JUDGMENT K. N. Misra, J. - This First Appeal From order under Rule 49 of the U. P. Kshettra Samitis (Election of Pramukhs and UpPramukhs and Settlement of Election Disputes) Rules, 1962 is directed against order dated 1st October, 1984 passed by the Election Tribunal/IV Additional District Judge, Gonda in Election Petition No. 76 of 1983, Saleem Mohd v. Baldeo Singh and four others by which the election of the appellant SamiuIIah as Block Pramukh has been set aside and respondent No. 1 Saleem Mohammad has been declared elected as Block Pramukh of Sri Dutt Ganj Block, district Gonda. 2. Briefly stated, the facts of the case are that the election of Block Pramukh of Block Sri Dutt Ganj was notified to he held on 29th May, 1983. Since six persons were contesting in the election for the said post, and, as such, polling took place on the said date. Counting of votes was done by the returning officer on the same day, i. e. on 2951983 and it was found that the appellant Samiullah had polled 44 votes and the respondent No. 1 Saleem Mohammad had also received 44 votes. Since both these persons had polled equal votes, the returning officer held lottery between the appellant and respondent No. 1 and as a result thereof, appellant Samiullah was declared duly elected in the said election as Block Pramukh of Sri Dutt Ganj Block, district Gonda. The appellant took charge of the office and started functioning as such. Respondent No. 1 Saleem Mohammad filed an electionpetition under Rule 35 of the U. P. Kshettra Samitis (Election of Pramukhs and UpPramukhs and Settlement of Election Disputes) Rules, 1962 (hereinafter to be referred to as the Rules). This petition was filed before the District Judge, Gonda and it was transferred to the Court of IV Additional District Judge, Gonda, who decided this electionpetition by order dated 1st October, 1984 declaring respondent No. 1 Saleem Mohammad as elected in place of appellant. This order has been challenged in this appeal by Samiullah. 3. I have heard learned counsel for the parties at some length and have perused the impugned order and other relevant papers. 4. This order has been challenged in this appeal by Samiullah. 3. I have heard learned counsel for the parties at some length and have perused the impugned order and other relevant papers. 4. Learned counsel for the appellant urged that it has been wrongly held by the IV Additional District Judge, Gonda (hereinafter to be referred to as the Judge for the sake of brevity) that the ballot paper No. 72 is invalid and the same should not have been counted as first preference vote in favour of the appellant. It was pointed out that the learned Judge has wrongly held that no mark of first preference was put on ballot paper No. 72. He placed before me the photostat copy of ballot paper No. 72, which is on record, to indicate that first preference mark was put against the name of the appellant Samiullah and second preference was noted against respondent No. 2 Saleem Mohammad. His contention was that the first preference mark was quite legible and clearly decipherable. It was pointed out by the learned counsel that the voter has recorded first and second preference while casting his vote. Against the name of the appellant Samiullah the numerical digit mark 1' was written and against the name of Saleem Mohammad numerical digit 2' was noted. Learned counsel further pointed out that the learned Judge has not cared to look to the statement of Saleem Mohammad who himself had stated that first preference mark was put against the name of Samiullah, but it was encircled by the voter to identify him. He pointed out that the learned Judge has, thus, erred in holding that on ballot paper No. 72 first preference mark was not put by the voter by ignoring the evidence on record. The finding recorded is also contrary to the evidence of respondent No. 1 himself, referred to above. It was further contended that this ballot paper No. 72 has not been rejected by the learned Judge as invalid on the ground that the voter while casting his first preference vote has made a mark by which he may afterwards be identified. Learned counsel, thus, urged that the findings recorded by the learned Judge deserve to be set aside being absolutely wrong and against the evidence on record. 5. Learned counsel, thus, urged that the findings recorded by the learned Judge deserve to be set aside being absolutely wrong and against the evidence on record. 5. Learned counsel for the appellant had next contended that an application under Rule 39 of the Rules was moved by the appellant on 1101984 for leading evidence in order to indicate that even if the electionpetitioner would have been declared as elected, his election deserved to be declared void as one of such ballot paper has been counted in favour of the electionpetitioner in spite of the fact that first preference mark was put against the name of the appellant while mark of second preference was put against the name of electionpetitioner. It was further asserted that there were three such more ballot papers in which no preference marks were put and some such marks were also made which could disclose the identity of the voter. These ballot papers ought to have been declared void and have been wrongly counted in favour of the electionpetitionerrespondent No. 1. It was asserted by the appellant that he could not lead