Rajasthan High Court - Jodhpur
Sardar Khan Khokhar vs Devji Patel & Ors on 12 October, 2011
Equivalent citations: AIR 2012 RAJASTHAN 22, (2012) 111 ALLINDCAS 313 (RAJ), 2012 (111) ALLINDCAS 313, (2012) 1 WLC(RAJ) 27, (2012) 1 RAJ LW 423
Author: Govind Mathur
Bench: Govind Mathur
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
*****
S.B. Interlocutory Application No.15089/2009 In S.B. Election Petition No.04/2009 ***** Sardar Khan Khokhar v.
Shri Devji Patel & Ors.
*****
Date of Order :: 12 th October, 2011
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. V.D.Gaur ]
Mr. Bhanu Bohra] for the petitioner. Mr. N.M.Lodha, Senior Advocate, assisted by Mr. V.D.Dadhich, for the respondent No.1.
***** REPORTABLE This order shall dispose of an application preferred by the respondent returned candidate as per the provisions of Order VII Rule 11 Code of Civil Procedure.
The facts necessary to be noticed are that the petitioner, an elector, being aggrieved by the election of the respondent No.1, as a Member Parliament from 18 (Rajasthan) Jalore Parliamentary Constituency in general election, 2009, presented an 2 election petition alleging improper acceptance of nomination, that materially effected result of the election.
As per the election petitioner, the nomination papers filed by the respondent No.1 though having certain omissions and defects of substantial nature were accepted improperly by the Returning Officer. The defects and omissions so pointed out are as follows:-
"(a). That column marked (ii) in Part III A (Bhag 3ka-in Hindi) in all the aforesaid four nomination papers was left blank, which is to the following effect :-
"Whether the candidate - has been convicted for any other offence(s) for which he has been sentenced to imprisonment for two years or more."
The above omission and non-disclosure by the respondent No.1 amounted to the serious and material non-compliance with the mandatory provisions contained in Section 33 (1) of the RP Act, 1951 and also amounted to a defect of substantial character within the scope and ambit of Section 36 (4) of the RP Act, 1951.
(b). Para 1 of the affidavit to be filed in terms of the order of the Election Commission of India bearing No.3/ER/2003/JS-II dated 27.3.2003 (Annexure-I to the nomination paper) was totally scored out thereby refusing to give the information detailed 3 therein. The above affidavit was required to be filed in terms of Section 33 A of the RP Act, 1951. Further, as per para 19.2 of Chapter V of the Handbook of Returning Officers published by the Election Commission clearly laid down that "no column of the affidavit should be left blank or filled by just tick/dash marking. If the information asked for in a column is nil or not applicable to the particular candidate, then he should write 'NIL' or 'Not applicable' in that column." Accordingly, the affidavit filed by the respondent No.1 was patently defective and untenable affidavit and resulted into serious non-compliance with the provisions contained in Section 33 A of the RP Act, 1951 and the above instructions of the Election Commission and therefore amounted to a defect of substantial character within the scope and ambit of Section 36 (4) of the RP Act, 1951."
By the application under consideration, the applicant respondent No.1 is seeking rejection of the election petition being vexatious and not disclosing any cause of action. It is submitted that the petitioner with an ulterior motive and with a view to mislead this Court, has not sufficiently quoted the contents of nomination paper filed by the applicant respondent. According to the respondent No.1, he gave all necessary details as required, in "Part-III-A" of the nomination paper. It is asserted that the details desired under Part-III-A(i) and (ii) are composite with options, therefore, marking of "No" at one single 4 point was sufficient compliance. While meeting with the second omission alleged, it is submitted that in view of the contents of para 1 of the affidavit the remaining part was rightly scored out and marked as "NOT APPLICABLE" by the applicant.
The application is opposed by the petitioner on the count that this Court is not supposed to see the documents annexed with the election petition at this stage and require to confine itself with the pleadings only. The election petition is sufficiently disclosing the cause of action and that requires adjudication on merits by recording necessary evidence.
Heard counsel for the parties.
Before coming to the other merits of the issue involved, I would like to make it clear that as per Section 83 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act of 1951") the schedule or annexures, if made to the election petition, are its integral part. As per Section 83 of the Act of 1951, an election petition-
"(a)shall contain a concise statement of the material facts on which the petitioner relies;5
(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."
The mandatory need of putting signatures and verifications in the same manner as the petition is required, makes it clear that the schedule or annexure too are part of the election petition and, therefore, they are open to be looked into while considering an application preferred as per Order VII Rule 11 Code of Civil Procedure.
