{"id":186012,"date":"2005-08-29T00:00:00","date_gmt":"2005-08-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/t-r-baalu-vs-s-purushothaman-on-29-august-2005"},"modified":"2016-01-21T06:13:18","modified_gmt":"2016-01-21T00:43:18","slug":"t-r-baalu-vs-s-purushothaman-on-29-august-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/t-r-baalu-vs-s-purushothaman-on-29-august-2005","title":{"rendered":"T.R.Baalu : vs S.Purushothaman on 29 August, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
T.R.Baalu : vs S.Purushothaman on 29 August, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED:29\/08\/2005\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\n\nO.A.No.106 of 2005\n\nT.R.Baalu                              :Petitioner\n\n-vs-\n\n1.S.Purushothaman\n2.Bader Syed\n3.P.Thiagarajan\n4.K.Pugazhenthi\n5.P.Rajan\n6.S.Vivekananda\n7.The Returning Officer\n   (Deputy Commissioner (Education)\n   Corporation of Chennai)\n   No.3 Madras (South) Parliamentary\n   Constituency, Rippon Buildings\n   Chennai 600 003.\n8.The State Election Commissioner\n   State Election Commissioner\n   Fort St. George, Chennai 9.\n9.The Chief Election Commissioner\n   Election Commission of India\n   Nivachan Sadan, New Delhi.\n(Respondents 3 to 15, 17 to 21, 23 to 29,\n31 and 33 in Election Petition No.6\/2004\nare set exparte.  Hence, they are not joined\nas parties to this application)                 .. Respondents\n\n        Original application filed praying to reject the above said\nElection Petition under Order VII Rule 11(a) of the Code of Civil Procedure.\n\n!For Petitioner         :  Mr.V.T.Gopalan,\n                           Senior Advocate\n                           for M\/s.A,Balaguru,\n                           P.Wilson, NSV. Sivaraj\n\n^For Respondents        :  Mr.T.V.Ramanujam\n                   Senior Advocate\n                   for M\/s.R.Palanisamy\n                   J.Om Prakash for R1\n                   M\/s.Zafurullah Khan\n                   S.Thiruvenkatasamy for R2\n                   Mr.M.R.Raghavan\n                   for RR7 to 9\n\n:ORDER\n<\/pre>\n
        Election Petition No.6 of 2004 has been filed by the first  respondent
\nherein  seeking  a  declaration  that  the  election of the returned candidate
\nnamely the first respondent  therein  (petitioner  herein)  for  No.3,  Madras
\n(South) Parliamentary Constituency in the election held on 10.5.2004 is void.\n<\/p>\n
        2.   Now, the instant original application has been filed by the first
\nrespondent in the Election Petition No.6\/2004 seeking rejecting  of  the  said
\nelection petition under Order VII Rule 11(a) of the Code of Civil Procedure.\n<\/p>\n
        3.  The case of the petitioner is as follows:\n<\/p>\n
        (a) The  election  petition is not maintainable in law.  The pleadings
\nin the election petition do not project any cause of action and do not contain
\nany material facts constituting any cause  of  action  and  a  triable  issue.
\nUnder  the  circumstances,  the  election petition is, therefore, liable to be
\nrejected in limini under Order VII Rule 11(a) C.P.C.\n<\/p>\n
        (b) The entire averments in the election  petition  project  only  one
\nfact that the petitioner herein had disclosed in Annexure-I of Form No.2A made
\nunder  Rule  4  of the Conduct of Election Rules, 1961, relating to nomination
\npapers, that he has two spouses and, the said fact taken along with Section 17
\nof the Hindu Marriage Act and Sec.494 of the I.P.C., would disqualify him from
\ncontesting in the election and as such there has been improper  acceptance  of
\nhis nomination to contest for the South Madras Parliamentary Constituency.\n<\/p>\n
        (c)  The  judgment  of  the  Supreme  Court  in  Union  of  India  Vs.
\nAssociation of Democratic Rules ((2002) 5 SCC 294), relied on by the  election
\npetitioner, does not apply to the present facts of the case, and it is totally
\nmisquoted.   The  law  laid down by the Supreme Court in the said judgment, is
\nthat the Election Commission should require in  the  exercise  of  its  powers
\nunder Article 32 4 of the Constitution of India, each candidate to submit as a
\nnecessary  part  of  his  nomination  papers,  information  on an affidavit in
\nrespect of items specified by the Supreme Court.  The  Supreme  Court  further
\nheld  that  the limitation on plenary character of power is when Parliament or
\nState Legislature has made a valid law relating to or in connection  with  the
\nelections,  the  Commission  is  required  to  act in conformity with the said
\nprovisions.  In case where the law is silent, Article 324 is  a  reservoir  of
\npower to act for the avowed purpose having free and fair elections.  To put in
\nother words, the Election Commission under Article 324 can only supplement and
\nnot supplant  the  Leg  islation occupying a particular field.  Sec.100 of the
\nRepresentation of People  Act  sets  out  various  grounds  for  declaring  an
\nelection  to  be void, and nobody has the powers to add any further grounds in
\nSec.100.  The election petitioner has filed the above said  Election  Petition
\nto declare the election of the petitioner herein as void on the grounds within
\nthe  meaning of Sec.80 read with 100(1)(d)(iv) of the Representation of People
\nAct.  From the provisions of law under which the election petitioner seeks  to
\nhave  the petitioner’s election set aside, i t is clear that there should be a
\nnon-compliance of  either  the  provisions  of  the  Constitution  or  of  the
\nRepresentation  of  People  Act or of any rules or orders made under this Act.
\nAs regards any orders made under this Act, the Election  Commission  of  India
\nhas not been vested with any powers to make any orders under the provisions of
\nthe Representation  of  People Act.  It was, therefore, the Supreme Court held
\nin the decision stated  supra,  that  in  the  absence  of  any  parliamentary
\nlegislation  occupying  a  particular field, the Election Commission can issue
\norders and directions under Article 324 of the Constitution.\n<\/p>\n
        (d) In this case, the petitioner had given  necessary  information  as
\nrequired of  him  by  declaring that he has two spouses living.  Therefore, he
\nhad complied with the order made by the Election Commission under Article  324
\nof the  Constitution.  He had not violated any provisions of the Constitution.
\nNon-compliance with the order made under Article 324 of the  Constitution  has
\nto  be distinguished from noncompliance of any provisions of the Constitution.
