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2014 DIGILAW 25 (ALL)

GIRJA v. SARLA DEVI

2014-01-06

SANJAY MISRA

body2014
JUDGMENT Hon’ble Sanjay Misra, J.—Heard Sri Swapnil Kumar learned counsel for the petitioner and Sri Arvind Kumar Singh learned counsel for the respondent No. 1. Notice need not be issued to the other respondents. 2. The petitioner Smt. Girja is the elected candidate as Chairman, Nagar Panchayat Raja Ka Rampur, Tehsil Aliganj, District Etah and the respondent No. 1 Smt. Sarla Devi is the election petitioner who has filed Election Petition No. 1 of 2012 (Sarla Devi v. Girja and others) challenging the election of the petitioner. In the said election petition the election petitioner/respondent No. 1 filed an application under Order VI Rule 16 CPC with a prayer that the averments made in the written statement filed by the petitioner in response to the election petition were required to be expunged being recriminatory in nature. In the said application filed by the election petitioner it was alleged that paragraphs 26, 27, 28 and 32 were recriminatory in nature and hence were required to be expunged. The said application has been decided by the impugned order dated 5.8.2013 by the Election Tribunal whereby it has allowed this application (32-C) and directed that the paragraphs 26, 27, 28 and 32 of the written statement being recriminatory in nature cannot be admitted on record. 3. According to Sri Swapnil Kumar learned counsel for the petitioner the impugned order is illegal for the reason that even if the averments are recriminatory in nature as made in the written statement the petitioner could have been prevented from leading any evidence thereupon in light of Section 21 of the Municipalities Act but such paragraphs alleged to be recriminatory in nature could not be expunged from the written statement. 4. His second submission is that the averments made in paragraphs 26, 27 and 28 of the written statement are not recriminatory in nature and at the maximum the averments of paragraph 32 of the written statement which averred the deposit of Rs. 500/- as required for maintaining a recriminatory petition could have been struck off alone. 5. 4. His second submission is that the averments made in paragraphs 26, 27 and 28 of the written statement are not recriminatory in nature and at the maximum the averments of paragraph 32 of the written statement which averred the deposit of Rs. 500/- as required for maintaining a recriminatory petition could have been struck off alone. 5. He submits that insofar as the limitation of 21 days as provided under Section 21 of the Act is concerned the written statement could not be rejected only for the reason that it was filed after 21 days and therefore submits that the averments of paragraphs 26, 27 and 28 of the written statement would be averments in defence and not recriminatory in nature. 6. According to learned counsel for the respondent No. 1 who is the election petitioner a recriminatory proceeding could be brought about only by a separate recriminatory petition as provided in Section 21 (1) and (2) of the Act. He states that recriminatory proceedings cannot be initiated on averments made of such nature in the written statement by the returned candidate. His further submission is that in view of the proviso of Section 21 of the Act the limitation of 21 days would apply for a recriminatory proceeding and in light of the admitted fact that the written statement was filed beyond the period of 21 days after notice the paragraphs of the written statement containing recriminatory averments were rightly stuck off by the Tribunal as being time barred. 7. In support of their submission learned counsel for the petitioner has relied on a decision of this Court in the case of Naresh Kumar v. Prakash Narain Awasthi and others, AIR 1988 All 102 and submits that the assertions made in the written statement which are not covered under the ingredients of Order VI Rule 16 CPC cannot be struck off from the written statement. 8. He has further relied on a decision of this Court in the case of Amar Nath v. Janardan Prasad Ojha, AIR 1988 All 116 , for the same proposition. 9. 8. He has further relied on a decision of this Court in the case of Amar Nath v. Janardan Prasad Ojha, AIR 1988 All 116 , for the same proposition. 9. Learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in the case of D. Ramachandran v. R.V. Janakiraman and others, (1999) 3 SCC 267 and submits that in a election petition when an application is made to strike out pleadings on the ground that the averments made in the election petition did not contain material facts could not be allowed for the reason that there was a distinction between material facts and full particulars and striking out such parts of the pleadings was not justified. 10. Learned counsel for the respondent No. 1 on the other hand has placed reliance on a decision of the Supreme Court in the case of A.B. Patil and others v. Siddaramaiah and others, AIR 1994 SC 512 and submits that the provisions of Section 97 of the Representation of the People Act are para materea to Section 21 of the Municipalities Act and states that it has been clearly held in the said judgment that the notice referred to in sub-section (1) is to be accompanied by the statement and particulars as required by Section 83 in case of an election petition and to be signed and verified in the like manner. 11. According to him in the present case if a recriminatory application is to be made it has to be made under the provisions of Section 21 (2) of the Act and the requirements of Section 20 of the Municipalities Act have to be complied with. According to him when such a compliance has not been made in the present case the Tribunal was right in striking of the paragraphs of the written statement where they were recriminatory in nature. 12. Having considered the submission of learned counsel for the parties and perused the record the averments made in paragraphs 26. 27 and 28 of the written statement filed by the petitioner indicate that the thrust is on the fact that if the votes which have been counted in favour of the election petitioner had been correctly counted the petitioner who is the returned candidate would have won by a much higher margin. 