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2010 DIGILAW 712 (GAU)

Markio Tado v. Takam Sorang

2010-09-14

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. Muk Pertin, learned Counsel for the applicants and also heard Mr. B.L. Singh, learned Counsel, appearing for and on behalf of the opposite party/election Petitioner. 2. This is an application filed under Order VI, Rule 16 and order VII, Rule 11(a) of the Code of Civil Procedure, 1908 to strike out pleading as being unnecessary, scandalous, frivolous or vexatious and an abuse of process of the court and to reject the election petition on that count. 3. Mr. Pertin, learned Counsel appearing for the applicants submits that although the written statement has been filed by the applicant-returned candidate and the issues were framed and even the opposite party/election Petitioner has examined his witnesses to establish the allegations made in the election petition, this miscellaneous application has been filed to prevent the abuse of process of court and for rejection of the election petition without wasting the public time. The election petition mainly depends on ten documents marked as Annexure Nos. 1 to 10, amongst which, annexure-10 has been exhibited at paper exhibit No. 18. Paper exhibit No. 19 is a part of official records and both the paper exhibit Nos. 18 and 19 are in support of the returned candidate (present applicant). The documents annexed to the election petition and marked as annexure Nos. 5, 6, 7 and 8 were not exhibited while examining the witnesses of the election Petitioner and even the election Petitioner, opposite party admitted in his deposition that the signatures appeared on annexure Nos. 5, 6, 7 and 8 are not the signatures of the persons named therein. From such admission of the election Petitioner, it has been proved that the said annexures are fabricated and false documents and whatever allegations made in the election petition are also found to be fabricated and false and therefore, the statement made in all the paragraphs must go along with the said annexures. Similarly documents annexed to the election petition and marked as annexure Nos. 1, 2, 3 and 4 which have been exhibited as paper exhibit Nos. 8, 13, 10 and 14 respectively must also go inasmuch as the witnesses examined by the election Petitioner have not deposed in support of the same. Similarly documents annexed to the election petition and marked as annexure Nos. 1, 2, 3 and 4 which have been exhibited as paper exhibit Nos. 8, 13, 10 and 14 respectively must also go inasmuch as the witnesses examined by the election Petitioner have not deposed in support of the same. Moreover, the election Petitioner who examined himself as PW10 and he himself admitted by saying that "did not lodge any complaint before the authorities concerned about he double enrollment because I did not know such double enrollment took place". Further the election Petitioner admitted in his deposition that the final electoral rolls were published by the authorities concerned before the election in question was held. The final electoral roll was published after disposal of the claims and objections and the period of such final disposal of the claims and objections. The said electoral rolls as published by the District Election Officer attained its finality and the election in question, was held on the basis of the said electoral rolls. Such electoral rolls cannot be questioned at this stage by the opposite party on the ground of alleged casting of votes by impersonation by some persons in certain polling stations. Taking this Court through the evidence of the election Petitioner and the relevant statement made in certain paragraphs of the election petition, Mr. Pertin, makes an attempt to persuade that the election Petitioner is trying to bring and make out new cases or improve his case through his witnesses although those allegations have not been made in the election petition thereby proceeding beyond the pleadings in the election petition. For example (1) there is no allegation in the election petition about the double enrollment of voters in two constituencies; (2) appointment of fake polling agents in polling booths; even in paper exhibit No. 15, i.e., first complaint and carrying arms by PPA party workers and supporters, and (3) presence of some persons in the army uniform with arms in polling booths have not been mentioned. These allegations were not made in the first complaint as well as in the election petition. 4. Mr. Pertin, learned Counsel for the applicants further submits that the election Petitioner is required to state and furnish the material facts and material particulars in the election petition the returned candidate is called upon to answer. In the present case, material facts and particulars are lacking. 