Judgment : First respondent was declared elected to Ward No.19 of Mayyanadu Grama Panchayath of Kollam District in the election held on 24-9-1995. Petitioner and respondents 2 and 3 were the other candidates. First respondent secured 385 votes out of the total polled votes of 1029. Petitioner received 382 votes, second respondent 5 votes and third respondent 230 votes. 27 votes were declared invalid. Petitioner filed O.P. (Ele.) 2 of 2005 before Additional Munsiff, Kollam to set aside the election of the first respondent. The election was challenged only on the ground of double voting. It was contended in the election petition that there were 13 double votes. The details of the votes were specifically pleaded. First respondent resisted the election petition denying the case of double voting. After the election petition was included in the special list petitioner filed, I.A. 1090 of 2006 on 4-3-2006 to amend the election petition incorporating the detail of one more double voting and to incorporate a relief of declaration that petitioner is the elected candidate. It was allowed and evidence was recorded. On the side of the petitioner, 14 witnesses were examined and Ext. A-1 and A-2 and X-1 to X-42 were marked. On the side of first respondent no evidence was adduced. Learned Munsiff on evidence found that there were 9 double votes and the majority being only three votes the double votes had materially effected the result of the election. It was found that the said void votes are to be excluded. While so excluding, it was found that petitioner has secured 382 votes and first respondent only 376 votes. Consequently it was found that petitioner should have been declared as the elected candidate instead of the first respondent. Election of first respondent was set aside and petitioner was declared the returned candidate from Ward No.19 of Mayyanadu Grama Panchayath with a majority of 6 votes. First respondent challenged that order before District Court, Kollam in A.S. (Election) 94 of 2007. Learned District Judge on re-appreciation of the evidence found that election of the first respondent was set aside on finding that there were 9 double votes and when the said void votes are excluded petitioner secured 6 votes more than what was secured by first respondent. Learned District Judge on re-appreciation of the evidence found that election of the first respondent was set aside on finding that there were 9 double votes and when the said void votes are excluded petitioner secured 6 votes more than what was secured by first respondent. It was found that the finding on the 9 double votes was, based on comparison of the signatures, arrived at by the learned Munsiff without the assistance of an expert and based on the comparison of the signatures of the witnesses with the signatures seen in the counterfoil receipts. Learned District Judge, relying on the decision of the Apex Court in Bharathan v. Sudhakaran 1996 (1) K.L.T. 466found that learned Munsiff should not have rendered a finding solely based on the comparison of the signatures, without the aid of a report from an expert. Therefore the order of the learned Munsiff was set aside and election petition was remanded to Munsiff Court for fresh disposal after getting a report on the identity of the disputed signatures from an expert and entering a definite finding on the identity of the persons whose names appear in both the lists and voted. The order of remand is challenged in this revision petition filed under Section 115 of the Code of Civil Procedure. 2. Learned counsel appearing for petitioner and learned senior counsel appearing for first respondent were heard. 3. Learned counsel appearing for petitioner argued that learned District Judge was not justified in remanding the election petition based on the decision of the Apex Court in Bharathans case (supra). It was argued that in that case there were altogether more than 300 disputed votes and on the facts of that case it was found that the Court should not have taken the hazardous task of adjudication upon the genuineness and authenticity of the signatures without the assistance of a skilled and trained person. It was argued that in that case there were altogether more than 300 disputed votes and on the facts of that case it was found that the Court should not have taken the hazardous task of adjudication upon the genuineness and authenticity of the signatures without the assistance of a skilled and trained person. The learned counsel relied on the following observation of Their Lordships held in Bharathans case: "23 As we are satisfied on the peculiar facts of this case also that the learned Judge was not right in deciding hundreds of the disputed signatures by comparing the counterfoils by himself to declare the votes as void, we need not go into other arguments advanced before us." It was argued that as far as this case is concerned there were only 13 disputed double votes and the signatures to be compared were only 10 and Trial Court has accepted case of only 9 double votes and in such circumstances relying on the finding in Bharathans case, learned District Judge should not have remanded the case. Learned counsel relied on the decision of the Apex Court in Thiruvengada Pillai v. Navaneethammal 2008 (2) K.L.T. 267 and argued that it is not the law that Court is not competent to compare the signature or thumb impression as provided under Section 73 of Indian Evidence Act, and instead even without the report of an expert, Court is