Pushpendra Singh Sengar vs Brij Mohan And 4 Others
2023 Latest Caselaw 7946 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 6
 

 
Case :- WRIT - C No. - 8180 of 2023
 

 
Petitioner :- Pushpendra Singh Sengar
 
Respondent :- Brij Mohan And 4 Others
 
Counsel for Petitioner :- Ajay Sengar
 
Counsel for Respondent :- C.S.C
 

 
Hon'ble Pankaj Bhatia,J.

Heard Shri Rakesh Pandey, learned Senior Advocate assisted by Shri Ajay Sengar, learned counsel for the petitioner and Shri R.K. Ojha, learned Senior Advocate assisted by Shri Dhirendra Srivastava for the respondent no. 1.

The contention of the counsel for the petitioner is that challenging the election of the petitioner, an election petition was filed on various grounds. He argues that after exchange of pleadings issues were framed on 16.01.2023 and no issue with regard to recounting was made by the tribunal. Hearing the petitioner, subsequently, on an application filed under Section 151 CPC by the respondent no. 1, by means of the impugned order, the said application has been allowed and directions have been issued for recounting which according to the counsel for the petitioner was bad in law. He argues that recounting the order may be passed at the time of final decision, but the same cannot be done by moving an application under Section 151 CPC that too when no issues in that regard was framed.

Shri R.K. Ojha, appearing on behalf of respondent argues that the documents as desired by the respondent no. 1 was not provided to him, which led to the filing of the application under Section 151 CPC and no error has been committed while passing the order impugned. He relies upon the judgment of this Court in the case of Raj Kumar Sahi Vs. Smt. Vibha ? 2003 0 Supreme(All) 657 to impress that if the Court is of the view that it is expedient in the interest of justice that recounting is to be ordered, the same can be done on an application filed under Section 151 CPC.

The submission of the counsel for the respondent is, prima facie, not acceptable as from the reasons disclosed in the application filed under Section 151 CPC, there is no contention of the respondent so as to direct the recounting as an interim measure.

As per the submission of the counsel for the respondent, non-supply of documents can not be a ground of filing an application under Section 151 CPC for collection of evidence.

The law with regard to recounting is well settled and can be ordered only when the circumstances exist. In view of the law laid down by the judgment of the Apex Court in the case of Rekha Rana (Smt.) v. Jaipal Sharma and others ? 2009 (76) ALR 484 (SC).

In view of the law as clearly as explained the impugned order dated 01.03.2023 is unsustainable and is quashed with directions to the court below to hear the election petition itself on merits in accordance with law within a period of three months, if possible.

No party shall be granted unnecessary adjournment and the parties would be at liberty to take such steps as may be advised under law in respect of any order that are passed against them.

The writ petition is disposed off in above terms.

Order Date :- 20.3.2023

Ashutosh