Madras High Court
Muthuram vs Notgiven on 21 January, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21/01/2013 CORAM THE HON'BLE MR.JUSTICE K.VENKATARAMAN OA.215 of 2012 Periakaruppan vs. Raja Kannaappan FOR PETITIONER : Muthuram FOR RESPONDENT : notgiven ORDER:
ORIGINAL APPLICATION No.215 of 2012 in ELECTION PETITION No.11 of 2011 The present application is taken out by the applicant, the first respondent in the election petition in E.L.P.No.11 of 2011 to strike off the pleadings in paragraphs Nos.5, 9 to 12 and 22 to 47 of the election petition as being vague, vexatious, without material facts and material particulars and consequently, reject the election petition as being bereft of necessary cause of action for trial.
2. For the sake of convenience, the applicant, who is the first respondent in the election petition is referred as "returned candidate", the election petitioner is referred as "election petitioner" and the other respondents are referred as per their original capacity in the election petition.
3. In the affidavit in support of the said application, the returned candidate has stated as follows:-
(a) The election petition is bereft of any material facts and is liable to be rejected. In paragraph 5 of the election petition, the election petitioner had alleged that the returned candidate managed to secure victory in the election by corrupt practice and by bringing upon undue influence upon the District Election Officer and the Returning Officer, in his capacity as the then Cabinet Minister. Further, he has alleged that the District Election Officer and the Returning Officer made ready a well designed ground for ensuring the victory by manipulating the Electronic Voting Machine. The entire averments in the said paragraph are vague and unsupported by material facts and hence, the same is liable to be rejected.
(b) The election petitioner had made an allegation that he had brought undue influence on the District Election Officer. However, the said Election Officer was not made as a party to the election petition and hence, the same is liable to be rejected.
(c) Since the election petitioner failed to aver what are the misdeeds, if any, committed by the returned candidate in connivance with the District Election Officer and the Returning Officer to manipulate the Electronic Voting Machine, paragraph 8 is liable to be struck off.
(d) Though the election petitioner has alleged in paragraph 9 of the election petition that the Electronic Voting Machines were kept in a class room without any security, the said allegation is made only for the purpose of this election petition. All the candidates including the election petitioner were satisfied with the safety and security of the Electronic Voting Machines. The election petitioner had not given any material facts and sufficient particulars as to who had done the deliberate act of not keeping the Electronic Voting Machines in a safe manner to facilitate free ingress into the room. Hence, because of non-disclosure of any material facts, paragraph 9 is liable to be struck off.
(e) Though in paragraph 10 of the election petition, the election petitioner has alleged that on 12.5.2011, his party man led by one Karuppiah, caught a person with an Electronic Voting Machine in his possession, entering into the room where Electronic Voting Machines were kept, he had not pleaded at what time the incident took place, who were all present at that time and as to who has recorded the alleged incident and who had informed him about the alleged incident and hence, the said allegation is liable to be struck off.
(f) As regards paragraph 11, the election petitioner had not stated any material facts and full particulars as to how the presence of the alleged intruder had vitiated the election process and hence, the said paragraph is liable to be struck off.
(g) The averments made in paragraph 12 of the election petition that two unauthorized intruders manipulated the Electronic Voting Machines to materially affect the election of the election petitioner by improper acceptance of votes in favour of the returned candidate and rejection of votes against the election petitioner are vague and are liable to be struck off.
(h) The allegation made in paragraph 22 of the election petition is inconsistent with the allegation made in paragraph 9. The averment made in paragraph 22 is liable to be struck off as the election petitioner failed to give any material facts as to how the death of the Constable by name Shube Singh after declaration of the result would have an impact and how the incident would materially affect the election petitioner.
(i) Paragraph 13 of the election petition is liable to be struck off as the election petitioner failed to aver what are the discrepancies found and how the said discrepancies had resulted in vitiating the election process. Paragraph 17 is also liable to be struck off since the election petitioner had made allegations without any material facts that the signatures of the polling agents in Electronic Voting Machines and the signatures of the polling agents found in form-17 C differs. Paragraph 21 of the election petition is liable to be struck off for bereft of any material facts. It is false to allege that the agents of the returned candidate and the returned candidate started creating ruckus in counting hall and indulged in capturing the counting process. The said allegation does not have any legal footing.
(j) The averments made in paragraphs 23, 24, 25, 26 and 28 to 45 speak only about the discrepancies on the basis of the alleged material supplied to him by the 12th respondent. The election petitioner failed to aver or plead any material facts to the effect as to how the copies alleged to have been supplied to him will materially affect the election. In the absence of any pleading to that effect, the said paragraphs are liable to be struck off.
(k) As far as paragraphs 46 and 47 are concerned, since the returned candidate declared all his holdings as on the date of filing of the nominations, the same are liable to be struck off.
Therefore, the returned candidate seeks for striking off the aforesaid paragraphs in the election petition and to reject the election petition.
4. Counter affidavit was filed on behalf of the election petitioner, which contains the following statements:-
(a) The present application is liable to be dismissed since the election petitioner has given full particulars of the corrupt practice resorted to by the returned candidate in the election petition.
(b) The constable by name Shube Singh, who was in security duty, was shot dead within one hour from the time of announcement of results, and hence, it strongly indicated that he was done away with only to cover up the illegal activities.
(c) What is given in paragraph 11 of the election petition is in continuation of paragraph 10 wherein, the election petitioner has given full particulars beyond what had happened at the time when the counting of votes began. All the material facts and material particulars have been furnished as to what had happened at the time of counting of votes.
(d) The election petitioner has clearly pleaded the unauthorized entry of a person with Electronic Voting Machine on 12.5.2011 and the entry of an intruder into the counting area at the time of counting on 13.5.2011, which is a clear violation of Rule 53 of the Conduct of Election Rules.
(e) The averments made in paragraph 13 of the election petition are a presage of the long list of discrepancies not only in the identification of the Electronic Voting Machines but also of the paper seals. With respect to the allegations made in paragraph 11, a mere withdrawing of the allegations in respect of polling station No.273 by a letter addressed to the 12th respondent, it would not wash off in entirety the allegations made in paragraph 17 of the main petition.
(f) Insofar as the allegations made in paragraph 12 of the affidavit seeking to strike off paragraph 21 of the main petition are concerned, the election petitioner has pleaded material facts in paragraph 21 categorically stating that the District Election Officer and the Returning Officer though stated that they had sent a report to the election Commission of India regarding manipulations in the Electronic Voting Machines, they were not in the know of things as to what sort of report they had sent and it was only at 10.45 p.m., the Returning Officer gave a notice that the counting of votes would commence.
(g) In paragraphs 23, 24, 25, 26 and 28 to 45, the election petitioner has highlighted the discrepancies on the basis of materials supplied by the Returning Officer to him. Therefore, it cannot be said that no material facts have been pleaded.
Thus, the counter affidavit seeks for the dismissal of the application.
5. On the basis of the above pleadings, I have heard Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the returned candidate assisted by Mr.D.Ravichandar and Mr.P.N.Prakash, learned counsel appearing for the election petitioner.
6. The present application is taken out by the returned candidate to strike off the pleadings in certain paragraphs of the election petition and consequently, to reject the election petition.
7. The main ground that has been taken in support of the application is that the allegations made by the election petitioner in the election petition are bereft of particulars, vague, vexatious and without material facts and material particulars.
8. Before adverting to the said issue, it would be useful to refer certain provisions of the Representation of the People Act, 1951 (herein after referred as the Act).
(i) Section 81 of the Act speaks of presentation of the election petition. It reads as follows:-
" 81. Presentation of petitions:- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and dates of their election are different, the later of those two days.
