Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5987-5988 OF 2012

C.P. John …Appellant

VERSUS

Babu M. Palissery & Ors. …

Respondents

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1.These two appeals are directed against a common judgment of

the High Court of Kerala at Ernakulum dated 02.12.2011 passed in

Election Petition No.1 of 2011 and I.A. No. 3 of 2011. By the

impugned judgment, the High Court, while allowing I.A. No. 3 of

2011 simultaneously dismissed Election Petition No.1 of 2011 filed

by the Appellant challenging the successful election of the First

Respondent to 062 Kunnamkulam Constituency in the general

election held on 13.04.2011, as a candidate of Communist Party of

India (Marxist) (hereinafter called “CPI (M)”), which is a constituent

of the Left Democratic Front (hereinafter called “LDF”). Such a

decision of the Election Petition was at the threshold under Sections

Civil Appeal Nos.5987-5988 of 2012 1 of 46

Page 2 83(1) and 86 of the Representation of the People Act, 1951

(hereinafter called “the Act”) read with Rule 11 of Order 7 of Code of

Civil Procedure, 1908.

2.The brief facts which are required to be stated are that the

Appellant was a candidate of the Communist Marxist Party

(hereinafter called “CMP”), which was a constituent of United

Democratic Front (hereinafter called “UDF”). The Second

Respondent was also a candidate in the said election along with

Respondent Nos.3 to 5. The First Respondent secured 58,244 votes

whereas the Appellant secured 57,763 votes. The Second

Respondent, who was an independent candidate, secured 860

votes. According to the Appellant, the Second Respondent whose

name is identical to that of the Appellant was maliciously set up by

the First Respondent to contest the election and in that process

indulged in various corrupt practices, namely, inducing the Second

Respondent by offering bribe, issued a pamphlet which was marked

as Annexure IV in the High Court in the name of the Second

Respondent deceptively which attracted Section 123(1)(A) and (4)

of the Act and consequently his election was liable to be set aside.

One other allegation of the Appellant raised in the Election Petition

was that the First Respondent was convicted in two criminal cases,

Civil Appeal Nos.5987-5988 of 2012 2 of 46

Page 3 namely, Sessions Case No.4 of 1975 (Crime No.136/1974 of

Pattambi Police Station) for offences under Sections 143, 148, 323,

324 and 302 read with 149, IPC for murdering one Syed Ali, an S.F.I.

activist and that the First Respondent was the second accused in

Crime No.463/1994 of Kunnamkulam Police Station where again he

was convicted by the Judicial First Class Magistrate, Kunnamkulam

in CC No.167/1995 along with other accused and was sentenced to

undergo two years rigorous imprisonment apart from a fine of

Rs.2000/- for the offences under Sections 143, 147, 148, 151, 332,

353 and 427 and 149, IPC and Section 3(2)(r) of the Prevention of

Destruction to Public Properties Act. It is the contention of the

Appellant in the Election Petition that the First Respondent

concealed the above convictions in his nomination which was a

deliberate suppression and in violation of Section 33A(1) of the Act.

It is based on the above three substantive grounds, the Appellant

challenged the successful election of the First Respondent in

Election Petition No.1 of 2011.

3.As far as the allegations against the First Respondent were

concerned, the allegation relating to the issue of bribery falling

under Section 123(1)(A) was levelled in paragraphs 4, 5, 6 and 9 of

the Election Petition. The allegation relating to the issuance of

Civil Appeal Nos.5987-5988 of 2012 3 of 46

Page 4 pamphlets attracting Section 123(4) of the Act was made in

paragraphs 11, 12, 13, 14 and 15 of the Election Petition. The

allegation relating to the criminal conviction and its suppression was

raised in paragraph 7 of the Election Petition.

4.The various above allegations were refuted on behalf of the

First Respondent in the written statement filed as against the

Election Petition. The First Respondent filed I.A.No.3 of 2011

contending that the Election Petition was liable to be rejected on the

ground that it was not filed in accordance with Section 83 as well as

Section 86 of the Act. The contentions raised in the I.A. were to the

effect that as regards the issue of bribery, though the same was

referred to in paragraphs 4, 5, 6 and 9 of the Election Petition, in the

affidavit, which was mandatory as per the proviso to Section 83(1)

of the Act, the Appellant failed to support the said allegations with

exception to what was stated in paragraph 9 of the Election Petition.

It was contended in the I.A. that while the allegations relating to the

offer of bribe to the Second Respondent by way of a gift of

Rs.50,000 and a promise to pay Rs.1,00,000/- after the elections

were raised in paragraphs 4, 5, 6 and 9, the affidavit did not support

the allegations in paragraphs 4, 5 and 6 of the Election Petition and

the affidavit only mentioned paragraph 9. It was, therefore,

Civil Appeal Nos.5987-5988 of 2012 4 of 46

Page 5 contended that it was not in compliance with the proviso to Section

83(1) and consequently, the Election petition was liable to be

rejected on the ground of want of cause of action.

5.As far as the allegation of corrupt practice falling under Section

123(4) of the Act was concerned, the First Respondent by referring

to Annexure IV took the stand that the pleadings in paragraphs 11,

12, 13 and 14, which pertained to Annexure IV-pamphlet in the

name of the Second Respondent contended that there was no

pleading as to which part of it was false and incorrect and how

based on Annexure IV alone it was stated that a false statement in

relation to the personal character or conduct of any candidate or in

relation to the candidature or withdrawal of any candidate with

reasonable calculation would prejudice the prospect of that

candidate’s election. It was, therefore, contended that the Appellant

failed to plead the required facts and material particulars to support

the ground of corrupt practice stipulated under Section 123(4) of the

Act.

6.With regard to the allegations based on criminal convictions, it

was contended that of the two criminal cases which were referred to

by the Appellant in the Election Petition, in one case the First

Respondent was acquitted by the Sessions Court in Criminal Appeal

Civil Appeal Nos.5987-5988 of 2012 5 of 46

Page 6 No.248/2000 and that in CC No.167 of 1995, the sentence awarded

was less than a year and, therefore, there was no violation of

Section 33A of the Act. The First Respondent, therefore, prayed for

the dismissal of the Election Petition as the same was not in

conformity with Section 83 of the Act.

7.On behalf of the Appellant a counter affidavit was filed to I.A.

No.3 of 2011. In the counter affidavit a categoric stand was taken on

behalf of the Appellant that the required facts and material

particulars as required under Section 83 have been fully pleaded

with supporting Affidavit and, therefore, it was in compliance of the

Act and the Election Petition cannot be dismissed in limine. In other

words, it was contended that there was full compliance of both the

substantive parts of Section 83 as regards the furnishing of the facts

as required under Section 83 as well as material particulars with

supporting affidavit as required under the proviso to Section 83(1)

of the Act and, therefore, the prayer of the First Respondent as

made in I.A. No.3 of 2011 was liable to be rejected.

