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2001 DIGILAW 114 (KAR)

C. VEERABHADRAIAH v. C. CHANNIGAPPA

2001-02-06

N.S.VEERABHADRAIAH

body2001
N. S. VEERABHADRAIAH, J. ( 1 ) THE unsuccessful Indian National Congress (I) candidate Sri C. Veer- abhadraiah, the petitioner has questioned the 11th Karnataka Legislative assembly General Election held on 5-9-1999 for Koratagere legislative Assembly Constituency (No. 56), Tumkur District declaring respondent 1-Sri C. Channigappa as elected candidate in the counting of votes that took place on 6-10-1999 by the Returning Officer, Koratagere assembly Constituency under Section 100 (l) (b) and (d) (ii), (iii) and (iv) of the Representation of the People Act, 1951. ( 2 ) THE petitioner-C. Veerabhadraiah from the Indian National Congress (I), respondent 1-C. Channigappa from the Janatha Dal (S), respondent 2-Andanappa from BJP, Smt. Jayanthi, respondent 3 from janatha Dal (U) and respondents 4 to 6 are being independent candidates, contested for the election to the Legislative Assembly from the state, No. 56, Koratagere Assembly Constituency held on 5-9-1999. In the said election, respondent 1-Channigappa has been declared as an elected candidate as he has secured 33,558 votes whereas the petitioner was defeated with a difference of 706 votes by securing 32,852 votes. The petitioner questioned the election on the allegation that the respondent 1 resorted to goondaism with his supporters on 2-9-1999 which is within the jurisdiction of Dobaspet Police Station while the 3rd respondent was returning after completing her election campaign, the supporters of 1st respondent had come in a Matador van bearing No. KA-02/7929 and tata Sumo bearing No. KA-02/a-7744 at about 9. 00 p. m. , stopped her car and caused obstruction. Therefore, the 3rd respondent filed a complaint at Dobaspet Police Station, Nelamangala Circle at 11. 00 p. m. on 2-9-1999. These facts have also been appeared in the Samyuktha Karnataka, a Kannada daily, Indian Express and other newspapers. ( 3 ) THE 1st respondent and his agents published and distributed pamphlets as per Annexures-C and D wherein the photos of his Holiness Dr. Sri Sri Shivakumara Swamigalu of Siddaganga Muth, Tumkur District and also the photo of his Holiness Jagadguru Sri Balagangadharanath swamiji of Adichiinchanagiri Muth were printed along with the photo of the leaders of Janatha Dal (S ). Sri Sri Shivakumara Swamigalu of Siddaganga Muth, Tumkur District and also the photo of his Holiness Jagadguru Sri Balagangadharanath swamiji of Adichiinchanagiri Muth were printed along with the photo of the leaders of Janatha Dal (S ). In Koratagere Constituency majority of the voters belong to Veerashaiva or Lingayath community and Vokkaliga community, the two Swamijis have been highly respected and regarded as a symbol of sacrifice and devotion in the cause of upliftment of the poor and also in the cause of providing free education to the poor. The people of Veerashaiva Community have regarded Sri Shivakumara swamigalu as "moving God" on earth by the devotees. His photos are found in majority of the houses in Koratagere Taluk and Nelamangala taluk and other places. Nextly, Sri Balagangadharanath Swamiji of adichunchanagiri Muth is recognised, respected and revered as religious head of Vokkaliga community in the State which is regarded as one of the backward community in the State who has also established various educational institutions in different parts of the State and he was regarded as undisputed head of Vokkaliga community and he is also regarded as symbol of unity and cause of upliftment of the poor. ( 4 ) THE photographs of these two Swamijis in the pamphlet issued by the 1st respondent or his agents or his supporters with the consent or the knowledge of the 1st respondent or his agents amounts to use of religious symbols for furtherance of the prospect of election of the 1st respondent and at the same time prejudicially affected the election of the petitioner or other candidates. The 1st respondent had appealed to the voters to cast their votes in his favour, by use of or by appealing to religious symbols of Veerashaiva religion and Vokkaligara community for the furtherance of the prospect of his election. As a consequence, all or majority of Vokkaligas and Veerashaivas in Koratagere Constituency had supported and voted in favour of respondent 1. ( 5 ) THE respondent 1 appealed to the voters that he was responsible for carrying out nearly 24 items of work which is an inducement made to the voters to vote in his favour and thereby played corrupt practice in securing the votes which is clear from the pamphlets issued by the 1st respondent using the photos of both the Swamijis as a symbol to cast votes in his favour. On the above pleadings and on other grounds he prayed to declare the first respondent as an elected candidate from koratagere Assembly Constituency as void and also for such other reliefs, ( 6 ) THE contesting respondent 1 filed LA. No. III under Order 7, Rule 11 of the CPC to reject the election petition, for which objections were filed by the petitioner on 29-5-2000 on the same day. Also, the contesting respondent 1 filed objections along with written statement as per the directions of this Court. While the arguments were in progress on LA. No. III, the learned Counsel for the petitioner filed LA. No. VI under order 6. Rule 17 praying for amendment of the pleadings of the election petition by incorporating para 5 (f), (g) and (h ). The learned Counsel for the respondent 1 filed objections to the amended pleadings. ( 7 ) AFTER Completion of the pleadings, heard both side Counsels. Posted for orders on LA. No. III filed under Order 7, Rule 11 of the CPC and LA. No, VI filed under Order 6, Rule 17 of the CPC. ( 8 ) THE learned Senior Advocate, Sri B. V. Acharya for the 