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IN THE HIGH COURT OF JUDICATAURE FOR RAJASTHAN
AT JODHPUR.
ORDER.
C.P. Joshi vs. Kalyan Singh Chouhan
& anr.
S.B. Election Petition NO.1/2009 under
Sections 80,81,100(1)(d)(iii) and 100(1)(d)(iv) of
the Representation of People Act, 1951.
Date of Order: November 19th, 2009.
PRESENT
HON'BLE MR. PRAKASTH TATIA,J.
REPORTABLE
Mr. M.S. Singhvi, for the petitioner.
Mr.L.R. Mehta with Mr. Vijay Bishnoi, for respondent no.1.
In this Election Petition, challenging the election of the
sole respondent, the petitioner alleged that the respondent’s
wife cast two votes at different polling station and,
therefore, both votes are liable to be rejected. The
petitioner also claimed that six other voters by
impersonation, cast votes, then the real voters approached
the Presiding Officer of the concerned polling station and
the Presiding Officer, after satisfying himself about the
identity of the voters, issued tendered ballet papers after
obtaining thumb impression/signatures of the said voters.
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The petitioner contended that those six votes originally cast
by other persons, by impersonation, may be excluded and
six tendered votes cast by the persons referred in the
petition be counted as cast by the genuine voters. On doing
so, the petitioner will be found to have secured more
number of votes than the votes secured by the respondent.
It will be worthwhile to mention here that the difference of
the votes between the votes secured by the petitioner-lost
candidate and the respondent-winning candidate is only
one.
The respondent filed the reply to the election petition
on 13.10.2009 but before that, already submitted the
application under Order 6 Rule 16 CPC read with Section
151, CPC and read with Section 87 of the Representation of
People Act, 1951 on 11.8.2009. Said application was not
decided as the time was sought by the learned counsel for
the respondent on the ground of his sickness and,
therefore, keeping the application pending, the respondent
was directed to file reply and hence the reply to the election
petition has been filed. By this order, this Court is deciding
the application moved under Order 6 Rule 16, CPC.
According to the respondent, the averments of para
nos.13 to 18 of the Election Petition, even they are
assumed to be correct without being admitting, do not
disclose any cause of action against respondent no.1
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inasmuch as it has not been alleged in the said paragraphs
that the alleged impersonators cast their votes in favour of
respondent no.1 and, therefore, the averments of para nos.
13 to 18 of the election petition are unnecessary, frivolous
and scandalous and they only tend to prejudice and delay
the fair trial of the Election Petition filed by the petitioner
against respondent no.1. On the basis of same reasons, it
has been stated that para nos. 13 to 18 of the Election
Petition tantamount to abuse of process of Court inasmuch
as they do not disclose any cause of action for setting aside
the election of respondent no.1 and on the basis of said
averments, it is not open to the petitioner to submit in para
no.19 that the result of the election in question has material
affected on account of improper reception of votes. It has
also been stated that the petitioner has not said anything
about the remaining tendered ballot papers. Therefore,
according to the respondent, it will be presumed that they
have been cast in favour of respondent no.1.
The learned counsel for respondent vehemently
submitted that the petitioner is required to plead only
concise statement of facts to prove the facts which can
alone constitute the cause of action. The petitioner has not
pleaded that the votes cast on earlier occasion were cast by
some other persons and not by the genuine persons.
