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2001 DIGILAW 619 (JHR)

Bidesh Singh v. Madhav Singh

2001-08-31

D.N.PRASAD

body2001
ORDER D.N. Prasad, J. 1. This is an application under Section 86(1) of the Representation of People Act, 1951 (for short, the Act) raising preliminary objection for non- compliance of Sections 81 and 83 of the Act, read with Order VI, Rule 16 and Order VII, Rule 11 of the Code of Civil Procedure, for summary dismissal of the recriminatory petition. 2. It is stated that the recriminatory petition filed by respondent No. 1 is not maintainable as it is barred by law of limitation because of filling of the said petition beyond the period of 14 days from the date of commencement of the trial as provided under Section 86 of the said Act. It is further stated that the respondent No. 1 has failed to comply the mandatory provision of Section 83 of the Act as he has not furnished the material particulars. 3. The respondent No. 1 filed the recriminatory petition alleging therein about the corrupt practice but has not accompanied the affidavit in Form 25 as required by the mandatory provision of Section 83 of the Act read with Rule 94-A of the Conduct of Election Rules. 1961 (for short the Election Rules) and, therefore, the recriminatory petition is fit to be dismissed. 4. On the other hand, the respondent No. 1 filed a rejoinder. The application raising preliminary objection claiming therein that the recriminatory petition has been filed in accordance with the provisions as envisaged under Sections 81, 83, 86, and 97 of the Act. The recriminatory petition duly attested to be the true copy certified by respondent No. 1 on each and every page which was filed on 23.3.2001, serving a copy to the Lawyer for the petitioner. It is further claimed that the respondent No. 1 after coining to know about the pendency of the election petition against him through daily Newspaper dated 5.3.2001 fixing 23.3. 2001 for appearance and filling written statement and in pursuance of the said publication, the respondent No. 1 filed an application on 12.3.2001 for a direction to the petitioner handing over the copy of the election petition and the other petition and thereafter the recriminatory petition was filed on 23.3.2001, so the question of time barred in filling the recriminatory petition does not arise. It is also stated that the respondent No. 1 has already furnished adequate material facts and material particulars as required under Section 83 of the Act duly verified and affidavited in accordance with law and, as such, the preliminary objection raised by the election petitioner has got no substance which is fit to be dismissed. 5. The learned counsel appearing on behalf of the election petitioner submitted that the very outset that the recriminatory petition has not been properly affidavited and verified and it has not been accompanied with the affidavit in Form 25 as prescribed under Rule 94 of the Election Rules. It is also submitted that since the recriminatory petition discloses about the corrupt practice such as undue influence, booth capturing etc., against the election petitioner, the affidavit as provided under Rule 94-A of the Election Rules is mandatory which has to be filed as subscribed in Form 25 of the said Rules which has not been complied with by the respondent No. 1. It is further argued that there is also absence of material facts and material particulars in the recriminatory petition as regards to the allegation of corrupt practice as no where it has been mentioned about the place, date and time of booth capturing. At last it has been argued that this recriminatory petition is also time barred as it has been filed beyond the period of 14 days from the commencement of the trial. On this score, the learned counsel for the petitioner relied on the cases reported in Harcharan Singh Josh v. Hari Kishan, AIR 1996 SC 3350 ; Bhagwati Prasad Dixit Ghorewala v. Rajeev Gandhi, AIR 1986 SC 1534 ; Ravindcr Singh v. Janmeja Singh and Ors. (2000) 8 SCC 191 ; R.P. Moldutty v. P.T. Kunju Mohammed and Anr. AIR 2000 SC 388 ; Hardwari Lal v. Kanwal Singh, AIR 1972 SC 515 and Purushottam v. Returning Officer, Amravati and Ors., AIR 1992 Bom 227 . 6. (2000) 8 SCC 191 ; R.P. Moldutty v. P.T. Kunju Mohammed and Anr. AIR 2000 SC 388 ; Hardwari Lal v. Kanwal Singh, AIR 1972 SC 515 and Purushottam v. Returning Officer, Amravati and Ors., AIR 1992 Bom 227 . 