Neena Vikram Verma Vs Balmukund Singh Gautam .

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3840/2013 Arising Out of Special Leave Petition (Civil) No. 38061 of

2012

Smt. Neena Vikram Verma ... Appellant

Versus

Balmukund Singh Gautam & Ors. ... Respondent (s)

J U D G E M E N T

H.L. Gokhale J.

Leave Granted.

2. This petition for Special Leave seeks to challenge the

order dated 5.12.2012 passed by a learned Single Judge of the

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Madhya Pradesh High Court (Bench at Indore) allowing the

application filed by the first respondent under Order 6 Rule 16 of

Code of Civil Procedure (CPC) being I.A No. 7248/2012 for striking off

certain pleadings from the Recrimination Petition filed by the

Appellant herein.

Facts leading to this petition are this wise:-

3. The General Elections to the Madhya Pradesh Legislative

Assembly were notified by the Election Commission of India on

14.10.2008 and were held on 27.11.2008. The appellant herein

contested the election from 201-Dhar (General) Constituency. She

was declared elected on 9.12.2008 defeating the first respondent by

one vote.

4. The respondent No. 1 filed Election Petition bearing No. 11

of 2009 before the High Court of Madhya Pradesh (Bench at Indore),

challenging the election of the appellant on the ground of improper

reception, refusal and rejection of votes under the provisions of

Representation of Peoples Act, 1951 (R.P. Act, 1951 in short). This

was principally on the basis that the counting of the postal ballot

was done in violation of Rule 63 of the Conduct of Elections Rules,

1961, to the benefit of the appellant.

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5. The appellant in turn filed a Recrimination Petition under

Section 97 of the R.P. Act, 1951 within the time provided therefor,

principally raising two grounds:

(a) paragraph 3 of the Recrimination Petition claimed that there

were several criminal cases pending against the 1st respondent

which he had not disclosed, and therefore his nomination was void

and he cannot be declared to be elected,

(b) paragraph 4 thereof contended that the first respondent had

indulged into various corrupt practices.

6. Respondent No.1 thereafter filed an application under

Order 7 Rule 11 of CPC being I.A No. 8166 of 2009 for rejection of

the Recrimination Petition on the ground that it did not disclose any

cause of action. This was apart from filing the reply on merits to the

Recrimination Petition. The appellant opposed I.A No. 8166 of 2009

by filing her reply. The High Court by its order dated 14.7.2011

allowed the said application, consequently leading to the dismissal

of the Recrimination Petition filed by the appellant.

7. The appellant challenged this order by filing SLP (C) No.

28031 of 2011 which was converted into Civil appeal No. 1554 of

2012. By a consent order dated 2.2.2012 passed by this Court on

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that appeal, the said order dated 14.7.2011 passed by the High

Court was set aside, and the Recrimination Petition was restored to

the file of the Election Petition No. 11 of 2009.

8. It so transpired that subsequently the High Court by its

judgment and order dated 19.10.2012 allowed the Election Petition

No. 11 of 2009, and set aside the election of the petitioner herein.

The High Court, therefore directed the Recrimination Petition to be

heard.

9. We may note at this stage that the appellant has filed a

statutory appeal against the judgment and order in the Election

Petition No.11 of 2009 under section 116 A of the R.P. Act, 1951,

which has been admitted by this Court on 8.11.2012. By virtue of an

interim order passed therein, this Court has permitted the appellant

to attend the Assembly, but without any right to cast vote and to

receive any emoluments.

10. In the meanwhile, respondent No. 1 filed another

application being I.A No. 7248 of 2012 on 1.11.2012 under Order 6

Rule 16 for striking off the pleadings in paragraph 3 and 4 of the

Recrimination Petition. Appellant opposed this application by filing a

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reply. This application has been allowed by the impugned order

which has led to the present Civil Appeal.

11. We may mention one more development. The appellant

has filed an application under Order 6 Rule 17 to incorporate some

material facts in her Recrimination Petition. That has been rejected

by the High Court by its order dated 23.11.2012, and the appellant

has filed a separate SLP against that order.

