Madras High Court
P.Chidambaram vs R.S.Raja Kannappan on 7 June, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:07.06.2012
CORAM:
THE HONOURABLE MR.JUSTICE K.VENKATARAMAN
APPLICATION No.3428 of 2011
IN
ELECTION PETITION No.5 of 2009
P.Chidambaram : Applicant/First respondent
vs
1.R.S.Raja Kannappan
2.M.G.Devar
3.K.Sakthivel
4.Barwatha Regina Papa
5.R.A.Ramasamy
6.J.Abupacker Sithik
7.Aru.Alagappan
8.PL.Alagappan
9.V.S.K.S.Aanandhan
10.K.Samudram Kalaimani
11.K.Karmegam
12.P.Gunasekaran
13.S.Chidambaram
14.M.Arimalam Thiyagi Subramanian
15.M.Thoothai Selvam
16.P.Malairaj
17.A.Radhakrishnan
18.S.Rajagopal
19.R.Rajiv
20.The Returning Officer,
Sivagangai Parliamentary Constituency,
Sivagangai. : Respondents 1 to 20.
Application is filed under Order XIV Rule 8 of the High Court Rules R/W VI Rule 16 and Order VII Rule 11 of CPC and Sections 81, 82, 86, 100(1), (b), (d)(ii), (iii), (iv) and 123 of the Representation of Peoples' Act, 1951 seeking to strike off the Election Petition, in particular the specific portions pointed out therein.
For Applicant : Mr.G.Masilamani
Senior Counsel
For Mr.R.Dhanapal Raj
For Respondent No.1 : Mr.T.V.Ramanujun
Senior Counsel
For Mr.P.H.Manoj Pandian
For Respondent No.19 : Mr.G.Murugendran
O R D E R
*********** The Applicant / Returned Candidate, who is presently the Union Home Minister, on an Election Petition filed against him, has filed an application to reject the Election Petition under Order VII Rule 11 CPC and also to strike out certain pleadings under Order VI Rule 16 CPC. The present application under Order VII Rule 11 CPC is made for the second time, though on an earlier occasion, an application was filed under the said provision on different grounds.
2. For the sake of convenience, the petitioner in the Election Petition, who is the first respondent in this application, will be referred to as the "Election Petitioner", while the applicant in this application, who is the first respondent in the Election Petition will be referred to as the "Applicant" and the 19th respondent in the Election Petition will be referred to as the "19th respondent" in this order.
3. The Election Petitioner has filed the Election Petition to declare the election of the Applicant from the Sivaganga Parliamentary Constituency as void, recounting of the votes and to declare him as duly elected candidate in the said constituency.
4. The following grounds have been raised by the Election Petitioner in his Election Petition seeking the prayers referred to above, namely,
(a) The Applicant made use of his position, to enlist into election duty, the officials from the Nationalized Banks in the Sivaganga District with the help of the returning officer. During his tenure as Unioin Finance Minister, he opened branches of various Nationalized Banks throughout the Sivaganga Parliamentary Constituency. Therefore, those officials owed allegiance and loyalty to him. Therefore, at the instance of the Applicant, the Returning Officer enlisted some persons from the banking sector into election duty.
(b) Amounts were distributed to the women Self Help Group's in his constituency in order to obtain support from them. The agents of the applicant was going on collecting bank account details of the members of the women Self Help Group's in order to sumptuously park illegal funds into their account for purchasing their votes. Since the Election Petitioner lodged a complaint, the applicant and his associates changed their strategy and issued token to ring leaders of the Self Help Groups and paid money at the rate of Rupees Five Hundred per women member on production of the token. The son of the applicant, by name Mr.Karti Chidambaram distributed funds to the women members of the Self Help Groups.
(c) On 23.04.2009, one Malaysia Pandian and other named persons came by vehicle bearing number TN 59 AK 10, Pajero etc., to Pechiamman temple in Ilayankudi Taluk, Vadakkusalaigramam Village in Sivaganga Parliamentray Constituency and distributed cash to the villagers for casting their votes in favour of the applicant. The same was complained to the Tahsildar of Ilayankudi and the Deputy Superintendent of Police. The Tahsildar of Ilayankudi who was the election official came to the place with police and recovered cash from them. The said news was reported in papers and in several news channels. The complained lodged in that regard fell in vain, in view of the position of the applicant and also in view of the fact that the State is ruled by the DMK with the support of the Indian National Congress to which the applicant belongs to.
(d) On 24.07.2009, around 10.00 A.M. one O.L.Chelliah, AIADMK party Union Secretary of Sakkottai of Sakkottai Union, Karaikudi Taluk, Sivaganga Parliamentary Constituency went to a village by name Amaravathipudur in Karaikudi Taluk for campaign. There, he saw around 40 women belonging to the Indian National Congress Party arriving by two vans and they went to every house and after speaking to them for voting in favour of the applicant, gave Rupees Five Hundred kept neatly inside a fancy leather bag. The said O.L.Chelliah gave a complaint. However, the Inspector of Police, Karaikudi one Sivakumar refused to receive the complaint initially. He was informed that the matter will be reported to the Election Commission and also they staged a Dharna before the Police Station. At that time, the said Sivakumar, Inspector of Police, Karaikudi was found talking to the applicant and from the nature of conversation, it could be inferred that he was talking to the applicant. Though a complaint has been received, FIR was not registered.
(e) On 02.05.2009, around 10.00 A.M, one Rajendran convened a meeting of party workers of Indian National Congress and their allies DMK. The said Rajendran and others were distributing Rupees Five Hundred to each of the women voter on the instruction of the applicant. The Election Petitioner's agent sent a representation dated 02.05.2009 in that regard to the Chief Electoral Officer for suitable action, but however it has not resulted any fruitful action.
(f) On 06.05.2009, around 8.00 A.M. O.L.Chelliah, AIADMK Sakkottai Union Secretary and other AIADMK partymen went for campaigning for the Election Petitioner to Sakkavayal Village in Karaikudi Taluk in Sivaganga Parliamentary Constituency. They saw 5 persons who had arrived by a red colour Maruthi Swift Car bearing registration number TN 30 AD 1972 distributing cash that was kept stored in the said car. On complaint, the police seized the car and the balance covers with cash that was left by the group and a case was registered in Cr.No.151/09 u/s 171 (B) IPC. When the applicant, who had sent those persons with cash for distribution to the voters, came to know of it, he made the owner of the said car to lodge a false complaint to the effect that he had parked his vehicle in the village and had gone out with his friend and when he returned he found his car window broken and 15 sovereigns gold chain allegedly kept by him in the dash board of the car missing. On his complaint, a case was registered against O.L.Chelliah and other AIADMK partymen in Cr.No.152/2009 under Sections 147, 188, 427 and 379 IPC.
(g) On 12.05.2009, one Anbhazhagan, a prominent campaigner for the Election Petitioner received information that Karthik Chidambaram, son of the applicant was distributing cash to the voters for and on behalf of his father, in Rajagambeeram Village, Manamadurai Taluk in Sivaganga Parliamentary Constituency around 7.30 P.M. The said Anbhazhagan along with other AIADMK functionaries rushed to the spot and found that Karthik Chidambaram and many others were distributing cash to the voters. When the same has been objected, Karthik Chidambaram, son of the applicant, brutally attacked the said Anbhazhagan with a stick which caused grievous injuries on his forehead and nose. However, the AIADMK functionaries rescued the said Anbhazhagan and lodged a complaint before the local Manamadurai Police Station. But the same was refused to be received by one Ramesh, who was the Inspector of Police, Manamadurai Police Station and the injured Anbhazhagan was not sent to the hospital for treatment, since the Inspector of Police was receiving instruction from the applicant to slow pedal the investigation process, so that a case cannot be registered against his son. In fact, the applicant himself came to the police station and exhorted the Police Inspector to arrest the said Anbhazhagan thereof. The AIDAMK partymen realizing the position admitted the said Anbhazhagan at Meenakshi Mission Hospital in Madurai. However, at the instance of the applicant, a case was registered against the said Anbhazhagan under various provisions of IPC. Thus, on the eve of the election, the applicant had dispatched his son Karthik Chidambaram and others with money for distribution to voters for the purpose of procuring votes for himself and whey they were caught red-handed, he came in person to the Manamadurai Police Station to rescue his son and his partymen and in that process engineered a patently false case against AIADMK partymen who had come to the spot for preventing bribery of voters.
(h) On 16.05.2009, the counting of votes took place. Around 12.00 P.M, the news channels reported that the Election Petitioner is all set to win in the elections. In fact, the online edition of the Hindu reported that the Election Petitioner was elected by a margin of 3,552 votes. The Election Petitioner proceeded to the counting centre, where he met his election agent, who told him that the applicant had congratulated him for winning the elections and had left the counting centre. When the Election Petitioner went round the counting halls at around 12.30 P.M. the counting process was over, but strangely the Returning Officer was not issuing him the necessary certificate. The Returning Officer, when called, informed the Election Petitioner that he is yet to receive the formal signed official reports from the Assistant Returning Officers. In the meanwhile, it was evident that the Indian National Congress led United Progressive Alliance had won the elections and that they would form the next Government. At 4.30 P.M when the election results all over the country was known conclusively, the Returning Officer was strangely saying that the applicant was only leading. The reason being that the manipulation was going on and hence he needed some more time to officially declare the result. The Election Petitioner and his agent objected to this and demanded recount of the votes. The police went on a lathi charge and forcefully disbursed the AIDAMK cadres, since they were agitated over the action of the Returning Officer. Without passing any orders on the request made by the Election Petitioner to recount the votes, the applicant was declared as a winner by a margin of 3,354 votes.
(i) The applicant in connivance with the Returning Officer and other election officials has manipulated the votes counted in the 11th, 12th, 13th, 14th and 15th rounds in Alangudi Assembly segment and added the votes secured by the Election Petitioner to the kitty of the applicant. Had the manipulation not been done, the Election Petitioner would have been declared elected by a margin of 7,034 votes. The Returning Officer in connivance with the applicant has transferred the votes polled in favour of the Election Petitioner in the Alangudi Assembly segment illegally in favour of the applicant.
(j) Thus, making the above allegations, the Election Petition was filed.
