Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 1157 (MP)

PREM SHANKER VERMA v. HAJARILAL RAGHUWANSHI

2006-09-28

S.L.JAIN

body2006
ORDER S.L. Jain, J. This order shall govern the disposal of I.A. No. 25/2005, an application u/s 86 read with sections 81, 83 and 87 of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act'), I.A. No. 26/2005, an application under Order 7, Rule 11 of the CPC (hereinafter referred to as the 'Code') read with sections 86 and 87 of the Act for rejection of the petition and I. A. No. 27/2005, an application under Order 6, Rule 16 of the Code read with sections 86 and 87 of the Act for striking out pleadings. The factual aspects need to be noted for the disposal of the applications are that petitioner Prem Shanker Verma and respondent Hajarilal Raghuwanshi amongst others contested the election for Seonimalwa Assembly Constituency, in M.P. In the election held in 2003 respondent, Hajarilal Raghuwanshi was declared elected on 4-12-2003. The petitioner who secured the next higher number of votes challenged the election of respondent by filing an election petition u/s 80 of the Act on the ground of bribing the voters, giving gifts to them, exercising influence upon them and making appeal in the name of religion by the respondent, using vehicles for free transportation and for free conveyance of the voters, and booth capturing. The petitioner prayed that the election of respondent be declared void. Earlier I. A. No. 1/2005, an application u/s 86(1) of the Act was filed by the respondent. By this application the respondent prayed for dismissal of the election petition on the ground that provisions of section 81 of the Act have not been complied with by the petitioner while serving the respondent with copy of the petition and annexures. It was stated in the application that the copies received by the respondent do not bear the signatures of the petitioner anywhere. Copy of petition served on the respondent has not been attested by the petitioner under his own signatures to be a true copy of petition. Similarly, the documents forming part of the petition as served on the respondent have not been attested to be true copies of the originals. Copies are simply photo-copies. Copy of petition served on the respondent has not been attested by the petitioner under his own signatures to be a true copy of petition. Similarly, the documents forming part of the petition as served on the respondent have not been attested to be true copies of the originals. Copies are simply photo-copies. It was, inter alia, stated in the application that the petitioner has not supplied the full and correct copy of the petition with all annexures to the respondent, therefore, the respondent is not in a position to file the reply to the petition. The respondent submitted that the election petition does not comply with the provisions of section 81(3) of the Act and is thus liable to be dismissed as mandated in section 86 of the Act. Reply to the above application was filed by the petitioner. He also filed an application u/s 151 of the Code which was registered as I. A. No. 5/2005 wherein it was stated that the respondent, instead of collecting the attested copy of the petition meant for him from the Registry of this Court, has raised the frivolous objections. Copy of the election petition which was returned unserved and was duly attested and verified by the petitioner is in the record of the petition. The same is liable to be served upon the respondent in the Court itself and it be served upon him in the interest of justice. this Court, vide order dated 1-7-2005 allowed I. A. No. 5/2005. this Court found that proper copy was accompanied with the petition. The copy which was supplied with the notice fulfilled the object. There was no such variation from the original as was calculated to mislead the respondent. There was no scope for misunderstanding by the respondent. The respondent was not prejudiced. this Court found that the defect in the supply of proper copy, if any can be cured by supplying the proper copy which is already in the file and the application, I.A. No. 1/2005, u/s 86(1) of the Act was dismissed refusing to reject the petition on a technical ground. The respondent was not prejudiced. this Court found that the defect in the supply of proper copy, if any can be cured by supplying the proper copy which is already in the file and the application, I.A. No. 1/2005, u/s 86(1) of the Act was dismissed refusing to reject the petition on a technical ground. After the disposal of I.A. No. 1/2005, the respondent raised certain objections regarding the supply of copy, therefore, on 21-10-2005 this Court passed an order mentioning therein that in order to avoid any possible complication it is directed that each page of the copy which is to be supplied to the respondent, shall be initialed by the Deputy Registrar (Judicial) before supplying the copy. On 26-10-2005 counsel for the respondent informed this Court that he has received copy of election