Supreme Court of India
Neena Vikram Verma vs Balmukund Singh Gautam And Ors on 12 April, 2013
Bench: Madan B. Lokur, H.L. Gokhale
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3840/2013
Arising Out of Special Leave Petition (Civil) No. 38061 of 2012
Smt. Neena Vikram Verma ... Appellant
Versus
Balmukund Singh Gautam & Ors. ... Respondent
(s)
J U D G E M E N T
H.L. Gokhale J.
Leave Granted.
2. This petition for Special Leave seeks to challenge the order
dated 5.12.2012 passed by a learned Single Judge of the Madhya Pradesh High
Court (Bench at Indore) allowing the application filed by the first
respondent under Order 6 Rule 16 of Code of Civil Procedure (CPC) being I.A
No. 7248/2012 for striking off certain pleadings from the Recrimination
Petition filed by the Appellant herein.
Facts leading to this petition are this wise:-
3. The General Elections to the Madhya Pradesh Legislative
Assembly were notified by the Election Commission of India on 14.10.2008
and were held on 27.11.2008. The appellant herein contested the election
from 201-Dhar (General) Constituency. She was declared elected on
9.12.2008 defeating the first respondent by one vote.
4. The respondent No. 1 filed Election Petition bearing No. 11 of
2009 before the High Court of Madhya Pradesh (Bench at Indore), challenging
the election of the appellant on the ground of improper reception, refusal
and rejection of votes under the provisions of Representation of Peoples
Act, 1951 (R.P. Act, 1951 in short). This was principally on the basis
that the counting of the postal ballot was done in violation of Rule 63 of
the Conduct of Elections Rules, 1961, to the benefit of the appellant.
5. The appellant in turn filed a Recrimination Petition under
Section 97 of the R.P. Act, 1951 within the time provided therefor,
principally raising two grounds:
(a) paragraph 3 of the Recrimination Petition claimed that there were
several criminal cases pending against the 1st respondent which he had not
disclosed, and therefore his nomination was void and he cannot be declared
to be elected,
(b) paragraph 4 thereof contended that the first respondent had indulged
into various corrupt practices.
6. Respondent No.1 thereafter filed an application under Order 7
Rule 11 of CPC being I.A No. 8166 of 2009 for rejection of the
Recrimination Petition on the ground that it did not disclose any cause of
action. This was apart from filing the reply on merits to the
Recrimination Petition. The appellant opposed I.A No. 8166 of 2009 by
filing her reply. The High Court by its order dated 14.7.2011 allowed the
said application, consequently leading to the dismissal of the
Recrimination Petition filed by the appellant.
7. The appellant challenged this order by filing SLP (C) No. 28031
of 2011 which was converted into Civil appeal No. 1554 of 2012. By a
consent order dated 2.2.2012 passed by this Court on that appeal, the said
order dated 14.7.2011 passed by the High Court was set aside, and the
Recrimination Petition was restored to the file of the Election Petition
No. 11 of 2009.
8. It so transpired that subsequently the High Court by its
judgment and order dated 19.10.2012 allowed the Election Petition No. 11 of
2009, and set aside the election of the petitioner herein. The High Court,
therefore directed the Recrimination Petition to be heard.
9. We may note at this stage that the appellant has filed a
statutory appeal against the judgment and order in the Election Petition
No.11 of 2009 under section 116 A of the R.P. Act, 1951, which has been
admitted by this Court on 8.11.2012. By virtue of an interim order passed
therein, this Court has permitted the appellant to attend the Assembly, but
without any right to cast vote and to receive any emoluments.
10. In the meanwhile, respondent No. 1 filed another application
being I.A No. 7248 of 2012 on 1.11.2012 under Order 6 Rule 16 for striking
off the pleadings in paragraph 3 and 4 of the Recrimination Petition.
Appellant opposed this application by filing a reply. This application has
been allowed by the impugned order which has led to the present Civil
Appeal.
11. We may mention one more development. The appellant has filed an
application under Order 6 Rule 17 to incorporate some material facts in her
Recrimination Petition. That has been rejected by the High Court by its
order dated 23.11.2012, and the appellant has filed a separate SLP against
that order.
