Full Judgment Text
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PETITIONER:
U.S. SASIDHARAN
Vs.
RESPONDENT:
K. KARUNAKARAN & ANR
DATE OF JUDGMENT23/08/1989
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
THOMMEN, T.K. (J)
CITATION:
1990 AIR 924 1989 SCR (3) 958
1989 SCC (4) 482 JT 1989 (3) 611
1989 SCALE (2)401
ACT:
The Representation of the People Act 1951--Sections 81
and 86-Power of High Court to dismiss Election
Petition--Document forms integral part of Election Petition
and not furnished to respondent alongwith copy of the Peti-
tion--The effect thereof.
HEADNOTE:
The appellant was a voter in the Mala constituency of
the Kerala Legislative Assembly, election whereof was held
on March 23, 1987 and the first respondent, sitting Chief
Minister of the State was declared elected from the said
constituency.
The appellant challenged the validity of 1st Respond-
ent’s election on the ground of various corrupt practices
committed by him. It was alleged in the Election Petition
that at the instigation of the first respondent, Respondent
No. 2 published a notice wherein it was stated that he was
withdrawing his candidature. It was further stated in the
notice that his purpose of contesting was to highlight the
grievances of the Kudumbi Samudayam community with a view to
get that community the status of Scheduled Caste and since
the Kerala Government under the leadership of the first
respondent (returned candidate) had decided to give a fa-
vourable consideration in regard to the community’s den.and
for inclusion in the list of Scheduled Castes, it had become
necessary for the first respondent to win the election. He
thereby offered his support to Respondent No. 1. According
to the appellant this act constituted a corrupt practice
within the meaning of Section 123 of the Representation of
the People Act, 1951.
It was further alleged by the Election Petitioner that
Respondent No. 1, committed corrupt practice by asking
Government servants to lead processions in support of his
candidature. A photograph of a procession was filed.
Election Petitioner further alleged that at the instiga-
tion of the first respondent a video cassette called "Mala-
yude Purogathi" had been used in the constituency wherein
persons like Shri Jose P. George, Government Pleader, Kerala
High Court, Shri Tomas Thottappally,
959
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Veterinary Doctor spoke in support of the first respondent
which is a corrupt practice. The video cassette was filed in
a sealed cover.
The first respondent contested the Election Petition and
pleaded that since the copies of the photograph, notice and
the video cassette have not been furnished to him alongwith
the Election Petition, the same was liable to be dismissed
in limine under section 86(1) for noncompliance with the
provisions of section 83(1).
The High Court rejected the contention of the appellant
that Respondent No. I could obtain copies of the documents
from the High Court; and defend his case, and took the view
that non-furnishing to the respondent copies of the docu-
ments alongwith a copy of the Election Petition was non-
compliance with section 81(3) and as such, the election
petition was liable to be dismissed, which the High Court
did. Hence this appeal.
Almost identical arguments were advanced before this
Court. Counsel for the appellant strenuously contended that
the video cassette etc. do not from an integral part of the
petition, on the other hand, they had been filed in the
proceedings as evidence of facts and copies of such docu-
ments need not be served on the respondent alongwith a copy
of the Election Petition. On behalf of the first respondent
it was mainly argued that failure to supply the documents
violates the provisions of section 81(3) as in the absence
of those the Election Petition served cannot be said to be
true copy of the election petition as contemplated by sec-
tion 81(3) of the Act.
Dismissing the appeal, this Court,
HELD: An election is the democratic method for selecting
the representatives of the people in Parliament or in the
Legislative Assembly. When a candidate gets himself elected
by adopting or committing any corrupt practice, his election
must be set aside on proof of such corrupt practice. At the
same time, the procedure prescribed by the Act for challeng-
ing an election must be strictly followed. [964H-965A]
Satya Narain v. Dhuja Ram, [1974] 3 SCR 20.