competent to compare the signature or thumb impression and arrive at its own conclusion. Learned counsel also relied on the following findings of the Apex Court in Neelalohithadasan Nadar v. George Mascrene 1994 (1) K.L.T. 887 which reads: "15 ……..The High Court finally recorded its satisfaction or otherwise in the case of signatures resulting in double voting and impersonation, and signatures and thumb impression not tallying at all. No meaningful argument on facts in regard thereto was addressed before us except to the approach of employing S.73 of the Evidence Act. It was urged that the High Court should not have become an expert. We, however, are of the view that when larger public interest is served by expeditious disposal of an Election Petition, then the course adopted by the High Court, as suggested from the afore-extraction, is in conformity therewith. It was urged that the High Court should not have become an expert. We, however, are of the view that when larger public interest is served by expeditious disposal of an Election Petition, then the course adopted by the High Court, as suggested from the afore-extraction, is in conformity therewith. Although courts should be slow in resorting to this method, we do not find it faulted, more so when the Courts resort to exercise of such power is approved in two other cases of this Court in State (Delhi Administration) v. Pali Ram [1979 (1) S.C.R. 931] and Mulari Lal v. State of Madhya Pradesh [1980 (2) S.C.R. 249]. As a sequator the finding recorded by the High Court on Issue No.1 is perfectly sound." Pointing out that in that case findings of the High Court on the identity of signatures arrived at after comparing the signatures on the question of double voting and impersonation were confirmed by the Apex Court, it was argued that learned District Judge was not justified in reversing the order of the learned Munsiff and remanding the election petition. It was argued that on the evidence it was established that there were 9 void votes which are to be excluded and when those votes are excluded, first respondent secured 6 votes less than the votes secured by the petitioner and in such circumstances the order of remand is not sustainable. The learned counsel argued that when evidence of the disputed voters themselves about the identity of the signatures in the counterfoil receipts are sufficient to prove double voting, there were no necessity for the assistance of an expert and on the evidence on record, learned District Judge should have found that there were more void votes, than the majority secured by first respondent and in such circumstances the order of remand was not warranted. Learned counsel also argued that P.W.5 Zakir Hussain admitted that he had voted in Booth No.2 and as per his version he did not cast his vote in Booth No.3 but at the time of cross-examination, he admitted Ext. X-28 counterfoil relating to Booth No.2 and Ext. X-38 counterfoil in respect of Booth No.3 and when P.W.5 himself admitted his signatures in respect of both the booths, no further evidence is necessary to prove that fact much less opinion of an expert. X-28 counterfoil relating to Booth No.2 and Ext. X-38 counterfoil in respect of Booth No.3 and when P.W.5 himself admitted his signatures in respect of both the booths, no further evidence is necessary to prove that fact much less opinion of an expert. It was also pointed out that P.W.8 Sajeera admitted that she voted in Ward No.19, but when Ext. X-26 counterfoil receipt in respect of Ward No. 19 was confronted, she denied her signature therein. At the same time, though P.W.8 denied the case that she had cast her vote in Ward No.4, when Ext. X41 the counterfoil in respect of the said Booth was confronted, she admitted her signature. It was argued that in the light of evidence of P. W.8 that she voted in Ward No.19, her denial of signature in Ext. X-26 is false and though she denied voting in Ward No.4, admission of her signature in Ext. X41 counterfoil establish that she had voted in Ward No.4 and therefore no further evidence is necessary to prove that double voting. Similarly it was argued that P.W. 12 Salim admitted that he voted in Ward No. 19, but when Ext. X-25 counterfoil relating to the said booth was confronted, he denied the signature and when Ext. X-40 was confronted he admitted his signature therein, though he denied the case that he cast his vote in Ward No. 20. It is therefore argued that no evidence of an expert is necessary to hold that P.W.12 voted in Ward No. 20 in view of his admission of identity of the signature in Ext. X-40 and P.W.12 admitted that he had cast his vote in Ward No.19 also. It was also argued that similarly P.W.13 Sajeena and P.W. 10 Sainudeen admitted that they voted in Ward No. 19, but when Ext. X-29 and X-22 counterfoil receipts in respect of Ward No.19 were confronted, they denied their signatures and when Ext. X-39 and Ext. X-34 counterfoil receipts in respect of Ward No.3 were confronted, they admitted their signatures and though P.W. 13 and P. W.10 denied the case that they casted votes in Ward No. 3, Exts X-39 and X-34 establish that they casted their votes both in Ward No.3 also and therefore evidence of P.Ws. 5, 8, 10, 12 and 13 establish at least 5 double voting which are to be excluded as void votes. 