Explanation:- In this sub-section, elector means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petitioner and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
(ii) Section 82 of the Act refers about the parties to the election petition and the same is extracted hereunder:-
82. Parties of the petition:- A petitioner shall join as respondents to his petition
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.
(iii) Section 83 of the Act envisages the contentions to be raised in the election petition and the same is extracted hereunder:-
83. Contents of petition:- (1) An election petition--
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof."
(iv) Section 87 of the Act contemplates the procedures to be followed during the trial and the same is extracted hereunder:-
"87. Procedure before the High Court:- (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suit;
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition."
9. Thus, section 81 of the Act contemplates that an election petition calling in question of any election has to be presented on one or more grounds specified in sub section (1) of section 100 and section 101 by any candidate or an elector. Section 82 envisages that when the election petitioner in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates thereon shall be made as a party. The requirement of section 83 of the Act is that an election petition shall contain a concise statement of the material facts on which the election petitioner relies and shall set forth the full particulars of any corrupt practice which the election petitioner alleges. Section 100 envisages the grounds for declaring the election to be void. Section 123 of the Act defines what is corrupt practice.
10. The law on this aspect as held by the Honble Apex Court has to be seen before answering whether the election petitioner has filed the election petition giving material particulars and material facts to support his case.
(A) In 1999 (3) Supreme Court Cases 267 D.Ramachandran v. R.V.Janakiraman and others, it has been held by the Honble Apex Court as follows:-
"In all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or a triable issue as such. The Court cannot probe into the facts on the basis of the controversy raised in the counter."
(B) In 2007 (3) Supreme Court Cases 617 Virender Nath Gautam v. Satpal Singh and others, the Honble Apex Court has held as follows:-
" B.Election Election Petition Contents "Full particulars of any corrupt practice" to be set for the if full particulars are lacking, petition can be permitted to be amended and amplified but cannot be dismissed Representation of the People Act, 1951, Ss.83(1)(b) & 86. Held:
An election petition must contain a concise statement of "material facts" on which the petitioner relies. All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by Section 83(1)(a) of the RP Act read with clause(a) of Rule 11 of Order 7 CPC.
The expression "material facts" has neither been defined in the Act nor in the Code. According to the dictionary meaning, "material" means "fundamental", "vital", "basic", "cardinal", "central", "crucial", "decisive", "essential", "pivotal", "indispensable", "elementary" or "primary". The phrase "material facts", therefore may be said to be those facts upon which a party relies for his claim or defence. In the other words, "material facts" are facts upon which the plaintiff's cause of action or the defendant's defence depends. "Material facts" are primary or basic facts which must be pleaded by the plaintiff' or by the defendant in support of the case set up by him either to prove his cause of action or defence.
What particulars could be said to be "material facts" would depend upon the facts of each case and no rule of universal application can be laid down. It is however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be sated in the pleading by the party.
The election petition should also contain "full particulars" of any corrupt practice that the petitioner alleges. A distinction between "material facts" and "particulars", however, must not be overlooked. "Particulars", on the other hand are details in support of material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. "Particulars" thus ensure conduct of fair trial and would not take the opposite party by surprise.
The High Court dismissed the petition inter alia on the ground that paras 8(i) to (iv) lacked in material particulars. Apart from the fact that the law does not require material particulars even in respect of allegations of corrupt practice but only full particulars, and if they are lacking the petition can be permitted to be amended or amplified under Section 86 of the Act. ... "
(C) In (2003) 1 Supreme Court Cases 289 Ram Prasad Sarma v. Mani Kumar Subba and others, the Honble Apex Court has held as follows:-
" But an election petition is not be to be thrown at the threshold on the slightest pretext of one kind or the other which ma or may not have any material bearing on the factors to be strictly adhered to in such matters. It is substance not form which would matter. If it is permitted otherwise, the returned candidate would only be on the lookout microscopically for nay kind of technical lacuna or defect to abort the endeavour of the petitioner to bring to trial the issues relating to corrupt practices in the elections. The purpose of the law on the point cannot be to allow the returned candidate to avoid the trial of the issues of corrupt practices raised against him on the basis of any little defect which may not result in any vital variation between the original and the true copy so as to have the effect of misleading the returned candidate. As it is, the prevailing situation of elections and practices often said to be adopted now and then and here and there does not always give a very happy picture. Free, fair and fearless elections is an ideal to be achieved and not to be defeated for the sake of pretentious and frivolous technicalities. "
(D) In (2004) 11 Supreme Court Cases 196 Sardar Harcharan Singh Brar v. Sukh Darshan Singh and others, the Honble Apex Court has held as follows:-
" Material fats and material particulars Deficiency in material particulars Proper course for the Court in case of Dismissal of petition, if justified Petition alleging corrupt practice Grounds of corrupt practice and facts necessary to form a complete cause of action stated and particulars also given however, trial Court feeling the particulars to be deficient In such circumstances, dismissal of the petition at the threshold, held, improper Rather, the petitioner should have been directed to supply the particulars and make the deficiency good only in case of non-compliance therewith could the Court strike off the pleadings or refuse to try the related instances of the alleged corrupt practices. "
(E) In (2006) 13 Supreme Court Cases 353 Sathi Vijay Kumar v. Tota Singh and others, the Honble Apex Court has held as follows:-
" Election Election petition pleadings striking off pleadings existence and scope of power Held, can be directed by the Election Tribunal (High Court) by invoking Or.6 R.16 CPC Circumstances under which pleadings can be ordered to be struck off However, power of striking off pleadings should be exercised sparingly and with extreme caution and circumspection Normally, if rules of pleadings are not offended, court would not order striking off the pleadings Representation of the People Act, 1951, Ss.87 and 83.
At the same time, however, it cannot be overlooked that normally a Court cannot direct parties as to how they should prepare their pleadings. If the parties have not offended the rules of pleadings by making averments or raising arguable issues, the Court would not order striking out of the pleadings. The power to strike out pleadings is extraordinary in nature and must be exercised by the Court sparingly and with extreme care, caution and circumspection. "
(F) In (2007) 7 Supreme Court Cases 721 Nandiesha Reddy v. Kavitha Mahesh, the Honble Apex Court has held as follows:-
" Election Election petition Material facts Means all specific and primary facts giving rise to a cause of action which are required to be proved for relief claimed election petition which does not contain a concise statement of material facts liable to be summarily dismissed Material facts must be pleaded so as to enable contesting party to know the case What are material facts would depend upon facts of each case Where election petitioner alleges improper rejection of his/her nomination paper by Returning Officer, he/she must set out in election petition reasons given by Returning Officer for refusal to accept nomination paper and facts necessary to show that refusal was improper Representation of the People Act, 1951, Ss.83(1)(a) and 87."
(G) In (2001) 1 Supreme Court Cases 261 Mahendra Pal v. Ram Dass Malanger and others, it has been held by the Honble Apex Court as follows:-
"Election Petition Election Petition Pleadings To be read as a whole to gather from the tenor or substance the intention of the party it is the substance and not merely the form, which is required to be looked into for construing the pleadings the intention of the party needs to be gathered from the tenor and terms of his pleadings taken as a whole Civil Procedure Code, 1908 Or.6.R.2 and 4.
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. 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. "
(H) In (2005) 13 Supreme Court Cases 511 Harkirat Singh v. Amrinder Singh, the Honble Apex Court has held as follows:-
" High Court erred in entering into the correctness or otherwise of the averments at the stage of deciding maintainability and holding that material facts had not been stated in the election petition Appreciation of evidence could be taken up at the stage of trial and not at this stage.
