Madras High Court
P.R.Raman vs Unknown on 21 September, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21/09/2012 CORAM THE HON'BLE MR.JUSTICE K.VENKATARAMAN O.A.No.878 of 2011 in E.L.P.No.1 of 2011 STALIN M.K VS. SAIDAI SA.DURAISAMY FOR PETITIONER : P.R.RAMAN ORDER
K.VENKATARAMAN, J The present application has been filed seeking to strike out the pleadings in the election petition as envisaged under Order VI Rule 16 C.P.C.
2. For the sake of convenience, the applicant herein is referred as Returned Candidate, the first respondent is referred as election petitioner and the other respondents are referred in their respective position.
3. The election petitioner filed the election petition to declare the election of the Returned Candidate as null and void. Several grounds have been raised in the election petition. In the present application, the Returned Candidate seeks to eschew the pleadings in paragraphs 2, 5, 6, 9, 10, 11, 12, 13, 62 and 63 of the election petition and also paragraphs 33 and 34 of the election petition together with video footage recorded on 24.3.2011, 6.4.2011 and 7.4.2011 concerning police inaction against alleged illegal acts of distributrion of money to the voters, without any material particulars.
4. The reasons set out in the application are:-
(a) Irrelevant materials have been stated for the sole purpose of carrying out velification campaign to embarrass the Returned Candidate and tarnish the image of the party.
(b) The averments contained in the election petition, more particularly, the paragraphs referred to above are irrelevant and without cause of action.
(c) The statements made in the above referred to paragraphs are completely unnecessary and also scurrilous, which should not be permitted to form part of the pleadings. The allegations made thereunder have been included only to cause embarrassment and humiliate the Returning Candidate and his family.
(d) The allegations made in paragraphs 10, 11, 12 and 13 are only aimed at for character assassination and velification of the DMK party.
(e) The reference made about the compact discs in paragraphs 33 and 34 are vague and the particulars as to who has taken the videos and other particulars have not been given.
(f) There is no pleading in the election petition that the election petitioner was personally present when the video was being shot nor it has been alleged that he has personally verified the footage to be a true depiction of the events which captured from the persons who have shot the videos.
5. Counter affidavit was filed on behalf of the first respondent / election petitioner, wherein the following facts have been set out:-
(a) The present application has been filed only to drag on the proceedings in a frivolous manner when the time limit prescribed to dispose of the election petition is six months under the provisions of the Representation of People Act, 1951. When the Returned Candidate has not filed any written statement in the main election petition till date, it is not open to him to dissect the pleadings according to his convenience and seeks the relief to strike off the same.
(b) A perusal of the election petition averments would show that all the necessary material facts and material particulars have been disclosed along with documentary evidence, which would show that the election petition filed is in accordance with the provisions of the Representation of People Act, 1951.
(c) If the election petition averments are seen in entirety, it can be seen that the averments made in these paragraphs do not offend the rule of pleadings or cannot be said to be forbidden under any law.
(d) The election petitioner produced the video footages obtained from the Election Commissioner of India in the same format in order to prove the inaction on the part of the police officials and the act of distribution of money to the voters in the respective places.
(e) The CDs given by the Election Commission of India recorded at their instance cannot be doubted at this stage and every opportunity should be given to prove those facts. When the compact discs received from the election commission of India have been filed along with the election petition, the genuineness of the same cannot be doubted and the allegations made by the Returned Candidate in his affidavit have no basis and the same is liable to be rejected.
(f) In order to prove the partisan act of Inspector of Police who helped the Returned Candidate by not taking action against his party men, who indulged in the act of distributing money, the complaint given by his party men Vetrinagar M.Sundar dated 25.3.2011 to the Chief Electoral Officer, has also been filed along with the election petition.
Thus, the counter affidavit of the election petitioner seeks for the dismissal of the present application.
6. On the basis of the above pleadings, I have heard Mr.P.S.Raman, learned Senior counsel appearing for the Returned Candidate and Mr.AL.Somayaji, the learned Senior Counsel appearing for the election petitioner.
7. Before adverting to the rival contentions, it would be useful to consider some of the provisions of the Representation of the People Act, 1951 (herein after referred to as the Act).
Section 81 deals with the presentation of election petition and the time prescribed for filing the election petition.
Section 83 deals with the contents of the election petition, which is re-produced hereunder:-
" 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."