5. The applicant has not filed any counter so far to the main election petition. He has filed an application in A.No.6941 of 2009 to dismiss the election petition under Order VII Rule 11 CPC. The reason that was stated in the said application was that when his counsel inspected the Election Petition and other connected records, it revealed that the Election Petition that was filed on 25.06.2009 was scrutinized by the Court Officer in-charge of the Election Petition on 18.09.2009 and the said officer returned the Election Petition with certain endorsements. The endorsements revealed that the Election Petition was defective. However, the same seems to have been rectified and represented without any formal return. The said application filed on 21.12.2009 was dismissed on 04.08.2011. The present application seems to have been filed on 11.07.2011 just before the pronouncement of the order in the original application. The present application was filed under Order XIV Rule 8 of the High Court Rules r/w Order VI Rule 16 and Order VII Rule 11 of CPC and Sections 81, 82, 86, 100(1), (b), (d) (ii), (iii), (iv) and 123 of the Representation of Peoples Act, 1951.
6. The brief facts set out in the application filed by the applicant are set out hereunder:-
(a) The allegations contained in the election petition are false and assuming they are true, they do not disclose any cause of action for the reasons stated hereunder. None of the allegations constitutes a ground for declaring the election to be void under Section 100 of the Act.
(b) An election petition shall contain a concise statement of the material facts and shall set forth full particulars of any corrupt practice including as full a statement as far as possible the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each such practice.
(c) The election petition must contain averments / allegations regarding the essential ingredients of the ground that is invoked and also provide particulars in support of those averments / allegations. If material facts or full particulars or the essential ingredients are not even alleged in the election petition, such election petition will not disclose any cause of action and therefore it fails.
(d) The trial of defective petition will serve no purpose at all. The averments in the election petition are vague, scandalous and frivolous. The applicant in his application, referred to each and every paragraphs in the election petition and also has given reasons as to why they should be struck off.
(e) The applicant seek most of the averments in the election petition to struck off and hence they are not reproduced herein.
7. Counter affidavit was filed on behalf of the Election Petitioner which contains the following facts:-
(a) The applicant has already invoked the jurisdiction of this Court under Order VII Rule 11 C.P.c. in A.No.6941 of 2009, which came to be dismissed on 4.8.2011. Therefore, the applicant cannot resort to file one application after another invoking the same provisions thereby attempting to retard the progress of the main petition.
(b) The applicant was served with the election petition on 19.10.2009 itself. Despite the same, he has not filed any counter in the main election petition. Even if full particulars of the corrupt practices are not set out in the election petition, it is not liable to be dismissed. However, the Election petitioner has given full particulars of the various corrupt practices resorted to by the applicant.
(c) Order VI Rule 16 C.P.C. could be invoked to strike out the pleadings only when the pleadings are unnecessary, scandalous, frivolous and vexatious. The pleadings sought to be struck out in the election petition do not fit in any of the above category. As per Order VI Rule 2 C.P.C., every pleading shall contain only a statement in concise form of the material facts but not the evidence and particulars are necessary only when misrepresentation, fraud, breach of trust, etc., are relied upon. The applicant has lost sight of the second limb of Section 83(1)(b) which states 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. The election petition disclose cause of action and that they do constitute the requisite grounds for declaring the election as void. No vague statement was made in the election petition warranting this Court to strike off the same. Each one of the allegations made in the application to strike off the pleadings, was disputed in the counter affidavit of the Election petitioner. The averments in the election petition cannot be dissected and bisected para wise as it has been done by the applicant. The averments in the election petition should be read as a whole to determine whether they satisfy the requirements of the legal provisions. A complete reading of the main election petition would show that wealth of material imputations have been incorporated from para 4 to 17. Thereafter, the imputations have been crystallized in conformity with the requirements to show as to why the election of the applicant has materially affected the Election Petitioner, as required under Section 100 (1) (d) (IV) of the Act.
Thus, the counter affidavit of the Election Petitioner seeks for the dismissal of the present application.
8. Counter affidavit was filed on behalf of the 19th respondent, wherein the following facts have been set out:-
(a) The 19th respondent was the independent candidate, who contested the Parliamentary General election held on 13.5.2009 in Sivaganga Parliamentary Constituency.
(b) Since the present application was not filed within the stipulated time, it is not maintainable due to time bar. The defects pointed out come under Section 83 of the Representation of the Peoples Act, 1951 and hence, this application is not maintainable under Section 86 of the said Act.
(c) The material facts will show the grounds of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. What could be said to be material facts would depend upon facts of each case and no rule of universal application can be laid down.
(d) The Court has to view whether the objections go to the root of the matter or they are only cosmetic in nature. If the Court has construed that the defects are of serious in nature, at least, notice should have been issued to the party to rectify the same instead of resorting to dismissal of the election petition.
(e) There is distinction between facta probanda (the facts required to be proved i.e., material facts) and facta probantia (the facts by means of which they are proved i.e., particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. Only relevant facts are required to be proved at the trial in order to establish the facts in issue.
(f) Even if the election petition was liable to be dismissed ultimately, it should be dismissed only after affording an opportunity to the election petitioner to adduce evidence in support of his allegations in the petition.
Thus, the counter affidavit of the 19th respondent seeks for the dismissal of the application.
9. Rejoinder was filed by the applicant to the counter affidavit filed by the Election Petitioner, which contains the following facts:-
(a) The application in A.No.6941 of 2009 was filed to dismiss the election petition for not complying with the provisions of the Representation of the People Act, 1951 and the present application is filed for striking out.
(b) An election petition can be filed only on one or more of the grounds specified in sub-section (1) of Sections 100 and 101. Further, Section 83 requires that the material facts and material particulars have to be stated in the election petition. In the absence of the same, the averments and pleadings in the election petition would not disclose any cause of action and would be liable to be struck off. If the election petition did not disclose any cause of action, it necessarily follows that the relief claimed cannot be granted.
10. Rejoinder has been filed on behalf of the applicant to the counter affidavit of the 19th respondent stating that the 19th respondent has no locus standi to file the counter affidavit as he did not challenge the election of the applicant by filing an election petition. What the 19th respondent failed to do directly, he cannot be allowed to do indirectly as a respondent in the election petition. The defects pointed out are not curable and therefore, the election petition is liable to be struck off as per the provisions of the Representation of the People Act.
11. The main grounds raised by the applicant to dismiss the Election Petition and to strike out certain portions in the Election Petition are:-
(a) None of the allegations constitute a ground for declaring the election to be void under Section 100(1)(b) or (d)(ii) or (iii) or (iv) of the Act.
(b) The Election Petition does not contain certain statements of material facts, full particulars of corrupt practice including the names of the parties alleged to have committed such corrupt practice, date and place of commission of each such practice.
(c) A close reading of the Election Petition will disclose that it does not disclose any cause of action. Not only that, it is also not in compliance with the mandatory provisions of the Act and also vague, frivolous and vexatious.
12. The applicant also sought for striking out several portions of the averments in the Election Petition. The affidavit discloses that the applicant wants major portion of the averments in the Election Petition to be struck out.
13. On the basis of the above pleadings, I have heard Mr.G.Masilamani, the learned Senior Counsel appearing for the applicant, Mr.T.V.Ramanujun, the learned Senior Counsel and Mr.P.N.Prakash, the learned counsel for the Election Petitioner and Mr.G.Murugendran, for the 19th Respondent.
14. The first and foremost question that requires to be answered is whether an application under Order VI Rule 16 and Order VII Rule 11 CPC to strike out the pleadings in the Election Petition and to reject the Election Petition are maintainable in the Election Petition.
14.1. A well answer could be YES.
14.2. Section 81 of the Act contemplates that an election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section(1)] of Section 100 and Section 101.
Section 82 of the Act contemplates who shall be the parties to the Election Petition.
Section 83 of the Act contemplates contents of the Election Petition.
Section 86 of the Act envisages 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.
Section 87 of the Act contemplates the procedure to be followed while dealing with the Election Petition. Section 87 is usefully extracted here under:
87. Procedure before the High Court.- (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of the Act, be deemed to apply in all respects to the trial of an election petition. 14.3. The said provision envisages that every Election Petition shall be tried by the High Court, in accordance with the procedure applicable under the Code of Civil Procedure, 1908. This means that the procedure contemplated under the Civil Rules of Practice including an application under Order VI Rule 16 and Order VII Rule 11 CPC would be applicable to the Election Petition also. The said view was taken by the Hon'ble Apex Court in the judgment reported in AIR 1987 SUPREME COURT 1577, Dhartipakar Madan Lak Agarwal vs. Shri.Rajiv Gandhi. Paragraph Nos.8, 10 and 11 of the said judgment are usefully extracted here under:
8. The first question which falls for our determination is whether the High Court had jurisdiction to strike out pleadings under Order VI Rule 16 of the Code of Civil Procedure and to reject the election petition under Order VII Rule 11 of the Code at the preliminary stage even though no written statement had been filed by the respondent. Section 80 provides that no election is to be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act before the High Court. Section 81 provides that an election petition may be presented on one or more of the grounds specified in Section 100 by an elector or by a candidate questioning the election of a returned candidate. Section 83 provides that an election petition shall contain a concise statement of material facts on which the petitioner relies and he shall set forth full particulars of any corrupt practice that he may allege including full statement 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. Section 86 confers power on the High Court to dismiss an election petition which does not comply with the provisions of Sections 81 and 82 or Section 117. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, Order VI Rule 16 and Order VI Rule 17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. On a combined reading of Sections 81, 83, 86 and 87 of the Act, it is apparent that those paragraphs of a petition which do not disclose any cause of action are liable to be struck off under Order VI Rule 16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI Rule 16 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VI Rule 11.
10. In Udhav Singh v. Madhav Rao Scindia, [1976] 2 SCR 246 : AIR 1976 SC 744 this Court held that failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order VI Rule 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In Charan Lal Sahu & Ors., v. Giani Zail Singh & Anr., [1984] 2 SCR 6 : AIR 1984 SC 309, an election petition challenging the election of Giani Zail Singh, President was rejected summarily at the initial stage by a Constitution Bench of this Court on the ground that the pleadings contained in the election petition even assuming to be true and correct did not disclose any cause of action for setting aside the election of the returned candidate. The precise question as raised by the appellant was considered at length by this Court in Azhar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253) and this Court held that the High Court while dealing with the election petition has power to strike out pleadings under Order VI Rule 16 and to reject the election petition under Order VII Rule 11 if the petition does not disclose essential facts to clothe it with complete cause of action. Failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) and election petition could therefore be and must be dismissed if it suffers from any such vice. The Court repelled the submission that the power to reject an election petition summarily under the Code of Civil Procedure should not be exercised at the threshold.........