5, 8, 10, 12 and 13 establish at least 5 double voting which are to be excluded as void votes. Learned counsel argued that even if the evidence with regard to other double voting is not acceptable because of the denial of the signature in the counterfoil receipts and failure to get the reports of an expert, as evidence of P.Ws. 5, 8, 12, 13 and 10 establish double voting and therefore learned District Judge should not have remanded the case to the Trial Court. It was argued that when the majority is only 3 and evidence prove that 5 votes secured by first respondent are void votes and when they are to be excluded, there is no necessity to interfere with the order declaring that petitioner is the elected candidate. 4. Learned senior counsel appearing for first respondent argued that learned District Judge rightly found that case of double voting cannot be decided based on comparison of signatures of the witnesses examined by the Court without the aid of an expert and there is no reason to interfere with the order of remand. Learned senior counsel argued that originally, in the election petition, apart from the relief of setting aside the election no relief that petitioner was the duly elected candidate was sought and even though the election petition was filed on 26-4-2007, I.A.1090 of 2006, the application for Amendment of Election Petition incorporating the relief of declaration that petitioner is the elected candidate was filed only on 4-3-2006 and even though amendment was allowed as no objection filed, learned Munsiff was not justified in allowing the application seeking a decree for declaration that petitioner is the elected candidate. It was vehemently argued by the learned senior counsel that while allowing the application for amendment learned Munsiff did not consider the question of limitation. It was pointed out that under Section 99 of Kerala Panchayat Raj Act when an election petition contains a declaration that any candidate other than the returned candidate has been duly elected, returned candidate is entitled to file a recrimination petition and by allowing the petition to amend the election petition incorporating a relief of declaration that petitioner is the elected candidate, first respondent lost the said right, which was not taken into consideration by the learned Munsiff. It was argued that if petitioner had originally sought a declaration, first respondent could have contended that petitioner also secured double votes which are to be excluded and by allowing the said relief to be incorporated at a belated stage, petitioner lost the opportunity and therefore learned Munsiff should not have allowed the amendment application at all. 5. Learned senior counsel relying on the decisions of the Apex Court in Ram Sewak Yadav v. Hussain Kamil Kidwai A.I.R. 1964 S.C. 1249, Ram Surat Singh v. Harish Chandra Mahato 1975 S.C. 701, Narayanan v. Semmalai 1980 S.C. 206, Balaram v. Aravindakshan 1988 (1) K.L.T. 165, Dominic v. Gopalakrishnan 1993 (2) K.L.T. 88, P. K. K. Shamsudeen v. K.A.M. Mappillai Mohiddin and others A.I.R. 1989 S.C. 640, M.R. Gopalakrishnan v. Thachadi Prabhakaran A.I.R. 1995 (2) Supplement S.C.C. 101 and T.A. Ahammed Kaber v. A.A. Azeez A.I.R. 2003 S.C. 2271 argued that the principle of maintaining secrecy of the ballot papers other secret records were violated by the learned Munsiff. It was argued that opening of the secret documents could be permitted only when the Court is satisfied that there are sufficient grounds and that too based on a finding that a cast iron case was made out and in this case secret documents were made available to the parties by summoning them and even before the disputed voters were examined, secret documents were got marked through P.Ws.2 to 4 and the very procedure is irregular. Learned counsel argued that secret documents like counterfoil receipts and other records were opened and made available to the counsel and the witnesses at a time when there was no evidence whatsoever with regard to double voting, and attempt of the petitioner is to make use of the evidence which should not have been let in by the Trial Court and therefore based on that evidence election cannot be set aside. 6. Learned District Judge did not decide the appeal on merits. After discussing the findings of the Trial Court it was found that election was set aside and petitioner was declared the elected candidate based on the finding that there were 9 double votes. Learned District Judge found that the said finding was arrived at by the Munsiff based on comparison of the signatures of P.Ws. 5, 8, 12, 13, 10, 6, 9, 11 and 14. Learned District Judge found that the said finding was arrived at by the Munsiff based on comparison of the signatures of P.Ws. 5, 8, 12, 13, 10, 6, 9, 11 and 14. The learned District Judge did not analyze the evidence and found whether evidence of P.Ws. 5, 8, 12, 13 and 10, who admitted their signatures in the counterfoils in respect of polling booths where they denied that they casted votes are sufficient to establish double voting. The argument of the learned counsel appearing for the petitioner is that if the evidence of P.Ws. 5, 8, 12, 13 and 10 were appreciated properly, learned District Judge would not have remanded the case to the Trial Court as their evidence is sufficient to prove that there are 5 void votes, which are to be excluded from the votes secured by first respondent, and as a result that evidence is sufficient to set aside the election of the first respondent and to declare that first respondent was duly elected. 