Himachal Pradesh High Court
Dr. Abhishek Manu Singhvi vs Harsh Mahajan on 10 April, 2026
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
EMP No. : 5 of 2025 in
Election Petition No. : 1 of 2024
Reserved on : 10.03.2026
Decided on : 10.04.2026
Dr. Abhishek Manu Singhvi …Petitioner/
of
Applicant
Versus
Harsh Mahajan
rt …Respondent/
Non-applicant
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes
For the petitioner/ : Mr. Prashant Sen and Mr. Neeraj
applicant Gupta, Senior Advocates,
assisted by Mr. Mudit Gupta and
Mr. Ajeet Pal Singh Jaswal,
Advocates.
For the respondent/ : Mr. Satya Pal Jain, Senior
non-applicant Advocate, assisted by Mr.
Davesh Moudgil, Mr. Virbahadur
Verma, Mr. Vikrant Thakur, Mr.
Aditya Singh Thakur, Mr.
Shubham Singh Guleria and Ms.
Prajwal Busta, Advocates.
1
Whether Reporters of local papers may be allowed to see the judgment? Yes.
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Virender Singh, Judge.
EMP No. 5 of 2025
.
The petitioner has moved the present application,
under Section 87(1) of the Representation of The People Act,
1951 (hereinafter referred to as ‘the Act’), with a prayer to
strike off/delete the names of the proposed witnesses, as
of
mentioned in the list of witnesses, furnished by the
respondent/non-applicant.
rt
2. Brief facts, leading to the filing of the present
application, as borne out from the record, may be summed
up, as under:
3. Petitioner-Dr. Abhishek Manu Singhvi has
challenged the election of respondent-Harsh Mahajan to the
Council of States, from Himachal Pradesh, as void and
further declaring the petitioner, as, the elected candidate in
terms of Section 84 read with Section 101 (a) of the Act.
4. After the completion of the pleadings, this Court
has framed the following issues, on 2nd April 2025:
“1. Whether in view of the tie of votes, the
candidate on whom the lot fell, i.e. the petitioner,
ought to have been declared as the Returned
Candidate in terms of the provisions of Section 65
of the Representation of People Act, 1951 and the
Conduct of Election Rules, 1961? OPP::: Downloaded on – 10/04/2026 20:41:37 :::CIS
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2. Whether the petitioner consented to the election
procedure and, if so, whether he is estopped from
maintaining the present election petition? OPR.
3. Whether the election petition is not
maintainable in terms of the provisions of the
Representation of People Act, 1951? OPR
4. Relief.”
5. Thereafter, the matter was listed before the
of
Additional Registrar (Judicial) for recording the evidence of
the petitioner. Subsequently, the matter was again listed
rt
before the Court, as, a request was made by the learned
counsel appearing for the parties, to permit them to file
additional documents. On 16th June, 2025, the learned
counsel representing the petitioner has made a statement
before the Additional Registrar (Judicial) that the petitioner
does not want to file the additional documents, whereas, the
learned counsel appearing for the respondent sought more
time to file the additional documents. The said prayer of the
learned counsel for the respondent was opposed by the
learned counsel for the petitioner, as, such, the matter was
listed before the Court on 11th July, 2025, where, the learned
counsel appearing for the respondent has also made a
statement that no additional documents were required to be
filed. On 11th July, 2025, the learned counsel appearing for
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the petitioner has also made a statement, depicting therein,
the intention of the petitioner not to lead any evidence.
.
6. Since, the onus to prove issues No. 2 and 3 was
on the respondent, as such, the respondent had reserved his
right to lead evidence. In order to ascertain the effect of the
petitioner’s not leading the evidence, the matter had been
of
listed on 6th August, 2025, when, the submissions of the
learned counsel appearing for the petitioner were heard.
rt
Subsequently, on 14th August, 2025, the contentions, which
were earlier raised by the learned counsel for the petitioner,
were not pressed and the matter was, thereafter, listed for
admission and denial of the documents. On the said date,
i.e. 14th August, 2025, a composite order has been passed by
the Court to conclude the admission and denial of the
documents on 26th August, 2025 and thereafter, the
respondent was directed to file the list of witnesses,
alongwith the requisite process fee, and the matter was
ordered to be listed before the Additional Registrar (Judicial)
for 12th September, 2025, for fixing the date for recording the
evidence of the respondent’s witnesses, by directing the
Registrar to record the evidence, as expeditiously as possible.
