Full Judgment Text
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PETITIONER:
ROOP LAL SATHI
Vs.
RESPONDENT:
NACHHATTAR SINGH
DATE OF JUDGMENT02/11/1982
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
DESAI, D.A.
CITATION:
1982 AIR 1559 1983 SCR (1) 702
1982 SCC (3) 487 1982 SCALE (2)976
CITATOR INFO :
RF 1986 SC 11 (15)
RF 1990 SC 19 (24)
ACT:
Election Symbols (Reservation and Allotment) Order
1968-Order made under Representation of the People Act,
1951.
Representation of the People Act, 1951-Trial of
election petition-Provisions of O. VI, Code of Civil
Procedure, 1908 applicable except as modified by sub-s. (5)
of s.86.
Representation of the People Act, 1951-Cl. (a) of sub-
s. (1) of s. 83-Trial of election petition-Omission of
’material facts’ renders whole petition bad under O. VII, r.
11 (a), Code of Civil Procedure, 1908-Court cannot strike
down portions only.
Representation of the People Act, 1951-Cl.(b) of sub-s.
(1) of s. 83-Trial of election petition-Omission of
’particulars’-Court may direct ’further and better
particulars’ under O. Vl, r. 5, Code of Civil Procedure,
1908.
HEADNOTE:
For a candidate to be deemed to be set up by a
political party under paragraph 13 of the Election Symbols
(Reservation and Allotment) Order 1968, it is essential that
a notice in writing to that effect signed by the duly
authorised office-bearer of the political party is delivered
to the returning officer of the constituency not later than
3 p.m. on the last day of withdrawal of candidatures. The
allotment of any symbol to a candidate by the returning
officer is final under sub-r. (5) of r. 10 of the Conduct of
Elections Rules, 1961 except where it is inconsistent with
any directions issued by the Election Commission in that
behalf.
The appellant, the respondent and one Jagmohan Singh
contested the election to the Punjab Legislative Assembly
from the same constituency and the respondent was declared
elected. The appellant challenged the election of the
respondent under s. 100(1)(d)(iv) read with s. 123(7) of the
Representation of the People Act, 1951. Paragraphs 4 to 18
of the petition related to change of symbols allotted to the
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candidates. It was averred therein that the last day for
withdrawal of nomination papers was May 5, 1980; that a
notice in writing signed by the authorised office-bearer of
the Indian National Congress (I) to the effect that Jagmohan
Singh was contesting as the candidate of that party
703
had been delivered to the Returning Officer on that day;
that the Returning Officer had on May 8, 1980, intimated
by a letter that on receipt of instructions from the
Election Commission a change had been effected in the
symbols allotted to the candidates according to which the
symbol ’hand’ reserved for the Indian National Congress (I)
had been allotted to the respondent; that in terms of
paragraph 13 of the Symbols Order Jagmohan Singh ought to
have been deemed to be the candidate set up by the Indian
National Congress (I); that the Election Commission had no
power to direct re-allotment of the symbol once allotted to
a candidate under sub-r. (4) of r. 10 and therefore the
action of the Returning Officer in recalling the allotment
of the symbol ’hand’ to Jagmohan Singh was in violation of
the Act and the rules made thereunder. The respondent
contested these averments in his written statement and
referred to the circumstances in which the Election
Commission had issued the instructions relating to change of
symbols.
The respondent raised a preliminary objection that the
averments in paragraphs 4 to 18 of the petition did not
disclose any cause of action and the High Court, accepting
the objection, ordered deletion of those paragraphs from the
petition. The High Court held that it was incumbent on the
appellant to find out the circumstances in which the
Election Commission had passed the order relating to change
of symbols and that in the absence of those material
circumstances non-compliance with r. 10(5) or Paragraph 13
of the Symbols Order could not be spelled out. The High
Court further held that the Symbols Order was not an order
made under the Act and therefore s. 100(1)(d)(iv) was not
attracted.
In appeal, counsel for appellant contended that
paragraphs 4 to 18 of the petition contained all the
material facts necessary to show that the change of symbols
was in breach of r. 10(5) and paragraph 13 of the Symbols
Order and the High Court was not justified in ordering their
deletion.
Counsel for respondent contended that paragraphs 4 to
18 of the petition did not disclose any cause of action as
there was non-disclosure of facts necessary to show how the
order of the Election Commission was illegal, that the High
Court was justified in striking out those paragraphs under
O. Vl, r. 16 of the Code of Civil Procedure, 1908 as it had
no power to direct further and better particulars under O.
Vl, r. 5. Laying emphasis on the words "under the Act"
occurring in s. 100(1)(d)(iv) he contended that the Symbols
Order was not an Order made under the Act.
Allowing the appeal,
^
HELD: Cl. (a) of sub-s.(1) of s. 83 of the
Representation of the People Act, 1951 enjoins that an
election petition shall contain a concise statement of the
material facts on which the election petitioner relies. This
clause is based on the provisions of O. VI, r. 2(1) of the
Code of Civil Procedure, 1908 from which it is clear that
the statement of material facts ought not to contain the
evidence by which they are proved. Cl. (b) of sub-s. (1) of
s. 83 states that an
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704
election petitioner must set forth full particulars of any
corrupt practice on which he challenges the election of the
returned candidate. This clause is based on O VI, r. 4 of
the Code and the High Court has ample power while trying an
election petition to direct further and better particulars
as to the nature of the claim or defence under O.VI, r.5.
