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Tuesday, September 30, 2014

Or.VII, rule 1 C.P.C - sec. 33 A ,83(1) , 86 and sec.123 1)(A) and (4) of R.P. Act - allowed - on the ground due to contest of same name candidate-respondent No.2 at the instigation of Returned candidate by bribe, he lost some votes - he filed a palm plate issued by second respondent - suppressed his conviction in criminal cases in nomination papers - Returned candidate filed I.A. for dismissal - High court allowed the same - Apex court held that high court rightly allowed the petition and dismissed the election as there are no proper pleadings and material particulars an d facts about the corruption etc., and the Palm plate issued by respondent No.2 not helpful to the case and regarding conviction in appeal the sentence was reduced to less one year and as such non-mention of the same as per sec.33 A not applicable .=CIVIL APPEAL NOS.5987-5988 OF 2012 C.P. John …Appellant VERSUS Babu M. Palissery & Ors. …Respondents = 2014 - sept. month - http://judis.nic.in/supremecourt/filename=41904

   Or.VII, rule 1 C.P.C - sec. 33 A ,83(1) , 86 and sec.123 1)(A)  and  (4)  of R.P. Act - allowed -  on the ground due to contest of same name candidate-respondent No.2 at the instigation of Returned candidate by bribe,  he lost some votes - he filed a palm plate issued by second respondent - suppressed his conviction in criminal cases in nomination papers - Returned candidate filed I.A. for dismissal - High court allowed the same - Apex court held that  high court rightly allowed the petition and dismissed the election as there are no proper pleadings and material particulars an d facts about the corruption etc.,  and the Palm plate issued by respondent No.2 not helpful to the case and regarding conviction in appeal the sentence was reduced to less one year and as such non-mention of the same as per sec.33 A not applicable .=
  By  the  impugned  judgment,  the  High  Court,
while  allowing  I.A.  No.  3  of  2011  simultaneously  dismissed  Election
Petition No.1 of 2011 filed by  the  Appellant  challenging  the  successful
election of the First Respondent to  062  Kunnamkulam  Constituency  in  the
general election held on 13.04.2011, as a candidate of  Communist  Party  of
India (Marxist) (hereinafter called “CPI (M)”), which is  a  constituent  of
the Left Democratic Front (hereinafter called “LDF”). Such  a  decision  of
the Election Petition was at the threshold under Sections 83(1)  and  86  of
the Representation of the People Act, 1951 (hereinafter  called  “the  Act”)
read with Rule 11 of Order 7 of Code of Civil Procedure, 1908 =

the  Appellant  was
a candidate of the  Communist  Marxist  Party  (hereinafter  called  “CMP”),
which was a constituent  of  United  Democratic  Front  (hereinafter  called
“UDF”).
The Second Respondent was also a  candidate  in  the  said  election
along with Respondent Nos.3 to 5.
The First Respondent secured 58,244  votes whereas the Appellant secured 57,763 votes. 
The Second Respondent,  who  was an independent candidate, secured 860 votes.  
According  to  the  Appellant,
the Second Respondent whose name is identical to that of the  Appellant  was
maliciously set up by the First Respondent to contest the  election  and  in
that process indulged in various corrupt  practices, namely,  inducing  the
Second Respondent by offering bribe, issued a pamphlet which was  marked  as
Annexure IV in  the  High  Court  in  the  name  of  the  Second  Respondent
deceptively which attracted  Section  123(1)(A)  and  (4)  of  the  Act  and
consequently his election was liable to be set aside.
One  other  allegation
of the Appellant  raised  in  the  Election  Petition  was  that  the  First
Respondent was convicted in two criminal cases, namely, Sessions  Case  No.4
of 1975 (Crime No.136/1974 of Pattambi Police Station)  for  offences  under
Sections 143, 148, 323, 324 and 302 read with 149,  IPC  for  murdering  one
Syed Ali, an S.F.I. activist and that the First Respondent  was  the  second
accused in Crime No.463/1994 of Kunnamkulam Police Station  where  again  he
was convicted by the Judicial First  Class  Magistrate,  Kunnamkulam  in  CC
No.167/1995 along with other accused and was sentenced to undergo two  years
rigorous imprisonment apart from a fine of Rs.2000/- for the offences  under
Sections 143, 147, 148, 151, 332, 353 and  427  and  149,  IPC  and  Section
3(2)(r) of the Prevention of Destruction to Public  Properties  Act.  
It  is
the contention of the Appellant in the  Election  Petition  that  the  First
Respondent concealed the above convictions in his  nomination  which  was  a
deliberate suppression and in violation of Section 33A(1) of the Act.
It  is
based on the above three substantive grounds, the Appellant  challenged  the
successful election of the First Respondent in  Election  Petition  No.1  of
2011. =
High court
The High Court  having  examined  the  rival  contentions  of  the  parties,
reached  a  conclusion  that  in  support  of  the  Election  Petition,  the
averments contained in paragraphs 4, 5 and 6 of Election Petition  were  not
specifically affirmed and that the affidavit only referred  to  paragraph  9
of the Election Petition.  The  High  Court  further  held  that  since  the
averments contained in paragraph 9 of the Election  Petition  only  referred
to personal  information  of  the  Appellant,  which  lacked  in  very  many
material particulars, there was  total lack of pleadings as  required  under
Section 83 of the Act and consequently, the said  allegation  did  not  give
scope for any cause of action to support the Election Petition.

For the allegation based on Annexure IV, here  again  the  High  Court  held
that the statement contained in the said Annexure did not make out  a  cause
of  action  as  against  the  First  Respondent  in  order  to  attract  the
allegation of corrupt practice as stipulated under  Section  123(4)  of  the
Act and, therefore, on that ground as well, the Election Petition could  not
be proceeded with.

As far as the allegation based on the  criminal  cases  was  concerned,  the
High Court has found that the conviction in Sessions Case No.4 of  1975  was
set aside in Criminal Appeal No.248 of 2000, which was also admitted by  the
Appellant and the conviction in CC No.167 of 1995,  the  certified  copy  of
which was placed before the Court, disclosed that the sentence  awarded  was
less than a year and consequently, there was no violation of Section 33A  of
the Act.

Based on the above findings, the High  Court held that  the  I.A.  filed  by
the First Respondent deserved to be allowed and, consequently, for  want  of
cause of action the Election Petition itself was dismissed.=

Under  Section
33A(1)(ii) of the Act, the requirement of the candidate is  to  furnish  the
information in the nomination as regards his/her conviction for any  offence
referred to in sub-sections (i), (ii) and (iii) of Section 8 and  if  he/she
is sentenced to imprisonment for a period of one year  or  more,  only  then
should it be disclosed in the nomination.  As  it  has  been  found  in  the
present case that the conviction in CC  No.167  of  1995  and  the  sentence
imposed was less than  a  year,  there  was  no  compulsion  for  the  First
Respondent to disclose the said conviction in his nomination. Therefore,  on
this ground when the High Court declined to interfere with the  election  of
the First Respondent, no fault can be found with the said conclusion.

Having regard to our above discussions and findings there  is  no  merit  in
these appeals and the same are dismissed. No costs.

 2014 - sept. month - http://judis.nic.in/supremecourt/filename=41904

                                                            Reportable

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS.5987-5988 OF 2012

C.P. John                                                …Appellant
                                   VERSUS

Babu M. Palissery & Ors.
…Respondents


                               J U D G M E N T


Fakkir Mohamed Ibrahim Kalifulla, J.

These two appeals are directed against a common judgment of the  High  Court
of Kerala at Ernakulum dated 02.12.2011 passed in Election Petition No.1  of
2011 and I.A. No. 3 of 2011. By  the  impugned  judgment,  the  High  Court,
while  allowing  I.A.  No.  3  of  2011  simultaneously  dismissed  Election
Petition No.1 of 2011 filed by  the  Appellant  challenging  the  successful
election of the First Respondent to  062  Kunnamkulam  Constituency  in  the
general election held on 13.04.2011, as a candidate of  Communist  Party  of
India (Marxist) (hereinafter called “CPI (M)”), which is  a  constituent  of
the Left Democratic Front (hereinafter called “LDF”).  Such  a  decision  of
the Election Petition was at the threshold under Sections 83(1)  and  86  of
the Representation of the People Act, 1951 (hereinafter  called  “the  Act”)
read with Rule 11 of Order 7 of Code of Civil Procedure, 1908.

