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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3840/2013
Arising Out of Special Leave Petition (Civil) No. 38061 of
2012
Smt. Neena Vikram Verma ...
Appellant
Versus
Balmukund Singh Gautam & Ors. ...
Respondent (s)
J U D G E M E N T
H.L. Gokhale J.
Leave Granted.
2. This petition for Special Leave seeks to challenge the
order dated 5.12.2012 passed by a learned Single Judge of the
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Madhya Pradesh High Court (Bench at Indore) allowing the
application filed by the first respondent under Order 6 Rule 16 of
Code of Civil Procedure (CPC) being I.A No. 7248/2012 for striking off
certain pleadings from the Recrimination Petition filed by the
Appellant herein.
Facts leading to this petition are this wise:-
3. The General Elections to the Madhya Pradesh Legislative
Assembly were notified by the Election Commission of India on
14.10.2008 and were held on 27.11.2008. The appellant herein
contested the election from 201-Dhar (General) Constituency. She
was declared elected on 9.12.2008 defeating the first respondent by
one vote.
4. The respondent No. 1 filed Election Petition bearing No. 11
of 2009 before the High Court of Madhya Pradesh (Bench at Indore),
challenging the election of the appellant on the ground of improper
reception, refusal and rejection of votes under the provisions of
Representation of Peoples Act, 1951 (R.P. Act, 1951 in short). This
was principally on the basis that the counting of the postal ballot
was done in violation of Rule 63 of the Conduct of Elections Rules,
1961, to the benefit of the appellant.
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5. The appellant in turn filed a Recrimination Petition under
Section 97 of the R.P. Act, 1951 within the time provided therefor,
principally raising two grounds:
(a) paragraph 3 of the Recrimination Petition claimed that there
were several criminal cases pending against the 1st respondent
which he had not disclosed, and therefore his nomination was void
and he cannot be declared to be elected,
(b) paragraph 4 thereof contended that the first respondent had
indulged into various corrupt practices.
6. Respondent No.1 thereafter filed an application under
Order 7 Rule 11 of CPC being I.A No. 8166 of 2009 for rejection of
the Recrimination Petition on the ground that it did not disclose any
cause of action. This was apart from filing the reply on merits to the
Recrimination Petition. The appellant opposed I.A No. 8166 of 2009
by filing her reply. The High Court by its order dated 14.7.2011
allowed the said application, consequently leading to the dismissal
of the Recrimination Petition filed by the appellant.
7. The appellant challenged this order by filing SLP (C) No.
28031 of 2011 which was converted into Civil appeal No. 1554 of
2012. By a consent order dated 2.2.2012 passed by this Court on
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that appeal, the said order dated 14.7.2011 passed by the High
Court was set aside, and the Recrimination Petition was restored to
the file of the Election Petition No. 11 of 2009.
8. It so transpired that subsequently the High Court by its
judgment and order dated 19.10.2012 allowed the Election Petition
No. 11 of 2009, and set aside the election of the petitioner herein.
The High Court, therefore directed the Recrimination Petition to be
heard.
9. We may note at this stage that the appellant has filed a
statutory appeal against the judgment and order in the Election
Petition No.11 of 2009 under section 116 A of the R.P. Act, 1951,
which has been admitted by this Court on 8.11.2012. By virtue of an
interim order passed therein, this Court has permitted the appellant
to attend the Assembly, but without any right to cast vote and to
receive any emoluments.
10. In the meanwhile, respondent No. 1 filed another
application being I.A No. 7248 of 2012 on 1.11.2012 under Order 6
Rule 16 for striking off the pleadings in paragraph 3 and 4 of the
Recrimination Petition. Appellant opposed this application by filing a
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reply. This application has been allowed by the impugned order
which has led to the present Civil Appeal.
11. We may mention one more development. The appellant
has filed an application under Order 6 Rule 17 to incorporate some
material facts in her Recrimination Petition. That has been rejected
by the High Court by its order dated 23.11.2012, and the appellant
has filed a separate SLP against that order.
