Gauhati High Court
Nurul Huda vs Najir Hussain And 12 Ors on 18 January, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/19
GAHC010147342021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/1451/2021
NURUL HUDA
S/O. LT. AMBAJ ALI FORAZI, VILL. ROWMARI, P.O. RUPOHIHAT, P.S.
RUPOHIHAT, DIST. NAGAON, ASSAM, PIN-782125.
VERSUS
NAJIR HUSSAIN AND 12 ORS
S/O. AMSOR ALI, VILL. LAWGAON, P.O. SOLMARI, P.S. RUPOHIHAT, DIST.
NAGAON, ASSAM, PIN-782002.
2:xxxxxx
xxxxxx
3:THE STATE OF ASSAM
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GHY.-06.
4:xxxxxx
xxxxxx
5:xxxxxx
xxxxxx
6:xxxxxx
xxxxxx
7:SHAFIQUL ISLAM
VILL. SINGIA GAON
P.O. SINGARI MADRASSA
P.S. JURIA
Page No.# 2/19
DIST. NAGAON
PIN-782124.(ASSAM JATIYA PARISAD)
8:SAMSUL ALAM
VILL. FAKALI PATHAR
P.O. FAKALI PATHAR
P.S. JURIA
DIST. NAGAON
PIN-782124. (JANTA DAL UNITED)
9:JINNATUL ISLAM
VILL. MAHERIPAR
P.O. KALIADINGA
P.S. JURIA
DIST. NAGAON
PIN-782128
(RASHTRIYA ULAMA COUNCIL)
10:ABU SHAMA
VILL. MAHERIPAR
P.O. KALIADINGA
P.S. JURIA
DIST. NAGAON
PIN-782128
(INDEPENDENT)
11:WAKIBUR ISLAM
VILL. UDMARI
P.O. SINGARI MADARSSA
P.S. JURIA
DIST. NAGAON
PIN-782124.(INDEPENDENT)
12:NAZUL ISLAM
VILL. DALONI JURIA
TINSUKIA
P.S. JURIA
DIST. NAGAON
PIN-782124. (INDEPENDENT)
13:NURUL AMIN CHOWDHURY
VILL. CHOTA RUPOHI
P.O. HERAPATI
P.S. NAGAON
(SADAR)
DIST. NAGAON
ASSAM. (INDEPENDENT
Page No.# 3/19
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the applicant : Mr. R.P. Sharma, Senior Advocate
Mr. S.P. Chetry, Advocate.
For Opposite Party no.1 : Mr. M. U. Mahmud, Advocate.
Date of hearing : 06.01.2022
Date of judgment : 18.01.2022
ORDER (CAV)
Heard Mr. R.P. Sharma, learned senior counsel, assisted by Mr. S.P. Chetry, learned counsel for the applicant and Mr. M.U. Mahmud, learned counsel for the opposite party.
2) The applicant herein is the respondent in the connected election petition, which has been filed by the opposite party. For the sake of clarity and convenience, in this order the parties are referred by their respective status in the connected election petition.
3) By filing this application under the provisions of Order VII, Rule 11 and 14 of the Civil Procedure Code, the respondent no. 1 (i.e. the returned candidate) has prayed for rejection of the plaint.
4) The learned senior counsel for the respondent no. 1 has submitted that in the election petition, the petitioner has neither disclosed the Page No.# 4/19 source of documents which has been relied upon, nor it has been mentioned in whose possession or power the documents are. Thus, it is submitted that the provisions of Order VII, Rule 14(1) and (2) CPC has not been complied with. Hence, it is submitted that in the absence of such disclosure, no summons can be issued for production of documents or records. It is further submitted that the affidavit filed in support of the "particulars of corrupt practice" as set forth in the "Schedule of corrupt practice" does not vouch for truthfulness of the allegations and in the said context it is submitted that if there is no verification, there cannot be a valid cause of action to maintain the election petition. Accordingly, it has been submitted that this was a fit and proper case for rejection of the plaint at the threshold.
