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Madhya Pradesh High Court · body

2019 DIGILAW 785 (MP)

ATMARAM s/o MADHA PATEL v. SACHIN YADAV

2019-11-13

S.K.AWASTHI

body2019
ORDER : – This order shall govern the disposal of IA No. 4358/2019, an application filed under Order 7, Rule 11 of Civil Procedure Code, 1908 (in short ‘CPC’) filed on behalf of respondent No. 1. 2. The application in summary narrates that the election petition filed by the petitioner suffers from multiple deficiencies, which are sufficient for rejection of the same. Learned Senior Counsel for the respondent No. 1 submits that the foundation of election petition is alleged on the basis of incomplete information, which is necessary to be furnished in the form No. 26 of section 4-A of the Conduct of Election Rules, 1961. However, the petitioner did not furnish the same. In this regard, he further submits that the controversy has been put to rest in an enquiry conducted by the Returning Officer and since this issue stands concluded. It shall be travesty of justice and wastage of quality judicial time, if the respondent No. 1 is made to stand trial on this issue. 3. The next contention of the learned Senior Counsel for the respondent No. 1 is that, the petitioner in his election petition has incorrectly alleged that, the respondent No. 1 did not furnish accurate details of his criminal antecedents as mandated by the Election Rules. However, while raising such plea, the petitioner admitted to the fact that the pending criminal case against the respondent No. 1 has been quashed by this Court in exercise of power under section 482 of the Criminal Procedure Code, vide order dated 19-7-2018 passed in M.Cr.C. No. 5318/2018. Thus, he submits that in view of quashing of criminal case, there was no misrepresentation about the pendency of the criminal case. 4. Lastly, it has been contended by the learned Senior Counsel for the respondent No. 1 that the remaining pleadings of the election petition, so far as they relate to commission of corrupt practice by the respondent No. 1 during the course of election campaign, when the moral code of conduct was in effect, the same are not in conformity to section 83 of the Representation of Peoples Act, 1951 (in short ‘RP Act’), as the same lack material particulars about the date, the time and the place, where such corrupt practice happened. Consequently, he submits that the application filed under Order 7, Rule 11 of the Civil Procedure Code deserves to be allowed and the election petition be dismissed. 5. On the contrary, learned Senior Counsel for the petitioner sought rejection of the said application filed under Order 7, Rule 11 of the Civil Procedure Code and raised preliminary objection that IA No. 4358/2019 is shown to be notarised on 17-6-2019; whereas the same appears to be drawn/dated on 24-6-2019, which reflects that, the contents of the application were not perused. This anomaly, tantamount to contempt of Court as respondent No. 1 made false statement on oath so far as the contents of the affidavit is concocted. 6. Further learned Senior Counsel for the petitioner submits that plea of deficient form No. 26 is required to be adjudicated upon and the same has not attained finality as attempted to be presented by the learned Senior Counsel for the respondent No. 1. He also submits that the decision of the Returning Officer, which is sought to be relied upon by the respondent No. 1 was subject matter of challenge before this Court in W. P. No. 26998/2018. However, the said writ petition resulted into dismissal with liberty to the petitioner to raise all the contentions in the election petition, if the need so arises. Thus, the contention of the learned Senior Counsel for the respondent No. 1 is deserves to be repelled. 7. With respect to the objection about the deficient pleadings, learned Senior Counsel for the petitioner submits that such objection has been raised without appreciating the election petition as a whole. While addressing the Court, learned Senior Counsel for the petitioner drew attention of this Court to the narrations made in the election petition to specify that all complete particulars are mentioned therein. On the basis of above, learned Senior Counsel for the petitioner prayed for rejection of IA No. 4358/2019 filed by the respondent No. 1 under Order 7, Rule 11 of the Civil Procedure Code. 8. No other point has been pressed during the course of hearing by the respective Senior Counsels for the parties. 9. Having perused the record and respective contentions canvassed by learned Senior Counsel for the parties, this Court is of the considered opinion that IA No. 4358/2019 filed under Order 7, Rule 11 of the Civil Procedure Code deserves to be dismissed. 10. 9. Having perused the record and respective contentions canvassed by learned Senior Counsel for the parties, this Court is of the considered opinion that IA No. 4358/2019 filed under Order 7, Rule 11 of the Civil Procedure Code deserves to be dismissed. 10. The primary submission of the respondent No. 1 that no further enquiry into the allegation of non disclosure of material information in the form No. 26 is necessary due to the exhaustive enquiry report of the Returning Officer, has no merit because the findings of the enquiry report can be subjected to challenge in the instant election petition and the veracity of the said enquiry report can be looked into for believing or disbelieving the findings recorded therein. The exercise can only be carried out after recording of evidence in the instant case, further, the consequences of such exercise will also be determined at the stage of final hearing. It is worthy of observation that this Court while deciding an interlocutory application at the preliminary stage cannot venture into presumption about correctness of the enquiry report. In this context, reference to the decision of this Court vide order dated 22-11-2018 passed in W. P. No. 26998/2018 (Indore Bench) will fortify the observations made herein, as a liberty to raise all contentions in the election petition was extended by this Court to the petitioner. 