Without pleading this fact, the petitioner cannot lead
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evidence on this issue that votes cast on earlier occasion
were not cast by genuine persons. It is also submitted that
the petitioner has not pleaded that the votes cast on earlier
occasion were not in favour of the respondent, therefore,
the petitioner cannot seek relief of exclusion of votes from
the votes cast in favour of the respondent. It is also
submitted that the petitioner also not pleaded that six
tendered votes are in favour of the petitioner nor the
petitioner has pleaded that if the votes cast on earlier
occasion were not in favour of the respondent, then in
whose favour those votes were ? Then it is submitted that if
the tendered votes were cast in favour of other candidate
then their exclusion will not affect vote secured by the
respondents and further, the votes tendered in favour of
other candidates are not the party to the petition, therefore,
these tendered votes cannot be excluded from the votes
cast in favour of those candidates who are not party in the
petition. More emphasis of the learned counsel for the
respondent was on the point was that the petitioner should
have pleaded that the earlier six votes were cast in favour
of the respondent and that too by the persons who were not
the real and genuine voters but other persons other than
genuine votes, cast votes by impersonation and, therefore,
the pleadings in para no.13 to 18 be struck off and the
pleading in para 19 is based on the pleading in para nos.13
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to 18 which, after deletion of para no. 13 to 18, will also
become unnecessary, hence the pleading in para no.19 also
deserves to be struck off under Order 6 Rule 16 CPC.
The learned counsel for the petitioner submitted that
the petitioner pleaded necessary facts in para nos.13 to 18
and from these pleadings it has been disclosed by the
petitioner that six votes were cast initially by the other
persons in the name of genuine voters by impersonation.
The petitioner neither can know nor could have any
knowledge that the persons who voted on earlier occasion,
cast in whose favour. The petitioner has no knowledge
about the fact that in whose favour tendered votes are. This
is because of the fact that the election is conducted by
secrete voting. The petitioner specifically pleaded that
earlier votes have been cast by “some body else” and not
by the voters who cast votes subsequently as tendered
votes. Learned counsel for the petitioner submitted that the
petitioner is not seeking recounting of votes but seeking
counting of genuine votes for which the petitioner has to
plead and prove one fact that tendered votes were
demanded and were given and the tendered votes were
cast. The tendered votes are more than the difference
between the votes secured by the petitioner and the votes
secured by the respondent.
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It is not in dispute that if the pleading is found to be
scandalous, unnecessary, frivolous or vexatious or it may
tend to prejudice, embarrass or delay the fair trial of the
election petition or otherwise is an abuse of process of
court, then that part of the pleading can be struck out by
the order of the Court. Every pleading must contain only
statement in a concise form of material facts on which the
party pleading relief for his claim. The pleading should also
not contain the evidence on which the facts are to be
proved. Apart from the power of the court to strike out
pleading by exercising power under Order 6 Rule 16, CPC, if
the court finds that the petition does not disclose the cause
of action from the statement in the petition or that the
petition is barred by any law, then the petition can be
rejected by exercise of power Order 7 Rule 11, CPC. From
the argument advanced by the learned counsel for the
respondent, it appears that according to the respondent,
the pleadings in para nos.13 to 18, even if stands admitted,
even then did not disclose any cause of action against
respondent no.1. If it is so, then the petitioner’s contention
though raised in different manner, is a claim under Order 7
Rule 11, CPC, as the Order 7 Rule 11 CPC specifically
provides that a plaint (here in this case, the election
petition) shall be rejected where it does not disclose a
cause of action. But that is not the prayer of the
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respondent, which appears to be because of the reason that
facts and grounds raised in para nos.13 to 18 and 19 are
not the only grounds to challenge the election of the
respondent and one of the ground and that is, twice casting
of votes by one of the voters, the wife of the respondent is
also there on the basis of which the petitioner is seeking the
relief of setting aside of the election of the respondent. Be it
as it may be, the respondent’s plea is that pleading in para
nos.13 to 18 be struck off.
To examine whether the pleadings in the petition are
unnecessary, scandalous, frivolous, vexatious or tend to
prejudice, embarrass or delay the fair trial of the petitioner
or is otherwise it is an abuse of process of court, we may
look into the pleadings in para nos.13 to 18 which is
pleaded for different voters who cast votes at different
polling stations. It has been stated that when the real voter
reached to her/his polling station, number of which has
been given in the pleadings, found that “some body else
had already cast votes by Electronic Voting Machine (EVM)
on her/his serial number by practicing impersonation”. Then
the Presiding Officer of the concerned polling station, put
questions to the voter named in the pleading in separate
para referred above regarding her/his identity and on giving
satisfactory reply by that voter to the questions, the voter
was asked to put her/his thumb impression/signature
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against the entry relating to her/his name in Form 17B. On
putting the thumb impression/signature against the entry
relating to her/his name in Form 17B, the voter was
supplied a tender ballet paper, who thereafter cast her/his
vote on the tender ballet paper. As per rule 49P of the
Conduct of Election Rules, 1961, a tender vote can be given
to a person by the Presiding Officer if a person is
representing himself to be a particular elector seeks to vote,
after another person has already voted on such elector. The
tender vote is not issued on mere asking by any person.