Submissions on behalf of the appellant:-
12. Mr. Ranjit Kumar and Ms. Pinki Anand, senior counsel appearing
for the appellant took us through the application under Order 6 Rule 16
filed by the respondent No.1, and compared it with the earlier application
filed by him under Order 7 Rule 11. It was submitted by them that the
contents of the present application under Order 6 Rule 16 were identical to
those in the earlier application filed under Order 7 Rule 11. Thus, it was
pointed out that paragraphs 1 to 9 of the application under Order 6 Rule 16
were identical to paragraphs 8 (d), 8 (e), 8(f), 8 (h), 8(i), 8 (j), 8 (k),
8(l) and 8 (m) respectively of the earlier application. These paragraphs
of the two applications specifically dealt with paragraphs 3 (A) to 3 (G)
and paragraphs
4 (A) to 4 (D) of the Recrimination Petition. Thus, if this application
under Order 6 Rule 16 is allowed, all the pleadings from paragraph 3 and 4
of the Recrimination Petition will be struck off. These paras contained
the main grounds of the Recrimination Petition, and if these were struck
off nothing will remain in the Recrimination Petition. Mr. Ranjit Kumar,
submitted that this new application is nothing but an attempt to reagitate
under a new garb the earlier application under Order 7 Rule 11 which had
been rejected. He pointed out that the High Court’s order on the
application under Order 7 Rule 11 dismissing the Recrimination Petition had
been set-aside by this Court by consent, and the Recrimination Petition was
set down for hearing. Paragraph 3 and 4 of the Order of this Court dated
2.2.2012 read as follows:-
“……
3. In course of the hearing in light of the discussion that
took place, learned senior counsel for the parties agreed for
the following order:
(i)The order dated July 14, 2011 passed by the High Court
of Madhya Pradesh, Bench at Indore, is set aside.
(ii) The Recrimination Petition filed by the present
appellant (returned candidate) under Section 97 of the
Representation of the People Act, 1951 is restored to the file
of the Election Petition No. 11 of 2009.
(iii) The High Court is requested to hear and conclude the
trial with regard to the challenge to the election of the
returned candidate in Election Petition No. 11 of 2009-Balmukund
Singh Gautam Vs. Smt. Neena Vikram Verma and others – as early
as may be possible and in no case later than May 31, 2012.
iv) In case the High Court declares the election of the
returned candidate to be void, the High Court shall then proceed
with the consideration of the Recrimination Petition and
conclude the enquiry in respect therof expeditiously and
positively by August 31, 2012.
4. The parties shall fully co-operate with the High
Court in expeditious conclusion of the trial and shall not seek
unnecessary adjournments.
………………..”
13. Mr. Ranjit Kumar, therefore submitted that since the
Recrimination Petition has been restored to the file by an order of this
Court, it was expected that the submissions therein had to be gone into and
decided. This Hon’ble Court had passed its order on 2.2.2012 in terms of
the agreement arrived at between the parties. The application under Order
6 Rule 16 was filed on 1.11.2012 which was 9 months after the said consent
order. This was also in the teeth of the direction by this Court to
dispose of the Recrimination Petition expeditiously, and in fact all
parties had specifically agreed before this Court to fully cooperate with
the High Court in expeditious disposal.
Submissions on behalf of the respondent No.1:-
14. Mr. P.P. Rao and Mr. A.V. Savant, learned senior counsel
appeared for the respondent No. 1. Mr. Rao submitted that the nature of an
application under Order 6 Rule 16 was different from the one under Order 7
Rule 11. Order 6 Rule 16 was to strike out those pleadings which were
unnecessary, scandalous, frivolous or vexatious. As against that, Order 7
Rule 11 dealt with a situation where a plaint did not disclose any cause of
action. Mr. Rao submitted that the Supreme Court Order dated 2.2.2012 did
not bar filing of the application under Order 6 Rule 16 CPC for striking
off unnecessary or scandalous pleadings. In support of his submission that
the scope of the two provisions was different, he relied upon paragraph 18
of the judgment of this Court in Sopan Sukhdeo Sable and Ors. Vs. Assistant
Charity Commissioner and Ors. reported in 2004 (3) SCC 137 which is to the
following effect:-
“18. As noted supra, Order 7 Rule 11 does not justify
rejection of any particular portion of the plaint. Order 6 Rule
16 of the Code is relevant in this regard. It deals with
“striking out pleadings”. It has three clauses permitting the
court at any stage of the proceeding to strike out or amend any
matter in any pleading i.e. (a) which may be unnecessary,
scandalous, frivolous or vexatious, or, (b) which may tend to
prejudice, embarrass or delay the fair trial of the suit, or,
(c) which is otherwise an abuse of the process of the court.”