Section 86 stipulates that the High Court may dismiss the election petition, which does not comply with the provisions of Section 81 or 82 or section 117.
Section 87 stipulates that the provisions of Code of Civil Procedure made applicable for trial of the election petition.
Section 87 is re-produced hereunder:-
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. Section 100 deals with the grounds on which election petition of a candidate may be challenged and declared as void.
Section 123 declares certain practice as deemed to be corrupt practice.
As per Section 87 of the Act, the election petition could be dismissed if grounds are available as required under Order VII Rule 11 C.P.C. As far as striking off pleadings are concerned, Rule 16 of Order VI could be employed.
8. Before adverting to the contentions raised on behalf of the Returned Candidate that certain paragraphs of the election petition shall be struck off, it would be desirable to extract Rule 16 of Order VI C.P.C. and the same is re-produced hereunder:-
" 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 the process of the Court."
9. Before deciding the said issue as to whether certain paragraphs, mentioned in the election petition, are to be struck off or not, as pleaded by the Returned Candidate and countenanced by the election petitioner, it would be desirable to see the case laws on the subject.
(I) In (2006) 13 Supreme Court Cases 353 Sathi Vijay Kumar v. Tota Singh and others, the Hon'ble Apex Court held in paragraphs 33, 34 and 55 as follows:-
"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. Nachattar Singh Gill: K.K.Modi v. K.N.Modi, United Bank of India v. Naresh Kumar)"
34. More than a century back, in Knowles v. Roberts Bowen, L.J. said:
" It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right. It is a recognised principle that a defendant may claim ex debito justitiae to have the plaintiff's claim presented in an intelligible form, so that he may not be embarrassed in meeting it; and the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery".
"55. In our opinion, the High Court was not right in deleting the above para relying on Shiv Charan and Santosh Yadav. Neither of the above cases related to striking out pleadings. What was held by this Court in those cases was that when an election petitioner alleges that there was improper accpetance of nomination paper of some candidate and had the said illegal acceptance been not allowed, the voters would have voted in favour of the petitioner, the burden of proof was on the election petitioner. This Court observed that though it was very difficult for the election petitioner to prove such fact, nonetheless, the onus was on him and he had to discharge it. We are here not at the stage of trial but only at the stage of pleadings. The ratio laid down in the above cases, therefore, in our considered opinion, has no application in the case on hand and the High Court was wrong in invoking the law laid down in the aforesaid decisions."
(II) In (2012) 4 Supreme Court Cases 194 Jitu Patnaik v. Sanatan Mohakud and Others, the Hon'ble Apex Court, in paragraphs 43 to 47, has held as follows:-
"43. Order VI Rule 2 of CPC, to the extent it is relevant, reads as under :
2. Pleading to state material facts and not evidence.-- (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
(2) ...
(3) ...
44. Section 83(1)(a) of the 1951 Act is as follows :
83. Contents of petition.--(1) An election petition-- (a) shall contain a concise statement of the material facts on which the petitioner relies;
45. A bare perusal of the above provisions would show that the first part of Order VI Rule 2, CPC is similar to clause 1(a) of Section 83 of the 1951 Act. It is imperative for an election petition to contain a concise statement of the material facts on which the election petitioner relies. What are material facts? All basic and primary facts which must be proved at the trial by a party to establish the existence of cause of action or defence are material facts. The bare allegations are never treated as material facts. The material facts are such facts which afford a basis for the allegations made in the election petition. The meaning of 'material facts' has been explained by this Court on more than one occasion. Without multiplying the authorities, reference to one of the later decisions of this Court in Virender Nath Gautam v. Satpal Singh and others shall suffice.
46. In Virender Nath Gautam, this Court referred to the case of Philipps v. Philipps and Others and the subsequent decision in Bruce v. Odhams Press Limited that referred to Philipps and observed in paragraphs 34 and 35 (Pg. 629) of the Report as follows:
"34. 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.
35. 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."
47. Whether the averments in the election petition constitute material facts or not would depend upon facts of each case. As stated by this Court in Virender Nath Gautam, no rule of universal application can be applied in finding out whether the statements of fact made in the election petition amount to material facts or not."
10. Thus, the provisions of the Representation of the People Act and the dictum laid down by the Hon'ble Apex Court makes it clear that the election petition shall contain a concise statement of material facts on which the election petitioner relies and also the material particulars. If material facts and particulars are not found, the election petition shall be dismissed.
