Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1112 (ORI)

Tara Prasad Bahinipati v. Rabi Narayan Nanda

2017-10-09

S.K.MISHRA

body2017
JUDGMENT : 1.This application under Order 6, Rule 16 read with Order 7, Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “Code” for brevity) has been filed by the returned candidate-Tara Prasad Bahinipati, who contested the 143-Jeypore (General)Assembly Constituency in the general election of the year 2014. The sole opposite party is the election petitioner. 2.The election petitioner-Rabinarayan Nanda the official candidate of the Biju Janata Dal (hereinafter referred to as the “BJD” for brevity) filed an application under Section 100 of the Representation of the People Act, 1951(hereinafter referred to as the “R.P. Act” for brevity) for declaring the election of the returned candidate, i.e., the petitioner in this Misc. Case to be invalid on the ground that his nomination has been improperly accepted by the Returning Officer as it did not contain a mention of the criminal cases pending against the returned candidate and there is prevaricating statement regarding his educational qualification. The election petition has been admitted and notice has been issued. The opposite parties have already appeared and filed their written statement and issues have been framed. Six witnesses have been examined on behalf of the election petitioner and all witnesses for the respondent have been examined and the last witness R.W.5 has been examined on 4.2.2016. Hon’ble Shri Justice Biswanath Rath has recorded the entire evidence in this case. On 29.3.2016 His Lordship has directed the registry to place the matter before the Hon’ble Chief Justice to place the matter before any other Bench and as per the kind minutes of Hon’ble the Chief Justice, the matter is placed before this Court. After the matter was placed, the election petitioner filed this Misc. Case under Order 7, Rule 11 of the Code to dismiss the election petition along with a prayer under Order 6, Rule 16 of the Code to strike out the entire pleadings in the Election Petition filed by the election petitioner. 3. Before adverting into the matter of controversy, it is appropriate for this Court to take note into the grounds on which the application has been filed. It is undisputed that the returned candidate has got more votes than the election petitioner. It is the case of the returned candidate in the Misc. 3. Before adverting into the matter of controversy, it is appropriate for this Court to take note into the grounds on which the application has been filed. It is undisputed that the returned candidate has got more votes than the election petitioner. It is the case of the returned candidate in the Misc. Case that the election petition is thoroughly deficient in pleadings to make out any cause of action and the opposite party/election petitioner has miserably failed to substantiate the contentions as to how the result of the election so far it concerns the returned candidate has been materially affected, the continuance of a proceeding of present nature is not only an abuse of the process of the Court, but is an anathema to the concept of fair trial. The returned candidate has filed this application under Order 6, Rule 16 read with Order 7, Rule 11 of the Code on the following grounds:- (I) The election petition and pleadings therein are unnecessary prolix and verbose or argumentative or is full of matter which is wholly irrelevant. Hence, required to be deleted by exercising power under Order 6, Rule 16 of the Code. (II) The conduct of the election petitioner is so glaringly contumacious and tended to keep a mater alive for political mileage, the petitioner deserves to be dealt with sternly as the proceeding is an abuse of the process of the Court. (III) The general averments taken in the election petition are deficient in pleadings of all constituent parts of material facts and do not constitute pleadings of full cause of action and are liable to be struck down. 4. It is pleaded that when the grounds/pleadings made in an election petition are vague, scandalous, frivolous or vexatious and may prejudice, embarrass or delay a fair trial, the Court has the power under Order 6, Rule 16 of the Code to strike out such pleadings. Similarly, where an election petition does not disclose a cause of action the same can be rejected/dismissed under Order 7, Rule 11 of the Code. The returned candidate further pleads that the election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. The returned candidate further pleads that the election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83 (1) (c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read if the Court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. Then the petitioner has quoted several sections and at paragraph-12 of the Misc. Case he pleads that the returned candidate has filed a comprehensive written statement replying the averments made in the election petition and the same may be treated as part of this petition for brevity and convenience and in order to avoid repetition. 