11. In Bhagwati Prasad Dixit 'Ghorawala' v. Rajiv Gandhi (AIR 1986 SC 1534), this Court again reiterated that in an election petition pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it should be rejected in limine. These authorities have settled the legal position that an election petition is liable to be dismissed in limine at the initial stage if it does not disclose any cause of action. Cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the Act. If the allegations contained in the petition do not set out grounds of challenge as contemplated by Section 100 of the Act and if the allegations do not conform to the requirement of Sections 81 and 83 of the Act, the pleadings are liable to be struck off and the election petition is liable to be rejected under Order VII Rule 11. A pleading if vague and general is embarrassing. If the allegations contained in the election petition even assuming to be true and correct do not make out any case of corrupt practice or any ground under Section 100 of the Act, the pleading would be unnecessary, frivolous and vexatious. It is always open to strike out the same. If after striking out defective pleadings the Court finds that no cause of action remains to be tried it would be duty bound to reject the petition under Order VII Rule 11 of the Code of Civil Procedure. If a preliminary objection is raised before the commencement of the trial, the court is duty bound to consider the same it need not postpone the consideration for subsequent stage of the trial. 14.4. Again, in the Judgment reported in 1986 (supp) Supreme Court Cases 315, Azhar Hussain vs. Rajiv Gandhi, the Hon'ble Apex Court has held that such application could be filed, even before the trial in the Election Petition could commence. It has been further held that the same could be dismissed if the allegations in the Election Petition warrants such dismissal. Paragraph No.12 of the said judgment is usefully extracted hereunder:
12. Learned counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocle need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The Courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the Court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties................. 14.5. In yet another decision reported in (2009) 10 Supreme Court Cases 541, Ram Sukh vs. Dinesh Aggarwal, the Hon'ble Apex Court in Paragraph Nos.17 and 18 has held as follows:
17. Now, before examining the rival submissions in the light of the aforestated legal position, it would be expedient to deal with another submission of learned counsel for the appellant that the High Court should not have exercised its power either under Order VI Rule 16 or Order VII Rule 11 of the Code to reject the election petition at the threshold. The argument is two-fold viz.
(i)that even if the election petition was liable to be dismissed ultimately, it should have been dismissed only after affording an opportunity to the election petitioner to adduce evidence in support of his allegation in the petition and
(ii)since Section 83 does not find a place in Section 86 of the Act, rejection of petition at the threshold would amount to reading into sub- section (1) of Section 86 an additional ground.
In our opinion, both the contentions are misconceived and untenable.
18. Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order VI Rule 16 and Order VII Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the Electorate have reposed confidence in him. The submission, therefore, must fail.... 14.6. Thus, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of the Election Petition including the application under Order VI Rule 16 and Order VII Rule 11 CPC. Therefore, I am of the considered view that in view of Section 87 of the Act, coupled with the decisions referred to above, this Court can safely conclude that the applications filed by the returned candidate is perfectly maintainable.
15. The next contention raised on behalf of the applicant was that the Election Petitioner does not satisfy the requirements of Section 83 of the Representation of Peoples Act, 1951.
15.1. Before, adverting to the said contention, it would be useful to extract the said provision which is usefully extracted here 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."
15.2. The said provision contemplates that the Election Petition shall contain certain statement of material facts on which the Election Petitioner relies, by giving full particulars of corrupt practice, including the full statement as far as possible about the names of the parties alleged to have committed such corrupt practice, the date and place of commission of each such practice.
15.3. In the case on hand, the Election Petitioner, as referred earlier, referred about the various corrupt practice caused by the applicant, the name of the persons who have indulged in such corrupt practice, the vehicles in which the named persons came and distributed the money and the date and place when and where it was distributed. Further more, the above referred provision clearly spells out that the Election Petition shall contain full particulars of any corrupt practice including a full statement, as far as possible the names of parties alleged to have committed such corrupt practice and the date and place of such practice. A reading of the entire election petition would disclose that not only the election petitioner has raised several grounds but also had set out in detail about the incidents. It requires a detailed trial. At this juncture, it cannot be said that it does not disclose cause of action or material facts and full particulars of corrupt practice was not alleged. The pleadings made in the Election Petition has to be substantiated by letting in evidence along with the substantial documentary evidence. At this stage, to say that the pleadings do not disclose any material facts, material evidence or that it lacks material facts or evidence cannot be accepted. If there is total failure to mention about the corrupt practice without mentioning the date, place and the persons who have indulged in the said corrupt practice, one can understand that the Election Petition does not disclose anything to substantiate the corrupt practice adopted by the applicant.
15.4. As stated already, a reading of the Election Petition as a whole, in my considered view, does not substantiate the grounds raised by the applicant to reject the Election Petition. Even assuming for arguments sake that it has got defects here and there, a whole reading of the Election Petition do not warrant rejection of the same at the threshold. Hence, this ground raised on behalf of the Applicant deserves to be rejected.
16. The next ground raised on behalf of the applicant is that none of the allegation constitute a ground for declaring the election to be void under Section 100(1)(b) or (d)(ii) or (iii) or (iv) of the Act.
16.1. Before adverting to the said contention, it would be useful to extract the said provisions which is extracted here under:
100. Grounds for declaring election to be void.-
[(1) Subject to the provisions of sub-section (2), if [the High Court] is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [or the Government of Union Territories Act, 1963]; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than this election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void] (2) ..... 16.2. As regards Section 100(1)(b) is concerned, the corrupt practice should have been committed by the returned candidate or his election agent or by any person with the consent of the returned candidate or his election agent. In the case on hand, a lengthy argument was made on behalf of the applicant that the Election Petitioner has not raised any corrupt practice against the applicant or his election agent or any other person with the consent of the applicant or his election agent. However, I am unable to agree to the said contention raised on behalf of the applicant.
16.3. What is Corrupt practice has been set out under Section 123 of the Act. A broad outlook of the said provision discloses that corrupt practice means, Bribery, i.e., to say
(a) any gift, offer or promise by candidate or his agent or by any other person with the consent of the candidate or his election agent of any gratification, to any person to stand or not to stand or to withdraw or not to withdraw from being a candidate at an election;
(b) an elector to vote or refrain from voting at an election;
(c) Undue influence namely, direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right etc., 16.4. Though the said provision set out several corrupt practices, in the case on hand, two sorts of corrupt practices was set out in the election petition. They are
(a) The applicant during his tenure as Union Finance Minister has opened branches of various nationalized banks throughout the Sivaganga parliamentary constituency and the bank officials owed allegiance and loyalty to the applicant and at his instance, the Returning Officer enlisted some persons from the banking sector into the election duty.
(b) Money were distributed to the women Self Help Groups in the constituency and to other people.
16.5. The requirement in the said provision is that corrupt practice for the purpose of the Act means Bribery i.e., to say any gift, offer or promise by the candidate or his agent or by any other person with the consent of the candidate or his election agent. In the case on hand, it was alleged in the Election Petition that the applicant has taken part in the functions organized by the women self help group by name Annai Kasthuribai Thondu Niruvanam. In order to obtain their support, the agents of the applicant was collecting the bank account details of those women Self Help Group members in order of park illegal funds into their account for purchasing the votes of their members enblock. When a complaint was lodged by the election petitioner, they changed their mode and issued tokens to the ring leaders of the Self Help Groups and the money were distributed to the token holders by Karthik Chidambaram, son of the applicant.
16.6. In Paragraph No.6 of the Election Petition, it was stated as follows:
Therefore, in order to obtain support, the Agents of the First respondent was going about collecting the bank account details of these women Self-Help Groups in order to sumptuously Park illegal funds in their accounts for purchasing the votes of their members en-bloc. On coming to know of this plain, the Petitioner sent a complaint dated 23.04.2009 to the Chief Electoral Officer, Chennai 600009. Immediately thereafter, the First Respondent and his Agents changed their strategy, Instead of trying to park illegal funds in the Bank accounts of these Self Help Groups, they devised a clever method to issue tokens to the ring leaders of these Self-Help Groups and pay money at the rate of Rs.500/- per woman member on production of the token. The said Jayarani, wife of Selvam, who is actively involved in Annai Kasthuri Bai Thondu Niruvanam received Rs.20 lakhs on 3.5.2009 from Mr.Karthik Chidambaram, son of the First Respondent at Kandanur, for distribution to about 4,000 women members of the Self Help Groups at the rate of Rs.500/- per member. 16.7. In paragraph 7 of the Election Petition, it was stated as follows:
The Petitioner respectfully submits that on 23.04.2009 around 11 P.M one Mr.Malaysia Pandian, Mr.Thugavur Madhavan, Mr.Visvanoor Bose, Mr.Cho.Pa.Ravi and about 20 others came by vehicle bearing Nos.TN 59 AK 10 (Pajero), TN 76 B 6960 (Innova), TN 58 R 5556 (Scorpio), TN 65 H 1494 (TATA Sumo) to Pechiamman Temple at Ilayangudi Taluk, Vadakkusalaigramam Village in Sivaganga Parliamentary Constituency and distributed cash to the villagers for casting the votes in favour of the First Respondent. One Muthukannu, Seeni Mohammed, Azhagusubbu and Chozan CT.Palaniswamy, District Secretary of AIADMK were witnesses to the distribution of money by the aforesaid persons on the instructions of the First Respondent. 16.8. In paragraph No.9 of the Election Petition, it was stated that on 24.07.2009, around 10.00 A.M. one O.L.Chelliah, AIADMK party Union Secretary of Sakkottai of Sakkottai Union, Karaikudi Taluk, Sivaganga Parliamentary Constituency found around 40 women belonging to the Indian National Congress Party distributing a sum of Rupees Five Hundred each kept inside a fancy leather bag in Amaravathipudur village, for voting in favour of the applicant. Though the same was complained, no action was taken against the women who were distributing cash kept inside a fancy leather bag, on the instructions of the applicant.
