REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NOS.33333-33335 OF 2010

D.N. JEEVARAJU & ANR.     … PETITIONERS VERSUS

D. SUDHAKAR & ORS. ETC.     … RESPONDENTS

J U D G M E N T

ALTAMAS KABIR, J.

1. These  Special  Leave  Petition  (C)  Nos.33333-

33335 of 2010 arise out of a final judgment and  

order  dated  15th November,  2010,  passed  by  the  

Karnataka  High  Court  at  Bangalore  in  

M.W.No.9995/10,  M.W.No.10529/10,  M.W.No.10698/10,

W.P.No.32674/10,  W.P.No.32675/10,  W.P.No.32676/10,  

W.P.No.32677/10  and  W.P.No.32678/10,  allowing  the  

writ petitioners’ application, being Misc.W.No.9995  

of 2010, praying for leave to amend a portion of  

paragraph 9 of the Writ Petitions.   

2. The  Writ  Petitioners,  D.  Sudhakar,  

Venkataramanappa, Gulihatti D. Shekar, Shivaraj S.  

Thangadgi and P.M. Narendra Swamy, were all elected  

as  independent  Members  in  the  General  Elections  

held  to  the  13th Karnataka  Legislative  Assembly.  

After  being  elected,  they  supported  the  exercise  

undertaken  by  the  Bhartiya  Janata  Party  

(hereinafter referred to as “B.J.P.”) led by Shri  

B.S. Yeddiyurappa, leader of the B.J.P. Legislature  

Party, to form a Government in the State in May,  

2008.  The writ petitioners, who have been made the  

Respondent  Nos.1  to  5  in  these  Special  Leave  

Petitions,  apart  from  extending  support,  also  

joined the Government as Ministers and it appears  

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that  they  also  attended  meetings  of  the  B.J.P.  

Legislature Party.

3. On 6th October, 2010, each of the independent  

Members  informed  the  Governor  that  due  to  

corruption and nepotism in the functioning of the  

Government, they had become disillusioned and were  

thus  withdrawing  their  support  to  the  Government  

headed by B.S. Yeddiyurappa.  The very next day,  

Shri D.N. Jeevaraju and Shri C.T. Ravi, who were  

the Chief Whip and Member Secretary of the B.J.P.  

in Karnataka, filed a petition before the Speaker  

for  disqualification  of  the  five  independent  

Members from the Assembly under paragraph 2(2) of  

the  Tenth  Schedule  to  the  Constitution.   On  8th  

October, 2010, a show-cause notice was also issued  

by  the  Secretary  of  the  Karnataka  Legislative  

Assembly  to  the  Respondent  Nos.1  to  5  herein,  

requiring  them  to  file  objections  in  writing  by  

5.00  p.m.  on  10th October,  2010,  as  to  why  

appropriate orders should not be passed for their  

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disqualification under paragraph 2(2) of the Tenth  

Schedule to the Constitution. It was also mentioned  

that if the said Respondents failed to be present  

or to file their objections on or before the said  

date,  the  matter  would  be  decided  in  accordance  

with law.

4. It is the case of the Respondent Nos.1 to 5  

that  they  had  not  been  individually  served  with  

copies of the said show-cause notice and that on 9th  

October, 2010, they came to learn through the media  

about  the  issuance  of  the  show-cause  notice  and  

sought copies of the same along with all annexures.  

It is the further case of the said Respondents that  

on  10th October,  2010,  at  11.00  a.m.  they  were  

provided with the copies of the show-cause notice  

and copies of the complaints and documents filed by  

the Respondents. According to the said Respondents,  

they filed interim replies dated 9th October, 2010,  

to  the  show-cause  notice  and  sought  for  time  to  

file complete objections thereto.  The matter was  

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taken up for hearing at 3.30 p.m. on 10th October,  

2010, and despite the prayer for time filed by the  

Respondents,  the  Speaker  of  the  Assembly  passed  

orders on the same day disqualifying the Respondent  

Nos.1  to  5  under  paragraph  2(2)  of  the  Tenth  

Schedule to the Constitution with immediate effect.  