Whenever there is an allegation of corrupt practice, the
election petition shall contain a concise statement as to
the material fact on which the petitioner relies and also
must set forth full particulars of the corrupt practice
alleged by the petitioner. [964F]
960
When a document forms an integral part of the election
petition and a copy of such document is not furnished to the
respondent alongwith a copy of the election petition, the
copy of the election petition will not be a true copy within
the meaning of section 81(3) and, as such, the Court has to
dismiss the election petition under section 86(1) for non-
compliance with section 81(3). [965F-G]
Section 81(3) which enjoins that every election peti-
tion shall be accompanied by as many copies thereof as there
are respondents mentioned in the petition, and every such
copy shall be attested by the petitioner under his own
signature to be a true copy of the petition. Section 81(3)
however, does not provide for giving of copies of the docu-
ments either referred to in the election petition or filed
in the proceedings. [963D]
Section 86(1) is a mandate on the Court to dismiss an
election petition if there be a non-compliance with the
provisions of section 81(3). I963F]
The appellant in the instant case, has not served on
the first respondent a true copy of the election petition
inasmuch as admittedly, a copy of the video cassette which
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forms an integral part of the election petition, was not
served alongwith the election petition. It was noncompliance
with the provisions of section 81(3) of the Act. (M. Karuna-
nidhi v. H.V. Hande, [1983] 2 SCC 473). [972H-973A]
The question of exercise of jurisdiction by the Court
in permitting the appellant to supply the particulars does
not arise at all. [972F]
Sahodrabai Rai v. Ram Singh Aharwar, [1968] 3 SCR 13;
Thakur Virendra Singh v. Vimal Kumar, [1977] 1 SCR 525;
Mithilesh Kumar Pandey v. Baidyanath Yadav, [1984] 2 SCR
278; Azhar Hussain v. Rajiv Gandhi, [1986] Suppl SCC 315;
Shri Udhav Singh v. Madhav Rao Scindia, [1977] 1 SCC 511 and
A. Madan Mohan v. Kalavakunta Chandrasekhara, [1984] 2 SCC
289.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal (Election)
No.4030 of 1987.
From the Judgment and Order dated 13.11.87 of the
Kerala High Court in Election Petition No. 2 of 1987.
P.S. Poti and T.T. Kunhikannan for the Appellant.
961
Dr. Y.S. Chitale, A.S. Nambiar, Dileep Pillai, M.A.
Firoz and Aseem Mahrotra for the Respondents.
The Judgment of the Court was delivered by
DUTT, J. This appeal under section 116-A of the Repre-
sentation of the People Act, 1951 (hereinafter referred to
as ’the Act’) is directed against the judgment of the Kerala
High Court dismissing the election petition of the appel-
lant.
The appellant is a voter in the Mala constituency of the
Kerala Legislative Assembly. The election of the members of
the Assembly was held on March 23, 1987 and the first re-
spondent, who was then the sitting Chief Minister of the
State of Kerala, was declared elected from Mala constituen-
cy.
The appellant challenged the election of the first
respondent to the Kerala Legislative Assembly on the ground
of various corrupt practices alleged to have been committed
by the first respondent. In paragraphs 5(i) and 5(ii) of the
election petition, the corrupt practice that was alleged by
the appellant was to the effect that the second respondent,
who was a candidate for the election, published a notice
wherein it was declared that the second respondent was
withdrawing from the contest and stated, inter alia, that it
was to highlight the grievances of his community, namely,
the Kudumbi Samudayam which is a backward community, that he
had decided to contest the election, and that one of the
demands of the community was that it should be included in
the list of Scheduled Castes. Further, the second respondent
stated in the notice that the Kerala Government under the
leadership of the first respondent had decided to give
favourable consideration in regard to his community’s demand
for inclusion in the list of Scheduled Castes. Accordingly,
the second respondent declared in the notice that for ob-
taining their rights, it had become necessary that the first
respondent should win in the election and for that purpose
he was withdrawing his candidature offering full support to
the first respondent. It was alleged that the second re-
spondent published the notice at the instigation and with
the assistance and initiative and at the cost of the first
respondent and his supporters. Such acts constituted corrupt
practice within the meaning of section 123 of the Act.
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In paragraph 5(xvi), it is alleged that the first re-
spondent also committed corrupt practice in the course of
his election work by asking Government servants including
Shri P.M. Shabul Hameed, Teacher,
962
Government Upper Primary School, Kaduppassery, to lead
processions in support of his candidature in the constituen-
cy. It was submitted by the appellant that he was prepared
to prove the allegation by examining the said persons. A
photograph of a procession was filed.
In paragraph 5(xi) of the election petition, the appel-
lant inter alia stated as follows:
"5(xi) .....................................
Besides at the instigation of the first re-
spondent a video cassette called "Malayude
Purogathi" has been used in the constituency.