6. On the other hand, the learned counsel appearing on behalf of the respondent No. 1 contended before me that the recriminatory petition has been filed by the respondent No. 1 under Section 97 of the Act, duly verified and affidavited in accordance with law as well as in all the pages the respondent No. 1 put his signature and a copy of the same was duly served upon the learned counsel for the election petitioner. It is further argued that the respondent No. 1, as and when came to know about the pendency of the election petition through publication appeared and filed a petition on 12.3.2001 for direction to the election petitioner to handover a copy of the petition and on the fixed date i.e. 23.3.2001, the recriminatory petition was filed on the day of the commencement of the trial and so the question of delay in filing the recriminatory petition does not arise and it has been filed within time. It is also argued that the respon- dent No. 1 specifically and categorically stated about the material facts and also furnished material particulars on the basis of which he based upon the allegation of corrupt practice and for which the respondent No. 1 had already reported the matter through letter and application annexing in the recriminatory petition. Thus, there is no merit in the application for raising preliminary objection which is fit to be dismissed. 7. The learned counsel for the respondent No. 1 also relied upon the cases reported in G. Mallikarjunappa and Anr. v. Shamanar Shivashenkarappa and Ors., AIR 2001 SC 1829 : T.M. Jacob v. C. Poulose and Ors. AIR 1999 SC 1359 ; Amrit Lal Basumatari v. Abdul Muhib Mazumdar and Ors. AIR 1991 Gau 85 and H.D. Revanna v. G. Puttaswamy Gowda and Ors. AIR 1999 SC 768 . 8. From going through the recriminatory petition it appears that Respondent No. 1 put his signature on each and every page as well as the verification and affidavit have been made in accordance with Rule 94-A of the Election Rules. AIR 1991 Gau 85 and H.D. Revanna v. G. Puttaswamy Gowda and Ors. AIR 1999 SC 768 . 8. From going through the recriminatory petition it appears that Respondent No. 1 put his signature on each and every page as well as the verification and affidavit have been made in accordance with Rule 94-A of the Election Rules. Form 25 as enunciated under Rule 94-A of the said Election Rules reads as under :-- "I.....the petitioner in the accompanying election petition...... (a) that the statements made in paragraphs......of the accompanying election petition about the commission of corrupt practice...... mentioned in paragraphs..... of the Schedule annexed thereto are true to my knowledge. (b) that the statements made in paragraphs......about the commission of corrupt practice...... and the particulars of such corrupt practice given in paragraphs.....of the schedule annexed thereto are true to my information." 9. The recriminatory petition clearly indicates about the verification made by respondent No. 1 in the same manner as described in Form 25 as it has been given and stated in verification No. 1 that :-- (1) I have gone through the contents of this recriminatory petition which finds to be true and correct to the best of my knowledge and information. (2) The statement made in paragraphs 1.3 (Part), 5.6.7. (Part). 9, 11, 12, 13 etc., of this recriminatory petition are true to my knowledge. Thus the recriminatory petition has been duly verified and affidavited in the manner as enunciated in Form 25 of Rule 94-A of the Election Rules. 10. In the case of Vijay Laxmi Sadho v. Jagdish, AIR 2001 SC 223, the Apex Court observed in clear terms that :-- "An election petition is liable to be dismissed in limine under Section 86(1) of the Act only if the election petition does not comply with either of the provisions of Section 81 or Section 82 or Section 107 of the Act. The requirement of filling an affidavit along with an election petition in the prescribed form, in support of allegation of corrupt practice is contained in Section 83 (1) of the Act. Thus, an election petition is not liable to be dismissed in limine under Section 86(1) of the Act for alleged non-compliance with provisions of Section 83(1) of the Act or its proviso. Thus, an election petition is not liable to be dismissed in limine under Section 86(1) of the Act for alleged non-compliance with provisions of Section 83(1) of the Act or its proviso. What other consequences, if any, may follow from an allegedly defective affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case. Defect in verification of an affidavit is curable and does not merit dismissal of an election petition in limine under Section 86(1) of the Act." The Apex Court reiterated the same view in the case of O. Mallikarjunappa (supra) and held that :-- The election petition is not liable to be dismissed in limine on grounds that the affidavit filed in support was not in proper format or that verification of affidavit and election petition did not tally rather the defect in verification and the affidavit is a curable defect." 