evidence on the point because the proceedings were hurriedly carried and in the interest of justice he be given opportunity to lead evidence as contemplated in Rule 39 of the Rules. It was pointed out by the learned counsel that this application was rejected by order quoted below: Judgment has been almost completely written. Only it is to be pronounced. Further no such plea was taken. Sufficient opportunity was given to adduce evidence. The application has not merit, hence rejected." It appears that the aforesaid application was moved by the appellant before the judgment was pronounced in the case. It was urged by the learned counsel for the appellant that the learned Judge erred in rejecting said application even without caring to look to the provisions of Rule 39 which relate to recrimination and provides : "39. It was urged by the learned counsel for the appellant that the learned Judge erred in rejecting said application even without caring to look to the provisions of Rule 39 which relate to recrimination and provides : "39. When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election." The learned counsel also referred to the provisions of Rule 44 which is extracted below : " 14. Ground for which a candidate other than the returned may be declared to have been elected. If any person who has lodged an election petition has in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Judge is of the opinion that in fact the petitioner or such other candidate received a majority of the valid votes, the Judge shall after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate as the case may be, to have been duly elected : "Provided that the petitioner or such other candidate shall not be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition has been presented calling in question his election." Referring to the above provision learned counsel urged that apart from the provision contained in Rule 39 it was necessary for the learned Judge to have considered whether respondent No. 1, on the facts and circumstances indicated in the said application, could or could not be declared elected. It was urged that in view of the provisions of Rule 44, the election petitioner, who had made a prayer for being declared as duly elected, could not be declared to be duly elected if it is proved that the election of such candidate would have been void if he would have been the returned candidate and a petition had been presented calling in question his election. Learned counsel pointed out that if the appellant would have been permitted to lead evidence in support of the facts stated in the aforesaid application moved under Rule 39 of the Rules, the respondent No. 1 could not, in any view of the matter, be declared elected as certain votes which were counted in his favour were invalid on the ground mentioned in said application. Learned counsel, thus, strenuously contended that the aforesaid application filed by the appellant for leading evidence in support of the facts stated in said application deserved to be allowed and the Learned Judge has acted in hot haste in rejecting the application on the ground that the judgment was almost completely written and no such plea was taken and sufficient opportunity was given to adduce evidence. So far as the question of giving sufficient opportunity to the appellant to lead evidence in support of the facts stated in said application was concerned, the learned counsel contended that there was no question of giving opportunity to the appellant to lead evidence on the facts stated in the said application. It was pointed out that the facts stated in aforesaid application were sought to be proved by moving the aforesaid application. It was, thus, urged that the learned Judge acted illegally and with material irregularity in rejecting said application and passing the impugned order setting aside the election of the appellant. 6. In reply to the above, learned counsel for the opposite party No. 1 urged that the learned Judge has rightly held that no first preference mark was put on ballot paper No 72 and the same was, thus, rightly held to be invalid vote. He strenuously contended that no reasonable person can read the mark put against the appellant Samiullah as first preference mark and the court below has committed no error in holding that this ballot paper does not contain the first preference mark. In reply to the aforesaid second submission learned counsel for the respondent urged that the aforesaid application dated 1101984 cannot be treated to be one falling under Rule 39. His contention was that this application should have been in the form of electionpetition as is required to be moved under Section 97 of the Representation of the People Act. In reply to the aforesaid second submission learned counsel for the respondent urged that the aforesaid application dated 1101984 cannot be treated to be one falling under Rule 39. His contention was that this application should have been in the form of electionpetition as is required to be moved under Section 97 of the Representation of the People Act. Referring to the proviso to Section 97, learned counsel urged that the returned candidate or such other party will not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of trial, given a notice of his intention to do so and has also given the security and the further security as is