ORDER
H. Rangavittalachar, J.
1. The returned candidate to the election for the Shimoga Constituency arrayed as respondent 1 to this election petition has filed this application – I.A. No. II under Order 6, Rule 16 and Order 7, Rule 11(a) of the Code of Civil Procedure (hereinafter referred to as the “Civil Procedure Code”), 1908 read with Section 87 of the Representation of People Act, 1951 (hereinafter referred to as “R.P. Act”), for striking out paras 4 to 24 of the election petition and dismiss the same with exemplary costs.
2. For the 21st Shimoga Parliamentary Constituency consisting of 8 Assembly Segments, the election petitioner, Ayanur Manjunatha from the Bharatiya Janatha Party (BJP) ticket, respondent 1-S. Bangarappa and respondents 2, 3 and 4, K.H. Srinivas, V.A. Shariff and Smt. Vasundhara Devi contested the elections held on 11-9-1999. The 1st respondent was declared elected, by a majority of 95,038 votes.
3. This election is challenged under Section 81 of the R.P. Act by the election petitioner by filing the present election petition.
4. The election petitioner (hereinafter referred to as the “petitioner” for brevity) had initially impleaded the Returning Officer as the 5th respondent and on an application later filed by him, 5th respondent is deleted by an order dated 6-9-2000.
5. After summons of the election petition were served on the respondents, the contesting respondent, respondent 1 has filed I.A. No. II along with the written statement.
6. By this I.A. No. II, the 1st respondent has contended that paras 4 to 24 has to be struck down and consequently the election petition has to be dismissed.
7. Sri G.V. Shantharaju, learned Counsel for the 1st respondent submitted his arguments in support of the said I.A. No. II by reading the various paragraphs of election petition and the provisions of Sections 123(7), 81 and 83 of the R.P. Act and also Order 6, Rule 16 and Order 7, Rule 11(a) of the Civil Procedure Code and submitted that the readings of paras 4 to 24 and in particular paras 10 to 14 of the election petition discloses that the petitioner has not pleaded the “material facts” and so also has not given the material particulars in respect of his allegation charging respondent 1 “of changing the ballot boxes and also in manipulating the check memos with the connivance of the Returning Officer and other officials”. The allegations being allegations of corrupt practice are bald and does not contain any “material particulars” as required by law. Learned Counsel in support of the said contention relied on the following decisions of the Supreme Court and also this Court:
(a) Samant N. Balakrishna v George Fernandez;
(b) Jitendra Bahadur Singh v Krishna Behari;
(c) Hardwari Lal v Kanwal Singh;
(d) Udhav Singh v Madhav Rao Scindia;
(e) Azhar Hussain v Rajiv Gandhi;
(f) Dhartipakar Madhan Lal Agarwal v Rajiv Gandhi;
(g) V. Narayanaswamy v C.P. Thirunavukkarasu;
(h) G. Shankaregowda v Rathan Singh.
8. In answer to the same, learned Counsel for the election petitioners, Sri Ashok Haranahalli submitted that, no case is made out for striking out any of the paragraphs, inasmuch as, none of the paragraphs in the election petition are vexatious or scandalous. Insofar as the contention of the 1st respondent, that election petition does not contain material particulars, he submitted that if the election petition is read as a whole and in particular paras 10 to 14, all the required “material particulars” which constitute the “cause of action”, is pleaded. The further requirements stated by the respondent are only in the nature of particulars and the non-mentioning of the same will not be fatal for entertaining the election petition. In support of the said contention learned Counsel relied on the following decisions:
(1) V.S. Achuthanandan v P.J. Francis; (2) D. Ramachandran v R.V. Janakiraman; (3) Rajasthan Adult Education Association v Kumari Ashoka Bhatacharya; (4) Mahendra Pal v Ram Dass Malanger; (5) Arun Kumar Bose v Mohd. Furkan Ansari; (6) Mohan Rawale v Damodar Tatyaba alias Dadasaheb; (7) Lata Devi (Mali) v Haru Rajwar.
9. Before I advert to the rival contentions and the requirement of law in the matter of pleadings of election petitions, I shall briefly set down the averments made in the election petition so as to find out whether the petition lacks material particulars and therefore is liable to be dismissed at the threshold or whether the averments in the petition require a trial.
10. As stated, the petition is filed under Section 81 of the E.P. Act. In paras 1 to 3 the petitioner has stated the preliminary points regarding the filing of nominations, declaration of results and the margin of votes by which respondent 1 got elected over the petitioner.
