R. DAYANANDA SAGAR v. VATAL NAGARAJ — 1972 DIGILAW 197 (KAR)

( 1 ) I. A. NO. I was filed by the unsuccessful election petitioner Sri R. Dayanandasagar, praying that permission may be granted to him to add two paragraphs as Nos. (j) and (k) to para 14 of his Petition. The successful candidate Respondent No. 1 Sri Vatal Nagaraj filed his objections. The petitioner filed his reply statement (which is referred to also as 'rejoinder' or 'replication' in judicial pronouncements) to the Written Statement of the first respondent, and the latter filed his objections to its being entertained as part of the pleadings. ( 2 ) THE petitioner filed I. A. No. I under Order VI Rule 17 read with s. 151 CPC. (hereinafter referred to as the Code ). He subsequently filed i. A. No. II praying that I. A. No. I may be treated as one under S. 86 (5) of the Representation of the People Act, 1951 (hereinafter called the Act) read with Order VI Rule 17 of the Code. Orders were passed on 25-7-1972 on I. A. No. II that I. A. No. I will be heard on merits as an application filed only under S. 86 (5) of the Act. ( 3 ) THE two matters being somewhat inter-related, arguments were heard together on I. A. No. I and the question of entertaining the reply statement of the petitioner as part of the pleadings, and they stand disposed of by this common order. ( 4 ) A few particulars material at this stage are The petitioner and respondents 1 to 9 were the contesting candidates in the Election held in march 1972 to the Mysore Legislative Assembly from the Chamarajapet assembly Constituency in Bangalore City. The poll took place on 5-3-72. The Returning Officer on 11-3-1972 declared the first respondent as the returned candidate, he having secured 15,456 votes, and his closest rival the petitioner having secured 14,512 votes. The petitioner filed the Election petition on 24-4-1972. The first respondent filed his written statement on 20-6-72. On that date, Sri V. K. Govindarajulu,petitioner's learned Advocate, sought time to file his reply statement. He was directed to file it on the next adjourned date viz. , 26-6-1972. The petitioner filed the Election petition on 24-4-1972. The first respondent filed his written statement on 20-6-72. On that date, Sri V. K. Govindarajulu,petitioner's learned Advocate, sought time to file his reply statement. He was directed to file it on the next adjourned date viz. , 26-6-1972. On 20-6-1972 itself, Sri K. A. Swamy, first respondent's learned Advocate, represented that he may be permitted to file his objections to the entertaining of the reply statement of the petitioner as part of the pleadings; and permission was granted. The petitioner filed his reply statement on 26-6-1972. The last of the written statements viz. , those of respondents 3, 4 and 6, were filed on 3-7-1972. On that date, the first repondent filed his objections regarding the reply statement of the petitioner. The petitioner filed I. A. No. II also on that date. ( 5 ) THE petitioner assails the election of the first respondent almost wholly on ground of corrupt practices under Cls. (1), (2), (3), (3a), (4), and (6) of S. 123 of the Act. Under Cl. (6) of S. 123 the incurring or authorising of expenditure in contravention of S. 77 is a corrupt practice for the purposes of the Act. S. 77 deals with the account of election expenses to be maintained. The maximum expenses permissible are Rs. 10000. In paragraph 14 of the petition, the petitioner, under the head (d) the last head being (i) alleges that the first respondent has incurred or authorised expenditure of at least Rs. 2,500 for advertisements in the local press, and has suppressed that expenditure in his return of the Election Expenses (to be submitted as per S. 78 of the Act ). He has specified eleven such advertisements. In his amendment application I. A. No. I he seeks to add two more, detailed as below, as items (j) and (k) to paragraph 14 of his petition. "14 (j ). The 1st respondent and|or his election agent andjor his agents with the knowledge of the 1st respondent and or his election agent printed 20,000 copies of the newspaper 'karmeekavani' dt. 28-2- 1972 at the press in No. 316/h, Vijayanagar, Bangalore-40 edited by t. S. Ramadas for distribution on eve of his election and paid-a sum of Rs. 500 only towards the cost of printing and also incurred a sum of rs. 28-2- 1972 at the press in No. 316/h, Vijayanagar, Bangalore-40 edited by t. S. Ramadas for distribution on eve of his election and paid-a sum of Rs. 500 only towards the cost of printing and also incurred a sum of rs. 700 towards the cost of paper and the 1st respondent has suppressed his entire expenditure of Rs. 1,200 in his return of election expenses. 14 (k ). The 1st respondent and/or his election agent and/or his agents with the knowledge of the 1st Respondent and/or election agent printed 20,000 copies oi an election edition of the paper 'navaprapancha' whose Editor, Printer and Publisher is the first respondent himself and an expenditure of Rs. 1,000 for printing and an expenditure of Rs. 3,000 towards the cost of the paper was incurred by the 1st respondent. This total expenditure of Rs. 4,000 has been suppressed by the 1st respondent in his return of election expenses, though incurred in bangalore City on 28-2-1972. "the reason given for the non-inclusion of the above two items in the petition is found in paragraph 3 of the petitioner's affidavit to I. A. No. I which reads:"by inadvertence two more items of expenditure incurred by the 1st respondent are omitted as the concerned papers were not put in the file. These papers have been since traced and they are herewith produced. " ( 6 ) IN the objections to I. A. No. I filed by the first respondent, the contention is that an amendment of the petition cannot be permitted which has the effect of in'roducing particulars of a corrupt practice not previously alleged in. the petition, after the period of limitation prescribed. There is, however, a rider that the allegations in the proposd items 14 (j) and 14 (k) in the petition