The brief facts which are required to be stated are that the  Appellant  was
a candidate of the  Communist  Marxist  Party  (hereinafter  called  “CMP”),
which was a constituent  of  United  Democratic  Front  (hereinafter  called
“UDF”). The Second Respondent was also a  candidate  in  the  said  election
along with Respondent Nos.3 to 5. The First Respondent secured 58,244  votes
whereas the Appellant secured 57,763 votes. The Second Respondent,  who  was
an independent candidate, secured 860 votes.  According  to  the  Appellant,
the Second Respondent whose name is identical to that of the  Appellant  was
maliciously set up by the First Respondent to contest the  election  and  in
that process indulged in various corrupt  practices,  namely,  inducing  the
Second Respondent by offering bribe, issued a pamphlet which was  marked  as
Annexure IV in  the  High  Court  in  the  name  of  the  Second  Respondent
deceptively which attracted  Section  123(1)(A)  and  (4)  of  the  Act  and
consequently his election was liable to be set aside. One  other  allegation
of the Appellant  raised  in  the  Election  Petition  was  that  the  First
Respondent was convicted in two criminal cases, namely, Sessions  Case  No.4
of 1975 (Crime No.136/1974 of Pattambi Police Station)  for  offences  under
Sections 143, 148, 323, 324 and 302 read with 149,  IPC  for  murdering  one
Syed Ali, an S.F.I. activist and that the First Respondent  was  the  second
accused in Crime No.463/1994 of Kunnamkulam Police Station  where  again  he
was convicted by the Judicial First  Class  Magistrate,  Kunnamkulam  in  CC
No.167/1995 along with other accused and was sentenced to undergo two  years
rigorous imprisonment apart from a fine of Rs.2000/- for the offences  under
Sections 143, 147, 148, 151, 332, 353 and  427  and  149,  IPC  and  Section
3(2)(r) of the Prevention of Destruction to Public  Properties  Act.  It  is
the contention of the Appellant in the  Election  Petition  that  the  First
Respondent concealed the above convictions in his  nomination  which  was  a
deliberate suppression and in violation of Section 33A(1) of the Act. It  is
based on the above three substantive grounds, the Appellant  challenged  the
successful election of the First Respondent in  Election  Petition  No.1  of
2011.

As far as the allegations against the First Respondent were  concerned,  the
allegation relating to the issue of bribery falling under Section  123(1)(A)
was levelled in paragraphs 4, 5, 6 and  9  of  the  Election  Petition.  The
allegation relating to the issuance of pamphlets attracting  Section  123(4)
of the Act was made in paragraphs 11, 12, 13, 14  and  15  of  the  Election
Petition. The  allegation  relating  to  the  criminal  conviction  and  its
suppression was raised in paragraph 7 of the Election Petition.

The  various  above  allegations  were  refuted  on  behalf  of  the   First
Respondent in the written statement filed as against the Election  Petition.
The First Respondent filed I.A.No.3 of 2011  contending  that  the  Election
Petition was liable to be rejected on the ground that it was  not  filed  in
accordance  with  Section  83  as  well  as  Section  86  of  the  Act.  The
contentions raised in the I.A. were to the effect that as regards the  issue
of bribery, though the same was referred to in paragraphs 4, 5, 6 and  9  of
the Election Petition, in the affidavit, which  was  mandatory  as  per  the
proviso to Section 83(1) of the Act, the Appellant  failed  to  support  the
said allegations with exception to what was stated in  paragraph  9  of  the
Election Petition. It was contended in the I.A. that while  the  allegations
relating to the offer of bribe to the Second Respondent by way of a gift  of
Rs.50,000 and a promise  to  pay  Rs.1,00,000/-  after  the  elections  were
raised in paragraphs 4, 5, 6 and  9,  the  affidavit  did  not  support  the
allegations in paragraphs 4, 5 and  6  of  the  Election  Petition  and  the
affidavit only mentioned paragraph 9. It was, therefore, contended  that  it
was not in compliance with the proviso to Section  83(1)  and  consequently,
the Election petition was liable to be rejected on the  ground  of  want  of
cause of action.

As far as the allegation of corrupt practice falling  under  Section  123(4)
of the Act was concerned, the First Respondent by referring to  Annexure  IV
took the stand that the pleadings in paragraphs 11, 12,  13  and  14,  which
pertained to Annexure IV-pamphlet in  the  name  of  the  Second  Respondent
contended that there was no pleading as to which part of it  was  false  and
incorrect and how based on Annexure IV alone it  was  stated  that  a  false
statement in relation to the personal character or conduct of any  candidate
or in relation to the  candidature  or  withdrawal  of  any  candidate  with
reasonable calculation would prejudice  the  prospect  of  that  candidate’s
election. It was, therefore, contended that the Appellant  failed  to  plead
the required facts  and  material  particulars  to  support  the  ground  of
corrupt practice stipulated under Section 123(4) of the Act.

With regard to  the  allegations  based  on  criminal  convictions,  it  was
contended that of the two criminal cases  which  were  referred  to  by  the
Appellant in the Election Petition, in one case  the  First  Respondent  was
acquitted by the Sessions Court in Criminal Appeal No.248/2000 and  that  in
CC No.167  of  1995,  the  sentence  awarded  was  less  than  a  year  and,
therefore, there was no violation of Section  33A  of  the  Act.  The  First
Respondent, therefore, prayed for the dismissal of the Election Petition  as
the same was not in conformity with Section 83 of the Act.

On behalf of the Appellant a counter affidavit was filed  to  I.A.  No.3  of
2011. In the counter affidavit a categoric stand was taken on behalf of  the
Appellant that the required  facts  and  material  particulars  as  required
under Section 83 have been fully  pleaded  with  supporting  Affidavit  and,
therefore, it was in compliance of the Act and the Election Petition  cannot
be dismissed in limine. In other words, it  was  contended  that  there  was
full compliance of both the substantive parts of Section 83 as  regards  the
furnishing of the facts as required under Section 83  as  well  as  material
particulars with supporting affidavit  as  required  under  the  proviso  to
Section 83(1) of the Act and, therefore, the prayer of the First  Respondent
as made in I.A. No.3 of 2011 was liable to be rejected.

The High Court  having  examined  the  rival  contentions  of  the  parties,
reached  a  conclusion  that  in  support  of  the  Election  Petition,  the
averments contained in paragraphs 4, 5 and 6 of Election Petition  were  not
specifically affirmed and that the affidavit only referred  to  paragraph  9
of the Election Petition.  The  High  Court  further  held  that  since  the
averments contained in paragraph 9 of the Election  Petition  only  referred
to personal  information  of  the  Appellant,  which  lacked  in  very  many
material particulars, there was  total lack of pleadings as  required  under
Section 83 of the Act and consequently, the said  allegation  did  not  give
scope for any cause of action to support the Election Petition.

For the allegation based on Annexure IV, here  again  the  High  Court  held
that the statement contained in the said Annexure did not make out  a  cause
of  action  as  against  the  First  Respondent  in  order  to  attract  the
allegation of corrupt practice as stipulated under  Section  123(4)  of  the
Act and, therefore, on that ground as well, the Election Petition could  not
be proceeded with.

As far as the allegation based on the  criminal  cases  was  concerned,  the
High Court has found that the conviction in Sessions Case No.4 of  1975  was
set aside in Criminal Appeal No.248 of 2000, which was also admitted by  the
Appellant and the conviction in CC No.167 of 1995,  the  certified  copy  of
which was placed before the Court, disclosed that the sentence  awarded  was
less than a year and consequently, there was no violation of Section 33A  of
the Act.

Based on the above findings, the High  Court held that  the  I.A.  filed  by
the First Respondent deserved to be allowed and, consequently, for  want  of
cause of action the Election Petition itself was dismissed.

We heard Mr. Romy Chacko, learned counsel for the Appellant  and Mr.  Pallav
Shishodia, learned Senior Counsel for the First Respondent. Mr. Romy  Chacko
learned counsel for the Appellant in  his  submissions  contended  that  the
Appellant stood in the election for Kunnamkulam Constituency in  2011  as  a
candidate of CMP, under the banner of UDF. He  pointed  out  that  Appellant
lost the election with a thin margin  of  408  votes  and  that  the  Second
Respondent who had the same name  as  that  of  the  Appellant  secured  860
votes. According to the Appellant, but for the  candidature  of  the  Second
Respondent, there was every scope for the Appellant to win the election.  It
was the contention of the Appellant that the First Respondent, with  a  view
to mislead the voters, indulged in the  corrupt  practices  of  bribery,  as
well as, issuance of pamphlet with misleading and  distorted  version  about
the candidature which was covered by Sections 123(1)(a) and  123(4)  of  the
Act and that the Appellant otherwise had a very good chance  of  success  in
the election.