1st respondent contended that the petition is lacking in material facts and particulars. The mandatory provisions of Section 83 (b) has not been complied with. Therefore, there is no cause of action to question the election of the respondent 1 as the petition does not disclose or set forth particulars of any corrupt practice. So also, the ingredients of Section 123 (3) of the representation of the People Act are not forthcoming. Mere exhibiting photo will not amount to an appeal to the voters and that cannot be construed as religious symbols. It is only if the ingredients of Section 123 are complied with, it gives rise to a cause of action. The pleadings in para 5 (b) to (d) do not contain and mention about the date, place and particulars of the allegations and thereby the requirements of Section 83 of the Act has not been complied with. It is also sought to be contended that there are no averments to show that the publication was made with the knowledge or consent of the returned candidate. There is also no pleading to show in whose presence the pamphlets were distributed. It is also sought to be contended that there are no averments to show that the publication was made with the knowledge or consent of the returned candidate. There is also no pleading to show in whose presence the pamphlets were distributed. Mere appeal to the voters or an appeal made in the newspapers do not amount to a corrupt practice. It is only if he were to say, "not to vote for the opposite candidate or to make allegations in the form which touches personal character", amounts to corrupt practice. Thereby the election petition is lacking in material facts and particulars, as the allegations made are extremely vague. Therefore, he prayed to allow LA. No. Ill by rejecting the election petition. ( 9 ) INSOFAR as LA. No. VI filed by the petitioner under Order 6, Rule 17 is concerned, the learned Counsel, Sri B. V. Acharya for the 1st respondent contended that the law in the matter of election petition stands on a different footing where the amendment sought introduces altogether a new case, such an amendment cannot be permitted. In the case on hand, the petitioner wanted to incorporate the contents which are in the form of material facts. Therefore, the application cannot be allowed. Further, he contended that Section 83 of the Representation of the Peoples Act, 1954 (an 'act' in short) makes clear that corrupt practice have to be specifically pleaded by way of facts and particulars, vague allegations do not make the cause of action. It is also sought to be contended that section 123 (3) of the Representation of Peoples Act are not attracted. The use of photographs of Swamijis are not of religious symbols and that apart any "living person" or using the word "om with flag" also do not amount to the use of religious symbol. Therefore, the mere use of photographs do not influence the minds of the voters to vote in favour of respondent 1 or it cannot be construed as a religious symbol. ( 10 ) THE learned Counsel for the petitioner firstly contended that the amendment sought for incorporation of para 5 (f), (g) and (h) do not introduce any new case or leads to any fresh cause of action. ( 10 ) THE learned Counsel for the petitioner firstly contended that the amendment sought for incorporation of para 5 (f), (g) and (h) do not introduce any new case or leads to any fresh cause of action. The petitioner has specifically pleaded in para 5 (b) to (e) of the petition regarding the religious symbol and also regarding "undue influence" as to how it has influenced the minds of voters. He further contended that as seen from Annexure-A, it shows the details of number of votes polled, and it reveals that it is only on account of the use of the photographs of Swamijis particularly in Koratagere Constituency, the Janatha Dal (S) candidate was able to secure 33,558 votes whereas in other constituency it is even less than the margin. It is also clear from Annexure-K, that it shows the Loksabha candidate had polled more votes than any other candidate contested from other parties. Secondly, he contended that the petitioner has urged and pleaded all the material facts and also material particulars. What is stated in LA. No. VI is only the explanation by way of particulars in respect of the material facts already pleaded. Therefore, there being sufficient materials as required under Section 83 of the Act, the Interlocutory Application No. III filed under Order 7, Rule 11 does not survive and the same is liable to be dismissed. It is also contended that at this stage, the relief prayed for amendment cannot be rejected as the petitioner has pleaded all material facts, and what is now required to be incorporated is only the material particulars and not any fresh grounds or new plea. Accordingly, prayed to permit him to incorporate the additional para 5 (f), (g) and (h) which do not change or alter the nature or pleadings of the petition or relief prayed for. ( 11 ) IN the light of the various contentions raised, the points that arise for determination are: (1) Whether the amendment sought for incorporation as para 5 (f), (g) and (h) introduces altogether a new case or change the nature of election petition. (2) Whether the pleadings in the election petition is lacking in the material facts and particulars as required under Section 83 of the representation of the People Act, 1951 and thereby the election petition is liable to be rejected under Order 7, Rule 11 of the CPC. (2) Whether the pleadings in the election petition is lacking in the material facts and particulars as required under Section 83 of the representation of the People Act, 1951 and thereby the election petition is liable to be rejected under Order 7, Rule 11 of the CPC. ( 12 ) SINCE both the points are interrelated, they have been taken up together