petition supplied by the Deputy Registrar (Judicial) which was filed by the respondent in this Court as Annexure R(a). Thereafter, the aforesaid three applications, I.A. Nos. 25/2005, 26/2005 and 27/2005 were filed. In I.A. No. 25/2005 the respondent submitted that the copy of the petition as served upon him and marked as R(a), does not meet the mandatory requirements of section 81(3) and section 83(1)(c) and proviso thereto of the Act. The defects are not curable and the petition is liable to be dismissed at the threshold. It was stated in the application that in the document Annexure R(a) words "attested as true copy" have been manually written on page Nos. 1 to 19 but the signatures on this copy are apparently photo impressions. Thus, the petition does not meet the requirement of section 81 of the Act. It was also stated in I.A. No. 25 that bare perusal of page 18 of Annexure R(a) would show that the affidavit has not been drawn up as required under Rule 94-A and Form No. 25 of Conduct of Election Rules, 1961 (hereinafter referred to as the 'Rules'). The petitioner has not verified the affidavit. It is not the affidavit at all and the same is fatal to the petition. It was stated that the affidavit was not sworn in before any of the authorities mentioned in the Rules. It does not bear any endorsement, signature or description to give any idea if the affidavit has been sworn in and if so before whom. It is not the affidavit at all and the same is fatal to the petition. It was stated that the affidavit was not sworn in before any of the authorities mentioned in the Rules. It does not bear any endorsement, signature or description to give any idea if the affidavit has been sworn in and if so before whom. The respondent stated that the Annexure R(a) cannot be said to be true copy for the purpose of section 81(3) of the Act. It was also stated in I.A. No. 25 that the petition has not been verified in accordance with the requirements of Order 6, Rule 15 of the Code read with sections 83(1)(c) and 87 of the Act and is not supported by an affidavit as required under sub-rule (4) of aforesaid Rule 15. Filing of such affidavit is necessary in addition to the affidavit under Rule 94-A of the Rules. It was also stated in I.A. No. 25 that each and every page of the documents annexed with the copy of petition, annexure R(a) running from page 21 to 61 have not been attested by the petitioner under his own signatures to be true copy. The respondent prayed that the petition be dismissed in limine without going into the merits of the case. Petitioner filed reply to the application, I.A. No. 25/2005 and submitted that this Court has already discarded all the contentions of the respondent while dismissing the application. I.A. No. 1/2005, therefore, the present application is not maintainable. It was stated in the reply that the election petition is supported by an affidavit in accordance with law. Copy of the election petition served on the respondent is perfectly in accordance with law. Each page of the copy is initialed by the Deputy Registrar (Judicial). It was stated that the signatures of the election petitioner on all the annexures are original. The affidavit in support of the election petition has been drawn up in prescribed form No. 25. The same is properly verified. The affidavit in support of the election petition was sworn before the Oath Commissioner. Each and every annexure has been verified and attested as true copy by the election petitioner himself and prayed for rejection of the application. The contention of the Learned Counsel for the respondent that Annexure R(a) is not true copy of the election petition cannot be countenanced. Each and every annexure has been verified and attested as true copy by the election petitioner himself and prayed for rejection of the application. The contention of the Learned Counsel for the respondent that Annexure R(a) is not true copy of the election petition cannot be countenanced. The expression "copy" in section 81(3) of the Act, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges (allegations) made against him in the election petition. The copy Annexure R(a) passes through this test. So far as the objection of the respondent that in the document, Annexure R(a) signatures below the words "attested as true copy" are photo impressions and not originals is concerned, the petitioner, in his reply supported by an affidavit, has stated that the signatures are original. On seeing the signatures carefully I also find that they are original. Therefore, the objection that the signatures are photo impressions is not sustainable. With regard to the objection that the affidavit has not been drawn up in form No. 25 as required by Rule 94-A, of Rules and the same has not been sworn by the petitioner before any of the authorities mentioned in this rule, I have perused the affidavit filed in the record of this petition. The second sheet of the affidavit bearing page No. 18 reveals that the affidavit was sworn before the