P.A.MOHAMMED RIYAS Vs M.K.RAGHAVAN .
Bench: ALTAMAS KABIR,J. CHELAMESWAR
Case number: C.A. No.-010262-010262 / 2010
Diary number: 38717 / 2010
Advocates: V. K. VERMA Vs
LAWYER S KNIT & CO
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REPORTABL E
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10262 OF 2010
P.A. Mohammed Riyas … Appellant
Vs.
M.K. Raghavan & Ors. … Respondents
J U D G M E N T
ALTAMAS KABIR, J.
1. The appellant herein, who contested the
parliamentary elections held on 16th April, 2009 for
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the No.05 – Kozhikode Constituency of the Lok
Sabha, challenged the election of the Respondent,
Shri M.K. Raghavan, who was the returned candidate
from the said constituency, by way of an Election
Petition filed under Section 81 read with Sections
100, 101 and 123 of the Representation of the
People Act, 1951, hereinafter referred to as the
“1951 Act”. The Appellant contested the election
as the official candidate of the Communist Party of
India (Marxist), hereinafter referred to as the
“CPI(M)” led by the Left Democratic Front,
hereinafter referred to as the “LDF”, whereas the
Respondent No.1 was a candidate of the Indian
National Congress and he contested the election as
the candidate of the United Democratic Front,
hereinafter referred to as the “UDF”.
2. The ground on which the election of the
Respondent No.1 was challenged was that he had
published false statements with regard to the
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Appellant and thereby committed corrupt practice
within the meaning of Section 123(4) of the 1951
Act, which provides that the publication by a
candidate or his agent or by any other person with
the consent of a candidate or his election agent,
of any statement of fact which is false in relation
to the personal character, conduct of any
candidate, shall be deemed to be guilty of corrupt
practice within the meaning of Section 123 of the
1951 Act. The details of the publications have
been set out in paragraph 4 of the impugned
judgment and are as follows :
“”A. “Corrupt practice” by the publication of allegedly false statements in the form of –
1) Annexure A (“Jagratha” (“Be careful”) Newsletter bearing no date) allegedly published on 14-4-2009 and distributed on 15-4-2009
2) Annexure H (Anonymous notice allegedly published on 14-4-2009 and 15-4-2009
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3) Annexure K (Report in the Mathrubhumi daily dated 31-3-2009 of the speech of M.P. Veerendra Kumar
4) Annexure L Hand Bill dated 11-4-2009 allegedly distributed on 14-4-2009
5) Annexure M Wall poster allegedly published on 14-4-2009 & 15-4-2009
6) Annexure N Wall poster -do- -do-
AND
B. Fielding of other candidates having similarity in names.”
3. The highlights of the six publications have
also been shown in a tabular chart in paragraph 5
of the impugned judgment and speak for themselves.
4. During the hearing of the petition, a question
was raised with regard to the maintainability of
the petition for want of a complete cause of
action. After considering the submissions made on
such ground, the High Court accepted the objection
taken with regard to the maintainability of the
Election Petition and dismissed the same.
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5. Appearing for the Appellant, Mr. Krishnan
Venugopal, learned Senior Advocate, submitted that
the learned Single Judge of the High Court had
dismissed the Election Petition on two grounds :
(i) The Election Petition did not make out a
complete cause of action in so far as it did
not contain averments regarding the knowledge
of the Respondent No.1 about the falsity of
the statements in relation to each of the
publications; and
(ii) The false statements did not relate to the
personal character or candidature of the
candidate within the meaning of false
statements in section 123(4) of the Act.
6. On behalf of the Respondent No.1, a preliminary
objection was raised at the time of hearing that
the Election Petition was incomplete and was liable
to be dismissed as it did not contain the requisite
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affidavit in Form 25, as required under the proviso
to Section 83(1) of the 1951 Act read with Rule 94A
of the Conduct of Election Rules, 1961. Mr.
Venugopal contended that the trial of an Election
Petition was a quasi-criminal proceeding which
entailed that the statutory requirements for an
Election Petition had to be strictly construed. Of
course, it is also necessary to protect the purity
and sobriety of elections by ensuring that the
candidates did not secure vote by undue influence,
fraud, communal propaganda, bribery or other
corrupt practices, as mentioned in the 1951 Act.
Mr.Venugopal submitted that the importance of
Section 123(4) of the above Act lies in the fact
that voters should not be misled at the time of
casting of their votes by a vicious and defamatory
campaign against candidates. Mr.Venugopal submitted
that the common refrain in all these various
decisions is that while the requirements of the
election laws are strictly followed, at the same
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time, the purity of the election process had to be
maintained at all costs.