11. The second contention of the respondent No. 1, that the petitioner has made wrong allegation regarding the existence of criminal antecedents of the respondent No. 1 in the election petition because the criminal proceedings pending against the respondent No. 1 were quashed by this Court in exercise of power under section 482 of the Criminal Procedure Code, vide order dated 19-7-2018 passed in M.Cr.C. No. 5318/2018. Therefore, he submits that the election petition deserves to be rejected. In this regard, suffice it to be observed that the correctness of the pleading or the purport of a decision passed by this Court can never be subject matter of consideration while deciding an application filed under Order 7, Rule 11 of the Civil Procedure Code. Therefore, at this juncture, this contention being beyond the scope of consideration is deferred for consideration at the time of final hearing of the instant petition. 12. Therefore, at this juncture, this contention being beyond the scope of consideration is deferred for consideration at the time of final hearing of the instant petition. 12. Learned Senior Counsel for the respondent No. 1 placed reliance in the judgments of Hon’ble Apex Court in the case of Azhar Hussain vs. Raji Gandhi, AIR 1986 SC 1253 , Ram Sukh vs. Dinesh Aggrawaal, (2009) 10 SCC 541 , F. A. Sapna vs. Singora, AIR 1991 SCC 1557, L. S. Shivramagowda vs. T. M. Chandrashekhar, AIR 1999 SC 252 , Mangani Lal Mandal vs. Bishnu Deo Bhandari, AIR 2012 SC 1094 , Razik Ram vs. J. S. Chouhan, AIR 1975 SC 667 , Umed Singh vs. Raj Singh, AIR 1975 SC 43 , Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 , Abdul Hussain Mir vs. Samsul Huda, AIR 1975 SC 1612 , K. V. Narayana Rao vs. V. P. Puroshottam Rao, AIR 1993 SC 1698 , Jeet Mohinder Singh vs. Harminder Singh Jassi, AIR 2000 SC 256 , Mohan Rawale vs. Damodar Tatyaba Alias Dadasaheb and others, (1994) 2 SCC 392 , where in the Hon’ble Apex Court has held that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to corrupt practice is not an election petition at all. It is also held by the Apex Court that it is now well settled that in election petitions pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it is liable to be rejected in limine. It is further held by the Hon’ble Supreme Court that our election law being statutory in character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character it is essential that it must conform to the requirements of our election law. But at the same time purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation. Being statutory in character it is essential that it must conform to the requirements of our election law. But at the same time purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation. If the returned candidate is shown to have secured his success at the election by corrupt means, he must suffer for his misdeeds. 13. In the context of the aforesaid legal position, I have carefully examined the pleadings in the Election Petition with respect to the inadequacy of pleading regarding corrupt practices by the respondent No. 1 during the course of election campaign and non-compliance of sections 83 and 86 of the RP Act. I have no hesitation in observing that the petitioner has carefully pleaded the particular instances of commission of corrupt practices by respondent No. 1 with date, time and place and at whose instance such corrupt practices have been committed, which in my opinion is substantial compliance of the section 83 of the RP Act. This Court cannot set the parameters of standard of pleading so high to mandate that every pleading be so it partakes that it provides that character of proof/evidence, even before the stage of evidence arrives. Such interpretation of section 83 of the RP Act shall be inaccurate. Consequently, I find that pleading regarding corrupt practices are in consonance of section 83 of the RP Act. 14. Before parting, the preliminary objection raised by the petitioner is to be dealt with, according to the petitioner, IA No. 4358/2019 is shown to be notarised on 17-6-2019; whereas the same appears to be drawn or draft on 24-6-2019, which reflects that contents of the application were not perused. He submits that this amounts to wrong statement of facts. In this regard, I am of the view that at firstly the application filed under Order 7, Rule 11 of Civil Procedure Code is not narrating any new facts and is actually drawing an inferences from the factual narrations in the election petition. Therefore, the anomaly pointed out by the petitioner cannot be treated as wrong statement of facts and I hold that the preliminary objection has no merits. 15. Upon commutative consideration IA No. 4358/2019 sans merit and is hereby dismissed with cost of Rs. 25,000/-. Therefore, the anomaly pointed out by the petitioner cannot be treated as wrong statement of facts and I hold that the preliminary objection has no merits. 15. Upon commutative consideration IA No. 4358/2019 sans merit and is hereby dismissed with cost of Rs. 25,000/-. The respondent No. 1 is directed to pay the same in head of Indian Army Relief Fund within a period of seven working days from today. 16. Learned counsel for the respondent No. 1 is directed to file the reply of election petition within two weeks, failing which application filed by the petitioner under Order 8, Rule 10 of the Civil Procedure Code will be considered and suitable order will be passed. 17. List the petition after two weeks.