for consideration. The main contention of the learned Counsel, sri B. V. Acharya for the first respondent is that, the petition lacks material particulars and that the amendment sought for also cannot be allowed as it altogether introduces a new case. It is in this background, now it has to be examined, whether the election petition contains the pleadings as required under Section 100 of the Representation of the people Act, 1951 (hereinafter referred to as the 'act' in short) and further the material facts and particulars have been pleaded as required under Section 83 (a) and (b) of the Act and as well as the ingredients of section 123 of the Act are also forthcoming. To appreciate the contention, the Court should bear in mind the matters that are required to be pleaded in an election petition. Section 100 of the Act reads thus:"100. Grounds for declaring election to be void. To appreciate the contention, the Court should bear in mind the matters that are required to be pleaded in an election petition. Section 100 of the Act reads thus:"100. Grounds for declaring election to be void. (1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion (a) that on the date of his election a returned candidate was not qualified or was disqualified, to be chosen to fill the seat under the constitution or this Act [or the Government of Union Territories act, 1963 (20 of 1963)]; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the returned candidate (by an agent other than his election agent), or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act (the high Court), shall declare the election of the returned candidate to be void. (2) If in the opinion of (the High Court), a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but (the High Court) is satisfied (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and (without the consent), of the candidate or his election agent; (b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then (the High Court) may decide that the election of the returned candidate is not void". ( 13 ) IN case if corrupt practice is proved as is alleged to have been committed by an elected candidate, then only the election can be set aside as void. Section 123 of the Act defines what are corrupt practices. In this case, we are concerned only with Section 123 (3) of the Act, which reads thus:"123 (3): The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate: (Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.)" ( 14 ) IN the case on hand, it is pleaded that the elected candidate has used the photographs of Swamijis. Now, the question that arises is whether the use of the photos of Swamijis resulted in influencing the minds of the voters. This is a matter which has to be examined at the time of trial on the basis of the materials which will be made available. Therefore, at this preliminary stage, it is rather impermissible to hold that respondent 1 had played any corrupt practice by appealing the voters to cast votes in his favour by displaying the photos of the Swamijis. It is a common knowledge that whenever the evidence is required, the Court should not form any opinion holding that such an elected candidate has played corrupt practice unless it is proved as required under Section 100 of the Act. It is only after such proof, it has to be held that such an election is void. Now, coming to the pleadings of the petition, the petitioner has categorically narrated the material facts in para 5 (a), (b), (c) and (d) as to how the matters went on till the declaration of the results are concerned. It is only after such proof, it has to be held that such an election is void. Now, coming to the pleadings of the petition, the petitioner has categorically narrated the material facts in para 5 (a), (b), (c) and (d) as to how the matters went on till the declaration of the results are concerned. What is now required to be incorporated as para 5 (f), (g) and (h) which reads thus:"5 (F): The petitioner submits that the first respondent along with his leaders of Janatha Dal (S) had conducted election meeting on 31-8-1999 at about 11. 30 a. m. at Dobaspet. In the said meetings one Bettaswamy Gowda and Srinivasa and others who were the members and party workers of Janatha Dal (S) and also the agents of the first respondent in canvassing, counting and in other matters relating to election of first respondent were also present. Former Prime Minister Sri Devegowda addressed the gathering. Large number of persons attended the said meetings. In the said meeting Sri Bettaswamy Gowda, Srinivasa and others on the direction of the first respondent, were distributing the annexures-C and D pamphlets to the persons present in the meeting. At that time Sri B. N. Paramesh, Sri Hanumaiah of goraghatta, were present in the said meeting and were also given the said pamphlets by Bettaswamy Gowda, Srinivasa and others. The said pamphlet Annexure-C was published in the name of bettaswamy Gowda and Srinivasa on the direction or consent of the first respondent at Nisarga Mudrana, Ramanagar. Annexure-D was printed and published in the name of President of Taluk Janatha Dal (S) at Nisarga Mudrana, Ramanagar. Those pamphlets were published and distributed in various places in sompura, Koratagere, Holavanahalli, Kolala, Tyamgondalu and other places. 