7. In addition to the above, Mr. Venugopal urged
that the argument which had not been advanced
earlier and had been orally raised for the first
time before this Court, should not be taken into
consideration. The preliminary objection taken at
the time of final hearing that the Election
Petition was not supported by an affidavit in Form
25, ought not to have been taken by the Respondent
No.1 either in his Written Statement or in the
Additional Written Statement filed in the High
Court, or even in the reply to the Election Appeal
before this Court. Accordingly, such an objection
ought not to have been entertained and is liable to
be ignored. Apart from the above, the learned
Single Judge had already taken the Appellant’s
affidavit on record on 15th December, 2009, wherein
it was expressly noted that the Respondent No.1 did
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not oppose the same being taken on record. Mr.
Venugopal submitted that once the affidavit had
been taken on record, it was no longer open to the
Respondent No.1 to contend that the Election
Petition was defective on the ground of absence of
affidavit in support thereof. Mr. Venugopal
submitted that the affidavit was in substantial
compliance with the requirements of Order VI Rule
15(4) read with Order XIX of the Code of Civil
Procedure, 1908, hereinafter referred to as “CPC” ,
and with Form 25 appended to the Conduct of
Election Rules, 1961.
8. Mr. Venugopal urged that an Election Petition
could not be dismissed in limine on the ground of
non-compliance with the requirements of Section
83(1) thereof. It was also pointed out that
Section 86(1) of the Act requires dismissal of an
Election Petition only when it did not satisfy the
requirements of Sections 81, 92 and 117. Section
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83 has not been included in the said provision.
Mr. Venugopal submitted that this Court has
repeatedly held that non-compliance of Section
83(1), which includes the requirement of
verification under Section 83(1)(c), is a “curable”
defect. In support of the said proposition, Mr.
Venugopal referred to the decisions of this Court
in (i) Murarka Radhey Shyam Ram Kumar Vs. Roop
Singh Rathore & Others [AIR 1964 SC 1545]; (ii)
F.A. Sapa & Ors. Vs. Singora & Ors. [(1991) 3 SCC
375]; (iii) Sardar Harcharan Singh Brar Vs. Sukh
Darshan Singh & Ors. [(2004) 11 SCC 196] and K.K.
Ramachandran Master Vs. M.V. Sreyamakumar & Ors.
[(2010) 7 SCC 428]. Mr. Venugopal submitted that
the submission made on behalf of the Respondent
No.1 that an affidavit in Form 25 is an integral
part of an Election Petition has been considered
and rejected by a Bench of three learned Judges of
this Court in F.A. Sapa ’s case (supra). Learned
counsel submitted that as a general proposition,
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this Court has held that the affidavit of an
Election Petition is not an integral part of a
petition.
9. Mr. Venugopal next urged that it had been
contended on behalf of the Respondent No.1 that the
Election Petitioner/Appellant had filed only one
affidavit under Order VI Rule 15(4) of the CPC and
had not filed a separate and second affidavit in
Form 25, as provided under Section 94A of the
Conduct of Election Rules, 1961, which is also
required to be filed under the proviso to Section
83(1) of the Act in support of an allegation of a
corrupt practice. Referring to the provisions of
Section 83(1)(c) of the 1951 Act and Order VI Rule
15(4) CPC, Mr. Venugopal drew our attention to the
Proviso to Section 83(1) which states that where
the petitioner alleges a corrupt practice, the
Election Petition shall “also be accompanied by an
affidavit in the prescribed form”. Learned counsel
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submitted that two affidavits would be necessary
only where an Election Petitioner wanted the
election to be set aside both on grounds of
commission of one or more corrupt practices under
Section 100(1)(b) of the Act and other grounds as
set out in Section 100(1). In such a case, two
affidavits could possibly be required, one under
Order VI Rule 15(4) CPC and another in Form 25.
However, even in such a case, a single affidavit
that satisfies the requirements of both the
provisions could be filed. In any event, when the
Election Petition was based entirely on allegations
of corrupt practices, filing of two affidavits over
the self-same matter would render one of them
otiose, which proposition was found acceptable by
the Karnataka High Court in Prasanna Kumar Vs. G.M.
Siddeshwar [AIR 2010 Karnataka 113]. Learned
counsel urged that even non-mentioning and wrong
mentioning of a provision in an application is not
a ground to reject the application.
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10. Mr. Venugopal submitted that the object of the
affidavit under the Proviso to Section 83(1) is to
fix responsibility with a person making the
allegations. Referring to the decision of this
Court in the case of F.A. Sapa (supra), Mr.