16.9. Again, in Paragraph No.10, it is stated that on 02.05.2012 around 10.00 A.M, one Rajendran who runs a youth social welfare organisation in Kothari village near Pallathur in Karaikudi Taluk of Sivaganga parliamentary constituency convened a meeting of the party workers and distributed Rupees Five Hundred to each of the women voter on the instruction of the candidate. In Paragraph No.12 also, it is stated that Karthik Chidambaram, Son of the applicant was distributing cash to the voters for and on behalf of his father in Rajagambeeram Village, Manamadurai Taluk in Sivaganga Parliamentary Constituency on 12.05.2009 at around 7.30 P.M. Further, it is stated in Paragraph No.12 as follows:
Thus on the eve of the elections i.e., on the day when there should be no campaigning, the First respondent had dispatched his son Mr.Karthik Chidambaram and others with money for distribution to voters for the purpose of procuring votes for himself and when they were caught red-handed he came in person to the Manamadurai Police Station to rescue his son and partymen and in that process engineered a patently false case against AIADMK partymen who had come to the spot for preventing bribery of voters and one of whom suffered serious injuries on account of the brazen attack by the First Respondent's son. 16.10. The above averments made in the Election Petition have to be tested during trial, which requires evidence, both oral and documentary. At this stage, before even the counter could be filed, it cannot be said that the averments made in the Election Petition, on the face of it requires to be rejected. When the Election Petitioner has alleged that money were distributed by the election agent or by the son of the applicant, at the instance of his father, the same cannot be thrown out simply. Therefore, I am unable to agree with the contentions of the learned Senior Counsel appearing for the applicant that the Election Petitioner has not made out any prima facie case against the applicant with regard to the allegations of corrupt practice.
16.11. Thus, the allegations made in the Election Petition, which were extracted and discussed above, would make out that the contentions raised on behalf of the applicant that it does not constitute the ground for declaration of the election to be void under Section 100(1)(b) or (d)(ii) or (iii) or (iv) of the Act cannot be accepted at this stage.
17. The next allegation made in the Election Petition is that the Election Petitioner should have been declared elected and in fact he was elected by a margin of 7,034 votes but the Returning Officer has not issued a certificate to that effect and the applicant was illegally declared elected by a margin of 3,354 votes.
17.1. Paragraph Nos.17 to 21 of the Election Petition deals with the same which are extracted here under:-
17. The petitioner submits that the first respondent, who was the Union Home Minister, in connivance with the Returning Officer and other Election officials, has manipulated the votes counted in the 11th, 12th, 13th, 14th and 15th rounds in Alangudi Assembly segment ingeniously whereby they have added the votes secured by the petitioner in these rounds to the kitty of the first respondent and the vice-versa. Had this manipulation not been done, the petitioner would have been declared elected by a margin of 7.034 votes. That is why it took a very long time for the Returning Officer to declare the results and issue the Declaration Form at 8.30 P.M. A mere comparison of the figures of the 10 rounds given by the Election Officer in the said C.D. with the working sheets maintained by the counting agents of the petitioner would go to show that there is no disagreement between the two upto the first ten rounds. The votes allegedly secured by the first respondent in the last 5 rounds as given by the Election Commission is actually the votes secured by the petitioner. The Congress Party was all set to return to power which was evident by 12.00 P.M. on 16.5.2009. If the details of the phone calls made and received by the Returning Officer on his mobile phones are called for, the names of the persons who had brought influence upon him would come to light.
18. The petitioner respectfully submits that the Election officials in order to unduly favour the first respondent have at the behest of the first respondent not publicized the round-wise declaration of votes secured by each candidate in Alangudi Assembly segment and in other assembly segments in violation of the instructions in paras 18.22 at page 172 contained in Handbook for candidates and in violation of the Conduct of Election rules 1961 thereby facilitating transfer of votes not obtained by the first respondent in favour of the first respondent thereby making the first respondent to improperly receive votes so as to materially affect the election of the first respondent and thus, the election of the first respondent deserves to be declared void u/s. 100 (1)(d)(iii) and (iv) of the R.P.Act, 1951.
19. The Returning Officer is required to count the votes continuously in terms of Rule 60 of the Conduct of Election Rules, 1961 and announce the results so as to give no room for manipulation of results. In this case, though the counting was completed de-facto in all respects by 12.30 P.M. and the first respondent acknowledged defeat and left, the Returning Officer prolonged the counting process deliberately without any sufficient reason or cause and declared de-jure completion and declaration of result at 8.30 P.M. during which time the first respondent was made to improperly receive votes which he did not actually receive and thereby materially affected the result in favour of the first respondent by improper reception of votes and thus his election is liable to be declared void under Section 100(1)(d)(iii) and (iv) read with Rule 60 of the Conduct of Election Rules, 1961.
20. The Returning Officer, by not passing any order for recount on the application of the petitioner in terms of Rule 63 of the Conduct of Election Rules, 1961 has connived with the first respondent in illegally declaring him as being elected and therefore his election deserves to be declared void for non-compliance of the provisions of the R.P.Act and Conduct of Election Rules, 1961 under Section 100 (1) (d) (iv) of R.P.Act read with Rule 63 of the Conduct of Election Rules. That the result of the elections, in so far as it concerns the first respondent has been materially affected by the Returning Officer conniving with the first respondent in hurriedly declaring his results during the pendency of the prayer for recount by the petitioner, because if recount is ordered the petitioner would necessarily win and not the first respondent.
21. The petitioner submits that the Returning Officer in connivance with the first respondent, has transferred the votes polled by the petitioner in Alangudi Assembly segment illegally in favour of the first respondent, thereby the result of the election in so far as it concerns the first respondent has been materially affected by the improper reception of votes by him and thereby the election of the first respondent deserves to be declared void u/s 100 (1) (d) (iii) of the R.P.Act, 1951. 17.2. Thus, the allegation in the Election Petition are,
(a) The Assistant Returning Officer did not write on the notice board the round wise votes secured by each candidate.
(b) There was totally 14 tables and 14 full rounds and the last 15th round covered only upto Table No.10 since the total number of E.V.Ms were 206 in Alangudi segment.
(c) The entire counting process in respect of Alangudi segment was completed in all respect by 12.00 P.M. and the counting agents of all the candidates left the hall. By then at the end of counting of votes in Alangudi segment, since the Assistant Returning Officer did not write the round-wise votes for each candidate in the black board, he orally told the counting agents that the first respondent has secured 50,623 votes and the petitioner secured 52,121 votes. Thus, the petitioner secured 1,498 votes more than the first respondent in Alangudi segment.
(d) The oral tally given by the Assistant Returning Officer tallied with the working sheet entries made by the counting agents of the petitioner in Alangudi segment.
(e) Around 12.00 noon, the Returning Officer himself came to the Alangudi segment counting Hall and over the public address system directed the Counting Supervisors in each Table to obtain signature of the Counting Agents of all candidates in the requisite form in duplicate on the ground that one form will be retained in the local headquarters and the other form should be sent to the office of the Chief Election Commission in New Delhi. Until then, the Counting Supervisors had collected signatures of the Counting Agents in duly filled in forms immediately after a EVM is counted. After this announcement, in a hurry, the Election Supervisors collected the signature of the Counting Agents, in extra forms which was unfilled when the Counting Agents of the petitioner signed. The Election Supervisors said that they should not stop the counting process when it had almost reached its completion around 12.00 noon merely for the sake of meticulously filling the duplicate form by looking at the already filled and duly signed forms which indeed will be time consuming. The Counting Agents also heard the announcement made by the Returning Officer in the mike and believed about the genuineness of his request and therefore signed in blank forms as requested by the Election Supervisors.
17.3. The learned counsel appearing for the applicant relied on the following decisions to support the case of the applicant. They are,
(i) AIR 1966 SUPREME COURT 773, Dr.Jagjit Sing vs. Giani Kartar Singh and Others
(ii) AIR 1973 SUPREME COURT 215, Smt.Sumitra Devi vs. Shri.Sheo Shanke Prasad Yadav and Others
(iii) (1980) 2 SUPREME COURT CASES 537, R.Narayanan vs. S.Semmalai and Others
(iv) (1989) 1 SUPREME COURT CASES 526, P.K.K.Shamsudeen vs. K.A.M.Mappillai Mohindeen and Others
(v) 1993 Supp (2) SUPREME COURT CASES 82, Satyanarain Dudhani vs. Uday Kumar Singh and Others
(vi) (1999) 8 SUPREME COURT CASES 692, T.H.Musthafa vs. M.P.Varghese and Others
(vii) (2009) 10 SUPREME COURT CASES 170, Udey Chand vs. Surat Singh and Another
(viii) (2010) 1 SUPREME COURT CASES 466, Kattinokkula Murali Krishna vs. Veeramalla Koteswara Rao and Others 17.4. The above referred cases came before the Hon'ble Apex Court after the final verdict in the Election Petition either before the Election Tribunal or by the High Courts.
17.5. As far as the judgment reported in AIR 1966 SUPREME COURT 773, Dr.Jagjit Sing vs. Giani Kartar Singh and Others, on evidence it has been found by the Hon'ble Apex Court that the election petitioner has made vague allegations which was not supported by any documents. No doubt, mere allegation that the election petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order in his or her favour. But, also the election petitioner may not succeed in his election petition if the same is not supported by material facts and vague plea are raised therein.
17.6. Even in the said judgment, it has been held that the allegations made thereunder are vague and general and the whole object of the election petitioner in asking for an inspection was to make a fishing enquiry with a view to find out some material to support his case that the successful candidate thereon as received some invaluable votes and that the election petitioner has been denied some valuable votes. Therefore, the Hon'ble Apex Court in the said decision did not accept the vague plea raised by the election petitioner and rejected his case.
17.7. In the judgment reported in AIR 1973 SUPREME COURT 215, Smt.Sumitra Devi vs. Shri.Sheo Shanke Prasad Yadav and Others, the Hon'ble Apex Court has given a clear finding that they are satisfied that the High Court has taken into consideration all the material circumstances and had appreciated the evidence from the court perspective. It has been further held that the consistent practice of the Supreme Court was not to interfere with the finding on questions of fact unless there is some grave or palpable error in the application of the evidence on the basis of which the findings were arrived at. Further, it has been found therein that the allegations in the Election Petition were vague and the petition do not contain adequate statement of the material facts. The evidence adduced by the election petitioner to prove the allegations were found unreliable. It has also been found that no definite particulars were given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. Thus, the Hon'ble Apex Court has held that the recount will not be granted as a matter of right, but only on the basis of the evidence of good grounds for believing that there has been a mistake in counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection.
17.8. In the judgment reported in (1980) 2 SUPREME COURT CASES 537, R.Narayanan vs. S.Semmalai and Others, the Hon'ble Apex Court has held that recount cannot be ordered on mere possibility of error and that mere fact of small margin of victory not sufficient ground for the Court to order recount. It has been further found therein that the allegations made in the Election Petition were extremely vague and that no particulars were given either of the segments in which the voting was counted or number of tables which contained the errors by the counting officers, no complaint was made to the Counting Officers by the agents of the defeated candidate when the counting was being done and which according to the defeated candidate was defective or faulty.