5 (g): The petitioner further submits that, the above said pamphlets were distributed house to house, throughout the constituency between 21-8-1999 and 3-9-1999 by the first respondent, his agents and supporters. For instance on 26-8-1999 the said pamphlets were distributed at Nagenahalli of Koratagere taluk by party workers of first respondent. Those pamphlets were distributed by Agalaguppe Srinivasa and other workers at agalaguppe and Sompura (Dobaspet) on 23rd and 24th of August, 1999 by going from house to house. For instance on 26-8-1999 the said pamphlets were distributed at Nagenahalli of Koratagere taluk by party workers of first respondent. Those pamphlets were distributed by Agalaguppe Srinivasa and other workers at agalaguppe and Sompura (Dobaspet) on 23rd and 24th of August, 1999 by going from house to house. When this fact came to the notice of Siddaganga Math, they had published a public notice and also written to the District Election Officer and Deputy commissioner on 28-8-1999 complaining the misuse of photo of sri Sri Shivakumara Swamiji by printing and distribution of handbills with photo of Swamiji in Koratagere Legislative constituency and Chikkaballapur Parliamentary Constituency. Thereafter, the first respondent had written to the Math on 30-8-1999, stating that his followers distributed those handbills without his knowledge and he would not conduct himself in a manner so as to bring disgrace to the Math. In that context, the first respondent and the office-bearers of Janatha Dal (S) had gone to Sri Siddaganga Math and expressed their apology. By that time, almost all distribution of pamphlets was over. To the information of petitioner the said pamphlets were distributed by first respondent from 21-9-1999 till 3rd September, 1999. 5 (h): Petitioner further submits that on 31-8-1999 another election meeting attended by former Prime Minister Sri H. D. Devegowda was conducted at 4. 30 p. m. in Koratagere town. In that meeting, the pamphlets produced as Annexures-C and D were distributed by agent of first respondent. One Jayaram of neelagondanahalli and Sri Mallesh, S/o Chandrappa of yelerampura were present in that meeting. They were also given the pamphlets Annexures-C and D by Sri Ramesh of Dasarahalli who was the agent of first respondent. Those pamphlets were distributed house to house, in Koratagere town, on 28th and 29th of August, 1999. It was seen by above mentioned Jayaram of neelagondanahalli and Mallesh, S/o Chandrappa of Yelerampura. It is further submitted that the distribution of the said pamphlets house to house at Agalaguppe and Sompura on 23rd and 24th of august, 1999 was witnessed by one Sri B. N. Paramesh of borgenahalli and Sri Hanumaiah of Goraghatta. In addition, the said distribution of pamphlets took place throughout Koratagere constituency and also Chickkaballapura Parliamentary constituency between 21-8-1999 and 3-9-1999. At that time Sri A. Nagarajaiah, S/o Doddaiah of Arasapura was the Block Congress (1) President of Koratagere Constituency. In addition, the said distribution of pamphlets took place throughout Koratagere constituency and also Chickkaballapura Parliamentary constituency between 21-8-1999 and 3-9-1999. At that time Sri A. Nagarajaiah, S/o Doddaiah of Arasapura was the Block Congress (1) President of Koratagere Constituency. He was in charge of the election campaign on behalf of the petitioner in Koratagere constituency. He had seen the distribution of Annexures-C and D pamphlets throughout the constituency between 21-8-1999 and 3-9-1999. The petitioner collected these information mentioned in paragraph 5 (f) and 5 (g) and this paragraph from the eye-witnesses to these allegations namely, B. N. Paramesh, S/o Neelakantappa, sri Jayaram of Neelagondanahalli, President, Gram Panchayat, hanumaiah of Goragatta, Mallesh, S/o Chandrappa of yelerampura and AN. Nagarajaiah, S/o Doddaiah of Arasapura and others". ( 15 ) ON going through the entire pleadings, it shows that what is sought to be incorporated by way of amendment are all material particulars but not material facts as is defined under Section 83 of the Act which reads thus:"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 nd the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any Schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition". ( 16 ) SECTION 83 of the Act makes clear that the election petition shall contain material facts whereas, Section 83 (b) requires that the petition shall contain full particulars of any corrupt practice. In the case on hand, the material facts as also some of the material particulars are found in the election petition. ( 16 ) SECTION 83 of the Act makes clear that the election petition shall contain material facts whereas, Section 83 (b) requires that the petition shall contain full particulars of any corrupt practice. In the case on hand, the material facts as also some of the material particulars are found in the election petition. In the case of Samant N. Balakrishna and another v George Fernandez and Others1, while considering the ingredients of Section 83 of the Representation of the People Act, 1951 (an 'act' in short) at para 29 of the said decision, it is observed that the election petition can be presented on one or more grounds specified in sub-section (1) of Sections 100 and 101 by narrating the entire pleadings and complete cause of action in the shape of material facts. It is in this context, the learned Counsel, Sri B. V. Acharya for the first respondent has vehemently contended that the petition is lacking in material facts as well as material particulars. Therefore, the petition under Order 7, rule 11 of the CPC is liable to be rejected. ( 17 ) IN the light of the submissions, what is required to be considered is, whether the petition discloses cause of action and the petitioner has pleaded material facts and particulars. The learned Counsel for the petitioner has brought to the notice of the Court the unreported judgment of the Supreme Court (1969, page 215, paras 11, 13 and 14) in the case of Ambika Sharan Singh v Mahanth Mahadevanand Giri, at page 252 while considering the allegations of corrupt practice in seeking votes on caste basis observed:"a command by a religious head to his followers that it was their primary duty to support a particular candidate was held sufficient to vitiate the election and it