\nThe Parliament while indicating in Sec.100(1)(d)(iv)  of  the  Act,  regarding
\nnon-compliance  of  the  provisions of the Constitution did not go further and
\nstipulate orders made under the Constitution also  as  it  had  stipulated  in
\nrespect  of  “this  Act”  (meaning  of Representation of People Act) or of any
\nRules or Orders made under this Act.  If Sec.100(1)(d)(iv) has to be  read  as
\nincluding  non-compliance  with  the  orders  made under the provisions of the
\nConstitution, then it will tantamount  to  redrafting  Sec.1  00(1)(d)(iv)  by
\nadding  the  words  “Orders  made  under provisions of Constitution” for which
\nnobody has the power excepting the Parliament.  As pointed out by the  Supreme
\nCourt  in  the  said  decision,  the  whole  object of orders being made under
\nArticle  324  of  the  Constitution  in  fields  which  are  not  occupied  by
\nParliamentary  Legislation,  that  is  the  conduct  of  elections,  is to get
\ninformation to be filed as Annexure to the nomination forms, which are  merely
\ninformation  regarding  a  candidate  so  as to enable the voters to judge for
\nthemselves as to whether a candidate  should  be  elected  or  not.    If  the
\nparticulars  that  have  got  to be filled up by a candidate in the nomination
\npaper are not filled up, then perhaps the Returning Officer could  reject  the
\nnomination paper  itself.    If  particulars have been filled up and the facts
\ndisclosed in filling up such particulars have not led to  any  conviction  for
\nany   offence,   which   alone  might  become  relevant  under  Sec.8  of  the
\nRepresentation of People Act, there is no question of any disqualification  of
\na person from contesting the election, which would arise.\n<\/p>\n
        (e)  The  thrust  of  the  case of the election petitioner is that the
\ndisclosure of two wives by the  petitioner  herein  in  the  Annexure  to  the
\nnomination  papers  and  as  such  Sec.17  of the Hindu Marriage Act read with
\nSec.494 of the I.P.C.  would disqualify him.  This averment has been  made  by
\nthe election petitioner without any regard to either the ingredients of Sec.17
\nof the  Hindu  Marriage  Act or the ingredients of Sec.494 of the I.P.C.  read
\nwith Sec.198 of the Criminal Procedure Code.  The Supreme Court has repeatedly
\nheld that the meaning of expression used in Sec.494  of  the  I.P.C.    namely
\n“such marriage  being  void”  must  mean  only marriages validly made.  If the
\nmarriage is not a valid marriage, then it is no marriage at all in the eye  of
\nlaw.   The bare fact of a man and a woman living as husband and wife, does not
\nat any rate normally give them the status of husband and wife.  As per  Sec.17
\nof the Hindu Marriage Act, unless the marriage is celebrated or performed with
\nproper ceremonies and in due form, it cannot be said to be solemnized.  It is,
\ntherefore, essential for the purpose of Sec.17 of the Act that the marriage to
\nwhich Sec.494  of  I.P.C.    applies,  should have been celebrated with proper
\nceremonies and in due form.  Merely going through certain ceremonies with  the
\nintention that the parties be taken to be married will not make the ceremonies
\nprescribed by  law  or  approved  by any established custom.  Under Sec.198(1)
\nproviso (c), it has been specifically indicated that in the case  of  a  wife,
\ncomplaint may  be made on her behalf by certain persons.  This provision shows
\nthat where the wife is aggrieved by an act of bigamy by her husband, she alone
\nis the competent person to give a complaint, but such complaint could be  laid
\nby  certain  other  relatives  of  the  wife  as  stated in the proviso (c) to
\nSec.198(1) on behalf of the said wife.  In the case of husband, in the absence
\nof any such provisions, the husband  alone  should  give  a  complaint.    The
\nposition  in  law  is well established that there could be a prosecution and a
\nconviction for an offence under Sec.494 of I.P.C.  only  on  the  basis  of  a
\ncomplaint  filed  by the wife or her relatives or by the husband and by nobody
\nelse.  In this case, the  election  petitioner  is  not  a  person  who  could
\ncomplain  against  an  act  of  bigamy  against  another candidate, and such a
\ncomplaint is specifically barred under the statutes.  The averments  regarding
\nbigamy  have  been made without any material fact namely that the marriage was
\nsolemnized after following the prescribed ceremonies.  The mere allegation  of
\nbigamy without any proof cannot be taken to be a conviction within the meaning
\nof  Sec.8 of the Representation of People Act for the purpose of disqualifying
\na candidate.\n<\/p>\n
        (f) The above said election petition has been filed only for the  sake
\nof being rejected by this Court, and such rejection has to be done under Order
\nVII Rule  11(a)  of  C.P.C.  since the election petition taken as a whole does
\nnot show any cause of action or a triable issue, and the election petition  is
\ntherefore  not maintainable in law, and the same has to be rejected in limini.
\nThe election petition is liable to be rejected in view of the fact that  under
\nRule 12 of Rules of the Madras High Court  Election Petitions 1967  Original
\nSide  Rules,  it is clearly prescribed that subject to the foregoing rules and
\nto the extent they are not inconsistent with the provisions of  the  Act,  the
\nRules  of  the  High  Court  1956  (Original Side) shall as far practicable be
\nobserved in all Election Petitions and all applications taken  in  respect  of
\nthem.\n<\/p>\n
        (g) The election petitioner herein has signed the election petition in
\nTamil,  and as such the procedure prescribed in Rule 9 of Order II relating to
\nthe form of proceedings framed under  the  Rules  of  the  Madras  High  Court
\nOriginal  Side,  has not been adhered to in that it has not been duly affirmed
\nbefore the Commissioner of Oaths or a Notary Public which verification  should
\nbe  in accordance with Form 7 and 8 which specifically prescribes a particular
\njurette for persons signing in Tamil.  Hence, this application.\n<\/p>\n
        4.   The  first  respondent  filed  a  counter  with   the   following
\nallegations.\n<\/p>\n
        (a)  It  is  not for the petitioner to state that there is no cause of
\naction or any material facts constituting a cause of action or triable  issue.
\nThe  petitioner  is  reluctant to face the trial and wants summary disposal of
\nthe petition by attempting to seek for rejection of the plaint.  The  election
\npetition clearly  discloses  the cause of action.  The cause of action means a
\nbundle of facts, which would go to prove a certain matter.  In this case,  the
\ncause of action is clearly stated in the petition, and the facts would further
\ngo  to show that the petitioner herein has contracted the second marriage when
\nthe first  marriage  was  in  subsistence  and  therefore,  has  violated  the
\nprovisions of   Sec.494  I.P.C.    and  Sec.17  of  the  Hindu  Marriage  Act.