5) In support of his submissions, the learned senior counsel for the respondent no.1 has placed reliance on the following cases, viz., (i) Prabhu Lal Bahuguna v. Umesh Sharma Kau, (2020) 0 Supreme(SC) 366; (ii) AIR 2012 SC 2784; (iii) R.P. Moidutty v. P.T. Kunju Mohammad & Anr., AIR 2000 SC 338; (iv) Dr. Shipra, etc. v. Shanti Lal Khoiwal, etc.; AIR 1996 SC 1691: (v) K.D. Desmukh v. Amritlal Jayaswal, AIR 1992 SC 164; (vi) Virendra Kumar Saklecha v. Jagjiwan & Ors., AIR 1974 SC 1957.
6) Per contra, the learned counsel for the petitioner has submitted that the omissions are not so fatal that it would entail rejection of plaint. It has been submitted that material particulars is distinguishable from material facts and in this regard it has been submitted that the election petition contains material facts and that whatever has been pointed out by the learned senior counsel for the petitioner would not constitute material facts. Accordingly, it has Page No.# 5/19 been submitted that the present interlocutory application be dismissed.
7) In support of his contention, the learned counsel for the petitioner has placed reliance on the following cases, viz., (i) Hardesh Ores Pvt. Ltd. v. Hede and Company, (2007) 5 SCC 614; (ii) Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196; (iii) Dipti Chakraborty v. Ashish Bhattacharjee, 2020 (2) GLT (ML) 742; (iv) Gammon India Ltd. & Anr. v. Binod Kumar Malpani, 2020 (1) GLT 451. Two other cases, being (i) 1995 (2) CLJ 25, and (ii) 1987 (2) CLJ 254, and although the Court had directed the learned counsel for the petitioner to provide copies, but the same having not been provided, the said two cases could not be considered.
8) Under Section 86(1) of the Representation of the People Act, 1951 (hereinafter referred to as 'RoP Act' for short) an election petition is liable to be dismissed without being set down for trial if it does not comply with the provisions of Section 81, or Section 82, or Section 117 of the RoP Act. The said Sections provide for presentation of election petition, parties to the election petition and security for cost.
9) At the cost of repetition, it is reiterated that one of the forceful submissions made by the learned counsel for the respondent no. 1 was to the effect that the affidavit filed in support of the "particulars of corrupt practice" as set forth in the "Schedule of corrupt practice" does not vouch for truthfulness of the allegations and in the said context it is submitted that if there is no verification, there cannot be a valid cause of action to maintain the election Page No.# 6/19 petition. Such an affidavit is mandatorily required as per the provisions of Sub- Section (1) of Section 83 of the RoP Act read with Rule 94A of the Conduct of Election Rules, 1961 (hereinafter referred to as the 'Rules' for brevity) read with Form No. 25 appended to the said Rules.
10) The said affidavit (available in page 35 of the election petition) is extracted herein below:-
"AFFIDAVIT (As per Form 25 vide Rule 94A of the Conduct of Election Rules, 1961) I, Najir Hussain, Son of Amsor Ali, aged about 43 years, resident of Vill- Lawgaon, P.O- Solmari, P.S. Rupohihat, Dist- Nagaon, Assam, PIN- 782002, is the election petitioner of the accompanying election petition, calling in question the election of Mr. Nurul Huda to the Assam Legislative Assembly from No. 85 Rupohihat LAC held on 27.03.2021, make a solemn affirmation/ oath and say:-
1. That the statements made in paragraphs 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18 of the accompanying election petition about the commission of corrupt practices by the respondent no. 1 and the particulars of such corrupt practices mentioned in those paragraphs are true to my knowledge, belief and information.
On Oath That I swear this declaration is true that it conceals nothing and that no part of it is false, so help me God! And I sign this affidavit on 10th day of June, 2021 at Guwahati.
(sd/- illegible)."
11) Thus, the learned senior counsel for the respondent no. 1 has rightly pointed out that the aforesaid affidavit is not in consonance with Form 25 read with Rule 94A of the Rules. Accordingly, it is submitted that owing to lack of proper verification, there is no cause of action.
