REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICITION
CIVIL APPEAL NO. 638 OF 2007
K.K. Ramachandran Master ...Appellant
Versus
M.V. Sreyamakumar & Ors. ...Respondents
JUDGMENT
T.S. THAKUR, J.
1. Election to the Kerala State Legislative Assembly was
held in April, 2006. Among other constituencies that went
to poll on 29.4.2006 was 029 Kalpetta LA Constituency with
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as many as 11 candidates in the fray. The candidates
included the appellant as a nominee of Indian National
Congress (I) a constituent of the United Democratic Front
(`UDF’ for short). Janta Dal (S) a constituent of the Left
Democratic Front had set up respondent No.1 as its
candidate, while respondent No.2 was sponsored by Bhartiya
Janata Party. Respondents No.3 and 4 were similarly
contesting on the mandate of the Bahujan Samaj Party and
All India Anna Dravid Munnetta Kazhakam respectively. The
remaining candidates were all independent. The result of
the election came on 11th of May, 2006, which declared the
first respondent elected with a margin of 1841 votes over
the appellant his nearest rival. Most of the other candidates
in the fray lost their deposits.
2. Aggrieved by the election of respondent No.1 the
appellant filed election petition No.8 of 2006 before the High
Court of Kerala at Cochin alleging that the returned
candidate had committed several corrupt practices that
rendered his election liable to be set aside. The petition was
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contested by the elected candidate inter alia on the ground
that the same suffered from fatal defects that rendered it
liable to be dismissed without a trial. The election petition
did not, according to the respondent, state either the
material facts or give the necessary particulars so as to
disclose a complete cause of action justifying a trial. It was
also alleged that the petition was not properly verified and
was, therefore, liable to be dismissed on that additional
ground as well. All these contentions urged on behalf of the
respondent found favour with the High Court resulting in the
dismissal of the petition by the order impugned in the
present appeal. The High Court observed that the averments
made in the petition were insufficient to disclose a complete
cause of action or give rise to a triable issue. It found fault
with the verification of the petition in as much as the same
did not disclose the source of information on the basis of
which the election petitioner had made allegations of corrupt
practices against the respondent. The verification did not,
according to the High Court, make any distinction between
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what was true to the knowledge of the petitioner and what
he believed to be true on the basis of information received.
3. Section 86 of the Representation of People Act
mandates that the High Court shall dismiss an election
petition if the same does not comply with the provisions of
Sections 81, 82 or 117 of the said Act. Sections 81, 82 and
117 of the Act deal with presentation of the petition, parties
to the petition and security for costs. It is common ground
that the election petition filed by the appellant in the instant
case did not suffer from any defect relatable to any one of
the said three provisions. Dismissal of the election petition
by the order impugned in this appeal is, not therefore,
referable to Section 86 of the Act, which implies that the
High Court has dismissed the election petition on the
premise that the averments made in the election petition
alleging commission of corrupt practices do not disclose
material facts as required under Section 83 of the Act.
Section 83 reads as under:-
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“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.]”
4. There is in the light of the above no gainsaying that an
election petition must contain a concise statement of the
material facts on which the petitioner relies and set forth full
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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 practices
and the date and place of the commission of each such
practice. It also requires that the petition be signed by the
petitioner and verified in the manner laid down in the Code
of Civil Procedure for the verification of the pleadings.
5. The provisions of Section 83 (supra) have fallen for
interpretation in several cases leading to a long line of
decisions that have understood the said provisions to mean
that while an election petition must necessarily contain a
statement of material facts, deficiency if any, in providing
the particulars of a corrupt practice could be made up by the
petitioner at any later stage. The provision has been
interpreted to mean that while a petition that does not
disclose material facts can be dismissed as one that does not
disclose a cause of action, dismissal on the ground of
deficiency or non-disclosure of particulars of corrupt practice
may be justified only if the election petitioner does not
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despite an opportunity given by the Court provide the
particulars and thereby cure the defect. We do not consider
it necessary to refer to all the decisions delivered on the
subject as reference to some only of such decisions should in
our opinion suffice.