10.1. Section 87 of the Act contemplates that the election petition shall be tried in accordance with the procedure contemplated under Civil Procedure Code as far as possible.
10.2. Whether the provisions contemplated under Civil Procedure Code are applicable to the election matters during the course of trial, came in for consideration before the Hon'ble Apex Court in the judgment reported in AIR 1987 SUPREME COURT 1577, Dhartipakar Madan Lak Agarwal vs. Shri.Rajiv Gandhi, and it has been held that the procedure contemplated under Civil Procedure Code is applicable to the election petitions as far as possible. Paragraph 8 of the said judgment is usefully extracted here under:-
" 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."
10.3. In yet another decision reported in (2009) 10 Supreme Court Cases 541, Ram Sukh vs. Dinesh Aggarwal, the Hon'ble Apex Court in Paragraph No.18, has held as follows:-
" 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.... 10.4. Rule 16 of Order VI and the judgment referred to above makes it clear that if the allegations in the election petitions are--
(i) unnecessary, scandalous, frivolous or vexatious; (ii) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (iii) which is otherwise an abuse of the process of the Court;
the Court may at any stage of the proceedings order to be struck out or amended any matter in any pleadings.
11. Now, let us see each and every paragraph, which the Returned Candidate seeks to strike off and the reasons given for the same and the defence taken against such striking off the said paragraphs.
(A) Paragraphs 5 and 6 of the election petition, which the Returned Candidate wants to strike off, are re-produced hereunder:-
"5. The petitioner has been an ardent AIADMK party member ever since the same was floated and he was elected as a member of T.N. Legislative Assembly from Saidapet Constituency during the year 1985 to 1987. The petitioner has been doing many yeomen services to the public at large and in such short period developed the Saidapet Constituency. The petitioner is also well known for his social and philanthropical activities carried on as a Chairman of Manidha Neyam Charitable Trust. The petitioner states that through the said Trust, he has been providing free health care, free school education, free Kalyanamandapam facilities to perform marriages by the needy and deserving people etc.
6. The petitioner states that the above said Trust is also running a IAS Coaching Academy, which is well known for its reputation of creating successful IAS candidates. The petitioner states that this Academy is having a nationwide reputation among the IAS aspirants and more particularly IAS aspirants in Tamilnadu always prefer this Academy to pursue their studies. The petitioner has definite reputation in the Society at large, more particularly, among the people who had seen his philanthropic and community service attitude. The petitioner states that articles do have appeared in Reputed Newpapers like The Hindu, The Indian Express and Tamil Magazines appreciating and recognizing the petitioners acts done to the welfare of the public."
The above paragraphs are in no way connected with the allegations made against the Returned Candidate in the election petition about the corrupt practice carried out by him. At best, it may show that the election petitioner is having social concept which would have made him to secure votes. But, undoubtedly, it will not be a matter to consider, the issues raised in the election petition. Further, the statements made in paragraphs 5 and 6 are unnecessary for the purpose of deciding the grounds raised in the Election Petition. Rule 16 of Order 6 envisages that if the pleadings in the Election Petition are unnecessary, it can be struck off. Therefore, in my considered view, the above referred to paragraphs viz., paragraphs 5 and 6 of the election petition are liable to be struck off and accordingly, struck off.
(B) The next paragraph, which the Returned Candidate wants to strike off is paragraph 9. Paragraph 9 is re-produced hereunder:-
"9. The petitioner submits that in fact Mr.Karunanidhi in order to promote the 1st respondent political interest to higher level and to keep the state under his Family Rule, created the post of Deputy Chief Minister in Tamilnadu for the first time after Independence. The members of DMK party have been portraying him as Thalapathi and Future Chief Minister of State.
The above paragraph is wholly unnecessary in the context of the issue to be decided in the election petition and hence, the same is struck off.
(C) The next paragraph which is sought to be struck off, is paragraph 10, and the same is re-produced hereunder:-
"10. The petitioner states that the 1st respondent used his official, his party men and money powers in Kolathur Constituency during the time of election campaign, after filing the nomination. The petitioner submits that the 1st respondent elder brother Mr.Alagiri is a Member of Parliament and Union Cabinet Minister for Chemicals and Fertilizer, his step sister Mrs.Kanomizhi a nominated Member of Rajya Sabha currently involved in 2G spectrum scam. The petitioner submits that another close relative of Mr.M.Karunanidhi, Mr.Dayanidhimaran is also a Member of Parliament and holding the cabinet position of Textile Ministry. The petitioner states that another close relative of the 1st respondent Mr.Kalanidhimaran has been running television channels under the name of Sun T.V. Network in all South Indian Languages and publishing the Newspaper Dinakaran.