In M. Karunanidhi v. H.V. Handa & Ors., reported in AIR 1983 SC 558, Hon'ble Supreme Court 6 while reversing finding of the High Court held that the annexures or the schedule are not mere a piece of evidence but are integral part of the petition. In the case aforesaid the Apex Court discussed the issue as under:-
"41.It is obvious that the photograph was a part of the averment contained in paragraph 18(b). In the absence of the paragraph the averment contained paragraph 18(b) would be incomplete. The photograph referred to in paragraph 18(b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of sub-section (3) of Sec.81 of the Act by failure to serve the appellant with a copy of the election petition. In Ch. Subbarao's case (AIR 1964 SC 1027), supra, the Court held that if there is a total and complete non-compliance with the provisions of sub-sec.(3) of Section 81, the election petition could not be treated an "election petition presented in accordance with the provisions of this Part" within the meaning of Section 80 of the Act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan.
42.The conclusion is irresistible that the words "copies thereof" in sub-sec.(3) of Section 81 read in the context of sub-section (2) of Sec.83 must necessarily refer not only to the election petition proper but also to schedules or annexures thereto containing 7 particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in paragraph 18
(b) could not be treated to be integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub-sec.(3) of Section 81 of the Act."
In the case in hand the grounds taken in para 15.4 to 15.8 of the election petition are founded on the document Anx.2 i.e. a certified copy of the nomination paper in question alongwith all its enclosures. The cause sought to be agitated is based entirely on this document, hence I am of considered opinion that this document is open for perusal in the same manner as the other contents of the election petition are, for adjudication of the application under consideration. The cause of action of the petitioner, thus, deserves to be assessed by perusal of all the contents of the election petition including the document Anx.2.
Now coming to the scope of Order VII Rule 11 Code of Civil Procedure in present context, suffice to refer that in T. Arvindandam v. T.V. Satyapal and 8 Anr., reported in AIR 1977 SC 2421, Hon'ble the Supreme Court discussed and held as under:-
"5.We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O. X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the part at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assasination of Mahatma Gandhi "It is dangerous to be too good."9
6.The trial Court in this case will remind itself of S.35-A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned."
The same preposition was applied by the Apex Court in Rajnarain Sarin v. Laxmi Devi & Ors., reported in (2002)10 SCC 501.
In ITC Ltd. v. Debts Recovery Appellate Tribunal & Ors., reported in AIR 1998 SC 634, appellant applied for rejection of plaint on basis of there being no valid cause of action against him. The Debt Recovery Tribunal rejected the application and this rejection was confirmed by the High Court. The Supreme Court found decision of Debt Recovery Tribunal as well as of High Court erroneous. The Apex Court held that the basic question to be decided while dealing an application filed under Order VII Rule 11 of the Code is whether a real cause of action has been set out in the plaint, or some thing purely illusory has been set in view to get out of Order VII Rule 11 of the Code.
The Supreme Court in Azhar Hussain v. Rajiv Gandhi, reported in (1986) Supp SCC 315, in context to 10 Order VII Rule 11, observed that the purpose of conferment of such power 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.
In view of the law laid down by Apex Court in the judgments referred above, it can very well be said that there must be a cause of action to enforce the claim made in the plaint/petition and it should be specifically disclosed in the plaint/petition. A plaint/petition not disclosing a cause of action or if i.e. illusory or vexatious or that is bound to be abortive, then a Court should reject such plaint/petition without wasting any further time for adjudication by conducting trial. The authority given to the courts vide Order VII Rule 11 is having great significance in extending protection to the people from meaningless, vexatious and illusory litigation, and also in keeping the adjudicating forum out from the suffocation due to futile and non-productive litigation. The courts have to play this protective role to widen the space necessary for adjudication of genuine cause.
What does the term "cause of action" mean and how i.e. pleaded in the election petition under consideration, is the issue that deserves to be discussed now.
11
The phrase "cause of action" is not interpreted in the Code of Civil Procedure.
Nonetheless its meaning has been adequately settled by several judicial pronouncements. It is a bundle of essential facts and refers entirely to the media upon which the plaintiff/petitioner asks to arrive at the conclusion in his favour. The "cause of action" is either a legal claim or a claim in equity. The legal claims amply those base in law of a particular jurisdiction (reference "cause of action" in India - Tarun Jain - http://ssrn.com).
The facts constituting a "cause of action"
must be pleaded to establish its fundamental elements and those are :-
(1)the right or title of plaintiff/petitioner;
(2)the wrongful act violating right/title/law of the defendant; and (3)the consequent damage whether nominal or substantial.