\nTherefore, the acceptance of the nomination of such person is invalid  in  the
\neye  of  law,  and  consequently, it has materially affected the result of the
\nelection of the returned candidate.  The Supreme Court in Union of  India  Vs.
\nAssociation of Democratic Rules ((2002) 5 SCC 294) has categorically held that
\nit  is  mandatory for a candidate to file an affidavit stating his educational
\nqualification, his assets, criminal charges if any etc.  The  entire  judgment
\nhas been  misinterpreted  by  the petitioner.  The judgment while dealing with
\nArticle 324  of  the  Constitution  of  India,  reaffirms  the  supremacy  and
\nsuperintendence  of  conduction  of  the elections by the Election Commission.
\nThe Hon’ble Supreme  Court  went  on  to  add  that  in  the  absence  of  any
\nlegislation  on  the  field, the requirement to give certain information under
\nArt.324 would give over-riding powers to the election commission to direct the
\ncandidates to furnish information.  If the petitioner is aggrieved by the said
\norder of the Hon’ble Supreme Court, he could have challenged the same  by  way
\nof a review or sought to move a larger bench of the Hon’ble Supreme Court.\n<\/p>\n
        (b)  The  declaration  of facts in the form of an affidavit whether in
\nexercise of powers under Article 324 or in view of the judgment  cited  above,
\nwill  not  help  the  petitioner  in  any  manner  and it is for the Courts to
\ninterpret the law.  While interpreting Art.324, the Hon’ ble Supreme Court has
\nheld that superintendence, direction and control of  election  vest  with  the
\nElection  Commission  and  therefore,  it goes without saying that the matters
\nwhich are not specifically dealt with under the Representation of Peoples  Act
\nwill  still  be  a  ground  for declaration that the election is invalid under
\nSec.100(d)(1) of the R.  P.  Act, as the acceptance of an  invalid  nomination
\nis a material fact and by improper acceptance of the nomination, the law could
\nbe  set  into  motion,  since  Sec.100(1)(d)(IV)  would  clearly state that by
\nnoncompliance of the provisions of Constitution or any rules or  orders  under
\nthis Act  this election can be set aside.  Violation of the Constitution would
\nmean  violation  of  any  law  made  in  exercise  of  the  powers  under  the
\nConstitution  of  India  and  therefore, the provisions of the Constitution as
\nregards the powers under Art.324, would  also  attract  the  provisions  under
\nSec.100(1)(d)(IV) o f  the  R.P.    Act.   Giving such a declaration is not an
\nempty formality, and the  duty  of  the  candidate  does  not  end  by  merely
\ndeclaring for the sake of declaring and the purpose of declaration ought to be
\nread into  the  intention.    The  Hindu  Marriage Act defines that the second
\nmarriage when the first marriage is subsisting, is unlawful and is  termed  as
\nbigamous.   It would be fallacious to assume that the said declaration is only
\na formality and that it does not have any legal repercussions and provision of
\nSec.100(1)(d)(IV) of the R.P.  Act would show that the petitioner who has been
\nelected as a Member of Parliament from the Madras South Constituency and whose
\nnominations ought to have been rejected, has come out with the pleading as  if
\nthe  judgment cited supra merely directs to declare and render information and
\nthat it does not require compliance or sanctions in the case of violation.\n<\/p>\n
        (c) The Supreme Court has held that taking by oath  is  not  an  empty
\nformality  and it has some credibility and meaning and if there is a violation
\nof law and when the same is in exercise of powers of  the  Constitution,  then
\nthe candidate’s  affirmation on oath would become invalid.  It is not only the
\ninformation but also the contents of the information, which are important.  If
\nthe contents of the information discloses any violation of any law,  order  or
\ndirection  issued  in  exercise  of powers under the Constitution of India, it
\nwould clearly spell out that  such  persons  are  not  eligible  to  stand  in
\nelections.   It  is  not  the case of the petitioner that he does not have two
\nwives.  In case of clear  admission  of  fact,  there  is  no  requirement  to
\nseparately prove the contents when the petitioner himself has admitted that he
\nhas  two  wives,  and therefore, any attempt to interpret the Section would be
\nwholly immaterial.  If it is the case of the petitioner that he does not  have
\ntwo wives, then the declaration under oath in the form of an affidavit becomes
\nfalse.   Whenever  declaration  of  facts  by a candidate is later found to be
\nfalse, it would attract the provisions of the respective law.\n<\/p>\n
        (d) The defence taken by the petitioner that no ceremony was performed
\nand there is no proper solemnization, is impermissible  in  law  as  there  is
\nclear admission at the first instance by the petitioner that he has two wives.
\nThis is  not  a case of criminal prosecution under Sec.494 I.P.C.  by invoking
\nthe provisions of Sec.198 of Cr.P.C.  In this case, in view  of  the  admitted
\nposition  that  too  on  oath  in  the  form  of an affidavit, it would not be
\nrequired to be separately proved.  The question of prosecution  as  stipulated
\nunder Sec.198 of  Cr.P.C.    for the offence under Sec.494 of I.P.C.  does not
\narise in view of the said  admission.    The  provisions  of  law  as  regards
\nacceptance  of  nomination  and  commission  of  admitted  offence  have to be
\nexamined in detail by the Court of law and it cannot be summarily done in  the
\napplication to reject the petition.  The Hon’ble Supreme Court as well as this
\nCourt  has repeatedly held that Order 7 Rule 11 can be applied only when there
\nis no cause of action.  In this case, the cause of action has been clearly set
\nout in the petition and similarly, the violation of  the  provisions  of  law,
\netc.   has  also  been  stated,  and therefore, seeking to reject the petition
\nstating as if there is no cause  of  action,  which  has  arisen,  is  totally
\nmisconceived.   The  very  fact  that  the  petitioner  has  chosen to file an
\naffidavit denying the application of the provisions of the  Constitution,  the
\njudgment  of the Hon’ble Supreme Court and the rule making power under Article
\n324 would justify and go to show that there are triable issues.  These  issues
\ncannot be summarily decided in the course of the enquiry to reject the plaint.\n<\/p>\n
        (e)  The  first respondent has to make detailed legal submissions with
\nregard to the application of Sec.100 of  the  Representation  of  People  Act,
\nArticle  324, the provisions of the Representation of People Act, the question
\nas to whether the judgment of the Supreme Court is not res-integra and further
\nas to whether Sec.100 of the said Act falls within  the  meaning  of  occupied
\nfield  of  legislation  not  leaving  it  open  for the Election Commission in
\nexercise of powers under Article 32 4, and all these questions could  be  gone
\ninto  in  detail and short cut method for dismissing the application cannot be
\nadopted.  The Court is not at this stage required to go into  the  comparative
\npleas  and  the  defence of the petitioner with regard to the averments in the
\npetition.  What is required at this stage is only to ascertain  whether  there
\nis prima facie, for a triable cause of action on the basis of the averments in
\nthe petition.    The  election  petition  cannot be rejected in limini without
\ntrial as all these questions ought to be decided at length,  and  prima  facie
\naverments would  disclose  existence  of  violation  of law.  The Court is not
\nexpected to sieve through the evidence with a magnifying lens at  this  stage.