The learned counsel contended  that  the  Election  Petition  contained  the
required averments both relevant facts and  material   particulars  and  was
also supported by the affidavit filed in  accordance  with  the  proviso  to
Section  83(1)  and  Rule  94A  of  the  Conduct  of  Election  Rules,  1961
(hereinafter called “the Rules”) and, in any event, if  in  the  opinion  of
the High Court there was anything lacking in the affidavit or  the  Election
Petition filed by the  Appellant,  the  High  Court  should  have  given  an
opportunity to carry out necessary amendment to the  Election  Petition  and
also to file additional affidavit in support of the Election  Petition.  The
learned counsel contended that the outright rejection by the High  Court  of
the Appellant’s right  to  file  necessary  amended  Election  Petition  and
affidavit  deprived  the  valuable  rights  of  the  Appellant   under   the
provisions of the Act.

In  support  of  his  submissions,  the  learned  counsel  relied  upon  the
decisions in Balwan Singh vs. Lakshmi Narain  and  others  reported  in  AIR
1960 SC 770, Umesh Challiyill vs. K.P. Rajendran reported in (2008)  11  SCC
740, G.M. Siddeshwar vs. Prasanna Kumar reported in (2013) 4  SCC  776,  Raj
Narain vs. Smt. Indira Nehru Gandhi and another reported  in  (1972)  3  SCC
850, G.  Mallikarjunappa  and  another  vs.  Shamanur  Shivashankarappa  and
others reported in (2001) 4 SCC 428, Sardar Harcharan Singh  Brar  vs.  Sukh
Darshan Singh and others reported in (2004) 11 SCC 196, Harkirat  Singh  vs.
Amrinder Singh reported in (2005) 13 SCC 511. The  learned  counsel  in  his
submissions, relating to improper  resumption  of  nomination  papers  which
according to Appellant was in violation of Section 33A of  the  Act,  relied
upon the decisions in Shaligram Shrivastava vs. Naresh Singh Patel  reported
in (2003) 2 SCC 176, Resurgence India v. Election Commission  of  India  and
another reported in AIR 2014 SC 344 and People’s Union for  Civil  Liberties
(PUCL) and another vs. Union of India and another reported in (2003)  4  SCC
399.

As against the above  submissions,  Mr.  Pallav  Shishodia,  learned  Senior
Counsel appearing for the First  Respondent  submitted  that  there  was  no
violation of Section 33A of the Act in the filing of the nomination  by  the
First Respondent. The learned Senior Counsel pointed  out  that  to  support
the said submission, the Appellant referred to two criminal cases  in  which
the First Respondent  was  involved  and  that  in  one  criminal  case  the
Appellant was acquitted by the Appellate Court in Criminal Appeal No.248  of
2000 and that in the other criminal case in CC No.167 of 1995, the  sentence
imposed was less than a year and,  therefore,  there  was  no  violation  of
Section 33A.

As regards the other deformity in the Election Petition, the learned  Senior
Counsel contended that the First Respondent in his written statement to  the
Election Petition pointed out the serious defects in the Election  Petition,
but yet the Appellant did not take any steps  to  correct  the  errors.  The
learned Senior Counsel further contended  that  when  the  First  Respondent
filed I.A. No.3 of 2011 raising a preliminary objection as to lack of  cause
of action in  the  said  I.A.,  the  Appellant  filed  a  counter  affidavit
maintaining his stand that his Election Petition  fully  complied  with  the
statutory requirement of the Act and, therefore, nothing more  was  required
to be done. The learned Senior  Counsel,  therefore,  contended  that  since
sufficient opportunities were made available to the Appellant and  the  same
having not been availed by him, the High Court cannot be  expected  to  show
any extraordinary  indulgence  to  the  Appellant  for  filing  any  further
affidavit to fill up the serious  lacunae  in  his  pleadings.  The  learned
Senior Counsel, therefore,  contended  that  none  of  the  decisions  would
support the said  stand  of  the  Appellant  and,  therefore,  the  impugned
judgment does not call for  any  interference.  It  was  also  contended  on
behalf of the First Respondent that such defects which have  been  noted  by
the High Court while allowing I.A. No.3 of 2011 and dismissing the  Election
Petition were not merely cosmetic in nature in order to extend  any  further
opportunity to the Appellant.

Having heard learned counsel for the respective parties  and   in  order  to
appreciate the  legal  issues  raised  in  these  appeals  which  have  been
elaborately dealt with by the High  Court  in  its  judgment,  the  relevant
sections to be noted are Sections 83, 86, 123(1)(A) and 123(4)  of  the  Act
as well as Rule 94A and Form 25 of the Rules. The  said  provisions  are  as
under:
83. Contents of petition.—(1) An election petition—
(a) shall contain a concise statement of the  material      facts  on  which
the petitioner relies;

(b) shall set forth full  particulars  of  any  corrupt  practice  that  the
petitioner alleges, including as full a statement as possible of  the  names
of the parties alleged to have committed such corrupt practice and the  date
and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner  laid  down
in the Code of Civil Procedure, 1908 (5 of 1908)  for  the  verification  of
pleadings:

[Provided that where  the  petitioner  alleges  any  corrupt  practice,  the
petition shall also be accompanied by an affidavit in  the  prescribed  form
in support of the allegation of such corrupt practice  and  the  particulars
thereof.]

(2) Any schedule or annexure to the petition shall also  be  signed  by  the
petitioner and verified in the same manner as the petition.

86. Trial of  election  petitions.—(1)  The  High  Court  shall  dismiss  an
election petition which does not comply with the provisions  of  section  81
or section 82 or section 117.

Explanation.—An order of the High  Court  dismissing  an  election  petition
under this sub-section shall be deemed
to be an order made under clause (a) of section 98.

(2) As soon as may be after an election petition has been presented  to  the
High Court, it shall be referred to the Judge or one of the Judges  who  has
or have been assigned by  the  Chief  Justice  for  the  trial  of  election
petitions under sub-section (2) of section 80A.

(3) Where more election petitions than one are presented to the  High  Court
in respect of the same election, all of them shall be referred for trial  to
the same Judge who may, in his discretion, try them separately or in one  or
more groups.

(4) Any candidate not already a respondent shall, upon application  made  by
him to the High Court within fourteen days from the date of commencement  of
the trial and subject to any order as to security for  costs  which  may  be
made by the High Court, be entitled to be joined as a respondent.

Explanation.—For the purposes of this sub-section and  of  section  97,  the
trial of a petition shall be deemed to commence on the date  fixed  for  the
respondents to appear before the High Court and answer the claim  or  claims
made in the petition.

(5) The High Court may, upon such terms as to costs and otherwise as it  may
deem fit, allow the particulars of  any  corrupt  practice  alleged  in  the
petition to be amended or amplified in such manner as may in its opinion  be
necessary for ensuring a fair and  effective  trial  of  the  petition,  but
shall not allow any amendment of the petition which will have the effect  of
introducing particulars of a corrupt practice not previously alleged in  the
petition.

(6) The trial of an election  petition  shall,  so  far  as  is  practicable
consistently with the interests of justice  in  respect  of  the  trial,  be
continued from day to day until its conclusion, unless the High Court  finds
the adjournment of the trial beyond the following day to  be  necessary  for
reasons to be recorded.

(7) Every election petition shall be tried as expeditiously as possible  and
endeavour shall be made to conclude the trial within  six  months  from  the
date on which the election petition is  presented  to  the  High  Court  for
trial.

123(1)(A). Corrupt practices.—The following shall be deemed  to  be  corrupt
practices for the purposes of this Act:—
(1) "Bribery", that is to say—

(A) any gift, offer or promise by a candidate or his agent or by  any  other
person with the consent  of  a  candidate  or  his  election  agent  of  any
gratification, to any  person  whomsoever,  with  the  object,  directly  or
indirectly of inducing—

(a) a person to stand or not to stand as, or to withdraw or not to  withdraw
from being a candidate at an election, or

(b) an elector to vote or refrain from  voting  at  an  election,  or  as  a
reward to—

(i) a person for having so stood or not stood, or for  having  withdrawn  or
not having withdrawn his candidature; or

(ii) an elector for having voted or refrained from voting;

123(4). The publication by a candidate or his agent or by any  other  person
with the consent of a candidate or his election agent, of any  statement  of
fact which is false, and which he either believes to be false  or  does  not
believe to be true, in relation to the personal character or conduct of  any
candidate,  or  in  relation  to  the  candidature,  or  withdrawal  of  any
candidate,  being  a  statement  reasonably  calculated  to  prejudice   the
prospects of that candidate's election.

