
                                                                        c
          In fact, the pleadings by both the parties in the election
    petition as well as in the written statement make reference only
    to 6 tendered votes and not to 10 tendered votes.
        9. In view of the pleadings taken by the parties, the High      DI
    Court framed only two issues:
           (i)    Whether Smt. Kalpana Kunwar, wife of the
                  respondent, is also known as Kalpana Singh and
                  whether she cast her vote at two Polling Stations
                  Viz. Polling Station No. 39 and Polling Station No.   E
                  40 of the Nathdwara Legislative Assembly
                  Constituency No. 176 and if so, what is the effect
                  on the election of the respondent?
           (ii)   Whether the six votes mentioned in Para Nos. 13 F
                  to 18 of the election petition were initially improperly
                  received and should be removed from the valid ·
                  votes and in their place tendered votes should be
                  taken into account?
          Therefore, it is evident from the pleadings that the case G
     has been limited only to 6 tendered votes and there had been
     no pleading in respect of the remaining 4 tendered votes either
     in the election petition or the written statement filed by the
     appellant.
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    230        SUPREME COURT REPORTS                  [2011] 2 S.C.R.

A      10. In Kai/ash v. Nanhku & Ors., AIR 2005 SC 2441, this
  Court held that the trial of an election petition is entirely different
  from the trial of a civil suit, as in a civil suit trial commences on
  framing the issues while trial of an election petition
  encompasses all proceedings commencing from the filing of
B the election petition up to the date of decision. Therefore, the
  procedure provided for the trial of civil suits under CPC is not
  applicable in its entirety to the trial of the election petition. For
  the purpose of the election petition, the word 'trial' includes the
  entire proceedings commencing from the time of filing the
c election petition till the pronouncement of the judgment. The
  applicability of the procedure in Election Tribunal is
  circumscribed by two riders : firstly, the procedure prescribed
  in CPC is applicable only "as nearly as may be", and secondly,
  the CPC would give way to any provisions of the Act or any
  rules made thereunder. Therefore, the procedure prescribed in
0
  CPC applies to election trial with flexibility and only as
  guidelines.
       1·1. In Harcharan Singh v. S. Mohinder Singh & Ors., AIR
  1968 SC 1500, this Court considered the application of
E doctrine of equity and substantial justice etc. in election law and
  came to the conclusion as under :-

          "The statutory requirements of election Jaw must be
          strictly observed. An election dispute is a statutory
F         proceeding unknown to the common law; it is not an
          action at law or in equity. ...... The primary purpose of
          t/1e diverse provisions of the election law which may
          appear to be technical is to safeguard the purity of the
          election process, and the Courts will not ordinarily
          minimise their operation." (Emphasis added)
G
        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,
H         anomalously enough, neither a fundamental right nor a
                                                       /
     KALYAN SINGH CHOUHAN v. C.P. JOSHI                       231
            [DR. B.S. CHAUHAN, J.]
    Common Law Right. It is pure and simple, a statutory right. A
    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, D
    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         E
    statute."
    (Emphasis added)

    13. In Chanda Singh v. Ch. Shiv Ram Varma & Ors., AIR
1975 SC 403, this Court held as under:-                              F
     "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
                                                                  H
    232       SUPREME COURT REPORTS                 [2011] 2 S.C.R.


A         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,
B          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:
E
          (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;
F
          (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
G         (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                       233
               [DR. B.S. CHAUHAN, J.]
& Ors., AIR 2004 SC 2036; Tanaji Ramchandra Nimhan v.                    A
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                      8
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   C
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         D
 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             E
 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                F
 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.)                                                       G
    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,      H
    234        SUPREME COURT REPORTS                     [2011] 2 S.C.R. .


A         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
B         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."

C       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.-
D         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.
E
                 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
F         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.
G
                  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
H
       KALYAN SINGH CHOUHAN v. C.P. JOSHI                      235
              [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."
                                                                       B
     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.           D
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      E
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                   F
(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          H
    236       SUPREME COURT REPORTS                 [2011] 2 S.C.R.

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
G         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),
H
   KALYAN SINGH CHOUHAN v. C.P. JOSHI                        237
          [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 B
   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 E
   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 F
   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 G
   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, H
     238         SUPREME COURT REPORTS                 [2011] 2 S.C.R.


A          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
B          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
·c         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)
D
         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:

E          "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
G          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
H          ·100(1)(d)(iii) of the Act, the scope of enquiry shall remain
  KALYAN SINGH CHOUHAN v. C.P. JOSHI                     239
         [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 B
 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      C
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 D
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 E
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.                                        F
      (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 G
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     H
                                    .
    240       SUPREME COURT REPORTS                  [2011]2 S.C.R.


A         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,
8         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
c         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
D
          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 100 of the Act.•
E       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                    241
              [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     B
     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             C
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         D
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     E
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
                                                                     F
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.   G
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.
 '                                                                   H
    242      SUPREME COURT REPORTS               [2011) 2 S.C.R.

A        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.B.                                     Appeal dismissed.