was not considered necessarily to have the names of persons to whom the command was addressed to". ( 18 ) RELYING on the above decision, it is sought to be contended that the pamphlets in which the photos of Swamijis is printed is nothing but a command by the religious head to vote in favour of respondent 1. ( 18 ) RELYING on the above decision, it is sought to be contended that the pamphlets in which the photos of Swamijis is printed is nothing but a command by the religious head to vote in favour of respondent 1. Now, the question whether the printing of the photos of two Swamijis amounts to a command by the religious heads to vote in favour of the respondent 1 or not, is purely a matter of evidence which cannot be considered at this juncture while adjudicating the interlocutory applications. ( 19 ) IN the case of F. A Sapa v Singora and Others2, at para 18 while considering Section 81 (3) of the Act held that:"only the particulars of that corrupt practice of which the germ exists in the election petition can be amended or amplified and there can be no question of introducing a new corrupt practice. It is significant to note that Section 86 (5) permits 'particulars' of any corrupt practice 'alleged in the petition' to be amended or amplified and not 'material facts'. It is therefore clear from the trinity of clauses (a) and (b) of Section 83 and sub-section (5) of Section 86 that there is a distinction between 'material facts' referred to in clause (a) and 'particulars' referred to in clause (b) and what Section 86 (5) permits is the amendment amplification of the latter and not of the former. Therefore, it is clear from the reading of section 86 (5) which confines itself to the amendment of 'particulars' of any corrupt practice alleged and does not extend to 'material facts'". In the case on hand what is sought to be amended by incorporating certain particulars in detail, does not pertain to 'material facts'. Therefore, in my view, the petitioner is entitled for the relief sought for by an amendment. ( 20 ) THE learned Counsel for the petitioner also relied on the decision in the case of Kalamata Mohan Rao v Narayana Rao Dharmana and others, insofar as the establishment of a religious symbol. In the said case, the Telugu Desam Supremo N. T. Rama Rao has projected the incarnation of God Lord Krishna. Considering the facts of the case, the election of the elected candidate was set aside. In the said case, the Telugu Desam Supremo N. T. Rama Rao has projected the incarnation of God Lord Krishna. Considering the facts of the case, the election of the elected candidate was set aside. In the present case, it is sought to be contended by the learned Counsel for the petitioner that on the basis of projection of the photos of two Swamijis in the pamphlet that the voters were influenced to cast votes in his favour. Therefore, the election declaring respondent 1 as elected candidate is liable to be quashed. In my view, whether the said Swamijis had so much of power to influence the minds of the people so as to cast their votes in favour of the respondent 1 is purely a matter of evidence. ( 21 ) WHILE dealing with the similar question, the Apex Court in the case of V. S. Achuthanandan v P. J. Francis and Another2, at para 12 thus observed:"12. The appellant had specified the alleged corrupt practices in paragraph 11 (E), (F), (H), (J), (K), (M) and (P ). It was alleged that sri Ayyappan Pillai, the Election Tahsildar of the Constituency was close associate and friend of the 1st respondent who played a pivotal role in the manoeuvring relating to ballot papers which were not distributed to the polling stations and ultimately used for the benefit of the successful candidate. He was alleged to have been helping the 1st respondent in violation of the provisions of the Act, the Rules, Orders and instructions issued thereunder. He was admittedly a Gazetted Officer who was alleged to have acted as an agent of the 1st respondent. The trial Judge found that allegations made in paragraph 11 (E), (F), (H), (J), (K), (M) and (P) of the election petition were vague in nature and did not set forth full particulars of any corrupt practice. Lacking of full particulars could not be made a basis for rejecting the election petition as the appellant had the right to amend the pleadings. The trial Judge found that, "details of corrupt practice are wanting in the election petition". The absence of the details appears to have persuaded the learned Judge to reject the election petition apparently under a misconception of the legal position regarding the difference between the 'material facts' and 'material particulars'. The trial Judge found that, "details of corrupt practice are wanting in the election petition". The absence of the details appears to have persuaded the learned Judge to reject the election petition apparently under a misconception of the legal position regarding the difference between the 'material facts' and 'material particulars'. The learned trial Judge rejected the election petition on his being satisfied that: "though as per the amended affidavit, the corrupt practice will attract Section 123 (7) of the Act, it is not stated in the election petition that either the candidate or his agent or any other person with the consent of the candidate or his election agent, obtained, procured, abetted or attempted to obtain of procure the service of any person under the Government for the furtherance of the prospects of the candidate's election. Though it is stated that Sri Ayyappan Pillai is a gazetted Officer, it is not stated anywhere in the petition that the first respondent or his agent directly or by any other person with his consent or that of his election agent obtained or procured the assistance of a Gazetted Officer" ". It appears that he lost sight of allegations of the