The High Court was wholly unjustified in entering into correctness or otherwise of the facts stated and allegations made in the election petition and in rejecting the petition holding that it did not state material facts and that the same did not disclose a cause of action. The High court stepped into the prohibited area of appreciating the evidence and by entering into merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable. "
(I) In (1972) 3 Supreme Court Cases 850 Raj Narain v. Smt. Indira Nehru Gandhi and another, it has been held by the Honble Apex Court as follows:-
" An election petition is not liable to be dismissed in limine because full particulars of corrupt practice alleged were not set out. If the objection was taken and the Tribunal was of the view of full particulars have not been set out, the petitioner has to be given an opportunity to amend or amplify the particulars. It is only in the event of non-compliance with such order to supply the particular that the charge which remained vague could be struck down. "
(J) In AIR 2006 Supreme Court 1828 Mayar (H.K) Ltd., and others v. Owners and Parties, Vessel M.V.Fortune Express and others, the Honble Apex Court has held as follows:-
"So long as the plaint discloses some cause of action which requires determination by the Court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. "
(K) In (2004) 9 Supreme Court Cases 512 Liverpool & London S.P. & I Association Ltd., v. M.V.Sea Successes I and another, the Honble Apex Court has held as follows:-
"Civil Procedure Code, 1908 Or.R.11(a) and 14 Rejection of plaint Whether plaint disclosed a cause of action Held is a question of fact to be determined by reading the averments made in the plaint in their entirety Rest to determine the question If averments made in the plaint or documents relied upon disclose a cause of action plaint should not be rejected merely on ground that the averments are not sufficient to prove the facts stated therein for disposal of application under R.11(a), documents filed under R.14 must be taken into consideration.
Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading of the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety and decree would be passed. In ascertaining whether the plaint shows a cause of action, the Court is not required to make an elaborate enquiry into doubtful or complicated questions of law of fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown. So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak or not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars. "
11. Thus, the Honble Apex Court has answered the issues which are before this Court in the present application in the following manner:-
(i) For the purpose of considering the preliminary objection, the Court has to see that the averments made in the election petition disclose cause of action for triable issue and the Court cannot probe into the facts on the basis of the controversy raised in the counter affidavit.
(ii) Material facts as contemplated under Section 83(1)(a) of the Act and material particulars as contemplated under Section 83(1)(b) of the Act have to be set out in the election petition. If the election petitioner alleges corrupt practice against the returned candidate, Section 83(1)(b) of the Act will come into play. In such circumstances, the full particulars have to be set out regarding the material facts raised in the election petition.
(iii) Material facts are primary or basic facts which must be pleaded by the election petitioner and what particulars could be said to be material facts, depends upon the facts of each case and no rule of universal application can be laid down.
(iv) Full particulars as envisaged under section 83(1)(b) of the Act are the details in support of material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative.
(v) Section 83 (1)(b) of the Act does not require material particulars even in support of allegations of corrupt practice, but only speaks of full particulars.
(vi) Power of striking off pleadings should be exercised sparingly and with extreme caution and circumspection.
(vii) The Court cannot direct parties as to how they should prepare pleadings. If the election petitioner does not offend the rules of pleadings by making averments or raising arguable issues, the Court shall not order striking out the pleadings.
(viii) If some cause of action is disclosed, pleadings cannot be struck out merely because the case is weak and not likely to succeed.
(ix) An election petition is liable to be dismissed in limine because full particulars of corrupt practice alleged are not set out. If the objection was taken that full particulars have not been set out, the election petitioner has to be given an opportunity to amend or amplify the particulars.
(x) The mere fact that in the opinion of Judge, election petitioner may not succeed, the same cannot be a ground to reject the election petition.
12. In his application, the returned candidate prayed for striking off the pleadings in paragraphs 5, 9 to 12 and 22 to 47 of the election petition as being vague, vexatious, without material facts and material particulars and consequently, reject the election petition as being bereft of necessary cause of action for trial.
13. Before answering whether the pleadings in the above said paragraphs of the election petition have to be struck off or not, it would be better to see the further relief that has been sought for by the returned candidate viz., rejection of election petition.
14. As stated already, the application has been filed by the returned candidate both under Order VII Rule 11 C.P.C. to reject the election petition and to strike off the pleadings as required under Order VI rule 16 C.P.C. Order VII Rule 11 C.P.C., envisages rejection of the plaint if the following grounds exists viz.,
(a) if there is no cause of action;
(b) if proper court fee has not been paid even pointing out the same by the court; and
(c) if the suit is barred by any provisions of law.
In the case on hand, it is the case of the returned candidate that the election petition has to be dismissed since there is no cause of action. Cause of action has to be seen from a reading of the whole pleadings of the election petition. If some cause of action is disclosed, pleadings cannot be struck off merely because the case is weak and not likely to succeed. Further, it cannot be dissected into several parts and a part of it cannot be rejected.
15. In the decision reported in (1999) 3 SCC 267 D.Ramachandran v. R.V.Janakiraman, the Hon'ble Apex Court has held that it is elementary that under Order 7 Rule 11 (a) C.P.C., the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the rule, there cannot be a partial rejection of the plaint or petition. But, in the case on hand, the returned candidate wants to strike off the pleadings in certain paragraphs and he did not seek for striking out certain other paragraphs. In such circumstances, the returned candidate cannot invoke Order Vii Rule 11 C.P.C. for partial rejection of the election petition, which is not permissible.
16. In the given case on hand, the reading of the entire election petition discloses cause of action and it cannot be thrown out at the threshold itself. Further, the mere fact that in the opinion of the court, the election petitioner may not succeed on the allegations made by him in the election petition, it cannot be a ground for rejection of the election petition. That apart, the election petition cannot be thrown out at the threshold itself merely on the ground that the averments are not sufficient to prove the facts stated therein. There need be no elaborate enquiry into the complicated questions of law or fact before trial of the election petition. The correctness of the allegations made in the election petition requires an elaborate trial and it could be tested only basing on the evidence both oral and documentary and it would not be permissible even at the earliest stage.
17. Therefore, in my considered view, the election petition filed by the election petitioner does not suffer from any infirmity on the cause of action and the election petition does not require dismissal at the threshold itself as envisaged under Order VII Rule 11 C.P.C.
18. The next issue that has to be seen is whether the pleadings in Paragraphs 5, 9 to 12 and 22 to 47 are liable to be struck off as being vague, vexatious, without material facts and material particulars.
19. Before embarking on the same, it would be useful to extract Order VI rule 16 C.P.C. and the same is extracted hereunder:-
16. Striking out pleadings:- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading --
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the Court."
20. The pleadings could be struck off only if the pleadings are (a) unnecessary, scandalous, frivolous or vexatious; (b) if it tends to prejudice, embarrass or delay the fair trial of the suit (c) if it is an abuse of process of the Court. The only ground that has been taken in the affidavit in support of the application is that the pleadings in the above said paragraphs are unnecessary, vague, vexatious, without material facts and material particulars.
21. Section 83 of the Act, which has been re-produced earlier, envisages that an election petition shall contain (a) a concise statement of material facts of which the petitioner relies and (b) in case of corrupt practice, it shall set forth full particulars.
22. Let us now take one by one paragraphs which the returned candidate wants to strike off.
PARA No.5:
23. Paragraph 5 of the election petition which the returned candidate wants to strike off, is extracted hereunder:-
" 5. The petitioner respectfully submits that the first respondent managed to secure this victory by corrupt practices and by bringing upon undue influence on the District Election Officer and the Returning Officer in his capacity as the State Cabinet Minister. The petitioner submits that the District Election Officer and the Returning Officer made ready a well designed ground for ensuring the victory of the first respondent by manipulating the Electronic Voting Machine (EVM)."