Submissions on behalf of the appellant:-
12. Mr. Ranjit Kumar and Ms. Pinki Anand, senior counsel
appearing for the appellant took us through the application under
Order 6 Rule 16 filed by the respondent No.1, and compared it with
the earlier application filed by him under Order 7 Rule 11. It was
submitted by them that the contents of the present application
under Order 6 Rule 16 were identical to those in the earlier
application filed under Order 7 Rule 11. Thus, it was pointed out
that paragraphs 1 to 9 of the application under Order 6 Rule 16 were
identical to paragraphs 8 (d), 8 (e), 8(f), 8 (h), 8(i), 8 (j), 8 (k), 8(l)
and 8 (m) respectively of the earlier application. These paragraphs
of the two applications specifically dealt with paragraphs 3 (A) to 3
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(G) and paragraphs
4 (A) to 4 (D) of the Recrimination Petition. Thus, if this application
under Order 6 Rule 16 is allowed, all the pleadings from paragraph 3
and 4 of the Recrimination Petition will be struck off. These paras
contained the main grounds of the Recrimination Petition, and if
these were struck off nothing will remain in the Recrimination
Petition. Mr. Ranjit Kumar, submitted that this new application is
nothing but an attempt to reagitate under a new garb the earlier
application under Order 7 Rule 11 which had been rejected. He
pointed out that the High Court’s order on the application under
Order 7 Rule 11 dismissing the Recrimination Petition had been setaside by this Court by consent, and the Recrimination Petition was
set down for hearing. Paragraph 3 and 4 of the Order of this Court
dated 2.2.2012 read as follows:-
“……
3. In course of the hearing in light of the
discussion that took place, learned senior counsel
for the parties agreed for the following order:
(i)The order dated July 14, 2011 passed by
the High Court of Madhya Pradesh, Bench at
Indore, is set aside.
(ii) The Recrimination Petition filed by the
present appellant (returned candidate) under
Section 97 of the Representation of the People
Act, 1951 is restored to the file of the Election
Petition No. 11 of 2009.
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(iii) The High Court is requested to hear and
conclude the trial with regard to the challenge to
the election of the returned candidate in Election
Petition No. 11 of 2009-Balmukund Singh Gautam
Vs. Smt. Neena Vikram Verma and others – as
early as may be possible and in no case later than
May 31, 2012.
iv) In case the High Court declares the
election of the returned candidate to be void, the
High Court shall then proceed with the
consideration of the Recrimination Petition and
conclude the enquiry in respect therof
expeditiously and positively by August 31, 2012.
4. The parties shall fully co-operate with
the High Court in expeditious conclusion of the
trial and shall not seek unnecessary
adjournments.
………………..”
13. Mr. Ranjit Kumar, therefore submitted that since the
Recrimination Petition has been restored to the file by an order of
this Court, it was expected that the submissions therein had to be
gone into and decided. This Hon’ble Court had passed its order on
2.2.2012 in terms of the agreement arrived at between the parties.
The application under Order 6 Rule 16 was filed on 1.11.2012 which
was 9 months after the said consent order. This was also in the
teeth of the direction by this Court to dispose of the Recrimination
Petition expeditiously, and in fact all parties had specifically agreed
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before this Court to fully cooperate with the High Court in
expeditious disposal.
Submissions on behalf of the respondent No.1:-
14. Mr. P.P. Rao and Mr. A.V. Savant, learned senior counsel
appeared for the respondent No. 1. Mr. Rao submitted that the
nature of an application under Order 6 Rule 16 was different from
the one under Order 7 Rule 11. Order 6 Rule 16 was to strike out
those pleadings which were unnecessary, scandalous, frivolous or
vexatious. As against that, Order 7 Rule 11 dealt with a situation
where a plaint did not disclose any cause of action. Mr. Rao
submitted that the Supreme Court Order dated 2.2.2012 did not bar
filing of the application under Order 6 Rule 16 CPC for striking off
unnecessary or scandalous pleadings. In support of his submission
that the scope of the two provisions was different, he relied upon
paragraph 18 of the judgment of this Court in Sopan Sukhdeo
Sable and Ors. Vs. Assistant Charity Commissioner and Ors.
reported in 2004 (3) SCC 137 which is to the following effect:-
“18. As noted supra, Order 7 Rule 11 does
not justify rejection of any particular portion of the
plaint. Order 6 Rule 16 of the Code is relevant in
this regard. It deals with “striking out pleadings”.