required under the Rules framed under the Kshettra Samiti Act. Learned counsel contended that although there is no proviso contained in Rule 39 of the Rules like the one to Section 97 of the Representation of the People Act, but the principles contained therein would have to be observed even in the electionpetition filed under the U. P. Kshettra Samiti (Election of Pradhan and UpPradhan and Settlement of Election Disputes) Rules. Learned counsel had further contended that an analogous provision quite similar to the proviso to Section 97 of the Representation of the People Act is to be found out in Rule 44 of the Rules. Referring to this provision learned counsel urged that since application dated 1101984 moved by the appellant under Rule 39 of the Rules was not maintainable as it was not drawn up in the form of electionpetition, and, as such, it cannot be treated to be a recrimination petition. Learned counsel contended that such a recrimination petition under Rule 39 should have been filed within a reasonable period although under the proviso to Section 97 of the Representation of the People Act such recrimination application is to be moved within two weeks from the date of commencement of the trial. 7. I have carefully considered the arguments of the learned counsel for the parties and I find much substance in what has been urged by the learned counsel for the appellant. 8. 7. I have carefully considered the arguments of the learned counsel for the parties and I find much substance in what has been urged by the learned counsel for the appellant. 8. Firstly, in dealing with the point urged by learned counsel for the appellant with regard to aforesaid application dated 1101984 moved under Rule 3) of the Rules, I find that under this Rule no limitation is prescribed for moving recrimination petition similar to one as provided under the proviso to Section 97 of the Representation of the People Act. It also does not provide for being accompanied by a statement and particulars as required under subclause (2) of Section 97 which requires that a recrimination petition under Section 97 is to be accompanied by statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in the like manner. The proviso to Section 97 of the Representation of the People Act also prescribed for giving security and further security referred to in Sections 117 and 118 respectively. No such restriction is to be found in Rule 39 of the Rules. It is, thus, evident that a recrimination petition under Rule 39 of the Rules could be moved by a returned candidate prior to the decision in the election petition. It is, no doubt, correct to say that in the absence of limitation prescribed for moving recrimination petition under Rule 39 it is to be moved within a reasonable time, but the application cannot be rejected merely on the ground that it is filed at the fag end of the case. It is not to be expected of a party to give all the details on which it has asserted that the votes counted in favour of opposite party were not valid unless the ballot papers are perused and scrutinized. It has come in evidence o*' G. W. 1, who had brought the ballot papers in sealed cover in the court, that the ballot papers were opened and all of them were scrutinized and he had given evidence referring to the ballot papers. It is at this stage that a party could know about the votes polled and those counted in his favour or in favour of the Opposite Parties. It is at this stage that a party could know about the votes polled and those counted in his favour or in favour of the Opposite Parties. The evidence of C. W. 1 was recorded on 27th September, 1984 and the arguments were heard two days thereafter, i. e. 29th September, 1984. The case was listed for orders on 1101984. It was on this, date that the aforesaid application under Rule 39 was moved by the appellant. This application, therefore, cannot be taken to have been moved on insufficient ground or there was any lack of bona fides on the part of the appellant in moving said application just in order to delay disposal of the case. This application was undoubtedly moved prior to the pronouncement of the judgment although it was moved on the date fixed for pronouncement of the judgment. The learned Judge has rejected the application on the ground that no such plea was taken in the written statement. But while making such observation, he forgot to consider that if such plea would have been made in the written statement, there would have been no necessity for moving recrimination application subsequently by the applicant. Recrimination petition under Rule 39 could be moved by the returned candidate before the case is decided and within a reasonable period. 