7. The question whether evidence of P.Ws. 5, 8, 12, 13 and 10 establish double voting depend upon the acceptability of their evidence with reference to the counterfoil receipts in respect of Ward No.19 and Ward Nos.3, 4, 5 and 20. The argument of the learned senior counsel is that the counterfoil receipts should not have been opened and therefore the evidence of P.Ws. 5, 8, 10, 12 and 13 based on the counterfoil receipts are to be eschewed and if so there is no evidence to decide the question of double voting as claimed by the petitioner and evidence of an expert as found by the learned District Judge is necessary. 8. The Constitution Bench of the Apex Court in Rain Sewak Yadav v. H.K. Kidwai A.I.R. 1964 S.C. 1249 considering the power of the Court to summon ballot papers held: "(6) An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case. If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a Civil Court is invested under the Code of Civil Procedure when trying a suit. But the power which the Civil Court may exercise in the trial of suits is confined to the narrow limits of 0.11 Code of Civil Procedure. But the power which the Civil Court may exercise in the trial of suits is confined to the narrow limits of 0.11 Code of Civil Procedure. Inspection of documents under 0.11 Code of Civil Procedure may be ordered under R.15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under R.18(2) of other documents in the possession or power of the other party. The returning officer is not a party to an election petition and an order for production of the ballot papers cannot be made under 0.11 Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers: that power is clearly implicit in Ss.100 (1)(d)(iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from 0.11 Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Ss.94 and 128(1). .(7) An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: .(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection at the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. .(9) There can be therefore no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes and to demand a recount. Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a recount. It is in the light of the provisions of S.83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered." Considering the necessity to maintain secrecy of the ballot papers it was held that there can be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes and to attempt a recount and a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened and the votes were counted has also opportunity of inspecting them and a concise statement of the material facts on which the petitioner relies to set aside the election are to be pleaded in the election petition. 9. Apex Court in Sasanagouda v. Dr. 9. Apex Court in Sasanagouda v. Dr. S.B. Amarkhed A.I.R. 1992 S.C. 1163 relying on the decision in Ram Sewak Yadav v. H.K. Kidwais case (supra) held: "(9) Thus to maintain the secrecy of ballot papers unless adequate material facts are on record which alone would afford adequate basis to exercise the discretion by the Court; the packets or the used ballot papers with counterfoils attached thereto or the packets of used ballot papers whether valid, tendered or rejected cannot be opened. Equally the packets of declarations by electors and the authorization of their signatures shall not be opened unless ordered by the Court in that behalf. The Court shall not permit a roving enquiry to enable the defeated candidate/election petitioner to have access thereto to fish out the grounds. The High Court, would therefore, be circumspect to order summoning that records covered under R.93(1). To effectuate the objects of S.135A of the Act it may be open to the rule making authority to have fresh look into the mandatory language of R.93 (1), so as to bring it in conformity with S. 135A of the Act." 10. Apex Court in Babhi v. Sheo Govind 1976 (1) S.C.C. 687 laid down certain guidelines and conditions which are imperative before a Court can permit inspection of ballot papers. The conditions are reiterated in M.R. Gopalakrishnan v. Thachadi Prabhakaran AIR 1995 Supp. (2) S.C.C. 101. Apex Court in Babhi v. Sheo Govind 1976 (1) S.C.C. 687 laid down certain guidelines and conditions which are imperative before a Court can permit inspection of ballot papers. The conditions are reiterated in M.R. Gopalakrishnan v. Thachadi Prabhakaran AIR 1995 Supp. (2) S.C.C. 101. The conditions so laid down are as follows: "(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; .(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; .(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a re-count; .(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; .(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and .(6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a re-count, and not for the purpose of fishing out materials." 11. The said guidelines are reiterated in Sathyanarain Dudhani v. Uday Kumar Singh 1993 Supplement (2) S.C.C. 82, and it was held that secrecy of ballot papers cannot be permitted to be tinkered with lightly and only when the Court is satisfied on the basis of material facts pleaded in the petition and supported by contemporaneous evidence re-count can be ordered. 12. 12. In N. Narayanan v. S. Sernmalai A.I.R. 1980 S.C. 206 the following principles necessary for opening of the ballot papers were laid down: "The Court would be justified in ordering a recount of the ballot papers only where; .(1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; .