It has three clauses permitting the court at any
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stage of the proceeding to strike out or amend
any matter in any pleading i.e. (a) which may be
unnecessary, scandalous, frivolous or vexatious,
or, (b) which may tend to prejudice, embarrass or
delay the fair trial of the suit, or, (c) which is
otherwise an abuse of the process of the court.”
15. Paragraph 3 of the Recrimination Petition was concerning
the alleged criminal activities on the part of the respondent No.1.
Appellant has contended in this paragraph that the respondent No.1
had not disclosed that he was accused of various offences, and this
non-disclosure was contrary to the requirement under Section 33A
of the R.P. Act, 1951. The apellant has therefore, submitted that if
the respondent No.1 was to be elected, the election would be void.
Mr. Rao, however, pointed out that this section requires the
candidate to furnish the information as to whether he is accused of
any offence which is punishable with imprisonment for two years or
more in a pending case, and in which a charge has been framed by
a competent court. The particulars given by the appellant did not
indicate that any charge had been framed against the respondent in
any of those cases.
16. With respect to the allegations of criminality it was
submitted that the election petition cannot be entertained, merely
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on the basis of general allegations of criminality unless a specific
case as required by Section 33A was made out. The following
observations of this Court from paragraph 8 in Jyoti Basu and Ors.
Vs. Debi Ghosal and Ors. reported in 1982 (1) SCC 691 were
pressed into service in that behalf:-
“8. A right to elect, fundamental though it is
to democracy, is, anomalously enough, neither a
fundamental right nor a common law right. It is
pure and simple, a statutory right. So is the right
to be elected. So is the right to dispute an
election. Outside of statute, there is no right to
elect, no right to be elected and no right to
dispute an election. Statutory creations they are,
and therefore, subject to statutory limitation. An
election petition is not an action at common law,
nor in equity. It is a statutory proceeding to which
neither the common law nor the principles of
equity apply but only those rules which the statute
makes and applies. It is a special jurisdiction, and
a special jurisdiction has always to be exercised in
accordance with the statute creating it. Concepts
familiar to common law and equity must remain
strangers to election law unless statutorily
embodied. A court has no right to resort to them
on considerations of alleged policy because policy
in such matters as those, relating to the trial of
election disputes, is what the statute lays
down……..”
17. With respect to paragraph 4 (and its sub-paragraphs) of
the Recrimination Petition, Mr. Rao, submitted that this paragraph
was concerning the alleged corrupt practices on the part of the
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respondent No.1. Corrupt practice is a ground available to set-aside
the election under Section 100 (1) (d) (ii) of the R.P. Act, 1951. The
Recrimination Petition is like an Election Petition, and Section 83 (1)
(c) of the R.P. Act, 1951 requires that the Election Petition shall be
signed by the petitioner and verified in the manner laid down in the
CPC for the verification of pleadings. Over and above that, the
proviso to Section 83 (1) (c) lays down that where the petitioner
alleges any corrupt practice, the petition has to be accompanied by
an affidavit in the prescribed form in support of the allegation of
such corrupt practice and the particulars thereof. This affidavit has
to be as per form 25, as laid down in Rule 94A of the Conduct of
Election Rules, 1961. Mr. Rao, pointed out that in the present
matter the affidavit was not made as per these requirements. He
further pointed out that this submission had been specifically raised
in the affidavit of the respondent No. 1, and the same had not been
controverted by the petitioner.