Submissions on behalf of the appellant:-

12. Mr. Ranjit Kumar and Ms. Pinki Anand, senior counsel

appearing for the appellant took us through the application under

Order 6 Rule 16 filed by the respondent No.1, and compared it with

the earlier application filed by him under Order 7 Rule 11. It was

submitted by them that the contents of the present application

under Order 6 Rule 16 were identical to those in the earlier

application filed under Order 7 Rule 11. Thus, it was pointed out

that paragraphs 1 to 9 of the application under Order 6 Rule 16 were

identical to paragraphs 8 (d), 8 (e), 8(f), 8 (h), 8(i), 8 (j), 8 (k), 8(l)

and 8 (m) respectively of the earlier application. These paragraphs

of the two applications specifically dealt with paragraphs 3 (A) to 3

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(G) and paragraphs

4 (A) to 4 (D) of the Recrimination Petition. Thus, if this application

under Order 6 Rule 16 is allowed, all the pleadings from paragraph 3

and 4 of the Recrimination Petition will be struck off. These paras

contained the main grounds of the Recrimination Petition, and if

these were struck off nothing will remain in the Recrimination

Petition. Mr. Ranjit Kumar, submitted that this new application is

nothing but an attempt to reagitate under a new garb the earlier

application under Order 7 Rule 11 which had been rejected. He

pointed out that the High Court’s order on the application under

Order 7 Rule 11 dismissing the Recrimination Petition had been set-

aside by this Court by consent, and the Recrimination Petition was

set down for hearing. Paragraph 3 and 4 of the Order of this Court

dated 2.2.2012 read as follows:-

“…… 3. In course of the hearing in light of the

discussion that took place, learned senior counsel for the parties agreed for the following order:

(i)The order dated July 14, 2011 passed by the High Court of Madhya Pradesh, Bench at Indore, is set aside.

(ii) The Recrimination Petition filed by the present appellant (returned candidate) under Section 97 of the Representation of the People Act, 1951 is restored to the file of the Election Petition No. 11 of 2009.

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(iii) The High Court is requested to hear and conclude the trial with regard to the challenge to the election of the returned candidate in Election Petition No. 11 of 2009-Balmukund Singh Gautam Vs. Smt. Neena Vikram Verma and others – as early as may be possible and in no case later than May 31, 2012.

iv) In case the High Court declares the election of the returned candidate to be void, the High Court shall then proceed with the consideration of the Recrimination Petition and conclude the enquiry in respect therof expeditiously and positively by August 31, 2012.

4. The parties shall fully co-operate with the High Court in expeditious conclusion of the trial and shall not seek unnecessary adjournments.

………………..”

13. Mr. Ranjit Kumar, therefore submitted that since the

Recrimination Petition has been restored to the file by an order of

this Court, it was expected that the submissions therein had to be

gone into and decided. This Hon’ble Court had passed its order on

2.2.2012 in terms of the agreement arrived at between the parties.

The application under Order 6 Rule 16 was filed on 1.11.2012 which

was 9 months after the said consent order. This was also in the

teeth of the direction by this Court to dispose of the Recrimination

Petition expeditiously, and in fact all parties had specifically agreed

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before this Court to fully cooperate with the High Court in

expeditious disposal.

Submissions on behalf of the respondent No.1:-

14. Mr. P.P. Rao and Mr. A.V. Savant, learned senior counsel

appeared for the respondent No. 1. Mr. Rao submitted that the

nature of an application under Order 6 Rule 16 was different from

the one under Order 7 Rule 11. Order 6 Rule 16 was to strike out

those pleadings which were unnecessary, scandalous, frivolous or

vexatious. As against that, Order 7 Rule 11 dealt with a situation

where a plaint did not disclose any cause of action. Mr. Rao

submitted that the Supreme Court Order dated 2.2.2012 did not bar

filing of the application under Order 6 Rule 16 CPC for striking off

unnecessary or scandalous pleadings. In support of his submission

that the scope of the two provisions was different, he relied upon

paragraph 18 of the judgment of this Court in Sopan Sukhdeo

Sable and Ors. Vs. Assistant Charity Commissioner and Ors.

reported in 2004 (3) SCC 137 which is to the following effect:-

“18. As noted supra, Order 7 Rule 11 does not justify rejection of any particular portion of the plaint. Order 6 Rule 16 of the Code is relevant in this regard. It deals with “striking out pleadings”. It has three clauses permitting the court at any

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stage of the proceeding to strike out or amend any matter in any pleading i.e. (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.”

15. Paragraph 3 of the Recrimination Petition was concerning

the alleged criminal activities on the part of the respondent No.1.