The word ’material’ in cl. (a) means facts necessary for the
purpose of formulating a complete cause of action; and if
any one material fact is omitted, the statement or plaint is
bad; it is liable to be struck out. The function of
’particulars’ in cl. (b) is quite different; the use of
particulars is intended to meet a further and quite separate
requirement of pleading imposed in fairness and justice to
the returned candidate. The function of ’particulars’ is to
fill in the picture of the election-petitioner’s cause of
action with information sufficiently detailed to put the
returned candidate on his guard as to the case he has to
meet and to enable him to prepare for trial in a case where
his election is challenged on the ground of any corrupt
practice. Under O.VI, r.5. ’particulars’ will be ordered of
the ’material facts’ on which the party pleading relies for
his claim or defence. If a party’s pleading is defective he
can also seek leave to alter and amend his own defective
pleading under O.VI, r.17. There is no express rule
providing for the consequence of a party failing to deliver
’particulars’ required by order of the Court but the
decisions are to the effect that either by the order calling
for particulars or by a later order the court can direct the
claim or defence to be struck out under O.VI, r.16. [724B;
723 H; 724 C-F; 726 C-E; 724 G-H; 725 A]
In the instant case the question whether the order
passed by the High Court could be justified under O.VI, r.16
would depend upon whether or not the election petition was
in conformity with the requirements of s.83. A preliminary
objection that the election petition does not contain a
concise statement of material facts on which the petitioner
relies is but a plea in the nature of demurrer and in
deciding the question the court had to assume for this
purpose that the averments contained in the petition were
true. Although the High Court observed that a question of
this nature had to be decided on a consideration of the
averments in the election petition alone, it later on made
certain observations which tend to show that the allegations
in the written statement of the respondent were very much in
its mind. It is no part of the statement of an election-
petitioner to anticipate the defence and to state what he
would have to say in answer to it. The High Court cast on
the appellant the burden of disclosing facts not within his
knowledge. This approach was unwarranted. The High Court was
not justified in directing that the averments in paragraphs,
4 to 18 of the petition be deleted on the ground that there
was non-disclosure of material facts sufficient to give rise
to a cause of action under s. 100(1)(d)(iv). It is not clear
from the order whether the High Court proceeded to act under
O.VII, r. 1 1 (a) or under O.VII, r. 16. It could not have
acted under O. VII, r. 1 1 (a) as, under that rule, when it
is found that the plaint discloses no cause of action, it is
obligatory to reject the plaint as a whole and not any
particular portion thereof. The High Court’s Order cannot
also be sustained under O.VI, r.16 because there was no
finding that the averments in paragraphs 4 to 18 were either
unnecessary, frivolous or vexatious, or were such as may
tend to prejudice, embarrass or delay the fair trial of the
election, or were such as to constitute an abuse of the
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process of the court. [723C; 721H; 722 A-B; 724 B; 721C; 719
G-H; 720 A-B; E-E]
705
Bruce v. Odhams Press Ltd. [1936] 1 K.D. 697 and Samant
N. Balakrishan v. George Fernandez & Ors., [1969] 3 S.C.R.
603, referred to.
(b) The contention that the High Court had no power to
direct further and better particulars under O.VI, r.5 cannot
be accepted. Sub-s. (1) of s.87 enacts that the trial of an
election petition shall be, as nearly as may be, in
accordance with the procedure applicable under the Code of
Civil Procedure, 1908 to the trial of suits, subject to the
provisions of the Act and of any rules made thereunder.
There are no express provisions in the Act or in the rules
made thereunder to deal with a situation like the one
presented in the instant case. The provisions of the Code
accordingly must apply in such a case as provided by sub-
s.(1) of s 87. That being so, the provisions of O.VI which
are integral part of the Code come into play except to the
extent modified by sub-s. (5) of s. 86. [727 A-B; 726 E-G]
Hari Vishnu Kamath v. The Election Tribunal & Anr., AIR
[1958] M.P. 168; distinguished.
Bhikaji Keshao Joshi & Anr. v. Brijlal Nandlal Joshi &
Ors., [1955] 2 S.C.R. 18. referred to.
2. The High Court was in error in holding that the
Election Symbols (Reservation and Allotment) Order, 1968 was
not an order made under the Representation of the People
Act, 1951. The Act is a law made by Parliament under Art.
327 of the Constitution to provide for conduct of elections
and the Conduct of Elections Rules, 1961 are rules framed by
the Central Government under s. 169 in consultation with the
Election Commission for regulating the mode of holding
elections. Rule 5 requires the Election Commission to
specify the symbols that may be chosen by candidates and the
restrictions to which their choice shall be subjected. Rule
10 provides for allotment of symbols to contesting
candidates by the returning officer subject to any general
or special directions issued in that behalf by the Election
Commission. By virtue of Art. 324 of the Constitution the
authority to conduct all elections to Parliament and State
Legislatures is vested in the Election Commission. The
Symbols Order has been issued by the Election Commission in
exercise of its powers under Art. 324 read with s. 5 and 10.
The primary object of the Symbol Order is to provide for
specification, reservation, choice and allotment of symbols
at elections in parliamentary and assembly constituencies.
It is a matter of common knowledge that elections in our
country are fought on the basis of symbols. It must but
logically follow as a necessary corollary that the Symbols
Order is an order made under the Act. Any other view would
be destructive of the very fabric of our system of holding
parliamentary and assembly constituency elections in the
country on the basis of adult suffrage. [718 B; 712 G; 713
B-C; 713 H; 714 A; 719 D-F]
Sadiq Ali & Anr. v. Election Commission of India &
Ors., [1972] 2 S.C.R. 318, referred to.
706
JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1106
(NCE) of 1981.
From the Judgment and Order dated the 22nd February,
1981 of the Punjab & Haryana High Court in Election Petition
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No. 3 of 1980.
D.V. Patel, A.S. Sohal and M.C. Dhingra for the
Appellant.
P.R. Mridul and R.S. Sodhi for the Respondent.
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave is from a judgment
and order of the Punjab & Haryana High Court dated February
2, 1981 by which it has directed the deletion of paragraphs
4 to 18 of the election petition filed by the appellant
under s. 81 read with s. 100 of the Representation of the
People Act, 1951 (’Act’ for short) calling in question the
election of the respondent Nachhattar Singh Gill to the
State Legislative Assembly of Punjab from the Moga Assembly
Constituency No. 99 on the ground that there is non-
disclosure of material facts on which he alleges that the
change of allotment of symbols by the Returning Officer,
Moga amounted to non-compliance with the provisions of the
Constitution, or of the Act, or any rules or orders made
thereunder so that the result of the election, insofar as it
concerns the respondent i.e. the returned candidate, is
materially affected.
At the last general elections to the State Legislative
Assembly of Punjab from Moga Assembly Constituency No. 99
the appellant contested as a candidate of the Lok Dal Party.
The last date for withdrawal of nomination papers was
notified as May 5, 1980. It appears that on that day Shri
Darbara Singh, President of the Punjab Pradesh Congress (I)
Committee, intimated the Returning Officer that Jagmohan
Singh had been nominated as the official candidate of the
Indian National Congress (I) to contest the election. There
is also on record a letter dated May 5, 1980 addressed by
Shri Darbara Singh, President, Punjab Pradesh Congress (I)
Committee, to the respondent stating that Jagmohan Singh had
been finally selected as the official candidate of the
Indian National Congress (I) from the 99-Moga Assembly
Constituency in his place, and he was advised to withdraw
his nomination paper.