(2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and The court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties." In T.A. Ahammed Kabeer v. A.A. Azeez A.I.R. 2003 S.C. 2271 Apex Court considered this aspect again and held: "(26) The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of ballot must be zealously guarded. On account of a rigid following of these principles the election Courts are inclined to lean in favour of the returned candidates and place the onus of proof on the person challenging the result of election, insisting on strict compliance with the rules of pleadings and excluding such evidence from consideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should not be unduly stretched; for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only he should represent the constituency who has been chosen by the majority of the electors. This is the purpose and object of the election law. (27) Though the inspection of ballot papers is to be allowed sparingly and the Court may refuse the prayer of the defeated candidate for inspection if, in the garb of seeking inspection, he was indulging into a roving enquiry in order to fish out materials to set aside the election, or the allegations made in support of such prayer were vague or too generalized to deserve any cognizance. Nevertheless, the power to direct inspection of ballot papers is there and ought to be exercised if, based on precise allegations of material facts, also substantiated, a case for permitting inspection is made out as is necessary to determine the issue arising for decision in the case and in the interest of justice. As held by the Constitution Bench in Ram Sewak Yadav v. Hussain Kamil Kidwai and others, [(1964) 6 S.C.R. 238] an Election Tribunal has undoubtedly the power to direct discovery and inspection of documents within the narrow limits of Order XI of Code of Civil Procedure. Inspection of documents under Rule 15 of Order XI of Code of Civil Procedure may be ordered of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under Rule 18(2) of other documents in the possession or power of the other party. The returning officer is not a party to an election petition and an order for production of the ballot papers cannot be made under Order XI of Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers which power is clearly implicit in Ss. 100(1)(d)(iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from Order XI Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Ss. 94 and 128(1). However, the Constitution Bench has cautioned, by the mere production of the sealed boxes of ballot papers before the Election Tribunal pursuant to its order the ballot papers do not become part of the record and they are not liable to be inspected unless the Tribunal is satisfied that such inspection is in the circumstances of the case necessary in the interests of justice. (28) It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. (28) It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard haying been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to." 13. The argument of the learned senior counsel is that declaration of law by Apex Court establish that the very procedure adopted by the learned Munsiff was irregular and based on the illegal and irregular evidence, election cannot be set aside as canvassed by the petitioner herein. 14. Learned counsel appearing for respondent pointed out that the decisions relied on by learned senior counsel are in respect of cases where election result is challenged claiming recounting which cannot be applied in a case where election is challenged on the ground of double voting. Reliance was placed on the decision of the Apex Court in Neelalohithadasan Nadar v. George Mascrene 1994 (1) K.L.T. 887. 15. The election was sought to be set aside in this case on the ground of double voting. The question is whether principles which are applicable to a case of recounting are to be applied in such a case. The challenge made by learned senior counsel with regard to the acceptability of the evidence based on the secret documents, admitted in evidence, was considered by the Apex Court in Neelalohithadasan Nadars case. It was held that when purity of election and principles of secrecy of ballot papers are to be balanced, principles of purity of election must have weighed over the secrecy of ballot. Their Lordships held: "(10) The existence of the principle of `secrecy of ballot cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. It was held that when purity of election and principles of secrecy of ballot papers are to be balanced, principles of purity of election must have weighed over the secrecy of ballot. Their Lordships held: "(10) The existence of the principle of `secrecy of ballot cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. See in this connection Raghbir Sing Gill v. Gurucharan Singh [ 1980 (3) S.C.R. 1302]. But this right of the voter is not absolute. It must yield to the principle of `purity of election in larger public interest. The exercise of extrication of void votes under S. 62(4) of the Act would not in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as no votes at all. Secrecy of ballot principle presupposes a validity cast vote, the sanctity and sacrosancy of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the `secrecy of ballot as an allied vital principle. It was observed by this Court in Raghbir Singhs case (supra) at page 1320 as follows: `Secrecy of ballot undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy or ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can co-exist but as stated earlier, where one is used to destroy the other. the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play. the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play. .