4. Mr. Pertin, learned Counsel for the applicants further submits that the election Petitioner is required to state and furnish the material facts and material particulars in the election petition the returned candidate is called upon to answer. In the present case, material facts and particulars are lacking. The election Petitioner while making an allegation must disclose the source of information, name of person from whom the election Petitioner came to know and how, when and where he came to know. If the election Petitioner falls to furnish the necessary material facts and particulars, the election petition is liable to be dismissed at the threshold with heavy cost. In support of his submission, he relies on Mahender Pratap v. Krishan Pal and Ors., (2003) 1 SCC 390 in which the election petition was dismissed for intentional false plea to mislead the court and a penalty of Rs. 25,000 was imposed. He also relies on Dharti Paker v. Rajiv Gandhi, AIR 1987 SC 1577 . In the present case, according to learned Counsel for the applicants, the opposite party/election Petitioner not only failed to furnish material facts and particulars to sufficiently inform the returned candidate about the allegation he has to meet but also failed to furnish genuine supporting documents. The documents which have been annexed and marked as annexure Nos. 1, 2, 3, 4, 5, 6, 7 and 8 to the election petition are all fabricated ones and as such, the corresponding paragraphs Nos. 3, 4, 5, 6, 7 and 8 of the election petition are liable to be struck off and consequently the election petition is liable to be dismissed. 5. Mr. B.L. Singh, learned Counsel appearing for the opposite party/election Petitioner submits that the present application for striking out pleading and dismissal of the election petition under Order VI, Rule 16 and Order VII, Rule 11(a) of the Code of Civil Procedure, 1908 is not maintainable at the stage when the election Petitioner, after framing the issues on the basis of the pleadings of the parties, has already examined the witnesses and closed his evidence and the Respondent-returned candidate has been asked to lead his evidence. The election petition has been filed under Section 81of the Representation of the People Act, 1951 with statement of material facts and material particulars on which the Petitioner put his reliance as required under Section 83 of the said Act. The election petition has been filed under Section 81of the Representation of the People Act, 1951 with statement of material facts and material particulars on which the Petitioner put his reliance as required under Section 83 of the said Act. These material facts and particulars have sufficiently disclosed the cause of action within the meaning of order VI, Rule 2 of the Code of Civil Procedure. The election petition in question, with all necessary material facts and particulars disclosing the cause of action, cannot be rejected under Order VII, Rule 11(a) of the Code of Civil Procedure. At the time of examination of the witnesses, the election Petitioner has already proved the documents filed by him and the admissibility of the same cannot be questioned at this stage. The same is a matter of argument at the time of hearing. The applicant-returned candidate is not entitled to advance argument on the evidence led by the election Petitioner at this stage. The arguments of the learned Counsel for the opposite party/election Petitioner are based on the following authorities: - (i) Rakhaldas Pramanick v. Smt. Shantilata Ghose and Ors., AIR 1956 Cal. 619 . (ii) P.P. Sukeshwala and Anr. v. Dr. Devadatta V.S. Kerkar and Anr., AIR 1995 Bom. 227 . (iii) Karam Thamarjit Singh v. Allauddin Khan 2008 (1) GLT 829 : (2008) 3 GLR 163 (iv) Ashwani Kumar Sharma v. Yaduvansh Singh and Ors., (1998) 1 SCC 416 . (v) Manphul Singh v. Surinder Singh, AIR 1973 SC 2158 . 6. Before going into the question raised by the applicants, it is necessary to refer to certain relevant provisions under the Representation of the People Act, 1951 ('RP Act' only). Section 87 of the RP Act provides that every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits. Section 86 provides for trial of election petitions. The High Court can dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section117 of the RP Act. The conferment of such powers on the High Court to dismiss election petition in limine or striking out unnecessary scandalous, frivolous or vexatious pleadings flows from order VI, Rule 16. The High Court can dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section117 of the RP Act. The conferment of such powers on the High Court to dismiss election petition in limine or striking out unnecessary scandalous, frivolous or vexatious pleadings flows from order VI, Rule 16. The purpose for conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and does not embarrass the returned candidate. This has been discussed and explained In Azhar Hussain v. Rajiv Gandhi 1986 (Supp) SCC 315. It has been beautifully observed that the Sword of Damocles need not be kept hanging with the head of the returned candidate unnecessarily without a point or purpose because such hanging sword would not keep himself sufficiently free to devote his whole hearted attention to the matter of public importance which clamour for his attention in his capacity as an elected representative of the constituency concerned. 