707
It appears that the Indian National Congress (I)
changed its official candidate and finally selected the
respondent Nachhattar Singh Gill to be the official
candidate of its party. On May 7, 1980, the Returning
Officer, Moga Vidhan Sabha Assembly Constituency wrote a
letter to Jagmohan Singh stating that he had been directed
by the Secretary, Election Commission of India, by means of
a police radio message that the respondent was to be treated
as the finally selected candidate, and that party’s reserved
symbol ’hand’ be allotted to him. On May 8, 1980, the
Returning Officer, Moga Vidhan Sabha Assembly Constituency,
addressed a letter to all the candidates regarding the
change in the allotment of election symbols to the effect:
"According to the instructions from the Chief
Election Commissioner of India, certain change has been
effected in the election symbols of the candidates of
the election to the 99-Moga Legislative Assembly
Constituency which is as under:
S.No. Name of the Candidate Symbol Allotted
1. Shri Nachhattar Singh ’HAND’
2. Shri Jagmohan Singh "BOW & ARROW"
Accordingly, the necessary change of symbols was
effected in Form 7A, the list of contesting candidates. The
respondent fought the election on the reserved symbol of the
Indian National Congress (I) ’hand’ and secured 22,460
votes. As against this, the appellant, who was a candidate
of the Lok Dal party, secured 16,686 votes while the
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aforesaid Jagmohan Singh as an Independent candidate got 242
votes. The appellant was therefore defeated by the
respondent by a margin of 5,774 votes. The appellant filed
an election petition challenging the election of the
respondent under s. 100 (1) (d) (iv) read with s. 123 (7) of
the Act. The averments in paragraphs 4 to 18 related to the
change of symbols allotted to the respondent viz. ’hand’
instead of ’bow & arrow’ allotted to Jagmohan Singh.
Upon these facts, it is averred in paragraph 12 that
Jagmohan Singh alone be deemed to be set up as a candidate
by the Indian National Congress (I) within the meaning of
paragraph 13 of the Election Symbols (Reservation &
Allotment) Order, 1968 and not the respondent, and that the
candidates could withdraw their
708
nomination papers under s. 37 (1) before 3 p.m. on May 5,
1980 which was notified by the Election Commission to be the
last date for withdrawal of candidatures under s. 30 (c) and
thereafter the Returning Officer was enjoined under s. 38
(1) to publish in the prescribed Form 7A the names and
addresses of the contesting candidates together with the
symbols allotted to them. It is then averred in paragraph
14:
"On a perusal of para 18 of the Symbols Order it
is clear that the Election Commission has no power to
issue instructions and directions to the Returning
Officer of an Assembly Constituency to re-allot the
symbol once allotted to a contesting candidate under
sub-rule (4) of rule 10 of the Conduct of Elections
Rules and to allot the symbol reserved for a National
Party who has allotted the symbol to a candidate deemed
to be set up by that political party under para 13 of
the Symbols Order to any other person after the
publication of the list of the contesting candidates in
Form 7A."
In paragraph 15 after stating that Jagmohan Singh had
delivered to the Returning Officer a notice in writing as
provided for under paragraph 13 (b) from Shri Darbara Singh,
President, Punjab Pradesh Congress (I) Committee, who was
duly authorized by the Indian National Congress (I) to issue
such authorization as envisaged under paragraph 13 (c), the
appellant avers that the action of the Returning Officer in
recalling on May 8, 1980 the allotment of the symbol ’hand’
to Jagmohan Singh on May 5, 1980 and allotting the same to
the respondent, was in violation of the provisions of the
Act and the rules made thereunder, and the result of the
election, insofar as it concerns the returned candidate i.e.
the respondent, has been materially affected inasmuch as
because of the change of symbol Jagmohan Singh got only 242
votes while the respondent could not have secured more than
the same number if he had contested on the symbol ’bow &
arrow’ earlier allotted to him. If the respondent had not
been allotted the reserved symbol ’hand’ of the Indian
National Congress (I), he could not have won the election.
In paragraphs 16, 17 and 18, the appellant set out some
facts showing how the result of the election, insofar as it
concerns the respondent, has been materially affected by the
change of allotment of symbols.
709
The respondent filed a written statement controverting
the allegation that there was a breach of paragraph 13 of
the Symbols Order by the change of allotment of symbols made
by the Returning Officer in accordance with the instructions
issued by the Election Commission. It was pleaded, inter
alia, that the respondent had made a declaration in the
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nomination paper filed by him on May 2, 1980 to the effect
that he had been selected as a candidate of the Indian
National Congress (I); and that he had on May 5, 1980
furnished a notice to the Returning Officer signed and
issued by Shri Darbara Singh, President, Punjab Pradesh
Congress (I) Committee, in pursuance of paragraph 13 (b) of
the Symbols Order. It was alleged that after the respondent
had been adopted as a candidate by the Indian National
Congress (I), Jagmohan Singh made an effort to get that
party’s ticket for the seat and produced a letter from Shri
Darbara Singh dated May 5, 1980 before the Returning Officer
showing that he was the official candidate of the Indian
National Congress (I). When the respondent learnt of this
move on the part of Jagmohan Singh, he met the President of
the Indian National Congress (I) at New Delhi on the morning
of May 5, 1980 and apprised her of the situation and was
informed that he had been finally selected as the party
candidate and there was no question of a change.
It is further averred that a communication was sent by
Shri Buta Singh on May 5, 1980 to the Chief Election
Officer, Punjab, Chandigarh and the Returning Officer, 99-
Moga Assembly Constituency, in supersession of all earlier
communications with regard to the Assembly Constituency,
stating that the respondent was the official candidate of
the Indian National Congress (I) and that the party’s symbol
’hand’ be allotted to him. A letter to this effect was also
delivered by Smt. G. Brar, Member of Parliament to the
Election Commission on the morning of May 5, 1980.
Thereafter, Shri Ganesan, Secretary to the Election
Commission, got in touch with the Chief Electoral Officer,
Chandigarh and informed him that the respondent was the
official candidate of the Indian National Congress (I).
There was a mention of this talk in the telex message sent
by the Secretary to the Returning Officer, Moga, with copy
to the Chief Electoral Officer, Punjab on May 5, 1980.
A preliminary objection was raised on behalf of the
respondent that the averments in paragraphs 4 to 18 as well
as paragraphs 19A
710
and 20, with which we are not concerned, do not disclose any
cause of action and therefore they are liable to be deleted
under Order VII, r. 11 (a) of the Code of Civil Procedure.