The averments made in the affidavit in support of the application for striking off the said pleadings in this regard, are extracted hereunder:-
" 2. ... The above said para is bereft of any material facts and particulars as to how the returning officer and the District Election Officer had helped for my victory. The first respondent herein had failed to plead as to what are the alleged misdeeds done by me or the alleged influence, exerted by me with the District Election Officer and the returning Officer. The first respondent herein equally did not plead or give any material facts and particulars with respect to the alleged manipulation of Electronic Voting Machine (EVM). The entire averments in para 5 are vague and unsupported by material facts. The non-disclosure of the material facts is fatal and hence, para 5 of the election petition is liable to be struck off.
3. I state that the first respondent herein had made the allegation that I had brought undue influence on the District Election Officer. The said Election Officer was not made as a party to the above mentioned election petition and hence, the same is liable to be rejected. ..."
ANSWER:
(I) Paragraph 5 of the election petition along with the other allegations made in the other paragraphs have to be read together and they cannot be read in isolation. Reading of paragraph 5 alone isolatively may appear that the allegations made against the District Election Officer and the Returning Officer are vague. As stated already, the said paragraph, if read together with the allegations made in the other paragraphs, will prove that the allegations in this regard are not vague. Though the returned candidate has stated that the District Election Officer was not made as a party to the election petition, I am of the considered view that the District Election Officer need not be made as a party. Who was the District Election Officer is a matter on record and failure to mention his name will not be fatal to the case.
(II) Learned counsel appearing for the returned candidate relying on my judgment reported in 2012 (3) CTC 673 P.Chidambaram v. R.S.Raja Kannappan, contended that the allegations made in paragraphs 5, 9 to 12 and 22 to 47 of the election petition deserve to be struck off for want of material facts and particulars as has been held in the said case. Considering the averments made in paragraphs 4 and 5 of the election petition, which were the subject matter in the said application, I came to the conclusion that the allegations made in paragraphs 4 and 5 were not supported with any material facts and particulars. The allegation therein was that the first respondent therein, viz., the returned candidate managed to secure his victory by corrupt practice and brought up undue influence in his capacity as Home Minister. In paragraph 5 of the election petition therein, it was stated that the Returning Officer made ready a well designed ground for ensuring the victory of the applicant by enlisting into election duty the officials from the nationalized banks in the sivaganga district and the officials owed allegiance and loyalty to him since the returned candidate during his tenure as union Finance Minister, opened branches of various Nationalized Banks throughout Sivaganga Parliamentary Constituency. The name of the officials owing allegiance and loyalty to the returned candidate, the name of the bank, date, time and place where they were enlisted for election duty, were not set out in the election petition. Therefore, I have struck off the said paragraphs viz., paragraphs 4 and 5 of the election petition therein. However, in the given case on hand, the election petitioner has listed out various allegations against the District Election Officer and the Returning Officer and further stated that the same resulted in his defeat. Therefore, in my considered view, the said contention raised in this regard by the learned counsel appearing for the returned candidate is liable to be rejected.
(III) The next decision that has been cited by the learned counsel appearing for the returned candidate is reported in (1972) 1 Supreme Court Cases 214 Hardwari Lal v. Kanwal Singh. In the said decision, it has been held that the election petitioner therein has not listed out what kind or form of assistance was obtained or procured or attempted to obtain or procure. It was also noted therein that the manner of assistance for the furtherance of the prospects of the election was also not set out. But, in the case on hand, the particulars and the type of assistance given by the District Election Officer and the Returning Officer were set out. Hence, the said judgment may not come to the rescue of the returned candidate.
(IV) Therefore, in my considered view, paragraph 5 of the election petition need not be struck off.
PARA No.8:
24. Though in the application to strike off the pleadings, the returned candidate has not sought for striking off paragraph 8, in the body of the affidavit, the returned candidate seeks to strike off the pleadings in paragraph 8 also. I am of the considered view that in the prayer column, the returned candidate has not sought for striking off the pleadings in paragraph 8 and hence, the same cannot be entertained merely because the returned candidate, in the body of his affidavit, seeks to strike off paragraph 8 also. Even otherwise, the averments made in paragraph 8 of the election petition do not require to be struck off.
PARA No.9:
25. As far as paragraph 9 is concerned, before seeing the grounds raised in this connection for striking off the said paragraph, it would be useful to extract the same and the same is extracted hereunder:-
" 9. The petitioner respectfully submits that all the E.V.Ms. were brought to Alagappa Chettiar College of Engineering in Karaikudi, where they were kept in class rooms in the first floor without any security. A mere padlock and a cross bar which can be easily unscrewed and re-fixed were fixed on the door. This was done deliberately to facilitate free ingress into the room for the purpose of tempering the machines. A photograph of the same is filed herewith to establish this fact Doc.No.1."
In paragraph 5 of the application filed by the returned candidate to strike off the said paragraph, it is stated as follows:-
" 5. ... The said allegation is made only for the purposes of this election petition, and I specifically deny the said allegation in para No.9 that the EVM's were kept without any security. The fact, that the EVM's were kept in safe custody, completely secured and were guarded by the armed forces, is admitted by the first respondent herein himself in para No.22 of the election petition. The first respondent herein had not raised his little finger at the time when the EVM's were kept and sealed. All the candidates including the first respondent herein were satisfied with the safety and security of the EVM's. I state that the first respondent herein had not given any material facts and sufficient particulars as to who had done the deliberate act of not keeping EVM's in a safe manner to facilitate for free ingress into the room. The non-disclosure of any material facts in para 9 of the election petition disentitle the first respondent herein / election petitioner on that count and hence, para No.9 of the election petition is liable to be struck off".
ANSWER:
(I) It is stated that the allegations made in paragraph 9 of the election petition are vague and do not say who facilitated free ingress into the room where the Electronic Voting Machines were kept, for the purpose of tampering the machines. Thus, it is alleged that the material facts with full particulars have not been stated.
(II) However, paragraphs 8 and 9 have to be read together and not in isolation. The facts which have been stated therein, are material facts with some particulars, which have to be tested only at the time of trial and not now, at this stage. Hence, I am of the considered view that paragraph 9 of the election petition need not be struck off.
PARA No.10:
26. The next paragraph, which is sought to be struck off is paragraph 10 and the same is extracted hereunder:-
" 10. On 12.5.2011, the petitioner's party men led by Mr.Karuppiah caught a person with an E.V.M. in his possession entering the room, where the E.V.Ms. were kept. The episode was recorded in the mobile camera and the C.D. containing the same is filed herewith as Doc.No.2.
A mere viewing of the episode will go to show that this unauthorised intruder was found entering the Store Room with an E.V.M. in his possession and he was unable to give any satisfactory explanation. When the Returning Officer was informed, she came in her car, which can also be seen in the videograph. They both gave conflicting versions as to the purpose of entry with a E.V.M. The Returning Officer managed to protect the intruder by giving some lame excuses and escorted him in her vehicle without handing him over to the police."