Rule 94A. Form of  affidavit  to  be  filed  with  election  petition.-  The
affidavit referred to in the proviso to sub-section (1) of section 83  shall
be sworn  before  a  magistrate  of  the  first  class  or  a  notary  or  a
commissioner of oaths and shall be in Form 25.

                                   FORM 25

      I, …………….., the  petitioner  in  the  accompanying  election  petition
calling in question the election of Shri/Shrimati…………… (respondent  No…………….
in the said petition) make solemn affirmation/oath and say-
      (a) that the statements made in paragraphs………..  of  the  accompanying
election petition about the commission of the corrupt practice of ……………  and
the particulars of such corrupt practice mentioned in paragraphs  …………….  of
the same petition and in paragraphs …………… of the  Schedule  annexed  thereto
are true to my knowledge;
      (b) that the statements made in paragraphs …….. of the  said  petition
about the commission of the corrupt practice of ………..  and  the  particulars
of such corrupt practice given in paragraphs ……….of the  said  petition  and
in paragraphs …………….  of  the  Schedule  annexed  thereto  are  true  to  my
information;
      (c)
      (d)
      etc.
                                  Signature of deponent

Solemnly affirmed/sworn by  Shri/Shrimati……………  at  ………….this  ……….  Day  of
…………. 20……….


Before me, Magistrate of the first class/ Notary/Commissioner of Oaths.”


When we read Section 83, the substantive part of Section 83(1)  consists  of
three important elements, namely, that an Election Petition  should  contain
a concise statement of material facts which an  election  petitioner  relies
upon. The emphasis is on the material facts which  should  be  stated  in  a
concise form. Under Section 83(1)(b) it  is  stipulated  that  the  Election
Petition should set forth full particulars of any corrupt practice which  is
alleged by the petitioner. A reading of the said sub-clause 83(1)(b)  is  to
the effect that such particulars should be complete  in  every  respect  and
when it relates to an allegation of corrupt practice it should  specifically
state the names of the parties who alleged to have  committed  such  corrupt
practice and also the  date  and  place  where  such  corrupt  practice  was
committed.  In other words, the particulars  relating  to  corrupt  practice
should not be lacking in any respect. One who reads the  averments  relating
to corrupt practice should be in a position to gather  every  minute  detail
about the alleged corrupt practice such as the names  of  the  persons,  the
nature of the alleged  corrupt  practice  indulged  in  by  such  person  or
persons, the place, the date, the time and every other  detail  relating  to
the alleged corrupt practice.

To  put  it  differently,  when  the  Election  Petition  is  taken  up  for
consideration, the Court which deals with such an Election Petition,  should
be in a position to know in exactitude as to what is  the  corrupt  practice
alleged as against the parties without giving any room for doubt as  to  the
nature of such allegation, the parties involved,  the  date,  time  and  the
place etc. so that the party against whom such allegation is made  is  in  a
position to explain or defend any such allegation without giving  scope  for
any speculation.  In that context, both Sections  83(1)(a)  and  (1)(b)  and
the proviso play a very  key  role  since  the  election  petitioner  cannot
simply raise an allegation  of  corrupt  practice  and  get  away  with  it,
inasmuch as the affidavit to be filed in respect of corrupt practice  should
specifically  support  the  facts  pleaded,  as  well   as,   the   material
particulars furnished. Rule 94A of the Rules in  turn  stipulates  that  the
affidavit should be in the prescribed Form 25 and  should  be  sworn  before
the Magistrate of 1st class or a notary or the  Commissioner  of  Oaths  and
makes it mandatory for the election  petitioner  to  comply  with  the  said
requirement statutorily. The format of the affidavit as prescribed  in  Form
No.25 elaborates as  to  the  requirement  of  specifically  mentioning  the
paragraphs where the statement of facts are contained  and  also  the  other
paragraphs where material particulars relating  to  such  corrupt  practices
are alleged. It also mentions as to which of those statement  of  facts  and
material particulars are based on the personal  knowledge  of  the  election
petitioner and such of those statements and particulars that are made  based
on the information gained by the election petitioner.

Therefore, a conspectus reading of Section  83(1)(a)  read  along  with  its
proviso of the Act, as well as, Rule 94A and Form No. 25 of the  Rules  make
the legal position  clear  that  in  the  filing  of  an  Election  Petition
challenging the successful election of a candidate, the election  petitioner
should take extra care  and  leave  no  room  for  doubt  while  making  any
allegation of corrupt practice indulged in by the successful  candidate  and
that he cannot be  later  on  heard  to  state  that  the  allegations  were
generally spoken to or as discussed  sporadically  and  on  that  basis  the
petition came to be filed. In other words, unless  and  until  the  election
petitioner comes  forward  with  a  definite  plea  of  his  case  that  the
allegation of corrupt practice is supported by legally  acceptable  material
evidence without an iota of  doubt  as  to  such  allegation,  the  Election
Petition cannot  be  entertained  and  will  have  to  be  rejected  at  the
threshold. It will be relevant to state that since the successful  candidate
in an election has got the support of the majority of the  voters  who  cast
their votes in his favour, the  success gained by a candidate  in  a  public
election cannot be allowed to be called in question  by   any   unsuccessful
candidate  by  making  frivolous  or  baseless   allegations   and   thereby
unnecessarily drag the successful candidate to  the  Court  proceedings  and
make waste of his precious time, which would  have  otherwise  been  devoted
for the welfare  of  the  members  of  his  constituency.  Therefore,  while
deciding the issue raised, we wish to keep in mind the  above  lofty  ideas,
with which the  provisions  contained  in  Section  83(1)  read  along  with
Section 86 came to be incorporated while deciding this appeal.

Keeping the above statutory prescription in mind, when we examine  the  case
on hand, the allegation of corrupt practice raised by the Appellant  in  the
Election Petition was two fold falling under Sections 123(1)(A)  and  123(4)
of the Act. Section 123(1)(A) defines the act of bribery, namely, any  gift,
offer or promise by a candidate or his agent or any other  person  with  the
consent of the candidate or with the consent of his election  agent  of  any
gratification  to  any  person  whomsoever  with  the  object  directly   or
indirectly for inducing a person to stand or not to stand as a candidate  or
to withdraw or not to withdraw from being a candidate  at  an  election.  In
the case on hand, the allegation of bribery is made in paragraphs  4,  5,  6
and 9 of the election petition. In paragraph  4,  it  is  alleged  that  the
First Respondent went to the house of the  Second  Respondent  whose  father
was an active member of CPI (M) and induced him by a gift  of  Rs.50,000  in
cash and promised to give Rs.1,00,000/- for developing his  printing  press,
if he agreed  to  file  his  nomination  to  contest  from  062  Kunnamkulam
Constituency and further promised to bear all the expenses for the  election
and by such inducement he was successful in  making  the  Second  Respondent
submit his nomination  in  the  said  constituency  styling  himself  as  an
independent candidate. It also contained the  allegation  that  the  persons
who signed the  nomination  of  the  Second  Respondent  as  proposers  were
workers/members of CPI (M). The handwritings found in Form No.18  appointing
the counting agents of Respondent Nos. 1 and 2 were of the same  person.  On
the above broad averments, it was contended that the same would  fall  under
Section 123(1)(A) of the Act. In paragraph 9, it  was  reiterated  that  the
Second Respondent filed his nomination as an independent  candidate  at  the
instance of the First Respondent by an offer of gratification for a gift  of
Rs.50,000 with a promise to pay Rs.1,00,000/-after the  elections  and  that
the said inducement was made by  the  First  Respondent  with  the  ulterior
motive of creating a confusion  among  the  voters  and  divide  the  votes,
inasmuch as,  the  names  of  the  Appellant  as  well  as  that  of  Second
Respondent are identical.

With that we come to a crucial question  as  to  how  it  was  contended  on
behalf of  the  First  Respondent  that  the  said  averments  were  not  in
conformity with the provisions of Section 83 of  the  Act  or  that  in  the
affidavit which was filed in support of the Election Petition, there was  no
reference to paragraphs 4, 5 and 6 and that  the  affidavit  only  mentioned
about paragraph 9 alone. It was contended that  the  Election  Petition  was
not filed in compliance with Section 83 read with Rule 94A and Form 25.  The
sum and substance of the stand  of  the  First  Respondent  in  the  written
statement as regards the allegation of  bribery  was  that  in  paragraph  4
there was no specific pleading as to who paid the bribe, the date, time  and
place at which  the  alleged  bribe  was  paid  as  mandated  under  Section
83(1)(b) of the Act and that the said pleading of corrupt practice  was  not
supported  by  the  affidavit  and,  therefore,  the  entire  pleadings   in
paragraph 4 has to be eschewed from consideration. As far as  the  averments
contained in paragraph 9 were concerned, according to the First  Respondent,
the  entire  averments  in  paragraph  9  will  not  satisfy  the  statutory
requirement of Section 83(1)(b) and further the said averments  relating  to
corrupt practice were  based  on  information  and  not  based  on  personal
knowledge.