\nThe  test  is  whether  the averments made in the petition, on the face of it,
\nwould give rise to triable issues or not.\n<\/p>\n
        (f) The election petitioner knows to read and write  English  and  has
\naffixed  the signature in Tamil, and thereby, the provisions of Order 2 Rule 9
\nwould not be attracted.  Otherwise, no person  would  be  able  to  affix  the
\nsignature in his native langua if the petition is in English.  The requirement
\nto  explain the averments by the Commissioner of Oaths or a Notary would arise
\nonly when a person is unable to read and write English.   In  this  case,  the
\nsaid  condition  is satisfied, and hence, insisting upon verification would be
\nmeaningless.  Therefore, the petitioner’s apprehension is totally misconceived
\nand without any basis.  The petitioner has not made out a case  for  rejection
\nof the petition, and there is a substantial question of law and interpretation
\nof provisions of the Constitution as well as the Representation of People Act,
\nand there  are  various  judgments which ought to be relied upon.  Hence, this
\napplication is liable to be dismissed.\n<\/p>\n
        5.  As could be seen above, the main election petition is filed by the
\nfirst respondent herein seeking  to  declare  the  election  of  the  returned
\ncandidate  the  first respondent therein for No.3 Madras (South) Parliamentary
\nConstituency in the election held on 10.5.2004 as void on the ground that  the
\ndeclared  candidate  has  two  spouses living and has declared assets in their
\nnames; that he has admitted the fact that he has  contracted  second  marriage
\nwhen  the  first  spouse  was  living;  that since the declared candidate is a
\nHindu, the provisions of Hindu Marriages Act, 1955, would apply to  him;  that
\nhe  has  committed  bigamy within the meaning of Sec.17 of the Hindu Marriages
\nAct, and he is liable to be punished under Sections 494 and 495 of the I.P.C.;
\nthat in view of the admission made by him, it  would  be  clear  that  he  has
\nviolated  the  law for the time being in force, and hence, he should be termed
\nas one who is statutorily disqualified.  Pending the said  election  petition,
\nthe  declared  candidate who is the first respondent in the election petition,
\nhas taken out the instant application to reject the  election  petition  under
\nOrder 7  Rule  11(a) of the C.P.C.  stating that the averments in the election
\npetition taken as a whole do not make out any cause of  action  or  a  triable
\nissue,  and  therefore,  the  election petition itself was not maintainable in
\nlaw.\n<\/p>\n
        6.  Advancing his arguments on the application seeking to  reject  the
\nelection  petition,  Mr.V.T.Gopalan,  learned Senior Counsel appearing for the
\npetitioner,  would  submit  that  in  the   election   petition,   the   first
\nrespondent\/petitioner was harping upon only one issue namely when the declared
\ncandidate  gave the particulars in Columns (A) and (B) relating to the details
\nof movable assets and immovable assets in the annexure filed  along  with  the
\nnomination  papers,  he had disclosed the property owned by Porkodi as well as
\nRenukadevi, who  have  been  described  as  his  two  spouses,  and  thus,  by
\ncontracting  second  marriage  during the life time of the first marriage, the
\ndeclared candidate has violated the provisions of Sec.17 of the Hindu Marriage
\nAct and Sec.49 4 of I.P.C., and hence, the election  of  the  petitioner\/first
\nrespondent  was  void  on  the  grounds within the meaning of Sec.80 read with
\nSec.100(1)(d)(iv) of the  Representation  of  People  Act;  that  the  instant
\napplication  has been filed by the declared candidate in the election petition
\nunder Order  VII  Rule  11  of  the  C.P.C.    read  with  Sec.83(1)  of   the
\nRepresentation  of People Act to reject the election petition itself in limini
\nand summarily, since the election petition does  not  disclose  any  cause  of
\naction  or  any triable issue; that it has been well settled by the Apex Court
\nthat an election petition can be summarily dismissed, if it does not  disclose
\nany  cause of action, and the Court need not probe into the facts on the basis
\nof the controversies raised in the counter; that the only issue raised by  the
\nelection  petitioner is that the declared candidate has two wives and the said
\nissue per se does not disclose any cause of action or a triable issue even  if
\nthe  disclosure  made by the returned candidate as stated above, described the
\nproperties as belonging to two spouses; that along with the nomination  paper,
\na  candidate is also obliged to file an affidavit stating as to whether he had
\nsuffered any conviction or whether any criminal cases are pending against him;
\nthat the declared candidate in his  affidavit  has  stated  that  he  has  not
\nsuffered  any  conviction and that no criminal cases were pending against him;
\nthat the said fact is not disputed by the election petitioner; that  it  is  a
\nfact that the returned candidate has filled up the columns A and B relating to
\nthe  assets  and  disclosed  under  the columns Spouse(s) “assets owned by two
\nspouses” and as such, has complied with all the requirements of disclosure  of
\nassets in the names of the spouses, and thus, the declared candidate cannot be
\naccused of any non-disclosure in this behalf.\n<\/p>\n
        7.   Added  further,  the  learned  Senior Counsel that insofar as the
\nprosecution  culminating  in  conviction  which  would  be   regarded   as   a
\ndisqualification  to  contest  in the election, Sec.8 of the Representation of
\nPeople  Act,  1951,  provides  certain   prosecutions   and   convictions   as
\ndisqualifications;  that  the  returned  candidate  has  not suffered any such
\nprosecution or conviction, which would be regarded as  a  disqualification  as
\nper  Sec.8  of  the  Act;  that  apart from that, that was not the case of the
\nelection petitioner also; but, the election petitioner  has  stated  that  the
\nreturned candidate is liable for prosecution under Sections 494 and 495 of the
\nIndian  Penal Code; that Sec.17 of the Hindu Marriage Act and Sections 494 and
\n495 of I.P.C., considered along with Sec.198 of Cr.P.C.,  contemplate  that  a
\ncharge  of  bigamy  has  to be complained of only by the first wife or certain
\nnamed close relatives mentioned in Sec.198 of Cr.P.C.; that no other person is
\nentitled in law to complain about the bigamy, and as such, even  the  election
\npetitioner cannot lay complaint of bigamy against the declared candidate; that
\nunder  Sec.17  of  the  Hindu  Marriage  Act,  any marriage between two Hindus
\nsolemnized after the commencement of the Act, is void, if at the date of  such
\nmarriage, either party had a husband or wife living and that the provisions of
\nSections 494 and 495 of I.P.C.  shall apply accordingly.\n<\/p>\n
        8.   Placing  reliance  on  the decisions reported in AIR 1965 SUPREME
\nCOURT 1564; AIR 1966 SUPREME COURT 614; AIR 1971 SUPREME COURT  1153  and  AIR
\n1991  SUPP.(2)  SC  616, the learned Senior Counsel would submit that the Apex