15. Paragraph 3 of the Recrimination Petition was concerning the
alleged criminal activities on the part of the respondent No.1. Appellant
has contended in this paragraph that the respondent No.1 had not disclosed
that he was accused of various offences, and this non-disclosure was
contrary to the requirement under Section 33A of the R.P. Act, 1951. The
apellant has therefore, submitted that if the respondent No.1 was to be
elected, the election would be void. Mr. Rao, however, pointed out that
this section requires the candidate to furnish the information as to
whether he is accused of any offence which is punishable with imprisonment
for two years or more in a pending case, and in which a charge has been
framed by a competent court. The particulars given by the appellant did
not indicate that any charge had been framed against the respondent in any
of those cases.
16. With respect to the allegations of criminality it was submitted
that the election petition cannot be entertained, merely on the basis of
general allegations of criminality unless a specific case as required by
Section 33A was made out. The following observations of this Court from
paragraph 8 in Jyoti Basu and Ors. Vs. Debi Ghosal and Ors. reported in
1982 (1) SCC 691 were pressed into service in that behalf:-
“8. A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a fundamental right
nor a common law right. It is pure and simple, a statutory
right. So is the right to be elected. So is the right to dispute
an election. Outside of statute, there is no right to elect, no
right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to
statutory limitation. An election petition is not an action at
common law, nor in equity. It is a statutory proceeding to which
neither the common law nor the principles of equity apply but
only those rules which the statute makes and applies. It is a
special jurisdiction, and a special jurisdiction has always to
be exercised in accordance with the statute creating it.
Concepts familiar to common law and equity must remain strangers
to election law unless statutorily embodied. A court has no
right to resort to them on considerations of alleged policy
because policy in such matters as those, relating to the trial
of election disputes, is what the statute lays down……..”
17. With respect to paragraph 4 (and its sub-paragraphs) of the
Recrimination Petition, Mr. Rao, submitted that this paragraph was
concerning the alleged corrupt practices on the part of the respondent
No.1. Corrupt practice is a ground available to set-aside the election
under Section 100 (1) (d) (ii) of the R.P. Act, 1951. The Recrimination
Petition is like an Election Petition, and Section 83 (1) (c) of the R.P.
Act, 1951 requires that the Election Petition shall be signed by the
petitioner and verified in the manner laid down in the CPC for the
verification of pleadings. Over and above that, the proviso to Section 83
(1) (c) lays down that where the petitioner alleges any corrupt practice,
the petition has to be accompanied by an affidavit in the prescribed form
in support of the allegation of such corrupt practice and the particulars
thereof. This affidavit has to be as per form 25, as laid down in Rule 94A
of the Conduct of Election Rules, 1961. Mr. Rao, pointed out that in the
present matter the affidavit was not made as per these requirements. He
further pointed out that this submission had been specifically raised in
the affidavit of the respondent No. 1, and the same had not been
controverted by the petitioner.
18. It was then submitted that for seeking a declaration that the
election is void on the ground of corrupt practice under Section 100 (1)
(d) (ii) of the Act, it was necessary to make out a prima facie case as
required by Section 100 (1) (d) that the result of the election, in so far
as it concerns a returned candidate, has been materially affected by the
corrupt practice. That has not been shown in the present matter.
Paragraph 11 of the judgment of this Court in Mangani Lal Mandal Vs. Bishnu
Deo Bhandari reported in 2012 (3) SCC 314 which is on sub-clause (iv) of
Section 100 (1) (d) was pressed into service in this behalf. It reads as
follows:-
“11. A mere non-compliance or breach of the Constitution or
the statutory provisions noticed above, by itself, does not
result in invalidating the election of a returned candidate
under Section 100(1)(d)(iv). The sine qua non for declaring the
election of a returned candidate to be void on the ground under
clause (iv) of Section 100(1)(d) is further proof of the fact
that such breach or non-observance has resulted in materially
affecting the result of the returned candidate. In other words,
the violation or breach or non-observation or non-compliance
with the provisions of the Constitution or the 1951 Act or the
rules or the orders made thereunder, by itself, does not render
the election of a returned candidate void Section 100(1)(d)(iv).
