Supreme Court - Daily Orders
Abraham T.J. vs Ashok Kheny on 19 July, 2016
Bench: Jagdish Singh Khehar, Kurian Joseph, Arun Mishra
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.6588 OF 2016
(Arising out of SLP(C)No.1471 of 2015)
ABRAHAM T.J. .......APPELLANT
VERSUS
ASHOK KHENY .......RESPONDENT
O R D E R
Leave granted.
An election petition was filed by the appellant before this Court, wherein, he assailed the election of the returned candidate namely, Ashok Kheny (the respondent herein). During the pendency of the above election petition, the returned candidate – Ashok Kheny, moved an application under Order VI Rule 16(a) and (c) of the Code of Civil Procedure, praying for the striking out all pleadings, on the ground that they constituted an abuse of the process of the Court. This assertion was sought to be raised by the respondent inter alia on two grounds; firstly, because in the election petition, it was alleged, that the respondent had acquired the citizenship of the United State of America, and as such, was Signature Not Verified ineligible to contest election to the Karnataka State Legislative Digitally signed by SATISH KUMAR YADAV Date: 2016.07.28 17:26:08 TLT Reason: Assembly by virtue of Article 173 of the Constitution of India. The second ground raised by the appellant against the respondent was, 2 that the respondent was engaged in a contract with the Government of Karnataka. Insofar as the instant aspect of the matter is concerned, the assertion made by the appellant was, that the respondent was the Managing Director of M/s Nandi Infrastructure Corridor Enterprises (NICE), which had an undisputed contract with the Government of Karnataka, and as such, the respondent had a beneficial interest under a Government contract. Based on the aforesaid factual position, the appellant had relied upon Section 9A of the Representation of the People Act, 1950, to contend, that the respondent was ineligible to contest the elections.
During the course of hearing of the instant application under Order VI Rule 16, it was the contention of the respondent, that details in the nature of material particulars had not been laid out in the pleadings, to show that the respondent was a citizen of the United States of America, and/or that the respondent had actually a beneficial interest in the government contract, referred to above. It is in these circumstances, that the claim of the respondent was considered in furtherance of the above application filed by him.
Through the impugned order, dated 05.09.2014, the High Court arrived at the conclusion, that the claim raised by the respondent under Order VI Rule 16(a) and (c) was fully justified, as no material particulars had been disclosed in the election petition, insofar as the issues referred to above are concerned.
In the facts and circumstances of the present case, we are of the view, that it is not necessary to delve deep in the issue canvassed at the hands of the appellant, on account of the 3 solitary averment made by the appellant, that the respondent, in addition to the application filed by him under Order VI Rule 16, had also, filed another application under Order VII Rule 11(a) and
(d), wherein, he has also sought the rejection of the election petition. In the said application also, the grounds raised by the respondent were the same as those which had been raised by him in his application under Order VI Rule 16. The High Court had passed an order dated 08.04.2014 disposing of the above application, wherein, in paragraph 18, the High Court had concluded as under:
“18. In view of this decision I find no substance in the contention of the learned Senior Counsel for the respondent that this court has no jurisdiction to go into the question of citizenship of the respondent. This court after full fledged trial will have to record a finding on that aspect of the matter. With regard to the allegation that the respondent has incurred disqualification under Section 9-A of the Act, averments made in the petition prima facie case to the effect that the contract with the Government of Karnataka for construction, maintenance and operation of Road has been entered into by a company in which the respondent holds major holding. Question as to whether on the basis of such contract, the respondent has incurred disqualification under Section 9-A of the Act will have to be decided by this Court at the trial of this Petition.” We are of the view, that when a clear, emphatic and unambiguous conclusion had been recorded by the High Court, while disposing of the application under Order VII Rule 11(a) and (d), the High Court should not have ordinarily recorded an absolutely contrary conclusion, while disposing of the application under Order VI Rule 16. And in case it desired to do so, the High Court should have recorded reasons for taking a different view, by taking into 4 consideration the order passed in the other applications. Whilst it needs to be acknowledged, that the provisions whereunder the two applications were filed have different parameters, yet if the pleas canvassed are the same, and the basis of the challenge is founded on the same fact, it was not open to the High Court, while passing the impugned order under Order VI Rule 16, to overlook and ignore the order dated 08.04.2014, passed by the High Court, while disposing of the application under Order VII Rule 11(a) and (d).
In view of the above, the impugned order passed by the High Court dated 05.09.2014 is hereby set aside. The determination of the said application filed by the appellant under Order VI Rule 16(a) and (c) of the Code of Civil Procedure, is remanded back to the High Court, for re-adjudication on merits, after taking into consideration the order passed by the High Court dated 08.04.2014 (passed while disposing of the application filed by the appellant under Order VII Rule 11(a) and (d) of the Code of Civil Procedure).
The instant appeal is allowed in the above terms.
..........................J. (JAGDISH SINGH KHEHAR) ..........................J. (KURIAN JOSEPH) ..........................J. (ARUN MISHRA) NEW DELHI;
JULY 19, 2016.5
ITEM NO.9 COURT NO.3 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).1471/2015 (Arising out of impugned final judgment and order dated 05/09/2014 in IA No.4/2013 in EP No.12/2013 passed by the High Court of Karnataka at Bangalore) ABRAHAM T.J. Petitioner(s) VERSUS ASHOK KHENY Respondent(s) (Interim relief and office report) Date : 19/07/2016 This petition was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR HON'BLE MR. JUSTICE KURIAN JOSEPH HON'BLE MR. JUSTICE ARUN MISHRA For Petitioner(s) Petitioner-in-person For Respondent(s) Mr.S.M.Chandrashekar, Sr.Adv.
Mr.S.B.Mathapati, Adv.
Mr.G.K.Deshpande, Adv.
Mr.Girish G.N., Adv.
Mr. Anup Jain, Adv.
Upon hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order.
(SATISH KUMAR YADAV) (RENUKA SADANA)
AR-CUM-PS COURT MASTER
(Signed order is placed on the file)