Page No.# 7/19
12) At the outset, it must be mentioned that this is not an
appropriate stage to examine the distinction between what is "material facts"
and "material particulars" in an election petition. The reason is that in the case of Raj Narain v. Indira Nehru Gandhi, AIR 1970 SC 1302: (1972) 3 SCC 850 , the Supreme Court had observed that if the allegations made regarding a corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and further those allegations cannot be amended after the period of limitation for filing an election petition; but the court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified. The relevant observations of the three- Judge Bench of the Supreme Court of India are quoted below:-
"17. It was contended on behalf of the respondent that the relevant provisions of the Act precluded the appellant from proving his allegations. Therefore let us look at those provisions in the Act i.e. Clauses (a) and (b) of S.
83. (1) and cl. (5) of S. 86 for finding out whether the charge has to be rejected in limine.
Section 83 (1) (a) and (b) read ;
"(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.
*** *** ***"
18. Sub-s. (5) of S. 86 prescribes :
"The High Court may upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition Page No.# 8/19 but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."
19. From these two provisions, it follows that if the allegations made regarding a corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and further those allegations cannot be amended after the period of limitation for filing an election petition; but the court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified. The scope of these provisions has been considered in several decisions of this Court. The leading decision on this point is Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370: AIR 1957 SC 444. It is not necessary to go to that decision as the ratio of that decision has been elaborately explained by this Court in Samant N. Balakrishna v. George Fernandez, (1969) 3 SCR 603: AIR 1969 SC 1201. Dealing with the scope of Ss. 83 and 86(5). This Court observed that S.83 requires that the petition must contain a concise statement of the material facts on which the petitioner relies and the fullest possible particulars of the corrupt practice alleged. 'Material facts' and 'particulars' may overlap but the word 'material' shows that the ground of corrupt practice that the ground of corrupt practice and the facts necessary to formulate a complete cause of action must be stated. The function of the particulars is to present as full a picture of the cause of action as to make the opposite party understand the case he will have to meet. Under S.86(5), if corrupt practice is alleged in the petition, the particulars of such corrupt practice may be amended or amplified for ensuring a fair and effective trial, that is, more and better particulars of the charge may be given later, even after the period of limitation: but if a corrupt practice is not previously alleged in the petition, an amendment which will have the effect of introducing particulars of such a corrupt practice will not be permitted after the period of limitation, because, it would tantamount to making a fresh petition. The same view was taken by this Court in Hardwari Lal v. Kanwal Singh, (1972) 1 SCC
214. From these decisions, it follows that facts stated in the petition relating to any corrupt practice must be sufficient to constitute a cause of action. In other words the facts must bring out all the ingredients of the corrupt practice alleged. If the facts stated fail to satisfy that requirement then they do not give rise to a triable issue. Such a defect cannot be cured by any amendment after the period of limitation for filing the election petition. But even if all the material facts are stated in the election petition, for a proper trial better particulars may still be required. If those particulars are not set out in the election petition, they may be incorporated into the election petition with the permission of the court even after the period of limitation. The controversy in this case is whether the election petition discloses a Page No.# 9/19 cause of action for trying Issues No. 1. We think it does. The allegation made in paragraphs 2, 5 and 6 of the petition, if read together do show that the allegation against the respondent is that she obtained the assistance of Yashpal Kapur, a gazetted officer, to support her candidature by organising her electioneering work. These allegations bring out all the ingredients of the corrupt practice alleged though they are lacking in better particulars such as the date on which the respondent became a candidate and the date on which Yashpal Kapur was entrusted with the responsibility of organizing the electioneering work of the respondent. The absence of those particulars does not per se invalidate the charge. They can be supplied even now with the permission of the Court. In this connection it is necessary to mention that the respondent in her written statement did not say that the allegations in question did not raise a triable issue. No such objection appears to have been taken at the time of the framing of the issues or in any of her pleadings. It seems that the objection was taken up for the first time when the petition to set aside the interrogatories was heard. We are saying all these only to show as to how the parties understood the allegations at the earlier stages, of the proceedings.
20. Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the Court to ascertain that principle and implement it. What then is the principle underlying S.86(5)? In our opinion that aim of that section is to see that a person accused of a corrupt practice must know precisely what he is accused of so that he may have the opportunity to meet the allegations made against him. If the accusation made is nebulous and is capable of being made use of for establishing more than one charge or if it does not make out a corrupt practice at all then the charge fails at the very threshold. So long as the charge levelled is beyond doubt, S.86(5) is satisfied; rest is mere refinement. They either pertain to the region of particulars or evidence. That section is not designed to interdict a mere clumsy pleading like the petition before us. The purpose of that section is to see that every charge of corrupt practice should be brought before the court before the prescribed period of limitation and none thereafter so that the trial of the case may not be converted into a persecution by adding more and more charges or by converting one charge into another as the trial proceeds. The best illustration of the problem that S.86(5) tries to meet is found in Hardwari Lal's case (supra). The allegations made in paragraph 16 of the petition therein were as follows:
"That the respondent committed the corrupt practice of obtaining and procuring or attempting to obtain and procure the assistance for the Page No.# 10/19 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., Govt. High School Jharsa (Gurgaon).
3. Pt. Bhim Singh, Asstt. Sub-Inspector, Police-Security Lines, Lytton Road, New Delhi.
4. Ch. Chhatar 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."
21. These were all the material facts stated in the petition. From those averments, it was not possible to make out from whom among the government servants mentioned, the returned candidate alleged to have obtained or procured assistance for the furtherance of the prospects of his election and who are those from whom he is alleged to have attempted to obtain and procure the assistance for the said purpose. That petition was also silent as regards the type of assistance obtained or procured or attempted to be obtained or procured. In that case, it was necessary to state the type of assistance obtained or procured or attempted to be obtained or procured because a candidate can take the assistance of government servants in certain respects. The allegations made in the petition were so elastic that it could have been used for establishing multitude of charges, leaving it free to the petitioner to pick and choose the charge he is in a position to establish. That was an intolerable position for his opponent. In substance, the petitioner therein had merely quoted the relevant provisions of law; he had failed to state the material facts to bring out the charge sought to be levelled. He had cast a wide net. This is not so in the case before us. Herein all the ingredients of the corrupt practice viz. (1) that the respondent obtained the assistance of Kapur; (2) Kapur was a government servant and (3) his services were obtained in support of the candidature of the respondent by organising her election campaign, are mentioned in the petition. The question when the respondent became a candidate is merely a matter of evidence.
22. For the reasons mentioned above, we think that the learned Judge was Page No.# 11/19 not justified in striking out Issue No 1. On the other hand, he should have reframed that issue, as mentioned earlier. Before leaving this question, it is necessary to mention one other fact. Yashpal Kapur appears to have tendered his resignation to the office he was holding on January 13, 1971. The certified copy of the notification produced shows that the President accepted his resignation on the 25th of January 1971 and the same was gazetted on February 6, 1971. The order of the President shows that he accepted Yashpal Kapur's resignation with effect from January 14, 1971. The learned trial Judge without examining the true effect of the President's order has abruptly come to the conclusion that Yashpal Kapur's resignation became effective as from January 14, 1971. This conclusion, in our opinion, requires re-examination. It is necessary to examine whether a government servant's resignation can be accepted with effect from an earlier date. At any rate whether such an acceptance has any validity in considering a corrupt practice under S.123(7). If such a course is permissible, it might enable the government to defeat the mandate of S.123(7). The question as to when a government servant's resignation becomes effective came up for consideration by this Court in Raj Kumar v. Union of India, (1968) 3 SCR 857: AIR 1969 SC 180. Therein this Court ruled that when a public servant has invited by his letter of resignation the determination of his employment, his service normally stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and, in the absence of any law or statutory rule governing the conditions of his service, to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Hence the question as to when Yashpal Kapur's resignation became effective will have to be examined with reference to his conditions of service. This examination having not been done, the conclusion of the learned trial Judge that it became effective on January 14, 1971, has to be ignored.
23. For the foregoing reasons, we set aside the order of the trial judge striking out Issue No. 1 and the last part of Issue No. 3 and restore Issue No. 1 as amended by us.