8.The High Court having examined the rival contentions of the

parties, reached a conclusion that in support of the Election Petition,

the averments contained in paragraphs 4, 5 and 6 of Election

Petition were not specifically affirmed and that the affidavit only

Civil Appeal Nos.5987-5988 of 2012 6 of 46

Page 7 referred to paragraph 9 of the Election Petition. The High Court

further held that since the averments contained in paragraph 9 of

the Election Petition only referred to personal information of the

Appellant, which lacked in very many material particulars, there was

total lack of pleadings as required under Section 83 of the Act and

consequently, the said allegation did not give scope for any cause of

action to support the Election Petition.

9.For the allegation based on Annexure IV, here again the High

Court held that the statement contained in the said Annexure did

not make out a cause of action as against the First Respondent in

order to attract the allegation of corrupt practice as stipulated under

Section 123(4) of the Act and, therefore, on that ground as well, the

Election Petition could not be proceeded with.

10.As far as the allegation based on the criminal cases was

concerned, the High Court has found that the conviction in Sessions

Case No.4 of 1975 was set aside in Criminal Appeal No.248 of 2000,

which was also admitted by the Appellant and the conviction in CC

No.167 of 1995, the certified copy of which was placed before the

Court, disclosed that the sentence awarded was less than a year

and consequently, there was no violation of Section 33A of the Act.

Civil Appeal Nos.5987-5988 of 2012 7 of 46

Page 8 11.Based on the above findings, the High Court held that the I.A.

filed by the First Respondent deserved to be allowed and,

consequently, for want of cause of action the Election Petition itself

was dismissed.

12.We heard Mr. Romy Chacko, learned counsel for the Appellant

and Mr. Pallav Shishodia, learned Senior Counsel for the First

Respondent. Mr. Romy Chacko learned counsel for the Appellant in

his submissions contended that the Appellant stood in the election

for Kunnamkulam Constituency in 2011 as a candidate of CMP,

under the banner of UDF. He pointed out that Appellant lost the

election with a thin margin of 408 votes and that the Second

Respondent who had the same name as that of the Appellant

secured 860 votes. According to the Appellant, but for the

candidature of the Second Respondent, there was every scope for

the Appellant to win the election. It was the contention of the

Appellant that the First Respondent, with a view to mislead the

voters, indulged in the corrupt practices of bribery, as well as,

issuance of pamphlet with misleading and distorted version about

the candidature which was covered by Sections 123(1)(a) and

123(4) of the Act and that the Appellant otherwise had a very good

chance of success in the election.

Civil Appeal Nos.5987-5988 of 2012 8 of 46

Page 9 13.The learned counsel contended that the Election Petition

contained the required averments both relevant facts and material

particulars and was also supported by the affidavit filed in

accordance with the proviso to Section 83(1) and Rule 94A of the

Conduct of Election Rules, 1961 (hereinafter called “the Rules”) and,

in any event, if in the opinion of the High Court there was anything

lacking in the affidavit or the Election Petition filed by the Appellant,

the High Court should have given an opportunity to carry out

necessary amendment to the Election Petition and also to file

additional affidavit in support of the Election Petition. The learned

counsel contended that the outright rejection by the High Court of

the Appellant’s right to file necessary amended Election Petition and

affidavit deprived the valuable rights of the Appellant under the

provisions of the Act.

14.In support of his submissions, the learned counsel relied upon

the decisions in Balwan Singh vs. Lakshmi Narain and others

reported in AIR 1960 SC 770 , Umesh Challiyill vs. K.P.

Rajendran reported in (2008) 11 SCC 740, G.M. Siddeshwar vs.

Prasanna Kumar reported in (2013) 4 SCC 776, Raj Narain vs.

Smt. Indira Nehru Gandhi and another reported in (1972) 3

SCC 850, G. Mallikarjunappa and another vs. Shamanur

Civil Appeal Nos.5987-5988 of 2012 9 of 46

Page 10 Shivashankarappa and others reported in (2001) 4 SCC 428 ,

Sardar Harcharan Singh Brar vs. Sukh Darshan Singh and

others reported in (2004) 11 SCC 196 , Harkirat Singh vs.

Amrinder Singh reported in (2005) 13 SCC 511 . The learned

counsel in his submissions, relating to improper resumption of

nomination papers which according to Appellant was in violation of

Section 33A of the Act, relied upon the decisions in Shaligram

Shrivastava vs. Naresh Singh Patel reported in (2003) 2 SCC

176, Resurgence India v. Election Commission of India and

another reported in AIR 2014 SC 344 and People’s Union for

Civil Liberties (PUCL) and another vs. Union of India and

another reported in (2003) 4 SCC 399.

15.As against the above submissions, Mr. Pallav Shishodia,

learned Senior Counsel appearing for the First Respondent

submitted that there was no violation of Section 33A of the Act in

the filing of the nomination by the First Respondent. The learned

Senior Counsel pointed out that to support the said submission, the

Appellant referred to two criminal cases in which the First

Respondent was involved and that in one criminal case the

Appellant was acquitted by the Appellate Court in Criminal Appeal

No.248 of 2000 and that in the other criminal case in CC No.167 of

Civil Appeal Nos.5987-5988 of 2012 10 of 46

Page 11 1995, the sentence imposed was less than a year and, therefore,

there was no violation of Section 33A.

16.As regards the other deformity in the Election Petition, the

learned Senior Counsel contended that the First Respondent in his

written statement to the Election Petition pointed out the serious

defects in the Election Petition, but yet the Appellant did not take

any steps to correct the errors. The learned Senior Counsel further

contended that when the First Respondent filed I.A. No.3 of 2011

raising a preliminary objection as to lack of cause of action in the

said I.A., the Appellant filed a counter affidavit maintaining his stand

that his Election Petition fully complied with the statutory

requirement of the Act and, therefore, nothing more was required to

be done. The learned Senior Counsel, therefore, contended that

since sufficient opportunities were made available to the Appellant

and the same having not been availed by him, the High Court

cannot be expected to show any extraordinary indulgence to the

Appellant for filing any further affidavit to fill up the serious lacunae

in his pleadings. The learned Senior Counsel, therefore, contended

that none of the decisions would support the said stand of the

Appellant and, therefore, the impugned judgment does not call for

any interference. It was also contended on behalf of the First

Civil Appeal Nos.5987-5988 of 2012 11 of 46

Page 12 Respondent that such defects which have been noted by the High

Court while allowing I.A. No.3 of 2011 and dismissing the Election

Petition were not merely cosmetic in nature in order to extend any

further opportunity to the Appellant.

17.Having heard learned counsel for the respective parties and in

order to appreciate the legal issues raised in these appeals which

have been elaborately dealt with by the High Court in its judgment,

the relevant sections to be noted are Sections 83, 86, 123(1)(A) and

123(4) of the Act as well as Rule 94A and Form 25 of the Rules. The

said provisions are as under:

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.]

Civil Appeal Nos.5987-5988 of 2012 12 of 46

Page 13 (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 sub-section shall be

deemed

to be an order made under clause (a) of section 98.

(2) As soon as may be after an election petition has

been presented to the High Court, it shall be referred

to the Judge or one of the Judges who has or have

been assigned by the Chief Justice for the trial of

election petitions under sub-section (2) of section 80A.