It was further contended that the allegation of bribery having been  pleaded
in paragraphs 4, 6, 9 and 10  of  the  Election  Petition,  those  averments
contained in paragraphs 4, 6 and  10  of  the  Election  Petition  were  not
supported by the affidavit as required under the proviso  to  Section  83(1)
of the Act. In the affidavit filed in  support  of  I.A.No.3  of  2011,  the
First Respondent while reiterating the above contentions, stated that  after
striking off and eschewing paragraphs 4, 7, 9 to 15 and  grounds  (a),  (c),
(d) and (e) of the Election Petition, there  were  left  no  material  facts
giving any cause of action  for  the  Election  Petition  subsist.  It  was,
therefore, prayed that the Election Petition  should  be  dismissed  at  the
threshold.

The Appellant in his counter affidavit to I.A. No.3 of 2011, did  not  state
anything as regards the filing of proper affidavit  relating  to  paragraphs
4, 6 and 10 which related to corrupt practice. On the  other  hand,  it  was
contended that the Election  Petition  contained  full  material  facts  and
particulars of corrupt practice including the date, place and  name  of  the
parties. It is relevant to note that  till  the  present  impugned  judgment
came to be passed by the High Court, there was  no  prayer  made  either  in
writing or orally for permitting the Appellant to file  necessary  amendment
to the Election  Petition  or  file  any  additional  affidavit  curing  the
defects  relating  to  failure  to  support  the  averments   contained   in
paragraphs 4, 6 and 10 of the Election Petition by way  of  fresh  affidavit
or for supplementing the averments already made with additional  particulars
or details relating to the allegation of corrupt practices.

The High Court while dealing with  the  above  issues,  after  referring  to
paragraphs 4 as well as 9 of the Election Petition, held as under:

“It is a complex sentence. By  reading  it,  one  cannot  be  say  that  the
allegation  is  that  first  respondent  personally  approached  the  second
respondent or paid the cash or promised  Rs.1,00,000/-  for  developing  his
printing press. In such circumstances, there is force in the  submission  of
the learned senior counsel appearing  for  the  first  respondent  that  the
allegations are too vague to constitute an allegation of  corrupt  practice,
to set aside the election of the returned candidate under section  100(1)(b)
of the Act. Added to this  the  affidavit  shows  that  the  allegations  in
paragraph 4 was not supported by the affidavit. The question is if  it  does
not constitute a complete cause of action, whether the election petition  is
liable to be dismissed in limine at the threshold or is it is for the  court
to post  the  case  to  enable  the  election  petitioner  to  file  another
affidavit or an application to  amend  the  election  petition.  As  rightly
pointed out by the learned senior counsel in spite of the written  statement
filed by the first respondent contending that  the  election  petition  does
not disclose a complete cause of action and the affidavit filed is  not  the
affidavit contemplated under the proviso to Section 83(1) and under  section
94A of the Conduct of Elections Rules, the election petitioner did not  take
steps to get the election petition amended or to file another  affidavit  in
compliance with proviso to Section 83(1)(a)  and  Rule  94A.  On  the  other
hand, the counter affidavit filed by the election petitioner to I.A.  3/2011
shows that it is the definite case of the election petitioner that there  is
no defect in the election petition. He has no case that  an  opportunity  is
to be granted  to  cure  the  defects.  Paragraph  8  of  the  said  counter
affidavit reads:-

“8.   It is submitted that the averments in the Election Petition are  fully
in compliance  with  the  mandatory  requirements  of  the  Act  and  Rules,
especially under Sections 83 and 87 of the Representation of the People  Act
and Rule 94 of the Conduct of Election Rules, 1968. Specific  averments  are
set out in the election petition, pointing out the specific acts as well  as
the name/identity of the persons who are parties to the  transactions  which
forms the basis of the election petition.”

In paragraph 9 of the affidavit he has further asserted that  the  affidavit
is in accordance with the requirement of  Rule  94.  In  such  circumstances
question is whether an opportunity is to be granted to cure the defect.”

                                                       (Underlining is ours)

Thereafter, the High Court after referring to the various decisions of  this
Court, relating to the  interpretation  of  Section  83(1)(a)  of  the  Act,
ultimately held as under:

“It is clear that the affidavit filed along with the  election  petition  in
Form 25 is in accordance with the requirement provided under  Rule  94A  and
as mandated under the proviso to section 83(1) of  the  Act.  The  affidavit
filed does not support the allegations made in paragraph 4 of  the  election
petition which deals with the allegation of  corrupt  practice  of  bribery,
based on which  election  is  sought  to  be  declared  void  under  section
100(1)(b) of the Act. Though learned counsel argued that in that case it  is
the duty of the court to grant an opportunity to cure the defect,  I  cannot
agree with  the  submission.  As  pointed  out  by  the  Apex  Court  in  V.
Narayanaswamy’s case (supra) when the first respondent pointed out that  the
election petition  does  not  contain  the  required  concise  statement  of
material facts and the affidavit filed under proviso to Section  83(1)  does
not satisfy the legal requirement, the case of the  petitioner  is  that  it
satisfied all the requirements. He  did  not  take  any  steps  to  get  the
pleadings amended or to file an affidavit in conformity with the proviso  to
section 83(1) and Rule 94A  of  the  Conduct  of  Election  Rules.  In  such
circumstances it can only be found that it is not an affidavit  as  required
under the proviso to section 83(1) and Rules 94A……..”



On the above issue, the contention of the Appellant was  two  fold.  In  the
first instance, Mr. Chacko, learned counsel contended  that  even  if  there
was some omission on the part of  the  Appellant  in  filing  the  necessary
affidavit,  with particular reference to the allegations in paragraphs 4,  6
and 10 of the Election Petition, the High  Court  ought  to  have  given  an
opportunity to cure the said defects which  were  purely  cosmetic.  It  was
also contended that the averments, contained in paragraph 9 which were  duly
supported by the affidavit  were  sufficient  to  prove  the  allegation  of
bribery alleged against the First  Respondent,  which  the  Appellant  would
have been able to sufficiently demonstrate and  establish  at  the  time  of
hearing of the Election Petition. According  to  the  learned  counsel,  the
Election Petition ought not to have, therefore, been dismissed by  the  High
Court in limine.

In support of the above contentions the  learned  counsel  relied  upon  the
decision in Balwan Singh (supra). The learned counsel by  relying  upon  the
statement of law at page 774  contended  that  the  said  decision  being  a
Constitution Bench decision, the High Court should  have  applied  the  said
ruling and extended an  opportunity  to  the  Appellant  to  file  necessary
affidavit in support of the allegation contained in the  Election  Petition.
To appreciate the stand of the Appellant, we refer  to  the  passage  relied
upon by the learned counsel which is  found  in  paragraph  8  of  the  said
decision.  The said part of paragraph 8 can be usefully  referred  to  which
reads as under:

“8.……..An election petition is not liable to be dismissed in  limine  merely
because full particulars of a corrupt practice alleged in the petition,  are
not set out. Where an objection is raised by the respondent that a  petition
is defective because full particulars of an  alleged  corrupt  practice  are
not set out, the Tribunal is bound to decide whether the objection is  well-
founded.  If  the  Tribunal  upholds  the  objection,  it  should  give   an
opportunity to the petitioner to apply for leave to  amend  or  amplify  the
particulars of the corrupt practice  alleged;  and  in  the  event  of  non-
compliance with that order the Tribunal may strike  out  the  charges  which
remain vague…………”


When we refer to the said passage of the  Constitution  Bench  decision,  we
have to bear in mind that in that case when we looked into the  facts  which
gave rise to the said judgment, we find that in the Election  Petition,  the
allegation of corrupt practice falling under Section 123(5) was  alleged  to
the effect that the successful candidate indulged in  gathering  the  voters
by hiring bullock carts and tractors to and from the polling  station.  When
in the written statement, it  was  pointed  out  that  the  said  allegation
lacked in detailed particulars by way of Annexure D-1 to the  main  Election
Petition, the election petitioner furnished the details as to  who  procured
the bullock carts and tractors and  who  were  all  transported  from  which
village to which  polling  station  and  so  on.  At  the  instance  of  the
successful candidate, the Election Tribunal  declined  to  accept  the  said
Annexure D-1 and deleted the relevant paragraph  in  the  Election  Petition
for want of detailed particulars.  However,  when  the  election  petitioner
sought for a review, the Tribunal in review accepted the Annexure D-1.  This
order in review was challenged before the High Court. The  High  Court  also
upheld the order in review passed by  the  Tribunal,  which  was  ultimately
brought before this Court by the  successful  candidate.   It  was  in  this
context, it was held that when an objection is raised by the  Respondent  in
the Election Petition pointing out the  defects  that  full  particulars  of
alleged corrupt practice were not set  out,  the  Election  Tribunal,  while
accepting the said statement should give  an  opportunity  to  the  election
petitioner to apply for leave, to amend  or  amplify  the  corrupt  practice
alleged.