The opening sentence of the said paragraph viz., " The petitioner states that the 1st respondent used his official, his party men and money powers in Kolathur Constituency during the time of election campaign, after filing the nomination. "
cannot be said to be unnecessary, considering the other averments made in the subsequent paragraphs of the election petition. Therefore, I am of the considered view that the said sentence in paragraph 10 need not be struck off. However, the other sentences in the said paragraph are wholly unnecessary, which will not in any way connected with the issue raised in the election petition. Hence, paragraph 10 of the election petition except the opening sentence therein, which is extracted above, is struck off.
(D) The next paragraph which the Returned Candidate seeks to strike off is paragraph 11, and the same is re-produced hereunder:-
"11. The petitioner submits that the 1st respondent family members also owning a television channel by name Kalaignar T.V. stated to have been started with the kickback amount of Rs.200 Crores paid by the beneficiaries of 2G spectrum allotment as per the media reports published widely in India. The petitioner submits that people of Tamilnadu is fully aware of the 1st respondent party way of bribing the voters thro various innovative ways in Thirumangalam by-election and in the Parliament Elections held in the year 2009. The petitioner states that as early as in the year 1976 Sarkaria Commission in its report indicated the scientific way followed by DMK party and their leaders, in matter of siphoning the public money. "
The opening sentence of the said paragraph viz., "The petitioner submits that the 1st respondent family members also owning a television channel by name Kalaignar T.V. stated to have been started with the kickback amount of Rs.200 Crores paid by the beneficiaries of 2G spectrum allotment as per the media reports published widely in India"
is wholly unnecessary in deciding the issue raised in the election petition. Likewise, the last sentence in the said paragraph viz., "The petitioner states that as early as in the year 1976 Sarkaria Commission in its report indicated the scientific way followed by DMK party and their leaders, in matter of siphoning the public money."
is also unnecessary for the purpose of deciding the election petition. However, the other statement made in paragraph 11 viz., " The petitioner submits that people of Tamilnadu is fully aware of the 1st respondent party way of bribing the voters thro various innovative ways in Thirumangalam by-election and in the Parliament Elections held in the year 2009."
cannot be said to be unnecessary. This statement along with the other paragraphs and part of paragraph 13 of the election petition cannot be said to be unnecessary or irrelevant. Therefore, the said sentence viz., "The petitioner submits that people of Tamilnadu is fully aware of the 1st respondent party way of bribing the voters thro various innovative ways in Thirumangalam by-election and in the Parliament Elections held in the year 2009" is not struck off and the other portions referred in paragraph 11 are struck off.
(E) The next paragraph which the Returned Candidate wants to strike off is paragraph 12, which is re-produced hereunder:-
"12. The petitioner submits that this Thirumangalam formula by which 1st respondent party provided money to the voters in a novel way of community feedings, courier service, currency in Newpaper, Arathi plate contributions and slips to the voters to purchase consumer items etc. "
In my considered view, the said paragraph does not require to be struck off. The reason being that it has to be read along with the other allegations made against the Returned Candidate about his corrupt practice.
(F) The next paragraph, which is sought to be struck off, is paragraph 13, which is re-produced hereunder:-
"13. The petitioner submits that the 1st respondent DMK party continued to follow the same method of Money for Votes, as a policy in Kolathur Constituency with its ill gotten money. The petitioner therefore submits that misuse of official and money power at the instance of the 1st respondent played a dominant role in Kolathur Assembly constituency during the time of entire election process, in order to ensure his success by hook or crook. The petitioner submits that the 1st respondent as well as his party workers projected a false impression among the Kolathur Constituency voters that in the event of the DMK party winning the election, he would be crowned as the Chief Minister of the State after some time with the consent of his father. The petitioner submits that however the people of Tamilnadu thought fit otherwise and the 1st respondent party suffered humiliating defeat in the said election and reduced to a state of non-existing party in Tamilnadu Legislative Assembly. "
As far as the first portion of the said paragraph viz., " The petitioner submits that the 1st respondent DMK party continued to follow the same method of Money for Votes, as a policy in Kolathur Constituency with its ill gotten money. The petitioner therefore submits that misuse of official and money power at the instance of the 1st respondent played a dominant role in Kolathur Assembly constituency during the time of entire election process, in order to ensure his success by hook or crook. The petitioner submits that the 1st respondent as well as his party workers projected a false impression among the Kolathur Constituency voters that in the event of the DMK party winning the election, he would be crowned as the Chief Minister of the State after some time with the consent of his father. "
is concerned, the same does not require to be struck off. The statement made therein requires evidence. However, the later part of the statement made in paragraph 13 viz., "The petitioner submits that however the people of Tamilnadu thought fit otherwise and the 1st respondent party suffered humiliating defeat in the said election and reduced to a state of non-existing party in Tamilnadu Legislative Assembly. "
is wholly unnecessary for the purpose of deciding the issue raised in the election petition and hence, the same is struck off.