17.9. In the judgment reported in (1989) 1 SUPREME COURT CASES 526, P.K.K.Shamsudeen vs. K.A.M.Mappillai Mohindeen and Others, the Hon'ble Apex Court has held that without material for justifying the recount, the election petitioner cannot seek for the recount.
17.10. In the judgment reported in 1993 Supp (2) SUPREME COURT CASES 82, Satyanarain Dudhani vs. Uday Kumar Singh and Others, it has been held by the Hon'ble Apex Court that recount should not be ordered as a matter of course in the absence of material facts and contemporaneous evidence.
17.11. In the judgment reported in (1999) 8 SUPREME COURT CASES 692, T.H.Musthafa vs. M.P.Varghese and Others, the Hon'ble Apex Court has held that unless pleading contains necessary foundation for raising an appropriate issue, no amount of evidence will be sufficient for raising the issue and granting the relief sought for.
17.12. In the judgment reported in (2009) 10 SUPREME COURT CASES 170, Udey Chand vs. Surat Singh and Another, the Hon'ble Apex Court has held that recount, on evidence cannot be mechanically granted on the basis of the bare allegations in the Election Petition. On the factual scenario, the Hon'ble Apex Court has held that there was no material on record to substantiate the plea of the election petitioner and hence, recount cannot be ordered.
17.13. In the judgment reported in (2010) 1 SUPREME COURT CASES 466, Kattinokkula Murali Krishna vs. Veeramalla Koteswara Rao and Others, it has been held that narrow margin of votes between the returned candidate and the election petitioner is alone not sufficient for recounting and that no material was placed before the Court to seek for recounting.
17.14. Thus, the above pronouncements made by the Hon'ble Apex Court reveals that,
(a) There should be valid allegations in the Election Petition supported by material facts to seek for a recount.
(b) On vague allegations, recount cannot be ordered.
(c) In a proper case where the necessity of justice demand it, the Returning Officer may be directed to produce the ballot papers and may permit inspection by the parties before it.
(d) For granting an order for inspection requires two conditions, namely,
(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the election petitioner relies in support of his case and
(ii) the Court is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.
(e) It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of the material facts pleaded in the petition and supported by the contemporaneous evidence, the recount can be ordered.
17.15. Thus, in all the judgments referred to above, it has been held that when the election petition does not contain material facts and the allegations are vague, recounting is not possible. However, as stated already, the grounds stated by the election petitioner makes me to come to a conclusion that those allegations requires evidence and the same cannot be thrown out at the threshold. Further more, the applicant as well as the returning officer has to set out their defence regarding the allegations made in the Election Petition by filing counter to the main Election Petition.
17.16. Thus, the allegations made in the Election Petition regarding this issue requires a detailed trial. It is possible, if the applicant and the Returning Officer against whom also the allegations have been made, which was extracted above, files counter to the main Election Petition. Further, I am of the considered view that the judgments referred to above by the learned Senior Counsel appearing for the applicant do not require any consideration at this stage, while deciding the application filed by the applicant to reject the plaint and to strike of certain pleadings. The same requires consideration, as stated already, after full-fledged trial depending upon the facts, both oral and documentary.
18. The next contention, that has to be considered, is whether the allegation made in paragraph 4 of the Election Petition deserves to be struck out for want of material facts and particulars.
18.1. In the said paragraph, it has been stated that the First Respondent [applicant] managed to secure this victory by corrupt practices and by bringing upon undue influence in his capacity as the Union Home Minister. The allegations in this respect are vague and not supported by material facts and particulars. No name, designation, place, time etc., in respect of those allegations have been stated.
18.2. Again in Paragraph No.5 of the Election Petition, it is stated that the Returning Officer made ready a well designed ground for ensuring the victory of the applicant by enlisting into election duty, the officials from the nationalized banks in the sivaganga district. The applicant during his tenure as union Finance Minister opened branches of various Nationalized Banks throughout Sivaganga Parliamentary Constituency. Therefore, those officials owed allegiance and loyalty to him and at the instance of the applicant, the returning officer enlisted some persons from the banking sector into election duty. The said allegation is also vague and not supported by any material facts and particulars. The name of the bank, the name of the officials, date, time and place where they were enlisted for election duty were not set out in the Election Petition.
18.3. In this connection, it would be useful to refer the judgment of the Hon'ble Apex Court reported in AIR 1987 SUPREME COURT 1577, Dhartipakar Madan Lak Agarwal vs. Shri.Rajiv Gandhi. Paragraph 28 of the said judgment is usefully extracted here under:
28. In paragraph 53(1) (E) of the election petition the appellant stated "that as per Section 123(7) of the Representation of the People Act, Rajiv Gandhi's workers with his consent took help from the Government officers and high police officers and people of Government departments for securing votes of the electors. These officials flouted all rules and laws particulars of which are as under." Thereafter particulars of the help taken from the Government officers are detailed in sub-paragraphs (1) to (8). A corrupt practice as contemplated by Section 123(7) contemplates obtaining or procuring by a candidate or his election agent, assistance from the Government servants belonging to the classes specified in sub-section (7) of Section 123 for the furtherance of the prospect of the candidate's election. In order to constitute a corrupt practice under Section 123(7), it is essential to clothe the petition with a cause of action which would call for an answer from the returned candidate and it should therefore plead mode of assistance, measure of assistance and all facts pertaining to the assistance. The pleading should further indicate the kind or form of assistance obtained and in what manner the assistance was obtained or procured or attempted to be procured by the candidate for promoting the prospect for his election. The election petitioner must state with exactness the time of assistance, the manner of assistance and the persons from whom assistance was obtained or procured by the candidate as held by this Court in Hardware Lal v. Kanwal Singh, [1972] 2 SCR 742 : (AIR 1972 SC 515). 18.4. In yet another decision reported in 1986 (supp) Supreme Court Cases 315, Azhar Hussain vs. Rajiv Gandhi, the Hon'ble Apex Court has held that whenever such plea was taken, the most important test to be considered is in what manner the assistance was obtained and procured by the elected candidate for promoting the prospects of his election. It has been further held that it must also be shown that the assistance of the Government Servant was obtained either by the respondent or by his agent or by any other person with the consent of the elected candidate or his agent. In the said matter, it was held that the averments made in the election petition thereon do not show
(a) the kind or form of assistance obtained or procured;
(b) how he had obtained or procured the assistance;
(c) how it was said that it was with the consent of the respondent or his election agent.
18.5. Further more, Section 123(7) of the Act reads as follows:
The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent, or by any other person [with the consent of a candidate or his election agent], any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, [from any person whether or not in the service of the Government] and belonging to any of the following clauses, namely:
Clauses (a) to (g) need not be set out here. 18.6. Again in the judgment reported in (1972) 1 Supreme Court Cases 214, Hardwari Lal vs. Kanwal Singh, the Hon'ble Apex Court has held that the type of assistance, manner of assistance, time of assistance and the person from whom the assistance is sought are all to be set out in the petition. Further, it has been held that it shall also be pleaded that the prospects of the election were furthered and the way in which the assistance was rendered. It would be useful to extract paragraph 17 of the said judgment which is usefully extracted here under:
17. The provisions of the aforesaid section indicate these heads of corrupt practices. First, the obtaining by a candidate or his agent or by any other person any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election from any person in the service of the Government as mentioned in the section. Second, the procuring by a candidate or his agent or by any other person with the consent of the election petitioner any assistance (other than the giving of vote) for the furtherance of the prospects of that candidates election. Third, the abetting by a candidate or his agent or by any other person with the consent of the candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidates election as mentioned. Fourth, the attempting to obtain or procure by a candidate or his agent, or by any other person with the consent of a candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election. Fifth, the assistance that is forbidden or prohibited by the statute is any assistance other than the giving of vote. It is clear that the four different heads of corrupt practices are (a) obtaining (b) procuring (c) abetting, and (d) attempting to obtain or procure assistance. 18.7. Thus, considering Section 123(7) of the Act coupled with the judgment referred to above, I am of the considered view that the entire allegations made in Paragraph Nos.4 and 5 of the Election Petition are liable to be struck off.
19.1. The next contention of the learned Senior Counsel appearing for the applicant is that the 19th respondent has no role to play and hence nothing shall be heard from him.
19.2. Before adverting to the said contention raised by the learned Senior Counsel appearing for the applicant, it would be useful to refer about Section 82 of the Act which is reproduced here under:
82. Parties of the petition.- A petitioner shall join as respondents to his petition-
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition. 19.3. The said provision amply makes it clear that the election petitioner shall join as respondents not only the elected candidate but also all the contesting candidates, if he has, not only sought for declaration that the election of the returned candidate is void, but also further claims the declaration that he or some other candidate are duly elected. Therefore, rightly the election petitioner has impleaded the 19th respondent who has also contested the election. That apart, the applicant has also impleaded the 19th respondent as one of the respondents in the application to reject the election petition and also in the application to strike of the pleadings. Having impleaded him as a party, it would be far fetching on the part of the applicant to contend that the 19th respondent has no role to play in the application filed by him to reject the election petition.
Hence, this contention of the applicant is also liable to be rejected.
20. The learned Senior Counsel appearing for the applicant Candidate relied on the decision reported in (1972) 1 Supreme Court Cases 214, Hardwari Lal vs. Kanwal Singh. That is the case where the election petitioner challenged the election of the successful candidate to the Haryana Legislative Assembly from Bahadurgarh Constituency. The main ground of attack made in paragraph 16 of the Election Petition therein is as follows:
That the respondent committed the corrupt practice of obtaining and procuring or attempting to obtain and procure the assistance for the furtherance of the prospects of his election from the following persons who are in the service of the Government and belonging to the prohibited classes within the meaning of section 123(7) of the Act;
1. Shri Chand Ram Rathi, Lecturer in Political Science, Government College, Gurgaon.
2. Shri Gulab Singh, B.A., B.Ed., Government High School, Jaharsa (Gurgaon).
3. Pt. Bhim Singh, Assistant Sub-Inspector, Police Security Lines, Lytton Road, New Delhi.
4. Ch. Chhattar Singh, M.A., B.T. Teacher V. & P.O. Bharai via Bahadurgarh, District Rohtak.
5. Ch. Mukhtiar Singh, Inspector of Police, Delhi.
6. Ch. Raghbir Singh, M.A., B.T., Bahadurgarh.
The respondent has written letters under his own signatures to the above Government servants soliciting their help and assistance in furtherance of the prospects of his election.