7. As provided under Section 83 of the RP Act, an election petition should contain a concise statement of the material facts and 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 commission of each such practice. The election petition in question contains allegations of booth capturing by the applicant/returned candidate, his agents and other persons within the meaning of Section 123(8) of the RP Act. The alleged booth capturing, as alleged in the election petition, took place at 7-Roing polling station, 2-Ruhi polling station and 5-Guchi polling station in 20-Tali (ST) Assembly Constituency of Arunachal Pradesh. In order to dispose of this application, it is necessary to go through the election petition so as to find out as to whether material facts and material particulars have been furnished or set forth as required under Section 83 of the RP Act. If the material facts and particulars are found lacking, there would be no alternative for the court except to dismiss the election petition in question under Section 86 of the RP Act read with order VI, Rule 16 of the Code of Civil Procedure, 1908. 8. If the material facts and particulars are found lacking, there would be no alternative for the court except to dismiss the election petition in question under Section 86 of the RP Act read with order VI, Rule 16 of the Code of Civil Procedure, 1908. 8. As regards 7-Roing polling station, the following averments have been made in para 4 of the election petition - ... Especially in Roing polling station no election was held on 13th October, 2009 as the polling team with Ballot boxes (EVM) had been kidnapped by the PPA workers headed by Shri Gichik Kiogi Thaji on 12th October night. Shri Gianiu Tallo INC Polling Agent Roing and Shri Tami Tayak President-NSUI, Kurung Kumey District reported the incident on 13th October, 2009 in separate letters to the Executive Magistrate, Tali for necessary action. On the next day on 14th October, 2009 Shri Rigam Santana, General Secretary Block Congress Committee Tali, Shri Tami Tayak President NSUI, Tali, Shri Tagio Yashok, ZPM, Tali jointly submitted a representation about the same incident with request for re-poll to the Assistant Returning Officer, 20-Tali (ST) Assembly Constituency. Shri Gichik Tago polling Agent, 7-Roing Polling Station and Shri Gichik Tachu jointly submitted another representation on 13th October, 2009 to the Assistant Returning Officer 20-Tali (ST) Assembly Constituency for re-poll, etc. But since no action has been taken by the concerned authority the genuine voters failed to exercise their constitutional right of adult franchise. In this regard, the material fact is that there was a booth capturing at 7-Roing polling station on 13th October, 2009 by way of kidnapping the polling staff/team with ballot boxes (EVM). The necessary material particulars are that the booth capturing and kidnapping of polling team and EVM was done under the leadership of PPA workers headed by Shri Gichik Kiogi Thaji on 12th October night. 9. As regard booth capturing at 2-Ruhi polling station averments have been made in para 5 of the election petition as under - That similarly at 2-Ruhi polling station some miscreants including Shri Markio Tado PPA Candidate himself involved in booth capturing and cast votes by single hand showing vote only 1 for INC and 1196 for PPA. The common voters were not allowed to exercise their voting right as they have been threatened to their lives by the miscreants of opposite party No. 5. The common voters were not allowed to exercise their voting right as they have been threatened to their lives by the miscreants of opposite party No. 5. The matter was reported by INC Polling Agent, Shri Tamuk Talu of Tamuk village to the Assistant Returning Officer 20-Tali (ST) A.C. Arunachal Pradesh on 14.10.2009 for re-poll. Such election offence of booth capturing was also happened at 5-Guchi polling station. Polling Agent Shri Dangur Tadek reported the matter on 13.10.2009 to the Assistant Returning Officer, 20-Tali (ST) Assembly Constituency Arunachal Pradesh for re-poll and necessary action. 10. The allegation has been brought clearly against the returned candidate of the PPA, Shri Markio Tado himself that there was casting of votes single handedly in the said polling station where only one vote was cast in favour of the INC. This a material fact. Of course, no other name of agents or workers of PPA candidate have been disclosed. The applicant-returned candidate has been informed sufficiently about the charge he has to meet. Regarding booth capturing at 5-Guchi polling station, no such material particular has been furnished. The allegation of booth capturing at 5-Guchi polling station it appears to be lacking in material facts and particulars but the same is to be read with annexure-5, a complaint dated 13.10.2009 made by polling agent of the election Petitioner with the Assistant Returning Officer, 20-Tali (ST) Assembly Constituency whereby stringent action was demanded against those persons involved in booth capturing. In the said complaint fresh polling was also demanded. 