The very next day, the vote of confidence sought by  

the 8th Respondent in the Writ Petition, the Chief  

Minister  of  the  State,  before  the  Karnataka  

Legislative  Assembly,  was  to  take  place.   The  

Respondents,  therefore,  hurriedly  filed  Writ  

Petition Nos.32764-78 of 2010 challenging the order  

dated  10th October,  2010,  in  Disqualification  

Application  No.2/10  filed  by  D.N.  Jeevaraju  and  

C.T. Ravi, in order to obtain stay of the order of  

the High Court and enable them to participate in  

the proceedings of the House.

5. In view of the urgency of the matter, a request  

was  made  to  the  Chief  Justice  of  Karnataka  to  

convene a Bench and sitting of the Court while the  

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writ  petitions  were  filed  in  the  Registry.  

Acceding to the request made, a Division Bench was  

convened  with  the  Chief  Justice  and  the  Hon’ble  

Judge.  In such circumstances, certain unintended  

errors appear to have been incorporated in the writ  

petitions  filed  by  the  Respondents  containing  

certain  statements  which  were,  in  fact,  part  of  

another set of writ petitions, which had been filed  

on behalf of eleven B.J.P. M.L.As., who had also  

withdrawn  their  support  to  the  Yedddiyurappa  

Government  and  had,  therefore,  faced  

disqualification proceedings as well.  

6. It is the further case of the Respondent Nos.1  

to 5 that in view of the hurry in which the two  

sets of writ petitions were made ready, some of the  

facts which were common to both the sets of writ  

petitions  were  lifted  from  one  set  of  writ  

petitions to the other and in the process certain  

unintended  statements  were  included  in  the  writ  

petitions filed by the Respondent Nos.1 to 5 herein  

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which were, in fact, identical to the paragraphs  

included in the earlier set of writ petitions filed  

by the other set of M.L.As. belonging to the B.J.P.  

who had also been disqualified.  In the process, in  

paragraph  9  of  the  writ  petitions  filed  by  the  

Respondent  Nos.1  to  5  herein,  certain  unintended  

statements had been included which in the context  

of  the  entire  writ  petition  was  obviously  a  

mistake.  For the sake of reference, paragraph 9 of  

Writ Petition (C) Nos.32674 to 32678 of 2010, is  

extracted hereinbelow :

“9. That the alleged petition made by the  Respondent  No.1  &  3  herein,  is  clearly  mala  fide  and  has  been  made  with  an  oblique motive knowingly in violation of  Rule 6(4) of Disqualification Rules, 1986,  which required him to satisfy himself that  there are reasonable grounds for believing  that a question has arisen as to whether  such  member  has  become  subject  to  disqualification under the Tenth Schedule.  No reasonable person would in the facts of  this  case  could  come  to  the  conclusion  that  the  Petitioners  had  incurred  any  disqualification  on  the  ground  of  defection.   Even  prima  facie  defection  means  leaving  the  party  and  joining  another.   Petitioner  has  not  left  the  Bharathiya Janatha Party at all.”

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7. The  entire  case  of  the  Petitioners  in  these  

Special Leave Petitions is centered around   the  

said  statements,  which  the  High  Court  held,  had  

been  incorporated  by  mistake  on  account  of  the  

circumstances  in  which  the  two  sets  of  writ  

petitions had been filed.

8. In view of the said error in the writ petitions  

filed  by  Respondent  Nos.1  to  5  herein,  an  

Interlocutory  Application,  being  I.A.No.9995  of  

2010, was filed by the writ petitioners under Order  

VI Rule 17 of the Code of Civil Procedure read with  

Articles 226 and 227 of the Constitution of India,  

for amendment of paragraph 9 thereof.  In the light  

of  the  categorical  statements  made  by  the  writ  

petitioners that they had not used the symbol of  

B.J.P.  for  contesting  the  Assembly  Elections  nor  

had they joined the B.J.P., but had only supported  

the formation of government as independent M.L.As.,  

a  prayer  was  made  for  leave  to  delete  the  last  

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sentence  of  paragraph  9,  which  reads  as,  

“petitioner has not left the Bhartiya Janata Party  

at  all”  and  to  substitute  the  same  with  the  

following sentence, namely, “petitioners have not  

joined B.J.P. at all and the evidence of the second  

Respondent  to  the  contrary  are  perverse  and  are  

liable to be set aside.”   