Appellant has contended in this paragraph that the respondent No.1

had not disclosed that he was accused of various offences, and this

non-disclosure was contrary to the requirement under Section 33A

of the R.P. Act, 1951. The apellant has therefore, submitted that if

the respondent No.1 was to be elected, the election would be void.

Mr. Rao, however, pointed out that this section requires the

candidate to furnish the information as to whether he is accused of

any offence which is punishable with imprisonment for two years or

more in a pending case, and in which a charge has been framed by

a competent court. The particulars given by the appellant did not

indicate that any charge had been framed against the respondent in

any of those cases.

16. With respect to the allegations of criminality it was

submitted that the election petition cannot be entertained, merely

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on the basis of general allegations of criminality unless a specific

case as required by Section 33A was made out. The following

observations of this Court from paragraph 8 in Jyoti Basu and Ors.

Vs. Debi Ghosal and Ors. reported in 1982 (1) SCC 691 were

pressed into service in that behalf:-

“8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down……..”

17. With respect to paragraph 4 (and its sub-paragraphs) of

the Recrimination Petition, Mr. Rao, submitted that this paragraph

was concerning the alleged corrupt practices on the part of the

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respondent No.1. Corrupt practice is a ground available to set-aside

the election under Section 100 (1) (d) (ii) of the R.P. Act, 1951. The

Recrimination Petition is like an Election Petition, and Section 83 (1)

(c) of the R.P. Act, 1951 requires that the Election Petition shall be

signed by the petitioner and verified in the manner laid down in the

CPC for the verification of pleadings. Over and above that, the

proviso to Section 83 (1) (c) lays down that where the petitioner

alleges any corrupt practice, the petition has to be accompanied by

an affidavit in the prescribed form in support of the allegation of

such corrupt practice and the particulars thereof. This affidavit has

to be as per form 25, as laid down in Rule 94A of the Conduct of

Election Rules, 1961. Mr. Rao, pointed out that in the present

matter the affidavit was not made as per these requirements. He

further pointed out that this submission had been specifically raised

in the affidavit of the respondent No. 1, and the same had not been

controverted by the petitioner.

18. It was then submitted that for seeking a declaration that

the election is void on the ground of corrupt practice under Section

100 (1) (d) (ii) of the Act, it was necessary to make out a prima facie

case as required by Section 100 (1) (d) that the result of the

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election, in so far as it concerns a returned candidate, has been

materially affected by the corrupt practice. That has not been

shown in the present matter. Paragraph 11 of the judgment of this

Court in Mangani Lal Mandal Vs. Bishnu Deo Bhandari reported

in 2012 (3) SCC 314 which is on sub-clause (iv) of Section 100 (1)

(d) was pressed into service in this behalf. It reads as follows:-

“11. A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does not result in invalidating the election of a returned candidate under Section 100(1)(d)(iv). The sine qua non for declaring the election of a returned candidate to be void on the ground under clause (iv) of Section 100(1)(d) is further proof of the fact that such breach or non- observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or non-observation or non- compliance with the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not render the election of a returned candidate void Section 100(1)(d)(iv). For the election petitioner to succeed on such ground viz. Section 100(1)(d)(iv), he has not only to plead and prove the ground but also that the result of the election insofar as it concerned the returned candidate has been materially affected. The view that we have taken finds support from the three decisions of this Court in: (1) Jabar Singh v. Genda Lal [AIR 1964 SC 1200]; (2) L.R. Shivaramagowda v. T.M. Chandrashekar [1999 (1) SCC 666]; and (3) Uma Ballav Rath v. Maheshwar Mohanty [1999 (3) SCC 357]”.

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19. The proposition that the verification of the petition or

Recrimination Petition has to be in the prescribed form or else the

matter cannot be gone into, was supported on the basis of the

decision of a bench of two Judges of this Court in P.A. Mohammed

Riyas Vs. M.K. Raghavan & Ors. reported in 2012 (5) SCC 511.

Paragraph 47 of this judgment reads as follows:-

“47. In our view, the objections taken by Mr P.P. Rao must succeed, since in the absence of proper verification as contemplated in Section 83, it cannot be said that the cause of action was complete. The consequences of Section 86 of the 1951 Act come into play immediately in view of sub-section (1) which relates to trial of election petitions and provides that the High Court shall dismiss the election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the 1951 Act. Although Section 83 has not been mentioned in sub-section (1) of Section 86, in the absence of proper verification, it must be held that the provisions of Section 81 had also not been fulfilled and the cause of action for the election petition remained incomplete. The petitioner had the opportunity of curing the defect, but it chose not to do so.”