6. In Samant N. Balkrishna v. George Fernandez,
(1969) 3 SCC 238 this Court held that Section 83 was
mandatory and requires the election petition to contain a
concise statement of material facts and the fullest possible
particulars of the corrupt practices if any alleged. The use of
word “material facts” observed by the Court shows that facts
necessary to formulate a complete cause of action must be
stated. Omission of a single material fact could consequently
lead to an incomplete cause of action. The function of
particulars is however only to present a full picture of the
cause of action with such further information in detail as is
sufficient to make the opposite party understand the case he
is called upon to meet. There may be some overlapping
between material facts and particulars but the two are quite
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distinct, observed the court. Material facts will show the
ground of corrupt practice and the complete cause of action
while particulars will give necessary information to present a
full picture of the same.
7. In Raj Narian v. Indira Nehru Gandhi, (1972) 3
SCC 850, this Court had another opportunity to interpret
the provisions of Section 83 and to cull out the principles
that would determine whether an election petition complied
with the requirement of the said provision. This Court
cautioned that just because a corrupt practice has to be
strictly proved did not mean that a pleading in an election
proceedings should receive a strict construction. Even a
defective charge, observed the Court, did not vitiate a
criminal trial unless it was proved that the same had
prejudiced the accused. If a pleading on a reasonable
construction could sustain the action, the court should
accept that construction and be slow in dismissing an
election petition lest it frustrates an action only on technical
grounds. The court also observed that a charge of corrupt
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practice is no doubt a very serious charge but the court has
to consider whether the petitioner should be refused an
opportunity to prove the allegations made by him merely
because the petition was drafted clumsily. The following
passages from the decision in Raj Narain’s case (supra) are
apposite in this regard:
“While a corrupt practice has got to be
strictly proved but from that it does not
follow that a pleading in an election
proceeding should receive a strict
construction. This Court has held that even a
defective charge does not vitiate a criminal
trial unless it is proved that the same has
prejudiced the accused. If a pleading on a
reasonable construction could sustain the
action, the court should accept that
construction. The courts are reluctant to
frustrate an action on technical grounds.
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The charge of corrupt practice in an election
is a very serious charge. Purity of election is
the very essence of real democracy. The
charge in question has been denied by the
respondent. It has yet to be proved. It may
or may not be proved. The allegations made
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by the appellant may ultimately be proved to
be wholly devoid of truth. But the question is
whether the appellant should be refused an
opportunity to prove his allegations? Should
the court refuse to enquire into those
allegations merely because the appellant or
someone who prepared his brief did not know
the language of the law. We have no
hesitation in answering those questions in
the negative.
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If the allegations made regarding a corrupt
practice do not disclose the constituent parts
of the corrupt practice alleged, the same will
not be allowed to be proved and further
those allegations cannot be amended after
the period of limitation for filing an election
petition; but the court may allow particulars
of any corrupt practice alleged in the petition
to be amended or amplified.
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Rules of pleadings are intended as aids for a
fair trial and for reaching a just decision. An
action at law should not be equated to a
game of chess. Provisions of law are not
mere formulae to be observed a rituals.
Beneath the words of a provision of law,
generally speaking, there lies a juristic
11
principle. It is the duty of the court to
ascertain that principle and implement it.”
8. The above principles have been reiterated by this Court
in H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2
SCC 217; V.S. Achuthanandan v. P.J. Francis, (1999) 3
SCC 737; Mahendra Pal v. Ram Dass Malanger, (2000)
1 SCC 261 and Sardar Harcharan Singh Brar v. Sukh
Darshan Singh, (2004) 11 SCC 196.
