1. Heard on admission.
2. This petition, under Article 227 of the Constitution, is directed against the order dated 13-12-2010 (Annexure P-1), passed in MJC No. 06/2010 by the First Additional District Judge, Tikamgarh, whereby he has requisitioned the ballot papers in a sealed cover from the office of District Election Officer for inspection. 2. The petitioner and respondents contested the election for the Office of President, Nagar Panchayat, Kari, District Tikamgarh. The counting of votes was held on 15-12-2009 and on the same date petitioner was declared elected. The result showed that petitioner secure 1780 votes and respondent No. 1, 1647 votes. Aggrieved with the result declared, respondent No. 1 has filed an election petition against the petitioner and remaining respondents. In the election petition, he has alleged that 200 votes cast in his favour were illegally declared invalid on a flimsy ground of there being some small ink marks or spots on the ballot papers. Respondent No. 1 has inter alia prayed that he be declared elected in place of petitioner. The petitioner in his reply, while defending the election result, has denied the allegation of respondent No. 1.
3. On the pleadings made, the Trial Court has framed as many as eight issues out of which issue Nos. 2 and 3 read as under :
HINDI MATTER
4. Respondent No. 1 and petitioner have examined seven witnesses each in support of their averments. The trial of the election petition is also at the fag end. It is at this stage the Trial Court, by the impugned order, has called for inspection 355 ballot papers which were declared invalid during the counting. These ballot papers also include 200 ballot papers which. according to respondent No. 1, were cast in his favour but were illegally declared invalid.
5. The learned Counsel for petitioner has argued that the Trial Court gravely erred in calling the ballot papers for inspection without there being any foundation. In support of his submission the learned Counsel cited two decisions of this Court in Uday Singh Vs. Himmat Singh, 1999 (1) JLJ 200 and Kailash Singh Vs. Narayan Singh, 1999 (1) JLJ 342. He has also placed reliance on Hari Ram Vs. Hira Singh, reported in (1984) 2 SCC 36. The learned Counsel appearing for respondent No. 1, on the other hand, submitted that truth should not only be revealed but must also prevail. He strongly defended passing of the impugned order by the Trial Court.
6. It is not in dispute that the Trial Court has the jurisdiction for calling the ballot papers for inspection. The only question, therefore, which calls for consideration is whether, in the fact situation of case, it is justified in doing so.
7. Respondent No. 1 in his evidence has testified that 200 votes caste in his favour were illegally declared invalid at the time of counting, and his objections in this regard were not responded by the officers concerned. If these votes are found by the Trial Court to be illegally declared invalid, the result of election will be materially affected. The above quoted issues can best he decided only after ballot papers, which were declared invalid, are inspected in the Court. In Ram Sewak Yadav Vs. Hussain Kamil Kidwai, AIR 1964 SC 1249 the Supreme Court, while examining Rule 93 of the Conduct of Election Rules, 1961, has categorically held that in a proper case where the interest of justice demanded, the Tribunal can call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers. We find this is what the Trial Court has done in the present case.
8. There cannot be any denial to the law laid down by this Court in the cases of Uday Singh and Kailash Singh (supra), that order of recount cannot be passed merely for asking only on pleadings without framing of issues and evidence to support order of recount. But in the case at hand, not only the issues have been framed, respondent No. 1 has also adduced evidence to the effect that 200 votes cast in his favour were illegally declared invalid on a flimsy ground of there being some small ink marks or spots on the ballot papers. It is also to be noted that the Trial Court has not ordered recounting of votes. It has only called the ballot papers for inspection to properly decide the issues framed.
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r />9. In the case of Hari Ram (supra), relied upon by the petitioner, it is not clear as at what stage the High Court had by an interlocutory order, directed for the production and inspection of electoral rolls and counter files warranting interference by the Supreme Court. This case also, therefore, does not help the petitioner. 10. For these reasons, we find no merit in the petition. It fails and is accordingly dismissed summarily. Writ Petition dismissed.