\nCourt on number of occasions has interpreted the word  ‘  solemnized’  to  the
\neffect that the marriage shall be celebrated with proper ceremonies and in due
\nform  and  that  any conviction based on admission alone cannot stand; that in
\nthe instant case, the election petitioner has  no  locus  standi  to  complain
\nabout  bigamy  against  the  petitioner  herein;  that  there  is not even any
\naverment that the declared candidate has contracted the second  marriage,  the
\nsolemnization  of  which  was  as  per Sec.7 of the Hindu Marriage Act, and as
\nsuch, Sec.17 read with Sections 494 and 495 would be attracted; that whether a
\nsecond marriage was solemnized as per Sec.7 of the Hindu Marriage  Act,  is  a
\ncrucial  and  material fact which has got to be pleaded in the case of bigamy;
\nthat in the absence of any pleading, even assuming without admitting that  the
\npetitioner  in  the above application and the first respondent in the election
\npetition has contracted second marriage that by itself would not  attract  the
\napplication  of  Sec.17  of  the Hindu Marriage Act or the penal provisions of
\nSec.494 of I.P.C.; that in the absence of necessary pleading in  that  regard,
\nno evidence can be let in and no amount of evidence can cure the defect in the
\npleading; that in the absence of any conviction for bigamy, the mere fact that
\na  person  has  disclosed the properties in the names of the spouses cannot by
\nitself be regarded as a disqualification; that the stand taken by the election
\npetitioner in the counter if read  together,  proves  the  inconsistent  stand
\ntaken  with  regard  to  the  proof necessary in establishing bigamy; that the
\nrequirement as to the disclosure of particulars of  assets  of  the  spouse(s)
\ncame to be insisted upon by the Election Commission pursuant to the directions
\nof the Supreme Court in the decision reported in (2002) 5 SCC 294, wherein the
\nSupreme  Court  held that where the provisions of the Representation of People
\nAct are silent, the Election  Commission  in  exercise  of  its  powers  under
\nArticle 324 of the Constitution of India, can give directions and the Election
\nCommission  was  directed  to  insist  upon  the  disclosure  of assets by his
\nspouse(s), the very object being that the voter should be informed  about  the
\ncandidate  that  he  has to choose judged by disclosures; that pursuant to the
\ndirections of the Supreme Court, the Representation of People Act was amended,
\nby which Sec.33-A was introduced to the effect that  only  when  a  person  is
\naccused  of  any  offence  etc., in a pending case, the conviction of a person
\nalone to be stated in the affidavit and under Sec.33(B) it was  provided  that
\nno  candidate is liable to disclose or furnish any such information in respect
\nof his election which is not required to be disclosed or furnished  under  the
\nAct or Rules made thereunder; that Sec.33(B) was struck down by the Apex Court
\nin  its  decision  reported  in  (2003)4 SCC 399, wherein it was held that the
\nearlier judgment of the Supreme Court reported  in  (200  2)  5  SCC  294  had
\nattained  finality, and it was further held that a voter has got a fundamental
\nright under Article 19(1)(a) to  know  the  antecedents  of  a  candidate  for
\nvarious  reasons recorded in the earlier judgment as well as in that judgment,
\nand thus, the requirement to state the movable and  immovable  assets  of  the
\nspouse(s) as directed in the earlier judgment of the Supreme Court in (2002) 5
\nSCC 294 holds the field, and the object for making such disclosure was only to
\nput  the  voter  on  notice  about  the antecedents of the candidate, and such
\ndisclosure cannot be taken to be a disqualification and particularly when  the
\nreturned  candidate  has  not suffered any disqualification under Sec.8 of the
\nRepresentation of People Act.\n<\/p>\n
        9.  Advancing his further arguments, the learned Senior Counsel  would
\nsubmit  that  the  election  petition  has  got to be viewed with reference to
\nSec.100(i)(d)(iv) of the Representation of  People  Act,  which  is  the  only
\nSection  providing  for  setting  aside  an election; that the Hon’ble Supreme
\nCourt has declared the law that the grounds for  declaring  an  election  void
\nmust  strictly conform to the grounds mentioned in Sec.100 and the allegations
\nof disqualification have to be construed  very  strictly,  and  it  cannot  be
\nanalysed  by  importing  any  meaning  other  than  the  permissible on strict
\ninterpretation of the expression used; that further the directives  issued  by
\nthe  Election  Commission  under  Article  324  of  the Constitution cannot be
\nbrought within the ambit and scope of Sec.100(1)(d)(iv) for  the  reason  that
\nSec.100(1)(d)( iv) merely states “by any non-compliance with the provisions of
\nthe  Constitution  or  of  this  Act or of any rules or orders made under this
\nAct”; that if the directives issued by the Election Commission  under  Article
\n324  of  the  Constitution,  is  also  to  be  brought  within  the  scope  of
\nSec.100(1)(d)(iv), then the said provision has to  be  rewritten  as  “by  any
\nnon-compliance  with  the  provisions of the Constitution or of any directives
\nissued under the Constitution etc.”, which excepting the Parliament, no  other
\nperson  can  have  the  power  to  add  words  to  the  statute; that the mere
\nallegation of bigamy, in  the  face  of  the  admitted  fact  that  the  first
\nrespondent  has  not  suffered any conviction, cannot come within the ambit of
\nSec.100(1)(d)(iv); that if Sec.100(1 )(d)(iv) is analysed,  non-compliance  of
\nthe  provisions  of  the  Constitution  can  be a ground for setting aside the
\nelection; that the election petitioner has not alleged any  non-compliance  of
\nthe  provisions  of  the  Constitution;  that  apart  from  that, there was no
\nnon-compliance of the provisions of the Representation of People Act or of any
\nRules or Order made under the Act, and thus, there is absolutely  no  averment
\nin  the  election  petition  that  the  returned  candidate  has committed any
\nviolation of the provisions of the Representation of People Act or  any  Rules
\nor  Orders  made under the Act; that the prime plea of the election petitioner
\nthat the first respondent has committed violation of  the  provisions  of  the
\nHindu  Marriage  Act,  which  is  a  parliamentary  enactment,  and hence, the
\ndeclared candidate’s election is  to  be  set  aside  under  Sec.100(1)(d)(iv)
\ncannot  be  countenanced  in  law; that if such an interpretation is accepted,
\nthen, it would be really tantamount to adding words to  Sec.100(1)(d)(iv)  for
\nwhich  nobody  has  got  the  power  excepting  the  Parliament; that the said
\nprovision cannot be stretched the way the election petitioner would like to do
\nby bringing the mere charge of bigamy within the ambit  of  Sec.100(1)(d)(iv);
\nthat  the  election  petitioner  cannot  take  advantage  of  and  convert the
\ndirectives of the Supreme  Court  and  consequently,  the  directives  of  the