9. In the present case, as already observed above, there appears to be no laches on the part of the appellant or lack of bona fides on his part in moving said application. Since vital question of facts were raised in the application, the learned Judge ought to have given an opportunity to the appellant to establish the facts stated in the petition. This would have been also of assistance to the learned Judge while deciding the electionpetition wherein twofold prayer was made; one of declaring the election of the returned candidate to be void and the other to declare the election petitioner to have been duly elected. The proviso to Rule 44 casts duty on the court while passing orders in petitions containing such prayers. It specifically provides that the petitioner or such other candidate shall not be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition has been presented calling in question his election. It specifically provides that the petitioner or such other candidate shall not be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition has been presented calling in question his election. Thus, in the present case when certain facts were mentioned in the aforesaid application moved by the appellant, the learned Judge should have permitted the electionpetitioner to lead evidence to scrutinize whether the electionpetitioner could or could not be declared duly elected. Thus, in this view of the matter I am of the opinion that the learned IV Additional District Judge has erred in rejecting the aforesaid application moved by the appellant and it has resulted in great miscarriage of justice. 10. In coming to the aforesaid point with regard to the ballot paper No. 72, I do not want to express my opinion on the merits of all the contentions in detail. It will suffice to say that the learned Judge while holding that ballot paper No. 72 does not contain first preference mark has not cared to look to the statement of the respondent No. 1 who had deposed that the voter while recording his first preference on ballot paper No. 72 in favour of the appellant Samiullah had encircled it which would disclose his identity. The respondent had not stated chat this ballot paper No. 72 does not contain first preference mark in favour of appellant Samiullah. The learned Judge has, however, recorded a finding that this ballot paper does not at all contain first preference mark. This ballot paper has not been declared invalid on the ground that the voter has put such a mark on it by which he may afterwards be identified It has been rejected on the ground that no first preference mark is put on this ballot No. 72, but such a case has not been stated by respondent No. 1 when he was examined as A. W. 1. Learned counsel for the respondent had pointed out that in the pleadings contained in the electionpetition it was asserted that this ballot paper No. 72 does not bear the first preference mark. A plea was also raised that it bears such mark by which the voter may be afterwards identified. Learned counsel for the respondent had pointed out that in the pleadings contained in the electionpetition it was asserted that this ballot paper No. 72 does not bear the first preference mark. A plea was also raised that it bears such mark by which the voter may be afterwards identified. Although there is a plaeding in the electionpetition that ballot paper No. 72 does not bear the first preference mark, but in the statement the electionpetitioner, who was examined as A. W. 1, had not stated that case. He had on the other hand deposed that first preference mark was put by the voter against the name of appellant Samiullah and it was encircled so that the voter may be identified. In the cross examination it was put to the witness as to who had cast this vote, to which he replied that he is not aware of it and it is only the person in whose favour it has been cast may be able to tell about it. It is, thus, clear that respondent No. 1 himself admitted that ballot paper No. 72 bears mark of first preference. But it was asserted by him that it was encircled by the voter so that he may be identified. The learned Judge has not rejected this ballot paper to be invalid on the that ground, but he has rejected this ballot paper merely on the ground that this vote does not bear the mark of first prefe ence. The learned Judge, has, thus, not cared to look to the evidence on record while recording a finding on the said crucial question as to whether ballot paper No. 72 is invalid or not. Since the case is being remanded back to the learned Judge for deciding it fresh, I do not want to express any opinion on this crucial question. He would now proceed to decide the case recording a finding on the said question as to whether ballot paper No. 72 is invalid or not on the basis of evidence on record so far led by the parties relating to said ballot paper. He will also consider on merits the evidence which may hereinafter be examined by the parties on the facts mentioned in recrimination application referred to above. 11. He will also consider on merits the evidence which may hereinafter be examined by the parties on the facts mentioned in recrimination application referred to above. 11. In the result, this appeal succeeds and is hereby allowed and the judgment and order dated 1101934 passed by the Election Tribunal/IV Addiiional District Judge, Gonda is hereby set aside and the case is remanded for decision afresh according to law and in the light of observations made above. The learned Judge will now proceed to give opportunity to the appellant to lead evidence in support of his application dated 1101984 and also to give opportunity to the respondent No. 1 to lead evidence in rebuttal. As this case is pending since long, the learned Judge will proceed to decide it within three months. No order as to costs. 12. The lower court record and the sealed ballot papers which were received but not opened in this Court are to be sent to the learned District Judge, Gonda through special messenger within ten days. (Appeal allowed).