The persons who speak are one Shri Jose P.
George, Government Pleader, Kerala High Court,
2. Shri Thomas Thottappally, Veterinary Doc-
tor, Veterinary Polyclinic, Valiyaparambu.
This is also a corrupt practice. The video
cassette is produced herewith in a sealed
cover."
The first respondent opposed the election petition by
filing a written statement denying the allegations of cor-
rupt practices. It was submitted by him that as the copies
of the said notice, photograph and video cassette were not
supplied to the first respondent along with the copy of the
election petition, the election petition was liable to be
dismissed in limine under section 86(1) for non-compliance
with section 81(3) of the Act.
The High Court came to the findings that the allegations
in the election petition would really show that the said
documents formed integral part of the election petition and,
therefore, it was really necessary to serve copies of the
same on the first respondent and overruled the contention of
the appellant that as he had filed the documents and pro-
duced the video cassette in Court, the first respondent
could very well take copies of the same and defend his case.
The High Court took the view that non-furnishing to the
first respondent copies of the documents along with a copy
of the election petition was non-compliance with section
81(3) and, as such, the election petition was liable to be
dismissed under section 86(1) of the Act. In that view of
the matter, the High Court dismissed the election petition.
Hence this appeal.
Section 81 of the Act provides as follows:
"81. Presentation of petitions. (1) An elec-
tion petition calling in question any election
may be presented on one or more of the grounds
specified in sub-section (1) of section
963
100 and section 101 to the High Court by any
candidate at such election or any elector
within forty-five days from, but not earlier
than, the date of election of the returned
candidate, or if there are more than one
returned candidate at the election and the
dates of their election are different, the
later of those two dates.
(2) [Omitted by Act 47 of 1966.]
(3) Every election petition shall be accompa-
nied by as many copies thereof as there are
respondents mentioned in the petition and
every such copy shall be attested by the peti-
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tioner under his own signature to be a true
copy of the petition."
We are concerned with section 81(3) which enjoins that
every election petition shall be accompanied by as many
copies thereof as there are respondents mentioned in the
petition and every such copy shall be attested by the peti-
tioner under his own signature to be a true copy of the
petition. Section 81(3), however, does not provide for
giving of copies of the documents either referred to in the
election petition or filed in the proceedings. We may now
refer to section 86(1) of the Act which reads as follows:
"86(1). The High Court shall dismiss an elec-
tion petition which does not comply with the
provisions of section 81 or section 82 or
section 117."
Section 86(1), therefore, is a mandate on the court to
dismiss an election petition if there be a non-compliance
with the provision of section 81(3). In other words, both
section 81(3) and section 86(1) are mandatory in nature and
if there be any non-compliance with the mandatory provision
of section 81(3), the court will be bound to dismiss the
election petition.
Before considering whether a copy of the document re-
ferred to in the election petition or filed in the proceed-
ings should be furnished to the elected candidate, whose
election is under challenge, along with a copy of the elec-
tion petition, we may refer to section 83 of the Act provid-
ing as to the contents of an election petition.
Section 83 provides as follows:
964
"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, 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 allega-
tion of such corrupt practice and the particu-
lars thereof.
(2) Any schedule or annexure to the petition
shall also be signed by the petitioner and
verified in the same manner as the petition."
It is apparent from clauses (a) and (b) of section 83
that an election petition shall contain a concise statement
of the material facts and also set forth full particulars of
any corrupt practice. These two requirements are also manda-
tory in nature. So, whenever there is an allegation of
corrupt practice, the election petition shall contain a
concise statement as to the material fact on which the
petitioner relies and also must set forth full particulars
of the corrupt practice alleged by the petitioner.
As has been held in Satya Narain v. Dhuja Ram, [1974] 3
SCR 20, the right to challenge an election is not a common
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law right, but a special right as conferred by the Act. The
provision for setting aside the election on the grounds
mentioned in section 100 of the Act including the ground of
corrupt practice has been made for the purpose of maintain-
ing purity of elections. An election is the democratic
method for selecting the representatives of the people in
Parliament or in the Legislative Assembly. When a candidate
gets himself elected by adopting or committing any corrupt
practice, his election must be set aside on proof of such
corrupt practice. At the same time, the proce-
965
dure prescribed by the Act for challenging an election must
be strictly followed. So, if there be any deviation from or
non-compliance with the provision of section 81(3), the
court will have no other alternative than to dismiss the
election petition.