In the application filed by the returned candidate to strike off the said paragraph, in paragraph 6, it is stated as follows:-
" 6. I state that it is false to allege that on 12.05.2011, the 1st respondent's party man, led by Mr. Karuppiah, caught a person with an EVM in his possession, entering the room, where the EVM's were kept I am replying to Para No.10 only on the photograph attached with the CD served along with the election petition. The counting of Election took place on 13.05.2011. The 1st respondent herein had not pleaded as to who has recorded the alleged incident and who had informed the petitioner about the alleged incident and hence the said allegation is liable to be struck off. The said para 10 is bereft of any material facts, the 1st respondent had not pleaded at what time the alleged incident took place and who were all present at the time of alleged incident, a perusal of the document no.2 would show that the said Karupiah was talking with a person, with the EVM, who is wearing a identity card, in view of the same, the 1st respondent ought to have named the alleged intruder and the conversations between the said Karupiah and the alleged intruder, the voice recorded with the CD is not clear and I am not in a position to answer the same, one of the persons, in the document spells that it is a demo, an hence, it is clear that the 1st respondent had come to the court with unclean hands. The election petitioner himself has set up somebody to enter the premises at the time of counting and taken video to use it later. Therefore para no 10 of the election petition is liable to be struck off. "
ANSWER:
(I) With regard to the incident stated in paragraph 10 of the election petition, the entire episode is alleged to have been recorded and document No.2 was filed in this regard. The veracity of the same can be tested only when evidence is let in on the side of the election petitioner or his witnesses including the person who has recorded the incident. Now, the allegations cannot be thrown out at the threshold itself before trial.
(II) In the last sentence of para 6 of the affidavit filed by the returned candidate in support of the application for striking off the pleadings, it is stated that " the election petitioner himself has set up somebody to enter the premises at the time of counting and taken video to use it later. Therefore, para no.10 of the election petition is liable to be struck off". The same has to be tested only at the time of trial and not now at the initial stage. Hence, the said para viz., paragraph 10 does not require to be struck off at this stage.
PARA No.11:
27. The next paragraph, which is sought to be struck off is paragraph 11 and the same is extracted hereunder:-
" 11. On 13.05.2011, counting of votes began in the ground floor hall around 8.00 am. There were 14 tables. A mesh screen separated the counting officials from the counting Agents. In other words, the Counting officials were assigned an exclusive area, entry to which was restricted. As the counting progressed, an intruder was noticed by the Counting Agents, of the petitioner in the area, where the officials were counting. This person was found frequently, talking over his mobile phone and issuing directions. It may be relevant to submit that use of mobile phones by candidates and their agents in the counting hall was completely prohibited despite which this intruder was found using his mobile with impunity. Since his conduct aroused suspicion, the petitioner's agents lodged a protest and he was apprehended. The Agents of the First Respondent came to the rescue of the intruder. This intruder was planted inside the counting area by the 1st Respondent with the connivance of the District Election Officer and the Returning Officer to monitor and manipulate the counting in favour of the first respondent. The enclosed CD supplied by the Election Commission would show this episode DOC 3. After a hue and cry was raised by the petitioner and his counting agents, this person was removed from the area by the Police and no F.I.R. for trespass was lodged. Not even his name and other details were ascertained by the District Election Officer and the Returning Officer. They deliberately covered up this even and hushed up the whole matter. This intruder knew about the manipulations done to the E.V.Ms., and he was closely monitoring the same at the instance of the 1st respondent. "
In the application filed by the returned candidate to strike off the said paragraph, in paragraph 7, it is stated as follows:-
" 7. I state that Para No.11 of the Election Petition is liable to be struck off. It is seen from the vague averments made in para 11 that the 1st respondent herein had not given any clear, unambiguous, specific material facts and specific particulars with respect to the allegations in para No.10 & 11 of the Election Petition. The perusal of the CD in Doc.No.3 would expose another false averment of the 1st respondent herein that the alleged intruder was not having any mobile phones. I once again state that the 1st respondent herein had not stated any material facts and full particulars as to how the presence of the alleged intruder had vitiated the Election process and hence para No.11 of the election petition is liable to be struck off. "
ANSWER:
Required material facts supported by particulars viz., document No.3 was filed along with the election petition, which can be tested only at the time of trial and not now, at this stage.
PARA No.12:
28. The next paragraph, which is sought to be struck off is paragraph 12 and the same is extracted hereunder:-
" 12. Thus, it is clear that the 1st respondent, in connivance with the District Election Officer and the Returning Officer, has manipulated the E.V.Ms as evidenced from the two incidents namely, the entry of an unauthorized person with an E.V.M. on the 12th and the entry of an intruder into the counting area at the time of counting which is clearly in violation of Rule 53 of the Conduct of Election Rules. These two unauthorized intruders have manipulated the machines in such a way as to materially affect the election of the petitioner by improper acceptance of votes in favour of the 1st respondent and rejection of votes against the petitioner."
In the application filed by the returned candidate to strike off the said paragraph, in paragraph 8, it is stated as follows:-
" 8. I state that the averment made in para No.12 of the Election petition that two unauthorized intruders manipulated the machines in such a way as to materially affect the Election of the 1st respondent by improper acceptance of votes in my favour and reject of votes against the 1st respondent herein is vague and liable to be struck off. I submit that the entire event is manipulated by the 1st respondent herein/election petitioner with his henchmen."
ANSWER:
(I) In the election petition, it has been clearly stated that the returned candidate in connivance with the District Election Officer and the Returning Officer, manipulated the Electronic Voting Machines and the entry of an unauthorised person with an EVM on the 12th and the entry of an intruder into the counting area at the time of counting, were set out. The veracity of the said statements can be tested, as stated already, only at the time of trial and not now at this stage.
(II) However, the last sentence in paragraph 12 viz., "these two unauthorised intruders have manipulated the machines in such a way as to materially affect the election of the petitioner by improper acceptance of votes in favour of the first respondent and rejection of votes against the petitioner" is concerned, it is vague and unsupported by any material facts and particulars. How the machines were manipulated were not stated. The presence of the intruders alone was set out in paragraphs 10 and 11. However, it was not stated how the intruders manipulated the Electronic Voting Machines. Mere presence of the intruders at the time of counting of votes themselves will not prove that two unauthorised intruders have manipulated the machines in such a way as to materially affect the election of the election petitioner. Thus, the election petitioner has not pleaded how the presence of the alleged intruders has vitiated the entire process of the election. Therefore, only the last sentence in paragraph 12 viz., " These two unauthorised intruders have manipulated the machines in such a way as to materially affect the election of the petitioner by improper acceptance of votes in favour of the first respondent and rejection of votes against the petitioner" is liable to be struck off and accordingly, struck off. Rest of the pleading in paragraph 12 is not struck off.
PARA No.22:
29. As far as paragraph 22 of the election petition is concerned, it speaks of a death of one Constable by bullets, who was on security duty. It is alleged that he was done away with since he knew about the illegal activities leading to tampering of the Electronic Voting Machines. The allegations in this regard made in paragraph 22 are thus usefully extracted hereunder:-
" 22. The petitioner respectfully submits that the results were declared around 3.30 a.m. on 14.05.2011 and within one hour a Constable, who was on security duty at the counting centre was shot and killed. Perhaps, the constable by name Mr. Shube Singh, who was on security duty through out the one month interregnum knew more about the illegal activities, leading to tampering of the E.V.Ms in the storage room and that is why he must have been done away with. The investigation by the police in Cr.No.208/11 on the file of Karaikudi (North) Police Station is pending."
In contra, in the application to strike off the pleadings, it is stated that the said incident has happened after the declaration of the results. It is further stated that the death of the Constable is in no way connected with the election process.
ANSWER:
Merely because the Constable was done to death after declaration of the results, the same itself will not prove that he was done to death by the returned candidate. A vague allegation in this regard without full particulars as required under Section 83(2)(a) of the Act will not come to the rescue of the election petitioner. In view of the same, paragraph 22 of the election petition is liable to be struck off and accordingly, struck off.