(3) Where more election petitions than one are

presented to the High Court in respect of the same

election, all of them shall be referred for trial to the

same Judge who may, in his discretion, try them

separately or in one or more groups.

(4) Any candidate not already a respondent shall,

upon application made by him to the High Court within

fourteen days from the date of commencement of the

trial and subject to any order as to security for costs

which may be made by the High Court, be entitled to

be joined as a respondent.

Explanation.—For the purposes of this sub-section and

of section 97, the trial of a petition shall be deemed to

commence on the date fixed for the respondents to

appear before the High Court and answer the claim or

claims made in the petition.

(5) The High Court may, upon such terms as to costs

and otherwise as it may deem fit, allow the particulars

of any corrupt practice alleged in the petition to be

amended or amplified in such manner as may in its

opinion be necessary for ensuring a fair and effective

trial of the petition, but shall not allow any

Civil Appeal Nos.5987-5988 of 2012 13 of 46

Page 14 amendment of the petition which will have the effect

of introducing particulars of a corrupt practice not

previously alleged in the petition.

(6) The trial of an election petition shall, so far as is

practicable consistently with the interests of justice in

respect of the trial, be continued from day to day until

its conclusion, unless the High Court finds the

adjournment of the trial beyond the following day to

be necessary for reasons to be recorded.

(7) Every election petition shall be tried as

expeditiously as possible and endeavour shall be

made to conclude the trial within six months from the

date on which the election petition is presented to the

High Court for trial.

123(1)(A). Corrupt practices .—The following shall

be deemed to be corrupt practices for the purposes of

this Act:—

(1) "Bribery", that is to say—

(A) any gift, offer or promise by a candidate or his

agent or by any other person with the consent of a

candidate or his election agent of any gratification, to

any person whomsoever, with the object, directly or

indirectly of inducing—

(a) a person to stand or not to stand as, or to withdraw

or not to withdraw from being a candidate at an

election, or

(b) an elector to vote or refrain from voting at an

election, or as a reward to—

(i) a person for having so stood or not stood, or for

having withdrawn or not having withdrawn his

candidature; or

(ii) an elector for having voted or refrained from

voting;

123(4). The publication by a candidate or his agent or

by any other person with the consent of a candidate or

his election agent, of any statement of fact which is

Civil Appeal Nos.5987-5988 of 2012 14 of 46

Page 15 false, and which he either believes to be false or does

not believe to be true, in relation to the personal

character or conduct of any candidate, or in relation to

the candidature, or withdrawal of any candidate, being

a statement reasonably calculated to prejudice the

prospects of that candidate's election.

Rule 94A. Form of affidavit to be filed with

election petition.- The affidavit referred to in the

proviso to sub-section (1) of section 83 shall be sworn

before a magistrate of the first class or a notary or a

commissioner of oaths and shall be in Form 25.

FORM 25

I, …………….., the petitioner in the accompanying

election petition calling in question the election of

Shri/Shrimati…………… (respondent No……………. in

the said petition) make solemn affirmation/oath and

say-

(a) that the statements made in

paragraphs……….. of the accompanying election

petition about the commission of the corrupt practice

of …………… and the particulars of such corrupt

practice mentioned in paragraphs ……………. of the

same petition and in paragraphs …………… of the

Schedule annexed thereto are true to my knowledge;

(b) that the statements made in paragraphs ……..

of the said petition about the commission of the

corrupt practice of ……….. and the particulars of such

corrupt practice given in paragraphs ……….of the said

petition and in paragraphs ……………. of the Schedule

annexed thereto are true to my information;

(c)

(d)

etc.

Signature of

deponent

Solemnly affirmed/sworn by Shri/Shrimati…………… at

………….this ………. Day of …………. 20……….

Civil Appeal Nos.5987-5988 of 2012 15 of 46

Page 16 Before me, Magistrate of the first class/

Notary/Commissioner of Oaths.”

18.When we read Section 83, the substantive part of Section

83(1) consists of three important elements, namely, that an Election

Petition should contain a concise statement of material facts which

an election petitioner relies upon. The emphasis is on the material

facts which should be stated in a concise form. Under Section 83(1)

(b) it is stipulated that the Election Petition should set forth full

particulars of any corrupt practice which is alleged by the petitioner.

A reading of the said sub-clause 83(1)(b) is to the effect that such

particulars should be complete in every respect and when it relates

to an allegation of corrupt practice it should specifically state the

names of the parties who alleged to have committed such corrupt

practice and also the date and place where such corrupt practice

was committed. In other words, the particulars relating to corrupt

practice should not be lacking in any respect. One who reads the

averments relating to corrupt practice should be in a position to

gather every minute detail about the alleged corrupt practice such

as the names of the persons, the nature of the alleged corrupt

practice indulged in by such person or persons, the place, the date,

Civil Appeal Nos.5987-5988 of 2012 16 of 46

Page 17 the time and every other detail relating to the alleged corrupt

practice.

19.To put it differently, when the Election Petition is taken up for

consideration, the Court which deals with such an Election Petition,

should be in a position to know in exactitude as to what is the

corrupt practice alleged as against the parties without giving any

room for doubt as to the nature of such allegation, the parties

involved, the date, time and the place etc. so that the party against

whom such allegation is made is in a position to explain or defend

any such allegation without giving scope for any speculation. In that

context, both Sections 83(1)(a) and (1)(b) and the proviso play a

very key role since the election petitioner cannot simply raise an

allegation of corrupt practice and get away with it, inasmuch as the

affidavit to be filed in respect of corrupt practice should specifically

support the facts pleaded, as well as, the material particulars

furnished. Rule 94A of the Rules in turn stipulates that the affidavit

should be in the prescribed Form 25 and should be sworn before the

Magistrate of 1

st

class or a notary or the Commissioner of Oaths and

makes it mandatory for the election petitioner to comply with the

said requirement statutorily. The format of the affidavit as

prescribed in Form No.25 elaborates as to the requirement of

Civil Appeal Nos.5987-5988 of 2012 17 of 46

Page 18 specifically mentioning the paragraphs where the statement of facts

are contained and also the other paragraphs where material

particulars relating to such corrupt practices are alleged. It also

mentions as to which of those statement of facts and material

particulars are based on the personal knowledge of the election

petitioner and such of those statements and particulars that are

made based on the information gained by the election petitioner.

20.Therefore, a conspectus reading of Section 83(1)(a) read along

with its proviso of the Act, as well as, Rule 94A and Form No. 25 of

the Rules make the legal position clear that in the filing of an

Election Petition challenging the successful election of a candidate,

the election petitioner should take extra care and leave no room for

doubt while making any allegation of corrupt practice indulged in by

the successful candidate and that he cannot be later on heard to

state that the allegations were generally spoken to or as discussed

sporadically and on that basis the petition came to be filed. In other

words, unless and until the election petitioner comes forward with a

definite plea of his case that the allegation of corrupt practice is

supported by legally acceptable material evidence without an iota of

doubt as to such allegation, the Election Petition cannot be

entertained and will have to be rejected at the threshold. It will be

Civil Appeal Nos.5987-5988 of 2012 18 of 46

Page 19 relevant to state that since the successful candidate in an election

has got the support of the majority of the voters who cast their

votes in his favour, the success gained by a candidate in a public

election cannot be allowed to be called in question by any

unsuccessful candidate by making frivolous or baseless allegations

and thereby unnecessarily drag the successful candidate to the

Court proceedings and make waste of his precious time, which

would have otherwise been devoted for the welfare of the members

of his constituency. Therefore, while deciding the issue raised, we

wish to keep in mind the above lofty ideas, with which the

provisions contained in Section 83(1) read along with Section 86

came to be incorporated while deciding this appeal.

