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.
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.