20.1. On trial, the High Court of Punjab and Haryana, concurred with the election petitioner and set aside the election. On appeal to the Hon'ble Apex Court, it was set aside holding as follows:
The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to which kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen 'of the charge of corrupt practice within the meaning of section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action. 20.2. First of all, that is the case where the entire evidence was taken on the issue raised by the election petitioner therein and relying on both oral and documentary evidence, the High Court as well as the Hon'ble Apex Court came to the said conclusion. Secondly, in the given case on hand the election petitioner not only pleaded that the services of the bank officials were utilized in favour of the elected candidate and also pleaded about the other corrupt practices, which require to be considered, after trial. Hence, the said judgment may not come to the rescue of the applicant.
21. Yet another decision relied on by the learned Senior counsel appearing for the applicant is reported in 1986 (supp) Supreme Court Cases 315, Azhar Hussain vs. Rajiv Gandhi. That is the case where the Election Petition was filed challenging the election of Late Rajiv Gandhi to the Lok Sabha from the Amethi Constituency of Uttar Pradesh. An elector from the said constituency filed the Election Petition. The returned candidate filed an application to reject the Election Petition under Order VII Rule 11 and Order VI Rule 16 CPC. It was allowed by the High Court of Allahabad and confirmed by the Hon'ble Apex Court. In that case, it was pleaded
(a) Shri.M.H.Beg, former Chief Justice, Supreme Court of India appearing in the media and praised late Shri.Rajiv Gandhi. He being the Government Servant holding the post of Chairman of the Minorities Commission, his services were procured and obtained by the respondent with a view to assist the furtherance of the prospects of the returned candidate.
(b) Objectionable slogans were put up against the candidate who contested against him.
(c) The Successful candidate did not give instruction to the authorities to remove the slogan.
(d) Obnoxious wall paintings and posters were advertised against the opposite candidate.
(e) A book called Son of India was written, printed and published making false allegations against the opposite candidate.
(f) A booklet in Hindi titled Rajiv Kyon (Why Rajiv) with the photograph of Late Shri.Rajiv Gandhi was distributed to the voters wherein sevral false statements were made against the opposite candidate Smt.Menaka Gandhi.
(g) During the course of campaign, the later successful candidate and his agent published a pamphlet containing statement against Smt.Menaka Gandhi saying that she is surrounded by anti-social elements.
21.1. The High Court of Allahabad, as stated already, dismissed the Election Petition on the application filed by the successful candidate made under Order VII Rule 11 and Order VI Rule 16 CPC. The Hon'ble Apex Court also confirmed the same. It has been held by the Hon'ble Apex Court that,
(a) the Election Petition could be summarily rejected before trial.
(b) Regarding the first ground referred to above, the Hon'ble Apex Court held that the particulars regarding who procured or obtained the services of Shri.M.H.Beg, former Chief Justice, Supreme Court of India, in what manner his services was procured and in what manner it went on show that it was procured with the consent of the elected candidate was lacking.
(c) As regards the second ground, it was held that the allegations were vague and the Election Petition do not disclose that the slogans were painted with the consent of the elected candidate. The names of the workers said to have been employed by the returned candidate and his agent who were alleged to have painted the slogans were not mentioned.
(d) Regarding the third ground, it has been held that no date, time and place of speeches delivered by the returned candidate was mentioned.
(e) As regards the fourth ground, it has been held that the fact remains that without the production of the poster, the cause of action would not be complete and it would be fatal to the election petition inasmuch as the material facts and particulars would be missing.
(f) As regards the fifth ground, it has been held that there is no submission to show that the publication was made with the knowledge or with the consent of the Returned candidate when the book was published in the year 1983. In fact, in the year 1983 there was no question of having acted in anticipation of the future elections of 1985 and in anticipation of the respondent contesting the same. Even so strangely enough even a bare or bald averment is not made as to:
(i) whom the returned candidate gave consent;
(ii) in what manner and how; and
(iii) when and in whose presence the consent was given, to distribute these books in the constituency.
(g) As far as the sixth ground is concerned, it has been held by the Hon'ble Apex Court that on a scrutiny of the averments made in the election petition it is evident that it is not pleaded as to who has distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed and in who presence they were distributed etc., Pleading is ominously silent on these aspects. 21.2. However, in the present case on hand, the corrupt practices was elaborated as set out earlier which requires detailed trial. Further in the judgment reported in (1999) 3 Supreme Court Cases 267, D.Ramachandran vs. R.V.Janakiraman and Others (presided over by the then Hon'ble Chief Justice, Supreme Court of India and two other Hon'ble Judges), it has been held that when the election petition disclosed as cause of action, the same could not be rejected in limine under Order VII Rule 11 CPC.
22. In yet another decision cited by the learned Senior Counsel appearing for the applicant is reported in AIR 1987 SUPREME COURT 1577, Dhartipakar Madan Lak Agarwal vs. Shri.Rajiv Gandhi. The election of late Shri.Rajiv Gandhi came to be challenged. It has been held on the averments made in the Election Petition that there is no allegation made against Rajiv Gandhi or his workers, with his consent made any gift, offer or promise to any elector to vote or refrain from voting at an election. If some developmental activity was carried on in the constituency and if it was completed during the election period, it do not amount to any gift or promise to the voters.
22.1. In the present case on hand, as pointed out earlier, distribution of money by whom, the date etc., was set out which requires detailed evidence which is possible only if the trial proceeds.
23. Yet another decision relied on by the learned Senior Counsel appearing for the applicant is reported in 1994 Supp (3) Supreme Court Cases 170, C.Narayanaswamy vs. C.K.Jaffer Sharief and Others. In that case, it was pleaded that under the guise of observing obsequies of the assassinated former Prime Minister, large scale free mass feedings of the electorate in the slum areas in the city and the poor localities in the villages were arranged. On evidence after trial, it has been held that the election petitioner though raised the plea that the successful candidate was present at the time of the mass feeding, he has not proved the same and that in the election petition, it has not been stated that the successful candidate or any person on his behalf requested the persons participated in the mass feeding to vote in favour of the successful candidate.
23.1. On facts, the said judgment will not be applicable to the case on hand. Secondly, that is the case where the decision was made after trial.
24. Yet another decision relied on by the learned Senior Counsel appearing for the applicant is made in Election Petition No.3 of 2004 by this Court dated 14.06.2005. The applicant/Returned candidate herein is the applicant therein. Of course, the challenge was pertaining to the earlier election held in the year 2004 . The main ground of attack in the Election Petition was that the returned candidate was a member of Congress Jananayaga Peravai on the date of filing of his nomination and not a member of the Indian National Congress. It has been held in the said matter that the election petitioner has not placed any material facts to show that the returned candidate was not a member of the Indian National Congress. Further, it has been held that the allegations in that regard are vague. Paragraphs 76 and 77 of the said judgment are usefully extracted here under:
76. To sum up, the election petitioner has not pleaded either material facts or violation of any specific provision of law to make out a cause of action and a triable issue for the ground of improper acceptance of the nomination of the returned candidate and further, no material facts to prove violation of any specific provision of the Constitution of India or the Representation of People Act or Rules or Orders made under it have been pleaded in support of the election petition and moreover, no material fact is pleaded in the election petition to make out a cause of action and triable issue that the result of the election in so far as it concerns the returned candidate was materially affected.
77. The election petitioner has not pleaded material facts or any specific provision of law in the election petition to show that the returned candidate was a member of Congress Jananayaga Peravai and was not a member of Indian National Congress on the date of filing of his nomination and no allegation of corrupt practice as set out in Section 123 of the Representation of People Act has been pleaded. The election petition, read as a whole, does not disclose any cause of action or triable issue and the same has to be rejected as sought for in the application. 24.1. But, in the case on hand, distribution of money has been alleged, which was extracted in the earlier paragraphs, which requires detailed consideration at the time of trial.
25. Yet another decision relied on by the learned Senior Counsel appearing for the applicant is reported in (2009) 10 Supreme Court Cases 541, Ram Sukh vs. Dinesh Aggarwal. In that case, the election of the returned candidate was challenged mainly on the following grounds.
(i) that the election petitioner having submitted two sets of the requisite Form-8 (Praroop-8) in respect of his election agent Manbir Singh Dagur before the Returning Officer, who having obtained the signatures of the election petitioner as also of the polling/election agent in pro forma (Anulagnak 22), deliberately did not send the signed Anulagnak 22 of the election petitioner to different polling stations, with the result that his polling agent was not permitted by the polling officer to act as such on the date of polls;
(ii) that the Returning Officer deliberately delayed the distribution of Anulagnak 22 at various polling stations and on account of inaction on his part, election petitioner's supporters got confused and either did not vote or voted in favour of the first respondent, an Indian National Congress candidate;
(iii) that the first respondent put pressure on the election petitioner to withdraw from the contest and on his refusal to do so, a rumour was spread by the first respondent that the election petitioner had withdrawn from the election fray and thus the first respondent used corrupt practice;
(iv) that the first respondent got a fabricated 'fatwa' from Deband circulated among the Muslim voters asking them to cast votes in his favour and thus the Muslim voters were unduly influenced by the issuance of the aforesaid religious fatwa - a corrupt practice;
(v) that the Polling Officers at various polling stations did not seal Electronic Voting Machines in presence of the election agent of the election petitioner and other candidates and further before the commencement of counting the Returning Officer did not get the seal of strong room certified from any of the polling agents; and
(vi) that the Electronic Voting Machines of various polling stations were either changed or were used after the polling time was over, showing misuse of the official machinery in support of the first respondent and, thus, putting a question mark on the fairness of the election.
25.1. It was held therein by the Hon'ble Apex Court in Paragraph Nos.23 and 24 as follows:
23. There is no quarrel with the proposition that the instructions contained in the Handbook for the Returning Officers are issued by the Election Commission in exercise of its statutory functions and are, therefore, binding on the Returning Officers. They are obliged to follow them in letter and spirit. But the question for consideration is whether the afore-extracted paragraphs of the election petition disclose material facts so as to constitute a complete cause of action. In other words, the question is whether the alleged omission on the part of the Returning Officer ipso facto materially affected the election result. It goes without saying that the averments in the said two paragraphs are to be read in conjunction with the preceding paragraphs in the election petition. What is stated in the preceding paragraphs, as can be noticed from grounds (i) and (ii) reproduced above, is that by the time specimen signature of the polling agent were circulated 80% of the polling was over and because of the absence of the polling agent the voters got confused and voted in favour of the first respondent. In our opinion, to say the least, the pleading is vague and does not spell out as to how the election results were materially affected because of these two factors. These facts fall short of being material facts as contemplated in Section 83(1)(a) of the Act to constitute a complete cause of action in relation to allegation under Section 100(1)(d)(iv) of the Act. It is not the case of the election petitioner that in the absence of his election agent there was some malpractice at the polling stations during the polling.