5. At this stage this Court takes a pause and resorts to the judgment rendered by the Hon’ble Supreme Court in the case of Soumik Sil V. Subhas Chandra Sil; AIR 2014 SC 1931 ; wherein the Hon’ble Supreme Court has held while considering in an application under Order 7, Rule 11 of the Code the Court is required only to peruse the plaint, in this case, the election petition and the documents annexed thereto. In other words, the documents or the pleadings of the defendants/respondents/opposite parties need not be looked into. Thereafter, the returned candidate has quoted different provisions of the R.P. Act. At paragraph-20 of the Misc. Case, some substantive averment has been made by the returned candidate. It is pleaded that the election petitioner has based his relief contained in paragraphs-5, 5. A to 5.E on the basis of the pleadings contained in paragraphs 6, 6.A to 6.E. The pleadings contained in paragraphs 5, 5.A to 5.E do not make out any cause of action. Neither the pleadings therein come within the sweep of the grounds mentioned in Sections 100 and 101 of the R.P. Act nor do they constitute the material facts for which the same pleadings are liable to be rejected. Neither the pleadings therein come within the sweep of the grounds mentioned in Sections 100 and 101 of the R.P. Act nor do they constitute the material facts for which the same pleadings are liable to be rejected. Similarly, the pleadings contained in paragraphs 6, 6.A to 6.E are all frivolous, vexatious, scandalous and unnecessary and do not make out any cause of action and therefore liable to be rejected. 6. This Court takes note of the fact that though the Misc. Case of the returned candidate in different paragraphs repeatedly contends the relevant paragraphs of the election petition do not make out a cause of action or they are all frivolous, vexatious, scandalous and unnecessary, the petition do not reflect how such pleadings of the election petition are frivolous, vexatious, scandalous and unnecessary. It is only a repetition of the words used in a statute like recital of Mantra without specifying the grounds on which the returned candidate terms the paragraphs to be struck off as the same are frivolous, vexatious, scandalous and unnecessary. The returned candidate has gone to plead that the election petition raised on two allegations. (a) The affidavit under Form 26 is defective inasmuch as information of the pending criminal cases were not furnished. (b) The correct information regarding educational qualification of the respondent was not supplied. 7. Again the returned candidate reverted to his written statement and submits that he has filed two affidavits in the prescribed Form 26 under Rule 4(A) of the Conduct of Election Rules, 1961. It is pertinent to mention here that both the affidavits were sworn on 21.3.2014 before the Notary Public as required under law. The first affidavit was sworn vide Serial No.1911 dated 21.3.2014 at 12.15 P.M. and was filed along with the nomination papers vide Serial Nos.11,12,13 and 14 respectively on 21.3.2014 at 1.50 P.M. After obtaining further information regarding two other criminal cases, another affidavit was sworn in before the Notary Public vide Serial No.1912 dated 21.3.2014 at 12.25 P.M. The said affidavit was presented before the Returning Officer at 1.05 P.M. on 22.3.2014 well before the time. 8. The returned candidate further pleads that the allegation regarding the false information about educational qualification is also equally false and baseless. 8. The returned candidate further pleads that the allegation regarding the false information about educational qualification is also equally false and baseless. It is submitted that respondent no.1 has passed Class-X from Goutami High School in the district of Ganjam which fact was correctly mentioned in the affidavit. The election petitioner has made unnecessary reference of the affidavit to the year 2004 and 2009 which had absolutely no bearing with the scrutiny and verification of nomination for the election of 2014. It is further pleaded that paragraphs-6, 6A to 6E are not material facts within scope of Section 83(1) of the R.P. Act and they do not constitute a complete cause of action and are liable to be struck down under Order 6, Rule 16 of the Code. In the event the said paragraphs are stuck down the remaining paragraphs also do not make out any cause of action justifying a proceeding. Otherwise also, the election petition cannot stand the scrutiny of Section 100 (1)(d)(iv) of the R.P. Act. Hence he prayed that the election petition be dismissed. 9. A detailed counter affidavit has been filed by the election petitioner. The main and substantive pleadings that are appearing in the counter affidavit shall be considered by the Court. Firstly, it is countered by the election petitioner that without whispering a word as to how the pleadings in the election petition sought to be stuck out are unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay fair trial or amount to abuse of process of law except reiterating the language of Order 6, Rule 16 of the Code like chanting of Mantra. The allegations made in the Misc. Case are without any substance. 