Oath Commissioner, Shri Surendra Khare. The name and other particulars of the notary and the seal and stamp of the notary are apparent on the affidavit. Therefore, the objection that the affidavit does not bear any endorsement signature or description to give any idea that the same has not been sworn in before the authorities mentioned in Rule 94-A of the Rules is false and frivolous. A perusal of the affidavit also reveals that it is in the prescribed form No. 25 as envisaged in the Rules. A perusal of the affidavit also reveals that it is in the prescribed form No. 25 as envisaged in the Rules. So far as the objection that the petition has not been verified in accordance with the requirements of Order 6, Rule 15 of the Code and that it is not supported by an affidavit is concerned, a perusal of the last page of the petition reveals that the election petition has been duly verified in the following words: I, Prem Shanker Verma, Son of Shri Kunjilal Verma, aged 52 years Resident of village and post Baghwada, Tahsil Seoni Malwa District Hoshangabad do make oath and verify that the contents of Paras 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 10.1, 13.4, 15, 17, 18, 19, 20 are true to my personal knowledge and the allegations contained in Para - 10.2, 10.3. 10.4, 10.5, 11.1, 11.2, 12.1, 13.1, 13.2, 13.3, 14.1, 14.2, 14.3, 16 are true and correct on the information received and believed to be true. A perusal of the verification reveals that the person verifying has specified by reference to the numbered paragraphs of the pleadings that what he verified of his own knowledge to be true and what he verified on information received and believed to be true. The verification also bears the signature of the person making it and also states the date on which it was made and the place where it was signed. Counsel for the respondent, relying on the order dated 17-8-2005 passed by this Court in Election Petition No. 9/2004, Prabhat Pandey vs. Nishith Patel submitted that in absence of affidavit under Order 6, Rule 15(4) of the Code the election petition is liable to be dismissed. A perusal of the petition reveals that the affidavit in Form No. 25 duly sworn in under Rule 94-A of the Rules was filed along with the petition, it is true that the requirement of filing affidavit envisaged under sub-Rule (4) of Rule 15 of Order 6 of the Code is mandatory but in the present case, it cannot be said that the requirement has not been fulfilled. Said sub-rule (4) does not require the affidavit in a particular form. As affidavit has been filed, the requirement of sub-rule (4) has been complied with and the objection of the counsel for respondent in this regard is not sustainable. Said sub-rule (4) does not require the affidavit in a particular form. As affidavit has been filed, the requirement of sub-rule (4) has been complied with and the objection of the counsel for respondent in this regard is not sustainable. Even otherwise as has been held in G. Mallikarjunappa and Another Vs. Shamanur Shivashankarappa and Others, the non-compliance of requirement of filing of an affidavit along with an election petition, in the prescribed form, in support of the allegations of corrupt practices contained in section 83(1) of the Act, does not attract the consequences envisaged by section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine u/s 86 of the Act, for alleged non-compliance of the provisions of section 83(1) and (2) of the Act or of its proviso. Similarly, sub-rule (4) of Rule 15 of the Order 6 of the Code also does not show that the suit shall be liable to be dismissed in limine, if the affidavit is not filed along with the plaint. The defect in the verification of the affidavit is a curable defect. What other consequences, if any, may follow from the absence of affidavit or alleged defective affidavit is required to be judged after the trial of election petition but section 86(1) of the Act in terms cannot be attracted to such a case. In T.M. Jacob Vs. C. Poulose and Others, also it has been held that defect in true copy of affidavit supplied unless it is material or vital would not entail rejection of petition u/s 81 or 86 of the Act. The election petition cannot be rejected in limine for non-compliance of section 81(3) read with section 86(1) of the Act on the ground that the true copy of the affidavit filed in support of the allegations of corrupt practices in Form No. 25 as required by Rule 94-A of the Rules had not been served on the respondent. It is pertinent to mention here that u/s 86 of the Act the election petition can be dismissed only on non-compliance with the provisions of section 81 or section 82 or section 117 of the Act. Non-compliance of provisions of section 83 is not fatal to the maintainability of the petition. It can be rectified at the later stage. It is pertinent to mention here that u/s 86 of the Act the election petition can be dismissed only on non-compliance with the provisions of section 81 or section 82 or section 117 of the