It has been already noticed that the High Court dis-
missed the election petition as the appellant has not fur-
nished to the first respondent copies of the notice, photo-
graph and the video cassette referred to above along with a
copy of the election petition. So far as the copies of the
notice and the photograph are concerned, we do not think
that the High Court was justified in holding that these
should have also been furnished to the first respondent
along with the copy of the election petition. Dr. Chitale,
learned Counsel appearing on behalf of the first respondent,
also has not urged that the copies of these two documents
should have been served upon the first respondent. What has,
however, been vehemently urged on behalf of the first re-
spondent is that he should, have been served along with the
election a copy of the video cassette. This contention will
be considered presently.
We have already referred to section 83 relating to the
contents of an election petition. The election petition
shall contain a concise statement of material facts and also
set forth full particulars of any corrupt practice. The
material facts or particulars relating to any corrupt prac-
tice may be contained in a document and the election peti-
tioner, without pleading the material facts or particulars
of corrupt practice, may refer to the document. When such a
reference is made in the election petition, a copy of the
document must be supplied inasmuch as by making a reference
to the document and without pleading its contents in the
election petition, the document becomes incorporated in the
election petition by reference. In other words, it forms an
integral part of the election petition. Section 81(3) pro-
vides for giving a true copy of the election petition. When
a document forms an integral part of the election petition
and a copy of such document is not furnished to the respond-
ent along with a copy of the election petition, the copy of
the election petition will not be a true copy within the
meaning of section 81(3) and, as such, the court has to
dismiss the election petition under section 86(1) for non-
compliance with section 81(3).
On the other hand, if the contents of the document in
question are pleaded in the election petition, the document
does not form an integral part of the election petition. In
such a case, a copy of the document need not be served on
the respondent and that will not be non-compliance with the
provision of section 81(3). The document
966
may be relied upon as an evidence in the proceedings. In
other words, when the document does not form an integral
part of the election petition, but has been either referred
to in the petition or filed in the proceedings as evidence
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of any fact, a copy of such a document need not be served on
the respondent along with a copy of the election petition.
There may be another situation when a copy of the docu-
ment need not be served on the respondent along with the
election petition. When a document has been filed in the
proceedings, but is not referred to in the petition either
directly or indirectly, a copy of such document need not be
served on the respondent. What section 81(3) enjoins is that
a true copy of the election petition has to be served on the
respondents including the elected candidate. When a document
forms an integral part of an election petition containing
material facts or particulars of corrupt practice, then a
copy of the election petition without such a document is not
complete and cannot be said to be a true copy of the elec-
tion petition. Copy of such document must be served on the
respondents.
Keeping in view the above principles, let us consider
whether the video cassette, as mentioned in paragraph 5(xi)
in the election petition, forms an integral part of the
election petition. It is not disputed that a copy-of the
video cassette was not served on the first respondent along
with the copy of the election petition. Indeed, the same was
submitted by the appellant in a sealed cover with an appli-
cation praying for keeping the video cassettee in the sealed
cover till the stage of examination of witnesses. It is,
therefore, apparent that not only the copy of the video
cassette was not served on the first respondent, but also
the appellant had no intention of serving a copy of the same
on the first respondent.
It is urged by Mr. Poti, learned Counsel appearing on
behalf of the appellant, that the video cassette is only an
evidence of the fact stated in paragraph 5(xi) of the elec-
tion petition, relevant portion of which has been extracted
above. It has been alleged in paragraph 5(xi) that at the
instigation of the first respondent, a video cassette called
"Malayude Purogathi" has been used in the constituency. The
expression "Malayude Purogathi" means progress of Mala,
which is the constituency in question. Further, it has been
alleged that the persons whose speeches have been recorded
in the video cassette regarding progress of Mala are two
Government officers named in paragraph 5(xi), and that the
cassette has been used in the constituency at the
967
instigation of the first respondent. This has been averred
as a corrupt practice. It is also mentioned in the same
paragraph that the video cassette is produced with the
election petition in a sealed cover. It is not disputed that
by corrupt practice as referred to in paragraph 5(xi) of the
election petition, the appellant is referring to the corrupt
practice within the meaning of section 123(7) of the Act.