11. Similar type of allegation of booth capturing has been made by the election Petitioner in respect of five other polling stations namely, (1) 10-Yarda, (2) 8-Dotte, (3) 6-Giba, (4) 4-Tungmar, and (5) 15-Richik by different workers of the returned candidate with his consent and preplan. The names and particulars of persons who indulged in casting votes in the aforesaid eight (8) polling stations where booth capturing took place, have been furnished in a statement as part of para 5 of the election petition. In the election petition, it has been specifically stated that complaints were filed with the Assistant Returning Officer and the Returning Officer concerned about the aforesaid incident of booth capturing in the above polling stations and demanded re-poll but no action was taken by the authorities concerned. In the election petition, it has been specifically stated that complaints were filed with the Assistant Returning Officer and the Returning Officer concerned about the aforesaid incident of booth capturing in the above polling stations and demanded re-poll but no action was taken by the authorities concerned. The election Petitioner also made a point that due to booth capturing in the polling stations mentioned above, the Petitioner lost the election. In my considered view, the election Petitioner has been able to furnish as much sufficient material facts and particulars sufficient to inform the returned candidate to meet the charges brought against him in the election petition and to disapprove the same by adducing evidence in his support. 12. No doubt, as per provisions under Order VI, Rule 16, court may at any stage of the proceedings order to strike out any matter in any pleading (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the court. Law has been settled by the Apex Court in Sathi Vijay Kumar v. Total Singh and Ors. (2006) 13 SCC 353 that the underlying object of order VI, Rule 16 of the Code of Civil Procedure is to ensure that every party to a suit should present his pleading in an intelligible form without causing embarrassment to his adversary. If the parties have not offended the rules of pleadings by making averments or raising arguable issues, the court would not order striking out of pleadings but a note of warning has also been given that the power to strike out pleadings is extraordinary in nature and must be exercised by the court sparingly and with extreme care, caution and circumspection. The Apex Court in Ashwani Kumar Sharma (supra) held that the election petition is required to contain a concise statement of material facts equivalent to a cause of action and it is not required to set out in the petition the entire evidence in support of material facts. In the present case, the opposite party/election Petitioner has set forth in his election petition the required concise material facts, namely, booth capturing at least at eight polling stations with necessary material particulars, the applicant-returned candidate had to meet. In the present case, the opposite party/election Petitioner has set forth in his election petition the required concise material facts, namely, booth capturing at least at eight polling stations with necessary material particulars, the applicant-returned candidate had to meet. It is found that the election Petitioner has complied with the requirements of law in regard to preparation of pleadings without offending the rules of pleadings. The averments made in the election petition with the material facts and particulars have raised arguable issues, particularly indulging in corrupt practice by the returned candidate and his agents and workers by way of booth capturing in the above eight polling stations. It is an issue concerning the election Petitioner in particular and people of the constituency in general affecting free and fair conduct of election in a democratic society which must be taken seriously, because the ML As are law makers of the State and they must prove themselves free from corrupt practices in the election. 13. What is evident from the averments made in this miscellaneous application and the submissions made by the learned Counsel for the applicants, is that striking off the pleadings of the election Petitioner and rejection of election petition have been made mainly on the basis of failure to set out the material facts and particulars and also on failure of adducing sufficient evidence by the election Petitioner in support of the alleged corrupt practice committed by the applicant-returned candidate and his agents and workers. The learned Counsel for the applicants extensively deals with the evidence of the witnesses, both documentary or oral, and tries to make a point that certain documents are not admissible in evidence under the Evidence Act and on the basis of such inadmissible documentary evidence, the election petition cannot be decided/disposed of; rather the election petition must be dismissed or rejected at this stage without proceeding further and the applicant-returned candidate is not required to adduce evidence. Regarding presence of persons in army uniform at certain polling stations and casting votes by personation, there is no allegation with material facts and particulars in the election petition. This