20. Last but not the least, with respect to the argument that

the decision on these objections can wait till the end of the trial, the

following observations in paragraph 12 in Azhar Hussain Vs. Rajiv

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Gandhi reported in AIR 1986 SC 1253 were relied upon which

read as follows:-

12. Learned counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. ………..”

Rejoinder on behalf of the petitioner:-

21. The learned senior counsel Mr. Ranjit Kumar, pointed out

in the Rejoinder that Section 83(1) of the R.P. Act, 1951, required

that the Election Petition (and for that matter the Recrimination

Petition), shall contain a concise statement of the material facts

which are relied upon. In the instant case the grounds raised in the

Recrimination Petition were two-fold. Firstly, the criminality of the

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respondent, and secondly the corrupt practices in which the

respondent had indulged. As far as the aspect of criminality is

concerned, it was pointed that the Recrimination Petition is required

to be filed within 14 days from the date of commencement of the

trial as required under the proviso of Section 97 of the R.P. Act,

1951. Even so, within that period the petitioner has placed on

record the material facts in paragraph 3 of the Recrimination

Petition. In paragraph 3(B) thereof the particulars of the criminal

cases registered against respondent were given in a table. The

table contains the following details:-

SL .N o

Police Station/Cas e No.

Section Name of Accused Challan No.

1. Sadalpur/76 / 22-5-85

147, 148, 149, 323, 451 IPC

Balmukund s/o Ramdeosingh Gautam

48/2-6-1985

2. Pithampur/3 59/ 26.9.89

341, 294, 323 IPC Balmukund s/o Ramdeosingh Gautam alongwith one other accused

318/27-9-89

3. Pithampur/ 129/23-5-90

294, 323, 506 IPC Balmukund s/o Ramdeosingh Gautam

105/5-6-90

4. Pithampur/ 109/24-3-96

34 Excise Act Balmukund s/o Ramdeosingh Gautam alongwith two other accused

104/29-4-96

5. Pithampur/4 06/24-12-97

307, 147, 148, 149 of IPC

Balmukund s/o Ramdeosingh Gautam alongwith five other accused

107/18-4-98

6. Pithampur/ 365/34 IPC Balmukund s/o 1/18-3-2001

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70/12-3-01 Ramdeosingh Gautam alongwitho ne other accused

7. Pithampur/ 27/29-1- 2007

147/341 IPC Balmukund s/o Ramdeosingh Gautam alognwith one other accused

101/9-5- 2007

8. Pithampur/ 106/24-3-96

34 Excise Act Balmukund s/o Ramdeosingh Gautam alongwith two other accused

104/29-4-96

9. Sadalpur/ 32/2-3-96

34,36 Excise Act Balmukund s/o Ramdeosingh Gautam

92/27-6-96

10 .

Badnawar/ 258/21-8-96

34, 49 Excise Act Balmukund s/o Ramdeosingh Gautam

282/31-10- 96

11 .

Badnawar/ 259/21-8-96

34,49 Excise Act Balmukund s/o Ramdeosingh Gautam

283/31-10- 96

12 .

Indore Police Criminal Case No. 1241/01

34 (1) (2) Excise Act

Balmukund s/o Ramdeosingh Gautam

2001

13 .

Sadalpur/ 122/2-8- 1985

379 IPC, 247(7) Land Revenue Court

Balmukund s/o Ramdeosingh Gautam

118/1-10- 1986

14 .