PARAS 23 to 45:
30. In paragraph 23 of the election petition, it is averred as follows:-
" 23. The petitioner submits that he made an application dated 17.05.2011 to the Returning officer for copies of Form No.17-C and Compact Discs. containing the Videograph of the counting by the Election Commission. By letter dated 17.05.2011, the Returning Officer directed the petitioner to remit a fee in the Treasury Doc. No.8 which was remitted by Chalan dated 20.05.2011 Doc. No.9. Pursuant to the said payment, the Returning Officer furnished photo copies of 279 number of Form 17-Cs in part without any authentication on 21.05.2011. When the petitioner protested that the copies were not properly authenticated, the Returning Officer supplied fresh set of "Form 17-C" duly authenticated by her on 30.05.2011. The petitioner is surprised to note the marked discrepancies even amongst the two sets supplied by the Returning Officer, which only goes to show that there has been a wholesale manipulation of records in this case. "
31. In paragraph 24 of the election petition, it is stated by the election petitioner that the records supplied by the Returning Officer will show the improper reception and rejection of votes in violation of the Acts and Rules. It was also listed out the discrepancies in several Polling Stations and document Nos.10 to 19 have been filed which are authenticated and authenticated form No.17-C furnished to the election petitioner by the Returning Officer.
32. In paragraph 25, it is stated that In the following cases, Part I of Form 17-C given to the Polling Agent and the unauthenticated ones furnished initially by the Returning Officer, the signatures of the Polling Agents are available, strangely in the authenticated copies furnished by the Returning Officer subsequently there are no signatures of the Polling Agents. The discrepancies in several Polling Stations have been listed out and document Nos.20 to 38 that is Part I of Form 17-C issued by the Returning Officer were filed.
33. In paragraph 27, it is stated as follows:-
" 27. In the following instances, the signatures of the Presiding Officer is available in Part 1 of "Form 17-C" in some authenticated copies and for the same Polling Stations the Zonal Officer has signed in the unauthenticated copies. According to law, it is only the Presiding Officer of the Polling Station, who should sign Part I of Form 17-C. The Zonal Officer designation is not contemplated in the Act or in the Rules. He is merely an Official under whose jurisdiction there will be about 10 Polling Stations to which he will supply the E.V.Ms and Poll Materials before Poll. The Zonal Officer cannot be the Presiding Officer."
List of Polling Stations and Form 17-C authenticated and unauthenticated were filed as document Nos.39 to 67.
34. In paragraph 28, it is stated as follows:-
" 28. The above instances show that the Returning Officer has not been maintaining a true account of Form 17-Cs in order to pave the way for manipulation of the Electronic Voting Machines concerning the Polling Stations. "
35. In paragraph 29, it is stated as follows:-
" 29. In respect of Polling Station No.87, S.S.Kottai, Part I of Form 17-C given to the Polling Agent (Doc. No.68) and the authenticated copy of the same (Doc. No.69) bears identical signature of the Presiding Officer, whereas the unauthenticated copy (Doc. NO.70) has a different signature. "
36. In paragraph 30, it is stated as follows:-
" In respect of Polling Station No.122, Thuvar, the signature of the Presiding Officer in Part I of Form 17-C issued to the Polling Agent (Doc No.71) tallies with the one in the authenticated copy (Doc. NO.72) whereas there is a different signature in the unauthenticated copy (Doc. NO.73). "
37. Such averments were also made in paragraphs 31 to 45.
38. In reply to the same, by way of an affidavit in support of the application to strike out the pleadings, the returned candidate in paragraph 13, has stated the following statements:-
" 13. I state that the averments made in para No.23, 24, 25, 26, 28 to 45 of the Election Petition speaks only about the discrepancies on the basis of the alleged material supplied to him by the 12th respondent herein. The 1st respondent herein had failed to aver or plead any material facts to the effect that as to how the copies (authenticated and unauthenticated) alleged to have been suplied to him will materially affect the Election. In the absence of any pleading to the effect that the discrepancies in the particulars furnished by the 12th respondent will vitiate the Election, the said averments made in the afore mentioned para 23, 24, 25, 26, 27, 28 to 45 cannot have vitiate the election of the petitioner herein and hence the above paras in the election petition is liable to be struck off. "
ANSWER:
39. The only objection as could be seen in paragraph 13 referred to above is that the election petitioner has not averred how the discrepancies affected the result.
40. How it has affected the result, is set out in paragraphs 47, 48 and 49 of the election petition, which are extracted hereunder:-
" 47. The petitioner respectfully submits that by Rule 49-E (3)(4) and (5) of the Conduct of Election Rules, the Presiding Officer of the Polling Station is required to affix the paper seal containing the Serial Number over the "Result Button" so that it is not tampered. The details of the paper seal should be noted in Column NO.9 of Part I of Form 17-C. The petitioner has given specific instances of rank violation of these procedures thereby facilitating tampering of the Electronic Voting Machines concerning the Polling Stations, thereby the result of the election in so far as I concerns the First Respondent has been materially affected by the improper reception of votes to him and the improper rejection of votes to the petitioner and thereby the election of the first respondent deserves to be declared void U/S 100(1)(d)(iii) of the Representation of People Act 1951."
" 48. The petitioner respectfully submits that Rule 49-S of the Conduct of Election Rules 1961 mandates that the Presiding Officer should have to prepare Form 17-C containing the details about the number of the balloting unit, control unit, the paper seal used, the total votes polled together with the signatures of the Polling Agents. Thereafter, the Presiding Officer is required to furnish a true copy of the same to the Polling Agents. Thus, Form 17-C assumes great significance as it ensures that there is no tampering of the E.V.Ms after the poll and before counting. In this case, the petitioner has cited specific instances where the discrepancies found in Form-17Cs pertaining to certain specific Polling Stations are so grave that it is evident that the 1st respondent, in connivance with the District Election Officer and Returning Officer has caused tampering of the E.V.Ms thereby the result of the election in so far as it concerns the 1st respondent has been materially affected by the improper reception of vote by him and thereby the election of the 1st respondent deserves to be declared void U/s 100(1)(d)(iii) and (iv) of the Representation of People Act 1951."
" 49. Even according to the Returning Officer, there was doubt in four E.V.Ms which resulted in the counting being stopped around 9.45 p.m. as submitted earlier. This is evident from the Roundwise Tabulation Sheet (Doc. NO.115) issued by the Returning Office on the undue influence brought about by the 1st respondent, the Returning Officer, instead of ordering re-poll, proceeded with the counting unilaterally and declared the result in favour of the 1st respondent. At that time, the margin of votes between the 1st respondent and the petitioner was lesser than the total votes polled in the four E.V.Ms which is evident from Form 20 issued by the Returning Officer Doc. No.115. In such cases, re-poll should have been ordered which was not done since the 1st respondent adopted corrupt practice on the officials and persuaded them to proceed with the counting and hence his election should be declared void for non-compliance of the provisions of the Representation of People Act and Conduct of Election Rules 1961 under Section 100(1)(d)(iv) of the Act r/w Rule 66-A, 55-C and Section 58 of the Representation of People Act."
41. Hence, it may not be correct on the part of the returned candidate to say that the election petitioner failed to offer and plead any material facts as to how the act done by the Returning Officer referred to in the election petition materially affected the election petitioner and vitiated the election. Material facts with particulars were furnished by the election petitioner in furtherance of his pleadings as required under Section 83(1)(b) of the Act.