(G) The next paragraphs, which are sought to be struck off, are paragraphs 62 and 63, and the same are re-produced hereunder:-
"62. The petitioner submits that the Inspector of Police Mr.Selvakumar worked in Rajamangalam, V.4 Police Station, Kolathur Constituency also acted and helped the 1st respondent in an open manner, as he is related to the Security Officer of the 1st respondent. The petitioner submits that because of the said connection, the Inspector of Police Mr.Selvakumar helped him in many ways, by not taking actions against the DMK workers, who indulged in distributing money to the voters with the consent of the 1st respondent, in the areas falling within the jurisdiction of V.4 Rajamangalam Police Station.
63. The petitioner submits that the said inspector acted in such a partisan manner, who got his suspension order revoked with the help of the 1st respondent in spite of his serious act of sending obscene SMS to a lady police. The petitioner party work man Vetrinagar M.Sundar also gave a complaint dated 25.3.2011 to the Chief Electoral Officer to transfer him out of the said police station and no action was taken in this regard. (I) In this connection, learned Senior counsel appearing for the Returned Candidate relied on the decision reported in (1996) 1 Supreme Court Cases 399 Ramakant Mayekar v. Celine D' Silva (Smt). Paragraph 31 of the said judgment was much emphasised by the learned Senior Counsel and the same is extracted hereunder:-
"31. Even otherwise the only specific pleading on the point which is extracted above is insufficient to plead this corrupt practice against the appellant, howsoever reprehensible it may be in relation to the alleged conduct of Bal Thackeray. The mere fact that Bal Thackeray was the leader of Shiv Sena of which party the appellant was a candidate is by itself not sufficient to hold any candidate guilty of the corrupt practice on the basis of an act done by Bal Thackeray unless that liability can be fastened on the candidate on further proof that the act was done with the consent of the candidate or the display of that cassette was made with the candidate's consent at the specified time and place etc. during his election campaign. All these material facts were required to be pleaded and proved, but, instead, they have been assumed and even the finding is not related to any such specific act".
(II) Further, it has been held in the said decision that the liability on the candidate can be fixed or fastened only if it is pleaded or shown that the acts of others which constitute corrupt practice was carried out with the consent of the candidate.
(III) By relying on the said decision, the learned Senior Counsel appearing for the Returned Candidate contended that in what way the said Inspector Selvakumar helped the Returned Candidate " in many ways ", has not been stated. Thus, the material facts and material particulars were not pleaded and hence, the said paragraphs are liable to be struck off.
(IV) However, I am of the considered view that in the given case on hand, in paragraph 62, it has been clearly spelled out that the Inspector of Police one Selvakumar was not taking action against D.M.K. workers, who were distributing money to the voters with the consent of the Returned Candidate. The said paragraph 62 and the connected paragraph 63 have to be read as a whole and not in isolation. That apart, the said judgment was made in an appeal, which was filed challenging the finding rendered after a full fledged trial and the present case is not at the stage of trial or after trial.
(V) The learned Senior Counsel appearing for the Returned Candidate placed much reliance on the words "Mr.Selvakumar helped him in many ways" and contended that it is very vague and the words "many ways" have not been explained in the pleadings. However, I am of the considered view that as stated already, the entire paragraphs viz., 62 and 63 have to be read as a whole and not in isolation and if we read them as a whole, it may only mean that the said Inspector was helping the Returned Candidate by not taking action against the D.M.K. workers who were distributing money to the voters with the consent of the Returned Candidate. Further, the election petitioner has referred about the name of Selvakumar, Inspector of Police along with one Subba Rao, the Assistant Commissioner of Police in paragraphs 31 and 32 also. Admittedly, the Returned Candidate has not sought for striking off the pleadings in paragraphs 31 and 32.