11. In para 4, it is stated that the Returning Officer (hereinafter referred to as the “RO”), was obliged to respondent 1 when the tatter during his tenure as Chief Minister saved the RO when he was working in the Excise Department from initiation of any disciplinary proceedings due to certain irregularities committed. To repay this obligation, the RO helped the 1st respondent illegally to better the prospects of election.
12. In para 5, it is stated that because of this fact petitioner even before the conducting of the elections, suspected the RO and thinking that the officials may indulge in corrupt practices, wrote to the RO on 30-9-1999 seeking information regarding the serial number of the ballot boxes issued to various polling stations in the Shimoga Parliamentary Constituency, by his letter vide Annexure-D and the RO replied vide Annexure-E giving the said particulars. Petitioner has further stated that 6,658 ballot boxes belonging to the Election Commission of India (4,768), State Election Commission (1,830), Bangalore City Corporation (60), were issued to be used at polling station.
13. In para 6, petitioner has stated the procedural requirements and safeguards that are required to ensure that only the official ballot boxes are used in the elections. According to him, all the ballot boxes should be serialled and the numbers should be engraved.
In para 7, petitioner has stated that the counting of votes was held on 6-10-1999 at Tobacco Godown, Shimoga City and according to him there were 169 counting tables. He has given the break up figures of the number of tables of each counting station. He has charged that the ballot boxes found in the counting place was not the one that were officially required to be used. This is what he says: “On the day of counting, petitioner as well as the other Assembly Constituency candidates, belonging to BJP and their counting agents noticed that the serial number of the ballot boxes as intimated to them by the 5th respondent in his letter dated 30-9-1999 did not tally with the serial number of the ballot boxes which arrived at the counting hall. Immediately, the counting agents of the petitioner objected the same before the counting Supervisor in charge of the counting table”. He has produced the complaint as Annexures-F1, F2 and F3. He has further stated RO was unable to clarify the situation, however he assured that he will verify the matter immediately and inform them before the actual counting.
14. The averments in para 8 is that, the RO manipulated or substituted the ballot boxes, and his conduct of the belated issue of endorsement regarding the verification made confirms the allegation. Petitioner also has stated that the different ballot boxes were issued in the polling than what was officially sent.
15. The averments in para 9 pertains to the complaints made to the Returning Officer, and how the RO manipulated the records by inserting the serial number of the boxes which actually arrived at the counting hall and the one issued to the polling stations and how the petitioner complained regarding these irregularities and the reply of the RO that no such irregularities took place.
16. In paras 10 and 11, petitioner has stated the procedure that has to be followed while counting the ballot papers and how check memos have to be prepared containing the results of counting and the RO and his officials conduct in creating bogus check memos and transferring the contents into tabulation sheets while destroying genuine check memos. The result shown in the tabulation sheet therefore is not a true reflection of the votes polled by respondent 1. He quotes certain instances to establish the extent of manipulation and fabrication of check memos by the fifth respondent and his officials. According to him, in the counting of Hosanagar Assembly Segment hall, numbered as “hall 15”, in the fifth round at table No. 10 the petitioner secured 509 votes and the 1st respondent secured only 438 votes. This information is based on the original check memo which was prepared at the counting table. This was not reflected in the tabulation sheet of that particular round. In its place a fabricated check memo appeared for the same round, same table and that of the same hall showing the petitioner’s vote as 210 and that of the 1st respondent as 721. The figures of this fabricated check memo was entered in the tabulation sheet. There are several such instances of which the above is just an illustration. For the perusal of the Court seven sets (original and forged) of such check memos are produced and marked as Annexures-N1 to N14. The corresponding tabulation sheets of the above check memos are produced herewith marked as Annexures-01 to 03.
17. At para 14, petitioner states the number of ballot boxes being substituted to the genuine ones and the number of votes found in these substituted boxes being 2,75,349 votes which should not have been counted in favour of 1st respondent. This illegal act has resulted in materially affecting the results of election. Para 14 is extracted herein:
“Para 14: The fifth respondent has therefore carried out a systematic method rigging at the instance of the first respondent from the stage of distribution of ballot boxes till the state of counting thereby materially affecting the result of the election. If this kind of rigging had not happened, the petitioner would have definitely succeeded. The extent of rigging that has taken place in this election is in relation to 446 ballot boxes not belonging to their respective assembly segments, and in relation to 128 ballot boxes having some serial numbers affecting almost 1/4th of the polled votes i.e., 2,75,349 votes. These votes were found in unauthorised fabricated boxes. The fifth respondent and the first respondent have colluded with each other to create fabricated check memos and the substitute ballot boxes thereby materially affecting the result of election”.