(11) In view of the above it is the settled position that out of the two competing principles, the purity of election principle must have its way. S.94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process. .(12) That both the Election Petition and Recrimination Petition were dealt with on the principle of `purity of election is not in dispute. The approach of the High Court on the subject on the commonality of the attack also cannot be questioned. But what was questioned by Mr. Parshant Bhushan, as reiterated in his written submissions of 14th September, 1993, was that the High Court was not correct in allowing examination of marked copies of electoral rolls and counterfoils without any evidence or material in support of the plea for inspection and that the High Court allowed the inspection casually without inviting a written application or even by a written order. It was submitted that except for pleadings in the election petition regarding void voting, there was no cause pleaded to permit the election papers to be thrown open for inspection and this exercise was termed by learned counsel as `fishing or roving. Rule 93 of the Conduct of Election Rules, 1961, provides for documents which shall not be opened and their contents inspected by, or produced before, any person or authority except under the orders of a competent court. On the basis thereof it was maintained that by a string of judgments of this Court it has been ruled that inspection could only be allowed when two conditions are satisfied: .(1) The material facts on the basis of which inspection of documents is sought, must be clearly and specifically pleaded; and .(2) The Court must be satisfied on evidence, even if in the form of affidavit, that it is necessary to allow inspection in the interest of justice." (Underline supplied) 16. Considering the validity of permitting the examination of ballot papers by this Court Their Lordships held: "(13) Yet the inspection was open to both the parties without any objection having ever been raised by the appellant. In the facts and circumstances, we fail to see how the principle of secrecy of ballot can be imported to question the power of the Court to orally allow inspection in its endeavour to eliminate the impurity in elections, the opportunity provided having been availed of without demur by both parties. In this situation, it is difficult for us to digest the argument that here the High Court proceeded to allow inspection without being satisfied on evidence, even in the form of affidavit, that it was necessary to allow inspection in the interest of justice. Since the names of the voters who were alleged to have double voted, had specifically been pleaded in the Election Petition (as amended from time to time) and the Recrimination Petition, it was necessary to co-relate their names with the electoral rolls and the counterfoils of the ballot papers so that in case of double voting or impersonated voting, the impure element in the election process could be identified and retrieved from the election package. The primary purpose thus was to purify the electoral process and not to hunt or hound the voters choice, when exercised validly and freely. It is for that purpose that the Court, in the interest of justice, to facilitate a quick trial permitted the parties to inspect beforehand the records but after the framing of the requisite issues arising from the pleadings of the parties and not earlier. This approach could not be termed as permitting a `roving or fishing enquiry, as it is some times described in cases of a claim for recount. We are thus of the view that the High Court committed no error in permitting such inspection in the facts and circumstances." .17. As in this case want of a finding of a cast iron case was raised therein. Analyzing that aspect it was held: ."(14)....It was also commented that no material facts, in the form of affidavits by single persons or polling agents alleging that they had seen and heard about those persons having voted twice was filed in support of the petition. Analyzing that aspect it was held: ."(14)....It was also commented that no material facts, in the form of affidavits by single persons or polling agents alleging that they had seen and heard about those persons having voted twice was filed in support of the petition. It is maintained that in the absence of evidence of these particulars being pleaded as to the source of knowledge of double voting it was dangerous to allow enquiring into such an allegation on the bare allegation of double voting. We have pondered over this matter but regretfully do not accept the argument of the learned counsel. If a name has been registered twice enabling a person to take the advantage of voting in two different polling stations, S.62 mandates that if he polls both these votes then both votes are void. A void vote cast is a vote void ab initio. In the nature of things the void taint in the election would have to be traced to the election papers for without that bare oral evidence would be of no use, and at best would be word against word, making application of S. 62 (4) well neigh impossible. If the election petitioner on some information, material or otherwise is able to entertain the belief that a particular voter, double