Section 123 enumerates the different corrupt practices for
the purposes of the Act. One of the corrupt practices, as
contained in section 123(7), is the obtaining or procuring
or abetting or attempting to obtain or procure by a candi-
date or his agent, or by any other person, with the consent
of a candidate or his election agent, any assistance other
than the giving of vote for the furtherance of the prospects
of that candidate’s election, from any person in the service
of the Government and belonging to any of the classes as
mentioned in clauses (a) to (g) of the section. The signifi-
cant ingredient of corrupt practice, as mentioned in section
123(7), is that the assistance which is obtained or procured
from a Government servant of the classes mentioned in
clauses (a) to (g) must be for the furtherance of the pros-
pect of the election of the candidate who or on whose behalf
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such assistance has been obtained or procured. It is not
disputed that the two Government servants mentioned in
paragraph 5(xi) of the election petition whose speeches have
been recorded in the video cassette, are Government servants
within the meaning of section 123(7).
The speeches of the two Government servants relating to
"Malayude Purogathi", that is, the progress of Mala, sim-
pliciter will not constitute a corrupt practice within the
meaning of section 123(7). In order to be a corrupt practice
within the meaning of section 123(7), the speeches of the
said Government servants as recorded in the video cassette
and alleged to have been used in the constituency at the
instigation of the first respondent, must be with a view to
obtaining or procuring or abetting or attempting to obtain
or procure the assistance for the furtherance of the pros-
pects of the first respondent’s election. It is urged by the
learned Counsel for the appellant that as no such allegation
has been made in paragraph 5(xi), the allegations in that
paragraph do not constitute a corrupt practice within the
meaning of section 123(7) and, accordingly, the video cas-
sette does not form an integral part of that paragraph.
We are unable to accept the contention. It is true that
there is no allegation in paragraph 5(xi) that the video
cassette was used by the first respondent for the purpose of
any assistance for the furtherance of the prospects of his
election. But, in our opinion, it is apparent that
968
such an allegation is implied in the paragraph. After alleg-
ing that the video cassette was used in the constituency at
the instigation of the first respondent, it is alleged that
the same constituted a corrupt practice which points to the
only fact that the video cassette containing the speeches of
the Government servants was used for the purpose of some
assistance for the furtherance of the prospects of the
election of the first respondent. It is implied that the
video cassette is referred to in paragraph 5(xi) in regard
to the alleged assistance for the furtherance of the pros-
pects of the election of the first respondent and, accord-
ingly, the contents of the cassette are incorporated in that
paragraph by reference. In other words, the cassette forms
an integral part of paragraph 5(xi). In this connection, we
may refer to Item No. 1 of the List of Documents which reads
as follows:
"1. Video Cassette by Kala Audio & Video,
Kallettumkara, Tricur District titled "Mala-
yude Purogathi" prepared at the instance of
the first respondent for election propaganda,
as stated in paragraph 5(xi) of the election
petition."
It is clear from Item No. 1 of the List of Documents
that it is the specific case of the appellant that the video
cassette was prepared at the instance of the first respond-
ent for election propaganda, as stated in paragraph 5(xi) of
the election petition. Whether it was so stated in Item No.
1 of the List of Documents or not it is, as stated already,
apparent on the face of the allegation in paragraph 5(xi)
that it was used by the first respondent by way of assist-
ance in furtherance of the prospects of his election and so
the video cassette formed an integral part of paragraph
5(xi). Unless a copy of the video cassette was given to the
first respondent, he would not know how the speeches of the
said Government servants could assist the furtherance of the
prospects of his election and would not be in a position to
deal with the allegations made in paragraph 5(xi). The copy
of the election petition which was served on the first
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respondent without a copy of the video cassette was not,
therefore, a true copy of the election petition within the
meaning of section 81(3) of the Act.
Much reliance has been placed on behalf of the appellant on
a decision of this Court in Sahodrabai Rai v. Ram Singh
Aharwar, [1968] 3 SCR 13. In that case, the appellant filed
an election petition challenging the election of the first
respondent on four grounds, one of which was corrupt prac-
tice inasmuch as the first respondent had appealed to reli-
gion through a pamphlet marked Annexure A. In the
969
body of the election petition a translation in English of
the Hindi pamphlet was incorporated. The original pamphlet
was attached to the election petition and was marked Annex-
ure A. The election petitioner, thereafter, stated in the
petition that the pamphlet formed part of the petition. The
first respondent raised an objection that a copy of the
pamphlet had not been annexed to the copy of the election
petition served on him and, therefore, the ’election peti-
tion was liable to be dismissed under section 86 of the Act.