For the election petitioner to succeed on such ground viz.
Section 100(1)(d)(iv), he has not only to plead and prove the
ground but also that the result of the election insofar as it
concerned the returned candidate has been materially affected.
The view that we have taken finds support from the three
decisions of this Court in: (1) Jabar Singh v. Genda Lal [AIR
1964 SC 1200]; (2) L.R. Shivaramagowda v. T.M. Chandrashekar
[1999 (1) SCC 666]; and (3) Uma Ballav Rath v. Maheshwar Mohanty
[1999 (3) SCC 357]”.
19. The proposition that the verification of the petition or
Recrimination Petition has to be in the prescribed form or else the matter
cannot be gone into, was supported on the basis of the decision of a bench
of two Judges of this Court in P.A. Mohammed Riyas Vs. M.K. Raghavan & Ors.
reported in 2012 (5) SCC 511. Paragraph 47 of this judgment reads as
follows:-
“47. In our view, the objections taken by Mr P.P. Rao must
succeed, since in the absence of proper verification as
contemplated in Section 83, it cannot be said that the cause of
action was complete. The consequences of Section 86 of the
1951 Act come into play immediately in view of sub-section (1)
which relates to trial of election petitions and provides that
the High Court shall dismiss the election petition which does
not comply with the provisions of Section 81 or Section 82 or
Section 117 of the 1951 Act. Although Section 83 has not been
mentioned in sub-section (1) of Section 86, in the absence of
proper verification, it must be held that the provisions of
Section 81 had also not been fulfilled and the cause of action
for the election petition remained incomplete. The petitioner
had the opportunity of curing the defect, but it chose not to do
so.”
20. Last but not the least, with respect to the argument that the
decision on these objections can wait till the end of the trial, the
following observations in paragraph 12 in Azhar Hussain Vs. Rajiv Gandhi
reported in AIR 1986 SC 1253 were relied upon which read as follows:-
12. Learned counsel for the petitioner has next argued that
in any event the powers to reject an election petition summarily
under the provisions of the Code of Civil Procedure should not
be exercised at the threshold. In substance, the argument is
that the court must proceed with the trial, record the evidence,
and only after the trial of the election petition is concluded
that the powers under the Code of Civil Procedure for dealing
appropriately with the defective petition which does not
disclose cause of action should be exercised. With respect to
the learned counsel, it is an argument which it is difficult to
comprehend. The whole purpose of conferment of such powers is to
ensure that a litigation which is meaningless and bound to prove
abortive should not be permitted to occupy the time of the court
and exercise the mind of the respondent. The sword of Damocles
need not be kept hanging over his head unnecessarily without
point or purpose. ………..”
Rejoinder on behalf of the petitioner:-
21. The learned senior counsel Mr. Ranjit Kumar, pointed out in the
Rejoinder that Section 83(1) of the R.P. Act, 1951, required that the
Election Petition (and for that matter the Recrimination Petition), shall
contain a concise statement of the material facts which are relied upon.
In the instant case the grounds raised in the Recrimination Petition were
two-fold. Firstly, the criminality of the respondent, and secondly the
corrupt practices in which the respondent had indulged. As far as the
aspect of criminality is concerned, it was pointed that the Recrimination
Petition is required to be filed within 14 days from the date of
commencement of the trial as required under the proviso of Section 97 of
the R.P. Act, 1951. Even so, within that period the petitioner has placed
on record the material facts in paragraph 3 of the Recrimination Petition.