The High Court accordingly framed a preliminary issue to the
effect :
"Whether paragraphs 4 to 18, 19 (a) and 20 of the
election petition have to be deleted because the
averments made therein do not make out any case for
setting aside the election under s. 100 (1) (d) (iv)
and s. 123 (7) of the Representation of the People
Act."
By the judgment under appeal, the High Court sustained
the preliminary objection and directed that the averments in
paragraphs 4 to 18 be struck out from the election petition.
In dealing with the question, the High Court observed that
the preliminary issue had to be decided upon a consideration
of the pleas in the election petition and nothing averred in
the written statement could be taken into account.
On a consideration of the averments in paragraphs 4 to
18 the High Court felt that the use of the word
"instructions" in Annexure P-I, the letter addressed by the
Returning Officer, Moga Assembly Constituency on May 8, 1980
to all the candidates intimating about the change in the
allotment of election symbol to the respondent, cannot lead
to an inference of their being issued under paragraph 18 of
the Symbols Order. It then observes :
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"The petitioner has not at all disclosed in the
election petition as to what was exactly the order of
the Election Commission behind the instructions in
Annexure P-I, and how it was in contravention of any of
the provisions of the Act, or rule, or order made
thereunder."
It was urged on behalf of the respondent that before
filing the election petition it was incumbent on the
appellant to find out the entire circumstances in which the
Election Commission passed the order as to the change of
symbols and consequently issued instructions to the
Returning Officer in that behalf. The High Court accepted
the contention and observed that "in the absence of material
circumstances, non-compliance with the provisions of r. 10
(5) of the Conduct of Election Rules, 1961, or of paragraph
13 of the Election Symbols (Reservation & Allotment) Order,
1968 could not be spelled out," Further, the High Court was
of the view that
711
the Symbols Order having been made by the Election
Commission in exercise of the powers under Art. 324 of the
Constitution read with Rs. 5 and 10 of the Conduct of
Elections Rules, it cannot be said to be an order made under
the Act and therefore the provisions of s. 100 (1) (d) (iv)
of the Act were not attracted. Accordingly, the High Court
directed that paragraphs 4 to 18 of the election petition be
deleted.
It is argued by learned counsel for the appellant that
under sub-s. (1) of s. 83 of the Act, an election petition
must contain a concise statement of the material facts on
which the election petitioner relies; the words "material
facts" mean the facts necessary to formulate a complete
cause of action. It is urged that all the material facts
have been stated in the election petition to show that
change of allotment of symbols by the Returning Officer, in
compliance with the directions of the Election Commission,
was in breach of r. 10 (5) and paragraph 13 of the Symbols
Order which gave rise to a cause of action under s. 100 (1)
(d) (iv) of the Act. According to the learned counsel, the
appellant had disclosed all the facts within his knowledge
and it was no part of his duty to anticipate the defence and
plead facts in relation thereto. It is further urged that
the High Court was in error in holding that the breach of r.
10 (5), paragraphs 13 and 18 of the Symbols Order does not
constitute non-compliance with any provisions of the
Constitution, or the Act, or any rules or orders made
thereunder.
In reply, learned counsel for the respondent submitted
that the Symbols Order was not an order made under the Act
and therefore the change of allotment of symbols was a
matter which fell outside the purview of s. 100 (1) (d) (iv)
of the Act, It was urged that there was no breach of r. 10
(5) of the Conduct of Elections Rules or of paragraphs 13
and 18 of the Symbols Order inasmuch as the respondent was
the official candidate set up by Indian National Congress
(I) and he had in the nomination paper filed by him before
the Returning Officer on May 3, 1980 made a declaration to
the effect and had also indicated his choice of that party’s
reserved symbol ’hand’. Our attention was drawn to certain
averments in the written statement which tend to show that
the respondent was, in fact, the candidate sponsored by the
Indian National Congress (I). Learned counsel made a
grievance that the appellant had deliberately suppressed
this fact in paragraph 7 of the election petition. Further,
he urged that it was incumbent on the appellant to find out
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the
712
circumstances in which the Election Commission issued the
necessary instructions as to the change of symbols under
paragraph 18 of the Symbols order. It was contended that the
High Court was therefore justified in striking out
paragraphs 4 to 18 of the election petition on the ground
that they do not disclose any cause of action. Further it
was contended that the High Court had no power to order
further and better particulars under Order VI, r. 5 of the
Code of Civil Procedure. In support of the contention,
reliance was placed on Hari Vishnu Kamath v. The Election
Tribunal, Jabalpur & Anr. (1)
In this appeal, two questions arise. First of these is
whether any breach of paragraph 13 or 18 of the Symbols
Order amounts to non-compliance with the provisions of the
Constitution, or the Act, or any rules or orders made under
the Act and therefore the change of allotment of symbols by
the Returning Officer in compliance with the directions of
the Election Commission was a matter which fell within the
purview of s. 100 (1) (d) (iv) of the Act. The second is
whether it was incumbent on the appellant before filing the
election petition to find out the circumstances in which,
and the reasons for which, the Election Commission issued
necessary instructions under paragraph 18 of the Symbols
Order; and if so, whether failure to disclose such facts
amounts to non-disclosure of material facts i.e. an
incomplete cause of action under s. 100 (1) (d) (iv) of the
Act and therefore the averments in paragraphs 4 to 18 of the
election petition were liable to be struck out under Order
VI, r. 16 of the Code of Civil Procedure, 1908.
As to the first question, there can be no doubt
whatever that the Symbols Order is an order made under the
Act. Under Art. 324 of the Constitution, the
superintendence, direction and control of the preparation of
the electoral rolls for, and the conduct of, all elections
to Parliament and the Legislature of every State and of
elections to the offices of President and Vice-President
held under the Constitution, vests in the Election
Commission. The Act is a law made by Parliament under Art.
327 of the Constitution to provide for the conduct of
elections to the Houses of Parliament and to the House or
Houses of the Legislature of each State, the qualifications
and disqualifications for membership of those Houses, the
corrupt practices and other offences at or in connection
with
713
such elections and the decision of doubts and disputes
arising out of or in connection with such elections.