(VI) In 2012 (3) PCR (Civil) 770 Ponnala Lakshmaiah v. Kommuri Pratap Reddy and Ors., which was relied on by the learned Senior Counsel appearing for the Election Petitioner, in paragraph 4, the Hon'ble Apex Court has held as follows:-
"4. It is equally well settled that while examining whether a plaint or an election petition discloses a cause of action, the Court has a full and comprehensive view of the pleading. Averments made in the plaint or petition cannot be read out of context or in isolation. They must be taken in totality for a true and proper understanding of the case set up by the plaintiff. This Court has in Shri Udhav Singh v. Madhav Rao Scindia (MANU/SC/0302/1975 : (1977) 1 SCC 511 given a timely reminder of the principle in the following words:-
We are afraid, this ingenious method of construction after compartmentalisation, dissection, segregation and inversion of the language of the paragraph, suggested by counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole".
(VII) Thus, considering the totality of the circumstances referred to above and the judgments of the Hon'ble Apex Court, I am of the considered view that the allegations made in paragraphs 62 and 63 can be tested only at the time of trial and the same cannot be struck off at the initial stage itself.
(H) The next paragraphs, which are sought to be struck off by the Returned Candidate, are paragraphs 33 and 34, and the same are re-produced hereunder:-
"33. The petition is also filing the CDs containing the incidents recorded on 6.4.2011, 7.4.2011 and 24.3.2011 in order to show that effective vigilant action was never taken against 1st respondent, the party functionaries and workers indulged in illegal distribution of money made on those days.
34. The petitioner further states that the above named CDs would show as to how the police flying squad and other officials showed their inaction and lethargic attitude on 24.3.2011, 6.4.2011 and 7.4.2011 when the complaints made relating to illegal acts of distributing money to the voters of Kolathur Constituency at the instance of the 1st respondent. Hence the election of the petitioner is materially affected due to the help given by the police officials on 24.3.2011, 6.4.2011 and 7.4.2011 by not taking any action against the 1st respondent party functionaries and workers."
(I) On the above said paragraphs, learned Senior Counsel appearing for the Returned Candidate submitted that no particulars regarding as to who shot the video, the exact location where it was shot, what it discloses, the persons thereon and agents have not been pleaded. Not even it is stated that who were the persons distributing money.
(II) On the contrary, learned Senior Counsel appearing for the election petitioner contended that all the particulars which are necessary, are set out in paragraphs 33 and 34 and more particulars are given in paragraphs 39 to 41, 45 and 47 to 49 about the CDs. Thus, he has contended that the said paragraphs do not require to be struck off at this stage.
(III) While considering the contentions raised in this regard, I am of the considered view that paragraphs 33 and 34 do not require to be struck off. As rightly contended by the learned Senior Counsel appearing for the Election petitioner, the contents of CDs have been set out not only in paragraphs 33 and 34 but also in paragraphs 39 to 41, 45 and 47 to 49. Admittedly, the Returned Candidate has not sought for striking out of those paragraphs. The averments made in paragraphs 33 and 34 have to be read along with other paragraphs referred to above. Only during trial of the election petition, more details can be culled out and for the present, the pleadings raised in paragraphs 33 and 34 have to be read along with the other paragraphs referred to above, which are enough to adjudicate the election petition. Prima facie, I am of the considered view that the material facts and the material particulars have been given by the election petitioner regarding the averments made in paragraphs 33 and 34. Further more, the election petitioner alleges that he has produced the Video Footage obtained from the Election Commission of India in the same format. Therefore the veracity of the same could be tested only at the time of trial.
