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2006 DIGILAW 607 (CHH)

RAMDEO RAM v. VIJA YNATH

2006-12-22

SATISH K.AGNIHOTRI

body2006
ORDER I.A. No. 3031/2006. 1. This is an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 read with Section 86 of the Representation of the People Act, 1951 (henceforth the R.P. Act, 1951) filed by respondent No 1-returned candidate. 2. Learned counsel appearing for the returned candidate would submit that the election petition filed by the petitioner deserves to be dismissed on the following grounds : (i) That the petition is in contravention of the mandatory provisions of Sections 81 and 83 of the R.P. Act, 1951. (ii) That the petitioner has not pleaded material facts and particulars regarding the irregularities and illegalities committed in counting of votes and as such the election petition is bereft of material facts and particulars regarding the time, number of round of counting, objections made, if any, number of votes missing in which alleged irregularities were committed. (iii) That the petition further does not disclose any cause of action as is required under provisions of law. The annexures are not verified as required under Section 83(2) of the R.P.Act, 1951. No ground, as envisaged under Section 100 of the R.P.Act, 1951 for declaring the election to be void, has been stated in the petition. As such, there is no cause of action to entertain the petition. 3. The petitioner, in his reply, denied all the grounds made in the application stating that the petition has been filed in accordance with law. 4. The petitioner was granted time on several occasions, i.e., 10-5-2006, 7-7-2006, 28-8-2006, 18-9-2006, 5-10-2006 and 14-11-2006 to remove the defects as required under the provisions of Sections 81 and 83 of the R.P.Act, 1951. The petitioner has failed to cure the curable defects in the petition. 5. The Election Commission of India issued notification dated 7-11-2003 calling upon the constituency No.7, Lundra, Sarguja to elect member to the Legislative Assembly of Chhattisgarh and the following programme was issued: (1) Last date of making nomination - 14-11-2003 (2) Date for scrutiny - 15-11-2003 (3) Date for withdrawal - 17-11-2003 (4) Date of Poll - 1-12-2003 (5) Date of counting - 4-12-2003 Thus, respondent No. 1 - returned candidate was declared elected having obtained majority of votes as against the petitioner, difference being of only 42 votes. 6. 6. In the instant petition, the petitioner seeks a direction for rechecking and recounting of votes polled in No.7, Lundra, Sarguja Legislative Assembly Constituency and a declaration to the effect that the election of respondent No.1 be declared as void and the petitioner be declared as elected. The petitioner has sought declaration of the election to be void on the ground mentioned in Section 100(1)( d)(iii) and (iv) of the R.P.Act, 1951. The petition merely states that the petitioner was informed orally that 100 votes of the petitioner were counted in favour of the returned candidate. The petitioner has not disclosed as to when and how the petitioner came to the conclusion that 100 votes of the petitioner were counted in favour of the returned candidate. The petitioner has further not disclosed as to whether this objection was raised during counting or thereafter. The petitioner has not given sufficient material facts and particulars and the petition further does not disclose any cause of action. The petition is casual, bereft of material facts and does not disclose any cause of action. 7. The relevant paragraphs of the petition are as under : “(8) That, the counting of votes in 14 rounds which was mentioned in form no. 14 and 20 till final result sheet, the petitioner was declared elected but no elected certificate was given to petitioner and in the meantime the petitioner came to know that the recounting of votes polled by respondent no. 1 is being done and ultimately the petitioner was informed orally that the petitioner's out of total polled votes, 100 votes were counted excess and the returning officer deducted the 100 votes from the total votes polled by the petitioner. (9) That, the Election Commission of India has framed rules for counting of votes for the five states which went on Election and there is violation of rule 6.4 and rule 29.4 was not strictly followed only to help the respondent no.1. (10) That, during the counting of votes rule 6.1 was not followed and only on 14 counting tables the petitioner was allowed to keep agents and on the counting table of Assistant Returning Officer and on the central counting table the petitioner's counting agent were not allowed. (11) That, after the 14th round of counting, the result were showing that the petitioner had polled total votes 34373 and the respondent no. (11) That, after the 14th round of counting, the result were showing that the petitioner had polled total votes 34373 and the respondent no. 1 had polled 34315 and the petitioner had to be supplied with Elected Certificate by comparing the total votes polled by the Electronic Voting Machine." 8. The verification of the petition reads as under : “I, Ramdeo Ram, S/o Chamru Ram do hereby verify that the statements made by me in para 1 & 2 are true to my personal knowledge andpara3,4,5,6, 7,8,9,10, 11, 13, are based on information received and believed by me to be true. Signed and verified on this 17th day of January 2004 at Bilaspur.” 9. On perusal of records, it is further found that the petitioner has not complied with the mandatory requirement of Section 83(1)(c) of the R.P.Act, 1951 and the petition is signed by the petitioner, but not verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. The annexures to the petition are also not verified as required under sub-section (2) of Section 83 of the R.P.Act, 1951. Despite several opportunities given to the petitioner, the petitioner has not attempted to cure the above-stated defects. 10. Sections 81, 83, 86(1), 100(1)(d)(iii) and (iv) of the R.P.Act, 1951 read as under : “81. Presentation of petitions. - (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within 45 days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. Explanation. - In this sub-section, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.” “83. Contents of petition. (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.” “83. Contents of petition. - (1) An election petition - (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." “86. Trial of election petitions. - (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. Explanation. - An order of the High Court dismissing an election petition under this subsection shall be deemed to be an order made under clause (a) of section 98." “100. Grounds/or declaring election to be void. - (1) Subject to the provisions of sub-section (2) if the High Court is of opinion - (a) * * * * (b) * * * * (c) * * * * (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (i) * * * * (ii) * * * * (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.” 