Sub-s. (1) of s. 169 of the Act provides that the
Central Government may, after consulting the Election
Commission, by notification in the Official Gazette, make
rules for carrying out the purposes of the Act. Sub-s. (2)
thereof provides that in particular, and without prejudice
to the generality of the foregoing power, the rules framed
by the Central Government under sub-s.(1) may provide for
all or any of the matters enumerated therein. In exercise of
the powers under s. 169 of the Act, the Central Government
made the Conduct of Elections Rules, 1961 for the purpose of
regulating the mode of holding elections to the Houses of
Parliament or to the House or either House of the
Legislature of every State. Rule 5 of the Conduct of
Elections Rules requires the Election Commission to specify
the symbols that may be chosen by candidates in
parliamentary and assembly elections and the restrictions to
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which that choice shall be subject, and it provides:
"5. Symbols for elections in parliamentary and
assembly constituencies-(1) The Election Commission
shall, by notification in the Gazette of India and in
the Official Gazette of each State, specify the symbols
that may be chosen by candidates at elections in
parliamentary or assembly constituencies and the
restrictions to which their choice shall be subject.
(2) Subject to any general or special direction
issued by the Election Commission either under sub-rule
(4) or sub-rule (5) of rule 10, where at any such
election, more nomination papers than one are delivered
by or on behalf of a candidate, the declaration as to
symbols made in the nomination paper first delivered,
and no other declaration as to symbols, shall be taken
into consideration under rule 10 even if that
nomination paper has been rejected".
Rule 10 provides for allotment of symbols to the contesting
candidates by the Returning Officer subject to any general
or special
714
directions issued in that behalf by the Election Commission.
It, insofar as relevant, reads as follows:
"10. Preparation of list of contesting candidates:
(1) xx xx xx
(2) xx xx xx
(3) xx xx xx
(4) At an election in a parliamentary or assembly
constituency, where a poll becomes necessary, the
returning officer shall consider the choice of
symbols expressed by the contesting candidates in
their nomination papers and shall, subject to any
general or special direction issued in this behalf
by the Election Commission-
(a) allot a different symbol to each contesting
candidate in conformity, as far as
practicable, with his choice; and
(b) if more contesting candidates than one have
indicated their preference for the same
symbol, decide by lot to which of such
candidates the symbol will be allotted.
(5) The allotment by the returning officer of any
symbol to a candidate shall be final except where
it is inconsistent with any directions issued by
the Election Commission in this behalf in which
case the Election Commission may revise the
allotment in such manner as it thinks fit."
The Election Symbols (Reservation & Allotment) Order,
1968 was issued by the Election Commission in exercise of
its powers under Art. 324 of the Constitution read with rs.
5 and 10 of the Conduct of Elections Rules, 1961 and all
other powers enabling in that behalf. The primary object and
purpose of the Symbols Order, as the long title and the
preamble show, is to provide for specification, reservation,
choice and allotment of symbols at elections in
parliamentary and assembly constituencies, for the
recognition of
715
political parties in relation thereto and for matters
connected there- with. The purpose and object of the Symbols
Order as well as the source of power under which the Order
was issued is brought out in the preamble which reads:
"Whereas the superintendence, direction and
control of all elections to Parliament and to the
Legislature of every State are vested by the
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Constitutution of India in the Election Commission of
India.
And, whereas it is necessary and expedient to
provide in the interests of purity of election to the
House of the People and the Legislative Assembly of
every State and in the interests of the conduct of such
elections in a fair and efficient manner, for the
specification, reservation, choice and allotment of
symbols for the recognition of political parties in
relation thereto and for matters connected therewith.
Now, therefore, in exercise of the powers
conferred by article 324 of the Constitution read with
rule 5 and rule 10 of the Conduct of Elections Rules,
1961, and all other powers enabling it in this behalf,
the Election Commission of India hereby makes the
following Order."
It would be apparent from the provisions of the Conduct
of Elections Rules, 1961 and the Election Symbols
(Reservation & Allotment) Order, 1968 that when elections
are imminent, allotment of symbols to candidates for
elections in parliamentary and assembly constituencies is
but an important stage of such elections. The provisions for
registration of political parties and their recognition as
National or State parties by the Commission are only for the
purpose of allotment, reservation and specification of
symbols at elections. The expression, "political party" is
defined in paragraph 2 (h) to mean "an association or body
of individuals of India registered with the Commission as a
political party under paragraph 3 and includes a political
party deemed to be registered with the Commission under the
proviso to sub-para (2) of that paragraph." Paragraph 3
provides for registration with the Commission of
associations and bodies of individuals as political parties
for the purposes of the Order and paragraph 4 provides for
allotment of symbols. Paragraph 5 deals with the
classification of
716
symbols. According to this paragraph, a ’reserved symbol’ is
a symbol reserved for a political party for exclusive use of
that party. A symbol other than the reserved symbol has been
described by the said paragraph to be a ’free symbol’.
Paragraph 6 provides for the classification of political
parties. The parties are either recognized political parties
or unrecognized political parties and it lays down the
conditions necessary for a political party to be treated as
a recognized political party. If a political party is
treated as a recognized political party in four or more
States in accordance with paragraph 6, it shall have the
status of a National party throughout the whole of India.
If, on the contrary, a political party is treated as a
recognized political party in less than four States, it
shall enjoy the status of a State party in the State or
States in which it is a recognized political party. We need
not dilate upon this aspect because it is not in dispute
that the Indian National Congress (I) and Lok Dal are both
National parties. Paragraph 8 regulates the manner of
allotment of symbols, and sub-para (I) and (3) which are
relevant for our purposes read:
"8. Choice of symbols by candidates of National
and State Parties and allotment thereof:
(1) A candidate set up by a National party at any
election in any constituency in India shall choose
and shall be allotted, the symbol reserved for
that party and no other symbol.
(2) xx xx xx
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(3) A reserved symbol shall not be chosen by, or
allotted to, any candidate in any constituency
other than a candidate set up by a National party
for whom such symbol has been reserved or a
candidate set up by a State party for whom such
symbol has been reserved in the State in which it
is a State party even if no candidate has been set
up by such National or State party in that
constituency."
Paragraphs 9 to 12 deal with certain restrictions on the
allotment of symbols, concessions to certain candidates as
well as choice of symbols for some categories of candidates
with which we are not concerned. Paragraph 13 specifies as
to when a candidate shall be
717
deemed to be set up as a candidate by a political party and
reads as under:
"13 When a candidate shall be deemed to be set up
by a political party-For the purpose of this Order a
candidate shall be deemed to be set up by a political
party if, and only if,
(a) the candidate has made a declaration to this
effect in his nomination paper;
(b) a notice in writing to that effect has, not later
than 3 P.M. on the last day of withdrawal of
candidatures, been delivered to the returning
officer of the constituency; and
(c) the said notice is signed by the president, the
secretary or any other office-bearer of the party
and the president, secretary or such other office-
bearer is authorised by the party to send such
notice and the name and specimen signature of the
president, the secretary or such other office-
bearer are communicated in advance to the
returning officer of the constituency and to the
Chief Electoral Officer of the State."