\nElection  Commission,  to  disclose  the  assets  of  the  spouse(s)  for  the
\ninformation of the voter to decide as to whom the voter should caste his  vote
\nas a disqualification which would be a ground for declaring the election to be
\nvoid  under  Sec.100(1)(d)(iv);  that the plain language of the provision does
\nnot admit any such disqualification as a ground for setting the election void;
\nthat the averments in the election  petition  taken  as  a  whole  making  the
\ndisclosure of assets in the name of spouse(s) which is required to be complied
\nwith  by  a  candidate for the information of the voter cannot be treated as a
\nground for declaring the election to be  void  under  Sec.100(1)(d)(iv);  that
\neven  assuming  that  the declared candidate has two spouses to be true, which
\nwas the only ground taken in  the  election  petition,  the  election  of  the
\nreturned  candidate  cannot  be  set  aside  under Sec.100(1)(d)(iv); that the
\nelection petitioner has not disclosed any material fact  or  cause  of  action
\ndisclosing  a triable issue; that the election petitioner cannot succeed under
\nthe provisions of Sec.100(1)(d)(iv) on a mere charge of bigamy, and therefore,
\nthe election petition  is  totally  frivolous  and  has  got  to  be  rejected
\nsummarily under Order VII Rule 11.\n<\/p>\n
        10.   Added  further,  the  learned  Senior  Counsel that the election
\npetition has to be signed by the  election  petitioner  and  verified  in  the
\nmanner  laid  down  in  the  Code  of  Civil Procedure for the verification of
\npleadings; that under Rule  2  of  Rules  of  Madras  High  Court    Election
\nPetitions  1967,  the  election  petition  should  be  verified  in the manner
\nprovided for under  C.P.C.;  that  under  Order  VI  Rule  15(4),  the  person
\nverifying  the  pleadings  should  also furnish an affidavit in support of his
\npleadings; that in the instant case, the election petitioner has not filed any
\naffidavit in support of his pleadings to verify the same as required under the
\nsaid Rule, and thus, the election petition is liable to be dismissed in limini
\nunder Sec.83(3) of the Representation of People Act; that apart from that, the
\nelection petitioner has signed the election  petition  in  Tamil  without  the
\nprescribed  jurette  form  by  persons  signing  in  Tamil;  that the election
\npetitioner would state in his counter that even though he has signed in Tamil,
\nhe knew  English;  that  such  a  plea  cannot  be  countenanced  in  view  of
\nrequirement  of Rule 9 of Order II of the Original Side Rules read with Form 7
\nand 8 which specifically prescribes a particular Jurette for  persons  signing
\nin  Tamil;  that  on  that  ground also, the election petition is liable to be
\ndismissed for non-compliance of the provisions of the Representation of People
\nAct, and hence, the election petition has  got  to  be  rejected  as  one  not
\nmaintainable.   In  support of his arguments, the learned Senior Counsel cited
\nvery many decisions of the Apex Court.\n<\/p>\n
        11.  Countering the above  contentions,  the  learned  Senior  Counsel
\nMr.T.V.Ramanujam,  appearing for the election petitioner, the first respondent
\nherein, would submit that it cannot be stated  that  there  was  no  cause  of
\naction or any material fact constituting a cause of action or a triable issue;
\nthat  the  returned  candidate  has  come forward with the instant application
\nseeking a summary disposal by attempting to seek the rejection of  the  plaint
\nby  invoking the provisions under Order VII Rule 11; that under Order VII Rule
\n11, a plaint could be rejected when it does not disclose a  cause  of  action;
\nthat  in  the  instant  case,  the election petitioner has clearly disclosed a
\ncause of action, and therefore, the allegation that  there  was  no  cause  of
\naction  to  proceed  was  totally misconceived; that the cause of action would
\nmean a bundle of facts which would go to prove certain  allegations;  that  in
\nthe election petition, the election petitioner has clearly stated the cause of
\naction;  that  he  has  also  clearly  averred that the returned candidate has
\ncontracted the second marriage in violation of the provisions of law; that the
\nsaid bigamous marriage is punishable under Sec.494 of I.P.C.   and  Sec.17  of
\nthe  Hindu  Marriage  Act;  that  those  facts  are  clearly  mentioned in the
\naffidavit, and those  facts  are  true,  and  hence,  the  acceptance  of  the
\nnomination  papers by the Returning Officer was invalid in the eye of law, and
\nthus, it has materially affected the result of the election  of  the  returned
\ncandidate;  that  the  election  petition filed by the election petitioner, if
\nread as a whole, would clearly reveal that there was a clear cause of  action,
\nand  hence, the improper acceptance of the nomination by the Returning Officer
\ncannot be summarily decided; that it has to be decided only on evidence;  that
\nthe Apex Court in Union of India Vs.  Association of Democratic Rules (2002) 5
\nSCC  2940  has held that it was mandatory for a candidate to file an affidavit
\nstating his educational qualification, his  assets,  criminal  charges,  etc.;
\nthat  the  entire  judgment  has been misinterpreted by the petitioner herein;
\nthat it is pertinent to point out that the Apex Court has observed in the said
\njudgment that in the absence of any legislation on the field, the  requirement
\nto give certain information under Article 324 would give over-riding powers to
\nthe  Election Commission to direct the candidates to furnish information; that
\nit is not the question of a  field  being  occupied  by  a  law  made  by  the
\nParliament;  that  it related to the very exercise of the powers under Article
\n324; that if the petitioner was aggrieved by the said order of the Apex Court,
\nthen he would have challenged the same by way of a review; that the Apex Court
\nhas given a categorical ruling which is the law of the land, under Article 141
\nof the Constitution; that the question  is  not  as  to  whether  Article  324
\nsupplants  the  legislation  or supplements the legislation while interpreting
\nArticle 324 of the Constitution; that the Apex Court  has  categorically  held
\nthat  such  declaration  of  information  is  essential  in  the  interest  of
\ndemocratic principles; that it was a right of every voter\/electorate  to  know
\nabout  the background, qualificat ion and assets of the candidate; that in the
\ncircumstances, the declaration of facts in the form of the  affidavit  whether
\nin  exercise of the powers under Article 324 or in view of the judgment of the
\nApex Court would not help the petitioner in any manner,  and  it  is  for  the
\nCourts to interpret law.\n<\/p>\n
        12.  Added further the learned Senior Counsel that the election of the
\nfirst  respondent  returned  candidate  is  invalid under Sec.100(d)(i) of the
\nRepresentation of the People  Act  as  there  was  acceptance  of  an  invalid
\nnomination;  that this was a material fact; that by improper acceptance of the