11. The Supreme Court, in the matter of Dhartipakar Madan Lal 4garwal Vs. Rajiv Gandhi, relied on by learned counsel appearing for the petitioner, observed in para 8 as under : “8. The first question which falls for our determination is whether the High Court had jurisdiction to strike out pleadings under Order VI Rule 16 of the Code of Civil Procedure and to reject the election petition under Order VII Rule 11 of the Code at the preliminary stage even though no written statement had been filed by the respondent. Section 80 provides that no election is to be called in question except by an ejection petition presented in accordance with the provisions of Part VI of the Act before the High Court. Section 81 provides that an election petition may be presented on one or more of the grounds specified in Section 100 by an elector or by a candidate questioning the election of a returned candidate. Section 83 provides that an election petition shall contain a concise statement of material facts on which the petitioner relies and he shall set forth full particulars of any corrupt practice that he may allege including full statement of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. Section 86 confers power on the High Court to dismiss an election petition which does not comply with the provisions of Sections 81 and 82 or Section 117. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, Order VI Rule 16 and Order VI Rule 17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. Since provisions of Civil Procedure Code apply to the trial of an election petition, Order VI Rule 16 and Order VI Rule 17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. On a combined reading of Sections 81, 83, 86 and 87 of the Act, it is apparent that those paragraphs of a petition which do not disclose any cause of action, are liable to be struck off under Order VI Rule 16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the Court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI Rule 16 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does .not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for the filing of the written statement, instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the Court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII Rule 11.” 12. Further, in the matter of Subhash Desai Vs. Sharad J. Rao and others, the Supreme Court observed in para 11 as under: “11 ………..But Section 83 enjoins that an election petition shall contain concise statement of material facts, and shall set forth full particulars of any corrupt practice that the petitioner alleges, which should be verified and supported by affidavit, so far the allegations of corrupt practices are concerned. This provision is not only procedural, but has an object behind it; so that a person declared to have been elected is not dragged to court to defend and support the validity of his election, on allegations of corrupt practice which are not precise and details whereof have not been supported by a proper affidavit. Apart from that, unless the material facts and full particulars of the corrupt practices are set forth properly in the election petition, the person whose election is challenged is bound to be prejudiced in defending himself of the charges, which have been levelled against him. In view of the repeated pronouncements of this Court, that the charge of corrupt practice is quasi-criminal in nature, the person challenging an election on the ground of corrupt practice, cannot take liberty of making any vague or reckless allegations, without taking the responsibility about the correctness thereof Before the Court proceeds to investigate such allegations, the Court must be satisfied, that the material facts have been stated along with the full particulars of the corrupt practice, alleged by the petitioner, which have been duly supported by an affidavit. In cases where the Court finds that neither material facts have been stated, nor full particulars of the corrupt practice, as required by Section 83 have been furnished in the election petition, the election petition can be dismissed, not under Section 86, but under the provisions of the Code of Civil Procedure, which are applicable, read with Section 83(1) of the Act, saying that it does not disclose a cause of action ……………” 13. In the matter of Regu Mahesh alias Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev and anotherr, the Supreme Court observed in para 12 and para 18 as under : “12. It is, therefore, a settled position' in law that defect in verification or an affidavit is curable: But further question is what happens when the defect is not cured. There is a gulf of difference between a curable defect and a defect continuing in the verification affidavit without any effort being made to cure the defect.” “18. The casual approach of the appellant is riot only visible from the manner in which verification was done, but also from the fact that he has mentioned two different districts to which he claims to be belonging. The casual approach of the appellant is riot only visible from the manner in which verification was done, but also from the fact that he has mentioned two different districts to which he claims to be belonging. The explanation that the same was given by mistake is too shallow when considered in the background that he is stated to be a practising advocate. An advocate is supposed to know the importance of verification and the desirability of making a statement of correct facts in any petition and more in case of an election petition. An election petition is intended to bring into focus any illegality attached to an election. It essentially and basically puts a question mark on the purity of election, casts doubt on the fairness thereof and seeks a declaration that the mandate of the people has been obtained by questionable means. In a democracy the mandate has sacrosanctity. It is to be respected and not lightly interfered with. When it is contended that the purity of electoral process has been polluted, weighty reasons must be shown and established. The onus on the election petitioner is heavy as he has to. substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious and sensitive matter involving great public importance cannot be countenanced or glossed over too liberally as for fun.” 14. In the matter of Jaipal Singh Vs. Sumitra Mahajan (Smt.) and another, the Supreme Court observed in para 7 as under : “7. Section 83 deals with contents of petition. It states that an election petition shall contain a