9. Reference may also be made to Harkirat Singh v.
Amrinder Singh, (2005) 13 SCC 511, where this Court
reiterated the distinction between material facts and
particulars and held that while material facts are primary
and basic facts which must be pleaded by the plaintiff,
particulars are details in support of such material facts. They
simply amplify, refine and embellish the material facts by
giving distinctive touch to the basic contours of a picture
already drawn so as to make it more clear and informative.
Particulars thus ensure conduct of a fair trial so that the
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opposite party is not taken by surprise. To the same effect
is the decision of this Court in Umesh Challiyil v. K.P.
Rajendra, (2008) 11 SCC 740, where the Court held that
even if the respondents raised an objection in his counter
affidavit and the appellant had despite the opportunity to
cure the defect pointed out by the respondent did not do so
yet an election petition cannot be dismissed on the ground
that the petitioner had not cured any such defects. The
petitioner was entitled to bona fide believe that the petition
is in all respects complete and if the High Court found it
otherwise it would give an opportunity to him to amend or
cure the defect. This court also held that while dealing with
election petitions the Court should not adopt a technical
approach only to dismiss the election petitions on the
threshold.
10. In Virender Nath Gautam v. Satpal Singh, (2007)
3 SCC 617, this Court made a distinction between the need
for supporting material facts and the means by which such
facts are proved by the party alleging the same:
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“There is distinction between facta probanda
(the facts required to be proved i.e. material
facts) and facts probantia (the facts by
means of which they are proved i.e.
particulars or evidence). It is settled law that
pleadings must contain only facta probanda
and not facta probantia. The material facts
on which the party relies for his claim are
called facts probanda and they must be
stated in the pleadings. But the facts or facts
by means of which facta probanda (material
facts) are proved and which are in the nature
of facta probantia (particulars or evidence)
need not be set out in the pleadings. They
are not facts in issue, but only relevant facts
required to be proved at the trial in order to
establish the fact in issue.”
11. The question whether a defect in the verification of the
pleading is fatal is also no longer res integra in the light of
the decision in F.A. Sapa v. Singora, (1991) 3 SCC 375
and Sardar Harcharan Singh Brar’s case (supra) where
this Court held that defective verification or affidavit is
curable. What consequences, if any, may flow from an
allegedly defective affidavit, is required to be judged at the
trial of an election petition but such election petition cannot
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be dismissed under Section 86(1) of the Act for any such
defect.
12. Coming then to the facts of the case at hand the
appellant had challenged the election of respondent No. 1 on
the ground that the latter had committed corrupt practices
within the meaning of Section 123(1)(A), 123(4), 123 (5)
and 123(6) apart from violating the provisions of Section
127A and 133 of the Representation of People Act and Rules
86 and 90 of the Conduct of Election Rules, 1961. In the
course of the hearing before us, however, the appellant
confined his challenge to the election on the grounds
referable to Section 123(4), 123(5) and 123(6) of the Act
only.
13. Section 123(4) of the Act makes publication of any
statement of fact which is false, and which relates to the
personal character or conduct of any candidate a corrupt
practice if any such statement is reasonably calculated to
prejudice the prospects of that candidate’s election and if
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such publication has been made by a candidate or his
election agent or by any other person with the consent of
the candidate or his election agent.
14. The appellant’s case as set out in the election petition
is that a notice in the form of a newspaper under the title
`Janasabdam’ was printed, published and circulated by the
first respondent and his election agent containing totally
false, defamatory, incorrect and baseless allegations,
deliberately intended to lower the dignity, status, reputation
and personality of the petitioner amongst the voters of his
constituency. According to the averments made by the
appellant in paragraph 6 of the election petition, the said
notice/newspaper was published at the Mathrubhumi Press,
Kozhikode in the name of one Rasheed whose age and
address is not known to the appellant but who according to
the publication was said to be the Joint Secretary, Media
Trust, Sulthan Bathey. The averments made by the
appellant in the election petition further state that one Mr.