The plaintiff making a claim has to plead all material facts upon which his right to relief is based and all the essentials noticed above must be available in definite terms therein. 12
As already stated, on meaningful reading of the plaint, if it is manifestly vexatious and meritless, where it creates an illusion of the "cause of action" or it germinates a meaningless and non- productive litigation, it should be rejected. In the case in hand, the entire edifice of the petition is founded on the details given in "Part-III-A" of the nomination papers. The nomination paper in question is as per form "2-A" given under the Conduct of Election Rules, 1961 (hereinafter referred to as "the Rules of 1961"). The "Part-III-A" of the form aforesaid is in following format:-
"PART III A (To be filled by the candidate) Whether the candidate--
(i) has been convicted-- ]
|
(a) of any offence(s) under sub-section (1);| or | |
(b) for contravention of any law specified | in sub-section (2), of section 8 of the | Yes/No. | Representation of the People Act, 1951 | (43 of 1951); | | or | |
(ii) has been convicted for any other | offence(s) for which he has been sentenced | to imprisonment for two years or more. ] If the answer is "Yes", the candidate shall furnish the following information:
(i) Case/first information report No./Nos............................
(ii) Police station(s).......................District(s)............................13
State(s)........................
(iii) Section(s) of the concerned Act(s) and brief description of the offence(s) for which he has been convicted.............
(iv) Date(s) of conviction(s)...................................................................
(v) Court(s) which convicted the candidate.....................................
(vi)Punishment(s) imposed [indicate period of imprisonment(s) and/or quantum of fine(s)]............................
(vii) Date(s) of release from prison.......................................................
(viii) Was/were any appeal(s)/revision(s) filed against above conviction(s).....................................Yes/No
(ix) Date and particulars of appeal(s)/application(s) for revision filed....................................................
(x) Name of the court(s) before which the appeal(s)/ application(s) for revision filed..................................
(xi) Whether the said appeal(s)/application(s) for revision has/have been disposed of or is/are pending.......
(xii) If the said appeal(s)/application(s) for revision has/have been disposed of--
(a) Date(s) of disposal.........................................
(b) Nature of order(s) passed................................
Place:
Date : (Signature of Candidate)."
The sole foundation of the cause sought to be acted upon is that the respondent No.1 has marked "NO" for question (i)(a)(b), but nothing is said about query No.(ii). From perusal of the proforma given it is apparent that for the queries No.(i)(a)(b) and (ii) a composite reply is desired by marking "YES/NO". The respondent No.1 has marked "NO" and i.e. definitely for all the queries concern. He has done whatever is required under the statutory proforma. A separate marking would have been desired, only in the event of different reply for different query. If the answer to all the composite queries is same then a common marking is sufficient and is as per the formate prescribed in the Rules.
14
The other ground of the petitioner is with regard to struck off all the columns in the affidavit i.e. prescribed as per Rule 4-A of the Rules of 1961. The affidavit concerned is prescribed as form 26 under the Rules of 1961. The respondent in the affidavit aforesaid stated on oath that he was not accused of any offence(s) punishable with the imprisonment for two years or more in a pending case(s) in which a charge(s) has/have been framed by the court(s) of competent jurisdiction. The other details which are supposed to be given come into picture only if the deponent is accused of any offence(s) punishable with the imprisonment for two years or more. The queries pertaining to those details were scored out by the respondent No.1 with specific assertion that the same were not applicable. Suffice to note here that the form 26 quite unambiguously instructs under a note that "the columns in this Form which are not applicable to the deponent may be struck off". In view of the statement made by the respondent in para 1 of the affidavit to the effect that he was not an accused in any case pertaining to the offences punishable with the imprisonment for two years or more, he was not supposed to give any further details asked for. He, thus, rightly struck off the remaining queries with assertion "NOT APPLICABLE".
As such, no wrong has been committed by the respondent No.1, while filing the nomination form. 15 Demanding something more than the statutory obligation, is absolutely undesirable and unwarranted. The acceptance of whatever stated in the election petition too will not change the complexion of the matter in any manner. The omission alleged is not at all a wrongful act violating any right of the petitioner or any law, thus, it can very safely be said that under the election petition the "cause of action" disclosed is no cause of action and whatever effort is made to agitate the cause is absolutely vexatious, illusory, meaningless and is not going to deliver any result even by trying the issue at full length. As such, the trial of the election petition shall be a fruitless and meaningless exercise.
Accordingly, the application preferred under Order VII Rule 11 Code of Civil Procedure deserves acceptance. The same, therefore, is allowed, consequently, the election petition is rejected.
( GOVIND MATHUR ),J.
kkm/ps.