18. It was then submitted that for seeking a declaration that
the election is void on the ground of corrupt practice under Section
100 (1) (d) (ii) of the Act, it was necessary to make out a prima facie
case as required by Section 100 (1) (d) that the result of the
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election, in so far as it concerns a returned candidate, has been
materially affected by the corrupt practice. That has not been
shown in the present matter. Paragraph 11 of the judgment of this
Court in Mangani Lal Mandal Vs. Bishnu Deo Bhandari reported
in 2012 (3) SCC 314 which is on sub-clause (iv) of Section 100 (1)
(d) was pressed into service in this behalf. It reads as follows:-
“11. A mere non-compliance or breach of the
Constitution or the statutory provisions noticed
above, by itself, does not result in invalidating the
election of a returned candidate under Section
100(1)(d)(iv). The sine qua non for declaring the
election of a returned candidate to be void on the
ground under clause (iv) of Section 100(1)(d) is
further proof of the fact that such breach or nonobservance has resulted in materially affecting the
result of the returned candidate. In other words,
the violation or breach or non-observation or noncompliance with the provisions of the Constitution
or the 1951 Act or the rules or the orders made
thereunder, by itself, does not render the election
of a returned candidate void Section 100(1)(d)(iv).
For the election petitioner to succeed on such
ground viz. Section 100(1)(d)(iv), he has not only
to plead and prove the ground but also that the
result of the election insofar as it concerned the
returned candidate has been materially affected.
The view that we have taken finds support from
the three decisions of this Court in: (1) Jabar Singh
v. Genda Lal [AIR 1964 SC 1200]; (2) L.R.
Shivaramagowda v. T.M. Chandrashekar [1999 (1)
SCC 666]; and (3) Uma Ballav Rath v. Maheshwar
Mohanty [1999 (3) SCC 357]”.
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19. The proposition that the verification of the petition or
Recrimination Petition has to be in the prescribed form or else the
matter cannot be gone into, was supported on the basis of the
decision of a bench of two Judges of this Court in P.A. Mohammed
Riyas Vs. M.K. Raghavan & Ors. reported in 2012 (5) SCC 511.
Paragraph 47 of this judgment reads as follows:-
“47. In our view, the objections taken by Mr
P.P. Rao must succeed, since in the absence of
proper verification as contemplated in Section 83,
it cannot be said that the cause of action was
complete. The consequences of Section 86 of the
1951 Act come into play immediately in view of
sub-section (1) which relates to trial of election
petitions and provides 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 of the 1951 Act.
Although Section 83 has not been mentioned in
sub-section (1) of Section 86, in the absence of
proper verification, it must be held that the
provisions of Section 81 had also not been fulfilled
and the cause of action for the election petition
remained incomplete. The petitioner had the
opportunity of curing the defect, but it chose not
to do so.”
20. Last but not the least, with respect to the argument that
the decision on these objections can wait till the end of the trial, the
following observations in paragraph 12 in Azhar Hussain Vs. Rajiv
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Gandhi reported in AIR 1986 SC 1253 were relied upon which
read as follows:-
12. Learned counsel for the petitioner has
next argued that in any event the powers to reject
an election petition summarily under the
provisions of the Code of Civil Procedure should
not be exercised at the threshold. In substance,
the argument is that the court must proceed with
the trial, record the evidence, and only after the
trial of the election petition is concluded that the
powers under the Code of Civil Procedure for
dealing appropriately with the defective petition
which does not disclose cause of action should be
exercised. With respect to the learned counsel, it
is an argument which it is difficult to comprehend.
The whole purpose of conferment of such powers
is to ensure that a litigation which is meaningless
and bound to prove abortive should not be
permitted to occupy the time of the court and
exercise the mind of the respondent. The sword of
Damocles need not be kept hanging over his head
unnecessarily without point or purpose. ………..”
Rejoinder on behalf of the petitioner:-
21. The learned senior counsel Mr. Ranjit Kumar, pointed out
in the Rejoinder that Section 83(1) of the R.P. Act, 1951, required
that the Election Petition (and for that matter the Recrimination
Petition), shall contain a concise statement of the material facts
which are relied upon. In the instant case the grounds raised in the
Recrimination Petition were two-fold. Firstly, the criminality of the
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respondent, and secondly the corrupt practices in which the
respondent had indulged. As far as the aspect of criminality is
concerned, it was pointed that the Recrimination Petition is required
to be filed within 14 days from the date of commencement of the
trial as required under the proviso of Section 97 of the R.P. Act,
1951. Even so, within that period the petitioner has placed on
record the material facts in paragraph 3 of the Recrimination
Petition. In paragraph 3(B) thereof the particulars of the criminal
cases registered against respondent were given in a table. The
table contains the following details:-
SL
.N
o
Police
Station/Cas
e No.