9. As indicated hereinbefore, the High Court by  

its impugned judgment and order dated 15th November,  

2010,  after  considering  the  case  of  the  writ  

petitioners as a whole, allowed the amendment upon  

holding  that  if  such  amendment  was  permitted,  

neither the nature of the dispute, cause of action,  

nor the nature of relief sought for in the writ  

petitions  would  change  and  that  no  prejudice  or  

injustice would be caused to the Respondents.   

10. The said judgment and order of the High Court  

is the subject matter of challenge in these Special  

Leave Petitions.

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11. Initially,  Mr.  Mukul  Rohtagi,  learned  Senior  

Advocate, appeared for the Petitioners herein, and  

submitted that the statements made in paragraph 9  

of  the  writ  petitions,  which  were  allowed  to  be  

amended by the High Court, were not on account of a  

mere mistake but had intentionally been made and,  

in any event, admission being the best proof of a  

fact, the said statements would have to be taken as  

an  admission,  the  benefit  whereof  could  not  be  

denied  to  the  Petitioners  in  the  Special  Leave  

Petitions.   

12. Mr. Soli J. Sorabji, learned Senior Advocate,  

who,  thereafter,  appeared  for  the  Petitioners  

herein, continued in the same vein.  In support of  

such contention, Mr. Sorabji firstly relied on the  

decision  of  this  Court  in  Nagindas  Ramdas Vs.  

Dalpatram Ichharam alias Brijram & Ors. [(1974) 1  

SCC 242], where the provisions of Section 58 of the  

Evidence  Act,  1872,  fell  for  consideration  and  

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after  considering  the  earlier  decisions  of  this  

Court  on  the  subject,  it  was  held  that  the  

principle that emerges from an analysis of earlier  

cases is that if at the time of passing of the  

decree there was some material before the Court, on  

the basis of which, the Court could be prima facie  

satisfied about the existence of a statutory ground  

of eviction, a presumption would have to be drawn  

that the Court was so satisfied and the decree for  

eviction,  even  if  passed  on  the  basis  of  a  

compromise, would be valid.  Such material could  

take  the  shape  either  of  evidence  recorded  or  

produced in the case or it may partly or wholly be  

in  the  shape  of  an  express  or  implied  admission  

made  in  the  compromise  agreement  itself.   This  

Court went on to observe that the admissions, if  

true and clear, are by far the best proof of the  

facts  admitted.   In  other  words,  admissions  and  

pleadings or judicial admissions, admissible under  

Section 58 of the Evidence Act, made by the parties  

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or their agents at or before the hearing of the  

case, stand on a higher footing than evidentiary  

admissions.   Same  is  the  view  expressed  by  this  

Court in Gautam Sarup Vs. Leela Jetly & Ors. [(2008  

(7)  SCC  85],  in  which  in  similar  circumstances,  

while  considering  an  application  under  Order  VI  

Rule 17 of the Code of Civil Procedure, this Court  

observed that an admission made in a pleading is  

not  to  be  treated  in  the  same  manner  as  an  

admission in a document.  An admission made by a  

party to the lis is admissible against him proprio  

vigore.  Various other decisions on the same point  

were  cited  by  Mr.  Sorabji  in  support  of  his  

submissions.    

13. Mr. Sorabji urged that it is hardly believable  

that such vital statements went unnoticed by the  

lawyers  appearing  for  the  writ  petitioners,  

particularly  in  the  circumstances  which  indicate  

that having by their acts and conducts, joined the  

B.J.P.  for  all  practical  purposes,  it  was  only  

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natural  that  a  statement  was  made  in  the  writ  

petitions  that  they  had  not  left  the  B.J.P.  Mr.  