In paragraph 3(B) thereof the particulars of the criminal cases registered
against respondent were given in a table. The table contains the following
details:-
|SL.|Police |Section |Name of Accused |Challan No. |
|No |Station/Case| | | |
| |No. | | | |
|1. |Sadalpur/76/|147, 148, 149, |Balmukund s/o |48/2-6-1985 |
| |22-5-85 |323, 451 IPC |Ramdeosingh Gautam | |
|2. |Pithampur/35|341, 294, 323 IPC |Balmukund s/o |318/27-9-89 |
| |9/ 26.9.89 | |Ramdeosingh Gautam | |
| | | |alongwith one other | |
| | | |accused | |
|3. |Pithampur/ |294, 323, 506 IPC |Balmukund s/o |105/5-6-90 |
| |129/23-5-90 | |Ramdeosingh Gautam | |
|4. |Pithampur/ |34 Excise Act |Balmukund s/o |104/29-4-96 |
| |109/24-3-96 | |Ramdeosingh Gautam | |
| | | |alongwith two other | |
| | | |accused | |
|5. |Pithampur/40|307, 147, 148, 149|Balmukund s/o |107/18-4-98 |
| |6/24-12-97 |of IPC |Ramdeosingh Gautam | |
| | | |alongwith five other | |
| | | |accused | |
|6. |Pithampur/ |365/34 IPC |Balmukund s/o |1/18-3-2001 |
| |70/12-3-01 | |Ramdeosingh Gautam | |
| | | |alongwitho ne other | |
| | | |accused | |
|7. |Pithampur/ |147/341 IPC |Balmukund s/o |101/9-5-2007 |
| |27/29-1-2007| |Ramdeosingh Gautam | |
| | | |alognwith one other | |
| | | |accused | |
|8. |Pithampur/ |34 Excise Act |Balmukund s/o |104/29-4-96 |
| |106/24-3-96 | |Ramdeosingh Gautam | |
| | | |alongwith two other | |
| | | |accused | |
|9. |Sadalpur/ |34,36 Excise Act |Balmukund s/o |92/27-6-96 |
| |32/2-3-96 | |Ramdeosingh Gautam | |
|10.|Badnawar/ |34, 49 Excise Act |Balmukund s/o |282/31-10-96 |
| |258/21-8-96 | |Ramdeosingh Gautam | |
|11.| Badnawar/ |34,49 Excise Act |Balmukund s/o |283/31-10-96 |
| |259/21-8-96 | |Ramdeosingh Gautam | |
|12.|Indore |34 (1) (2) Excise |Balmukund s/o |2001 |
| |Police |Act |Ramdeosingh Gautam | |
| |Criminal | | | |
| |Case | | | |
| |No. 1241/01 | | | |
|13.|Sadalpur/ |379 IPC, 247(7) |Balmukund s/o |118/1-10-1986|
| |122/2-8-1985|Land Revenue Court|Ramdeosingh Gautam | |
|14.|Sadalpur/ |147, 148, 452, 506|Balmukund s/o |124/26-10-198|
| |199/13-10-86|IPC |Ramdeosingh Gautam |6 |
| | | |alongwith seven other | |
| | | |accused | |
22. In paragraph 3(E), it was placed on record that the respondent
was declared as an absconded person in a criminal proceeding by C.J.M Dhar
in a Criminal Case No. 968/96. In paragraph 3(F) it was pointed out that
the petitioner’s name was registered as a listed Gunda in the year 2004,
and the letter dated 12.1.2004 issued by S.P. Dhar to the Police Station
Pithampur in that behalf was enclosed. It was further pointed out that on
22.11.2012, the petitioner had served a notice on the respondent under
Order 12 Rule 4 of CPC to admit the facts. In the said notice, it was
specifically stated that the following criminal cases are registered
against him, in which charges have been framed, and the same are punishable
with more than 2 years imprisonment. This table reads as follows:-
|SL.|Crime No. |Section |Name of Accused |Police |
|No | | | |Station |
|1. |76/22.5.85 |147, 148, 149, |Balmukund S/o |Sadalpur |
| | |323, 451, IPC |Ramdeosingh Gautam | |