10. It is further pleaded that on the pleadings and grounds stated in the election petition and the pleading of the written statement, this Court has framed as many as thirteen issues. Both the election petitioner and respondent no.1 led their respective evidences. Evidences from both sides have been closed since long. Therefore it is not only too late but also entirely futile on part of respondent no.1 to raise such frivolous and baseless objection that the pleadings are insufficient or deficient in material facts and particulars and/or unnecessary, scandalous, frivolous and vexatious in nature and/or the pleadings caused prejudice against the concept of fair trial. Therefore it is not only too late but also entirely futile on part of respondent no.1 to raise such frivolous and baseless objection that the pleadings are insufficient or deficient in material facts and particulars and/or unnecessary, scandalous, frivolous and vexatious in nature and/or the pleadings caused prejudice against the concept of fair trial. It is further pleaded that on the contrary the intention of respondent no.1 is apparent and clear that he has filed such a frivolous application at the fag end of proceeding after closure of evidences just to delay the argument and final decision in the case. Such unholy attempt has to be curbed by dismissing the application. The rest of the averments are on the merit of the election petition, i.e. regarding filing of incomplete affidavit along with the application for nomination and the educational qualification of the returned candidate which at present not necessary to reiterate in this order. 11. From this pleading, it is apparent from the records that there are three essential questions to be addressed by this Court at present for the purpose of disposing this Misc. Case. Firstly, whether the election petitioner has made out a case for striking out pleadings from the election petition under Order 6, Rule 16 of the Code. The second question is that whether there is a cause of action for filing of the election petition inasmuch as the election petition do reveal that the returned candidate has not mentioned about the criminal cases pending against him in the nomination paper filed by him by way of an affidavit (in this contest the pleas raised by the returned candidate in the written statement are not looked into). The third question is whether at this stage when the evidence of both sides have been completed and closed and the case is posted for argument, should an application under Order 7, Rule 11 of the Code be entertained? 12. Coming to the first question, it is apparent form the records that Order 6, Rule 16 of the code do provide for striking out of pleading that are unnecessary, scandalous, frivolous or vexatious or may tend to prejudice, embarrass or delay the fair trial or otherwise an abuse of the process of the Court. It is appropriate to take note the exact words used by the legislation under Order 6, Rule 16 of the Code. “16. It is appropriate to take note the exact words used by the legislation under Order 6, Rule 16 of the Code. “16. Striking out pleadings–The Court may at any stage of the proceedings order to be struck out or amended 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.” 13. A plain reading of the provision make it clear that it is for the party seeking striking of portion of the pleading must establish how such an application is unnecessary, scandalous, frivolous or vexatious or may tend to prejudice, embarrass or delay the fair trial or otherwise an abuse of the process of the Court. 14. In this case, Mr. Acharya, learned Senior Counsel appearing for the returned candidate, did not point out during course of his argument how the pleadings are unnecessary, scandalous, frivolous or vexatious or may tend to prejudice, embarrass or delay the fair trial or otherwise an abuse of the process of law. Moreover, the petition itself do not contain any ground on which such pleadings of the election petitioner should be considered unnecessary, scandalous, frivolous or vexatious or may tend to prejudice, embarrass or delay the fair trial or otherwise an abuse of the process of the Court. This court is of the opinion that though the Court has jurisdiction to strike out the portions or the entire pleadings of a party in this case, such use of jurisdiction is not at all justified. Hence, this Court comes to the conclusion that the prayer of the returned candidate to strike out the pleading contained in paragraphs 1, 2, 3, 4 and 5, 5.A to 5.E and 6, 6.A to 6.E, 7,8,9 and 10 should be refused and accordingly ordered. 15. The next important question that comes for consideration is that whether the pleading appearing in election petition constituted a cause of action, if not whether it deserved to be rejected. Order 7, Rule 11 of the Code provides for rejection of the plaint. In this case, clause (a) of Rule 11 or Order 7 of the Code is relevant. It provides that the plaint shall be rejected in the case where it does not disclose a cause of action. Order 7, Rule 11 of the Code provides for rejection of the plaint. In this case, clause (a) of Rule 11 or Order 7 of the Code is relevant. It provides that the plaint shall be rejected in the case where it does not disclose a cause of action. Un-controverted pleading of the election petitioner reveals that at the time of filing of nomination, the returned candidate has a duty to file an affidavit in Form 26 and the same was filed, but it did not contain any declaration regarding pendency of criminal cases against him. Therefore, it is contended that his application is violative of Section 33-A of the R.P. Act. Hence, his election has to be cancelled on the ground that he has not specified the criminal cases pending against him. Moreover, it is further contended that the returned candidate has given prevaricating statements regarding his educational qualification. This Court is of the opinion that both the facts if un-controverted by the returned candidate can be relied upon to give a direct verdict in favour of the election petitioner. 