Sub-rule (2) Rule 49P itself clearly provides that the
Presiding Officer may ask question relating to identity of the
elector and if the Presiding Officer is satisfied that the
person is a genuine voter and another person has already
voted for the person claiming himself to be particular
elector, then only a tendered ballet paper is supplied.
Therefore, issuance of tendered ballet paper and casting of
tendered vote by a persons is a material fact, which
inherently includes in it that some other person had cast
vote and genuine voter approached the Presiding Officer of
the concerned booth, who enquired about the identity of
such person and after satisfying himself about the
genuineness of such person, issued tendered ballet paper.
The Presiding Officer cannot hold detail enquiry about
genuineness of the voter to whom he issued the tender
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ballet paper nor can hold enquiry who was the other person
cast the vote on earlier occasion. Some what similar facts
were under consideration before the Full Bench of the
Punjab and Haryana High Court in the case of Rameshwara
Nand v. Madho Ram (AIR 1968 Punj. 173 (FB)), wherein it
was held that apart from Rule 42(analogous to rule 49 of
the Rules of 1961), there is no other provision either in the
Act or in the Rules with regard to the use to be made of the
tendered votes; that it would be for the High Court in the
election petition to determine how many of the tendered
votes are valid and how many of the tendered votes are
invalid and then decide whether any evidence and how
much evidence should be allowed to be produced with
regard to those votes; that at no prior stage could it be
determined either by the Presiding Officer or by the
Returning Officer as to how many votes out of the tendered
votes have been cast validly and could be taken into
account. The above Full Bench decision of the Punjab and
Haryana High Court came up for consideration before the
Judicial Commissioner of Goad, Daman & Diu in the case of
Wilfred D’Souza v. Francis Menino Jesus Ferrao (AIR 1976
Goa, Daman & Diu 64) and Wilfred D’Souza’s case, it has
been observed that in view of the provisions of rule 42
(analogous to Rule 49) and of the finding of Rameshwara
Nand’s case mere mention that vote is of “tendered vote”,
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is sufficient disclosure of facts material within Section 83(1)
(a) of the Act. Of course, that, the number of tendered
votes is higher than the difference between the votes polled
for the petitioner and those polled for the respondent, is
necessary fact. It has been held that as long there is a
possibility of the counting of tendered votes upsetting the
result of the election, the mere mention of the existence of
tendered votes furnishes material particulars. Then it has
been held that the difference is that in cases of tendered
votes what is asked for is the counting and not the re-
counting of the votes and it is elementary that every
candidate had the right to the counting of the votes polled
and the tendered votes may have to be counted if their
number is such that a possibility exists of changing the
result of the count by the Returning Officer.
The judgment of Wilfred D’Souza’s case was under
challenge before the Hon’ble Supreme Court wherein also,
Hon’ble the Supreme Court considered the various aspects
relating to tendered votes (in Dr.Wilfred D’Souza v. Francis
Menino Jesus Ferrao (AIR 1977 SC 286). Hon’ble the
Supreme Court held as under:-
“…. tendered ballet papers, even though
excluded from consideration at the time of counting
of votes after the poll, can be taken into account in
proceedings to challenge the validity of the election
11of the returned candidates provided certain
conditions are fulfilled….. .”