21.Keeping the above statutory prescription in mind, when we

examine the case on hand, the allegation of corrupt practice raised

by the Appellant in the Election Petition was two fold falling under

Sections 123(1)(A) and 123(4) of the Act. Section 123(1)(A) defines

the act of bribery, namely, any gift, offer or promise by a candidate

or his agent or any other person with the consent of the candidate

or with the consent of his election agent of any gratification to any

person whomsoever with the object directly or indirectly for

inducing a person to stand or not to stand as a candidate or to

Civil Appeal Nos.5987-5988 of 2012 19 of 46

Page 20 withdraw or not to withdraw from being a candidate at an election.

In the case on hand, the allegation of bribery is made in paragraphs

4, 5, 6 and 9 of the election petition. In paragraph 4, it is alleged

that the First Respondent went to the house of the Second

Respondent whose father was an active member of CPI (M) and

induced him by a gift of Rs.50,000 in cash and promised to give

Rs.1,00,000/- for developing his printing press, if he agreed to file

his nomination to contest from 062 Kunnamkulam Constituency and

further promised to bear all the expenses for the election and by

such inducement he was successful in making the Second

Respondent submit his nomination in the said constituency styling

himself as an independent candidate. It also contained the

allegation that the persons who signed the nomination of the

Second Respondent as proposers were workers/members of CPI (M).

The handwritings found in Form No.18 appointing the counting

agents of Respondent Nos. 1 and 2 were of the same person. On the

above broad averments, it was contended that the same would fall

under Section 123(1)(A) of the Act. In paragraph 9, it was reiterated

that the Second Respondent filed his nomination as an independent

candidate at the instance of the First Respondent by an offer of

gratification for a gift of Rs.50,000 with a promise to pay

Civil Appeal Nos.5987-5988 of 2012 20 of 46

Page 21 Rs.1,00,000/-after the elections and that the said inducement was

made by the First Respondent with the ulterior motive of creating a

confusion among the voters and divide the votes, inasmuch as, the

names of the Appellant as well as that of Second Respondent are

identical.

22.With that we come to a crucial question as to how it was

contended on behalf of the First Respondent that the said

averments were not in conformity with the provisions of Section 83

of the Act or that in the affidavit which was filed in support of the

Election Petition, there was no reference to paragraphs 4, 5 and 6

and that the affidavit only mentioned about paragraph 9 alone. It

was contended that the Election Petition was not filed in compliance

with Section 83 read with Rule 94A and Form 25. The sum and

substance of the stand of the First Respondent in the written

statement as regards the allegation of bribery was that in paragraph

4 there was no specific pleading as to who paid the bribe, the date,

time and place at which the alleged bribe was paid as mandated

under Section 83(1)(b) of the Act and that the said pleading of

corrupt practice was not supported by the affidavit and, therefore,

the entire pleadings in paragraph 4 has to be eschewed from

consideration. As far as the averments contained in paragraph 9

Civil Appeal Nos.5987-5988 of 2012 21 of 46

Page 22 were concerned, according to the First Respondent, the entire

averments in paragraph 9 will not satisfy the statutory requirement

of Section 83(1)(b) and further the said averments relating to

corrupt practice were based on information and not based on

personal knowledge.

23.It was further contended that the allegation of bribery having

been pleaded in paragraphs 4, 6, 9 and 10 of the Election Petition,

those averments contained in paragraphs 4, 6 and 10 of the Election

Petition were not supported by the affidavit as required under the

proviso to Section 83(1) of the Act. In the affidavit filed in support of

I.A.No.3 of 2011, the First Respondent while reiterating the above

contentions, stated that after striking off and eschewing paragraphs

4, 7, 9 to 15 and grounds (a), (c), (d) and (e) of the Election Petition,

there were left no material facts giving any cause of action for the

Election Petition subsist. It was, therefore, prayed that the Election

Petition should be dismissed at the threshold.

24.The Appellant in his counter affidavit to I.A. No.3 of 2011, did

not state anything as regards the filing of proper affidavit relating to

paragraphs 4, 6 and 10 which related to corrupt practice. On the

other hand, it was contended that the Election Petition contained full

material facts and particulars of corrupt practice including the date,

Civil Appeal Nos.5987-5988 of 2012 22 of 46

Page 23 place and name of the parties. It is relevant to note that till the

present impugned judgment came to be passed by the High Court,

there was no prayer made either in writing or orally for permitting

the Appellant to file necessary amendment to the Election Petition

or file any additional affidavit curing the defects relating to failure to

support the averments contained in paragraphs 4, 6 and 10 of the

Election Petition by way of fresh affidavit or for supplementing the

averments already made with additional particulars or details

relating to the allegation of corrupt practices.

25.The High Court while dealing with the above issues, after

referring to paragraphs 4 as well as 9 of the Election Petition, held

as under:

“It is a complex sentence. By reading it, one cannot be

say that the allegation is that first respondent

personally approached the second respondent or paid

the cash or promised Rs.1,00,000/- for developing his

printing press. In such circumstances, there is force in

the submission of the learned senior counsel

appearing for the first respondent that the allegations

are too vague to constitute an allegation of corrupt

practice, to set aside the election of the returned

candidate under section 100(1)(b) of the Act. Added to

this the affidavit shows that the allegations in

paragraph 4 was not supported by the affidavit. The

question is if it does not constitute a complete cause

of action, whether the election petition is liable to be

dismissed in limine at the threshold or is it is for the

court to post the case to enable the election petitioner

to file another affidavit or an application to amend the

Civil Appeal Nos.5987-5988 of 2012 23 of 46

Page 24 election petition. As rightly pointed out by the learned

senior counsel in spite of the written statement filed

by the first respondent contending that the election

petition does not disclose a complete cause of action

and the affidavit filed is not the affidavit contemplated

under the proviso to Section 83(1) and under section

94A of the Conduct of Elections Rules, the election

petitioner did not take steps to get the election

petition amended or to file another affidavit in

compliance with proviso to Section 83(1)(a) and Rule

94A. On the other hand, the counter affidavit filed by

the election petitioner to I.A. 3/2011 shows that it is

the definite case of the election petitioner that there is

no defect in the election petition. He has no case that

an opportunity is to be granted to cure the defects.