Venugopal pointed out that this Court had held that
while there is sufficient justification for the law
to be harsh who indulged in such practices, there
is also the need to ensure that such allegations
are made with the sense of responsibility and
concern and not merely to vex the returned
candidate.
11. Mr. Venugopal also urged that it has been held
by this Court in V. Narayanaswamy Vs. C.P.
Thirunavukkarasu [(2000) 2 SCC 294], that a
petition levelling a charge of corrupt practice is
required by law to be supported by an affidavit and
the Election Petitioner is obliged to disclose his
source of information in respect of the commission
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of the corrupt practice. He has to indicate that
which of the allegations were true to his knowledge
and which to his belief on information received and
believed by him to be true. It was further
observed that it was not the form of the affidavit
but the substance that matters. Mr. Venugopal
submitted that in the instant case, contrary to
what had been argued on behalf of the Respondent
No.1, read as a whole, the affidavit is in
substantial compliance with the requirements of
Form 25 because it clearly specifies the source of
information, personal knowledge as well as the
names of the person from whom information was
received by the Appellant in respect of each of the
paragraphs and schedules annexed to the Election
Petition.
12. On the question of finding of learned Single
Judge that the Election Petitioner failed to state
that a complete cause of action was incorrect,
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since the information sought for was available in
different parts of the Election Petition. Mr.
Venugopal submitted that the law laid down by this
Court is that pleadings should not be read in
isolation but must be read as a whole and construed
reasonably to determine whether they did state a
cause of action. Learned counsel submitted that it
is now well-settled that material particulars, as
opposed to material facts, need not be set out in
the Election Petition and may be supplied at a
later date. In this regard, learned counsel
referred to the decision of this Court in Ashwani
Kumar Sharma Vs. Yaduvansh Singh & Ors. [(1998) 1
SCC 416], and certain other decisions which only
served to multiply the decisions rendered on the
said subject. Further submission was made that a
“clumsy drafting” of an Election Petition should
not result in its dismissal so long as the petition
could make out a charge of a head of corrupt
practice when it is read as a whole and construed
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reasonably, as was observed in the case of Raj
Narain Vs. Indira Nehru Gandhi & Anr. [(1972) 3 SCC
850].
13. Mr. Venugopal submitted that in the present
Election Appeal the requirements of a proper
pleading have been fully met but the learned Single
Judge failed to appreciate that there is just one
single head of corrupt practice alleged under
Section 123(4) of the 1951 Act, relating to the
publication of false statements about the personal
character and candidature of the Appellant that
were calculated to prejudice his election. Learned
counsel submitted that the onus of proving a
particular ingredient of Section 123(4) of the 1951
Act was not very onerous, since the Appellant is
only required to plead and prove that the
statements made by the Respondent No.1 or his
election agent or any person acting with the
consent of either the Respondent No.1 or his agent
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are false. Once such statement is made on oath, the
onus shifts to Respondent No.1 to demonstrate that
he was not aware that the statements were not
false. Various decisions were cited in support of
such submission, to which reference may be made, if
required, at the later stage of the judgment. The
learned counsel submitted that the learned Single
Judge had erred in concluding that the allegations
in various publications were not against the
personal character or candidature of the Appellant.
It was submitted that the statement published in
the newspapers was certainly sufficient to effect
the private or personal character of the candidate.
Mr. Venugopal submitted that the order of the
Hon’ble High Court was required to be set aside
with the direction to expedite the appeal of the
Election Petitioner and to render its verdict at an
early date.
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14. The submissions of Mr. P.P. Rao, learned Senior
Advocate, appearing for the Respondent No.1, were
on expected lines. Mr. Rao reiterated the
submissions which have been made before the High
Court that the Proviso to Section 83(1)(c) of the
1951 Act, requires a separate affidavit to be filed
in Form 25 in support of each allegation of corrupt
practice made in the Election Petition. Mr. Rao
submitted that in the instant case, no such
affidavit had been filed at all. He also urged
that it was settled law that the affidavit required
to be filed, by the Proviso to Section 83(1)(c), is
an integral part of the Election Petition and in
the absence thereof, such petition did not disclose
a cause of action and could not, therefore, be
regarded as an Election Petition, as contemplated
under Section 81 of the aforesaid Act. Mr. Rao
urged that the Election Petition filed by the
Appellant was, therefore, liable to be dismissed
under Section 86(1) of the 1951 Act read with Order
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VII Rule 11(a) CPC. Reference was made to the
decision of this Court in M. Kamalam Vs. Dr. V.A.