18. At para 15 of the petition, petitioner gives two instances of substitution of ballot boxes. According to him, ballot box bearing No. KA-17-07618 was found as polled box in polling station No. 106 of Soraba Assembly Segment and the box bearing the same serial number was found as a polled box in polling station No. 179 of Sagar Assembly Segment. In another incident, box bearing Sl. No. KA-17-06406 was found as a polled box at polling station No. 109 and also at polling station No. 53 of Bhadravathi Assembly Segment.
19. Para 16 relates to the representations he made to the Election Commission and the reply he sought to.
20. Paras 18 to 24 are the grounds of challenge.
21. At para 23 of the grounds, petitioner has stated that the 1st respondent was elected by a margin of 95,038 votes and 574 ballot boxes were manipulated resulting in polling of 2,75,349 votes from the said ballot boxes.
22. Though I.A. No. II is filed only for striking out paras 4 to 24 of the election petition but a reading of the affidavit in support of the I.A. indicates, that the respondent wants to dismiss the petition on the ground that the petition does not conform to Section 83 of the R.P. Act. It is therefore required to find out in the first place what is the requirement of Section 83 of the Act, and to state what is a “material fact”, “material particular”, and the non-pleading of which of these is fatal.
23. Chapter 2 of Part 6 of the R.P. Act, 1951 provides the forum and the procedure for trying election petitions. Section 81 provides that any election may be questioned before the High Court on one or more grounds stated in Sections 100 and 101. Section 83 states what the election petition should contain. Section 83 is extracted hereunder:
“Section 83.–(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:
(2) Any Schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition”.
24. The grounds on which the election can be declared void is stated under Section 100 of the R.P. Act. The same is extracted herein:
“Section 100. Grounds for declaring election to be void.–(1) Subject to the provisions of sub-section (2) if (the High Court) is of opinion–
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act (or the Government of Union Territories Act, 1963 (20 of 1963)); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected–
(i) by the improper acceptance or any nomination; or
(ii) by any corrupt practice committed in the interests of the returned candidate (by an agent other than his election agent); or
(iii) by the improper repetition, refusal or rejection of any vote or the reception of any vote or orders made under this Act,
(the High Court) shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice, but (the High Court) is satisfied–
(a) that no such corrupt practice was committed as the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders and (without the consent) of the candidate or his election agent;
(b) xxx xxx xxx (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then (the High Court) may decide that the election of the returned candidate is not void".
25. Section 86 provides how an election petition has to be filed i.e., if the election petition does not comply with the provisions of Section 81, viz., that the election petition shall be accompanied and attested by the petitioner in his own hand by as many copies as the respondents or with the provisions of Section 82, viz., necessary parties are not impleaded and/or the provisions of Section 117 viz., the security deposit is not made.
26. The election petition has to be dismissed under Section 86(5) of the Act, the High Court is given the power to allow the particulars of any corrupt practice alleged in the petition to be amended provided not to permit any new corrupt practice to be introduced by amendment.
27. What is a “material fact” and a “material particular”, and the consequences of not stating the “material fact” or “material particular” has been the subject of discussion by a large number of the decisions of the Supreme Court and various High Courts. I will briefly advert to the decisions on this point cited at the Bar before deciding on the I.A.
28. In Samant N. Balakrishna’s case, supra, Hidayatullah, J., as he then was speaking for the Bench at para 29 of his judgment has held “That an election contest is not an action at law or a suit in equity but a purely statutory proceeding unknown to common law and that the Court possesses no common law power”. Commenting on Section 83 of the Act, learned Judge states, “The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and particulars? The word “Material” shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture as the cause of action and such further information in detail as to make the opposite party understand the cause he will have to meet. There may be some overlapping between material facts and particulars. But the two are quite distinct. The material facts will thus show the ground of corrupt practice and the complete cause of action, and the particulars will give the necessary information to present the full picture of the cause of action. In stating the material facts, it will not do merely to quote the words of the section. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corruption just as a plaint without disclosing a cause of action cannot be said to be a good plaint so also an election petition without the material facts relating to a corrupt practice is no election petition at all”.
29. On the power of amendment under Section 86(5) of the Act, learned Judge states “Although the power of amendment given in the Code of Civil Procedure can be invoked because Section 87 makes the procedure applicable, as nearly as may be to the trial of election petitions, the Representation of the People Act itself enacts some rules which override the Civil Procedure Code. General power of amendment or the power derived from the Code of Civil Procedure must be taken to be overborne insofar as the election law provides. In a large number of cases it has been laid down by the High Courts in India that the material facts, must make out a charge and it is only when that an amendment to amplify the charge can be allowed or new instances of commission of corrupt practice charged can be given. If no charge is made out in the petition at all the addition of particulars cannot be allowed to include indirectly a new charge”,
30. Jitendra Bahadur Singh’s case, supra, in no way differs from the view of Samant N. Balakrishna’s case, supra.
31. Hardwari Lal’s case, supra, also reiterated the same principles as in Samant N. Balakrishna’s case, supra, and has further held that if an election petition does not set out the material facts and particulars, it can be dismissed under Section 87 of the R.P. Act for not furnishing a “cause of action”.