Section Name of Accused Challan No.
1. Sadalpur/76
/ 22-5-85
147, 148, 149,
323, 451 IPC
Balmukund s/o
Ramdeosingh Gautam
48/2-6-1985
2. Pithampur/3
59/ 26.9.89
341, 294, 323 IPC Balmukund s/o
Ramdeosingh Gautam
alongwith one other
accused
318/27-9-89
3. Pithampur/
129/23-5-90
294, 323, 506 IPC Balmukund s/o
Ramdeosingh Gautam
105/5-6-90
4. Pithampur/
109/24-3-96
34 Excise Act Balmukund s/o
Ramdeosingh Gautam
alongwith two other
accused
104/29-4-96
5. Pithampur/4
06/24-12-97
307, 147, 148,
149 of IPC
Balmukund s/o
Ramdeosingh Gautam
alongwith five other
accused
107/18-4-98
6. Pithampur/ 365/34 IPC Balmukund s/o 1/18-3-2001
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70/12-3-01 Ramdeosingh Gautam
alongwitho ne other
accused
7. Pithampur/
27/29-1-
2007
147/341 IPC Balmukund s/o
Ramdeosingh Gautam
alognwith one other
accused
101/9-5-
2007
8. Pithampur/
106/24-3-96
34 Excise Act Balmukund s/o
Ramdeosingh Gautam
alongwith two other
accused
104/29-4-96
9. Sadalpur/
32/2-3-96
34,36 Excise Act Balmukund s/o
Ramdeosingh Gautam
92/27-6-96
10
.
Badnawar/
258/21-8-96
34, 49 Excise Act Balmukund s/o
Ramdeosingh Gautam
282/31-10-
96
11
.
Badnawar/
259/21-8-96
34,49 Excise Act Balmukund s/o
Ramdeosingh Gautam
283/31-10-
96
12
.
Indore
Police
Criminal
Case
No. 1241/01
34 (1) (2) Excise
Act
Balmukund s/o
Ramdeosingh Gautam
2001
13
.
Sadalpur/
122/2-8-
1985
379 IPC, 247(7)
Land Revenue
Court
Balmukund s/o
Ramdeosingh Gautam
118/1-10-
1986
14
.
Sadalpur/
199/13-10-
86
147, 148, 452,
506 IPC
Balmukund s/o
Ramdeosingh Gautam
alongwith seven other
accused
124/26-10-
1986
22. In paragraph 3(E), it was placed on record that the
respondent was declared as an absconded person in a criminal
proceeding by C.J.M Dhar in a Criminal Case No. 968/96. In
paragraph 3(F) it was pointed out that the petitioner’s name was
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registered as a listed Gunda in the year 2004, and the letter dated
12.1.2004 issued by S.P. Dhar to the Police Station Pithampur in that
behalf was enclosed. It was further pointed out that on 22.11.2012,
the petitioner had served a notice on the respondent under Order 12
Rule 4 of CPC to admit the facts. In the said notice, it was
specifically stated that the following criminal cases are registered
against him, in which charges have been framed, and the same are
punishable with more than 2 years imprisonment. This table reads
as follows:-
SL
.N
o
Crime No. Section Name of Accused Police
Station
1. 76/22.5.85 147, 148, 149,
323, 451, IPC
Balmukund S/o
Ramdeosingh Gautam
Sadalpur
2. 359/29.9.89 341, 394, 323 IPC Balmukund s/o
Ramdeosingh Gautam
Pithampur
3. 129/23.5.90 293, 323, 506 IPC Balmukund S/o
Ramdeosingh Gautam
Pithampur
4. 109/24.3.96 34 Excise Act Balmukund S/o
Ramdeosingh Gautam
Pithampur
5. 406/24.12.9
7
307, 147, 148, IPC Balmukund S/o
Ramdeosingh Gautam
Pithampur
6. 70/12.3.200
1
365, 34 IPC Balmukund S/o
Ramdeosingh Gautam
Pithampur
7. 27/29.1.07 341, 147 IPC Balmukund S/o
Ramdeosingh Gautam
Pithampur
8. 106/24.3.96 34 Excise Act Balmukund S/o Pithampur
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Ramdeosingh Gautam
9. 32/2.3.96 34, 36 Excise Act Balmukund S/o
Ramdeosingh Gautam
Sadalpur
10
.
