Krishna Iyer, J. - (1.) By a plurality of less than 2000 votes the appellant was declared elected from the Nuh constituency to the Haryana Assembly in the general election held on March 11, 1972. He was an Independent candidate while his main rival; the first respondent, represented the Indian National Congress. There were three others in the field two of whom were Independents and the third a Jan Sangh nominee- all of them polled poorly. In the electoral history of the constituency fickle fortune has been smiling now on the appellant, now on the first respondent. It also happens that while the appellant had been a Deputy Minister when he was elected to the Haryana Legislative Assembly last from the same constituency in 1967, at the following general election in May 1968 to the same Assembly (before its term the Assembly was dissolved and the non-Congress Government went out of office) the first respondent was elected and he became a Member of the Cabinet formed by the Congress party. The next election fell in 1972 where both figured as combatants from Nuh and we are concerned with the validity of the result declared in favour of the appellant by the returning officer in the present appeal, the High Court having set aside the election.
(2.) It is apparent that the competitive politics of the Nuh constituency has expressed itself through the appellant and the first respondent for quite a long time now and, as the voting figures of the latest poll shows the contest has been contentious and close. In such battles of the ballot where personal feuds foul the air, the decencies and norms set by the law may often be the first casualty. Anyway the disappointed first respondent hastened to challenge the appellant's election on various grounds of "corrupt practices". The High Court has upheld a few of them and voided the appellant's election, a miss being as good as a mile. The campaign pollutants must 'be kept down at the polls if electoral disenchantment is not to grip the general community. The Court, in this regard, is the sentinel on the quivive.
(3.) Shri Bindra, learned counsel for the appellant, has argued the case in minute detail, countered by Shri Sharma, for the first respondent; but since at the appellate level jejune infirmities and probative trivialities may not tilt the scales even on the principle of Juncta Juvant, we will focus largely on the major circumstances. The correct appellate perspective in an election case has been indicated by this Court and we are bound to set out our sights on those lines. In Laxminarayan v. Returning Officer, AIR 1974 SC 66 at page No. 78 the implied limitations on the appellate power under Section 116-A were stated thus: "It can reappraise the evidence and reverse the trial court's findings of fact. But like any other power it is not unconfined:It is subject to certain inherent limitations in relation to a conclusion of fact. While the trial court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanour, the appellate Court is confined to their evidence on record. ********** In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this he must do something more than merely ask for a reassessment of the evidence. He must show wherein the assessment has gone wrong." In Karemore's case (supra) this position was re-stated thus: "Before a finding of fact by a Trial Court can be set aside it must be established that the Trial Judge's findings were clearly unsound, perverse or have been based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies. This is not to say that a Trial Judge can be treated as infallible in determining which side is indulging in falsehoods or exaggerations ........ ********** While, as we have said earlier, it is open to this Court to reappraise the evidence and consider the propriety, correctness or legality of the findings recorded by the Trial Court ordinarily it will be slow to disturb the findings of fact recorded by the High Court, unless there are cogent reasons to do so." An appeal is a re-hearing but the trial Court's finding will be upturned not when it is short of right but only when it is wrong. We will view the case from this angle.;