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7. On 12th September, 2025, list of witnesses was
submitted by the respondent and matter was ordered to be
.
listed for 6th October, 2025, for recording the statements of
RWs, mentioned at serial No. 1 to 5, in the list of witnesses.
8. On 6th October, 2025, the instant application has
been filed, seeking striking off/deletion of proposed
of
witnesses, from the list of witnesses, furnished by the
respondent, contending that the petitioner has laid challenge
rt
to the election of the respondent, on the ground of erroneous
application of Section 65 of the Act read with Rules 75 and
81 of the Conduct of Election Rules, 1961, by the Returning
Officer.
9. Highlighting Rule 22 of the Rules of Procedure
and Guidance in the Matter of Trial of Election Petitions,
under Part VI of the Act, as well as, Order XVI Rule 1 of the
CPC, it has been pleaded that it is mandatory for the parties
to file the list of witnesses, not later than fifteen days, after
the date, when the issues are settled, whereas, according to
the petitioner, the list of witnesses has been filed by the
respondent on 11th September, 2025 and issues were framed
on 2nd April, 2025.
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10. Further, highlighting the inbuilt safeguards, in
the shape of Section 87 (1) of the Act, it has been prayed that
.
although, the respondent has submitted the list of, as many
as, eighteen witnesses, however, the inclusion of witnesses at
serial No. 2 to 14, is nothing, but, delaying tactics, in order
to delay the adjudication of the Election Petition.
of
11. According to the petitioner, there is no
requirement to propose and examine certain witnesses for
rt
the mere purpose of producing/calling for records and the
main intention of the respondent is to delay the proceedings.
12. Lastly, it has been pleaded that the list of
witnesses, proposed by the respondent, is vague,
unnecessary, frivolous and vexatious, which would cause
prejudice to the petitioner.
13. Hence, a prayer has been made to delete/strike
off the proposed witnesses, mentioned at serial No. 2 to 14.
14. The application is duly supported by the affidavit
of the petitioner.
15. When put to notice, the application has been
contested by the respondent, by filing reply, contending
therein, that the application under consideration is wholly
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misconceived, untenable in law and abuse of the process of
law.
.
16. According to the respondent, the application
proceeds on erroneous assumptions and seeks to prevent the
respondent from leading material and relevant evidence,
which directly pertains to the issues, framed by this Court,
of
on 2nd April, 2025.
17. As per the stand of the respondent, the names of
rt
the witnesses have been proposed bonafidely and their
testimonies are material and necessary for the just
adjudication of the case.
18. It is the further case of the respondent that the
scope of the evidence, in an Election Petition, is to be
determined by the issues framed, not, on the basis of the
petitioner’s subjective understanding of what evidence ought
to be led to prove the same. According to the respondent, his
right to lead evidence is the substantive statutory and
essential right and proviso to Section 87 (1) is a narrow
exception, which is to be exercised sparingly and only when
the evidence is demonstrably frivolous or irrelevant, or to
delay the proceedings.
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19. It has been contended on behalf of the respondent
that he is entitled to fully establish the legality of the
.
procedure adopted and draw of lots; the consent given by the
petitioner amounts to waiver, acquiescence and estoppel; the
factual proceedings that occurred on the date of election;
and, the absence of any non-compliance with the Act or
of
Conduct of Election Rules.
20. According to the respondent, the discretion,
rt
vested in the Court, under Section 87 (1) of the Act is to be
exercised only when the evidence is wholly immaterial to the
issues; or when the witness is tendered solely for causing
delay in the proceedings.
21. Reasserting the fact that issue No. 1, framed on
2nd April, 2025, directly concerns with legality of the
procedure adopted by the Returning Officer, upon the tie of
votes and the consequent declaration of result and the
witnesses, as mentioned in the list, have been proposed to be
examined, for just and fair adjudication of the dispute, it has
been pleaded, on behalf of the respondent, that his right to
lead evidence, in support of the issues framed, cannot be
curtailed or restricted.
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22. According to the respondent, the evidence of the
witness, mentioned at serial No. 2, is essential to identify
.
what the recording depicts, including the conduct of the
parties at the time of counting. So far as the stand taken by
the petitioner qua the fact that the videography has been
admitted, it has been pleaded that the same is incorrect and
of
legally impermissible, as, during the process of admission
and denial of documents, before this Court, the factum of
rt
videography has expressly been denied.