24. Now coming to the appeal against the order on the amendment application, the learned trial judge disallowed the amendments sought on the sole ground that if those amendments are allowed it will amount to amending the statement of material facts and the same is not permissible in view of S.86(5). We have already found that that conclusion of the learned trial judge is not correct. The amendment application was moved even before the trial of the case commenced. It is not shown how the amendments sought in respect of paragraphs 2 and 5 of the petition can prejudice the case of the respondent. They are merely clarificatory in character. This Court ruled in Balwan Singh v. Lakshmi Page No.# 12/19 Narain, (1960) 3 SCR 91: AIR 1960 SC 770, that an election petition was not liable to be dismissed in limine because full particulars of corrupt practice alleged were not set out. It further observed that if an objection was taken and the tribunal was of the view that the full particulars have not been set out, the petitioner had to be given an opportunity to amend or amplify the particulars. It was only in the event of non-compliance with the order to supply the particulars that the charge which remained vague could be struck out. In that case the amendment was sought after the evidence was closed in the cases. This Court allowed the same. Courts are ordinarily liberal in allowing amendment of pleadings unless it results in prejudicing the case of the opposite party. Any inconvenience caused by an amendment can always be compensated by costs. We think that the amendments asked for, should have been allowed and we allow the same. The election petition will be accordingly amended and the respondent will be afforded an opportunity to file any additional written statement, if she so desires."
13) The Court is conscious of the very recent decision of the Supreme Court of India in the case of A. Manju v. Prajwal R. & Ors., (2021) 0 Supreme(SC) 812, C.A. 1774 of 2020, decided on 13.12.2021 . The relevant paragraphs 25 to 27 thereof are quoted below:-
25. However, we are not persuaded to agree with the conclusion arrived at by the High Court that the non-submission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Ors., (2013) 4 SCC 776 which have received the imprimatur of the three Judges Bench in G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 case appear not to have been appreciated in the correct perspective. In fact, the G.M. Siddeshwar case (supra) has been cited by the learned Judge to dismiss the petition. If we look at the election petition, the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact, a consideration of both the judgments of the Supreme Court referred to by the learned Judge, i.e. Ponnala Lakshmaiah (supra) as well as G.M. Siddeshwar (supra), ought to have resulted in a conclusion that the Page No.# 13/19 correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form.
26. The arguments of learned counsel for respondent No. 1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This pre-supposes that for an opportunity of cure to be granted, there must be the submission of a Form 25 affidavit which may be defective. This would be very narrow reading of the provisions. Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form
25. We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of respondent No. 1.
27. The appellant states the case clearly and in no uncertain terms with supporting material in the election petition. Whether the violation is made out by respondent no. 1 or not would be a matter of trial but certainly not a matter to be shut out at the threshold.
28. The result of the aforesaid is that the impugned order of the learned single Judge dated 17.1.2020 is set aside and the application filed by respondent no. 1 under Order 7 Rule 11, S. 151 of the said Code and S. 86(1) of the RP Act would stand dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days from today. The further proceedings in the election petition are required to be taken up urgently as almost two and a half years have gone on the preliminary skirmishes rather than the meat of the matter, which we are sure the learned single Judge of the High Court would so do."
14) The point which distinguishes the present case from the ratio of the case of A. Manju (supra) is the fact that the respondent had filed this instant application on 11.09.2021 for rejection of plaint. The respondent no. 1 had also filed a separate interlocutory application on 07.09.2021, which was registered as I.A. (C) No. 1432/2021 for striking out pleadings. Thereafter, the petitioner had filed a separate interlocutory application under the provisions of Order VI, Rule 17 CPC for amending the election petition, which was registered and numbered as I.A.(C) No. 2075/2021.
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15) Although the defect in the affidavit filed under Form 25 was pointed out in I.A. (C) 1451/2021 and I.A. (C) 1452/2021, the respondent no. 1 did not take steps to file a fresh affidavit in consonance with Rule 94A read with Form-25 of the Rules. Similarly, in the objection filed on 01.12.2021 the respondent no.1 had once again pointed out, amongst others, that (i) the defect in verification and affidavit for corrupt practice; and (ii) the application was belated and therefore, hit by limitation of 45 days prescribed under Section 81 of the RoP Act. Similarly, in course of hearing the learned senior counsel for the petitioner had pointed out that the specific nature of amendment was not narrated and it was also submitted that the affidavit (page 35-36 of the election petition) in support of "Particulars of corrupt practice" in the "Schedule of corrupt practice" (available at page 37 of the election petition) did not have any reference or verification in respect of the "Schedule of corrupt practice". However, neither did the petitioner take appropriate steps to give a statement of proposed amendment, nor any steps was taken to introduce a fresh affidavit in support of the allegations or particulars of corrupt practice. Thus, upon hearing the relevant parties, i.e. the petitioner and the respondent no.1, the said amendment petition, i.e. I.A. (C) No. 2075/2021 has been dismissed by a separate order passed today.
