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.
1Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/04/2026 20:41:37 :::CIS 2Virender 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 3
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 ::: Downloaded on - 10/04/2026 20:41:37 :::CIS 4 the petitioner has also made a statement, depicting therein, the intention of the petitioner not to lead any evidence.
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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.
::: Downloaded on - 10/04/2026 20:41:37 :::CIS 57. 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.
::: Downloaded on - 10/04/2026 20:41:37 :::CIS 610. 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.
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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 ::: Downloaded on - 10/04/2026 20:41:37 :::CIS 7 misconceived, untenable in law and abuse of the process of law.
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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.
::: Downloaded on - 10/04/2026 20:41:37 :::CIS 819. 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.
::: Downloaded on - 10/04/2026 20:41:37 :::CIS 922. 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 ::: Downloaded on - 10/04/2026 20:41:37 :::CIS 10 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.
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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.
::: Downloaded on - 10/04/2026 20:41:37 :::CIS 1130. 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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12
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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13
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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14
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 proceeding sheet 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 hall H.P. Vidhan arrangement, Sabha, Shimla, signing of H.P. proceeding sheet 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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15
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 ::: Downloaded on - 10/04/2026 20:41:37 :::CIS 16 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 ::: Downloaded on - 10/04/2026 20:41:37 :::CIS 17 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 ::: Downloaded on - 10/04/2026 20:41:37 :::CIS 18 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 ::: Downloaded on - 10/04/2026 20:41:37 :::CIS 19 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.
::: Downloaded on - 10/04/2026 20:41:37 :::CIS 2041. 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 ) ::: Downloaded on - 10/04/2026 20:41:37 :::CIS