Sorabji submitted that far from being a mistake,  

the statement had been deliberately made on account  

of their conduct after the allegations were made  

that the writ petitioners had not only supported  

the  B.J.P.-led  Government,  but  had  also  

participated therein by taking oath as Ministers in  

the Government led by Shri B.S. Yeddiyurappa as the  

leader  of  the  B.J.P.  Legislature  Party.   Mr.  

Sorabji  laid  special  stress  on  the  wording  of  

paragraph  9  of  the  reply  filed  by  the  writ  

petitioners  in  which  it  was  categorically  stated  

that since Shri B.S. Yeddiyurappa had forfeited the  

confidence of the Speaker to continue as the Chief  

Minister, in the interest of the State, the people  

of  Karnataka  and  the  B.J.P.,  the  concerned  writ  

petitioners  had  withdrawn  their  support  from  the  

Government headed by Shri B.S. Yeddiyurappa as the  

Chief Minister.  

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14. Mr. Sorabji also emphasized the fact that in  

the application filed by the writ petitioners under  

Order VI Rule 17 C.P.C., the writ petitioners had  

not indicated in paragraph 4 thereof as to who had  

given the instructions to the lawyers concerned to  

draft the writ petitions, nor had the names of the  

lawyers been disclosed and in the absence of such  

relevant information, it could not be presumed that  

the  statements  made  in  paragraph  9  of  the  writ  

petitions  were  unintentional  or  had  been  made  

through oversight.

15. Mr.  Sorabji  ended  on  the  note  that  the  

observation of the High Court that if the amendment  

was  allowed,  no  one,  including  the  Petitioners  

herein, would be prejudiced in any way, was also  

entirely erroneous, inasmuch as, if the prayer for  

amendment  had  been  disallowed,  the  Petitioners  

herein would have been entitled to the benefit of  

the admission made by the writ petitioners, which  

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would have, in fact, cut away the very foundation  

of the writ petitioners’ case.   

16. Replying to the case made out on behalf of the  

writ  petitioners  herein,  Mr.  P.P.  Rao,  learned  

Senior  Advocate,  contended  that  admittedly  there  

were  two  sets  of  cases  relating  to  the  

disqualification  of  11  B.J.P.  M.L.As.  and  the  

disqualification  of  5  independent  M.L.As.,  where  

the  facts  are  similar,  although,  the  grounds  of  

disqualification  in  the  two  cases  are  entirely  

different.  In the first case, the ground of attack  

was that the said 11 M.L.As. had “voluntarily given  

up  their  membership  of  B.J.P.”,  and  had  thereby  

incurred  the  disqualification  under  paragraph  

2(1)(a) of the Tenth Schedule to the Constitution.  

In  the  second  case,  the  ground  is  that  the  

independent  M.L.As.  having  joined  the  B.J.P.  by  

extending  support  to  the  B.J.P.  Government  soon  

after their election, had incurred disqualification  

under paragraph 2(2) of the Tenth Schedule.  The  

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two sets of M.L.As. had addressed similar letters  

to  the  Governor  on  6th October,  2010,  intimating  

their  intention  to  withdraw  the  support  to  the  

Government  led  by  Chief  Minister,  Shri  B.S.  

Yeddiyurappa,  whose  corruption,  nepotism  and  

favoritism  had  become  unbearable.  On  the  said  

basis, on the very same day the Governor requested  

the  Chief  Minister  to  prove  his  majority  on  the  

Floor of the House on or before 12th October, 2010.  

Mr. Rao submitted that apprehending that on account  

of the withdrawal of the support of 16 M.L.As., he  

would not be able to win the trust vote, the Chief  

Minister, with the help of the Speaker, chose to  

manipulate  the  trust  vote  by  getting  all  the  16  

M.L.As., who had withdrawn their support to him,  

disqualified  before  the  Assembly  met  on  11th  

October, 2010, at 10.00 a.m. for the trust vote.