Act. Non-compliance of provisions of section 83 is not fatal to the maintainability of the petition. It can be rectified at the later stage. Mere failure or defect in verification or non-filing of the affidavit or defect in the affidavit itself is not fatal to the maintainability of the petition as it is an irregularity and not illegality. Regarding I.A. No. 26/2005, Learned Counsel for the appellant vehemently submitted that the pleadings regarding corrupt practice are vague. The counsel for the respondent relying on R.P. Moidutty Vs. P.T. Kunju Mohammad and Another, , Mr. V. Narayanaswamy Vs. Mr. C.P. Thirunavukkarasu, , Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, , Azhar Hussain vs. Rajiv Gandhi, AIR 1986 SC 1253, Bashir Musa Patel Vs. Satyawan Ganpat Jawkar and others, submitted that in the petition levelling charge of corrupt practices it is incumbent upon the petitioner to set forth full particulars of corrupt practices. He also submitted that in the present case the allegations of corrupt practice are vague. In the absence of material particulars and in the absence of pleadings regarding source of information the petition must be rejected at the threshold. So far as the legal proposition is concerned, the same cannot be disputed but a perusal of the election petition reveals that it does not suffer from the vice of absence of material facts. Regarding payment from 'Swechha Anudan Nidhi', the counsel for the respondent submits that the date of documents Annexures 1-A, 1-C, 1-E, 1-G, 1-I, 1-M and I-O is 29-9-2003 and the same is not between filing of the nomination papers by the applicant and declaration of result, therefore, these documents are not relevant and the allegations in this regard are irrelevant. The contention is not acceptable. It is alleged in the election petition that these allotment orders were delivered on 28-11-2003 and 30-11-2003 after filing of the nomination papers by the respondent and before the declaration of the result. The applicant also disclosed in the election petition the source of information received by him. The contention is not acceptable. It is alleged in the election petition that these allotment orders were delivered on 28-11-2003 and 30-11-2003 after filing of the nomination papers by the respondent and before the declaration of the result. The applicant also disclosed in the election petition the source of information received by him. It has been specifically stated in the petition that Ramadhar son of Mandari and Sant Kumar @ Santosh informed the election petitioner about the handing over the envelops containing payment orders dated 29-9-2003 out of the 'Swechha Anudan Nidhi'. Regarding distribution of country made liquor, it has been pleaded in the petition that Mukesh Verma and his men with the consent of the respondent distributed bottles of country made liquor in village Palampur and asked the voters to cast their votes in favour of Indian National Congress. The petitioner has disclosed in paragraph 10.5 of the petition that Mukesh Verma narrated this incident to him. The petitioner has not only stated that the liquor was distributed with the consent of the respondent but also that the incident was narrated to the election petitioner on 1-12-2003, therefore, it cannot be said that it has not been specifically alleged that the corrupt practice was committed with the consent of the candidate. The particulars of the charge or allegations are clearly and precisely stated in the petition. Regarding corrupt practice of exercise of undue influence also in para 11.1 of the petition it has been specifically stated that the respondent exercised undue influence over Madan Lal Rathore and prevented him from casting his vote. Similarly, in para 11.2 of the election petition it has been specifically pleaded that respondent prevented Girish and Umesh from exercising the right of franchise by using undue influence. Regarding making appeal to vote on the ground of religion also the facts stated in the petition cannot be said to be vague. The source of the information of the petitioner has been disclosed in para 12.1 of the petition. Regarding use of vehicle also it has been stated in paras 13.2, 13.3 and 13.4 of the petition that the vehicles were used with the consent of the respondent. Names of the persons who gave information to the election petitioner have also been stated. Furnishing of evidence in support of material facts is not essential for maintainability of the petition. Regarding use of vehicle also it has been stated in paras 13.2, 13.3 and 13.4 of the petition that the vehicles were used with the consent of the respondent. Names of the persons who gave information to the election petitioner have also been stated. Furnishing of evidence in support of material facts is not essential for maintainability of the petition. The election petition cannot be considered as not disclosing any cause of action or not containing a concise statement of material facts and therefore, the petition cannot be