Sadalpur/ 199/13-10- 86

147, 148, 452, 506 IPC

Balmukund s/o Ramdeosingh Gautam alongwith seven other accused

124/26-10- 1986

22. In paragraph 3(E), it was placed on record that the

respondent was declared as an absconded person in a criminal

proceeding by C.J.M Dhar in a Criminal Case No. 968/96. In

paragraph 3(F) it was pointed out that the petitioner’s name was

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registered as a listed Gunda in the year 2004, and the letter dated

12.1.2004 issued by S.P. Dhar to the Police Station Pithampur in that

behalf was enclosed. It was further pointed out that on 22.11.2012,

the petitioner had served a notice on the respondent under Order 12

Rule 4 of CPC to admit the facts. In the said notice, it was

specifically stated that the following criminal cases are registered

against him, in which charges have been framed, and the same are

punishable with more than 2 years imprisonment. This table reads

as follows:-

SL .N o

Crime No. Section Name of Accused Police Station

1. 76/22.5.85 147, 148, 149, 323, 451, IPC

Balmukund S/o Ramdeosingh Gautam

Sadalpur

2. 359/29.9.89 341, 394, 323 IPC Balmukund s/o Ramdeosingh Gautam

Pithampur

3. 129/23.5.90 293, 323, 506 IPC Balmukund S/o Ramdeosingh Gautam

Pithampur

4. 109/24.3.96 34 Excise Act Balmukund S/o Ramdeosingh Gautam

Pithampur

5. 406/24.12.9 7

307, 147, 148, IPC Balmukund S/o Ramdeosingh Gautam

Pithampur

6. 70/12.3.200 1

365, 34 IPC Balmukund S/o Ramdeosingh Gautam

Pithampur

7. 27/29.1.07 341, 147 IPC Balmukund S/o Ramdeosingh Gautam

Pithampur

8. 106/24.3.96 34 Excise Act Balmukund S/o Pithampur

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Ramdeosingh Gautam

9. 32/2.3.96 34, 36 Excise Act Balmukund S/o Ramdeosingh Gautam

Sadalpur

10 .

258/21.8.96 34, 49 Excise Act Balmukund S/o Ramdeosingh Gautam

Badnawar

11 .

259/21.8.96 34, 49 Excise Act Balmukund S/o Ramdeosingh Gautam

Badnawar

12 .

Indore Police Criminal Case No. 1241/01

31 (1) (2) Excise Act

Balmukund S/o Ramdeosingh Gautam

Indore Police Station

13 .

358/7.10.05 294, 323, 506 IPC Balmukund S/o Ramdeosingh Gautam

Pithampur

14 .

122/2.8.85 379 IPC and 247(7) MPLR Code

Balmukund S/o Ramdeosingh Gautam

Sadalpur

15 .

199/13.10.8 6

147, 148, 452, 506 IPC

Balmukund S/o Ramdeosingh Gautam

Sadalpur

16 .

358/7.10.05 294, 323, 506 IPC Balmukund S/o Ramdeosingh Gautam

Pithampur Distt. Dhar

17 .

38/03/ Excise Act Gujarat Balmukund S/o Ramdeosingh Gautam Declared Absconded

Dhanpur Distt. Dahopd Gujarat

18 .

358/7.10.05 294, 323, 506, IPC Balmukund S/o Ramdeosingh Gautam

Pithampur Distt. Dhar

19 .

38/03/ Excise Act Gujarat Balmukund S/o Ramdeosingh Gautam Declared Absconded

Dhanpur Distt. Dahod Gujarat

20 .

239/03 19, 1/54, 19/54- 65, 19/54(a) Excise Act Rajasthan

Balmukund S/o Ramdeosingh Gautam Declared Absconded

Bhilwara Rajasthan

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21 .

19/10 420, 181, 200 of IPC

Balmukund S/o Ramdeosingh Gautam

Plice Raoji Bazar, Indore

23. It was then pointed out that on 23.11.2013 the respondent

sought time before the learned Single Judge to file reply to this

notice to admit facts. On 4.12.2013, the learned Judge recorded

that even though the respondent had stated on 23.11.2012 that he

wished to file a reply, now he had decided to wait for the outcome of

the application under Order 6 Rule 16 of CPC and, if required, to file

a reply thereafter. Mr. Ranjit Kumar pointed out that this kind of

reply will mean that the documents are deemed to be admitted, in

view of the provision of Order 12 Rule 2-A of CPC. It was therefore,

submitted that the High Court could not have held that the

petitioner had not given the particulars in support of the allegations

of criminality, as required by Section 33A of the R.P. Act, 1951.

24. The second limb of the argument of Mr. Rao was that for

raising the ground of corrupt practice, full particulars of the corrupt

practice are required to be given under Section 83 (1) (b) of the R.P.