17. In  pursuance  of  the  said  design,  the  Chief  

Minister  himself  filed  a  petition  before  the  

Speaker  on  6th October,  2010,  seeking  

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disqualification of the 11 B.J.P. M.L.As. on the  

ground  that  they  had  written  to  the  Governor  

withdrawing support to the Government, without the  

decision  of  the  party  and  such  action  attracted  

disqualification  under  the  Tenth  Schedule  to  the  

Constitution.  A similar application was filed on  

6th October, 2010, in which the petitioners herein  

Shri D.N. Jeevaraju, who was the Chief Whip of the  

B.J.P. and C.T. Ravi, M.L.A. and Joint Secretary of  

the B.J.P. State unit, filed a separate petition,  

being Disqualification Petition No.2 of 2010, for  

disqualification  of  the  Respondent  Nos.1  to  5  

herein, alleging that by declaring their support to  

the Government soon after the elections, they had  

become Members of the B.J.P. and should, therefore,  

be  disqualified  under  the  Tenth  Schedule  to  the  

Constitution.   

18. On 7th October, 2010, the Speaker issued show-

cause notices to the B.J.P. M.L.As. on the basis of  

the  petition  submitted  by  the  Chief  Minister.  

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Thereafter, on 8th October, 2010, the Speaker issued  

show-cause  notices  to  the  five  M.L.As.  being  

Respondent Nos. 1 to 5 herein, on the basis of the  

petition submitted by Shri D.N. Jeevaraju and Shri  

C.T.  Ravi.   Time  to  file  objections  to  the  

petitions  filed  was  given  till  5.00  p.m.  on  or  

before 10th October, 2010.  It is the case of the  

Respondent  Nos.1  to  5  that  they  had  not  been  

personally served with copies of the notices which  

were pasted on the doors of their M.L.A. quarters  

when  all  of  them  were  out  of  station,  as  the  

Assembly was not in Session, but on their coming to  

know  from  the  media  about  the  notice,  they  

approached  the  Speaker  through  their  counsel  and  

obtained  copies  of  the  notice  and  hurriedly  

prepared  interim  replies  which  were  submitted  on  

10th October, 2010, seeking time to file detailed  

replies.   Thereafter,  on  the  same  day,  the  

formality of going through a hearing was performed  

by the Speaker and in the night of 10th October,  

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2010,  itself,  the  Speaker  passed  separate  orders  

disqualifying  the  11  B.J.P.  M.L.As.  and  the  5  

independent candidates from their membership of the  

Karnataka Legislative Assembly.   

19. Mr.  Rao  submitted  that  it  is  in  such  

circumstances  that  writ  petitions  were  hurriedly  

prepared with the object of moving the High Court  

to obtain orders of stay before 10.00 a.m. on 11th  

October, 2010, before the trust vote could be taken  

in the Assembly.  It is in such circumstances that  

certain  paragraphs  were  lifted  from  the  writ  

petitions filed on behalf of the 11 B.J.P. M.L.As.,  

which  resulted  in  the  unintentional  mistakes  

occurring in paragraph 9 of the writ petition.

20. Mr. Rao submitted that there could be little  

doubt that the statements made in paragraph 9 were  

entirely unintended, since it struck at the very  

root of the case of the writ petitioners and an  

attempt  to  submit  otherwise  was  entirely  absurd.  

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Mr. Rao submitted that the order of the High Court  

having been passed in the totality of the incidents  

which occurred between 6th October and 10th October,  

2010, no interference was called for with the same.  