32. In Udhav Singh’s case, supra, it is stated relying on Order 6, Rule 2 of the Civil Procedure Code that “The election petition has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although, it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or substraction of words. Intention of the party concerned, is to be gathered from the tenor and terms of the pleadings taken as a whole”. On Section 83 of the R.P. Act, the Court held “all the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are “material facts”. In the context of a charge of corrupt practice, “material facts” would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action and “material facts” which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a)”.
33. In Azhar Hussain’s case, supra, a Bench of two Judges held, “an election petition may be summarily dismissed if it does not furnish cause of action in exercise of powers under the Civil Procedure Code and it is settled law that the omission of a single material fact leads to an incomplete cause of action and an election petition without the material facts relating to corrupt practice is not an election petition at all. Even in an ordinary civil litigation, the Court readily exercises the power to reject a plaint if it does not disclose any cause of action or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Such being the position, in regard to matters pertaining to ordinary civil litigation, there is greater reason why in a democratic set up, in regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the nation, the controversy is set at rest at the earliest if the facts of the case and the law so warrant”.
34. On the question “what is the material fact”, the Court reiterated what is already stated in the earlier decisions by stating “Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court would have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition”.
(emphasis supplied)
35. In Dhartipakar Madan Lal Agarwal’s case, supra, same principles stated earlier has again been reiterated.
36. In V. Narayanaswamy’s case, supra, “An election petition is based on the rights which are purely the creature of statute and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering the preliminary objection, as to the maintainability of the election petition, the averments in the petition, should be assumed to be true and the Court has to find out whether these averments disclose the cause of action or a triable issue”.
37. Following the Supreme Court decisions, this Court in G. Shankaregowda’s case, supra, has stated what are material facts and material particulars in the following passage:
“What are ‘material facts’ and ‘particulars’ depend upon the nature of the charge set up by the party. The expression ‘material facts’ is very much the same, meaning as the expression ’cause of action appearing in Order 7, Rule 11 of the Civil Procedure Code. The cause of action means the whole bundle of facts necessary to prove in order to get a decree. The ‘particulars’ are the detailed further information about the cause of action, required to put the opponent on guard, as to the case, he is expected to meet and give full picture of the cause of action. They are requirements of pleadings imposed in fairness and justice to the respondent ….. There could be no dispute that a petition cannot stand if ‘material facts’ of the allegations are not pleaded and that they cannot be supplied later”.
38. In Mahendra Pal’s case, supra, it is held that “Facts which are essential to disclose the complete cause of action are material facts and are essentially required to be pleaded. On the other hand, particulars or details of the case set up by the party and are such pleas which are necessary to amplify, refine or explain material facts. The distinction between material facts and material particulars is indeed important because different consequences follow from a deficiency of such facts or particulars in the pleadings. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16. In the case of petitioner suffering from deficiency of material particulars, the Court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation”.
In the facts of the said case, the Court held that “the non-mention of serial numbers of the improperly counted ballot papers, keeping in view the averments made in para 16 of the petition, could not be a ground to non-suit the election petitioner at the threshold, without trial”.
39. On the question as to how an election petition has to be read, to ascertain whether petitioner has pleaded all the material facts, the Court has held “Pleadings have to be read as a whole to ascertain their true import. It is the substance and not merely the form which is required to be looked into for construing the pleadings. The intention of the party needs to be gathered from the tenor and terms of his pleadings taken as a whole”.
40. In Ashwani Kumar Sharma v Yaduvansh Singh, it has been held that the requirement of Section 83 obliges a petitioner to only make a statement of concise material facts. Evidence in support of the pleas which have been taken are facts which have been pleaded, cannot be contused with the concise statement of material facts. The concise statement of material facts being equivalent to the cause of action.
(emphasis supplied)
41. In D. Ramachandran’s case, supra, a Bench of three Judges have held that in all cases of preliminary objections raised as the one in this case, the test, “is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purposes of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose the cause of action or triable issues as such”.