258/21.8.96 34, 49 Excise Act Balmukund S/o
Ramdeosingh Gautam
Badnawar
11
.
259/21.8.96 34, 49 Excise Act Balmukund S/o
Ramdeosingh Gautam
Badnawar
12
.
Indore
Police
Criminal
Case No.
1241/01
31 (1) (2) Excise
Act
Balmukund S/o
Ramdeosingh Gautam
Indore
Police
Station
13
.
358/7.10.05 294, 323, 506 IPC Balmukund S/o
Ramdeosingh Gautam
Pithampur
14
.
122/2.8.85 379 IPC and
247(7) MPLR Code
Balmukund S/o
Ramdeosingh Gautam
Sadalpur
15
.
199/13.10.8
6
147, 148, 452,
506 IPC
Balmukund S/o
Ramdeosingh Gautam
Sadalpur
16
.
358/7.10.05 294, 323, 506 IPC Balmukund S/o
Ramdeosingh Gautam
Pithampur
Distt. Dhar
17
.
38/03/ Excise Act Gujarat Balmukund S/o
Ramdeosingh Gautam
Declared Absconded
Dhanpur
Distt.
Dahopd
Gujarat
18
.
358/7.10.05 294, 323, 506, IPC Balmukund S/o
Ramdeosingh Gautam
Pithampur
Distt. Dhar
19
.
38/03/ Excise Act Gujarat Balmukund S/o
Ramdeosingh Gautam
Declared Absconded
Dhanpur
Distt. Dahod
Gujarat
20
.
239/03 19, 1/54, 19/54-
65, 19/54(a)
Excise Act
Rajasthan
Balmukund S/o
Ramdeosingh Gautam
Declared Absconded
Bhilwara
Rajasthan
18Page 19
21
.
19/10 420, 181, 200 of
IPC
Balmukund S/o
Ramdeosingh Gautam
Plice Raoji
Bazar,
Indore
23. It was then pointed out that on 23.11.2013 the respondent
sought time before the learned Single Judge to file reply to this
notice to admit facts. On 4.12.2013, the learned Judge recorded
that even though the respondent had stated on 23.11.2012 that he
wished to file a reply, now he had decided to wait for the outcome of
the application under Order 6 Rule 16 of CPC and, if required, to file
a reply thereafter. Mr. Ranjit Kumar pointed out that this kind of
reply will mean that the documents are deemed to be admitted, in
view of the provision of Order 12 Rule 2-A of CPC. It was therefore,
submitted that the High Court could not have held that the
petitioner had not given the particulars in support of the allegations
of criminality, as required by Section 33A of the R.P. Act, 1951.
24. The second limb of the argument of Mr. Rao was that for
raising the ground of corrupt practice, full particulars of the corrupt
practice are required to be given under Section 83 (1) (b) of the R.P.