Syed Mohammed [(1978) 2 SCC 659], in which this
Court had held that if the Election Petition did
not comply with Section 81 of the 1951 Act, the
High Court was required to dismiss the same under
Section 86(1) thereof. Learned counsel then
referred to the decision of this Court rendered in
R.P. Moidutty Vs. P.T. Kunju Mohammad & Anr.
[(2000) 1 SCC 481], wherein also the provision of
verification of an election petition fell for
consideration and it was held that for non-
compliance with the requirements of the Proviso to
Section 83(1) of the 1951 Act and Form 25 appended
to the Rules, the election petition was liable to
be dismissed at the threshold. It was also held
that the defect in verification was curable, but
failure to cure the defects would be fatal. It was
further held that the object of requiring
verification of an election petition is to clearly
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fix the responsibility for the averments and
allegations in the petition on the person signing
the verification and, at the same time,
discouraging wild and irresponsible allegations
unsupported by facts.
15. In regard to his aforesaid submission that the
Election Petition must disclose the cause of action
and that in respect of allegations in relation to
corrupt practice, the same had to be supported by
affidavit disclosing source of information and
stating that the allegations are true to the
petitioner’s knowledge and belief by him to be
true, Mr. Rao also referred to two other decisions
of this Court in : (i) V. Narayanaswamy Vs. C.P.
Thirunavukkarasu [(2000) 2 SCC 294] and (ii)
Ravinder Singh Vs. Janmeja Singh & Ors. [(2000) 8
SCC 191].
16. Mr. Rao contended that Section 83(1)(c) of the
above Act requires the Election Petition to be
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signed by the petitioner and verified in the manner
specified in the CPC for the verification of
pleadings. Referring to Order VI Rule 15 of the
Code, Mr. Rao submitted that Sub-Rule (4) requires
that the person verifying the pleading shall also
furnish an affidavit in support of his pleadings,
which was a requirement independent of the
requirement of a separate affidavit with respect to
each corrupt practice alleged, as mandated by the
Proviso to Section 83(1)(c) of the above Act. Mr.
Rao submitted that in the body of the Election
Petition, there is no averment that the Respondent
No.1 believed the statements made in the
publications to be false and did not believe them
to be true, which, Mr. Rao submitted, was an
essential ingredient of the corrupt practice
alleged under Section 123(4) of the 1951 Act. Mr.
Rao, however, admitted that in ground A of the
Election Petition there is a submission based on
the advice of the petitioner’s counsel as per the
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verification made in the affidavit filed under
Order VI Rule 15(4) CPC, which stands incorporated
in Section 83(1)(c) of the 1951 Act by reference.
According to Mr. Rao, there was no factual
foundation laid for the alleged corrupt practice
and the Election Petition was, therefore, liable to
be dismissed.
17. Learned senior counsel further contended that
omission to state a single material fact would lead
to an incomplete cause of action and an Election
Petition without material facts relating to a
corrupt practice was not an Election Petition at
all and such omission would amount to non-
compliance of the mandate of Section 83(1)(a) of
the above Act, which rendered the Election Petition
ineffective. Beginning with the decision of this
Court in Hardwari Lal Vs. Kanwal Singh [(1972) 1
SCC 214], Mr. Rao also referred to various other
decisions on the same lines, including that of
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Azhar Hussain Vs. Rajiv Gandhi [1986 Supp SCC 315],
which had relied on the decision in Samant N.
Balkrishna & Anr. Vs. George Fernandez & Ors.
[(1969) 3 SCC 238], Dhartipakar Madan Lal Agarwal
Vs. Rajiv Gandhi [(1987) Supp SCC 93] and Anil
Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar
[(2009) 9 SCC 310], to which reference may be made,
if required, at a later stage.
18. Mr. Rao also urged that no corrupt practice
could be made out in terms of Section 123(4) of the
1951 Act, if the allegations did not relate to the
personal character, conduct or candidature of the
concerned candidate and in support thereof, he
relied on the decision of this Court in the case of
Dev Kanta Barooah Vs. Golok Chandra Baruah & Ors.
[(1970) 1 SCC 392] and several other cases, to
which reference, if required, may be made at a
later stage.
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19. Attempting to distinguish the decisions cited
by Mr. Venugopal, Mr. Rao submitted that all the
said case laws were distinguishable on facts and
had no application to the facts of the present
case. In fact, Mr. Rao submitted that in F.A.
Sapa’s case (supra), it has been clearly indicated
that the petition which did not strictly comply
with the requirements of Section 83 of the 1951
Act, could not be said to be an Election Petition
in contemplation of Section 81 and attract
dismissal under Section 86(1) of the said Act.