will be traversed in an additional written statement, if the amendment is allowed. ( 7 ) IN his objections to the reply statement of the petitioner, the first respondent says at paragraph 3:" The only procedure as contemplated under the relevant sections of the Representation of the People Act if at all available to a petitioner is to apply for an amendment of an election petition, if so advised, in regard to furnishing of particulars of corrupt practice already alleged in the Election Petition under S. 86, Cl. (5 ). "thus this right of the petitioner, the first respondent fairly concedes. (5 ). "thus this right of the petitioner, the first respondent fairly concedes. ( 8 ) BOTH sides have placed before me several decisions of the Supreme court. In the context of the present controversy let me refer to a few observations in these:" The policy of election law seems to be that for the establishment of purity of elections, investigation into all allegations of malpractices including corrupt should be thoroughly investigated," (R. M. Seshadri v. G. V. Pai (AIR. 1969 SC 692) at para 16 ). The Tribunal was of opinion that notwithstanding all these features, the amendment should be allowed as it was in the interests of the public that purity of elections should be maintained. But then, public interests equally demand that election disputes should be determined with despatch. " (Harish Chandra v. Triloki Singh (AIR. 1967 sc 444) at para 27 ). The subject of the amendment of an electon petition has been discussed from different angles in several cases of the High Courts and this Court. Each case, however, was decided on its own facts, that is to say, the kind of election petition that was filed, the kind of amendment that was sought, the stage at which the application for amendment was made and the state of the law at the time and so on. These cases do furnish some guidance but it is not to be thought that a particular case is intended to cover all situations. It is always advisable to look at the statute first to see alike what it authorises and what it prohibits. (S. N. Balakrishna v. Fernandz (AIR. 1969 SC. 1201) at para 23 ). " ( 9 ) I shall refer to some passages in two recent rulings of the Supreme court, which are of immediate application and assistance for a decision on I. A. No. 1, viz. , Purushothama Reddiar v. S. Perumal, AIR 1972 SC 608 and Raj narain v. Indira Gandhi, AIR 1972 SC 1302 . " (1) On October 13, 1969, the appellant applied for amendment of the election petition by giving some more particulars of the meetings held by the respondent. By that application he sought to give particulars of about six other meetings in addition to what he had already stated in his election petition, ?aid to have been arranged by the respondent. " (1) On October 13, 1969, the appellant applied for amendment of the election petition by giving some more particulars of the meetings held by the respondent. By that application he sought to give particulars of about six other meetings in addition to what he had already stated in his election petition, ?aid to have been arranged by the respondent. The Court rejected that application on the ground that by that application, additional grounds of corrupt practice were sought to be included in the election petition and the same cannot be permitted to be done after the period prescribed for filing the election petition was over. In our opinion, the High Court was wholly wrong in coming to the conclusion that the amendment application moved on behalf of appellant sought to add any new corrupt practice. The incurring or authorising of an expenditure in contravention of S. 77 of the Act is one single corrupt practice. The incurring or authorising of an expenditure in connection with election is not by itself a corrupt practice. The practice is the incurring or authorising the expenditure of more than the prescribed limit. Hence the trial Court erred in thinking that each item of expenditure is a corrupt practice by itself. This position is obvious from the language of the Section itself. This court had occasion to go into that question in D. P. Mishra v. Kamal narayan Sharma ( 1971 (1) SCR. 8 ). In that case this Court came to the conclusion that the particulars of a corrupt practice falling under s. 123 (6) may in an appropriate case be introduced by amendment. (2) It was contended on behalf of the respondent that the relevant provisions of the Act precluded appellant from proving his allegations. Therefore let us look at those provisions in the Act, i. e. , Clauses (a) and (b) of S. 83 (1) and Cl. (5) of S. 86 for finding out whether the charge has to be rejected in limine. ****** from these two provisions, it follows that if the allegations made do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and further those allegations cannot be amended after the period of limitation for filing an election petition; but the Court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified. The scope of these provisions has been considered in several decisions of this Court, ***** rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking there lies a juristic principle. It is the duty of the Court to ascertain that principle and implement it. What then is the principle underlying s. 86 (5) ? In our opinion the aim of that section is to see that a person accused of a corrupt practice must know precisely what he is accused of so that he may have the opportunity to meet the allegations made against him. If the accusation made is nebulous and is capable of being made use of for etablishing more than one charge or if it does not make out a corrupt practice at all then the charge fails at the very threshold. So long as the charge levelled is beyond doubt, S. 86 (5) is satisfied; rest is mere refinement. They either pertain to the region of particulars or evidence. ****** now coming to the appeal against the order of amendment application, the learned trial Judge disallowed the amendment sought on the sole ground that if those amendments are allowed