M.P. Veerendrakumar, the father of the respondent No.1 is
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the Managing Director of “Mathurbhumi” Daily in whose
press the aforementioned notice/newspaper titled
`Janasabdam’ was published. It is also the case of the
appellant that although only 35 thousand copies of the
notice are said to have been printed but actually as many as
1,20,000 copies were printed, published and distributed
from door to door in all the nooks and corners of the
constituency by the first respondent, his election agent and
other agents and active workers. The election petition finds
fault with the publication of the said notice/newspaper on
several counts. Firstly, it is alleged that the
notice/newspaper carried a news item under the title “The
Health Minister directly do priest hood for bribe” in which the
appellant was accused of bribery in connection with the
appointment of part time sweepers in Health Service
Department in Wynad District. The news item read that the
appellant had demanded Rs.25,000 to Rs.50,000 for
providing appointments and another amount of Rs.25,000 to
Rs.50,000 for regularizing such appointments. The news
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item alleged that the appellant had entrusted his Additional
Private Secretary with the duty of collecting the bribe
amount from the candidates. The statements made in the
newspaper were, according to the appellant, totally baseless
and deliberately cooked up with a view to lowering the
dignity and status of the appellant in the estimation of the
electorate by tarnishing the image of the appellant and
thereby with a view to gaining undue advantage for
respondent No.1 in the election process.
15. Secondly, it finds fault with the publication
aforementioned in as much as the same carried a news item
under the heading `The representative of people who
brought shame to Wynad’ under which caption it was alleged
that the Kerala Lok Ayukta had prima facie found a case
against the appellant and issued a notice to him. According
to the appellant, the Lok Ayukta had found a prima facie
case against the appellant but the same was in utter
violation of the principles of natural justice and without
affording any opportunity of being heard to the petitioner.
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The Division Bench of the High Court of Kerala had,
therefore, stayed the finding of the Lok Ayukta which stay
order was in force even on the date of the filing of the
petition. The appellant alleged that the publication of the
news item in `Janasabdam’ referred to above created a
strong impression in the mind of an average person that the
appellant was a very corrupt, wicked and crooked person,
not committed to the welfare of the people.
16. Thirdly, the appellant found fault with the publication of
a news item in the very same newspaper/notice under the
title `The phone call that trapped the Minister’. The appellant
alleged that he never sought any assistance or issued any
direction to the DMO at any juncture and that he had never
threatened or coerced the officer over the mobile phone as
was alleged in the said news item. So also the news item
under the caption `Be aware! Bigger than bitten is in the
hole’ and `The game has to be played is not the game
already played’ were highly defamatory and deliberately
made to tarnish the dignity and status of the appellant in the
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minds of the voters and to prejudicially affect the prospects
of his election schedule to be held on 29th April, 2006.
17. A reading of the averments made in paragraphs 13 to
23 of the election petition would show that the same gave
particulars of how the published material was transported
from Kozikode to the residential house of the first
respondent at Puliyarmala in Kalpetta by 11.30 p.m. on 26th
April, 2006 and how the same were split into small bundles
consisting of 80 to 100 copies per bundle and how 8 to 12
bundles each were distributed among 143 booths of the
constituency on 28th April, 2006 between 8.00 a.m. to 5.15
p.m. by the first respondent, his election agent, polling
agents, other agents, workers and campaigners with the
consent and connivance of the first respondent. The
averments in these paragraphs not only give the registration
numbers of the vehicles in which the material was
transported but also the names of the persons who actually
distributed the said material amongst the voters of the
constituency. The names of the persons who informed the
20
appellant about the distribution of the printed material have
also been indicated by the appellant in sufficient details. For
instance, according to the averments made in paragraph 14
of the petition at booth no.120 of the constituency, the
printed material referred to earlier was distributed to various
houses by one Mr. Ealias son of Ouseph, Kunnathukudy
House, Trikkaipatta, Meppady, Wynad District and by others
named in the said paragraph. This distribution work was,
according to the appellant, with the consent and connivance
of respondent No.1. So also details of the printed material at
other booths in the constituency and other members relating
to the distribution of the said material have been set out in
sufficient detail in paragraphs 15 to 23. The election
petition specifically alleges that the printing, publication and
distribution of the material by the first respondent, his
election agent and other agents, workers and campaigners
was with his consent and connivance which materially
affected the result of the election in so far as the same
concerned the appellant and the returned candidate.