Paragraph 8 of the said counter affidavit reads:-

“8.It is submitted that the averments in the

Election Petition are fully in compliance with the

mandatory requirements of the Act and Rules,

especially under Sections 83 and 87 of the

Representation of the People Act and Rule 94 of

the Conduct of Election Rules, 1968. Specific

averments are set out in the election petition,

pointing out the specific acts as well as the

name/identity of the persons who are parties to

the transactions which forms the basis of the

election petition.”

In paragraph 9 of the affidavit he has further asserted

that the affidavit is in accordance with the

requirement of Rule 94. In such circumstances

question is whether an opportunity is to be granted to

cure the defect.”

(Underlining is ours)

26.Thereafter, the High Court after referring to the various

decisions of this Court, relating to the interpretation of Section 83(1)

(a) of the Act, ultimately held as under:

Civil Appeal Nos.5987-5988 of 2012 24 of 46

Page 25 “It is clear that the affidavit filed along with the

election petition in Form 25 is in accordance with the

requirement provided under Rule 94A and as

mandated under the proviso to section 83(1) of the

Act. The affidavit filed does not support the allegations

made in paragraph 4 of the election petition which

deals with the allegation of corrupt practice of bribery,

based on which election is sought to be declared void

under section 100(1)(b) of the Act. Though learned

counsel argued that in that case it is the duty of the

court to grant an opportunity to cure the defect, I

cannot agree with the submission. As pointed out by

the Apex Court in V. Narayanaswamy’s case

(supra) when the first respondent pointed out that

the election petition does not contain the required

concise statement of material facts and the affidavit

filed under proviso to Section 83(1) does not satisfy

the legal requirement, the case of the petitioner is that

it satisfied all the requirements. He did not take any

steps to get the pleadings amended or to file an

affidavit in conformity with the proviso to section 83(1)

and Rule 94A of the Conduct of Election Rules. In such

circumstances it can only be found that it is not an

affidavit as required under the proviso to section 83(1)

and Rules 94A……..”

27.On the above issue, the contention of the Appellant was two

fold. In the first instance, Mr. Chacko, learned counsel contended

that even if there was some omission on the part of the Appellant in

filing the necessary affidavit, with particular reference to the

allegations in paragraphs 4, 6 and 10 of the Election Petition, the

High Court ought to have given an opportunity to cure the said

defects which were purely cosmetic. It was also contended that the

averments, contained in paragraph 9 which were duly supported by

Civil Appeal Nos.5987-5988 of 2012 25 of 46

Page 26 the affidavit were sufficient to prove the allegation of bribery

alleged against the First Respondent, which the Appellant would

have been able to sufficiently demonstrate and establish at the time

of hearing of the Election Petition. According to the learned counsel,

the Election Petition ought not to have, therefore, been dismissed by

the High Court in limine.

28.In support of the above contentions the learned counsel relied

upon the decision in Balwan Singh (supra) . The learned counsel

by relying upon the statement of law at page 774 contended that

the said decision being a Constitution Bench decision, the High

Court should have applied the said ruling and extended an

opportunity to the Appellant to file necessary affidavit in support of

the allegation contained in the Election Petition. To appreciate the

stand of the Appellant, we refer to the passage relied upon by the

learned counsel which is found in paragraph 8 of the said decision.

The said part of paragraph 8 can be usefully referred to which reads

as under:

“8.……..An election petition is not liable to be

dismissed in limine merely because full particulars of a

corrupt practice alleged in the petition, are not set out.

Where an objection is raised by the respondent that a

petition is defective because full particulars of an

alleged corrupt practice are not set out, the Tribunal is

Civil Appeal Nos.5987-5988 of 2012 26 of 46

Page 27 bound to decide whether the objection is well-founded.

If the Tribunal upholds the objection, it should give an

opportunity to the petitioner to apply for leave to

amend or amplify the particulars of the corrupt

practice alleged; and in the event of non-compliance

with that order the Tribunal may strike out the charges

which remain vague…………”

29.When we refer to the said passage of the Constitution Bench

decision, we have to bear in mind that in that case when we looked

into the facts which gave rise to the said judgment, we find that in

the Election Petition, the allegation of corrupt practice falling under

Section 123(5) was alleged to the effect that the successful

candidate indulged in gathering the voters by hiring bullock carts

and tractors to and from the polling station. When in the written

statement, it was pointed out that the said allegation lacked in

detailed particulars by way of Annexure D-1 to the main Election

Petition, the election petitioner furnished the details as to who

procured the bullock carts and tractors and who were all transported

from which village to which polling station and so on. At the instance

of the successful candidate, the Election Tribunal declined to accept

the said Annexure D-1 and deleted the relevant paragraph in the

Election Petition for want of detailed particulars. However, when the

election petitioner sought for a review, the Tribunal in review

accepted the Annexure D-1. This order in review was challenged

Civil Appeal Nos.5987-5988 of 2012 27 of 46

Page 28 before the High Court. The High Court also upheld the order in

review passed by the Tribunal, which was ultimately brought before

this Court by the successful candidate. It was in this context, it was

held that when an objection is raised by the Respondent in the

Election Petition pointing out the defects that full particulars of

alleged corrupt practice were not set out, the Election Tribunal,

while accepting the said statement should give an opportunity to

the election petitioner to apply for leave, to amend or amplify the

corrupt practice alleged.

30.In the case on hand, the said situation relating to want of

particulars and the failure to support the allegations made in the

Election Petition by necessary affidavit as required to be filed under

the proviso to Section 83(1) was brought to the notice of the

Appellant at the instance of the First Respondent in his written

statement. The written statement was filed by First Respondent on

24.09.2011. The I.A. No.3 of 2011 was filed on the same date. The

counter affidavit to the said I.A. was filed by the Appellant on

06.10.2011. The impugned order came to be passed on 02.12.2011.

It is significant to note that in the counter affidavit of the Appellant

to I.A. No.3 of 2011, the Appellant did not seek for any prayer to

amend or add any plea to the Election Petition or the affidavit filed

Civil Appeal Nos.5987-5988 of 2012 28 of 46

Page 29 in support of the Election Petition. On the other hand, in the counter

affidavit, the Appellant continued to maintain his stand that

whatever particulars required, have been sufficiently set out in the

petition and affidavit and it was not lacking in any statutory

requirement. Thus, the Appellant allowed the High Court to examine

the contention raised at the preliminary stage as to the

maintainability of the Election Petition for want of compliance of

statutory requirement as prescribed under Section 83(1) of the Act

read along with Rule 94A of the Rules and as prescribed in Form 25

of the relevant Election Rules. Therefore, when the Appellant was

not inclined to seek for any amendment to the Election Petition or to

the affidavit filed in support of the Election Petition, we fail to

understand as to how the Appellant can now raise any grievance to

the effect that the High Court ought to have granted an opportunity

to the Appellant to amend the pleadings. In any event, the ratio of

the decision set out in the Constitution Bench decision can have no

application to the case on hand, as it materially differed in very

many facts and the conduct of the party. We, therefore, do not find

any scope to apply the decision in Balwan Singh (supra) to the

case of the Appellant.