42. In this connection, the learned counsel appearing for the returned candidate relied on the decision reported in (2009) 10 Supreme Court Cases 541 Ram Sukh v. Dinesh Aggarwal. The grounds mentioned in the election petition, which is the subject matter in the said decision, are:-
(a) the polling officers at various polling stations did not seal electronic voting machines in the presence of the election agent of the election petitioner and other candidates and further before the commencement of counting the Returning Officer did not get the seal of the strong room certified from any of the polling agents;
(b) that the electronic voting machines of various polling stations were either changed or were used after the polling time was over, showing misuse of the official machinery in support of the first respondent and, thus, putting a question mark on the fairness of the election.
The said main grounds apart from the other grounds were set out in the said election petition filed by the appellant therein. It was held in the said decision as to how it has materially affected, was not stated in the election petition. However, that is not the case on hand. In the present election petition, it has been clearly spelled out how the grounds raised by the election petitioner resulted his failure in the election. Therefore, in my considered view, the said judgment will not come to the rescue of the returned candidate. Therefore, in my considered view, those paragraphs need not be struck off as was required by the returned candidate.
PARA No.46:
43. In paragraph 46 of the election petition, it is stated as follows:-
" 46. The petitioner respectfully submits that the election of the 1st respondent should be set aside on the ground that he has given a false declaration to the Returning Officer in the Affidavit of assets at the time of filing the nomination. The copy of the Affidavit filed by the 1st respondent Doc. No.114 does not contain the details of the following properties, which are in his name:
a. Tiled House situate at 1/115, Aralikkottai Post, Thiruppathur Taluk, Sivagangai District in the name of the father of Mr.K.R. Periakaruppan, who is the only son.
b. Concrete roof House, situate at No.2/84, Aralikkottai Post, Thiruppathur Taluk, Sivagangai.
c. Concrete roof House, situate at No.3/65-B, Aralikkottai Post, Thiruppathur Taluk, Sivagangai.
Thus, there is clear false declaration and hence, his election should be set aside. The petitioner submits that he will obtain necessary documents and submit and prove this charge during trial. "
44. The returned candidate in his affidavit in support of his application to strike off the said pleadings, has stated in paragraph 14 as follows:-
" 14. I state that paras No.46 & 47 of the election petition is liable to be struck off. I state that I had declared all my holdings as on the date of the filing of the nominations. I state that with respect to allegation in para No.46 that I have not declared my asset in No.1/115, Aralikottai post is per se a false statement, as I have declared the same in my nomination which is enclosed by the 1st respondent herein as Doc.No.114. I have included the said property in inner page No.4 & page No.440 of the typed set. Moreover the said property is not in my name, the said property was owned by my father Karuthan, and the same was thereafter settled in the name of my son Mr.P.R.Gokulakrishnan, which is described as my family members assets, which is mentioned in clause No.IV of the said page. The allegation of suppression of property in 2/84, is false, as I had declared the same as a property as "HUF", equally I had also mentioned 3-65B in my declaration submitted before the Election Commission, which is mentioned in page No.440. Hence the allegation made in para No.46 of the election petition is per se a false statement and bereft of any material facts and particulars and liable to be struck off. ... "
ANSWER:
45. Considering the said statement made in the affidavit in support of the application filed by the returned candidate, I am of the considered view that the returned candidate has furnished full particulars of his assets and the plea taken by the election petitioner in his election petition, in this connection, is liable to be struck off and hence, paragraph 46 of the election petition is struck off.
PARA No.47: ANSWER:
46. Though the retuned candidate sought for striking off paragraph 47 of the election petition, nothing has been stated in this regard in his affidavit in support of the application to strike off the pleadings in paragraph 47 in the election petition. Hence, paragraph 47 of the election petition need not be struck off.
PARA Nos.8, 13, 17 and 21:
" 8. In this connection, strangely, there was a long gap of one month from the date of poll to the date of counting, which was used by the first respondent in connivance with the District Election Officer and Returning Officer, to manipulate the E.V.Ms."
" 13. As the counting progressed in various tables, the Counting Agents of the petitioner were heard frequently complaining to the Counting Supervisors about the discrepancies in the identification of the E.V.Ms. and paper seals, which were all brushed aside. In the 10th round in Table No.9, which the E.V.M. pertaining to Polling Station 135, Thirukalapatti came for counting, the petitioner's Counting Agent found discrepancy in the number of the Control Unit as given in part I of Form 17-C and the number found on the unit. Counting of the E.V.M. pertaining to No.135, Thirukalapatti, was kept pending."
" 17. In the 20th round, when the E.V.M. pertaining to Polling Station No.273, Kottaiyur, was brought to Table No.7, it was found that the signatures of the Polling Agents found in the Part I Form 17-C furnished to the agent differ from the signatures of the Polling Agent on the E.V.M. Therefore, objections were raised by the petitioner's counting Agent which was not at all considered."
" 21. It may be relevant to submit that on 13.5.2011, counting process commenced at all the counting centres throughout Tamil Nadu around 8.00 a.m. and by 2.00 p.m. counting was over in almost all the Constituencies except in Tiruppathur and Kolathur, where there were neck to neck contest. The counting in Tiruppathur got delayed because from the beginning the petitioner's agents, were observing wholesale manipulations in the E.V.Ms. and were protesting to the District Election Officer and the Returning Officer but to no avail. Ultimately, the counting was stopped at 9.20 p.m. as the petitioner and his agents were demanding re-poll due to large scale discrepancies in the E.V.Ms. The District Election Officer and the Returning Officer said that they have sent a report to the Election Commission of India and are awaiting orders. It is not known as to what sort of report they had sent. Nevertheless, they had not sent a proper report based on the valid objections raised by the petitioner in the three representations referred to above.
The first respondent and his agents started creating ruckus in the counting hall and indulged in capturing the counting process. Suddenly, around 10.45 p.m. the Returning Officer gave a notice that the counting of the votes would commence. Doc.No.7. The petitioner knew that the first respondent's influence and corrupt practice had prevailed over the wisdom of the District Election Officer and the Returning Officer and so he refused to take further part in the counting process. The District Election Officer and the Returning Officer hurriedly completed the counting process and illegally declared the first respondent as having won in the election."
47. The returned candidate did not seek for striking out paragraph Nos.5, 9 to 12 and 22 to 47 of the election petition in the prayer column. However, in the affidavit in support of the said application, averments were made to strike out paragraphs 8, 13, 17 and 21 also. I am of the considered view that the said paragraphs viz., paragraphs 8, 13, 17 and 21 do not require to be struck off, since as stated already, the prayer in the application to strike off the pleadings was made only in respect of paragraphs 5, 9 to 12 and 22 to 47 and not paragraphs 8, 13, 17 and 21.
48. It is further contended by the learned counsel appearing for the returned candidate that the election petitioner, who has averred in his election petition that the returned candidate secured victory by placing undue influence on the District Election Officer and the Returning Officer, has not filed the election petition under Section 123 of the Act.
ANSWER:
49. I am of the considered view, as rightly pointed out by the learned counsel appearing for the election petitioner, the provisions under which the election petition can be filed is enumerated in Section 100 of the Act. Section 100 of the Act enumerates the grounds for declaring election as void. Section 123 of the Act only defines what is corrupt practice. Therefore, in my considered view, an election can be declared as void only on the grounds set out in Section 100 of the Act and not under Section 123 of the Act. Section 123 only contemplates what shall be deemed to be corrupt practice for the purpose of the Act. Therefore, there is no necessity to refer about Section 123 of the Act. It would be sufficient if material facts with full particulars of corrupt practice are mentioned in the election petition as contemplated under Section 83(1)(a) and 83(1)(b) of the Act. Therefore, in my considered view, the said plea taken by the returned candidate is liable to be rejected.
