2007 (12) TMI 459

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....on No. 2/2004. C.A. No. 5828/2006 is directed against the judgment and order dated 22.8.2006 passed by the same learned Single Judge of the High Court in Election Petition No. 3/2004. The appellant in C.A. No. 5828/2006 (who was petitioner in Election Petition No. 3/2004) has stated before the High Court that Election Petitions No. 2 and 3 of 2004 were almost identical and hence no evidence was recorded in Election Petition No. 3/2004. 3. The facts of the case are that the appellant contested the election to the Delhi Legislative Assembly in 2003 but lost. The respondent Haroon Yusuf was declared elected. At the time of the election Haroon Yusuf was also the Chairman of the Delhi Waqf Board. 4. The question involved in both these appeals ....

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.... it is retrospective. 7. The words  and shall be deemed never to have been disqualified  in Section 31A creates a legal fiction. Legal fictions are well-known in law. In the oft-quoted passage of Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury Borough Council, (1951) 2 All ER 587 it was observed:  If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it-- The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination....

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....o other point has been discussed in the aforesaid judgment. 13. The appellant submitted that he had taken a large number of points in his election petition, but they have wrongly not been discussed in the impugned judgment. 14. In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would hav....