The High Court accepted the objection and dismissed ’the
election petition. On an appeal to this Court by the appel-
lant, this Court set aside the judgment of the High Court
holding that the pamphlet must be treated as a document and
not as a part of the election petition in so far as the
averments were concerned.
The decision in Sahodrabai’s case does not, in our
opinion, lend any assistance to the contention of the appel-
lant that the video cassette is only evidence and does not
form part of the election petition. In that case, the elec-
tion petition reproduced the whole of the pamphlet and,
accordingly, it was held that it was only an evidence and
not a part of the election petition. What has been stressed
in that case is that each and every document does not form
part of the election petition. Moreover, the Court was
considering the scope of section 83(2) of the Act before it
was amended. We are unable to accept the contention made on
behalf of the appellant that a document, in no circum-
stances, can form an integral part of the election petition.
As has been noticed already, the phamplet in that case was
fully reproduced in the election petition and, therefore, it
was merely an evidence and did not form a part of the elec-
tion petition.
In Thakur Virendra Singh v. Vimal Kumar, [1977] 1 SCR
525. the question was whether a leaflet, a copy of which was
Annexure A to the election petition and referred to in
paragraph 13 thereof, constituted a part of the election
petition and, accordingly should have been served on the
elected candidate. This Court overruled the contention of
the elected candidate that the petition was liable to be
dismissed as the copy of the petition meant to be served on
the appellant was not accompanied by a copy of Annexure A on
the ground that the allegation of corrupt practice and
particulars thereof, as given in paragraph 13 of the elec-
tion petition, were sufficiently clear and precise. This
decision is, therefore, of no help to the contention of the
appellant that the video cassette is not a part of the
election petition.
The most important case for our purpose is the decision of
this
970
Court in M. Karunanidhi v. H.V. Hande, [1983] 2 SCC 473. In
that case, in paragraph 18(b) of the election petition it
was alleged as follows:
"18(b). The first Respondent erected fancy
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banners throughout the constituency and the
number of such banners is about 50. A photo-
graph of one such banner is filed herewith.
The cost of each such banner will be not less
than Rs. 1,000. The expenditure involved in
erecting these fifty banners is about
Rs.50,000. It is submitted that the first
Respondent has incurred the above said expend-
iture which added to the amount disclosed in
the Return of Election Expenses exceeds the
amount fixed under Section 77(3) of the Act
thus amounting to a corrupt practice under
Section 123(6) of the Act."
Admittedly, a copy of the photograph as referred to in
paragraph 18(b) was not furnished to the appellant along
with a copy of the election petition. This Court took the
view that the averment contained in paragraph 18(b) would be
incomplete without a copy of the photograph being supplied
with a copy of the election petition. The reason being that
it was not possible to conceive of the dimension of the
large fancy banner unless one had a look at the photograph.
1n that view of the matter, it was held by this Court that
the photograph formed an integral part of the petition and a
copy of it should have been served along with the election
petition. Accordingly, this Court reversed the judgment of
the High Court in so far as it held that the photograph of
the fancy banner adverted to in paragraph 18(b) could not be
treated to be an integral part of the election petition, but
was merely a piece of evidence’ as to the nature and type of
fancy banner erected by the appellant and, therefore, fail-
ure to supply a copy of the photograph to the appellant did
not amount to a violation of the provision of sub-section
(3) of section 81 of the Act.
The decision in Karunanidhi’s case fully supports the
view which we take, namely, the video cassette formed an
integral part of the election petition because without a
copy of the video cassette the first respondent was not in a
position to know whether’ the video cassette recording the
speeches of the two Government servants could be said to
have been used by the first respondent for the purpose of
any assistance in furtherance of the prospects of his elec-
tion. Karunanidhi’s case was referred to and approved in a
subsequent decision of this Court in Mithilesh Kumar Pandey
v. Baidyanath Yadav, [1984] 2 SCR 278.