On the question of striking down pleadings, the Court has held “under Order 6, Rule 16, the Court is enabled to strike out a pleading (a) which may be unnecessary, scandalous, frivolous or vexatious; or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or (c) which is otherwise an abuse of the process of the Court. We have already pointed out that it is not the case of the first respondent that the pleading in the election petition is vitiated by all or any one of the aforesaid defects mentioned in the rule. Hence striking out parts of the pleading in this case was not at all justified”.
“On the other hand, Rule 11 of Order 7 enjoins the Court to reject the plaint where it does not disclose the cause of action. There is no question of striking out any portion of the pleading under this rule”. The Court farther, interpreting Order 7, Rule 11(a) of the Civil Procedure Code field, “it is elementary that under Order 7, Rule 11(a) of the Civil Procedure Code, the Court cannot dissect the pleading into several parts and consider whether each one of them discloses cause of action. Under the rule, there cannot be a partial rejection of the plaint or the petition”.
42. In V.S. Achuthanandan’s case, supra, a Bench of three Judges have held, “As to what is a reasonable cause of action”, “A reasonable cause of action is said to be a cause of action with some chances of success when only the allegations and the pleadings are considered. So long as the claim discloses same cause of action or arises some questions fit to be decided by a Judge”.
43. Thus, by a reading of the provisions of Sections 83, 86 and 87 of the R.P. Act and Order 6, Rule 14 read with Order 7, Rule 11(a) of the Civil Procedure Code, and also by the decisions referred to above cited at the Bar, the following principles are deducible.
44. That an election petition, challenging the elections of a returned candidate should contain “material facts”. “Material facts” are those facts which are equivalent to cause of action, in a civil suit. What are material facts depends upon the facts of each case and the nature of charge levelled. Material facts are those facts which if established would give a cause of action. The test is on the basis of the pleadings whether the petitioner is entitled for the relief even though the petition is not contested.
45. The entire election petition has to be read as a whole in order to appreciate whether the petition contains the necessary “material facts” and no passages or sentences in the election petition should be read in isolation but should be read in conjunction with each other as a whole for ascertaining whether the petition contains the material facts.
46. Material particulars are details which are necessary to amplify, refine or explain material facts.
47. The non-mentioning of even a single material fact makes the cause of action incomplete, and liable to be rejected under Order 7, Rule 11(a) of the Civil Procedure Code; Whereas, the non-pleading of the material particulars will not make the petition liable for rejection.
48. The power to strike down the pleadings under Order 6, Rule 16 of the Civil Procedure Code is available under Section 87 of the RP Act and that can be done only when the conditions mentioned under Order 6, Rule 16 exists and the pleadings cannot be struck out for non-mentioning of the material facts.
49. In this case, the objection taken by the first respondent that the petitioner has not pleaded the details of allegations made in respect to the substitution of the unauthorised ballot boxes in place of the authorised ones by not furnishing the serial number of the ballot boxes, the constituencies in which the ballot boxes were used, the serial number of the counting tables at which the votes polled in these ballot boxes were counted, in my view in the context they may be said as material particulars and not a material fact. Material facts in the context are what is stated at para 14 in particular and the earlier paras in general, namely “That with the assistance of the Returning Officer and the other officials the unauthorised ballot boxes were substituted for the official ones and the votes contained in the said ballot boxes counted to 2,75,349 votes, and having regard to the margin of votes by which respondent 1 was elected, 93,000 and odd, the result of the election is materially affected”. In my view, this pleading gives a complete cause of action for trying the election petition and the pleadings can be said to contain material facts.
50. Insofar as striking of paras 4 to 24 of the petition, as stated in I.A. No. II is concerned, the power to strike down paragraphs is traceable to Order 6, Rule 16 of the Civil Procedure Code, 1976 amendment read with Section 87 of R.P. Act. Order 6, Rule 16 reads as follows:
After 1976 amendment:
“16. Striking out pleadings.–The Court may at any stage, of the proceedings order to be struck out or amended any matter in any pleading–
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the Court”.
Section 87 of the R.P. Act reads as under:
“Section 87. Procedure before the High Court.–(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908), to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition”.
51. It is only in a case where the averments in a pleading are unnecessary, scandalous, frivolous or vexatious or prejudice embarrass or delay the fair trial of the suit, such unnecessary, scandalous, frivolous or vexatious embarrassments may be ordered to be struck down.
52. A reading of the averments in the election petition extracted above, I do not see any averment coming within the meaning of Order 6, Rule 16 of the Civil Procedure Code. In fact, no arguments were also advanced by the 1st respondent, showing how any part of the pleading came within any one of the ingredients of Order 6, Rule 14. Therefore, in my view, the striking down of any part of the averments in petition does not arise.
53. In the light of the discussions made above I do not find any merit in the I.A. No. II. I.A No. II is rejected.