50. Yet another plea that was taken by the returned candidate is that the election petition is liable to be rejected at the threshold as the election petition filed on the ground of corrupt practice, should contain a verification affidavit under Form 25 of the Conduct of Election Rules. It is further contended that the election petition though is filed along with an affidavit under Form 25, the same is not inconsonance with Rule 95 of the Conduct of Election Rules. Rule 95 of the Conduct of Election Rules mandates that the verification affidavit should specify each and every allegation in detail and the person should clearly verify each and every allegations and the source of information clearly.
51. In answer to the said objection, it is stated on the side of the election petitioner, by the learned counsel, that the non-filing of the said affidavit is a curable defect and in fact, along with the counter in O.A.No.856 of 2012, which is an application taken out by the returned candidate to receive additional grounds, the election petitioner has filed an affidavit under Order VI Rule 15(4) C.P.C., which will cure the defect, if any.
ANSWER:
52. It has to be seen whether the non-filing of an affidavit as required under Order VI Rule 15(4) C.P.C. is a curable defect. In (2004) 11 SCC 196 - Sardar Harcharan Singh Brar v. Sukh Darshan Singh, it has been held that the non-compliance of the same does not render the election petition dismissed in limini and the defect in verification affidavit is a curable defect.
53. In the decision reported in (2012) 5 SCC 511 P.A.Mohammed Riyas vs. M.K.Raghavan and others, in paragraph 5, it has been held that the said defect was curable and such a proposition has been upheld in various cases beginning with the decision in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR 1964 SC 1545 and following in F.A.Sapa v. Singora -(1991) 3 SCC 375, Sardar Harcharan Singh Brar v. Sukh Darshan Singh (2004) 11 SCC 196 and K.K.Ramachandran Master v. M.V.Sreyamakumar (2010) 7 SCC 428.
54. In view of the fact that the election petitioner has filed an affidavit as required under Order VI Rule 15(4) C.P.C. along with the counter affidavit in the application in Appln.No.856 of 2012, which has been filed by the returned candidate to receive additional grounds, the defect if any, has been cured by the election petitioner and hence, the election petition cannot be dismissed at this stage.
55. The learned counsel appearing for the returned candidate relied on the judgment reported in (2009) 9 Supreme Court Cases 310 Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar. Paragraphs 10, 15 and 59 of the said judgment were much emphasised by the learned counsel appearing for the returned candidate, which are usefully extracted hereunder:-
" 10. The pleadings of the said allegations of corrupt practice are limited to digging of bore wells only and there is no pleading on the material facts whether any water drawing equipment was installed in the said boreholes so dug and that such boreholes became water bore wells and that the water could be drawn from them. Neither have any facts been pleaded nor particulars given to the effect of how and in what manner the voters were influenced in favour of the appellant so as to cast votes in his favour. No particulars of such voters have been given in the election petition. As such there is total absence of material pleadings so as to prove that due to the alleged corrupt practice the election has been vitiated in a manner that but for such boreholes not being dug the appellant would not have been returned as a winning candidate and either the respondent herein or Respondent 2 of the election petition could have been returned as a winning candidate.
15. There are absolutely no averments to the effect that these ambulances were deployed at which specific place, at which specific time and for the benefit of whom and whether at the instance or with knowledge of the appellant. As such, the said pleading is incapable of passing the test as laid in Azhar Hussain case1 or such facts as are pleaded in the petition are capable of being later on amplified in view of the test laid down in H.D. Revanna case2 so as to arrive at a conclusion that a triable case is made out.
59. In the context of a charge of corrupt practice, 'material facts' would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (the respondent herein) is bound to substantiate before he can succeed on that charge. It is also well settled that if 'material facts' are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient."
However, in the case on hand, the material facts with particulars have been furnished by the election petitioner and the veracity of the same could be decided only at the time of trial. Hence, the said judgment may not come to the rescue of the returned candidate.
56. Yet another decision that was relied on by the learned counsel appearing for the returned candidate is reported in (2002) 2 Supreme Court Cases 294 V.Narayanaswamy v. C.P.Thirunavukkarasu. Even in the said decision, the Hon'ble Apex Court has held that in case of defect in material facts, the election petition has to be rejected at the outset. But, in the case on hand, the defect in material particulars could be cured subsequently. If the defect has not been cured in spite of sufficient opportunity to rectify the same, then the election petition has to be rejected.
57. In (1999) 4 SCC 274 T.M.Jacob v. C.Poulose, a constitution Bench of this Court held as follows:-
That apart, to our mind, the legislative intent appears to be quite clear, since it divides violations into two classes those violations which would entail dismissal of the election petition under Section 86(1) of the Act like non-compliance with Section 81(3) and those violations which attract Section 83(1) of the Act, i.e., non-compliance with the provisions of Section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ch. Subbarao v. Member, Election Tribunal, Hyderabad cases. The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure.
58. Yet another decision that was cited by the learned counsel appearing for the returned candidate is reported in 1986 (Supp) Supreme Court Cases 315 Azhar Hussain v. Rajiv Gandhi. In the said case, vague pleadings were made in the election petition and hence, the Hon'ble Apex Court has held that the election petition could be thrown out at the threshold itself. That is the case where particulars relating to allegation of speeches made by a gazetted officer on Government controlled news media praising the elected candidate were not furnished and hence, it has been held that a vague pleading has been made. However, it is not the case in the present case on hand.
59. Considering the overall circumstances referred to above, the following conclusions are arrived at by me:-
(i) The election petition does not require rejection under Order VII Rule 11 C.P.C. for the reason stated in paragraphs 14 to 17 above.
(ii) The averments made in the election petition have to be taken as a whole, which has disclosed a cause of action or a triable issue, as such, this Court cannot dissect the pleadings into several parts and consider whether each of them discloses cause of action. Under Order VII Rule 11 C.P.C., there cannot be a partial rejection of the plaint or an election petition.
(iii) The last sentence of paragraph 12 of the election petition viz., "These two unauthorised intruders have manipulated the machines in such a way as to materially affect the election of the petitioner by improper acceptance of votes in favour of the first respondent and rejection of votes against the petitioner" is liable to be struck off and accordingly, struck off. But, however, the rest of the averments made in Paragraph 12 are not struck off for the reasons stated in paragraph 28 above.
(iv) Paragraphs 22 and 46 of the election petition are liable to be struck off and accordingly, struck off for the reasons stated in paragraphs 29 and 43 to 45.
(v) Material facts with particulars as required under Section 83(1)(a) and (b) of the Act were set out by the election petitioner in paragraphs 5, 9 to 11, part of paragraph 12 and 23 to 45 of the election petition and hence, the same does not require to be struck off in the election petition. The veracity of the averments made thereunder has to be tested during trial. The reasonings are stated in paragraphs 23, 25, 26, 27 and 30 to 42 above.
(vi) Paragraphs 8, 13, 17 and 21 need not be struck off. The reason being that in the prayer to strike out pleadings, the returned candidate did not refer about the said paragraphs.
(vii) The non-filing of the affidavit under order VI Rule 15(4) C.P.C. as mandated under Section 83(1)(c) of the Act is curable and the same has been cured by the election petitioner by filing an affidavit as required. Discussions made in paragraphs 50 to 54 above.
Thus, the present application is disposed of on the above terms.
21 .01.2013 Index:Yes/No Internet:Yes/No sbi Note:
Issue order copy on 11.2.2013.
K.VENKATARAMAN, J sbi Pre-delivery order in O.A No.215 of 2012 in E.L.P.No.11 of 2011 DATED: 21. 01.2013