Therefore, in view of the Rules as framed as well as in
view of the fact that there is no rule specifically providing
how and when a tendered vote can be considered and in
view of the decisions referred above, it is clear that the
tendered vote may constitute a cause of action for filing the
election petition, where alone on proving certain facts, the
tendered ballet paper can be taken into account. The
petitioner, in the present petition, therefore, has not
pleaded in para nos.13 to 18 unnecessarily nor the pleading
is scandalous, frivolous or vexatious, the pleadings in para
nos.13 to 18 cannot prejudice or embarrass or delay the
fair trial of the suit nor is otherwise an abuse of process of
the court. Rather say, the pleadings in para nos.13 to 18
are statements in concise form, that is of material facts and
further more, is necessary pleadings for the relief claimed
by the petitioner.
The learned counsel for the respondent also submitted
that the petitioner has not pleaded that genuine voter had
not cast vote on earlier occasion, therefore, the petitioner
cannot lead evidence that the vote cast on earlier occasion
was not cast by genuine voter. The learned counsel for the
respondent relied upon the judgment delivered in the case
of Raimal v. Lakha (1967 RLW 103), wherein it has been
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observed that it is only when a person has already cast a
vote representing him to be a particular elector and another
person appears and claims that he is the real elector, that a
tendered ballet paper is handed over to him when the
Returning Officer is satisfied that he is the real voter.
Raimal’s case (supra) was in relation to the challenge to an
election of member of Gram Panchayat, where also there
was no provision in the Panchayat Act or in the Rules,
expressly authorising the Tribunal to count a tendered vote
on being satisfied that the ballot paper which was put in the
ballet box was marked by imposter in the name of the
elector who subsequently cast the tendered vote . Following
the earlier judgment of this Court delivered in the case of
Roop Narain vs. The Munsif Behror and others (SB Civil Writ
Petition No.125 of 1966 decided on 5.5.1966), it has been
held that on general principles that the Tribunal should
count a tendered vote on being satisfied that the ballot
paper which was put in the ballot box was marked by an
imposter in the name of the elector who subsequently cast
the tendered vote. In Raimal’s case(supra), it has been held
that the tendered vote cannot obviously counted unless it is
proved that the first vote in the name of the elector was
cast by an imposter. The High Court was conscious of the
fact that there may be possibility that the elector may cast
vote twice; one as first voter then as second voter by
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casting tendered vote. Then this Court allowed the petition
of the petitioner and allowed the petitioner to summon the
elector who cast tendered ballet paper so that the Tribunal
may record its finding that whether another person cast the
vote for the genuine elector. The above judgment do not
help the respondent in any manner inasmuch as that view
which has been taken by this Court in Raimal’s case, is the
same view as has been taken in the case referred above in
Wilfred D’Souza’s case. The tendered vote if accepted and
the difference between the margin of votes of the petitioner
and the winning candidate is higher, then that can be a
ground to challenge the election of the respondent and for
that purpose it was necessary for the petitioner to plead
that on which polling stations for which of the voters, votes
alleged to have been cast by other persons and the
tendered ballet papers were issued by the Returning Officer
and tendered votes have been cast and those tendered
votes are required to be counted by excluding the earlier
cast votes. The petitioner was not supposed to even plead
that who cast the earlier votes because there is prima facie
satisfaction of the election officer about the genuineness of
the voters seeking tender vote to whom he issued the
tender ballet paper and that person has cast tendered vote.
The petitioner was not supposed to know nor he could have
know to whom the first vote was cast and to whom
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tendered vote was cast. The tendered vote is required to be
counted on proving required facts and and as held in Wilfred
D’Souza’s case(supra), counting of tendered vote is not the
re-counting of votes but is counting of genuine vote which
is a right of a candidate.
In view of the above, it is held that the pleadings in
para nos.13 to 18 in the election petition are not
unnecessary, scandalous, frivolous or to prejudice,
embarrass or delay the fair trial of the election or
otherwise, in any manner, is an abuse of process of court.
Rather say, the pleadings in para nos. 13 to 18 are
necessary pleadings.
In view of the above discussion, there is no merit in
the application filed by the respondents under Order 6 Rule
16 CPC and Section 151,CPC read with Section 87 of the
Representation of People Act of 1951.
Hence, the application of the respondent is dismissed.
( PRAKASH TATIA),J.
mlt.