Civil Appeal Nos.5987-5988 of 2012 29 of 46

Page 30 31.Reliance was then placed upon the decision in Umesh

Challiyill (supra). In that case, a preliminary objection was raised

to the effect that the affidavit in Form 25 was not affirmed and as

such the affirmation was not duly certified and the verification of the

Election Petition was defective, etc. While dealing with the said

objection, the Election Tribunal summarily dismissed the Election

Petition at the stage when the Election Petition was taken up for

enquiry. While examining the correctness of the said decision of the

High Court, this Court has held as under in paragraphs 12 and 13:

“12. Both the defects which have been pointed out by

the learned Single Judge were too innocuous to have

resulted in dismissal of the election petition on the

basis of the preliminary objection. The courts have to

view whether the objections go to the root of the

matter or they are only cosmetic in nature. It is true

that the election petition has to be seriously

construed. But that apart the election petition should

not be summarily dismissed on such small breaches of

procedure. Section 83 itself says that the election

petition should contain material facts. Section 86 says

that the High Court shall dismiss the election petition

which does not comply with the provisions of Section

81 or Section 82 or Section 117. But not of defect of

the nature as pointed out by the respondent would

entail dismissal of the election petition. These were

the defects, even if the Court has construed them to

be of serious nature, at least notice should have been

issued to the party to rectify the same instead of

resorting to dismissal of the election petition at the

outset. (Emphasis added)

Civil Appeal Nos.5987-5988 of 2012 30 of 46

Page 31 13. Learned counsel for the respondent has tried to

justify and support the order of the learned Single

Judge and submitted that in fact these objections were

raised by the respondent in his counter-affidavit and

the appellant had sufficient opportunity to have cured

them and in that connection, learned counsel for the

respondent pointed out that the election petition was

presented on 22-6-2006 and the first date of hearing

was on 30-8-2006. The appellant should have cured

these defects but the same was not done. Therefore,

there was no option with the learned Single Judge but

to dismiss the election petition. We fail to appreciate

this argument of the learned counsel for the

respondent for the simple reason that how can the

appellant who bona fidely felt that his election petition

in all respects is complete will entail such a serious

consequence of dismissal of the election petition on

such minor omissions. In case the learned Single Judge

found that the election petition was not in the format

then after recording his finding, the learned Single

Judge should have given an opportunity to the

appellant to amend or cure certain defects pointed out

by the Court. It may be relevant to mention, these are

not the grounds mentioned in Section 86 of the Act for

dismissal of the election petition. But nonetheless

even if it is to entail serious consequence of dismissal

of the election petition for not being properly

constituted, then too at least the appellant should

have been given an opportunity to cure these defects

and put the election petition in proper format. But the

learned Single Judge instead of giving an opportunity

has taken the easy course to dismiss the election

petition which in our opinion, was not warranted.”

32.What has been stated in the above paragraphs is that where

the defects pointed out were too innocuous and cosmetic in nature,

the Election Tribunal should have given an opportunity to rectify

those defects instead of throwing out the Election Petition at the

Civil Appeal Nos.5987-5988 of 2012 31 of 46

Page 32 very threshold. There can be no two opinions about the proposition

of law so stated by this Court in the above referred to decisions. The

defects which were pointed out in those cases were that the

affidavit was not sworn in the prescribed format and in the

verification column, certain words were missing. It was in that

context that this Court held that when such innocuous mistakes in

the format of the affidavit were noted, in the interest of justice, the

proper course was that the Tribunal should have called upon the

election petitioner to rectify those minor cosmetic defects instead of

dismissing the Election Petition at the threshold.

33.In the case on hand, since the allegation of bribery falling

under Section 123(1)(A) was a serious allegation, if according to the

Appellant, for levelling the said allegation there were no details

furnished as to on which date and by whom the bribe amount was

promised to be paid to the Second Respondent then, when such

averments were not duly supported in the affidavit and when such

serious defects were pointed out in the written statement as well as

in the affidavit filed in support of I.A. No.3 of 2011, the Appellant

having taken a rigid stand that he wanted to go by whatever

averments contained in the Election Petition and affidavit filed in

support of the Election Petition, he cannot subsequently turn around

Civil Appeal Nos.5987-5988 of 2012 32 of 46

Page 33 and state that inspite of such a categoric stand taken by him, the

High Court should have gone out of the way and called upon him to

rectify the defects, which were very serious defects concerning

material particulars relating to corrupt practice, for which there was

no necessity for the High Court to show any such extraordinary

indulgence to the Appellant. We, therefore, do not find any scope to

apply the decision in Umesh Challiyill (supra) to support the

stand of the Appellant.

34.Mr. Chacko, learned counsel then relied upon the decision in

G.M. Siddeshwar (supra) . In the said decision, it was held that if

there is substantial compliance with the prescribed format of the

affidavit, an Election Petition cannot be thrown out on a hyper

technical ground particularly when there were some defects in the

format which were curable. Paragraphs 37 and 38 are relevant for

our consideration which are as under:

“37. A perusal of the affidavit furnished by Prasanna

Kumar ex facie indicates that it was not in absolute

compliance with the format affidavit. However, we

endorse the view of the High Court that on a perusal

of the affidavit, undoubtedly there was substantial

compliance with the prescribed format. It is correct

that the verification was also defective, but the defect

is curable and cannot be held fatal to the

maintainability of the election petition.

Civil Appeal Nos.5987-5988 of 2012 33 of 46

Page 34 38. Recently, in Ponnala Lakshmaiah v. Kommuri

Pratap Reddy the issue of a failure to file an affidavit in

accordance with the prescribed format came up for

consideration. This is what this Court had to say: (SCC

p. 802, para 28)

“28. … The format of the affidavit is at any rate

not a matter of substance. What is important and

at the heart of the requirement is whether the

election petitioner has made averments which

are testified by him on oath, no matter in a form

other than the one that is stipulated in the Rules.

The absence of an affidavit or an affidavit in a

form other than the one stipulated by the Rules

does not by itself cause any prejudice to the

successful candidate so long as the deficiency is

cured by the election petitioner by filing a proper

affidavit when directed to do so.”

We have no reason to take a different view. The

contention urged by Siddeshwar is rejected.”

35.A reading of the above paragraphs themselves show that if the

defect was one of format and not of substance, such defect should

also be allowed to be cured. In the case on hand, we have already

held that the defects pointed out in the Election Petition, as well as,

in the affidavit were not of mere format but of substance and,

therefore, we are unable to apply the ratio in G.M. Siddeshwar

(supra) to the case on hand.

36.In Raj Narain (supra) paragraph 23 can be usefully referred

to which reads as under:

Civil Appeal Nos.5987-5988 of 2012 34 of 46

Page 35 “23. Now coming to the appeal against the order on

the amendment application, the learned trial Judge

disallowed the amendments sought on the sole ground

that if those amendments are allowed, it will amount

to amending the statement of material facts and the

same is not permissible in view of Section 86(5). We

have already found that that conclusion of the learned

trial Judge is not correct. The amendment application

was moved even before the trial of the case

commenced. It is not shown how the amendments

sought in respect of paragraphs 2 and 5 of the petition

can prejudice the case of the respondent. They are

merely clarificatory in character. This Court ruled in

Shri Balwan Singh v. Shri Lakshmi Narain and others,

that an election petition was not liable to be dismissed

in limine because full particulars of corrupt practice

alleged were not set out.