registered, is known to have voted twice, he can certainly plead to that fact on his own entertained belief and need not ordinarily resort to be giving details of the sources of his information or knowledge or the entertainment of his belief because registration of double vote is by itself the starting point; the exercise of both votes being the second. The election petitioner had specifically mentioned and in clear cut terms that 19 persons had double voted. The question was not resoluble merely on oral evidence, whether they had or had not, except to put those persons into the witness box, hear their version and confront them with the election papers. The sphere of enquiry at that stage is to the voting and not for discovering the name of the person to whom the vote was cast. That inevitably has to be found out after double voting or impersonated voting has been found out leading to the new step to trace them and nullify them. The sphere of enquiry at that stage is to the voting and not for discovering the name of the person to whom the vote was cast. That inevitably has to be found out after double voting or impersonated voting has been found out leading to the new step to trace them and nullify them. On the pleading of the parties as such, on both sides, a case for inspection at the stage when it was done had been made out. We thus find no error committed in the approach of the High Court." .18. In the light of the settled legal position as declared by the Apex Court, the procedure adopted by learned Munsiff cannot be challenged. It is not possible to ignore the evidence recorded by the learned Munsiff, based on confronting the counterfoil receipts to the witnesses. As held by the Apex Court in that case, election petition discloses the allegation with regard to the double voting in detail. What is sought to be proved is that certain voters have figured in two separate booths and they have exercised their votes in both the booths and therefore the votes are void. When the details of those persons and the booths where they had allegedly cast their votes twice were specifically pleaded, permission granted by the Court to confront the counterfoil receipts containing their alleged signatures cannot be ignored as canvassed by the learned senior counsel, on the ground that .principles of secrecy of ballot has to be preserved. Moreover, secrecy is attached to the ballot paper and not to the counterfoil receipts, though Rule 55 provides for safe custody of the packets of the used ballot papers whether valid, rejected, cancelled or tendered and all other records relating to election. In such circumstances it cannot be said that the evidence of P.Ws. 5, 8, 12, 10 and 13 on the identity of signatures in Exts. X-2, X-1, X-3, X-25, X-6, X-12, X-28, X-29, X-22, X-34, X-38, X-39 to X-41 are to be ignored. 19. If that be the case, question is whether learned District Judge was justified in remanding the election petition for fresh disposal after getting report of an expert. 5, 8, 12, 10 and 13 on the identity of signatures in Exts. X-2, X-1, X-3, X-25, X-6, X-12, X-28, X-29, X-22, X-34, X-38, X-39 to X-41 are to be ignored. 19. If that be the case, question is whether learned District Judge was justified in remanding the election petition for fresh disposal after getting report of an expert. Though learned District Judge relied on the decision in Bharathans case (supra) where the necessity to get the opinion of an expert on the signature was laid down, as pointed out by the learned counsel appearing for petitioner that was a case where comparison of hundreds of signatures were involved. A similar question was subsequently considered by the Apex Court in Neelalphithadasan Nadars case. The question posed by the Apex Court was also on whether High Court has exercised the power under Section 73 of the Evidence Act in comparing the admitted and proved handwriting of the voter, with the disputed one to come to the conclusion whether a particular voter had voted twice or just once based on the signature of the counterfoils of the ballot papers obtained at one polling booth, with the counterfoils obtained from another polling booth. Following the earlier decision in Fakruddin v. The State of Madhya Pradesh 1967 S.C. 1326 relied on by this Court, it was held: "(15) High Court finally recorded its satisfaction or otherwise in the case of signatures resulting in double voting and impersonation, and signatures and thumb impression not tallying at all. No meaningful argument on facts in regard thereto was addressed before us except to the approach of employing S.73 of the Evidence Act. It was urged that the High Court should not have become an expert. We, however, are of the view that when larger public interest is served by expeditious disposal of an Election Petition, then the course adopted by the High Court, as suggested from the afore-extraction, is in conformity therewith. Although courts should be slow in resorting to this method, we do not find it faulted, more so when the Courts resort to exercise of such power is approved in two other cases of this Court in State (Delhi Administration) v. Pali Ram [1979 (1) SCR. 931] and Murari Lal v. State of Madhya Pradesh [1980 (2) S.C.R. 249]. Although courts should be slow in resorting to this method, we do not find it faulted, more so when the Courts resort to exercise of such power is approved in two other cases of this Court in State (Delhi Administration) v. Pali Ram [1979 (1) SCR. 931] and Murari Lal v. State of Madhya Pradesh [1980 (2) S.C.R. 249]. As a sequator the finding recorded by the High Court on issue No.1 is perfectly sound." The power of the Court under Section 73 of Evidence Act to compare the signatures, the disputed with the admitted, without the aid of an expert cannot be questioned. Therefore for that sole reason judgment of the learned Munsiff could not be set aside. 