In the case on hand, the said situation relating to want of particulars  and
the failure to support the allegations made  in  the  Election  Petition  by
necessary affidavit as required to be filed under  the  proviso  to  Section
83(1) was brought to the notice of the Appellant  at  the  instance  of  the
First Respondent in his written statement. The written statement  was  filed
by First Respondent on 24.09.2011. The I.A. No.3 of 2011 was  filed  on  the
same date. The  counter  affidavit  to  the  said  I.A.  was  filed  by  the
Appellant  on  06.10.2011.  The  impugned  order  came  to  be   passed   on
02.12.2011. It is significant to note that in the counter affidavit  of  the
Appellant to I.A. No.3 of 2011, the Appellant did not seek  for  any  prayer
to amend or add any plea to the Election Petition or the affidavit filed  in
support of the  Election  Petition.  On  the  other  hand,  in  the  counter
affidavit, the Appellant continued  to  maintain  his  stand  that  whatever
particulars required, have been sufficiently set out  in  the  petition  and
affidavit and it was not lacking in any  statutory  requirement.  Thus,  the
Appellant allowed the High Court to examine the  contention  raised  at  the
preliminary stage as to the maintainability of  the  Election  Petition  for
want of compliance of statutory  requirement  as  prescribed  under  Section
83(1) of the Act read along with Rule 94A of the Rules and as prescribed  in
Form 25 of the relevant Election Rules. Therefore, when  the  Appellant  was
not inclined to seek for any amendment to the Election Petition  or  to  the
affidavit filed in support of the Election Petition, we fail  to  understand
as to how the Appellant can now raise any grievance to the effect  that  the
High Court ought to have granted an opportunity to the  Appellant  to  amend
the pleadings.  In any event, the ratio of  the  decision  set  out  in  the
Constitution Bench decision can have no application to the case on hand,  as
it materially differed in very many facts and the conduct of the party.  We,
therefore, do not find any scope to  apply  the  decision  in  Balwan  Singh
(supra) to the case of the Appellant.



Reliance was then placed upon the decision in Umesh Challiyill  (supra).  In
that case, a preliminary  objection  was  raised  to  the  effect  that  the
affidavit in Form 25 was not affirmed and as such the  affirmation  was  not
duly certified and the verification of the Election Petition was  defective,
etc. While dealing with the said objection, the Election Tribunal  summarily
dismissed the Election Petition at the stage when the Election Petition  was
taken up for enquiry. While examining the correctness of the  said  decision
of the High Court, this Court has held as under in paragraphs 12 and 13:

“12. Both the defects which have been pointed  out  by  the  learned  Single
Judge were too innocuous to have  resulted  in  dismissal  of  the  election
petition on the basis of the preliminary objection. The courts have to  view
whether the objections go to the  root  of  the  matter  or  they  are  only
cosmetic in nature. It  is  true  that  the  election  petition  has  to  be
seriously construed. But that apart the  election  petition  should  not  be
summarily dismissed on such small breaches of procedure. Section  83  itself
says that the election petition should contain material  facts.  Section  86
says that the High Court shall dismiss the election petition which does  not
comply with the provisions of Section 81 or Section 82 or Section  117.  But
not of defect of the nature as pointed out by the  respondent  would  entail
dismissal of the election petition. These were  the  defects,  even  if  the
Court has construed them to be of serious nature,  at  least  notice  should
have been issued to the party to rectify the same instead  of  resorting  to
dismissal of the election petition at the outset. (Emphasis added)


13. Learned counsel for the respondent has tried to justify and support  the
order of  the  learned  Single  Judge  and  submitted  that  in  fact  these
objections were raised by the respondent in his  counter-affidavit  and  the
appellant had  sufficient  opportunity  to  have  cured  them  and  in  that
connection,  learned  counsel  for  the  respondent  pointed  out  that  the
election petition was presented on 22-6-2006 and the first date  of  hearing
was on 30-8-2006. The appellant should have  cured  these  defects  but  the
same was not done. Therefore, there was no option with  the  learned  Single
Judge but to dismiss the election  petition.  We  fail  to  appreciate  this
argument of the learned counsel for the respondent  for  the  simple  reason
that how can the appellant who bona fidely felt that his  election  petition
in all respects is complete  will  entail  such  a  serious  consequence  of
dismissal of the election petition on such  minor  omissions.  In  case  the
learned Single Judge found that the election petition was not in the  format
then after recording his finding,  the  learned  Single  Judge  should  have
given an opportunity to the appellant  to  amend  or  cure  certain  defects
pointed out by the Court. It may be relevant to [pic]mention, these are  not
the grounds mentioned in  Section  86  of  the  Act  for  dismissal  of  the
election  petition.  But  nonetheless  even  if  it  is  to  entail  serious
consequence of dismissal of the election petition  for  not  being  properly
constituted, then too at least the  appellant  should  have  been  given  an
opportunity to cure these defects and put the election  petition  in  proper
format. But the learned Single Judge instead of giving  an  opportunity  has
taken the easy  course  to  dismiss  the  election  petition  which  in  our
opinion, was not warranted.”


What has been stated in the above  paragraphs  is  that  where  the  defects
pointed out  were  too  innocuous  and  cosmetic  in  nature,  the  Election
Tribunal should have given an opportunity to rectify those  defects  instead
of throwing out the Election Petition at the very threshold.  There  can  be
no two opinions about the proposition of law so stated by this Court in  the
above referred to decisions. The defects which were  pointed  out  in  those
cases were that the affidavit was not sworn in the prescribed format and  in
the verification column, certain words were missing. It was in that  context
that this Court held that when such innocuous mistakes in the format of  the
affidavit were noted, in the interest of  justice,  the  proper  course  was
that the Tribunal  should  have  called  upon  the  election  petitioner  to
rectify those minor cosmetic defects  instead  of  dismissing  the  Election
Petition at the threshold.

In the case on hand, since the allegation of bribery falling  under  Section
123(1)(A) was a serious allegation,  if  according  to  the  Appellant,  for
levelling the said allegation there were  no  details  furnished  as  to  on
which date and by whom the bribe amount was  promised  to  be  paid  to  the
Second Respondent then, when such averments were not duly supported  in  the
affidavit and when such serious defects were  pointed  out  in  the  written
statement as well as in the affidavit filed  in  support  of  I.A.  No.3  of
2011, the Appellant having taken a rigid stand  that  he  wanted  to  go  by
whatever averments contained in the Election Petition  and  affidavit  filed
in support of the Election Petition, he cannot subsequently turn around  and
state that inspite of such a categoric stand taken by him,  the  High  Court
should have gone out of the way and called upon him to rectify the  defects,
which were very serious defects concerning material particulars relating  to
corrupt practice, for which there was no necessity for  the  High  Court  to
show any such extraordinary indulgence to the Appellant. We,  therefore,  do
not find any scope to apply the decision  in  Umesh  Challiyill  (supra)  to
support the stand of the Appellant.

Mr.  Chacko,  learned  counsel  then  relied  upon  the  decision  in   G.M.
Siddeshwar (supra). In the said decision, it  was  held  that  if  there  is
substantial compliance with the  prescribed  format  of  the  affidavit,  an
Election  Petition  cannot  be  thrown  out  on  a  hyper  technical  ground
particularly when there were some defects in the format which were  curable.
Paragraphs 37 and 38 are relevant for our consideration which are as under:

“37. A perusal of  the  affidavit  furnished  by  Prasanna  Kumar  ex  facie
indicates that it was not in absolute compliance with the format  affidavit.
However, we endorse the view of the High Court that  on  a  perusal  of  the
affidavit, undoubtedly there was substantial compliance with the  prescribed
format. It is correct that the verification  was  also  defective,  but  the
defect is curable and cannot be held fatal to  the  maintainability  of  the
election petition.