(IV) However, learned Senior Counsel appearing for the Returned Candidate relied on the decision (1989) 4 Supreme Court Cases 482 U.S.Sasidharan vs. K.Karunakaran and another. Much reliance was made in paragraph 30, which is extracted hereunder:-
"30. Apart from striking out the whole of the election petition when it does not disclose a cause of action, the court can strike out any statement which is irrelevant, scandalous or has nothing to do with the cause of action under the provision of Order VI, Rule 16 of the Code of Civil Procedure. It is submitted by Mr.Poti that if the averments in paragraph 5(xi) of the election petition are irrelevant or do not disclose any cause of action, at the most the said paragraph can be struck out by the court under the provision of Order VI, Rule 16 of the Code of Civil Procedure. We are afraid, we are unable to accept the contention. We are not concerned with whether paragraph 5(xi) can be struck out by the court under the provision of Order VI, Rule 16 of the Code of Civil Procedure as not disclosing any cause of action, but really we are concerned with the question as to whether the copy of the election petition which has been served on the first respondent without a copy of video cassette is a true copy of the election petition or not within the meaning of Section 81(3) of the Act. We have come to the conclusion that the appellant has not served on the first respondent a true copy of the election petition inasmuch as, admittedly, a copy of the video cassette which forms an integral part of the election petition, was not served along with the election petition. There is, therefore, no substance in the contention which is rejected."
I am of the considered view that the dictum laid therein may not be applicable to the facts of the present case on hand.
(V) Yet another decision, which was relied on by the learned Senior Counsel appearing for the Returned Candidate is reported in (1999) 9 Supreme Court Cases 420 Mahant Ram Prakash Dass v. Ramesh Chandra and others. Paragraph 14 of the said judgment which was emphasised by the learned Senior Counsel appearing for the Returned Candidate, is extracted hereunder:-
"14. We will not place any reliance upon the video cassette produced before the High Court inasmuch as no evidence is adduced as to who recorded the cassette, nor does any witness speak to the veracity of recording, much less is there any material as to whether any editing was done."
That is the case where a direction for total re-count of votes was sought for. In the said case, evidence was taken and thereupon the said finding was arrived at by the Hon'ble Apex Court. As stated already, we are in preliminary stage and hence, the said judgment may not support the case of the Returned Candidate.
(VI) Thus, putting up in nutshell, the claim made by the Returned Candidate to strike out the pleadings in paragraphs 33 and 34 in the present case, does not require to be considered at this stage. The averments made therein have to be decided only after a full-fledged trial and it cannot be decided at this initial stage.
12. Thus, summing up the entire discussion and the conclusions arrived at earlier, the present application is disposed of on the following terms:-
(i) The allegations made in paragraph Nos.5, 6 and 9 in the election petition are struck off, holding that they are unnecessary to decide the issue raised in the election petition.
(ii) The opening sentence of Paragraph No.10 viz., "The petitioner states that the 1st respondent used his official, his party men and money powers in Kolathur Constituency during the time of election campaign, after filing the nomination." is not ordered to be struck off, but, however, the rest of the averments made in Paragraph No.10 are struck off.
(iii) The opening sentence of paragraph No.11 viz., "The petitioner submits that the 1st respondent family members also owning a television channel by name Kalaignar T.V. stated to have been started with the kickback amount of Rs.200 Crores paid by the beneficiaries of 2G spectrum allotment as per the media reports published widely in India" and the last sentence of the said paragraph viz., " The petitioner states that as early as in the year 1976 Sarkaria Commission in its report indicated the scientific way followed by DMK party and their leaders, in matter of siphoning the public money." are unnecessary for the purpose of deciding the election petition and the same are struck off. However, the other sentences in paragraph No.11 cannot be said to be unnecessary and the same is not struck off.
(iv) Paragraph No.12 of the election petition cannot be considered to be unnecessary or vague and hence, the same is not struck off.
(v) As far as paragraph No.13 is concerned, the first portion does not require to be struck off. However, the later part viz., "The petitioner submits that however the people of Tamilnadu thought fit otherwise and the 1st respondent party suffered humiliating defeat in the said election and reduced to a state of non-existing party in Tamilnadu Legislative Assembly. " is struck off as it is unnecessary for deciding the issue in the election petition.
(vi) As far as paragraphs 33 and 34 are concerned, the claim made by the Returned Candidate to strike out the pleadings in the said paragraphs, do not require to be considered at this stage and it has to be decided only after a full-fledged trial. Hence, paragraph Nos.33 and 34 are not struck off.
(vii) As far as paragraph Nos.62 and 63 are concerned, the allegations made therein can be tested only at the time of trial and the same cannot be struck off at the initial stage itself and hence, paragraph Nos.62 and 63 are not struck off.
The application is disposed of in the above terms. Post the matter for further adjudication on 27.9.2012.
21 .09.2012 Index : Yes Internet : Yes sbi K.VENKATARAMAN, J sbi Pre-delivery order in O.A.No.878 of 2011 in E.L.P.No.1 of 2011 DATED: 21 .09.2012