Paragraph 18 which is important for our purposes is in these
terms:
"18. Power of Commission to issue instructions and
directions-The Commission may issue instructions and
directions:
(a) for the clarification of any of the provisions of
this Order;
(b) for the removal of any difficulty which may arise
in relation to the implementation of any such
provisions; and
(c) in relation to any matter with respect to the
reservation and allotment of symbols and
recognition of political parties, for which this
order makes no
718
provision or makes insufficient provision, and
provision is in the opinion of the Commission
necessary for the smooth and orderly conduct of
elections."
In our judgment, the High Court was clearly in error in
holding that the Symbols Order was not an order made under
the Act and therefore the change of allotment of symbols by
the Returning Officer in compliance with the directions
issued by the Election Commission, even if it was in breach
of paragraph 13 thereof, did not amount to non-compliance
with the provisions of the Constitution, or the Act, or any
rules or orders made under the Act and therefore the matter
fell outside the ambit of s. 100 (1) (d) (iv) of the Act. It
is however urged by learned counsel for the respondent that
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the Symbols Order was not an order made under the Act.
Emphasis is laid on the words "under the Act" occurring in
s. 100 (1) (d) (iv) of the Act. We are afraid, the argument
is too tenuous to be accepted. The Symbols Order was issued
by the Election Commission under Art. 324 of the
Constitution in exercise of its undoubted powers of
superintendence, direction and control of the conduct of all
elections to Parliament and Legislature of every State. It
is also relatable to rules 5 and 10 of the Conduct of
Elections Rules framed by the Central Government in exercise
of their powers under s. 169 of the Act. Rule 4 of the
Conduct of Elections Rules provides that every nomination
paper presented under s. 33 of the Act shall be in Forms 2A
to 2E, as may be appropriate. The Forms 2A and 2B require
the candidate to choose symbol. Under r. 5 (1) the Election
Commission by notification may specify the symbols that may
be chosen by candidates at elections to parliamentary and
assembly constituencies. Under r. 10 (4) the Returning
Officer shall consider the choice of symbols expressed by
contesting candidates and "subject to any general or special
direction issued by the Election Commission" allot different
symbols to different candidates. The allotment of symbols by
the Returning Officer is final under sub-r. (5) of r. 10
except where it is inconsistent with any directions issued
by the Election Commission in that behalf in which case the
Election Commission may revise the allotment in such manner
as it thinks fit.
In Sadiq Ali & Anr. v. Election Commission of India &
Ors.(1) Khanna, J. speaking for the court, after setting out
the scheme of
719
the Symbols Order, explained the reasons which led to the
introduction of symbols, in these words:
"It is well known that overwhelming majority of
the electorate are illiterate. It was realised that in
view of the handicap of illiteracy, it might not be
possible for the illiterate voters to cast their votes
in favour of the candidate of their choice unless there
was some pictorial representation on the ballot paper
itself whereby such voters might identify the
candidate of their choice. Symbols were accordingly
brought into use. Symbols or emblems are not a peculiar
feature of election law of India. In some countries,
details in the form of letters of alphabet or numbers
are added against the name of each candidate while in
others, resort is made to symbols or emblems. The
object is to ensure that the process of election is as
genuine and fair as possible and that no elector should
suffer from any handicap in casting his vote in favour
of a candidate of his choice."
The Symbols Order made by the Election Commission in
exercise of its power under Art 324 of the Constitution read
with rs. 5 and 10 of the Conduct of Elections Rules and all
other powers enabling it in that behalf, are in the nature
of general directions issued by the Election Commission to
regulate the mode of allotment of symbols to the contesting
candidates. It is a matter of common knowledge that
elections in our country are fought on the basis of symbols.
It must but logically follow as a necessary corollary that
the Symbols Order is an order made under the Act. Any other
view would be destructive of the very fabric of our system
of holding parliamentary and assembly constituency elections
in the country on the basis of adult suffrage.
As to the second question, there can be no doubt
whatever that the High Court was not justified in directing
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that the averments in paragraphs 4 to 18 of the election
petition be deleted on the ground that there was non-
disclosure of material facts sufficient to give rise to a
cause of action under s. 100 (1) (d) (iv) of the Act.
The order passed by the High Court directing the
striking out of paragraphs 4 to 18 of the election petition
can hardly be supported. It is not clear from the order that
the High Court
720
proceeded to act under Order VII, r. II (a) or under Order
VI, r. 16 of the Code in passing the order that it did. It
is rightly conceded that the High Court could not have acted
under Order VII, r. II (a) of the Code. Where the plaint
discloses no cause of action it is obligatory upon the Court
to reject the plaint as a whole under Order VII, r. II (a)
of the Code, but the rule does not justify the rejection of
any particular portion of a plaint: Mulla’s Civil Procedure
Code, 13th Edn., Vol. 1, p. 755. It is therefore necessary
to consider whether the order passed by the High Court could
be justified under order VI, r. 16 of the Code, which reads
as follows:
"16.Striking out pleadings-The Court may at any
stage of the proceedings order to be struck out or
amended any matter in any pleading-
(a) which may be unnecessary, scandalous,
frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or
delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of
the Court."
The order passed by the High Court directing that
paragraphs 4 to 18 of the election petition be struck out
cannot be sustained on the terms of Order VI, r. 16 of the
Code. There is no finding reached by the High Court that the
averments in paragraphs 4 to 18 of the election petition are
either unnecessary, frivolous or vexatious, or that they are
such as may tend to prejudice, embarrass or delay the fair
trial of the election, nor is there any finding that the
averments therein are such as to constitute an abuse of the
process of the court. That being so, the High Court had no
power to direct the striking out of paragraphs 4 to 18 of
the election petition.
