Full Judgment Text
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PETITIONER:
MOHAN
Vs.
RESPONDENT:
BHAIRON SINGH SHEKHAWAT
DATE OF JUDGMENT: 14/03/1996
BENCH:
J.S. VERMA, N.P. SINGH, FAIZAN UDDIN
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal under Section 116-A of the Representation
of the People Act, 1951 is against the Judgment dated
25.5.94 of the Rajasthan High Court in Election Petition No.
2 of 1994 rejecting the Election Petition under Order VII
Rule 11 C.P.C. on the ground that no tribal issue arises
therein. The relevant pleadings are contained in Paragraphs
7 and 8 of the Election Petition with reference to which,
primarily, the correctness of the High Court’s view has to
be tested.
The allegations in the Election Petition are of corrupt
practices defined in sub-sections (3) and (3A) of Section
123 of the Act. The averments in the Election Petition have
to be read along with Annexure ’A’ and Annexure-1 to the
petition, the contents of which are incorporated by
reference in the petition. Annexure ’A’ is a transcript of
the speech alleged to have been made by the respondent - the
returned candidate at Falna on 27.10.1993 at about 9.15 p.m.
The contention of learned counsel for the appellant is that
the contents of paragraph 8 of the Election Petition are to
be read together with Annexure ’A’ text of the Falna speech
and the news item marked Annexure-1 wherein the report of
the contents of the speech of the respondent are mentioned.
The submission of learned counsel for the appellant is that
the averments made in paragraphs 7 and 8 of the Election
Petition read with the aforesaid Annexure ’A’ and Annexure-1
raise tribal issues of the corrupt practices defined in sub-
sections (3) and (3A) of Section 123 of the Act. On this
basis, it is urged that there was no ground for rejection of
the Election Petition under Order VII Rule 11 C.P.C. or even
of striking out any part of the pleading in the Election
Petition under Order VI Rule 16 C.P.C. It was argued that
the application made under Order VI Rule 16 C.P.C. by the
respondent in the High Court is, therefore, liable to be
rejected and the impugned judgment allowing that application
as well as rejecting the Election Petition under Order VII
Rule 11 C.P.C. is liable to be set aside.
In reply, learned counsel for the respondent submitted
that if the court forms the opinion that more than one
construction is possible of the pleadings contained in
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paragraph 8(d) and one view is that the material facts
constituting the cause of action for these corrupt practices
is pleaded in paragraph 8(d), then it may be possible to
hold that a tribal issue arises out of the pleading
contained in paragraph 8(d) of the Election Petition.
Learned counsel for the respondent submitted that even
though the respondent would be able to explain his Falna
speech and contend that no such corrupt practice was
committed by him, yet at this stage it may not be possible
for him to contend that no tribal issue arises at least to
this extent.
Learned counsel for the respondent, therefore,
submitted that it is only to this limited extent relating to
the pleading contained in paragraph 8(d) read with Annexure
’A’ and Annexure-1 that the Election Petition could be
remanded for trial but the pleading contained in paragraph
8(a) has to be struck out under Order VI Rule 16 C.P.C.
since no tribal issue arises therefrom. Learned counsel for
the respondent submitted that the pleading in paragraph 7
of the Election Petition is only reiteration of the law on
the subject and it does not contain any material fact
therein. Obviously, at this stage the matter has to be
decided on a plea of demurrer and at the trial it would be
open to the respondent to dispute the averments even
as to facts and to also explain the meaning of the speeches
attributed to him.
Having heard both sides, and on consideration of the
rival contention we are satisfied that the entire order of
the High Court has to be set aside.
There can be no serious dispute that the averments in
the Election Petition relating to the Falna speech contained
in paragraph 8(d) of the Election Petition read with the
aforesaid Annexure ’A’ and Annexure-1 do clearly raise
certain tribal issues and, therefore, rejection of the
entire Election Petition under Order VII Rule 11 C.P.C. by
the High Court is contrary to law and is unsustainable.
The only surviving question for consideration, therefore, is
whether any part of the Election Petition is liable to be
struck out under Order VI Rule 16 C.P.C. and, therefore, on
that basis the averments contained in Paragraph 8(a) can be
struck out as held by the High Court. In our considered
opinion, the averments contained in paragraph 8(a) of the
Election Petition also are not liable to be struck out under
Order VI Rule 16 C.P.C. Obviously, these averments also have
to be read together with the aforesaid Annexure ’A’ and
Annexure-1 since one of the speeches pleaded in paragraph
8(a) is in the meeting of 27.10.1993 at Falna as mentioned
therein. This being so, the respondent’s application made
under Order VI Rule 16 C.P.C. is also liable to be rejected
and the High Court’s order allowing the same too has to be
set aside. The result is that the entire judgment of the
High Court challenged in this appeal, has to be set aside.
In view of the fact that the matter has to be tried in
the High Court on merits, it is appropriate, and this is
also the common request of learned counsel for the parties,
that we refrain from making any further observation about
the averments and the nature of pleadings contained in the
Election Petition. .
For the aforesaid reasons, the appeal is allowed with
costs and the impugned judgment of the High Court is set
aside. The High Court would now proceed to try the Election
Petition in accordance with law.