C.P. JOHN vs. BABU M. PALISSERY .

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 JUDGMENT 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 1 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.

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 JUDGMENT 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 2 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.

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. JUDGMENT 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 3 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

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 JUDGMENT 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 4 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.

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 JUDGMENT 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 5 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

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 JUDGMENT 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 6 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

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. JUDGMENT 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 7 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 JUDGMENT 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 8 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

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. JUDGMENT 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 9 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.

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 JUDGMENT 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 10 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

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 JUDGMENT 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 11 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

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 JUDGMENT (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 12 (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

(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. JUDGMENT 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 13 amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.

(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 JUDGMENT (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 14

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; JUDGMENT (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 15 Before me, Magistrate of the first class/ Notary/Commissioner of Oaths.” 18. When we read Section 83, the substantive part of Section

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 JUDGMENT 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 16 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

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 JUDGMENT 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 st Magistrate of 1 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 17 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

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 JUDGMENT 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 18 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

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 JUDGMENT 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 19 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

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). JUDGMENT 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 20 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

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 JUDGMENT 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 21 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

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 JUDGMENT 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 22 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

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 JUDGMENT Civil Appeal Nos.5987-5988 of 2012 23 of 46 Page 23 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.” JUDGMENT 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 24

27. On the above issue, the contention of the Appellant was two JUDGMENT 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 25 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

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 JUDGMENT 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 26

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 JUDGMENT 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 27 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

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 JUDGMENT 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 28 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

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 JUDGMENT 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 29 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

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) JUDGMENT Civil Appeal Nos.5987-5988 of 2012 30 of 46 Page 30

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 .” JUDGMENT 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 31 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

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 JUDGMENT 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 32 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

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 JUDGMENT 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 33 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)

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 JUDGMENT 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 34

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.” JUDGMENT 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 35 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 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.” JUDGMENT Civil Appeal Nos.5987-5988 of 2012 36 of 46 Page 36 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

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 JUDGMENT 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 37 Petition at the threshold, this Court has stated as under in paragraph 14:

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 JUDGMENT 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 38 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

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. JUDGMENT 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 39 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

“ 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. JUDGMENT Civil Appeal Nos.5987-5988 of 2012 40 of 46 Page 40

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, JUDGMENT 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 41 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,

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

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.” JUDGMENT Civil Appeal Nos.5987-5988 of 2012 43 of 46 Page 43 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

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. JUDGMENT 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 44 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

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 JUDGMENT 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 45 ………………. ………………………………J. [Shiva Kirti Singh] New Delhi; September 11, 2014. JUDGMENT Civil Appeal Nos.5987-5988 of 2012 46 of 46 Page 46