24. It needs little reiteration that for purpose of Section 100(1)(d)(iv), it was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first respondent, was materially affected due to the said omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition. 25.2. The said decision may not come to the rescue of the applicant as discussed elaborately in the earlier paragraphs.
26. The learned Senior Counsel appearing for the applicant relied on the further decision reported in AIR 1964 SUPREME COURT 1249 - Ram Sewak Yadav vs Hussain Kamil Kidwai & Ors and contended that the Election Petitioner or his agents who had the opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes cannot be allowed to say that the Returned Candidate was wrongfully declared as elected. That is the case where in the General Election held in February, 1962, one Ram Sweak Yadav was declared as elected and one of the contesting candidates viz., Hussain Kiamil Kidwai challenged his election. The principal grounds set by Kidwai in support of that petition were (1) that there had been improper reception, refusal and rejection of votes at the time of counting, and in consequence thereof the election was materially affected;
(2)that there were discrepancies between the total number of votes mentioned in Form 16 and Form 20;
(3) that the tendered votes were wrongly rejected by the returning officer and on that account the election was materially affected;
(4) that at the polling station No. 29, Majgawan in Bhitauli Unit and Kursi polling station in Kursi Assembly Unit, the polling officers did not give ballot papers to the voters;
(5) that the counting of votes of Bhitauli Assembly Unit continued till 8-30 p.m. in insufficient light notwithstanding the protest lodged by the petitioner; and (6) that on a true count he (Kidwai) would have received a majority of valid votes and that he was entitled to be declared duly elected. 26.1. After full fledged trial, the Election Tribunal, which was then prevailing to decide the election matters, dismissed the said election petition. On appeal, the High Court of Allahabad set aside the order. The matter went to the Hon'ble Apex Court. Considering the evidence available and also considering the facts and circumstances of that case, the Hon'ble Apex Court set aside the order of the High Court of Allahabad.
26.2. However, the decision made thereunder will not be applicable to the case on hand for the following reasons:-
Firstly, the said decision was arrived at after full fledged trial.
Secondly, the allegations made in the present Election Petition are entirely different. The allegations that were stated in the election petition which were extracted above would amply make out that it requires a full-fledged trial.
27. On the side of the Election Petitioner, the following decisions were cited.
(i) (1999) 3 SUPREME COURT CASES 267, D.Ramachandran vs. R.V.Janakiraman and Others.
(ii) (2007) 3 SUPREME COURT CASES 617, Virender Nath Gautam vs. Satpal Singh and Others.
(iii) (2003) 1 SUPREME COURT CASES 289, Ram Prasad Sarma vs. Mani Kumar Subba and Others.
(iv) (2004) 11 SUPREME COURT CASES 196, Sardar Harcharan Singh Brar vs. Sukh Darshan Singh and Others.
(v) (2004) 7 SUPREME COURT CASES 181, Mahadeorao Sukaji Shivankar vs. Ramaratan Bapu and Others.
(vi) (2006) 13 SUPREME COURT CASES 353, Sathi Vijay Kumar vs. Tota Singh and Others.
(vii) (1994) 2 SUPREME COURT CASES 392, Mohan Rawale vs. Damodar Tatyaba alias Dadasaheb and Others.
(viii) (2010) 7 SUPREME COURT CASES 428, K.K.Ramachandran Master vs. M.V.Sreyamakumar and Others.
(ix) (2011) 7 SUPREME COURT CASES 721, Nandiesha Reddy vs. Kavita Mahesh.
(x) (2000) 1 SUPREME COURT CASES 261, Mahendra Pal vs. Ram Dass Malanger and Others.
(xi) (2005) 13 SUPREME COURT CASES 511, Harkirat Singh vs. Amrinder Singh.
27.1. In the first decision reported in (1999) 3 SUPREME COURT CASES 267, D.Ramachandran vs. R.V.Janakiraman and Others, the Hon'ble Apex Court has found that the Election Petition discloses cause of action and hence could not be rejected under Order VII Rule 11 CPC in limine without trial.
27.2. In the decision reported in (2007) 3 SUPREME COURT CASES 617, Virender Nath Gautam vs. Satpal Singh and Others, the Hon'ble Apex Court has held that when the case of the election petitioner was based on improper and illegal reception or acceptance of votes case in violation of Sections 61 and 62 of RP Act, 1951 and material facts in regard thereof has been set out in the election petition, the High Court ought not to have dismissed the petition at the threshold on the ground that material particulars have not been set out. Paragraph Nos.50 to 54 of the judgment made thereunder are usefully extracted here under:
50. There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.
51. In our considered opinion, material facts which are required to be pleaded in the Election Petition as required by Section 83 (1) of the Act read with Order VII, Rule 11(a) of the Code have been pleaded by the election- petitioner, cause of action has been disclosed in the Election Petition and, hence, the petition could not have been dismissed by the High Court. The impugned order of the High Court suffers from infirmity and cannot be sustained.
52. The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support of averments by entering into the 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 and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside.
53. On an additional ground also, the order of the High Court is liable to be set aside. All allegations in Para 8 of the Election Petition, as also sub-paras (i) to (iv) of para 8 relate to improper and illegal reception and acceptance of votes and the election-petitioner has challenged the election of the returned candidate on that ground and not on the ground of 'corrupt practice'. He was, therefore, required to state material facts in the Election Petition under Section 83(1)(a) of the Act. It was, however, not necessary to 'set forth full particulars', which is the requirement of Section 83(1)(b) of 'any corrupt practice'.
54. The High Court dismissed the petition inter alia on the ground that paras 8(i) to (iv) lacked in material particulars. Apart from the fact that the law does not require material particulars even in respect of allegations of corrupt practice but only full particulars and if they are lacking, the petition can be permitted to be amended or amplified under Section 86 of the act, in the instant case, Clause (b) of Section 83(1) had no application and the petition has been dismissed by the High Court by applying wrong test. On that ground also, the order passed by the High Court is unsustainable [Vide Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511]. 27.3. As regards the next decision reported in (2003) 1 SUPREME COURT CASES 289, Ram Prasad Sarma vs. Mani Kumar Subba and Others, the Hon'ble Apex Court has held that the election petition is not to be thrown at the threshold on the slightest pretext of one kind or the other, which may or may not have any material bearing on the factors to be strictly adhered to in such matters. It is the substance and not the form which would matter.
27.4. In the decision reported in (2004) 11 SUPREME COURT CASES 196, Sardar Harcharan Singh Brar vs. Sukh Darshan Singh and Others, it has been held that if the Court feels that the particulars as given by the petitioner is deficient in any manner the election petitioner could be directed to supply the particulars and make the deficiency good. In any case, deficiency in particulars could not have been a ground for dismissing the petition at the threshold.
27.5. Yet another decision relied on by the learned Senior Counsel appearing for the Election-petitioner is reported in (2004) 7 SUPREME COURT CASES 181, Mahadeorao Sukaji Shivankar vs. Ramaratan Bapu and Others. Paragraphs 6 and 7 of the judgment, on which much reliance was placed is usefully extracted here under:
6. Now, it is no doubt true that all material facts have to be set out in an election petition. If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by Clause (a) of Rule 11 of Order VII of the Code. The question, however, is as to whether the petitioner had set out material facts in the election petition. The expression "material facts" has neither been defined in the Act nor in the Code. It may be stated that the material facts are those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the plaintiff's cause of action or defendant's defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish existence of cause of action or defence are material facts and must be stated in the pleading of the party.
7. But, it is equally well settled that there is distinction between "material facts" and "particulars". Material facts are primary or basic facts which must be pleaded by the party 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 finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars ensure conduct of fair trial and would not take the opposite party by surprise. 27.6. In the decision reported in (2006) 13 SUPREME COURT CASES 353, Sathi Vijay Kumar vs. Tota Singh and Others, it has been held that the power to strike out pleadings should be exercised sparingly and with extreme caution and circumspection. Paragraph 33 of the said judgment is usefully extracted hereunder:
33. At the same time, however, it cannot be overlooked that normally a court cannot direct parties as to how they should prepare their pleadings. If the parties have not offended the rules of pleadings by making averments or raising arguable issues, the court would not order striking out pleadings. The power to strike out pleadings is extraordinary in nature and must be exercised by the court sparingly and with extreme care, caution and circumspection (vide Roop Lal Sathi v. Nachhattar Singh Gill; K.K.Nodi v. K.N.Modi; United Bank of India v. Naresh Kumar) 27.7. The next judgment cited by the learned Senior Counsel appearing for the Election-petitioner is reported in (1994) 2 SUPREME COURT CASES 392, Mohan Rawale vs. Damodar Tatyaba alias Dadasaheb and Others. Paragraph 10 of the said judgment is usefully extracted here under:
10. We may take up the last facet first. As Chitty, J. observed, There is some difficulty in affixing a precise meaning to the expression discloses no reasonable cause of action or defence. He said: In point of law... every cause of action is a reasonable one. (See Republic of Peru v. Peruvian Guano Co.) A reasonable cause of action is said to mean a cause of action with some chances of success when only the allegations in the pleading are considered. But so long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are quite often more known than clearly understood. It does introduce another special demurrer in a new shape. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. The distinctions among the ideas of the grounds in Section 81(1); of material facts in Section 83(1)(a) and of full particulars in Section 83(1)(b) are obvious. The provisions of Section 83(1)(a) and (b) are in the familiar pattern of Order VI, Rules 2 and 4 and Order VII, Rule 1(e) Code of Civil Procedure. There is a distinction amongst the 'grounds' in Section 81(1); the 'material facts' in Section 83(1)(a) and full particulars in Section 83(1)(b). 27.8. In the decision reported in (2010) 7 SUPREME COURT CASES 428, K.K.Ramachandran Master vs. M.V.Sreyamakumar and Others, it has been held by the Hon'ble Apex Court that the Election Petition cannot be dismissed on the ground of deficiency or non-disclosure of particulars of corrupt practice without giving an opportunity to provide particulars and thereby to cure the defect. So long as the material facts are stated, absence of particulars, if any, cannot justify dismissal of the Election Petition.
27.9. In the decision reported in (2011) 7 SUPREME COURT CASES 721, Nandiesha Reddy vs. Kavita Mahesh, it has been held that material facts must be pleaded by the party on which the relief is founded. What are the material facts must always depend upon the facts of each case and no rule of universal application is possible to be laid down in this regard.