It further observed that if an objection was taken and

the Tribunal was of the view that the full particulars

have not been set out, the petitioner had to be given

an opportunity to amend or amplify the particulars. It

was only in the event of non-compliance with the

order to supply the particulars that the charge which

remained vague could be struck out. In that case the

amendment was sought after the evidence was closed

in the case. This Court allowed the same. Courts are

ordinarily liberal in allowing amendment of pleadings

unless it results in prejudicing the case of the opposite

party. Any inconvenience caused by an amendment

can always be compensated by costs. We think that

the amendments asked for, should have been allowed

and we allow the same. The election petition will be

accordingly amended and the respondent will be

afforded an opportunity to file any additional written

statement, if she so desires.”

37.As the statements contained in the said paragraph disclose

that when some defects in the Election Petition were pointed out,

Civil Appeal Nos.5987-5988 of 2012 35 of 46

Page 36 the Election Petitioner in that case took steps for amending the

pleadings which were declined. In contrast to the above case, in the

case on hand, inspite of pointing out the defects, the Appellant did

not evince any interest to amend either the Election Petition or the

affidavit filed in support of the Election Petition. We, therefore, do

not find any scope to apply the decision in Raj Narain (supra) to

the facts of this case.

38.Reliance was placed upon the decision in G. Mallikarjunappa

(supra), paragraph 7, which reads as under:

“7. An election petition is liable to be dismissed in

limine under Section 86(1) of the Act if the election

petition does not comply with either the provisions of

“Section 81 or Section 82 or Section 117 of the RP

Act”. The requirement of filing an affidavit along with

an election petition, in the prescribed form, in support

of allegations of corrupt practice is contained in

Section 83(1) of the Act. Non-compliance with the

provisions of Section 83 of the Act, however, does not

attract the consequences envisaged by Section 86(1)

of the Act. Therefore, an election petition is not liable

to be dismissed in limine under Section 86 of the Act,

for alleged non-compliance with provisions of Section

83(1) or (2) of the Act or of its proviso. The defect in

the verification and the affidavit is a curable defect.

What other consequences, if any, may follow from an

allegedly “defective” affidavit, is required to be judged

at the trial of an election petition but Section 86(1) of

the Act in terms cannot be attracted to such a case.”

Civil Appeal Nos.5987-5988 of 2012 36 of 46

Page 37 39.There can be no two opinions that consequences envisaged by

Section 86(1) of the Act will have no application to the non-

compliance of Section 83(1) or (2) or its proviso. But the question

before us is when the mandatory requirement of the pleadings as

stipulated under Section 83(1) and its proviso was brought to the

notice of the Appellant, as well as, to the Court, and when a specific

application was filed for rejecting the Election Petition for want of

particulars and consequent lack of cause of action for maintaining

the Election Petition and the election petitioner, namely, the

Appellant herein chose not to cure the defects but insisted that his

Election Petition can be proceeded with keeping the material

defects on record, he cannot later on be heard to state that at any

later point of time he must be given an opportunity to set right the

defects. We are unable to appreciate such an extreme stand made

on behalf of the Appellant. Therefore, even while applying the above

proposition of law stated by this Court in paragraph 7, we do not

find any scope to interfere with the order impugned in these

appeals.

40.Reliance was then placed upon the decision in Sardar

Harcharan Singh Brar (supra) . After making reference to the

nature of defects in the affidavit, and dismissal of the Election

Civil Appeal Nos.5987-5988 of 2012 37 of 46

Page 38 Petition at the threshold, this Court has stated as under in

paragraph 14:

“14.……..Therefore, an election petition is not liable to

be dismissed in limine under Section 86 of the Act, for

alleged non-compliance with provisions of Section

83(1) or (2) of the Act or of its proviso. The defect in

the verification and the affidavit is a curable defect.

What other consequences, if any, may follow from an

allegedly “defective” affidavit, is required to be judged

at the trial of an election petition but Section 86(1) of

the Act in terms cannot be attracted to such a case.”

41.As has been stated therein the defect was only in the form and

not in substance. In fact, in the case on hand after pointing out the

substantial defects in the Election Petition as well as the affidavit

filed in support of the Election Petition, the First Respondent came

forward with a separate application, namely, I.A. No.3 of 2011 for

rejecting the Election Petition for want of cause of action. When the

said I.A. along with an Election Petition was taken up for hearing,

the Appellant ought to have realized his serious mistake in not filing

the petition as well as the affidavit in the proper manner and should

have taken adequate recourse in filing the amended petition and

affidavit. The Appellant having failed to take recourse to such a

corrective step cannot now be heard to state that the High Court

Civil Appeal Nos.5987-5988 of 2012 38 of 46

Page 39 went wrong in dismissing the Election Petition. We, therefore, do not

find any support from the said decision to the case on hand.

42.The last of the decision relied upon by the learned counsel for

the Appellant was Harkirat Singh (supra). In paragraphs 51 and

52, the necessity for pleading material facts and particulars as

required under Section 83 of the Act have been succinctly stated.

The said paragraphs are as under:

“51. A distinction between “material facts” and

“particulars”, however, must not be overlooked.

“Material facts” are primary or basic facts which must

be pleaded by the plaintiff or by the defendant 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

material facts by giving distinctive touch to the basic

contours of a picture already drawn so as to make it

full, more clear and more informative. “Particulars”

thus ensure conduct of fair trial and would not take

the opposite party by surprise.

52. All “material facts” must be pleaded by the party

in support of the case set up by him. Since the object

and purpose is to enable the opposite party to know

the case he has to meet with, in the absence of

pleading, a party cannot be allowed to lead evidence.

Failure to state even a single material fact, hence, will

entail dismissal of the suit or petition. Particulars, on

the other hand, are the details of the case which is in

the nature of evidence a party would be leading at the

time of trial.”

Civil Appeal Nos.5987-5988 of 2012 39 of 46

Page 40 43.However, this Court found that the High Court without any plea

from any party went into the allegations made in the Election

Petition and rejected the same holding that the Election Petition did

not state material facts and, therefore, did not disclose a cause of

action. In paragraphs 82 and 83 it has been held as under:

“82. As we have already observed earlier, in the

present case, “material facts” of corrupt practice said

to have been adopted by the respondent had been set

out in the petition with full particulars. It has been

expressly stated as to how Mr. Chahal who was a

gazetted officer of Class I in the Government of Punjab

assisted the respondent by doing several acts, as to

complaints made against him by authorities and

taking of disciplinary action. It has also been stated as

to how a police officer, Mr. Mehra, who was holding

the post of Superintendent of Police helped the

respondent by organising a meeting and by

distributing posters. It was also alleged that correct

and proper accounts of election expenses have not

been maintained by the respondent. Though at the

time of hearing of the appeal, the allegation as to

projecting himself as “Maharaja of Patiala” by the

respondent had not been pressed by the learned

counsel for the appellant, full particulars had been set

out in the election petition in respect of other

allegations. The High Court, in our opinion, was wholly

unjustified in entering into the correctness or

otherwise of the facts stated and allegations made in

the election petition and in rejecting the petition

holding that it did not state material facts and thus did

not disclose a cause of action. The High Court, in our

considered view, stepped into the prohibited area of

appreciating the evidence and by entering into 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.