Act, 1951. Mr. Ranjit Kumar, pointed out that Section 83 (1) (b)
requires one to set forth full particulars of any corrupt practice,
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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 commission of each such practice. It was therefore pointed
out that in paragraph 4(A) of the Recrimination Petition it was
specifically pleaded that on 11.11.2008, at the instance of the
respondent his younger brother Rakesh Singh had threatened the
candidate of BSP namely Shri G.P. Saket, that if his nomination form
was not withdrawn he shall have to face dire consequences. It was
further pointed out that similar type of threat was given to the
election agent of the said candidate namely Shri Munnalal Diwan. A
letter dated 11.11.2008 sent to the Police Thana Pitampur was also
enclosed with the Recrimination Petition. In paragraph 4(C) it was
specifically pointed out that respondent was a liquor contractor, and
during the election period several cases were registered against him
and his associates/servants details of which were enclosed in an
Annexure. A news report in Dainik Agniban dated 5.11.2008 was
also enclosed, which stated that 700 boxes of illegal beer were
seized by the Alirajpur Police, and in that case respondent was
involved. It was alleged that he was distributing the beer bottles in
the constituency, and it could amount to bribery and a corrupt
20Page 21
practice under Section 123 of the R.P. Act, 1951. In para 4 (D) it
was alleged that his agents /associates were found to indulge in
digging bore-well without proper permission in the constituency,
which would amount to a corrupt practice and bribery, and a copy of
the information given by T.I. Police Station dated 14.1.2009 was
enclosed. Mr. Ranjit Kumar pointed out that Section 83 (1) (b)
requires one to give full particulars of the corrupt practices as
possible, and that had been done. In the facts of the present case,
the propositions from the judgments in the cases of Jyoti Basu,
Mangani Lal Mandal and Azhar Hussain (all supra) relied on
behalf of the respondent have no application.
25. The other submission on behalf of the respondent No.1
was that the petitioner ought to prima-facie show that because of
the corrupt practice his election was materially affected. In the
instant case the appellant had won the election by just one vote,
and obviously such corrupt practice would tilt the balance one way
or the other and materially affect the result of the election.
26. The last submission of Mr. Rao was that when corrupt
practices are alleged, an affidavit is to be sworn in the prescribed
form, which is Form No. 25, and reliance was placed on paragraph
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47 of the judgment of this Court in P.A. Mohammed Riyas
(supra), which stated that in the absence of proper verification, the
High Court has to dismiss the Election Petition. Mr. Ranjit Kumar,
however, pointed out from paragraph 47 quoted above, that the
petitioner in that matter had the opportunity of curing the defects,
but he had chosen not to do so, and that made the difference. He
pointed out that the absence of this affidavit is not laid down as a
ground for dismissal of the Election Petition under Section 86 of the
Act, and that has been the consistent view taken by this Court in
various judgments.
27. Last but not the least, the principal submission of Mr.
Ranjit Kumar was that at the time when the Recrimination Petition
was restored by consent, nothing prevented the respondent from
pointing out to this Court that the pleadings in the Recrimination
Petition were in any way defective, unnecessary or scandalous. The
respondent agreed to the Recrimination Petition being restored, and
is now trying to reagitate the very cause under Order 6 Rule 16 of
CPC which was undoubtedly impermissible as held by this Court in
K.K. Modi Vs. K.N. Modi & Ors. reported in 1998 (3) SCC 573.
He submitted that this would amount to abuse of process of court.
22Page 23
Consideration of the submissions:-
28. We have noted the submissions of both the counsel. As
can be seen, the application under Order 7 Rule 11 is required to be
decided on the face of the plaint or the petition, whether any cause
of action is made out or not. Once it is accepted by a party by
consent that a particular petition (in the instant case the
Recrimination Petition) is to be heard by the Court, by giving up the
objection under Order 7 Rule 11, the very party cannot be
subsequently permitted to seek the striking off the pleadings
containing the cause of action under the garb that the pleadings
containing the cause of action are unnecessary, vexatious or
scandalous. One is expected to take all necessary pleas at the same
time. The party concerned is expected to raise such a contention at
the time of passing of the Court order (consent order in the present
case) or seek the liberty to raise it at a later point of time that some
of the pleadings are unnecessary or vexatious or scandalous. No
Court is expected to permit any matter to be raised which might and
ought to have been made ground of defence or attack, once the
same is relinquished by the party concerned. The learned Single
Judge ought to have noted this basic principle of any litigation.
23Page 24
Reliance on the judgment in the case of K.K. Modi (supra) is quite
apt in this behalf.
29. That apart, even when we look to the objections raised in
the present matter under Order 6 Rule 16, the same is based on the
requirement of Section 83 of the R.P. Act, 1951 that the applicant is
required to place material facts before the Court. As far as the
allegation of criminality is concerned, in our view sufficient material
facts were placed on record alongwith the Recrimination Petition.