11. The next point was raised on behalf of the election petitioner that there is absence of material facts and material particulars in the recriminatory petition and as such there is no cause of action and for which, the recriminatory petition is liable to be dismissed, in this respect, I may refer paragraphs 7, 8 and 9 of the recriminatory petition which deal specifically and directly about the material facts as regards to occupying the Booth Nos. 6, 8, 9, 22, 30, 31 and 32 of Manatu Block, for which some documents being Annexure R Series have also been filed in support of the said allegation of corrupt practice. Thus material facts as well as the material particulars already set out in the pleading and the onus heavily lies upon the person who alleges the allegations. On this score also, in my view, there appears no defect whatsoever in the recriminatory petition to be thrown out at the threshold. Section 83(1)(a) of the Act stipulates that the election petition shall contain a concise statement of the material facts on which the petitioner relies, that means that the entire bundle of facts, which could constitute, must be concisely stated in the election petition. The underlying no doubt in requiring the election petition/recriminatory petition to set out in concise manner all material facts as well as full particulars where the commission of corrupt practice is committed. 12. The underlying no doubt in requiring the election petition/recriminatory petition to set out in concise manner all material facts as well as full particulars where the commission of corrupt practice is committed. 12. This Court has repeatedly pointed out the distinction between "material facts" and "material particulars". In so far as material facts are concerned, no doubt, there should be fully set out and the petitioner cannot be permitted to adduce evidence relating thereto later nor will he be permitted to amend the petition after expiry of the period of limitation prescribed for an election petition. As regard particulars, the consistent view expressed by the Apex Court is that the petition cannot be dismissed in limine for want of particulars. 13. The Constitution Bench in Balwant Singh v. Sri Lakshmi Narain, AIR 1960 SC 770 , held that an election petition was not liable to be dismissed in limine merely because full particulars of a corrupt practice alleged were not set out. It was observed that if an objection was taken and the tribunal was of the view that particulars had not been set out, the petitioner had to be given an opportunity to amend or amplify the particulars and that it was only in the event of non-compliance with the order to supply the particulars, the charge could be struck out. Thus, in such parameter also, the recriminatory petition cannot be held that there is no cause of action. 14. Lastly it was pointed out that this recriminatory petition is barred by limitation as it has been tiled beyond the period of 14 days. This submission, in my view, has also got no substance in view of the fact that this recriminatory petition has been filed on 23.3.2001 in pursuance of a notice published on 5.3.2001 in daily newspaper as well as the respondent No. 1 also appeared and filed a petition on 12.3.2001 praying therein for a direction to the election petitioner to serve a copy of the election petition. After publication of the notice, the date was fixed on 23.3.2001 for appearance and for filing written statement on which date the recriminatory petition has been filed and, as such, it cannot be said that it was filed beyond the period of 14 days from the commencement of the trial. Even if the trial deemed to commence, i.e. from 23.3.2001. After publication of the notice, the date was fixed on 23.3.2001 for appearance and for filing written statement on which date the recriminatory petition has been filed and, as such, it cannot be said that it was filed beyond the period of 14 days from the commencement of the trial. Even if the trial deemed to commence, i.e. from 23.3.2001. The explanation as given in Section 86 of the Act is very clear, which reads as follows :-- "Explanation.--For the purpose of this sub- section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition." In that view of the matter, the recriminatory petition cannot be said to have been filed beyond 14 days from the commencement of the trial. Thus the recriminatory petition is maintainable. 15. Having regard to the above facts and circumstances and discussions made above. I do not find any merit in the objection petition filed on behalf of the election petitioner for dismissal of the recriminatory petition. Hence, the application raising preliminary objection is dismissed. 16. Application dismissed.