   21. From  the  submissions  made  on  behalf  of  the  

respective  parties,  it  is  obvious  that  in  these  

Special  Leave  Petitions  we  are  only  required  to  

consider the correctness of the common judgment and  

order dated 15th November, 2010, passed by the High  

Court  in  the  Writ  Petitions  referred  to  in  

paragraph  1  of  this  judgment,  allowing  the  

applications  filed  by  the  writ  petitioners/  

Respondent  Nos.1  to  5  herein  for  leave  to  amend  

paragraph  9  thereof.   Although,  it  has  been  

strenuously  urged  on  behalf  of  Special  Leave  

Petitioners that the statements made in paragraph 9  

of  the  writ  petitions  to  the  effect  that  the  

petitioners had not left the Bhartiya Janata Party  

at  all,  was  not  a  mistake  but  was  intentionally  

made, and that the High Court had erroneously held  

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otherwise, is not borne out by the circumstances  

indicated in the writ petitions, if considered in  

their totality.  There is no doubting the fact that  

the writ petitioners had all throughout indicated  

that  they  had  been  elected  as  independent  

candidates and had neither contested the elections  

on the B.J.P. symbol nor had they, at any point of  

time, joined the B.J.P. On the other hand, even in  

their  interim  reply  dated  9th October,  2010,  

submitted to the Speaker in respect of the show-

cause notices issued to them, the Respondent Nos.1  

to  5  have  in  no  uncertain  terms  in  paragraph  8  

stated  that  they  were  Independents  who  had  not  

joined any political party, least of all the B.J.P.  

and had been supporting the Yeddiyurappa Government  

from outside till 6.10.2010. In fact, except for an  

inference being drawn from the statement that the  

writ petitioners had not left the B.J.P., that they  

had earlier joined the party, there is no factual  

basis for the finding that the writ petitioners had  

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joined the B.J.P. Even in the letter addressed by  

them  to  the  Governor,  they  had  very  clearly  

indicated that they were withdrawing support to the  

B.J.P. Government led by Shri B.S. Yeddiyurappa on  

account  of  the  corruption,  nepotism  and  

favouritism, which was prevalent on a wide scale in  

the State.  At no point of time has any positive  

evidence  been  adduced  by  the  Special  Leave  

Petitioners  to  establish  that  the  Writ  

Petitioners/Respondent Nos.1 to 5 herein had at all  

joined the B.J.P.   

22. In the circumstances indicated hereinabove, the  

statements  made  in  paragraph  9  of  the  Writ  

Petitions filed by the Respondent Nos.1 to 5 herein  

that  they  had  not  left  the  B.J.P.,  was  an  

inadvertent error.  On the other hand, there is a  

good deal of substance in the stand taken by the  

Respondent  Nos.1  to  5  that  on  account  of  the  

preparation  of  the  two  sets  of  Writ  Petitions  

having  similar  facts  but  involving  two  sets  of  

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M.L.As,  some  of  the  paragraphs  which  were  not  

intended to be included in the Writ Petitions filed  

by  the  Respondent  Nos.1  to  5  herein  were  

inadvertently included, resulting in the statement  

in  paragraph  9  of  the  Writ  Petitions  that  the  

Respondent  Nos.1  to  5  herein  had  not  left  the  

B.J.P.  It is obvious that such a statement was  

intended  to  be  made  and  was  made  in  the  Writ  

Petitions  filed  by  the  11  B.J.P.  M.L.As  who  had  

been disqualified on the ground that they had left  

the  B.J.P.  and  had  joined  another  party  thereby  

attracting  the  consequences  of  paragraph  2(2)  of  

the Tenth Schedule to the Constitution.    

23. In our view, the High Court has correctly held  

that  the  mistake  was  unintentional  and  that  

nowhere, except in one stray sentence in paragraph  

9 of the writ petitions, had the Respondent Nos.1  

to 5 stated that they had left the B.J.P. and that  

the  said  sentence  could  not  be  considered  as  a  

categorical admission if looked at from the context  

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of  the  proceedings  itself  being  under  paragraph  

2(2)  to  the  Tenth  Schedule.   The  Tenth  Schedule  

provides that an elected member of a House who has  

been elected as such, otherwise than as a candidate  

set  up  by  any  political  party,  would  be  

disqualified from being a Member of the House, if  

he joined any political party after such election.  

24. We are not, therefore, inclined to accept the  

submissions  made  on  behalf  of  the  Special  Leave  

Petitioners  and  all  the  Special  Leave  Petitions  

are, accordingly, dismissed without any order as to  

costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated:16.12.2010.

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