16) Therefore, this is not a case where the Court in its own motion is required to give an opportunity to the petitioner to amend the election petition or to file a fresh affidavit because the petitioner has himself availed an opportunity to amend the election petition, which was dismissed. Therefore, having dismissed I.A. (C) No. 2075/2021, the Court is precluded from exercising Page No.# 15/19 inherent power to permit the petitioner to amend the writ petition.
17) Now the Court is required to determine whether defective affidavit in support of "Schedule of Corrupt Practice" and non disclosure of sources from where information was derived would be so fatal so as to reject the election petition at the threshold. In this regard, with profit reference may be made to relevant observations made by the Supreme Court in the case of Virendra Kumar Saklecha (supra), which is extracted hereunder:-
"The non-disclosure of grounds or sources of information in an election petition which is to be filed within45 days from the date of election of the returned candidate, will have to be scrutinised from two points of view. The non-disclosure of the grounds did not come forward with the sources of information at the first opportunity. The real importance of setting out the sources of information at the time of the presentation of the petition is to give the other side notice of the contemporaneous evidence on which the election petition is based. That will give an opportunity to the other side to test the genuineness and veracity of the sources of information. The other point of view is that the election petitioner will not be able to make any departure from the sources or grounds. If there is any embellishment of the case it will be discovered."
18) Basing on the aforesaid observations of the Supreme Court of India, the Court is of the considered opinion that whether the petitioner has been able to prove the pleadings would depend on the nature of evidence produced. Nonetheless, from the ratio of the cited case of Virendra Kumar Saklecha (supra), no rejection of plaint is made out.
19) The learned senior counsel for the petitioner had also cited the case of K.D. Desmukh (supra). It appears that the said case is on the point that amendment beyond limitation of 45 days prescribed to file an election petition Page No.# 16/19 ought not to be allowed. The said case is not found to be applicable in this present case. Para-4 thereof, on which heavy reliance was placed, is quoted below:-
"4. ... It is an admitted position that the result of the election was declared on 28-2-1990 and the election petition could have been filed within 45 days of such result. It is also an admitted position that on 8-3-91 when the amendment application was filed, the said period of 45 days had expired long back. The ground now sought to be raised by way of amendment is totally a new ground falling under S.100(1)(d) of the Act. The original petition was filed on the ground of improper rejection of nomination papers of 3 candidates under S. 100(1)(c) of the Act, and the ground now sought to be raised by amendment is of improper acceptance of nomination paper of the appellant himself under S.100(1)(d) of the Act. In our view the High Court was wrong in allowing the amendment application and in taking the view that the objection regarding limitation shall be decided while disposing of the election petition on merits finally. This approach of the High Court is totally wrong inasmuch as no amendment could have been allowed by which totally a new ground was sought to be taken and which was clearly beyond limitation on 8-3-91, the date of filing the amendment application ."
20) In the case of R.P. Moidutty (supra), as the Supreme Court of India concurred with the finding by the High Court that (i) there was a sharp divergence between pleadings and proof, and (ii) that it cannot be disputed that the averments made in the petition, if they satisfy the requirements of pleading a corrupt practice in an election petition and are held to be proved then they do amount to corrupt practice on the part of the first respondent within the meaning of sub-sections (3) and (3A) of Section 123 of the Act. Accordingly, the appeal filed before the Supreme Court against dismissal of the election petition after trial was also dismissed. The ratio of this cited case also does not propound rejection of plaint if the pleadings are not sufficient.