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18. Apart from the publication of the notice titled
“Janasabdam” the election petition also refers to publication
of an incorrect, baseless and false news item in
`Mathrubhumi Daily’ dated 28th April, 2006 at the instance of
the respondent by Shri M.P. Veerendrakumar, the father of
the said respondent under the caption `MLA cancels the
consented works’. Paragraph 29 of the election petition
specifically alleged that the said publication was at the
instance of the first respondent in which it was falsely
alleged that the appellant had cancelled the sanction
granted for effecting improvements to four roads, under the
Special Development Fund. The petition alleged that the four
roads mentioned passed through more than 10 booths of the
constituency of Kalpetta Legislative Constituency of which
14000 people of the constituency were regular
beneficiaries/users. The appellant alleged that the
publication of the baseless and false news item on the eve of
the election scheduled to be held on 29th April, 2006 without
affording an opportunity to explain the real facts to the
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public as well as to the affected voters was totally mala fide
and was calculated to prejudicially affect his election
prospects. Another publication made in Mathrubhumi Daily
issue dated 29th April, 2006 under the caption `Allegations by
Priest against former Minister Ramachandran’ were also,
according to the appellant, false and made at the instance of
the first respondent. In the said news item the appellant had
been accused of demanding rupees one lakh from a UD
Clerk in the Primary Health Centre also working as Priest of
Moolamattom St. George Orthodox Church. The petition
alleged that the allegation that the appellant had demanded
bribe from the said person who was suspended from service
by the Health Services Authorities upon inspection, was
totally false, baseless and cooked up at the instance of the
first respondent and published in the Mathrubhumi at his
instance. The appellant alleged that the publication of such
a damaging news item which was totally false, baseless and
motivated on the eve of the election was intended to cause
irreparable loss to the appellant by creating confusion and
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doubts about his character, personality and dignity in the
minds of the electorate city those belonging to Christian
faith. The petition also refers to the publication of a
photograph of Fr. George Vakkanampadam in the cassock to
create emotional distress for the Christian electorate by
giving an impression as though the appellant had not only
illegally suspended but also demanded bribe from the said
Mr. Vakkanampadam and delayed completion of the
disciplinary proceedings against him. The appellant alleged
that publication of the news item was mala fide and intended
to prejudice his electoral prospects.
19. The election petition further alleged that another news
item published in the `Deshabhimani Daily dated 6th April,
2006 with the title `What is happening at the Kalpetta is the
people’s trial against corruption – Sreyamskumar’ in which
the first respondent is alleged to have accused the appellant
of indulging in corrupt practices throughout. The election
petition alleged that the publication of the said news item
was mala fide and with intention to cause prejudice and
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harassment to the petitioner and to secure undue advantage
to the first respondent.
20. Apart from the publication mentioned above the
appellant also accused the first respondent of making a false
statement in a public speech delivered by him on 27th April,
2006 in which the first respondent delivered a talk at
Kalpetta near the bus stand attended by 500 persons at
4.30 p.m. alleging that the Lok Ayukta had issued a
direction to arrest and produce the appellant on 6th June,
2006 and his arrest was delayed due only to the ensuing
election. The election petition also alleged that a similar talk
was delivered by Mr. U.A. Khader, Councillor, Kalpetta
Municipality, who was actively supporting the first
respondent and by Shri V.P. Varkey son of Paily, Vattathody
House, Vazhavatta P.O., Wynad who was functioning as the
District President of Kisan Janata of Wynad for and on behalf
of the first respondent, as duly authorized by the first
respondent. The election petition also referred to a talk
delivered by Shri K.K. Hamsa, who is the State General
25
Secretary of Janata Dal (S) at Meppady town on 27th April,
2006 alleging that Lok Ayukta had issued an arrest warrant
against the appellant. The persons who informed the
appellant about the said talks allegedly containing
accusations against the appellant have also been set out in
the election petition.