\nnomination,  the  law  could   be   set   in   motion;   that   according   to
\nSec.100(1)(d)(iv)  of  the  Act,  whenever  there  is  a  noncompliance of the
\nprovisions of the Constitution or Rules or Orders under the Representation  of
\nthe  People Act, an election can be set aside; that it should not be forgotten
\nthat under such circumstances, the provisions of the Constitution  insofar  as
\nthe  exercise  of powers under Article 324 was concerned, would only spell out
\nthe Constitutional powers of the Election Commission; that  the  violation  of
\nthe  Constitution  would mean the violation of any law made in exercise of the
\npowers under the Constitution of  India,  and  hence,  it  would  attract  the
\nprovisions  of  Sec.100(1)(d)(iv) of the Act; that every candidate is required
\nto give a declaration; that it is to be remembered that the declaration is not
\nan empty formality; that the duty of the candidate does not come to an end  by
\nmaking  a  mere  declaration;  that  the purpose of the declaration is that it
\nshould reach the voter so that the voter before exercising the franchise,  can
\nhave an idea about the candidate; that it would be imperative to know that the
\nrepresentatives of the people should be above board and they themselves should
\nnot  be  seen  to  be violating the law; that the Hindu Marriage Act was a law
\nmade by the Parliament of India in exercise of the law making powers under the
\nConstitution; that the  said  Act  defines  second  marriage  when  the  first
\nmarriage  is  subsisting is unlawful and bigamous, and hence, the question can
\nbe decided only during trial.\n<\/p>\n
        13.  The learned Senior Counsel would further submit that the returned
\ncandidate as a Member of the Parliament has taken oath stating that  he  would
\nbear  true  faith  and  allegiance  to  the  Constitution  of  India as by law
\nestablished that he would uphold the sovereignty and integrity of India;  that
\nthe Apex Court has held that taking up oath was not an empty formality, and it
\nhas  credibility and meaning; that if there was any violation of law, when the
\nsame was in exercise of  the  powers  of  the  Constitution,  the  candidate’s
\naffirmation  on  oath  would become invalid; that the information furnished by
\nthe candidates were not only information, but  also  contents  of  information
\nwhich  were very important; that when the contents of the information given by
\nthe candidate disclose violation of law or of order or of direction issued  in
\nexercise  of  the  powers  under  the  Constitution of India, it would clearly
\nindicate that such person was not eligible to contest in election; that it was
\nnot the case of the returned candidate that he did not have two wives; that it
\nwas a clear case of admission of fact, and hence, there was no requirement  to
\nseparately  prove  the  contents; that the returned candidate has putforth his
\nown interpretation of law and has stated that  the  second  marriage  was  not
\nvalidly  done;  that  in  the  instant  case,  if the returned candidate comes
\nforward with a case to state that he actually did not have two wives, then the
\ndeclaration given by him by way of an affidavit, becomes false, and this would
\nalso attract the provisions of  the  respective  law;  that  in  view  of  the
\nadmission  made  by  the returned candidate, it is for him to state that there
\nwas no solemnization of marriage as required in  law,  and  thus,  the  second
\nmarriage  was  invalid, and it was not for the election petitioner to plead or
\nprove the same in view of the admission made, and thus, the issues  cannot  be
\ndecided  summarily,  and  under  the stated circumstances, it cannot be stated
\nthat the election petitioner has not disclosed any cause of action;  that  the
\nelection  petitioner has disclosed the necessary cause of action; but, whether
\nsuch cause of action would be sufficient or not to get the relief has  got  to
\nbe  decided only after the framing of issues and the evidence adduced on those
\nissues by the parties.\n<\/p>\n
        14.  Added further the learned Senior Counsel that the requirement  to
\nget  the  election petition verified by an interpreter or an Oath Commissioner
\nwould arise only when the election petitioner was not able to read and  write;
\nthat  such  a procedure cannot be stretched to mean and include the case where
\nthe signature was made in Tamil, and therefore, the contention of the returned
\ncandidate was totally misconceived; that so  far  as  the  contention  of  the
\nreturned candidate that the supporting affidavit was not filed by the election
\npetitioner  was  concerned,  it  cannot  be  a  ground  to reject the election
\npetition for the reason that if the supporting affidavit was not filed by  the
\nelection  petitioner  along  with the election petition, he can be directed to
\nfurnish the same before the commencement of the trial; that even after such  a
\ndirection issued by the Court, if the election petitioner does not comply with
\nthe  same, it could be considered as one incurable; that the non-filing of the
\naffidavit at this stage cannot be termed as incurable defect; but it could  be
\ncured  by  filing  a  proper  affidavit,  and  hence  the  application seeking
\nrejection of the election petition has got  to  be  dismissed.    The  learned
\nSenior  Counsel also cited number of decisions of the Apex Court in support of
\nhis contentions.\n<\/p>\n
        15.  The  main  election  petition  seeking  a  declaration  that  the
\nelection  of  the  returned  candidate namely the first respondent therein, is
\nfiled on the ground that the returned candidate has admitted in the  affidavit
\nfiled  along  with  the  nomination  papers  that he has committed bigamy, and
\nhence, his election has got to be declared as void under Sec.100(1)(d)(i)  and\n<\/p>\n
(iv) of  the  Representation  of  the  People  Act.  Pending the said election
\npetition, the returned candidate has made the instant  application  to  reject
\nthe  election  petition under Order VII Rule 11(a) of the Civil Procedure Code
\nstating that the election petition even taken as a whole, does  not  show  any
\ncause of  action or a triable issue.  Therefore, the question that would arise
\nfor consideration would be “whether the election petition  requires  rejection
\nfor want  of  a  cause of action and a triable issue?”.  In considering such a
\npreliminary objection that the election petition requires  a  rejection  under
\nOrder VII Rule 11, the law is well settled that the test should be whether any
\nrelief as prayed for, could be granted in favour of the election petitioner if
\nthe averments  made  in  the  election  petition, were proved to be true.  The
\nCourt has to find out whether those averments disclose a cause of action or  a
\ntriable  issue,  but  should  not  probe  into  the  facts on the basis of the
\ncontroversy raised by the other party.  At this juncture,  it  would  be  more
\nappropriate to reproduce the decision of the Supreme Court in AZHAR HUSSAIN V.