|2. |359/29.9.89 |341, 394, 323 IPC |Balmukund s/o |Pithampur |
| | | |Ramdeosingh Gautam | |
|3. |129/23.5.90 |293, 323, 506 IPC |Balmukund S/o |Pithampur |
| | | |Ramdeosingh Gautam | |
|4. |109/24.3.96 |34 Excise Act |Balmukund S/o |Pithampur |
| | | |Ramdeosingh Gautam | |
|5. |406/24.12.97|307, 147, 148, IPC|Balmukund S/o |Pithampur |
| | | |Ramdeosingh Gautam | |
|6. |70/12.3.2001|365, 34 IPC |Balmukund S/o |Pithampur |
| | | |Ramdeosingh Gautam | |
|7. |27/29.1.07 |341, 147 IPC |Balmukund S/o |Pithampur |
| | | |Ramdeosingh Gautam | |
|8. |106/24.3.96 |34 Excise Act |Balmukund S/o |Pithampur |
| | | |Ramdeosingh Gautam | |
|9. |32/2.3.96 |34, 36 Excise Act |Balmukund S/o |Sadalpur |
| | | |Ramdeosingh Gautam | |
|10.|258/21.8.96 |34, 49 Excise Act |Balmukund S/o |Badnawar |
| | | |Ramdeosingh Gautam | |
|11.|259/21.8.96 |34, 49 Excise Act |Balmukund S/o |Badnawar |
| | | |Ramdeosingh Gautam | |
|12.|Indore |31 (1) (2) Excise |Balmukund S/o |Indore Police|
| |Police |Act |Ramdeosingh Gautam |Station |
| |Criminal | | | |
| |Case No. | | | |
| |1241/01 | | | |
|13.|358/7.10.05 |294, 323, 506 IPC |Balmukund S/o |Pithampur |
| | | |Ramdeosingh Gautam | |
|14.|122/2.8.85 |379 IPC and 247(7)|Balmukund S/o |Sadalpur |
| | |MPLR Code |Ramdeosingh Gautam | |
|15.|199/13.10.86|147, 148, 452, 506|Balmukund S/o |Sadalpur |
| | |IPC |Ramdeosingh Gautam | |
| | | | | |
|16.|358/7.10.05 |294, 323, 506 IPC |Balmukund S/o |Pithampur |
| | | |Ramdeosingh Gautam |Distt. Dhar |
|17.|38/03/ |Excise Act Gujarat|Balmukund S/o |Dhanpur |
| | | |Ramdeosingh Gautam |Distt. Dahopd|
| | | |Declared Absconded |Gujarat |
|18.|358/7.10.05 |294, 323, 506, IPC|Balmukund S/o |Pithampur |
| | | |Ramdeosingh Gautam |Distt. Dhar |
|19.|38/03/ |Excise Act Gujarat|Balmukund S/o |Dhanpur |
| | | |Ramdeosingh Gautam |Distt. Dahod |
| | | |Declared Absconded |Gujarat |
|20.|239/03 |19, 1/54, |Balmukund S/o |Bhilwara |
| | |19/54-65, 19/54(a)|Ramdeosingh Gautam |Rajasthan |
| | |Excise Act |Declared Absconded | |
| | |Rajasthan | | |
|21.|19/10 |420, 181, 200 of |Balmukund S/o |Plice Raoji |
| | |IPC |Ramdeosingh Gautam |Bazar, Indore|
23. It was then pointed out that on 23.11.2013 the respondent
sought time before the learned Single Judge to file reply to this notice to
admit facts. On 4.12.2013, the learned Judge recorded that even though the
respondent had stated on 23.11.2012 that he wished to file a reply, now he
had decided to wait for the outcome of the application under Order 6 Rule
16 of CPC and, if required, to file a reply thereafter. Mr. Ranjit Kumar
pointed out that this kind of reply will mean that the documents are deemed
to be admitted, in view of the provision of Order 12 Rule 2-A of CPC. It
was therefore, submitted that the High Court could not have held that the
petitioner had not given the particulars in support of the allegations of
criminality, as required by Section 33A of the R.P. Act, 1951.
24. The second limb of the argument of Mr. Rao was that for raising
the ground of corrupt practice, full particulars of the corrupt practice
are required to be given under Section 83 (1) (b) of the R.P. Act, 1951.