concise statement of material facts, on which the petitioner relies and shall state full particulars of any corrupt practices which the petitioner alleges and which shall be signed by him and verified in the manner laid down in the Code of Civil Procedure. In the case of Sopn- Sukhdeo Sable Vs. Asstt. Charity Commr. In the case of Sopn- Sukhdeo Sable Vs. Asstt. Charity Commr. it has been held that Order 6 Rule 2(1) CPC deals with basic rule of pleadings and declares that the pleading has to state material facts and not the evidence; that there is a distinction between “material facts” and “particulars” and the words "material facts" show that the facts necessary to formulate a complete material fact leads to an incomplete cause of action and consequently, the plaint becomes bad. The distinction between “material facts” and “particulars” was brought by Scott, L.J. in Bruce Vs. Odhams Press Ltd. in the following passage: (All ER p. 294) “The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word “material” means necessary for the purpose of formulating a complete cause of action; and if anyone 'material' statement is omitted, the statement of claim is bad; it is ‘demurrable’ in the old phraseology and in the new is liable to be ‘struck out’ under RSC Order 25 Rule 4 (see Philipps Vs. Philipps), or ‘a further and better statement of claim' may be ordered under Rule 7. The function of ‘particulars’ under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiffs cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial.” 15. Similar is the view expressed in L.R. Shivaramagowda and others Vs. T.M. Chandrashekar and others, wherein it has been held that failure to plead material facts is fatal to the election petition and no amendment of the pleading can be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, however, the absence of material particulars can be cured at a later stage by an appropriate amendment. 16. The Supreme Court, in the matter of V Narayanaswami Vs. 16. The Supreme Court, in the matter of V Narayanaswami Vs. C.P Thirunavukkarasu, while elaborating the distinction between the material facts and material particulars has held that the petition has to be rejected at the outset in the absence of material facts but in case of defect in material particulars, it can be cured subsequently. It has been further held that where in spite of having sufficient opportunity to cure the defect in material particulars, petitioner fails to cure the defect, petition has to be rejected. It is not the duty of the High Court to suo motu direct the petitioner to furnish better particulars and the petition was dismissed at the threshold on the ground of lacking in material facts and material particulars, verification and affidavit. 17. In the matter of Hari Shanker Jain Vs. Sonia Gandhi, the Supreme Court observed in paragraphs 23, 24 and 25 as under : “23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression “cause of action” has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna Vs. George Fernandez. Jitendra Bahadur Singh Vs. Krishna Behari.) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan Vs. (See Samant N. Balkrishna Vs. George Fernandez. Jitendra Bahadur Singh Vs. Krishna Behari.) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan Vs. P.J. Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead “material facts” is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition." “24. It is the duty of the court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings.” “25. There are two features common to both the election petitions. Firstly, both the petitions are verified as “true to personal knowledge” of the two petitioners respectively which is apparently incorrect as the very tenor of pleadings discloses that any of the petitioners could not have had personal knowledge of various facts relating to the respondent personally and during the course of hearing we had put this across to the two petitioners and they responded by submitting only this much that the verification if incorrect was capable of being cured. The second common feature in the two petitions is that there are bald assertions made about the Italian law without stating what is the source of such law as has been pleaded by the election petitioners or what is the basis for raising such pleadings. These averments also have been verified as “true to my knowledge” by each of the election petitioners, a position wholly unacceptable.” 18. In the matter of Mahadeorao Sukaji Shivankar Vs. These averments also have been verified as “true to my knowledge” by each of the election petitioners, a position wholly unacceptable.” 18. In the matter of Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu and others, the Supreme Court has defined the material facts and particulars in para 6 and para 7 as under : “6. Now, it is no doubt true that all material facts have to be set out in an election petition. If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by clause (a) of Rule II of Order 7 of the Code. The question, however, is as to whether the petitioner had set out material facts in the election petition. The expression "material facts" has neither been defined in the Act nor in the Code. It may be stated that the material facts are those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the plaintiffs cause of action or the defendant's defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish existence of cause of action or defence are material facts and must be stated in the pleading of the party.” “7. But, it is equally well settled that there is distinction between “material facts” and “particulars”. Material facts are primary or basic' facts which must be pleaded by the petitioner in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish ma1erial facts by giving finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars ensure conduct of fair trial and would not take the opposite party by surprise.” 19. They amplify, refine and embellish ma1erial facts by giving finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars ensure conduct of fair trial and would not take the opposite party by surprise.” 19. Having regard to the facts stated in the election petition and in view of the settled position of law as above-stated, the petition deserves to be dismissed on the ground that it is devoid of material facts and particulars and the same deserves to be dismissed under Order VII Rule II of the Code of Civil Procedure. The petition further deserves to be dismissed as it does not disclose any cause of action. Thus, it is not necessary to consider the grounds on merit. 20. As a result, I.A.No.3031/2006, filed by respondent No.1, is allowed. Consequently, the petition is dismissed. No order as to costs. Petition Rejected.