16. In the case of AZAR HUSSAIN Vs. RAJIV GANDHI; 1986 (Supp) Supreme Court Cases 315; at paragraph 14, the Hon’ble Supreme Court has held that the material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. 17. Challenging the settled principle of law, Mr. Acharya, learned Senior Counsel, would argue that the petition based on a violation of Section 33-A of the R.P.Act do not come within the ambit of Section 100 of the R.P. Act. He contends that an election of a returned candidate can only be set aside on the ground for declaring the election to be void under Section 100 of the R.P. Act. He would argue that the entire Section if taken be read as a whole do not reflect that non-discloser of pendency of criminal cases for offences punishable with imprisonment for two years or more in the affidavit is not a ground for setting aside the election. Moreover, Mr. He would argue that the entire Section if taken be read as a whole do not reflect that non-discloser of pendency of criminal cases for offences punishable with imprisonment for two years or more in the affidavit is not a ground for setting aside the election. Moreover, Mr. Acharya, learned Senior Counsel, would further argue that only by establishing that the nomination has been improperly accepted, it will not itself sufficient to set aside the election of the returned candidate unless it is shown that such improper acceptance of nomination has materially affected the result of the election in so far it concerns a returned candidate. 18. Mr. Acharya, learned Senior Counsel appearing on behalf of the returned candidate, further argues that Section 36 of the R.P.Act provides for scrutiny of nomination and under this Section the Returning Officer do not have jurisdiction to reject the nomination of a candidate on the ground that it violates Section 33-A of the R.P. Act and, therefore, the Court in Election Petition filed under Sections 100 and 101 of the R.P. Act cannot set aside the election of a returned candidate or declare the same to be void as hand book issued by the Election Commission do not provide that the Returning Officer has any jurisdiction to refuse nomination paper of a candidate. 19. Mr. B. Mishra, learned Senior Counsel appearing for the election petitioner, on the other hand, would argue that if the contents of the election petition along with the documents filed therewith is taken without looking into the plea taken by the returned candidate, then a cause of action is definitely made out. He also would argue that the matter has already been settled by the judgment of the Hon’ble Supreme Court and it has been settled by plethora of judgments of the Hon’ble Supreme Court that violation of Section 33-A of the R.P. Act in not disclosing criminal cases pending against the candidate which are punishable with imprisonment of two years or more shall make acceptance of the nomination vulnerable and in such cases, the Election Tribunal can go on to declare the election of the candidate void. 20. In this connection, this Court takes note of the off quoted judgment in the case of KISHAN SHANKAR KATHORE Vs. ARUN DATTATRAY SAWANT AND OTHERS; (2014) 14 Supreme court cases 162. 20. In this connection, this Court takes note of the off quoted judgment in the case of KISHAN SHANKAR KATHORE Vs. ARUN DATTATRAY SAWANT AND OTHERS; (2014) 14 Supreme court cases 162. The Hon’ble Supreme Court has considered this aspect and has held that when the information given a candidate in the affidavit filed along with nomination paper and objections are raised thereto questioning the correctness of the information or alleging that there is non-disclosure of certain important information, it may not be possible for the Returning Officer at that time to conduct a detailed examination. Summary enquiry may not suffice. The Hon’ble Supreme Court further observed that the case before it itself an example which loudly demonstrates the above aspect. At the same time, it would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the objector. In such a case, when ultimately it is proved that it was a case of non-disclosure and either the affidavit was false or it did not contain complete information leading to suppression, it can be held at that stage that the nomination was improperly accepted. However, the Hon’ble Supreme Court accepted the contentions of the learned Senior Counsel appearing for the Election Commission to the effect that such an enquiry can be only at a later stage and the appropriate stage would be in an election petition as in the instant case, when the election is challenged. The grounds stated in Section 36(2) of the R.P.Act are those which can be examined there and then and on that basis the Returning Officer would be in a position to reject the nomination. Likewise, where the blanks are left in an affidavit, nomination can be rejected there and then. In other cases where detailed enquiry is needed, it would depend upon the outcome thereof, in an election petition, as to whether the nomination was properly accepted or it was a case of improper acceptance. Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void. Otherwise, it would be an anomalous situation that even when criminal proceedings under Section 125-A of the R.P. Act can be initiated and the selected candidate is criminally prosecuted and convicted, but the result of his election cannot be questioned. The Hon’ble Supreme Court held that this cannot be countenanced. Thus, the second contention of Mr. Acharya, learned Senior Counsel, is answered against him. In the sense, even if the Returning Officer has not rejected the nomination filed by the returned candidate, the Election Tribunal can go into question and decide the same. 21. The 3rd realm of argument raised by Mr. Acharya, learned Senior Counsel, is that there is no pleading in the election petition as to how the election of the returned candidate was materially affected by improper acceptance of his nomination. Mr. Mishra, learned Senior Counsel for the election petitioner, on the other hand, argues that whenever the improper acceptance of nomination of another candidate, who is not declared elected in the election, then the onus is on the election petitioner to show how his nomination materially affected the outcome of the election. But it is further contended that when the improper acceptance of nomination is in question of the returned candidate himself, then the natural corollary would be that the election has been materially affected. Had it been the nomination not improperly accepted, another candidate would have been returned as the winning candidate. This Court in agreement with Mr. Mishra, learned Senior Counsel, and come to the hold that when the averment is that improper acceptance of the returned candidate is made in the election petition, it definitely constitute a cause of action as in case of non-acceptance of returned candidate, he would not have been elected in the election. 22. So, this court comes to the conclusion that if the pleading of the election petition is taken into consideration, a definite cause of action does appear. 22. So, this court comes to the conclusion that if the pleading of the election petition is taken into consideration, a definite cause of action does appear. Inasmuch as there is specific allegation that criminal cases are pending against the returned candidate and the same has not been filed by affidavit in Form 26 along with the nomination paper and, secondly, there is some dispute regarding the educational qualification reflected by the returned candidate in his affidavit. Hence, the second question is also answered against the returned candidate. 23. Coming to 3rd aspect of the case, i.e. regarding the fact that the application for rejection of the petition under Order 7, Rule 11 of the Code has been filed at a belated stage, this Court is of the opinion that even if this aspect is not taken into consideration on the basis of the first two aspects of the case, the application under Order 6, Rule 16 read with Order 7, Rule 11 of the Code can be rejected. However, it proper for this Court to take note into the plethora of judgments like in the case of AZAR HUSSAIN Vs. RAJIV GANDHI, (1986) Supp. SCC 315, D.M.Agrawal Vs. Rajiv Gandhi, (1987) 2 SCJ 533, Bhagawati Prasad Dixit Vs. Rajiv Gandhi, (1986) 4 SCC 78 : AIR 1987 SC 1926 . The Hon’ble Supreme Court has held that Order 7, Rule 11 of the Code application can be filed at any stage, but in all those cases the question arose whether the application under Order 7, Rule 11 of the Code should be filed or can be entertained before filing of the written statement or after filing of the written statement and before or after casting of the issues in the suit or election petition. The judgments referred to above does not speak about the situation where the entire evidence from both the contesting parties have already been recorded. So even if it is correct that the application for rejection of the petition can be filed at any stage, this application has been filed after closure of the evidence, hence this Court is of the opinion that at this stage filing of such application is only to delay the disposal of the Election Petition. So even if it is correct that the application for rejection of the petition can be filed at any stage, this application has been filed after closure of the evidence, hence this Court is of the opinion that at this stage filing of such application is only to delay the disposal of the Election Petition. Thus, on the conspectus of the materials available on record and the arguments advanced by the learned Senior counsel appearing for the returned candidate and the election petitioner and having analyzed the different judgments cited in the preceding paragraphs, this court is of the opinion that the application filed by the returned candidate to strike out the entire material pleadings of the election and to reject the election petition under Order 7, Rule 11 of the Code is devoid of any merit and, therefore, is dismissed. There shall be no order as to costs. 24. This Court further adds that all these observations made in the body of this order are only on the question of Order 6, Rule 16 read with Order 7, Rule 11 of the Code and has no bearing on the final merit of the election petition. In other words, this Court shall not be prejudiced by this order while disposing of the election petition after considering the pleadings of both the parties and the evidence both oral and documentary led by the parties. 25. Misc. Case is accordingly dismissed. 26. Urgent certified copy of this order be granted on proper application.