20. Mr. Rao submitted that the Appellant had not
been able to refute the findings of fact recorded
by the High Court, which had elaborately considered
the decisions of this Court and correctly applied
to the facts of the present case. Mr. Rao
submitted that the present appeal has no merit and
is liable to be dismissed with costs.
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21. Although, during the hearing of the Petition, a
question was raised regarding the maintainability
of the Petition for want of a complete cause of
action and the same was accepted by the High Court
which dismissed the Election Petition, the learned
Single Judge of the High Court took the view that
the Election Petition did not make out a complete
cause of action as it was not in conformity with
Form 25 annexed to the Rules.
22. This brings us to the next question that in
order to protect the purity of elections in the
manner indicated, it was the duty of the State to
ensure that the candidates in the elections did not
secure votes either by way of an undue influence,
fraud, communal propaganda, bribe or other types of
corrupt practices, as specified in the 1951 Act.
23. The provisions of Chapter II of the 1951 Act
relate to the presentation of election petitions to
the High Court and Section 83 which forms part of
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Chapter II deals with the contents of the Election
Petition to be filed. For the purpose of reference,
Section 83 is extracted hereinbelow :-
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 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
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As will be seen from the Section itself, the
Election Petitioner is required to set forth full
particulars of any corrupt practice that he alleges
and the names of the parties involved therein and
it further provides that the same is to be signed
by the Petitioner and verified in the manner laid
down in the Code of Civil Procedure for the
verification of proceedings. What is important is
the proviso which makes it clear that where the
Election Petitioner alleges any corrupt practice,
the Petition shall also be accompanied by an
affidavit in the prescribed form in support of the
allegation of such corrupt practice and the
particulars thereof and the schedule or annexures
to the Petition shall also be signed by the
Petitioner and verified in the same manner as the
Petition. In other words, when corrupt practices
are alleged in an Election Petition, the source of
such allegations has to be disclosed and the same
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has to be supported by an affidavit in support
thereof.
24. In the present case, although allegations as to
corrupt practices alleged to have been employed by
the Respondent had been mentioned in the body of
the Petition, the Petition itself had not been
verified in the manner specified in Order VI Rule
15 of the Code of Civil Procedure. Sub-Section (4)
of Section 123 of the 1951 Act defines “corrupt
practice” and the publication of various statements
against the Respondent which were not supported by
affidavit, could not, therefore, have been taken
into consideration by the High Court while
considering the Election Petition. In the absence
of proper verification, it has to be accepted that
the Election Petition was incomplete as it did not
contain a complete cause of action.
25. Of course, it has been submitted and accepted
that the defect was curable and such a proposition
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has been upheld in the various cases cited by Mr.
Venugopal, beginning with the decision in Murarka
Radhey Shyam Ram Kumar ’s case (supra) and
subsequently followed in F.A. Sapa ’s case (supra),
Sardar Harcharan Singh Brar ’s case (supra) and K.K.
Ramachandran Master ’s case (supra), referred to
hereinbefore. In this context, we are unable to
accept Mr. Venugopal’s submission that despite the
fact that the proviso to Section 83(1) of the 1951
Act provides that where corrupt practices are
alleged, the Election Petition shall also be
accompanied by an affidavit in the prescribed form,
it could not have been the intention of the
legislature that two affidavits would be required,
one under Order VI Rule 15(4) CPC and the other in
Form 25. We are also unable to accept Mr.
Venugopal’s submission that even in a case where
the proviso to Section 83(1) was attracted, a
single affidavit would be sufficient to satisfy the
requirements of both the provisions. Mr.
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Venugopal’s submission that, in any event, since
the Election Petition was based entirely on
allegations of corrupt practices, filing of two
affidavits in respect of the self-same matter,
would render one of them redundant, is also not
acceptable. As far as the decision in F.A. Sapa ’s
case (supra) is concerned, it has been clearly
indicated that the Petition, which did not strictly
comply with the requirements of Section 86(1) of
the 1951 Act, could not be said to be an Election
Petition as contemplated in Section 81 and would
attract dismissal under Section 86(1) of the 1951
Act. On the other hand, the failure to comply with
the proviso to Section 83(1) of the Act rendered
the Election Petition ineffective, as was held in
Hardwari Lal ’s case (supra) and the various other
cases cited by Mr. P.P. Rao.
26. In our view, the objections taken by Mr. P.P.
Rao must succeed, since in the absence of proper
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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.
27. In such circumstances, we have no other
option, but to dismiss the appeal.
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28. The Appeal is, accordingly, dismissed, but
there will be no order as to costs.
………………………………………………………J. (ALTAMAS KABIR)
………………………………………………………J. (J. CHELAMESWAR)
New Delhi Date: 27.04.2012
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