Act, 1951. Mr. Ranjit Kumar, pointed out that Section 83 (1) (b)

requires one to set forth full particulars of any corrupt practice,

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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 commission of each such practice. It was therefore pointed

out that in paragraph 4(A) of the Recrimination Petition it was

specifically pleaded that on 11.11.2008, at the instance of the

respondent his younger brother Rakesh Singh had threatened the

candidate of BSP namely Shri G.P. Saket, that if his nomination form

was not withdrawn he shall have to face dire consequences. It was

further pointed out that similar type of threat was given to the

election agent of the said candidate namely Shri Munnalal Diwan. A

letter dated 11.11.2008 sent to the Police Thana Pitampur was also

enclosed with the Recrimination Petition. In paragraph 4(C) it was

specifically pointed out that respondent was a liquor contractor, and

during the election period several cases were registered against him

and his associates/servants details of which were enclosed in an

Annexure. A news report in Dainik Agniban dated 5.11.2008 was

also enclosed, which stated that 700 boxes of illegal beer were

seized by the Alirajpur Police, and in that case respondent was

involved. It was alleged that he was distributing the beer bottles in

the constituency, and it could amount to bribery and a corrupt

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practice under Section 123 of the R.P. Act, 1951. In para 4 (D) it

was alleged that his agents /associates were found to indulge in

digging bore-well without proper permission in the constituency,

which would amount to a corrupt practice and bribery, and a copy of

the information given by T.I. Police Station dated 14.1.2009 was

enclosed. Mr. Ranjit Kumar pointed out that Section 83 (1) (b)

requires one to give full particulars of the corrupt practices as

possible, and that had been done. In the facts of the present case,

the propositions from the judgments in the cases of Jyoti Basu,

Mangani Lal Mandal and Azhar Hussain (all supra) relied on

behalf of the respondent have no application.

25. The other submission on behalf of the respondent No.1

was that the petitioner ought to prima-facie show that because of

the corrupt practice his election was materially affected. In the

instant case the appellant had won the election by just one vote,

and obviously such corrupt practice would tilt the balance one way

or the other and materially affect the result of the election.

26. The last submission of Mr. Rao was that when corrupt

practices are alleged, an affidavit is to be sworn in the prescribed

form, which is Form No. 25, and reliance was placed on paragraph

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47 of the judgment of this Court in P.A. Mohammed Riyas

(supra), which stated that in the absence of proper verification, the

High Court has to dismiss the Election Petition. Mr. Ranjit Kumar,

however, pointed out from paragraph 47 quoted above, that the

petitioner in that matter had the opportunity of curing the defects,

but he had chosen not to do so, and that made the difference. He

pointed out that the absence of this affidavit is not laid down as a

ground for dismissal of the Election Petition under Section 86 of the

Act, and that has been the consistent view taken by this Court in

various judgments.

27. Last but not the least, the principal submission of Mr.

Ranjit Kumar was that at the time when the Recrimination Petition

was restored by consent, nothing prevented the respondent from

pointing out to this Court that the pleadings in the Recrimination

Petition were in any way defective, unnecessary or scandalous. The

respondent agreed to the Recrimination Petition being restored, and

is now trying to reagitate the very cause under Order 6 Rule 16 of

CPC which was undoubtedly impermissible as held by this Court in

K.K. Modi Vs. K.N. Modi & Ors. reported in 1998 (3) SCC 573.

He submitted that this would amount to abuse of process of court.

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Consideration of the submissions:-

28. We have noted the submissions of both the counsel. As

can be seen, the application under Order 7 Rule 11 is required to be

decided on the face of the plaint or the petition, whether any cause

of action is made out or not. Once it is accepted by a party by

consent that a particular petition (in the instant case the

Recrimination Petition) is to be heard by the Court, by giving up the

objection under Order 7 Rule 11, the very party cannot be

subsequently permitted to seek the striking off the pleadings

containing the cause of action under the garb that the pleadings

containing the cause of action are unnecessary, vexatious or

scandalous. One is expected to take all necessary pleas at the same

time. The party concerned is expected to raise such a contention at

the time of passing of the Court order (consent order in the present

case) or seek the liberty to raise it at a later point of time that some

of the pleadings are unnecessary or vexatious or scandalous. No

Court is expected to permit any matter to be raised which might and

ought to have been made ground of defence or attack, once the

same is relinquished by the party concerned. The learned Single

Judge ought to have noted this basic principle of any litigation.

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Reliance on the judgment in the case of K.K. Modi (supra) is quite

apt in this behalf.