27 and 28 of the written statement filed by the petitioner indicate that the thrust is on the fact that if the votes which have been counted in favour of the election petitioner had been correctly counted the petitioner who is the returned candidate would have won by a much higher margin. Such averments in paragraphs 26, 27 and 28 of the written statement indicate that if the election petition of the respondent No. 1 was being considered the petitioner who is the returned candidate has taken a plea of having won by a higher margin and as such the election petitioner could not succeed in his election petition. 13. The said averments made in paragraphs 26, 27 and 28 of the written statement filed by the petitioner who is the returned candidate are to be read alongwith paragraph 32 of the written statement which states that the required amount for maintaining a recriminatory proceeding of Rs. 500/- is being deposited alongwith challan. Clearly the petitioner while filing the written statement had himself in paragraph 32 of the written statement stated that the security of Rs. 500/- for maintaining recriminatory proceedings is being deposited. Therefore to say, that the averments of paragraphs 26, 27 and 28 of the written statement were not recriminatory in nature would be contrary to the own averments of the petitioner made in paragraph 32 of his written statement. In light of the aforesaid reasons this Court finds it not necessary to dwell into the averments made in paragraphs 26, 27 and 28 of the written statement to find out whether they are recriminatory in nature particularly in light of paragraph 32 of the written statement. 14. The question then is with respect to the validity of the impugned order whether the recriminatory averments made in the written statement are barred by time under Section 21 of the Act and whether they require to be expunged from the written statement or maintained in the written statement but would deny the petitioner from leading evidence on such averments in light of the bar created in the proviso to Section 21 of the Act. 15. Section 21 of the Act is quoted here under : “21. 15. Section 21 of the Act is quoted here under : “21. Recriminatory Proceedings.—(1) where in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such other candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election: Provided that the returned candidate or such other party shall not be entitled to give such evidence unless he has within twenty-one days from the date of the service upon him of the notice of the election petition, given notice to the election tribunal of his intention to do so and has also deposited the security prescribed in the case of an election petition questioning the election of a member. (2) Every notice referred to in sub-section (1) shall be accompanied by a statement of ground or grounds and of material facts and full particulars required by Section 20 in the case of an election petition and shall be signed and verified in like manner.” 16. The proviso provides that the returned candidate shall not be entitled to give evidence unless he has within twenty one days from the date of the service upon him of the notice of the election petition given notice to the election Tribunal of his intention to do so. Meaning thereby that a recriminatory proceeding under Section 21 can be brought by the returned candidate in an election petition within 21 days of being served the notice. It is not in dispute in these proceedings that the written statement was filed beyond 21 days but that would not amount to rejecting the written statement. The written statement can well be accepted beyond the period of 21 days. 17. The averments made in the written statement in paragraphs 26, 27, 28 and 32 indicate on the own showing of the petitioner that they are recriminatory in nature. The written statement can well be accepted beyond the period of 21 days. 17. The averments made in the written statement in paragraphs 26, 27, 28 and 32 indicate on the own showing of the petitioner that they are recriminatory in nature. When the provisions of Section 21 sub-clause (2) of the Act requires that the notice (recrimination) referred in sub-section 1 shall be accompanied by a statement of ground or grounds and of material facts and full particulars as required by Section 20 of the Act then it would be a separate petition and as contemplated by Section 20 of the Act it is to be in a proforma hence a recriminatory petition has to be a separate application and accompanied by the requirements of Section 20 of the Act. As such when a recriminatory proceeding has to be by means of a separate application and in case the petitioner who is the returned candidate wanted to contest the election petition by filing his written statement and also initiate recriminatory proceedings he was at liberty to do so but with compliance of the mandatory conditions of Section 21 (1) and Section 21 (2) of the Act. 18. It is not denied that the averments of paragraphs 26, 27, 28 and 32 of the written statement are recriminatory in nature and no separate application with the statement of grounds and other requirements of Sectin 20 had been made by the petitioner. As such when the recriminatory proceedings are to be made in the same manner as an election petition filed under Section 20 of the Act the Tribunal was right in expunging such recriminatory averments made in paragraphs 26, 27, 28 and 32 of the written statement. 19. Apart from the above the said recriminatory averments were admittedly time barred and the provisions to Section 5 of the Limitation Act have no application on a recriminatory proceeding under Section 21 of the Act. As such the reasoning given by the Tribunal in expunging the said paragraphs from the written statement on the ground of limitation and on the ground that they could not form part of the written statement do not suffer from any error in law. 20. The writ petition has no merit. It is accordingly dismissed. 21. No order is passed as to costs.