27.10. The next decision cited by the learned Senior Counsel appearing for the election-petitioner is reported in (2000) 1 SUPREME COURT CASES 261, Mahendra Pal vs. Ram Dass Malanger and Others, wherein it has been held that if the election-petition contains an adequate statement of material facts on which the allegations of irregularities or illegalities in counting were found, the same shall deserve to be tried on merits. Whether or not the case is eventually made out to justify recount / inspection would depend upon the evidence led by the parties in support of the pleadings, during the trial.
27.11. In the decision reported in (2005) 13 SUPREME COURT CASES 511, Harkirat Singh vs. Amrinder Singh, it has been held that the High Court erred in entering into the correctness or otherwise of the averments at the stage of deciding maintainability on the ground that material facts had not been stated in the Election Petition.
28. The learned counsel appearing for 19th respondent has relied on the following decisions:-
(i). In AIR 2002 PUNJAB & HARYANA 215 Vijay Somani v. Capt. Ajay Singh, which was relied on by the learned counsel appearing for the 19th respondent, it has been held that as regards the allegation of corrupt practice, if there is no deficiency in material facts in pleadings, but, however, deficiencies are found in narration of materials particulars, the election petition cannot be dismissed at the threshold on account of deficiency in materials particulars and the petitioner should be afforded an opportunity to make up deficiency. After relying on various judgments of the Hon'ble Apex Court, the said decision was taken by the High Court of Punjab and Haryana.
(ii). In yet another decision reported in (2004) 11 Supreme Court Cases 196 Sardar Harcharan Singh Brar v. Sukh Darshan Singh and others, which was relied on by the learned counsel appearing for the 19th respondent, the Hon'ble Apex Court has held that if an opinion is formed about the deficiencies in the particulars given in the election petition, the dismissal of the election petition at the threshold is improper and the election petitioner should have been directed to supply the particulars and make good the deficiencies. Only in case of non-compliance therewith, the Court could strike off the pleadings or refuse to try the related instances of the alleged corrupt practice.
(iii). In yet another decision cited by the learned counsel appearing for the 19th respondent is reported in (2000) 1 Supreme Court Cases 261 Mahendra Pal v. Ram Dass Malanger and others. In the said decision, the Hon'ble Apex Court has held that dismissal of the election petition for want of material particulars was unwarranted since the material facts were pleaded, material particulars could always be furnished.
(iv). In yet another decision reported in AIR 2006 SUPREME COWURT 713 Harkirat Singh v. Amarinder Singh, which was cited by the learned counsel appearing for the 19th respondent, the Hon'ble Apex Court has held that the High Court by entering into the correctness or otherwise of facts stated and allegation made in the election petition rejected the petition holding that it did not state material facts and thus did not disclose a cause of action. The High Court thereby stepped into prohibited area of appreciating 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. The dismissal of 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 was, therefore, wrong. Paragraphs 47, 50 and 51 of the said judgment are usefully extracted hereunder:-
47. The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', pivotal', indispensable', 'elementary', or 'primary'. (Burton's Legal Thesaurus (Third Edn): p.349). The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts', are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
50. 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.
51. 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.
29. Thus, the decisions referred to above makes it clear that striking of pleadings should be exercised sparingly and with extreme caution and circumspection. Unless otherwise material facts have not been stated in the Election Petition, the same cannot be struck off at the threshold. It has also been held in those decisions that if totally there is no cause of action, the Election Petition could be dismissed. However, if some cause of action is disclosed, the pleadings cannot be struck out merely because the case is weak and not likely to succeed. As long as the Election Petition discloses some cause of action and raises some question fit to be decided by the Court, the same cannot be struck out.
30. The phrase material facts as used in Section 83(1)(a) of the Act or in Order VI Rule 2 of the Code of Civil Procedure has not been defined in the Act or the Code of Civil Procedure respectively. It is no doubt settled legal position that all material facts must be pleaded by the party on which the relief is founded. The object seems to be that the contesting party shall know the case which he has to meet. An election petition can summarily be dismissed, if it does not furnish the material facts to give rise to a cause of action. Material facts always depend upon the facts of each case and no rule of universal application is possible to be laid down in this regard. A perusal of the various paragraphs in the Election Petition shows that sufficient material facts, to provide cause of action, for trial of the Election Petition have been made in the Election Petition. The particulars of corrupt practices and irregularities have been spelled out. Hence, I am of the considered view that the Election Petition did contain an adequate statement of material facts on which the allegations of irregularities or illegalities in counting are found. Therefore, the Election Petition deserves to be tried on merits without throwing it out at threshold.
31. The next issue to be considered is whether Order VI Rule 16 CPC, which provision the applicant needs to come to his rescue will if at all come to his aid. Before adverting to the said issue, it would be useful to extract Order VI Rule 16 CPC:
16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of process of the Court. The said provision envisages that the Court may at any stage of the proceedings amend or struck out the pleadings if it is unnecessary, scandalous, frivolous, vexatious, embrass or delay the fair trial or otherwise an abuse of process of the Court. Further, the said provision does not contemplate if there is any deficiencies or some lack of particulars in the pleadings, it could be struck of.
31.1. However, when an election is challenged on the ground of corrupt practice, all the facts which are essential to cloth the petitioner with the complete cause of action must be pleaded. In deciding the said question, it has to be seen whether the allegations made in the Election Petition makes the other side understand the allegations made against him and be in the position to answer those allegations.
31.2. On careful perusal of the pleadings, I have noticed that it relates to corrupt practice and distribution of cash and irregularities committed in counting. The pleadings, in my considered view are not found to be unnecessary, scandalous, frivolous or vexatious. It could not be said that no triable issue has been made out. Therefore, in my considered view, the application for striking out the pleadings under Order VI Rule 16, which has been discussed above, at length, could not be allowed.
32. The next issue to be considered is whether the provision under Order VII Rule 11 CPC which the applicant makes use of to reject the Election Petition, can be entertained. Before adverting to the said provision, it would be useful to extract the said provision, which is extracted here under:
Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where the plaint was not filed in duplicate;
(f)where the plaintiff fails to comply with the provisions of Rule 9. 32.1. Thus, a plaint could be rejected only on the following three major grounds, namely,
(a) if it does not disclose any cause of action,
(b) if proper Court fee has not been paid and even after the Court directs payment of the same, the required Court fee has not been paid,
(c) if it is barred by any law.
32.2. In the case on hand, it is not the case of the applicant that proper Court fee has not been paid in the Election Petition and that the Election Petition is barred by any law. The only contention that has been raised in this regard is that the Election Petition does not disclose any cause of action. In my considered view, the cause of action is nothing but the bundle of facts. A reading of the entire Election Petition discloses that the allegations made by the Election Petitioner against the applicant do disclose cause of action. Normally, a plaint can be rejected only if there is absolutely no cause of action and the same cannot be rejected if there is a lack of cause of action.
32.3. In the judgment reported in 2003 (1) Supreme Court Cases 557, Saleem Bhai vs. State of Maharashtra, the Hon'ble Apex Court has held that for the purpose of deciding the application filed under Order VII Rule 11 CPC, the averments in the plaint alone are germane and the plea taken by the defendant in the written statement would be wholly irrelevant at that stage.
33. An application under Order VII Rule 11 CPC for rejecting the plaint (here the Election Petitioner) who knocks the door of Court of Justice, which is a drastic relief sought against the Election Petitioner. The same has to be exercised cautiously and with utmost care. An Election Petition could be dismissed by applying the said provision only, if there is total lack of facts with lack of materials and particulars.
34. In the foregoing paragraphs, I have at length discussed that the Election Petition did disclose cause of action. Hence, I am of the considered view that the claim made by the Applicant that the Election Petition shall be dismissed under Order VII Rule 11 CPC, as it did not disclose any cause of action is liable to be rejected. Further more, the applicant who has filed the application under Order VII Rule 11 CPC earlier, may be on certain other grounds, should have also canvassed the points which have been raised now in the present application. A partial plea in one application under the same provision, leaving the other pleas in the subsequent application under the same provision should have been avoided by the applicant, atleast to avoid the criticism that he is trying to drag on the matter till the next election.
35. Thus, summing up the entire discussion and the conclusions arrived at earlier, the following irresistible conclusions are made.
(a) The application filed by the applicant under Order VI Rule 16 and Order VII Rule 11 CPC is maintainable in the election petition filed by the election petitioner.
(b) It is not correct to state that the Election Petition does not satisfy the requirements under Section 83 of the RP Act, 1951.
(c) It is not correct to state that none of the allegations raised by the election petitioner constituted a ground for declaring the election to be void under Section 100(1), (b), (d) (ii), (iii), (iv) of the Act.
(d) The allegation that the Returning Officer, in view of the position of the applicant as Union Minister enlisted into election duty, the officials of the nationalized banks in the Sivaganga District is without any substance and without any material facts. The name of the bank, the name of the officials, the place where they had been enlisted for election duty, date and time are not set out in the Election Petition. Hence, the allegations in this regard in Paragraph Nos. 4 and 5 of the Election Petition are liable to be struck off accordingly struck off.
(e) The contention that has been raised on behalf of the applicant that the Election Petition does not disclose any cause of action cannot be accepted and the same is liable to be rejected.
(f) The contention of the applicant that the Election Petition does not disclose material facts or material particulars as far as the corrupt practice and distribution of cash cannot be accepted at this stage. It requires a detailed trial.
(g) A perusal of the various averments made in the Election Petition shows that sufficient material facts were made and it disclose cause of action for trial of the Election Petition. It also contains adequate statement of material facts on which the allegations of irregularities or illegalities in counting were found.
(h) The contention raised on the side of the applicant that the 19th respondent has no role to play in the Election Petition filed by the applicant is liable to be rejected, since he is not only a proper party but also a necessary party in the election petition.
36. In fine, the application filed by the applicant is disposed of to the extent indicated above, namely,
(a) that the allegations made in Paragraph Nos.4 and 5 alone are liable to be struck out. However, the other averments made in the Election Petition regarding the corrupt practice pertaining to the dispatch of money etc., and also the allegations of irregularities or illegalities committed on the date of counting as alleged in the Election Petition which the applicant wants it to be struck off do not require to be struck off at this stage.
(b) As regards the prayer made under Order VII Rule 11 CPC, it cannot be accepted and the contentions raised in that regard are liable to be rejected and accordingly rejected.
Post this matter on 29.06.2012 for filing counter by the first respondent and other respondents in the Election Petition.
SBI PGP NB