Mr. Ranjit Kumar, pointed out that Section 83 (1) (b) requires one to set
forth full particulars of any corrupt practice, including as full a
statement as possible of the names of the parties alleged to have committed
such corrupt practice and the date and place of commission of each such
practice. It was therefore pointed out that in paragraph 4(A) of the
Recrimination Petition it was specifically pleaded that on 11.11.2008, at
the instance of the respondent his younger brother Rakesh Singh had
threatened the candidate of BSP namely Shri G.P. Saket, that if his
nomination form was not withdrawn he shall have to face dire consequences.
It was further pointed out that similar type of threat was given to the
election agent of the said candidate namely Shri Munnalal Diwan. A letter
dated 11.11.2008 sent to the Police Thana Pitampur was also enclosed with
the Recrimination Petition. In paragraph 4(C) it was specifically pointed
out that respondent was a liquor contractor, and during the election period
several cases were registered against him and his associates/servants
details of which were enclosed in an Annexure. A news report in Dainik
Agniban dated 5.11.2008 was also enclosed, which stated that 700 boxes of
illegal beer were seized by the Alirajpur Police, and in that case
respondent was involved. It was alleged that he was distributing the beer
bottles in the constituency, and it could amount to bribery and a corrupt
practice under Section 123 of the R.P. Act, 1951. In para 4 (D) it was
alleged that his agents /associates were found to indulge in digging bore-
well without proper permission in the constituency, which would amount to a
corrupt practice and bribery, and a copy of the information given by T.I.
Police Station dated 14.1.2009 was enclosed. Mr. Ranjit Kumar pointed out
that Section 83 (1) (b) requires one to give full particulars of the
corrupt practices as possible, and that had been done. In the facts of the
present case, the propositions from the judgments in the cases of Jyoti
Basu, Mangani Lal Mandal and Azhar Hussain (all supra) relied on behalf of
the respondent have no application.
25. The other submission on behalf of the respondent No.1 was that
the petitioner ought to prima-facie show that because of the corrupt
practice his election was materially affected. In the instant case the
appellant had won the election by just one vote, and obviously such corrupt
practice would tilt the balance one way or the other and materially affect
the result of the election.
26. The last submission of Mr. Rao was that when corrupt practices
are alleged, an affidavit is to be sworn in the prescribed form, which is
Form No. 25, and reliance was placed on paragraph 47 of the judgment of
this Court in P.A. Mohammed Riyas (supra), which stated that in the absence
of proper verification, the High Court has to dismiss the Election
Petition. Mr. Ranjit Kumar, however, pointed out from paragraph 47 quoted
above, that the petitioner in that matter had the opportunity of curing the
defects, but he had chosen not to do so, and that made the difference. He
pointed out that the absence of this affidavit is not laid down as a ground
for dismissal of the Election Petition under Section 86 of the Act, and
that has been the consistent view taken by this Court in various judgments.
27. Last but not the least, the principal submission of Mr. Ranjit
Kumar was that at the time when the Recrimination Petition was restored by
consent, nothing prevented the respondent from pointing out to this Court
that the pleadings in the Recrimination Petition were in any way defective,
unnecessary or scandalous. The respondent agreed to the Recrimination
Petition being restored, and is now trying to reagitate the very cause
under Order 6 Rule 16 of CPC which was undoubtedly impermissible as held by
this Court in K.K. Modi Vs. K.N. Modi & Ors. reported in 1998 (3) SCC 573.
He submitted that this would amount to abuse of process of court.
Consideration of the submissions:-
28. We have noted the submissions of both the counsel. As can be
seen, the application under Order 7 Rule 11 is required to be decided on
the face of the plaint or the petition, whether any cause of action is made
out or not. Once it is accepted by a party by consent that a particular
petition (in the instant case the Recrimination Petition) is to be heard by
the Court, by giving up the objection under Order 7 Rule 11, the very party
cannot be subsequently permitted to seek the striking off the pleadings
containing the cause of action under the garb that the pleadings containing
the cause of action are unnecessary, vexatious or scandalous. One is
expected to take all necessary pleas at the same time. The party concerned
is expected to raise such a contention at the time of passing of the Court
order (consent order in the present case) or seek the liberty to raise it
at a later point of time that some of the pleadings are unnecessary or
vexatious or scandalous. No Court is expected to permit any matter to be
raised which might and ought to have been made ground of defence or attack,
once the same is relinquished by the party concerned. The learned Single
Judge ought to have noted this basic principle of any litigation. Reliance
on the judgment in the case of K.K. Modi (supra) is quite apt in this
behalf.