21. We do not consider it necessary to refer in further
details to the specific averments made by the appellant in
support of the charge that respondent No.1 had committed
corrupt practices within the meaning of Section 123(4) of
the Representation of People Act. All that we need to say is
that the averments made in the election petition sufficiently
disclose a cause of action. The averments set out the
material facts & give sufficient particulars that would justify
the grant of an opportunity to the appellant to prove his
allegations. In as much as the High Court found otherwise, it
in our opinion, committed a mistake. At any rate if there
was any deficiency in the particulars required to be furnished
in terms of Section 83(b) of the Act the High Court could
26
and indeed ought to have directed the petitioner to disclose
and provide the same with a view to preventing any
miscarriage of justice on account of non-disclosure of the
same. So long the material facts had been stated, which
were stated in the present case, the absence of particulars,
if any, could not justify dismissal of the petition by the High
Court.
22. What is stated above is true even in regard to the
averments made by the appellant in paragraphs 25 and 26
of the election petition wherein the appellant had accused
the first respondent of committing a corrupt practice within
the meaning of Section 123(5) of the Act. Section 123(5)
makes hiring and securing of vehicles whether on payment
or otherwise for the free conveyance of any elector to and
from any polling station with the consent of a candidate or
his election agent, a corrupt practice. Paragraph 25 and 26
of the election petition specifically allege that the first
respondent, his election agent and other agents and workers
had secured vehicles for transport of the voters to and fro
27
polling stations contrary to Section 123(5) of the Act. The
averments made in the said paragraphs not only give the
registration numbers but also the names of the
owners/drivers of the vehicles used for providing free
transport of the voters of different booths indicated in the
said paragraphs. The averments made in the paragraphs 25
and 26 of the election petition constitute a statement of
material facts required in terms of Section 83A of the Act.
Although the particulars given in the said paragraphs, in our
opinion, give rise to justify a trial yet if there were any
deficiency in the disclosure of the particulars the High Court
could direct the petitioner to furnish the said particulars.
Dismissal of the petition on the ground that the averments
did not constitute material facts and did not give rise to a
complete cause of action was not a correct appreciation of
the said averments.
23. The same is true even in regard to the averments made
in paragraph 35 of the election petition in which the
petitioner had alleged that the respondent No.1 had
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committed a corrupt practice within the meaning of Section
123(6) of the Act by incurring or authorizing expenditure in
contravention of Section 77. In paragraph 35 of the election
petition the appellant had clearly alleged that the first
respondent had spent an amount of Rs.78 lakhs for his
election as against the outer limit of Rs.10 lakhs stipulated
under Section 77 of the Act read with Rule 90 of the Election
Rules, 1961. The averments disclosed in sufficient details
the basis on which the said allegation was made.
24. In the result, we allow this appeal, set aside the
impugned order of the High Court and remand the matter
back to the High Court for disposal of the election petition in
accordance with the law keeping in view the observations
made hereinabove. We make it clear that anything said by
us in the foregoing paras of this judgment shall not be
understood as expression of any final opinion on the merits
of the case set up by the appellant or the defense set up by
the respondent No.1. The observations made hereinabove
are limited to the determination of the question whether the
29
High Court was justified in dismissing the election petition at
the threshold as it did. The parties are directed to appear
before the High Court for further directions on 6th
September, 2010. No costs.
……………………………J.
(D.K. JAIN)
……………………………J.
(T.S. THAKUR)
New Delhi
July 6, 2010