it will amount to amending the statement of material facts and the same is not permissible in view of S. 86 (5 ). We have already found that that conclusion of the learned trial Judge is not correct. The amendment application was moved even before trial of the case commenced. It is not shown how the amendments sought in respect of paragraphs 2 and 5 of the petition can prejudice the case of the respondent. They are merely clarificatory in character. Courts are ordinarily liberal in allowing amendment of pleadings unless it results in prejudicing the case of the opposite party. Any inconvenience caused by amendment can always be compensated by costs. We think that the amendments asked for, should have been allowed and we allow the same. The election petition will be accordingly amended and the respondent will be afforded an opportunity to file any additional written statement if she so desires. Any inconvenience caused by amendment can always be compensated by costs. We think that the amendments asked for, should have been allowed and we allow the same. The election petition will be accordingly amended and the respondent will be afforded an opportunity to file any additional written statement if she so desires. " ( 10 ) IN the instant case, as already mentioned, corrupt practices ere alleged under Cls. (1), (2), (3), (3a), (4) and (6) of S. 123 of the Act, in various paragraphs of the petition. They contain concise statements of material facts on which the petitioner relies, as required by Cl. (a) and particulars as required by Cl. (b), of S. 83 of the Act. Under the head (d) of paragraph 14, the petitioner has furnished a list of advertisements in the local press for which the first respondent is alleged to have incurred expenditure. By the amendment sought for, the petitioner seeks to include two more advertisements to the list. This would amount to merely seeking the allowing of particulars of a corrput practice alleged in the petition to be amplified and would not amount to adding any new corrupt practice. The corrupt practice is the incurring or the authorising of expenditure of more than the prescribed limit. It would be erroneous to think that each item of expenditure is a corrupt practice by itself. The particulars of a corrupt practice falling under S. 123 (6) may, in an appropriate case, such as the present one, be introduced by an amendment. ( 11 ) IN the amendment of the petition sought by introducing paragraphs 14 (j) and 14 (k) as set out in I. A. No. I, Sri Govindarajulu represents that the expression "and / or his election agent and / or his agents with the knowledge of the 1st respondent and / or his election agent" may be deleted. I do not see how this request can at all hurt the first respondent. It is granted, and that expression will be deleted from paragraphs 14 (j) and 14 (k ). ( 12 ) FROM the various dates set out earlier in the Order it is seen that the petitioner has filed I. A. No. I without delay. I do not see how this request can at all hurt the first respondent. It is granted, and that expression will be deleted from paragraphs 14 (j) and 14 (k ). ( 12 ) FROM the various dates set out earlier in the Order it is seen that the petitioner has filed I. A. No. I without delay. Issues have yet to be framed and the trial to commence: No prejudice can be caused to the first 'respondent by the amendment of the petition by the introduction of paragraphs 14 (j) and 14 (k), with the deletions as mentioned in the preceding para. Further, there is compensation provided by award of costs. Moreover the first respondent will be given an opportunity to file an additional written statement, as desired by him. ( 13 ) SRI D. Venugopalachary, first respondent's learned Advocate, represented that there is no provision in the Act for filing a reply statement by the petitioner. Sri Govindarajulu referred to S. 87 (1) of the Act and Order VIII Rule 9 of the Code. Cl. (i) to S. 87 of the Act enjoins that all the powers under the Code can be exercised and all the procedure as far as may be applicable to the trial of Civil suits may be followed in the trial of election petitions. Order VIII Rule 9 of the Code refers to a pleading subsequent to the -written statement of a defendant, to be filed by leave of the Court. The word 'pleading' would, as it appears to me, include a reply statement of the plaintiff. It cannot be filed as a matter of right, but the rule does not contemplate that leave of the Court ought to be obtained by an application in writing. Thus there can be no legal bar for the petitioner to file a reply statement to the written statement of the first respondent, obtaining leave of the Court, orally, as has been done here. ( 14 ) WHAT is prohibited according to AIR. 1967 Supreme Court 457, at para 27 (already referred to), is the petitioner's filing a replication in which he seeks to weave fresh allegations into the fabric of his petition resulting merely in patchwork. In the case before us, the reply statement filed by the petitioner is not of the above character. 1967 Supreme Court 457, at para 27 (already referred to), is the petitioner's filing a replication in which he seeks to weave fresh allegations into the fabric of his petition resulting merely in patchwork. In the case before us, the reply statement filed by the petitioner is not of the above character. I have carefully scanned it, and I find that it seeks only to supply some more details of the allegations made in the petition and which pertain to the realm of evidence. I see no good reason to disallow the reply statement to be entertained as a part of the pleadings. ( 15 ) IN the result, I. A. No. I is allowed subject to the deletions mentioned in para 11 above. The petitioner shall pay Rs. 50 as costs to the first respondent. The latter is permitted to file an additional written statement, consequent to the amendment being allowed. The reply statement filed by the petitioner to the written statement of the first respondent will be entertained as part of the pleadings. --- *** --- .