petitioner made in paragraph 9 of the election petition wherein it was stated:"the result of election, insofar as it concerns the returned candidate, the 1st respondent in this case, has been materially affected by (i) corrupt practice committed in the interest of the returned candidate by his agents, election agent and the returned candidate; (ii) by the improper reception of votes which is void; and (hi) by the non-compliance with the provisions of the Constitution and the provisions of the Representation of the People Act, 1951 as also Rules and Orders made under the Act". It was, therefore, wrongly, found that in the absence of specific pleadings and full particulars of corrupt practices, the election petition de- served rejection as it allegedly did not disclose any cause of action. The trial Judge appears to have equated the causr, of action with proof and thus committed an illegality of law requiring interference by us. This court in Mohan Rawale v Damodar Tatyaba alias Dadasaheb1, held that a reasonable cause of action is said to mean a cause of action with some chances of success when only the allegations in the pleadings are considered. This court in Mohan Rawale v Damodar Tatyaba alias Dadasaheb1, held that a reasonable cause of action is said to mean a cause of action with some chances of success when only the allegations in the pleadings are considered. 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 and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are generally more known than clearly understood. It was further held that the failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. The distinctions among the ideas of the "grounds" in Section 81 (1) of "material facts" in Section 83 (l) (a) and of "full particulars" in Section 83 (l) (b) are obvious. The provisions of Section 83 (l) (a) and (b) are in the familiar pattern of Order 6, Rules 2 and 4 1. (1994)2 SCC 392 : 1994 AIR SCW 2028 and Order 7, Rule He) of the CPC. There is a distinction amongst the 'grounds' in Section 81 (1); the 'material facts' in Section 83 (l) (a) and "full particulars" in Section 83 (l) (b ). The Court approved the observations of Jacob in "the Present Importance of Pleadings" (1960) (Current legal problems at pages 175 and 176 ). "pleadings do not only define the issues between the parties for the final decision of the Court at the trial, they manifest and exert their importance throughout the whole process of the litigation. . . . . They show on their face whether a reasonable cause of action or defence is disclosed. They provide a guide for the proper mode of trial and particularly for the trial of preliminary issues of law or fact. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They act as a measure for comparing the evidence of a party with the case which he has pleaded. They determine the range of the admissible evidence which the parties should be prepared to adduce at the trial. They delimit the relief which the Court can award. . . ". They act as a measure for comparing the evidence of a party with the case which he has pleaded. They determine the range of the admissible evidence which the parties should be prepared to adduce at the trial. They delimit the relief which the Court can award. . . ". Looking at the averments made in the election petition, it cannot be said that it suffered from lack of disclosure of material facts. The absence of material particulars, if any, could be rectified by resort to amendment of the pleadings in terms of Order 6, Rule 17 of the CPC. ( 22 ) IN D. Ramachandran v R. V. Janakiraman and Others1, while considering the provisions of Order 6, Rule 16 as well as Order 7, Rule 11 at para 10 thus observed:"10. On the other hand, Rule 11 of Order 7 enjoins the Court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this rule. The application filed by the first respondent in O. A. No. 36 of 1997 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order 7, Rule ll (a), learned Senior Counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which is unrebutted could void the election and the provisions of Order 7, Rule ll (a) of the CPC cannot therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under Order 7, rule ll (a) of the CPC 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. See Roop Lal Sathi v Nachhattar, Singh gill. It is elementary that under Order 7, rule ll (a) of the CPC 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. See Roop Lal Sathi v Nachhattar, Singh gill. We are satisfied that the election petition in this case could not have been rejected in limine without a trial". ( 23 ) IN the case of V. Narayanaswamy v C. P. Thirunavukkarasu, it is held that where there are allegations of corrupt practice, it is the duty of the petitioner to furnish full particulars of such corrupt practice and file it in compliance with law as per the provisions of the Representation of the People Act, 1951. It is also held that in the absence of the material particulars, the petition can be dismissed and the High Court suo motu has no power to call upon the parties to produce better particulars. But here is a case where the petitioner has specifically pleaded the material facts so also certain material particulars. That apart, the documents produced also supports insofar as the narration of the pleadings. Under such circumstances, it is rather difficult to hold that this election petition is lacking in material facts and also material particulars. Keeping in mind the various pronouncements of the Supreme Court, I am of the view that each case has to be examined on its own facts and circumstances. ( 24 ) THAT on a perusal of the documents produced in the present case by the petitioner Annexure-C refers to a pamphlet/handbill. It makes clear that it depicts the photographs of two Swamijis Sri Shivakumara