29. That apart, even when we look to the objections raised in the
present matter under Order 6 Rule 16, the same is based on the requirement
of Section 83 of the R.P. Act, 1951 that the applicant is required to place
material facts before the Court. As far as the allegation of criminality
is concerned, in our view sufficient material facts were placed on record
alongwith the Recrimination Petition. Subsequently, a notice to admit
facts was given, wherein, particulars of specific cases were given,
wherein, the charge-sheets were filed for the charges which would result
into imprisonment of 2 years or more, as required by section 33A of the
R.P. Act, 1951. The respondent chose not to reply to this notice. In fact
the learned Judge ought to have drawn an adverse inference, but he failed
in doing so. As far as the ground of corrupt practice is concerned, as
can be seen from the pleadings quoted above, on that aspect also material
facts were placed on record as rightly pointed out by Mr. Ranjit Kumar.
30. With reference to the observations in paragraph 47 of the
judgment in the case of P.A. Mohammed Riyas (supra), we may note that way
back in the case of Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore
and Anr. reported in AIR 1964 SC 1545 a Constitution Bench of this Court
has in terms held that a defect in the verification in the matter of
Election Petition can be removed in accordance with the principles of CPC,
and that it is not fatal to the Election Petition. This decision has been
referred and followed by this Court time and again. Thus in H.D. Revanna
Vs. G. Puttaswamy Gowda and Ors. reported in 1999 (2) SCC 217, this Court
observed as follows in paragraph 15:-
“15. In Murarka Radhey Shyam Ram Kumar V. Roop Singh
Rathore a Constitution Bench has held in unmistakable terms that
a defect in the verification of an election petition as required
by Section 83(1)(c) of the Act was not fatal to the
maintainability of the petition and that a defect in the
affidavit was not a sufficient ground for dismissal of the
petition. Another Constitution Bench held in Ch Subbarao V.
Member, Election Tribunal Hyderabad that even with regard to
Section 81(3), substantial compliance with the requirement
thereof was sufficient and only in cases of total or complete
non-compliance with the provisions of Section 81(3), it could be
said that the election petition was not one presented in
accordance with the provisions of that part of the Act.”
This Court has in Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and Ors.
reported in 2012 (7) SCC 788, reiterated the law in Murarka Radhey Shyam
(supra). Paragraph 26 of this judgment reads as follows:-
“26. We may also refer to a Constitution Bench decision of
this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh
Rathore where this Court held that a defective affidavit is not
a sufficient ground for summary dismissal of an election
petition as the provisions of Section 83 of the Act are not
mandatorily to be complied with nor did the same make a petition
invalid as an affidavit can be allowed to be filed at a later
stage or so. Relying upon the decision of a three-Judge Bench
of this Court, in T. Phungzathang v. Hangkhanlian [2001 (8) SCC
358] this Court held that non-compliance with Section 83 is not
a ground for dismissal of an election petition under Section 86
and the defect, if any, is curable as has been held by a three-
Judge Bench of this Court in Manohar Joshi v. Nitin Bhaurao
Patil [1996 (1) SCC 169] and H.D. Revanna v. G. Puttaswamy Gowda
[1999 (2) SCC 217].”
31. In view of what is stated above, the order passed by the
learned Single Judge in allowing the application of the first respondent
under Order 6 Rule 16 of CPC was clearly untenable and bad in law. The
learned Single Judge of the High Court could not have entertained the
application under Order 6 Rule 16 when this Court had restored the
Recrimination Petition to the file of that Court by consent in order to
decide it expeditiously. The learned Judge has erred in holding that the
pleadings in paragraph 3 and 4 of the Recrimination Petition were vague,
vexatious, non-specific and without any material facts. The appeal is
therefore allowed. The impugned order is set-aside. The learned Judge of
the High Court will now proceed to decide the Recrimination Petition as
filed by the petitioner expeditiously. The parties will bear their own
cost of litigation.
…………………………..J.
( H.L. Gokhale )
……………………………J.
(Madan B. Lokur)
New Delhi
Dated: April 12, 2013
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