23. As per the stand of the respondent, once, a
document is denied, he is legally required to prove the same
through admissible evidence, as per the Indian Evidence Act.
24. Similarly, the importance of the evidence of the
other witnesses has also been highlighted, in the reply.
25. On all these submissions, a prayer has been
made to dismiss the application.
26. Petitioner has filed the rejoinder to the reply filed,
by denying the stand, by virtue of which, the application has
been contested, by re-asserting that of the application.
27. Perusal of the record shows that when the matter
was listed for admission and denial of the documents, the
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pen drive, relied upon by the respondent, allegedly
containing the video recording of the proceedings of the
.
counting of votes and declaration of the result, which is in
question, before this Court, has been denied by the learned
counsel appearing for the petitioner. This was done on 26 th
August, 2025.
of
28. The onus to prove issues No. 2 and 3 is upon the
respondent, as such, he has submitted the list of witnesses,
rt
containing 18 witnesses. By way of the present application,
objection has been raised against the witnesses, mentioned
at serial Nos. 2 to 14, by pleading that by mentioning the
names of the above witnesses, in the list of witnesses, the
respondent wants to delay and frustrate the proceedings.
29. In para 2 of the application, the applicant has
used the terms ‘have been proposed as witnesses on frivolous
and vexatious grounds’ with the sole object to delay the
proceedings. Except this, the application is totally silent as
to how the evidence of the proposed witnesses falls within
the definition of ‘ frivolous and vexatious’ , as the purpose of
examination of the witnesses has duly been mentioned in the
list of witnesses.
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30. The list of witnesses, as submitted by the
respondent, is reproduced, as under:
.
Sl. Name of Full Address Occupation/ PURPOSE
No. Witness Relationship
(if any)
Village Panjorh
(Digwali), P.O.
Hallan, Sub Secretary, With entire
Tehsil Ronhat, H.P. Vidhan Record to explain
of
1. Sh. Yash Paul Distt. Sirmour, Sabha-cum- procedure
Sharma H.P. Returning followed during
Officer of counting, tie
C/o Secretary Election of result and
H.P. Vidhan Rajya Sabha, declaration of
rt Sabha, Shimla,
H.P. 27.02.2024
final result
Official
Panwar House, Videographer To prove
2. Sh. Surat Bhagwati Nagar, videography
Panwar Near Ganga Maintained record,
Public School videography authenticity and
Lower Khalini of poll and content
Shimla, H.P. counting
Telangana
Legislative Secretary, With entire record
3. Dr. V. Assembly, Public Telangana of selection of Sh.
Narasimha Gardens, Legislative Abhishek Manu
Charyula Nampally, Assembly Singhvi to Rajya
Hyderabad, Sabha from State
Telangana - of Telangana
500004
To depose
regarding
Senior Deputy observation of
Election counting process,
Sh. Manish Commissioner, CEO-cum- tie of votes, and
4. Garg Election Election reference/corresp
Commission of Observer ondence made to
India, Nirvachan Election
Sadan, Ashoka Commission of
Road, New Delhi India for
110001 approval.
To call for the
following records:
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i. Conduct of
election Rules for
Rajya Sabha
.
ii. Instructions
issued by
Election
Commission of
India to R.O. for
the counting of
Rajya Sabha
election in State
Representative Election Higher of Himachal
of
/Nominee of Commission of custodian Prdesh as held
Election India, Nirvachan authority of on 27.02.2024
5. Commission of Sadan, Ashoka election
India (ECI) Road, New Delhi record iii.
rt 110 001 Communication/c
orrespondence
between R.O.
and ECI, as well
as between
Observer-cum-
CEO and ECI,
with respect to
Election of Rajya
Sabha as held on
27.02.2024
iv. Any Report
submitted by
observer as well
as R.O. to ECI on
27.02.2024 and
thereafter w.r.t.
Election of Rajya
Sabha as held on
27.02.2024
v. Complaint, if
any, against the
process of
counting or post
counting till the
declaration of
final result by the
petitioner or any
other person
against the
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counting,
counting process,
or the result as
declared for the
.
election of
Member of Rajya
Sabha
Deputy Secretary
H.P. Vidhan To explain
6. Sh. Jitender Sabha, Shimla, Assistant procedure
Kanwar H.P. Returning followed during
of
Officer counting and tie
G-II/41, Type II, result.