swamigalu of Siddaganga Math and Adichunchanagiri Math along with the photographs of the political leaders of Janatha Dal (S) party. It further makes clear, it was printed at "nisarga Mudrana" at Ramana- gar, published by Agalappe Puttaswamigowda and Srinivasa. So also, on the reverse of the pamphlet, the photographs of two Swamijis and the political leader along with the photo of the candidate Channigappa, respondent 1 printed with certain development work that was alleged to have been implemented. Annexure-D is the other pamphlet printed at nisarga Mudrana, Ramanagar with the photographs of the two Swamijis. So also, on the reverse of the pamphlet, the photographs of two Swamijis and the political leader along with the photo of the candidate Channigappa, respondent 1 printed with certain development work that was alleged to have been implemented. Annexure-D is the other pamphlet printed at nisarga Mudrana, Ramanagar with the photographs of the two Swamijis. It is the specific case of the petitioner that Annexures-C and D were widely distributed wherein the same is pleaded in the petition in column (5) (b ). Insofar as the incident of attack on the candidature Smt. Jayanthi, it is clear from Annexure-B that the candidate Jayanthi was attacked on 2-9-1999 at about 2. 00 p. m. while she was returning after the election campaign wherein she has lodged a complaint before the Dobaspet police Station which is located within the Koratagere constituency and a case came to be registered under Sections 143, 147, 148, 149, 324, 354, 427, 504, 327 and 506 of the IPC against 7 and other accused persons. The said facts have been specifically pleaded in para 5 (a) of the petition. Now, what is sought to be incorporated by way of an amendment at para 5 (f), (g) and (h ). On reading of the above para, it reveals that it is in the form of furnishing more particulars regarding the matters that have already been pleaded in the previous paras. It is further clear from Section 86 (5) of the Act which reads thus:"86. Trial of election petitions. (5) The High Court may, upon such terms a. s to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition". The reading of the section, makes it clear that for ensuring fair and effective trial of the petition allow the particulars of removing corrupt practice alleged in the petition to be amended or amplified on terms. But, it should not introduce any new particulars of corrupt practice not previously pleaded. The reading of the section, makes it clear that for ensuring fair and effective trial of the petition allow the particulars of removing corrupt practice alleged in the petition to be amended or amplified on terms. But, it should not introduce any new particulars of corrupt practice not previously pleaded. On a combined reading of this section and the petition averments narrated in para 5 (a), (b) and (c) and para 5 (f), (g) and (h) makes clear that it did not introduce any new case or fresh particulars so as to incorporate fresh cause of action. Therefore, the contention of the learned Counsel, Sri B. V. Acharya cannot be accepted, in view of the admitted principles laid down in the decision of F. A. Sapa's case, supra, has observed at para 18, which reads thus:"para 18. Before the amendment of the Representation of the people Act by Act 27 of 1956, Section 83 (3) provided for an amendment of an election petition insofar as 'particulars' of corrupt practice were concerned. By the 1956 amendment this provision was replaced by Section 90 (5) which in turn came to be deleted and transferred as sub-section (5) of Section 86 by the Amendment Act 47 of 1966. Section 86 (5) as it presently stands empowers the High court to allow the 'particulars' of any corrupt practice alleged in the petition to amended or amplified provided the amendment does not have the effect of widening the scope of the election petition by introducing particulars in regard to a corrupt practice not previously alleged or pleaded within the period of limitation in the election petition. In other words the amendment or amplification must relate to particulars of a corrupt practice already pleaded and must not be an effort to expand the scope of the inquiry by introducing particulars regarding a different corrupt practice not earlier pleaded. Only the particulars of that corrupt practice of which the germ exists in the election petition can be amended or amplified and there can be no question of introducing a new corrupt practice. It is significant to note that Section 86 (5) permits 'particulars' of any corrupt practice 'alleged in the petition' to be amended or amplified and not the 'material facts'. It is significant to note that Section 86 (5) permits 'particulars' of any corrupt practice 'alleged in the petition' to be amended or amplified and not the 'material facts'. It is, therefore, clear from the trinity of clauses (a) and (b) of Section 83 and sub-section (5) of Section 86 that there is a distinction between material facts referred to in clause (a) and 'particulars' referred to in clause (b) and what Section 86 (5) permits is the amendment/amplification of the latter and not the former. Thus the power of amendment granted by Section 86 (5) is relatable to clause (b) of Section 83 (1) and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice not already pleaded in the election petition. The power is not relatable to clause (a) of Section 83 (1) as the plain language of Section 86 (5) confines itself to the amendments of 'particulars' of any corrupt practice alleged in the petition and does not extend to 'material facts'. This becomes crystal-clear on the plain words of the closely connected trinity of Sections 83 (l) (a), 83 (l) (b) and 86 (5) and is also supported by authority. See Samant N. Balakrishna's case, supra and D. P. Mishra v Kamal Narayan Sharma1. In