38. Recently, in Ponnala Lakshmaiah v. Kommuri Pratap Reddy the issue  of  a
failure to file an affidavit in accordance with the prescribed  format  came
up for consideration. This is what this Court had to say: (SCC p. 802,  para
28)

“28. … The format  of  the  affidavit  is  at  any  rate  not  a  matter  of
substance. What is important and at the heart of the requirement is  whether
the election petitioner has made averments which are  testified  by  him  on
oath, no matter in a form other than the  one  that  is  stipulated  in  the
Rules. The absence of an affidavit or an affidavit in a form other than  the
one stipulated by the Rules does not by itself cause any  prejudice  to  the
successful candidate so long as the deficiency  is  cured  by  the  election
petitioner by filing a proper affidavit when directed to do so.”

We have no reason  to  take  a  different  view.  The  contention  urged  by
Siddeshwar is rejected.”
[pic]

A reading of the above paragraphs themselves show that  if  the  defect  was
one of format and not of substance, such defect should also  be  allowed  to
be cured. In the case on  hand,  we  have  already  held  that  the  defects
pointed out in the Election Petition, as well as, in the affidavit were  not
of mere format but of substance and, therefore, we are unable to  apply  the
ratio in G.M. Siddeshwar (supra) to the case on hand.



In Raj Narain (supra) paragraph 23 can be usefully referred to  which  reads
as under:

“23.  Now  coming  to  the  appeal  against  the  order  on  the   amendment
application, the learned trial Judge disallowed  the  amendments  sought  on
the sole ground that if those amendments are  allowed,  it  will  amount  to
amending the statement of material facts and the same is not permissible  in
view of Section 86(5). We have already found that  that  conclusion  of  the
learned trial Judge is not correct.  The  amendment  application  was  moved
even before the trial of the  case  commenced.  It  is  not  shown  how  the
amendments sought in respect of paragraphs 2  and  5  of  the  petition  can
prejudice the case of the  respondent.  They  are  merely  clarificatory  in
character. This Court ruled in Shri Balwan Singh v. Shri Lakshmi Narain  and
others, that an election petition was not liable to be dismissed  in  limine
because full particulars of corrupt practice alleged were not set out.

It further observed that if an objection was taken and the Tribunal  was  of
the view that the full particulars have not been  set  out,  the  petitioner
had to be given an opportunity to amend or amplify the particulars.  It  was
only  in  the  event  of  non-compliance  with  the  order  to  supply   the
particulars that the charge which remained vague could  be  struck  out.  In
that case the amendment was sought after the  evidence  was  closed  in  the
case. This  Court  allowed  the  same.  Courts  are  ordinarily  liberal  in
allowing amendment of pleadings unless it results in  prejudicing  the  case
of the opposite party. Any inconvenience caused by an amendment  can  always
be compensated by costs. We think that  the  amendments  asked  for,  should
have been allowed and we allow the  same.  The  election  petition  will  be
accordingly amended and the respondent will be afforded  an  opportunity  to
file any additional written statement, if she so desires.”


As the statements contained in the said paragraph disclose  that  when  some
defects in the Election Petition were pointed out, the  Election  Petitioner
in that case took steps for amending the pleadings which were  declined.  In
contrast to the above case, in the case on hand,  inspite  of  pointing  out
the defects, the Appellant did not evince any interest to amend  either  the
Election Petition  or  the  affidavit  filed  in  support  of  the  Election
Petition. We, therefore, do not find any scope to apply the decision in  Raj
Narain (supra) to the facts of this case.

Reliance was  placed  upon  the  decision  in  G.  Mallikarjunappa  (supra),
paragraph 7, which reads as under:

“7. An election petition is liable to be dismissed in limine  under  Section
86(1) of the Act if the election petition does not comply  with  either  the
provisions of “Section 81 or Section 82 or Section 117 of the RP  Act”.  The
requirement of filing an affidavit along with an election petition,  in  the
prescribed form, in support of allegations of corrupt practice is  contained
in Section 83(1) of the Act. Non-compliance with the provisions  of  Section
83 of the Act, however, does  not  attract  the  consequences  envisaged  by
Section 86(1) of the Act. Therefore, an election petition is not  liable  to
be dismissed in limine under  Section  86  of  the  Act,  for  alleged  non-
compliance with provisions of Section 83(1) or (2) of  the  Act  or  of  its
proviso. The defect in the verification  and  the  affidavit  is  a  curable
defect. What other consequences,  if  any,  may  follow  from  an  allegedly
“defective” affidavit, is required to be judged at the trial of an  election
petition but Section 86(1) of the Act in terms cannot be attracted  to  such
a case.”


There can be no two opinions that consequences envisaged  by  Section  86(1)
of the Act will have no application to the non-compliance of  Section  83(1)
or (2) or its proviso. But the question before  us  is  when  the  mandatory
requirement of the pleadings as  stipulated  under  Section  83(1)  and  its
proviso was brought to the notice of the  Appellant,  as  well  as,  to  the
Court, and when a specific application was filed for rejecting the  Election
Petition for want of particulars and consequent lack of cause of action  for
maintaining the Election Petition and the election petitioner,  namely,  the
Appellant herein chose not  to  cure  the  defects  but  insisted  that  his
Election Petition can be proceeded with  keeping  the  material  defects  on
record, he cannot later on be heard to state that  at  any  later  point  of
time he must be given an opportunity  to  set  right  the  defects.  We  are
unable to appreciate such an extreme stand made on behalf of the  Appellant.
Therefore, even while applying the above proposition of law stated  by  this
Court in paragraph 7, we do not find any scope to interfere with  the  order
impugned in these appeals.

Reliance was then placed upon the decision in Sardar  Harcharan  Singh  Brar
(supra). After making reference to the nature of defects in  the  affidavit,
and dismissal of the Election Petition at  the  threshold,  this  Court  has
stated as under in paragraph 14:
“14.……..Therefore, an election petition is not liable  to  be  dismissed  in
limine under  Section  86  of  the  Act,  for  alleged  non-compliance  with
provisions of Section 83(1) or (2) of the Act or of its proviso. The  defect
in the verification and the  affidavit  is  a  curable  defect.  What  other
consequences, if any, may follow from an  allegedly  “defective”  affidavit,
is required to be judged at the trial of an election  petition  but  Section
86(1) of the Act in terms cannot be attracted to such a case.”


As has been stated therein the defect was  only  in  the  form  and  not  in
substance. In fact, in the case on hand after pointing out  the  substantial
defects in the Election Petition as well as the affidavit filed  in  support
of the Election Petition, the First Respondent came forward with a  separate
application, namely, I.A. No.3 of 2011 for rejecting the  Election  Petition
for want of cause of action. When the  said  I.A.  along  with  an  Election
Petition was taken up for hearing, the Appellant ought to have realized  his
serious mistake in not filing the petition as well as the affidavit  in  the
proper manner and should have taken adequate recourse in filing the  amended
petition and affidavit. The Appellant having  failed  to  take  recourse  to
such a corrective step cannot now be heard to  state  that  the  High  Court
went wrong in dismissing the Election Petition. We, therefore, do  not  find
any support from the said decision to the case on hand.

The last of the  decision  relied  upon  by  the  learned  counsel  for  the
Appellant  was  Harkirat  Singh  (supra).  In  paragraphs  51  and  52,  the
necessity for pleading material facts  and  particulars  as  required  under
Section 83 of the Act have been succinctly stated. The said  paragraphs  are
as under:

“51. A distinction between  “material  facts”  and  “particulars”,  however,
must not be overlooked. “Material facts” are primary or  basic  facts  which
must be pleaded by the plaintiff or by the defendant in support of the  case
set  up  by  him  either  to  prove  his  cause  of   action   or   defence.
“Particulars”, on the other hand, are details in support of  material  facts
pleaded by the party. They amplify, refine and embellish material  facts  by
giving distinctive touch to the basic contours of a  picture  already  drawn
so as to make it full, more clear and more informative.  “Particulars”  thus
ensure conduct of fair trial and  would  not  take  the  opposite  party  by
surprise.

52. All “material facts” must be pleaded by the  party  in  support  of  the
case set up by him. Since the object and purpose is to enable  the  opposite
party to know the case he has to meet with, in the absence  of  pleading,  a
party cannot be allowed to lead evidence. Failure to  state  even  a  single
material fact, hence,  will  entail  dismissal  of  the  suit  or  petition.
Particulars, on the other hand, are the details of the case which is in  the
nature of evidence a party would be leading at the time of trial.”