Civil Appeal Nos.5987-5988 of 2012 40 of 46

Page 41 83. We, therefore, hold that the High Court was wrong

in dismissing the election petition on the ground that

material facts had not been set out in the election

petition and the election petition did not disclose a

cause of action. The order passed by the High Court,

therefore, deserves to be quashed and set aside.”

44.The distinguishing feature which we noted as between the said

case and the case on hand is that here there was a written

statement filed pointing out the serious defects as regards the

material facts and the particulars as set out in the Election Petition

and also the non-compliance of the proviso to Section 83(1) in the

affidavit filed in support of the Election Petition. That apart, an I.A.

was taken out in I.A. No.3 of 2011 at the instance of the First

Respondent to reject the Election Petition for want of cause of action

in which specific grounds were raised which were contested by the

Appellant by filing a counter affidavit but yet, even at that stage,

the Appellant did not take the stand that he was inclined to rectify

whatever defects were pointed in the Election Petition as well as in

the affidavit. When such a categoric stand was taken on behalf of

the Appellant and he was fully prepared to accept the ultimate

decision of the High Court in the application as well as in the

Election Petition, we see no reason why the Appellant should now be

given any further opportunity to cure the defects which were

Civil Appeal Nos.5987-5988 of 2012 41 of 46

Page 42 substantial in nature. Therefore, the said decision also does not in

any way support the case of the Appellant.

45.With that when we come to the next part of the judgment,

namely, the alleged corrupt practice under Section 123(4) based

upon Annexure IV, which was the pamphlet distributed in the name

of Second Respondent, the contention was that the First Respondent

was responsible for issuing the said pamphlet in the name of the

Second Respondent with a view to divert the votes of UDF and

thereby, the candidature of the Appellant was put to serious

prejudice. Dealing with the said issue, the High Court has stated as

under in paragraphs 17 and 19:

“17. The question is even if the case of the election

petitioner is to be accepted and the notice was printed

and published by the first respondent in the name of

the second respondent, whether it is a corrupt practice

as provided under sub section (4) of Section 123. The

argument of the learned counsel appearing for the

election petitioner is that election petitioner is the

candidate of the United Democratic Front and by

reading the appeal the voters may think that second

respondent, who is having identical name as that of

the election petitioner, is the candidate of the United

Democratic Front and it was printed and published

with the intention of causing loss of votes to the

election petitioner, as those who read the appeal may

think that second respondent is the candidate of the

United Democratic Front and would cast their votes to

the second respondent on a mistaken impression that

instead of the election petitioner second respondent is

the candidate of the United Democratic Front. Learned

Civil Appeal Nos.5987-5988 of 2012 42 of 46

Page 43 senior counsel appearing for the election petitioner

argued that unless Annexure IV appeal contains any

statement which are false and either the first

respondent believed to be false or did not believe to

be true and such statements are in relation to the

personal character or conduct of any candidate or in

relation to the candidature or withdrawal of any

candidate and that too reasonably calculated to

prejudice the prospects of that candidate’s election, it

will not constitute a corrupt practice as provided under

sub section (4) of Section 123 of the Act.

19. It is clear that in order to attract sub section (4) of

section 123, there should be a publication by a

candidate or his agent or by any other person with the

consent of the candidate or his election agent. The

statement of fact in the publication must be false. The

candidate should either believe it to be false or does

not believe it to be true. The statement must be in

relation to the personal character or conduct of any

candidate or in relation to the candidature or

withdrawal of any candidate. The statement must be

reasonably calculated to prejudice the prospects of

that candidate’s election. Even if the statement is

false and the candidate did not believe the statement

to be true or believe it to be false, unless the

statement is in relation to the personal character or

conduct of any candidate or in relation to the

candidature or withdrawal of any candidate, it is not a

corrupt practice. Even if the statement is in relation to

the personal character or conduct of any candidate or

in relation to the candidature or withdrawal of any

candidate, unless it was reasonably calculated to

prejudice the prospects of that candidate’s election, it

will not amount to a corrupt practice. Each of the

ingredients in the section has its own importance. The

omission to plead any one of the ingredients is fatal. In

the absence of any of the ingredients, it will not

constitute a complete cause of action to challenge the

election on the ground of corrupt practice under

section 123(4) of the Act.”

Civil Appeal Nos.5987-5988 of 2012 43 of 46

Page 44 46.On a reading of the above discussion made by the High Court

with which we fully concur, we do not find any scope to take a

different view. The said conclusion of the High Court in the context

of Section 123(4) is the only way to understand the implication of

the Annexure IV-pamphlet alleged to have been distributed by the

Second Respondent at the instance of the First Respondent.

Therefore, on this ground, as well, we do not find any scope to

interfere with the impugned judgment of the High Court.

47.The only other ground which was raised in the Election Petition

related to violation of Section 33A of the Act wherein, the First

Respondent stated to have suppressed his conviction in two criminal

cases. As far as those two criminal cases are concerned, Mr.

Shishodia, learned Senior Counsel appearing for the First

Respondent brought to our notice that the contention of the

Appellant based on those two criminal cases were factually

incorrect. In the impugned judgment it has been noted that the

First Respondent was convicted for offence in Sessions Case No.4 of

1975 but, however, the said conviction was set aside in Criminal

Appeal No.248 of 2000 which was not in dispute. Similarly, with

Civil Appeal Nos.5987-5988 of 2012 44 of 46

Page 45 reference to the conviction in CC No.167 of 1995 the High Court has

noted that the certified copy of the judgment in the said case was

produced which disclosed that the sentence imposed in the said

case was less than a year. Under Section 33A(1)(ii) of the Act, the

requirement of the candidate is to furnish the information in the

nomination as regards his/her conviction for any offence referred to

in sub-sections (i), (ii) and (iii) of Section 8 and if he/she is

sentenced to imprisonment for a period of one year or more, only

then should it be disclosed in the nomination. As it has been found

in the present case that the conviction in CC No.167 of 1995 and the

sentence imposed was less than a year, there was no compulsion

for the First Respondent to disclose the said conviction in his

nomination. Therefore, on this ground when the High Court declined

to interfere with the election of the First Respondent, no fault can be

found with the said conclusion.

48.Having regard to our above discussions and findings there is

no merit in these appeals and the same are dismissed. No costs.

…...…..……….…………………………...J.

[Fakkir Mohamed Ibrahim

Kalifulla]

Civil Appeal Nos.5987-5988 of 2012 45 of 46

Page 46 ……………….

………………………………J.

[Shiva Kirti Singh]

New Delhi;

September 11, 2014.

Civil Appeal Nos.5987-5988 of 2012 46 of 46