20. Then the question is whether on the evidence it is possible to hold that P.Ws. 5, 8, 10, 12 and 13 casted their votes in two booths. Learned counsel relying on their evidence argued that their evidence establish that those witnesses casted their votes in two separate booths. The argument is based on the admission of the witnesses on voting and identity of signatures in the counterfoil receipts shown to them. It was argued that even though witnesses denied the case that they voted twice, they admitted that they did cast their votes in one booth and when the respective counterfoil receipts of the booths where they admittedly voted were shown, they either denied the same or admitted counterfoil receipts of the disputed booths also and therefore their evidence establish that they casted their votes in two polling booths and so there was double voting. But learned District Judge did not reappreciate their evidence. Instead based on the decision of the Apex Court in Bharathans case, it was found that decision of the learned Munsiff was rendered on comparison of signatures alone and therefore order is not sustainable. In such circumstances even if evidence is not sufficient to enter a finding on double voting alleged against P.Ws. 6, 9, 11 and 14 learned District Judge should have analyzed the evidence of P.Ws. 5, 8, 10, 12 and 13 and found whether without evidence of an expert on the identity of the signatures, their evidence establish that they casted votes twice in the same constituency. As the learned District Judge did not consider the same it is necessary to send the appeal back to the learned District Judge for fresh disposal. 5, 8, 10, 12 and 13 and found whether without evidence of an expert on the identity of the signatures, their evidence establish that they casted votes twice in the same constituency. As the learned District Judge did not consider the same it is necessary to send the appeal back to the learned District Judge for fresh disposal. 21. Learned senior counsel appearing for respondent pointed out that in the appeal first respondent specifically challenged the order passed by the learned Munsiff allowing amendment of the election petition and Munsiff should not have allowed the amendment application. Relying on the decisions of the Apex Court in K. Venkateswara Rao and another v. Bekkam Narasimha Reddy and others A.I.R. 1969 S.C. 872, Hukumdev Narain Yadav v. Lalit Narain Mishra A.I.R. 1974 S.C. 480, Rishabh Kumar & sons v. State of U.P. & ors. A.I.R. 1987 S.C. 1577, Balaram v. Aravindakshan 1988 (1) K.L.T. 615, Anandavally v. Ajitha 2001 (1) K.L.T. 211 or 2001 (3) K L.T. 758 it was argued that the amendment petition should not have been allowed. Learned counsel also pointed out that by the amendment petitioner incorporated a prayer for declaration that he is the elected candidate, which was not there originally in the election petition and by allowing the election petitioner to incorporate such a plea, first respondent lost his valuable right of recrimination as provided under Section 99 of Kerala Panchayat Raj Act. As provided under explanation to Section 93(1) of Kerala Panchayat Raj Act, trial of an election petition shall be deemed to commence on the date fixed for the respondents to appear before the Court and answer the claim or claims made in the petition. A recrimination petition, as provided under the proviso to sub-section 1 of Section 99 is to be filed not later than 14 days from the date of commencement of the trial. A recrimination petition, as provided under Section 99, can be filed only if in the election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed. When the original prayer in the election petition was only to set aside the election of the first respondent, there was no necessity for first respondent to point out the void votes counted in favour of the election petitioner. When the original prayer in the election petition was only to set aside the election of the first respondent, there was no necessity for first respondent to point out the void votes counted in favour of the election petitioner. Therefore by allowing an amendment of the election petition incorporating a relief of declaration, first respondent was deprived of his right to lodge a recrimination petition. Unfortunately this aspect was not taken note of by the learned Munsiff. First respondent in the appeal has set up a case that in any case the election petition with regard to the declaration that petitioner is the elected candidate will not stand. As this aspect was also not considered by the learned District Judge, petitioner is entitled to agitate the question before the learned District Judge. 22. In the result, the revision petition is allowed. Order of the learned District Judge in A.S. (Election) 94 of 2007 is set aside. A.S.(Election) 94 of 2007 is remanded to District Court, Kollam for fresh disposal in accordance with law, in the light of the observations made above. Learned District Judge is to dispose the appeal as expeditiously as possible, at any rate within six months from the date of receipt of a copy of the order.