fact, according to the opposite party/election Petitioner, came to his knowledge subsequently after the election petition was filed and it was, therefore, not possible on his part to incorporate them in the election petition. This fact, according to the opposite party/election Petitioner, came to his knowledge subsequently after the election petition was filed and it was, therefore, not possible on his part to incorporate them in the election petition. Since no statement have been made in the election petition, the question of striking off this portion of allegation does not arise and even if the election Petitioner fails to prove this allegation, it would not entail dismissal or rejection of this election petition on that ground only because the election Petitioner is called upon to prove his case as pleaded in the petition. 14. I have gone through the decision rendered by the Calcutta High Court in Rakhaldas (supra) in regard to tendering and exhibiting documents before the trial court. As per the said judgment, any question regarding admissibility of a particular document in evidence for the purpose of proceeding must be decided at the time when the document is tendered and before it is actually marked as an exhibit. In the present case, the applicant/returned candidate admittedly did not raise any objection to tendering any document either in original or photo copies and marking/exhibiting them. The said documents were exhibited/proved through witnesses. When a document is exhibited, the same is to be taken into consideration in deciding the related question in respect of a particular case. The applicant, at this stage of the proceeding, is debarred from questioning the admissibility of the evidence tendered by the witnesses by exhibiting the document. However, the said documentary exhibit can be impeached by the applicant-elected candidate by adducing evidence through his witnesses. The said stage is yet to come. He may take the chance by examining his witnesses. Since the evidence of the election Petitioner has already been over and closed, it is the turn of the applicant-elected candidate to adduce his evidence to disprove or impeach whatever oral evidence or documentary evidence have been adduced by the election Petitioner. But the applicant-elected candidate has filed this application, without availing the aforesaid chance, questioning the admissibility of the documentary evidence and also the value of the oral evidence adduced by the election Petitioner. But the applicant-elected candidate has filed this application, without availing the aforesaid chance, questioning the admissibility of the documentary evidence and also the value of the oral evidence adduced by the election Petitioner. In my considered view, the applicant-elected candidate has entered into the merits of the case which could be done only at the time of final hearing after conclusion of the evidence of both sides and thereby the applicant-returned candidate has stepped into prohibited area of considering correctness of allegations and evidence before conclusion of evidence of the parties. In my considered opinion, this is quite an unusual approach, which is not in consonance with law. In this regard, reference may be made to law laid down by the Apex Court in Virender Nath Gautam v. Satpal Singh and Ors., (2007) 3 SCC 617 . It would be apt to quote paragraphs 51 and 52, which read as under - 51. In our considered opinion, material facts which are required to be pleaded in the election petition as required by Section 83(1) of the Act read with order 7, Rule 11(a) of the Code have been pleaded by the election Petitioner, cause of action has been disclosed in the election petition and, hence, the petition could not have been dismissed by the High Court. The impugned order of the High Court suffers from infirmity and cannot be sustained. 52. The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support or averments by entering into the merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside. 15. Having considered the issue involved in the instant application on the basis of law settled by the Apex Court, as referred to above, the irresistible conclusion that comes is that the election petition contains sufficient material facts and particulars disclosing triable cause of action and the same is not liable to be rejected under Order VII, Rule 11(a) of the Code of Civil Procedure. For the same discussions and consideration, none of the paragraphs containing allegations of corrupt practice within the meaning of Section 123(8) of the RP Act is liable to be struck off under Order VI, Rule 16of the Code of Civil Procedure. I do not find any valid reason or ground for allowing this application taking recourse to provisions under Order VI, Rule 16 of and order VII, Rule 11(a), of the Code of Civil Procedure. This application is found without any merit and the same is liable to be dismissed. It is accordingly dismissed. Parties to bear their own costs. 16. The Election Petition No. 1(AP)/2009 shall proceed. Applicant-returned candidate may adduce and examine his witnesses. Application dismissed