NABHA ESTATE
Retd. Deputy
rt Secretary H.P.
7. Sh. G.L. Vidhan Sabha, Counting To depose
Sharma Shimla, H.P. Supervisor regarding
assistance in
VPO Pahal Tehsil counting and
Sunni Distt procedure of
Shimla - 171 election followed
007, H.P.
To depose
Ser Kaleen Near regarding
8. Sh. Veni Sunny Sight Counting assistance in
Prasad Ward No. 13 Assistant counting and
Solan, H.P. procedure of
election followed.
O/o Chief To depose
Electoral Officer, Deputed by regarding
9. Sh. Dorje 38, SDA CEO for assistance in
Thakur Complex, election duty counting and
Kasumpti - procedure of
Shimla-9, H.P. election followed.
O/o District
Election Office
Shimla, H.P. To depose
10. Sh. Rajender Deputed by regarding
Sharma C/o O/o Deputy CEO for assistance in
Commissioner election duty counting and
Shimla, H.P. procedure of
Designation : election followed.
Tehsildar
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Special Pvt Secy,
H.P. Vidhan
Sabha, Shimla,
11. Smt. Neelam H.P. On duty at To corroborate
.
Verma Library Hall procedural
O/O Secretary, compliance
H.P. Vidhan
Sabha, Shimla,
H.P.
Junior Assistant
12. Sh. Avinash (Typing work) On duty at To corroborate
Kohli O/o Hon'ble Library Hall procedural
of
Speaker, H.P. compliance
Vidhan Sabha,
Shimla, H.P.
On duty at
rt Library Hall,
Peon Assisted in
13. Sh. Mehat preparation of To corroborate
Chand Khachi O/o Secretary, slips, procedural
H.P. VIDHAN counting hall compliance
SABHA, Shimla, arrangement,
H.P. signing of
proceedingsheet
On duty at
Library Hall,
Clerk (previously Assisted in To corroborate
14. Sh. Ram Dev peon) preparation of procedural
slips, compliance
O/O Secretary, counting hallH.P. Vidhan arrangement,
Sabha, Shimla, signing of
H.P. proceedingsheet
Iravati Niwas,
Lower Member of To corroborate
15. Sh. Harsh Panthaghati, Rajya Sabha facts relating to
Mahajan Shimla, H.P. (Returned counting and
Candidate) declaration of
result.
Set No. 401 &
402, Block-A, Pt.
Jawahar Lal
16. Sh. Randhir Nehru Vidhayak Election Agent To corroborate
Sharma, Sadan, Shimla - of facts relating to
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M.L.A. 171 004 Respondent counting and
declaration of
Village Guruka- result.
Lahore, P.O.
.
Bassi, Tehsil
Naina Devi Ji,
Distt. Bilaspur
Set No. 107,
Block -D, Pt.
Jawahar Lal
Sh. Trilok Nehru Vidhayak Counting To corroborate
17. Jamwal, Sadan, Shimla - Agent of facts relating to
of
M.L.A. 171 004 Respondent counting and
declaration of
House No. 14, result.
Raura Sector - 2,
rtDistt. Bilaspur,
H.P.
Set No. 409 &
410, Block-E, Pt.
Jawahar Lal
Sh. Sukh Ram Nehru Vidhayak To corroborate
18. Chaudhary Sadan, Shimla - Counting facts relating to
M.L.A. 171 004 Agent of counting and
Respondent declaration of
Village result.
Amargarh, P.O.
Puruwala -
Kanshipur, Tehsil
Paonta, Distt.
Sirmour, (HP) -
173 001
31. At the cost of repetition, the onus to prove issues
No. 2 and 3 is upon the respondent. Issue No. 2, to the
considered opinion of this Court, is based upon the factual
position, which has been asserted by the respondent, in his
reply and denied by the petitioner, in the rejoinder. In other
words, it can be said that the same is the defence of the
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respondent to protect his election to Rajya Sabha and the
onus has been put upon him, to prove the said fact. As
.
such, merely asserting the words that the witnesses have
been proposed on frivolous and vexatious grounds, with the
sole objective to delay the proceedings, cannot be accepted,
at this stage, as, the petitioner firstly opted to lead evidence,
of
after framing of the issues; thereafter, sought time to
produce the documents and when opportunity was given,
rt
then, opted not to produce any document.