971
Mr. Poti has, however, urged that if the averments in
paragraph 5(xi) of the election petition are full and com-
plete or, in other words, if they do not give particulars of
the corrupt practice, in that case the said averments may be
struck out under the provisions of Order VI Rule 16 of the
Code of Civil Procedure, but the entire election petition
cannot be dismissed. It has already been noticed that under
clauses (a) and (b) of section 83(1) of the Act, an election
petition shall contain a concise statement of the material
facts and shall set forth full particulars of any corrupt
practice. The material facts and the full particulars of
corrupt practice will constitute cause of action for the
election petition. If the material facts are not supplied or
full particulars of corrupt practice are not given in the
election petition, as a consequence of which the election
petition does not disclose any cause of action, it is liable
to be dismissed under the provision of Order VII, Rule 11(a)
of the Code of Civil Procedure. See Azhar Hussain v. Rajiv
Gandhi, [1986] Suppl. SCC 315.
Apart from the striking out the whole of the election
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petition when it does not disclose a cause of action, the
court can strike out any statement which is irrelevant,
scandalous or has nothing to do with the cause of action
under the provision of Order VI, Rule 16 of the Code of
Civil Procedure. It is submitted by Mr. Poti that if the
averments in paragraph 5(xi) of the election petition are
irrelevant or do not disclose any cause of action, at the
most the said paragraph can be struck out by the court under
the provision of Order VI, Rule 16 of the Code of Civil
Procedure. We are afraid, we are unable to accept the con-
tention. We are not concerned with whether paragraph 5(xi)
can be struck out by the court under the provision of Order
VI, Rule 16 of the Code of Civil Procedure as not disclosing
any cause of action, but really we are concerned with the
question as to whether the copy of the election petition
which has been served on the first respondent without a copy
of the video cassette is a true copy of the election peti-
tion or not within the meaning of section 81(3) of the Act.
We have come to the conclusion that the appellant has not
served on the first respondent a true copy of the election
petition inasmuch as, admittedly, a copy of the video cas-
sette which forms an integral part of the election petition,
was not served along with the election petition. There is,
therefore, no substance in the contention which is rejected.
Mr. Poti has drawn our attention to the observations
made by this Court in Shri Udhav Singh v. Madhay Rao Scin-
dia, [1977] 1 SCC 511 which reads as follows:
972
"Like the Code of Civil Procedure, this sec-
tion also envisages a distinction between
"material facts" and "material particulars".
Clause (a) of sub-section (1) corresponds to
Order 6, Rule 2, while clause (b) is analogous
to Order 6, Rules 4 and 6 of the Code. The
distinction between "material facts" and
"material particulars" is important because
different consequences may flow from a defi-
ciency of such facts or particulars in the
pleading. Failure to plead even a single
material fact leads to an incomplete cause of
action and incomplete allegations of such a
charge are liable to be struck off .under
Order 6, Rule 16, Code of Civil Procedure. If
the petition is based solely on those allega-
tions which suffer from lack of material
facts, the petition is liable to be summarily
rejected for want of a cause of action, In the
case of a petition suffering from a deficiency
of material particulars, the court has a
discretion to allow the petitioner to supply
the required particulars even after the expiry
of limitation."
On the basis of the above observations, it is submitted
that if paragraph 5(xi) of the election petition suffers
from a deficiency of material particulars, the court .has a
discretion to allow the appellant to supply the required
particulars even after the expiry of limitation. The above
observations have been made in a different context and are
quite inapplicable to the facts and circumstances of the
instant case which, as noticed already, relate to the ques-
tion as to whether the video cassette is an integral
part .of the election petition and whether non-furnishing of
a copy of the video cassette to the first respondent along
with a copy of election petition is non-compliance with the
mandatory provision of section 81(3) and, as such, liable to
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be dismissed under section 86(1) of the Act. The question of
exercise of discretion by the court in permitting the appel-
lant to supply the particulars does not arise at all.
Lastly, the decision of this Court in A. Madan Mohan v.
Kalavakunta Chandrasekhara, [1984] 2 SCC 289 has been relied
upon by the learned Counsel for the appellant. We fail to
understand how this case is of any assistance to the appel-
lant, for in this case also this Court once more approved of
the decision in Karunanidhi’s case. No other point has been
urged by either party in this appeal.
In view of the discussion made above, we affirm the
judgment of the High Court dismissing the election petition
of the appellant on the
973
ground that as the copy of the video cassette was not served
on the first respondent along with a copy of the election
petition, it was noncompliance with the provision of section
81(3) of the Act.
The appeal is, accordingly, dismissed. There will,
however, be no order as to costs.
Y. Lal Appeal dismissed.
974