rejected at this preliminary stage on that ground. The evidence in support of the pleas which have been taken or facts which have been pleaded, cannot be confused with the concise statement of material facts which an election petition is required to set out u/s 83(1)(a) of the Act. The material facts and material particulars are different and this distinction is important because different consequences may flow from deficiency of such facts or particulars in the pleading. Failure to plead material facts may lead to an incomplete cause of action but if material particulars are lacking, they may be supplied at a later date. Order 6, Rule 2(1) of the Code states that every pleading shall contain, and contain only a statement in a concise form of the material facts on which a party relies its claim or defence, as the case may be, but not the evidence by which they are to be proved. Thus, the petition contains not only the material facts but also sets forth the full particulars of corrupt practices which the petitioner alleges, including detailed statements, the names of the parties said to have committed the said practices and the date and place of the commission of each practice. The source of information has also been disclosed, therefore, it cannot be said that the election petition as framed lacks in material facts and particulars, therefore, I.A. No. 26/05 also is devoid of merit. Here it will be pertinent to mention that the counsel for the petitioner expressed his willingness and readiness to remove all the defects if found in the pleadings, verification or affidavit. I wish to make it clear that I do not propose to pronounce upon the merits or otherwise of the pleas raised in the election petition. Here it will be pertinent to mention that the counsel for the petitioner expressed his willingness and readiness to remove all the defects if found in the pleadings, verification or affidavit. I wish to make it clear that I do not propose to pronounce upon the merits or otherwise of the pleas raised in the election petition. But the election petition, in the present case, cannot be considered as not disclosing any cause of action or not containing any concise statements of material facts. So far as the application under Order 6, Rule 16 of the Code (I.A. No. 27/2005) is concerned, the counsel for the respondent raised the same contentions which were raised in support of I.A. No. 26/05. I have carefully perused the petition. The pleadings can neither be said to be unnecessary, scandalous, frivolous or vexatious nor it can be said that they are made to prejudice, embarrass or delay the trial of the petition nor it can be said that the material in any pleading is an abuse of the process of the Court. The pleadings cannot be struck off as unnecessary, scandalous, frivolous or vexatious unless the irrelevancy is quite clear. At this stage this Court cannot go into the question of truth or falsehood from the allegations made in the pleadings. The pleadings are relevant to the issue, therefore, no part of the pleadings is liable to be struck off. The pleadings cannot be said to be vitiated by all or any one of the defects mentioned in clauses (a), (b) or (c) of Rule 16 of Order 6 of the Code. On the basis of the above discussion I am of the opinion that requirements of sections 81 and 83 of the Act and all other legal formalities were complied with by the petitioner, the petition discloses the cause of action and cannot be rejected under Order 7, Rule 11 of the Code in limine without trial. No part of it can be struck off under Order 6, Rule 16 of the Code. In all cases of preliminary objection the test is to see whether any of the reliefs prayed for could be granted to the applicant. The averments made in the petition are presumed to be true for the purpose of considering the preliminary objections in the nature of the objections raised in I.A. Nos. 25/05, 26/05 and 27/05. In all cases of preliminary objection the test is to see whether any of the reliefs prayed for could be granted to the applicant. The averments made in the petition are presumed to be true for the purpose of considering the preliminary objections in the nature of the objections raised in I.A. Nos. 25/05, 26/05 and 27/05. 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 triable issue as such. The Court cannot probe into the facts on the basis of the controversy raised in the counter. The election petition as such, does disclose a cause of action which if unrebutted could void the election therefore, the provisions of Order 7, Rule 11 of the Code or Order 6, Rule 16 of the Code cannot 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 11 of the Code the Court cannot dissect the pleadings 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 petition. Therefore, the election petition under this rule cannot be rejected in limine without trial. The result of the above discussion is that I.A. Nos. 25/05, 26/05 and 27/05 are sans merit and the same are dismissed. Final Result : Dismissed