32. In the absence of any attempt made by the
petitioner to get the issue re-framed, the list, proposing the
witnesses to be examined on behalf of the respondent,
cannot be said to be the act of delaying the proceedings.
There is nothing on the file to demonstrate, at this stage,
that the evidence of the proposed witnesses is not material
for the decision of the petition.
33. Only 18 witnesses have been proposed by the
respondent and majority of them are from Shimla itself.
Even otherwise, the matter is to be seen from the perspective
of the party, upon which, the onus has been put to prove the
issues and a party cannot be compelled/dragged by the
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Court to lead the evidence, in a particular manner, to prove a
particular issue, onus of which has been put upon the said
.
party.
34. The list of witnesses was filed on 11 th September,
2025, by supplying the copy to the learned counsel for the
petitioner. Thereafter, the matter was listed on 6th October,
of
2025, before the learned Registrar (Judicial), for recording
the statement of witnesses at serial Nos. 1 to 5. On that day,
rt
the petitioner has sought time to raise objection to the said
list of witnesses. Even, on 6th October, 2025, the witness,
mentioned at serial No. 5, was present and discharged, in
view of the request made by the learned counsel appearing
for the petitioner, to first examine the witnesses at serial Nos.
1 to 4. In addition to this, it was also pointed out by the
learned counsel appearing for the petitioner that the present
application has been moved.
35. The primary purpose of the admission and denial
of the documents, is to narrow down the controversy between
the parties. When, at the time of admission and denial, the
pen drive, containing the video recording of the proceedings,
has been denied, thereafter, the issues were framed, by
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putting the onus upon the respondent, to prove issues No. 2
and 3, then, there is no occasion for this Court to accept the
.
contentions, as raised in the application, with regard to the
deletion of the names of the proposed witnesses at serial Nos.
2 to 14.
36. So far as the case laws, relied upon by the
of
petitioner, i.e. Mange Ram versus Brij Mohan, (1983) 4
SCC 36; and Quamarul Islam versus S.K. Kanta, 1994
rt
Supp (3) SCC 5, are concerned, with due respect to the law
laid down by the Hon’ble Supreme Court, in the above cases,
the same, in no way, help the case of the petitioner, as, the
purpose of the examination of the witnesses has duly been
mentioned in clear terms, in the list of witnesses submitted
by the respondent.
37. At the cost of repetition, when the admission or
denial of the documents was done, the pen drive, containing
the proceedings, which were conducted, during the election,
has specifically been denied and in the application, the
petitioner has adopted a novel way to admit the document,
whereas, the same has been denied by the petitioner, at the
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relevant time, i.e. at the time of admission and denial of the
documents.
.
38. The very purpose of admission and denial of the
documents has been sought to be nullified by asserting the
fact that now, the petitioner has admitted the genuineness of
the pen drive, containing the videography of the polling/
of
counting process.
39. The petitioner has raised the objection against the
rt
proposed witnesses at serial Nos. 2 to 14, merely on the
ground that they are not material, for the purpose of the
adjudication of the Election Petition. At the cost of
repetition, the onus to prove issues No. 2 and 3 has been put
upon the respondent and as per the list of witnesses, the
purpose for examination of the witnesses has specifically
been mentioned, by asserting that the witnesses will depose
about the counting process.
40. Even, in Mange Ram‘s case (supra), advance
filing of the list of witnesses has been held to be mandatory
and, in the present case also, the respondent has submitted
the list of witnesses in advance, in order to comply with the
directions of the Hon’ble Supreme Court in the said case.
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41. In view of the above, without giving an
opportunity to the respondent to examine the witnesses,
.
proposed in the list of witnesses, it cannot be said that the
witnesses have been mentioned just to delay the proceedings.
There is nothing on the record to demonstrate, at this stage,
as to how the evidence of the above witnesses is frivolous or
of
vexatious.
42. Consequently,
rt the application under
consideration is dismissed.
43. Nothing observed hereinabove shall be taken as
an expression of opinion, on the merits of the case, as,
these observations, are confined, only, to the disposal of
the present application.
Election Petition No. 1 of 2024
44. List before the Additional Registrar (Judicial) on
20th April, 2026, for fixing a date for recording the
evidence of the witnesses, on behalf of the respondent.
Needless to say that unnecessary adjournments
shall not be sought by either of the parties.
( Virender Singh )
Judge
April 10, 2026
( rajni )
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