Subsequently, a notice to admit facts was given, wherein, particulars
of specific cases were given, wherein, the charge-sheets were filed
for the charges which would result into imprisonment of 2 years or
more, as required by section 33A of the R.P. Act, 1951. The
respondent chose not to reply to this notice. In fact the learned
Judge ought to have drawn an adverse inference, but he failed in
doing so. As far as the ground of corrupt practice is concerned,
as can be seen from the pleadings quoted above, on that aspect
also material facts were placed on record as rightly pointed out by
Mr. Ranjit Kumar.
30. With reference to the observations in paragraph 47 of the
judgment in the case of P.A. Mohammed Riyas (supra), we may
24Page 25
note that way back in the case of Murarka Radhey Shyam Ram
Kumar Vs. Roop Singh Rathore and Anr. reported in AIR 1964
SC 1545 a Constitution Bench of this Court has in terms held that a
defect in the verification in the matter of Election Petition can be
removed in accordance with the principles of CPC, and that it is not
fatal to the Election Petition. This decision has been referred and
followed by this Court time and again. Thus in H.D. Revanna Vs.
G. Puttaswamy Gowda and Ors. reported in 1999 (2) SCC 217,
this Court observed as follows in paragraph 15:-
“15. In Murarka Radhey Shyam Ram Kumar
V. Roop Singh Rathore a Constitution Bench has
held in unmistakable terms that a defect in the
verification of an election petition as required by
Section 83(1)(c) of the Act was not fatal to the
maintainability of the petition and that a defect in
the affidavit was not a sufficient ground for
dismissal of the petition. Another Constitution
Bench held in Ch Subbarao V. Member, Election
Tribunal Hyderabad that even with regard to
Section 81(3), substantial compliance with the
requirement thereof was sufficient and only in
cases of total or complete non-compliance with
the provisions of Section 81(3), it could be said
that the election petition was not one presented in
accordance with the provisions of that part of the
Act.”
This Court has in Ponnala Lakshmaiah Vs. Kommuri Pratap
Reddy and Ors. reported in 2012 (7) SCC 788, reiterated the law
25Page 26
in Murarka Radhey Shyam (supra). Paragraph 26 of this
judgment reads as follows:-
“26. We may also refer to a Constitution
Bench decision of this Court in Murarka Radhey
Shyam Ram Kumar v. Roop Singh Rathore where
this Court held that a defective affidavit is not a
sufficient ground for summary dismissal of an
election petition as the provisions of Section 83 of
the Act are not mandatorily to be complied with
nor did the same make a petition invalid as an
affidavit can be allowed to be filed at a later stage
or so.
Relying upon the decision of a three-Judge
Bench of this Court, in T. Phungzathang v.
Hangkhanlian [2001 (8) SCC 358] this Court held
that non-compliance with Section 83 is not a
ground for dismissal of an election petition under
Section 86 and the defect, if any, is curable as has
been held by a three-Judge Bench of this Court in
Manohar Joshi v. Nitin Bhaurao Patil [1996 (1) SCC
169] and H.D. Revanna v. G. Puttaswamy Gowda
[1999 (2) SCC 217].”
31. In view of what is stated above, the order passed by the
learned Single Judge in allowing the application of the first
respondent under Order 6 Rule 16 of CPC was clearly untenable and
bad in law.
The learned Single Judge of the High Court could not
have entertained the application under Order 6 Rule 16 when this
Court had restored the Recrimination Petition to the file of that Court by consent in order to decide it expeditiously.
The learned Judge
26Page 27
has erred in holding that the pleadings in paragraph 3 and 4 of the
Recrimination Petition were vague, vexatious, non-specific and
without any material facts. The appeal is therefore allowed. The
impugned order is set-aside. The learned Judge of the High Court
will now proceed to decide the Recrimination Petition as filed by the
petitioner expeditiously. The parties will bear their own cost of
litigation.
…………………………..J.
( H.L. Gokhale )
……………………………J.
(Madan B. Lokur)
New Delhi
Dated: April 12, 2013
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