However, this Court found that the High Court  without  any  plea  from  any
party went into the allegations made in the Election Petition  and  rejected
the same holding that the Election Petition did  not  state  material  facts
and, therefore, did not disclose a cause of action. In paragraphs 82 and  83
it has been held as under:

“82. As we have already observed earlier, in  the  present  case,  “material
facts” of corrupt practice said to have been adopted by the  respondent  had
been set out in the petition with full particulars. It  has  been  expressly
stated as to how Mr. Chahal who was a gazetted officer of  Class  I  in  the
Government of Punjab assisted the respondent by doing several  acts,  as  to
complaints made against  him  by  authorities  and  taking  of  disciplinary
action. It has also been stated as to how a police officer, Mr.  Mehra,  who
was holding the post of Superintendent of Police helped  the  respondent  by
organising a meeting and by distributing posters. It was also  alleged  that
correct and proper accounts of election expenses have  not  been  maintained
by the respondent. Though  at  the  time  of  hearing  of  the  appeal,  the
allegation as  to  projecting  himself  as  “Maharaja  of  Patiala”  by  the
respondent had not been pressed by the learned counsel  for  the  appellant,
full particulars had been set out in the election  petition  in  respect  of
other allegations. The High Court, in our opinion,  was  wholly  unjustified
in entering into the correctness  or  otherwise  of  the  facts  stated  and
allegations made in the election petition  and  in  rejecting  the  petition
holding that it did not state material facts and thus  did  not  disclose  a
cause of action. The High Court, in our considered view,  stepped  into  the
prohibited area of appreciating the evidence and by entering into merits  of
the case which would be permissible only  at  the  stage  of  trial  of  the
election petition  and  not  at  the  stage  of  consideration  whether  the
election petition was maintainable.

83. We, therefore, hold that the High Court  was  wrong  in  dismissing  the
election petition on the ground that material facts had not been set out  in
the election petition and the election petition did not disclose a cause  of
action. The order passed by  the  High  Court,  therefore,  deserves  to  be
quashed and set aside.”


The distinguishing feature which we noted as between the said case  and  the
case on hand is that here there was a written statement filed  pointing  out
the serious defects as regards the material facts  and  the  particulars  as
set out in the Election Petition and also the non-compliance of the  proviso
to Section  83(1)  in  the  affidavit  filed  in  support  of  the  Election
Petition. That apart, an I.A. was taken out in I.A.  No.3  of  2011  at  the
instance of the First Respondent to reject the Election  Petition  for  want
of cause of  action  in  which  specific  grounds  were  raised  which  were
contested by the Appellant by filing a counter affidavit but  yet,  even  at
that stage, the Appellant did not take the stand that  he  was  inclined  to
rectify whatever defects were pointed in the Election Petition  as  well  as
in the affidavit. When such a categoric stand was taken  on  behalf  of  the
Appellant and he was fully prepared to accept the ultimate decision  of  the
High Court in the application as well as in the Election  Petition,  we  see
no reason why the Appellant should now be given any further  opportunity  to
cure the defects which were  substantial  in  nature.  Therefore,  the  said
decision also does not in any way support the case of the Appellant.

With that when we come to  the  next  part  of  the  judgment,  namely,  the
alleged corrupt practice under Section 123(4) based upon Annexure IV,  which
was  the  pamphlet  distributed  in  the  name  of  Second  Respondent,  the
contention was that the First Respondent was  responsible  for  issuing  the
said pamphlet in the name of the Second Respondent with  a  view  to  divert
the votes of UDF and thereby, the candidature of the Appellant  was  put  to
serious prejudice. Dealing with the said issue, the High  Court  has  stated
as under in paragraphs 17 and 19:

“17. The question is even if the case of the election petitioner  is  to  be
accepted and the notice was printed  and published by the  first  respondent
in the name of the second respondent, whether it is a  corrupt  practice  as
provided under sub section (4) of Section 123. The argument of  the  learned
counsel appearing for the election petitioner is  that  election  petitioner
is the candidate of the United Democratic Front and by  reading  the  appeal
the voters may think that second respondent, who is  having  identical  name
as that  of  the  election  petitioner,  is  the  candidate  of  the  United
Democratic Front and it was printed and  published  with  the  intention  of
causing loss of votes to the election petitioner,  as  those  who  read  the
appeal may think that second respondent  is  the  candidate  of  the  United
Democratic Front and would cast their votes to the second  respondent  on  a
mistaken  impression  that  instead  of  the  election   petitioner   second
respondent is the candidate of the United Democratic Front.  Learned  senior
counsel appearing for the election petitioner argued  that  unless  Annexure
IV appeal contains any statement  which  are  false  and  either  the  first
respondent believed to be false or did not  believe  to  be  true  and  such
statements are in relation to the  personal  character  or  conduct  of  any
candidate or in relation to the candidature or withdrawal of  any  candidate
and that too reasonably  calculated  to  prejudice  the  prospects  of  that
candidate’s election, it will not constitute a corrupt practice as  provided
under sub section (4) of Section 123 of the Act.



19. It is clear that in order to attract sub section  (4)  of  section  123,
there should be a publication by a candidate or his agent or  by  any  other
person with the  consent  of  the  candidate  or  his  election  agent.  The
statement of fact in the publication must be  false.  The  candidate  should
either believe it to be false or  does  not  believe  it  to  be  true.  The
statement must be in relation to the personal character or  conduct  of  any
candidate or in relation to the candidature or withdrawal of any  candidate.
The statement must be reasonably calculated to prejudice  the  prospects  of
that candidate’s election. Even if the statement is false and the  candidate
did not believe the statement to be true or believe it to be  false,  unless
the statement is in relation to the personal character  or  conduct  of  any
candidate or in relation to the candidature or withdrawal of any  candidate,
it is not a corrupt practice. Even if the statement is in  relation  to  the
personal character or conduct  of  any  candidate  or  in  relation  to  the
candidature or  withdrawal  of  any  candidate,  unless  it  was  reasonably
calculated to prejudice the prospects of that candidate’s election, it  will
not amount to a corrupt practice. Each of the  ingredients  in  the  section
has its own importance. The omission to plead any one of the ingredients  is
fatal. In the absence of any of the ingredients, it will  not  constitute  a
complete cause of action to challenge the election on the ground of  corrupt
practice under section 123(4) of the Act.”



On a reading of the above discussion made by the High Court  with  which  we
fully concur, we do not find any scope to take a different  view.  The  said
conclusion of the High Court in the context of Section 123(4)  is  the  only
way to understand the implication of the  Annexure  IV-pamphlet  alleged  to
have been distributed by the Second Respondent at the instance of the  First
Respondent. Therefore, on this ground, as well, we do not find any scope  to
interfere with the impugned judgment of the High Court.



The only other ground which was raised in the Election Petition  related  to
violation of Section 33A of the Act wherein, the First Respondent stated  to
have suppressed his conviction in two criminal cases. As far  as  those  two
criminal  cases  are  concerned,  Mr.  Shishodia,  learned  Senior   Counsel
appearing  for  the  First  Respondent  brought  to  our  notice  that   the
contention  of  the  Appellant  based  on  those  two  criminal  cases  were
factually incorrect.  In the impugned judgment it has been  noted  that  the
First Respondent was convicted for offence in Sessions  Case  No.4  of  1975
but, however, the said conviction was set aside in Criminal   Appeal  No.248
of 2000  which  was  not  in  dispute.  Similarly,  with  reference  to  the
conviction in CC No.167 of 1995 the High Court has noted that the  certified
copy of the judgment in the said case was produced which disclosed that  the
sentence imposed in the said case  was  less  than  a  year.  Under  Section
33A(1)(ii) of the Act, the requirement of the candidate is  to  furnish  the
information in the nomination as regards his/her conviction for any  offence
referred to in sub-sections (i), (ii) and (iii) of Section 8 and  if  he/she
is sentenced to imprisonment for a period of one year  or  more,  only  then
should it be disclosed in the nomination.  As  it  has  been  found  in  the
present case that the conviction in CC  No.167  of  1995  and  the  sentence
imposed was less than  a  year,  there  was  no  compulsion  for  the  First
Respondent to disclose the said conviction in his nomination. Therefore,  on
this ground when the High Court declined to interfere with the  election  of
the First Respondent, no fault can be found with the said conclusion.

Having regard to our above discussions and findings there  is  no  merit  in
these appeals and the same are dismissed. No costs.

                                                  …...…..……….…………………………...J.
                                              [Fakkir Mohamed Ibrahim
Kalifulla]


                                                       ……………….………………………………J.
                                   [Shiva Kirti Singh]

New Delhi;
September 11, 2014.

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