Kailash Nath Misra, J. - (1.) THIS First Appeal From Order under Rule 49 of the U.P. Kshettra Samitis (Election of Pramukhs and Up -Pramukhs and Settlement of Election Disputes) Rules, 1962 is directed against order dt. 1st October, 1984 passed by the Election Tribunal/IV Additional District Judge, Gonda in Election Petition No. 76 of 1983, Saleem Mohmood v. Baldeo Singh and four others by which the election of the appellant Samiullah as Block Pramukh has been set aside and respondent No. 1 Saleem Mohmood has been declared elected as Block Pramukh of Sri Dutt Ganj Block district Gonda. Briefly stated, the facts of the case are that the election of Block Pramukh of Block Sri Dutt Ganj was notified to be held on 29th May, 1983. Since six persons were contesting 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 29 -5 -1983 and it was found that the appellant Samiullah had polled 44 votes and the respondent No 1 Saleem Mohamood 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 Datt Ganj block, district Gonda. The appellant took charge of the office and started functioning as such. Respondent No. 1 Saleem Mohmood filed an election -petition under Rule 35 of the U.P. Kshettra Samitis (Election of Pramukhs and Up -Pramukhs 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 election -petition by order dt. 1st October, 1984 declaring respondent No. 1 Saleem Mohamood as elected in place of appellant. This order has been challenged in this appeal by Samiullah.
(2.) I have heard learned counsel for the parties at some length and have perused the impugned order and other relevant papers. 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 photo state 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 Mahmood. 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 Mohmood numerical digit '2' was noted. Learned counsel further pointed out that the learned Judge has not cared to look to the statement of Saleem Mohmood, 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.
(3.) LEARNED counsel for the appellant had next contended that an application under Rule 39 of the Rules was moved by the appellant on 1.10.1884 for leading evidence in order to indicate that even if the election -petitioner 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 election -petitioner 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 election -petitioner. It was further asserted that there were three such more ballot papers in which no preference marks were put end some such marks were also made which could disclose the identify of the voter. These ballot papers ought to have been declared void and have been wrongly counted in favour of the election -petitioner -respondent 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.;