29. That apart, even when we look to the objections raised in

the present matter under Order 6 Rule 16, the same is based on the

requirement of Section 83 of the R.P. Act, 1951 that the applicant is

required to place material facts before the Court. As far as the

allegation of criminality is concerned, in our view sufficient material

facts were placed on record alongwith the Recrimination Petition.

Subsequently, a notice to admit facts was given, wherein, particulars

of specific cases were given, wherein, the charge-sheets were filed

for the charges which would result into imprisonment of 2 years or

more, as required by section 33A of the R.P. Act, 1951. The

respondent chose not to reply to this notice. In fact the learned

Judge ought to have drawn an adverse inference, but he failed in

doing so. As far as the ground of corrupt practice is concerned,

as can be seen from the pleadings quoted above, on that aspect

also material facts were placed on record as rightly pointed out by

Mr. Ranjit Kumar.

30. With reference to the observations in paragraph 47 of the

judgment in the case of P.A. Mohammed Riyas (supra), we may

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note that way back in the case of Murarka Radhey Shyam Ram

Kumar Vs. Roop Singh Rathore and Anr. reported in AIR 1964

SC 1545 a Constitution Bench of this Court has in terms held that a

defect in the verification in the matter of Election Petition can be

removed in accordance with the principles of CPC, and that it is not

fatal to the Election Petition. This decision has been referred and

followed by this Court time and again. Thus in H.D. Revanna Vs.

G. Puttaswamy Gowda and Ors. reported in 1999 (2) SCC 217,

this Court observed as follows in paragraph 15:-

“15. In Murarka Radhey Shyam Ram Kumar V. Roop Singh Rathore a Constitution Bench has held in unmistakable terms that a defect in the verification of an election petition as required by Section 83(1)(c) of the Act was not fatal to the maintainability of the petition and that a defect in the affidavit was not a sufficient ground for dismissal of the petition. Another Constitution Bench held in Ch Subbarao V. Member, Election Tribunal Hyderabad that even with regard to Section 81(3), substantial compliance with the requirement thereof was sufficient and only in cases of total or complete non-compliance with the provisions of Section 81(3), it could be said that the election petition was not one presented in accordance with the provisions of that part of the Act.”

This Court has in Ponnala Lakshmaiah Vs. Kommuri Pratap

Reddy and Ors. reported in 2012 (7) SCC 788, reiterated the law

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in Murarka Radhey Shyam (supra). Paragraph 26 of this

judgment reads as follows:-

“26. We may also refer to a Constitution Bench decision of this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore where this Court held that a defective affidavit is not a sufficient ground for summary dismissal of an election petition as the provisions of Section 83 of the Act are not mandatorily to be complied with nor did the same make a petition invalid as an affidavit can be allowed to be filed at a later stage or so. Relying upon the decision of a three-Judge Bench of this Court, in T. Phungzathang v. Hangkhanlian [2001 (8) SCC 358] this Court held that non-compliance with Section 83 is not a ground for dismissal of an election petition under Section 86 and the defect, if any, is curable as has been held by a three-Judge Bench of this Court in Manohar Joshi v. Nitin Bhaurao Patil [1996 (1) SCC 169] and H.D. Revanna v. G. Puttaswamy Gowda [1999 (2) SCC 217].”

31. In view of what is stated above, the order passed by the

learned Single Judge in allowing the application of the first

respondent under Order 6 Rule 16 of CPC was clearly untenable and

bad in law. The learned Single Judge of the High Court could not

have entertained the application under Order 6 Rule 16 when this

Court had restored the Recrimination Petition to the file of that Court

by consent in order to decide it expeditiously. The learned Judge

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has erred in holding that the pleadings in paragraph 3 and 4 of the

Recrimination Petition were vague, vexatious, non-specific and

without any material facts. The appeal is therefore allowed. The

impugned order is set-aside. The learned Judge of the High Court

will now proceed to decide the Recrimination Petition as filed by the

petitioner expeditiously. The parties will bear their own cost of

litigation.

…………………………..J. ( H.L. Gokhale )

……………………………J. (Madan B. Lokur)

New Delhi Dated: April 12, 2013

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NEENA VIKRAM VERMA Vs BALMUKUND SINGH GAUTAM .

NEENA VIKRAM VERMA Vs BALMUKUND SINGH GAUTAM .