21) In the case of Dr. Shipra (supra), which has been relied upon by Page No.# 17/19 the learned senior counsel for the petitioner, the opinion of the three- Bench was to the following effect:-
"13. It is true that in Mrs. Shipra's case, i.e., C.A.No. 6359 of 1994, yet another contention was raised by her, viz., that rejection of her nomination was invalid in law. The High Court has held that even if more grounds were raised assailing the legality of the result of the election declared and if the mandatory requirement of Section 83 (1)(c) read with Rule 94-A was not complied with, the entire petition would have entailed dismissal. That view, we are of the firm opinion, is not correct in law. It is well settled that only those parts of the petition which contain allegations of corrupt practices and which are not pleaded in conformity with Form 25 read with Rule 94-A and Section 83(1), alone are required to be struck off and other independent issues are required to be tried and decided on merits. ..."
22) The learned counsel for the petitioner had placed reliance on the case of Hardesh Ores Pvt. Ltd. (supra). The said case deals with specific performance of contract and limitation attached to it under Article 54 of the Schedule to the Limitation Act, 1963. The said decision has no relevance in this case, because it is well settled that in election petition, amendment which introduces cause of action not previously pleaded cannot be permitted beyond the limitation prescribed for filing election petition.
23) In the case of Dipti Chakraborty (supra) and Gammon India Ltd. (supra), in connection with a civil suit, it was held that if the plaint discloses any cause of action, the plaint cannot be rejected for want of cause of action.
24) Reliance was also placed on the case of Sardar Harcharan Singh Brar (supra). the relevant paragraph is quoted below:-
11. The principles have been reiterated recently in H.D. Revanna Vs. G. Puttaswamy Gowda and ors., (1999) 2 SCC 217, V.S. Achuthanandan Vs. P.J. Page No.# 18/19 Francis and anr., (1999) 3 SCC 737 and Mahendra Pal Vs. Ram Dass Malander and ors., (2000) 1 SCC 261. We are tempted to quote the following passage from the three-Judge Bench decision in Mahendra Pal's case (supra) wherein the learned Chief Justice has summed up the statement of law in the following words:
"Section 83(1)(a) of the Act mandates that in order to constitute a cause of action, all material facts, that is, the basic and preliminary facts which the petitioner is bound under the law to substantiate in order to succeed, have to be pleaded in an election petition. Whether in an election petition, a particular fact is material or not and as such required to be pleaded is a question which depends upon the nature of the charge levelled and the facts and circumstances of each case. The distinction between "material facts" and "particulars" has been explained by this Court in a large number of cases and we need not refer to all those decided cases. Facts which are essential to disclose a complete cause of action are material facts and are essentially required to be pleaded. On the other hand "particulars"
are details of the case set up by the party and are such pleas which are necessary to amplify, refine or explain material facts. The function of particulars is, thus, to present a full picture of the cause of action to make the opposite party understand the case that has been set up against him and which he is required to meet. The distinction between "material facts" and "material particulars" is indeed important because different consequences follow from a deficiency of such facts or particulars in the pleadings. 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 6 Rule 16 of the Code of Civil Procedure. In the case of a petition suffering from a deficiency of material particulars the court has the discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. Thus, whereas it may be permissible for a party to furnish particulars even after the period of limitation for filing an election petition has expired, with the permission of the court, no material fact unless already pleaded, can be permitted to be introduced, after the expiry of the period of limitation."
25) In the light of above, as the respondent no. 1 has filed I.A.(C) No. 1432/2021 for striking out pleadings, without prejudice to the parties in the said I.A.(C) No. 1432/2021, the Court is of the considered opinion that the election petition cannot be rejected at the threshold.
Page No.# 19/19
26) In view of the discussions above, this interlocutory application fails and is accordingly dismissed.
27) Resultantly, the stay operating in favour of the respondent vide order dated 29.11.2021 in I.A.(C) No. 1470/2021, as extended vide order dated 01.12.2021 and 06.01.2022 in the connected Election Petition No. 2/2021 has lost its force with the dismissal of this interlocutory application. Therefore, the same would automatically stand lapsed and/or vacated. Be it mentioned herein for abundant caution that consequently, a separate order has been passed today in the connected El.P. 2/2021, directing the respondent no.1 to file his written statement within a period of 20 days from the date of this order, i.e. 07.02.2022.
28) The parties are left to bear their own respective cost.
JUDGE Comparing Assistant