Balwan Singh v lakshmi Narain2, this Court held that if full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to avail of that opportunity that part of the charge may be struck down. We may, however, hasten to add that once the amendment sought falls within the purview of Section 86 (5), the high Court should be liberal in allowing the same unless, in the facts and circumstances of the case, the Court finds it unjust and prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience, vide raj Narain v Smt. Indira Nehru Gandhi. This much for the provisions of Sections 83 (l) (a), 83 (l) (b) and 86 (5) of the Representation of the People Act". Such prejudice must, however, be distinguished from mere inconvenience, vide raj Narain v Smt. Indira Nehru Gandhi. This much for the provisions of Sections 83 (l) (a), 83 (l) (b) and 86 (5) of the Representation of the People Act". ( 25 ) THE contention of the learned Counsel for the respondent 1 is that the election petition has to be thrown out as it is lacking in material facts and particulars which cannot be accepted in view of the peculiar circumstances of the case that the elected candidate has used the photos of the two Swamijis. This fact has to be examined on the basis of the evidence the parties intend to adduce and find out whether the photographs depicted in the posters have influenced the minds of the voters so as to cast vote in favour of the elected candidate and also to further examine whether the photographs of these two Swamijis have prevailed and won over the minds of the intelligent voters is also a matter of evidence in these modern days. ( 26 ) ALSO, on perusal of the pamphlets of the election, it clearly depicts the photos of Swamijis and also shows the photographs of Janatha Dal (S) leader and the place where it is printed. This pamphlet can only be used within the area of Koratagere Legislative Assembly Constituency. Therefore, it cannot be said that the petitioner/ has not disclosed the material particulars. This being the materials available on record, which unless the trial takes place, the matter cannot be adjudicated. Therefore, it cannot be said that the allegations contained in the election petition are all bald in nature. The Apex Court in the decision of Ravin- der Singh v Janmeja Singh and Others4, while considering the provisions of Sections 123 (4) and 83 of the Representation of the People Act, at para 11 observed thus:"11. Therefore, it cannot be said that the allegations contained in the election petition are all bald in nature. The Apex Court in the decision of Ravin- der Singh v Janmeja Singh and Others4, while considering the provisions of Sections 123 (4) and 83 of the Representation of the People Act, at para 11 observed thus:"11. Section 83 of the Act is mandatory in character and requires not only a concise statement of material facts and full particulars of the alleged corrupt practice, so as to present a full and complete picture of the action to be detailed in the election petition but under the proviso to Section 83 (1) of the Act, the election petition levelling a charge of corrupt practice is required, by law, to be supported by an affidavit in which the election petitioner is obliged to disclose his source of information in respect of the commission of that corrupt practice. The reason for this insistence is obvious. It is necessary for an election petitioner to make such a charge with full responsibility and to prevent any fishing and roving enquiry and save the returned candidate from being taken by surprise. In the absence of proper affidavit, in the prescribed form, filed in support of the corrupt practice of bribery, the allegation pertaining thereto, could not be put to trial the defect being of a fatal nature". ( 27 ) ON examination of the records, I do find that there are specific material facts pleaded and there are also certain material particulars. Under these circumstances, when the corrupt practice has to be proved by the petitioner and this being a matter of evidence, I feel that it is not a fit case to reject the election petition as prayed in LA. No. III. So also having regard to the facts and circumstances of this case, as the amendment does not introduce any new case as such, if it is allowed, it does not prejudice the case of either parties. Considering the facts and circumstances and also the materials placed and the judicial pronouncements of the Apex Court, it is a fit case to allow I. A. No. VI permitting the petitioner to amend by incorporating para 5 (f), (g) and (h ). Considering the facts and circumstances and also the materials placed and the judicial pronouncements of the Apex Court, it is a fit case to allow I. A. No. VI permitting the petitioner to amend by incorporating para 5 (f), (g) and (h ). ( 28 ) IT is clear from the pronouncements of the Apex Court that wherever the provisions are not complied by furnishing the details of full particulars of the alleged corrupt practice, the election petition has to be dismissed and there is no necessity to direct the parties to go for trial in the matter. But on facts in this case, the petitioner has pleaded material facts and also the material particulars. ( 29 ) FOR the foregoing reasons, I do not find any merits in LA. No. III filed under Order 7, Rule 11 of the CPC praying for rejection of the petition as also I am of the opinion that the cause of action has been specifically pleaded. Accordingly, LA. No. III is dismissed. Insofar as LA. No. VI is concerned, the amendment now sought for incorporation of para 5 (f), (g) and (h) does not introduce any new case and it is only in the manner of narration of further particulars which is liable to be allowed and permit the petitioner to incorporate the amendments. Accordingly, LA. No. III is dismissed and LA. No. VI is allowed. --- *** --- .