It is submitted by learned counsel for the respondent
that there is non-disclosure of the necessary facts by the
appellant in paragraphs 4 to 18 of the election petition to
show as to how the order of the Election Commission was
illegal, or as to how there was non-compliance with the
provisions of the Constitution, or the Act, or any rules or
orders made under the Act within the meaning of s. 100 (1)
(d) (iv) of the Act. He urges that it was incumbent on the
appellant to
721
find out the circumstances in which the Election Commission
issued the necessary instructions as to the change of
symbols under paragraph 18 of the Symbols Order. It is
contended that the High Court was therefore justified in
striking out paragraphs 4 to 18 of the election petition on
the ground that they do not disclose any cause of action
inasmuch as the averments therein do not constitute a plea
of non-compliance with the provisions of the Constitution,
or the Act, or any rules or orders made under the Act so as
to attract s. 100 (1) (d) (iv) of the Act. These
contentions, in our opinion, cannot be given effect to.
The approach of the High Court in dealing with the
preliminary issue appears to be wholly unwarranted. In
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dealing with the question whether or not paragraphs 4 to 18
of the election petition disclose any cause of action, the
High Court has cast on the appellant the burden of
disclosing facts not within his knowledge. It speaks of his
duty to produce evidence prima facie to show that the change
of allotment of symbols by the Returning Officer to the
respondent was in contravention of r. 10 (5) of the Conduct
of Elections Rules read with paragraph 13 of the Symbols
Order. It then observes that the onus was on him to
establish as to how and under what circumstances the
Election Commission issued the instructions in question. It
accepts the contention of the respondent that it was
incumbent on the appellant to set himself on an inquiry into
these circumstances. According to the High Court, failure to
disclose the circumstances which led the Election Commission
to issue directions or instructions to the Returning Officer
to effect a change in the allotment of symbols, amounts to
non-disclosure of material facts which must entail in
deletion of the averments in paragraphs 4 to 18 by which the
appellant seeks relief under s. 100 (1) (d) (iv) of the Act.
We are afraid, the High Court has viewed the matter from a
wrong perspective.
We find it difficult to comprehend the reasoning
adopted by the High Court that there was non-disclosure of
material facts. True it is that it begins the judgment by
observing that a question of this nature, as it must be so,
has to be decided on a consideration of the averments in the
election petition alone, and the allegations in the written
statement cannot be taken into account. A preliminary
objection that the election petition is not in conformity
with s. 83 (1) (a) of the Act i.e. it does not contain the
concise statement of the material facts on which the
petitioner relies is but a plea in the
722
nature of demurrer and in deciding the question the Court
has to assume for this purpose that the averments contained
in the election petition are true. Unfortunately, while
deciding the preliminary issue the High Court has made
certain observations which tend to show that the allegations
in the written statement were very much present in its mind.
In repelling the contention of the appellant that the
instructions issued by the Election Commission for re-
allotment of symbols were referable to paragraph 18 of the
Symbols Order, the High Court observes:
"Upon the use of word "instructions" in Annexure
P-1, it was sough to be inferred that the issuance
thereof could only be within the ambit of para 18 of
the Symbols Order, since the change of Symbols was
outside the ambit of para 18 therefore the said change
was illegal. The argument has not impressed me,
inasmuch as in the normal course of things the Election
Commission, having passed an order, issues
instructions, for its compliance. As such, the use of
the "instructions" in any communication cannot lead to
an inference of their being issued under the said para
18 of the Symbols Order."
It then goes on to observe:
"The petitioner has not at all disclosed in the
election petition as to what was exactly the order of
the Election Commission behind the instructions in
Annexure P-1 and how it was in contravention of the
provisions of the aforesaid Act or the rules or order
made thereunder."
It proceeds to say:
"Thus, the argument of the learned counsel for the
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returned candidate proceeded that before filing the
election petition it was incumbent upon the petitioner
to find out the entire circumstances in which the
Election Commission passed the order as to the change
of symbols and consequently issued instructions vide
Annexure P-1 to the Returning Officer."
In coming to the conclusion that there was non-
disclosure of material facts, the High Court observes:
"In the complete absence of the material
circumstances, non-compliance with the aforesaid
provisions could not be
723
spelt out and hence in the election petition none of
the said provisions has been specifically sought.... .
I direct that paras 4 to 18 of the election petition be
deleted."
These observations made by the High Court proceed on a
misconception of law.
It is therefore necessary to consider whether the order
passed by the High Court could be justified under Order VI,
r. 16 of the Code. That would depend on whether or not the
election petition is in conformity with the requirements of
s. 83 of the Act, which reads as follows:
"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 from
in support of the allegation of such corrupt
practice and the particulars thereof.
(2) Any schedule of annexure to the petition shall
also be signed by the petitioner and verified in
the same manner as the petition."
Cl. (a) of s. 83 is based on the provisions of Order VI,
r.2(1) of the Code which states the basic or cardinal rules
of pleadings and is in the following terms:
724
"2. Pleading to state material facts and not evidence-
Every pleading shall contain, and contain only, a
statement in a concise form of the material facts on
which the party pleading relies for his claim in
defence, as the case may be, but not the evidence by
which they are to be proved."
Cl. (a) of sub-s. (1) of s. 83 of the Act enjoins that an
election petition shall contain a concise statement of the
material facts on which the election petitioner relies. It
is no part of the statement of claim of an election
petitioner to anticipate the defence and to state what he
would have to say in answer to it. Cl. (b) of sub-s.(1) of
s. 83 interdicts that an election petitioner must set forth
full particulars of any corrupt practice on which he
challenges the election of the returned candidate under s.
123(7) including as full statement as possible of the names
of the parties alleged to have committed such corrupt
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practice and the date and place of the commission of each
such practice. It is more or less based on Order VI, r.4 of
the Code which reads:
"4. In all cases in which the party pleading relies on
any misrepresentation, fraud, breach of trust, wilful
default, or undue influence, and in all other cases in
which particulars may be necessary beyond such as are
exemplified in the forms aforesaid, particulars (with
dates and items if necessary) shall be stated in the
pleading."
The High Court has ample power while trying an election
petition to direct further and better particulars as to the
nature of the claim or defence under Order VI, r. 5 of the
Code which reads:
"5. A further and better statement of the nature of the
claim or defence, or further and better particulars of
any matter stated in an pleading may in all cases be
ordered, upon such terms, as to costs and otherwise, as
may be just."
Under Order VI, r.5, particulars will be ordered of the
material facts on which the party pleading relies for his
claim or defence. If a party’s pleading is defective he can
also seek leave to alter and amend his own defective
pleading under Order VI, r.17. There is no express rule
providing for the consequence of a party failing to deliver
particulars required by order of Court. but the decisions
are
725
to the effect that either by the order calling for
particulars or by a later order the Court can direct the
claim or defence to be struck out under Order VI, r. 16 of
the Code.
There is distinction between "material facts" and
"particulars" The word "material facts" show that the facts
necessary to formulate a complete cause of action must be
stated. Omission of a single material fact leads to an
incomplete cause of action and the statement or plaint
becomes bad. The distinction which has been made between
"material facts" and "particulars" was brought out by Scott,
L.J. in Bruce v. Odhams Press Ltd. (1) in the following
passage:
"The cardinal provision in r. 4 is that the
statement of claim must state the material facts. The
word "material" means necessary for the purpose of
formulating a complete cause of action; and if any one
"material" fact is omitted, the statement of claim is
bad: it is "demurrable" in the old phraseology, and in
the new is liable to be "struck out" under O. xxv, r.
4; See Philips v. Philips (2): or "a further and better
statement" of claim may be ordered under O.XIX r. 7.
The function of "particulars" under r. 6 is quite
different. They are not to be used in order to fill
material gaps in a demurrable statement of claim-gaps
which ought to have been filled by appropriate
statements of the various material facts which together
constitute the plaintiff’s cause of action. The use of
particulars is intended to meet a further and quite
separate requirement of pleading, imposed in fairness
and justice to the defendant. Their function is to fill
in the picture of the plaintiff’s cause of action with
information sufficiently detailed to put the defendant
on his guard as to the case he has to meet and to
enable him to prepare for trial."
The dictum of Scott, L.J. in Bruce’s case, supra, has been
quoted with approval by this Court in Samant N. Balakrishan
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v. George Fernandez & Ors.(3) and while observing that the
requirements of
726
s. 83 are mandatory, the distinction between material facts
and particulars was brought out in the following terms:
"The word "material" shows that the facts
necessary to formulate a complete cause of action must
be stated. Omission of a single material fact leads to
an incomplete cause of action and the statement of
claim becomes bad. The function of particulars is to
present as full a picture of the cause of action with
such further information in detail as to make the
opposite party understand the case he will have to
meet."
Thus, the word "material" in material facts under s. 83 of
the Act means facts necessary for the purpose of formulating
a complete cause of action; and if any one "material" fact
is omitted, the statement or plaint is bad; it is liable to
be struck out. The function of "particulars" is quite
different, the use of particulars is intended to meet a
further and quite separate requirement of pleading imposed
in fairness and justice to the returned candidate. Their
function is to fill in the picture of the election
petitioner’s cause of action with information sufficiently
detailed to put the returned candidate on his guard as to
the case he has to meet and to enable him to prepare for
trial in a case where his election is challenged on the
ground of any corrupt practice.
Sub-s. (1) of s. 87 of the Act enacts that the trial of
an election petition shall be, as nearly as may be, in
accordance with the procedure applicable under the Code of
Civil Procedure, 1908 to the trial of suits, subject to the
provisions of the Act and of any rules made thereunder.
There are no express provisions in the Act or in the rules
made thereunder as contemplated under sub-s. (1) of s. 87 of
the Act to deal with the situation like the present. The
provisions of the Code accordingly must apply in such a case
as provided by sub-s. (1) of s. 87 of the Act. That being
so, the provisions of Order VI which are integral part of
the Code come into play except to the extent modified by
sub-s. (5) of s. 86 of the Act.
Learned counsel for the respondent however contends
that the High Court had no power to direct further and
better particulars under Order VI, r. 5 of the Code. In
support of the contention, reliance is placed on the
decision of the Madhya Pradesh High
727
Court in Hari Vishnu Kamath v. The Election Tribunal & Anr.
(1) It is urged that the particulars given in the petition
were insufficient to formulate a cause of action and,
therefore the High Court had the power to strike out the
pleadings under Order VI, r. 16 of the Code. The contention
cannot, in our opinion, be accepted. In Bhikaji Keshao Joshi
& Anr. v. Brijlal Nandlal Joshi & Ors, (2) the Court
recognized a power in the Tribunal to direct particulars of
a corrupt practice and to strike out the pleadings in a case
where there was a default in compliance with a previous
order directing particulars. Thereafter, there was a change
brought about in law by Act 27 of 1956. Sub-s. (5) of s. 90
introduced by that Act recast the old sub-s. (3) of s. 83
and took away the power of the Election Tribunal to order
further and better particulars of corrupt practice while
retaining the power to allow amendment or amplification
though the language used was slightly different.
The decision of the Madhya Pradesh High Court in Hari
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Vishnu Kamath’s case, (supra) on which reliance is placed is
inapplicable. A question arose whether the Election Tribunal
was justified in directing furnishing of better particulars
of certain corrupt practices. There, the High Court was
dealing with the Act as it stood after its amendment by Act
27 of 1956. In view of the change in law brought about, the
High Court held that the rule as laid down by this Court in
Bhikaji Keshao Joshi’s case, (supra) was no longer
applicable. After the repeal of sub-s. (3) of s. 83 of the
Act by Act 27 of 1956, which introduced in its place sub-s.
(5) of s. 90, conferring power on the Tribunal to allow
amendment or amplification of particulars, the High Court
held that the word "allowed" meant allowed on an application
and therefore there was no power left with the Tribunal
under sub-s. (5) of s. 90 to direct the furnishing of better
particulars and that there would equally be no power to
strike out the pleadings for default of furnishing
particulars, if directed. It was however, held that it was
open to the Tribunal to find that the particulars given in a
petition were insufficient for trial. It is evident that the
decision of the High Court turned on the provisions of sub-
s. (5) of s. 90, which is identical to sub-s. (5) of s. 86
of the Act, but both these provisions relate to allowing an
amendment of the election petition subject to such terms as
to costs or otherwise with a view to furnish the particulars
of any corrupt practice. The decision of the
728
Madhya Pradesh High Court in Hari Vishnu Kamath’s case,
(supra) is therefore distinguishable.
It must accordingly be held that the High Court was not
justified in striking out paragraphs 4 to 18 of the election
petition acting presumably under Order VI, r. 16 of the Code
of Civil Procedure, 1908 on the ground that the facts stated
therein were not sufficient to formulate a complete cause of
action under s. 100(1) (d)(iv) of the Representation of the
People Act, 1951 i.e. due to non-disclosure of material
facts.
In the result, the appeal succeeds and is allowed with
costs. The judgment of the High Court striking out the
averments in paragraphs 4 to 18 of the election petition is
set aside and it is directed to proceed with the trial
according to law.
H.L.C. Appeal allowed.
729