\nRAJIV  GANDHI<\/a>  (1986 (SUPP) SUPREME COURT CASES 315) as to when and under what
\ncircumstances the Court could exercise its powers  to  summarily  dismiss  the
\nelection petition.  The Apex Court has held thus:\n<\/p>\n
“11.   In  view  of  this pronouncement there is no escape from the conclusion
\nthat an election petition can be summarily dismissed if it  does  not  furnish
\ncause  of  action in exercise of the powers under the Code of Civil procedure.
\nSo also it emerges from the aforesaid  decision  that  appropriate  orders  in
\nexercise  of  powers  under  the  Code of Civil Procedure can be passed if the
\nmandatory requirements enjoined by Section 83 of the Act  to  incorporate  the
\nmaterial facts  in the election petition are not complied with.  This Court in
\nSamant case has expressed itself in no unclear terms that the  omission  of  a
\nsingle  material  fact would lead to an incomplete cause of action and that an
\nelection petition without the material facts relating to a corrupt practice is
\nnot an election petition at all.  So also in Udhav Singh case the law has been
\nenunciated that all the primary facts which must  be  proved  by  a  party  to
\nestablish a cause of action or his defence are material facts.  In the context
\nof  a  charge  of  corrupt  practice  it would mean that the basic facts which
\nconstitute the ingredients of the particular corrupt practice alleged  by  the
\npetitioner must be specified in order to succeed on the charge.  Whether in an
\nelection petition a particular fact is material or not and as such required to
\nbe  pleaded  is  dependent  on  the  nature  of  the  charge  levelled and the
\ncircumstances of the case.  All the facts which are essential  to  clothe  the
\npetition  with  complete  cause of action must be pleaded and failure to plead
\neven a single material fact would amount to disobedience  of  the  mandate  of
\nSection 83(1)(a).  An election petition therefore can be and must be dismissed
\nif it  suffers  from  any  such  vice.    The  first  ground of challenge must
\ntherefore fail.\n<\/p>\n
12.  Learned counsel for the petitioner has next argued that in any event  the
\npowers  to  reject  an election petition summarily under the provisions of the
\nCode of Civil Procedure  should  not  be  exercised  at  the  threshold.    In
\nsubstance,  the argument is that the court must proceed with the trial, record
\nthe evidence, and only after the trial of the election petition  is  concluded
\nthat  the  powers  under the Code of Civil Procedure for dealing appropriately
\nwith the defective petition which does not disclose cause of action should  be
\nexercised.  With respect to the learned counsel, it is an argument which it is
\ndifficult to comprehend.  The whole purpose of conferment of such powers is to
\nensure  that  a  litigation  which  is meaningless and bound to prove abortive
\nshould not be permitted to occupy the time of the court and exercise the  mind
\nof the  respondent.    The sword of Damocles need not be kept hanging over his
\nhead unnecessarily without point or  purpose.    Even  in  an  ordinary  civil
\nlitigation the court readily exercises the power to reject a plaint if it does
\nnot disclose  any cause of action.  Or the power to direct the concerned party
\nto strike out unnecessary, scandalous, frivolous or  vexatious  parts  of  the
\npleadings.   Or  such  pleadings  which  are likely to cause embarrass ment or
\ndelay the fair trial of the action or which  is  otherwise  an  abuse  of  the
\nprocess of  law.    An  order  directing  a  party to strike out a part of the
\npleading would result in the termination of the case arising in the context of
\nthe said pleading.  The courts in exercise of the powers  under  the  Code  of
\nCivil  Procedure can also treat any point going to the root of the matter such
\nas one pertaining to jurisdiction or maintainability as  a  preliminary  point
\nand  can  dismiss  a  suit  without  proceeding  to  record  evidence and hear
\nelaborate arguments in the context of such evidence, if the court is satisfied
\nthat the action would terminate in view of the merits of the preliminary point
\nof objection.  The contention that even if the election petition is liable  to
\nbe  dismissed  ultimately  it  should  be  so  dismissed  only after recording
\nevidence is a thoroughly misconceived and untenable argument.  The  powers  in
\nthis  behalf are meant to be exercised to serve the purpose for which the same
\nhave been conferred on the competent court so that the litigation comes to  an
\nend  at  the  earliest  and  the  concerned  litigants  are  relieved  of  the
\npsychological burden of the litigation so  as  to  be  free  to  follow  their
\nordinary pursuits  and  discharge  their  duties.  And so that they can adjust
\ntheir affairs on the footing that the litigation  will  not  make  demands  on
\ntheir  time or resources, will not impede their future work, and they are free
\nto undertake and fulfil other commitments.  Such being the position in  regard
\nto matter pertaining to ordinary civil litigation, there is greater reason for
\ntaking the same view in regard to matters pertaining to elections.  So long as
\nthe  sword  of  Damocles  of  the election petition remains hanging an elected
\nmember of the legislature would not  feel  sufficiently  free  to  devote  his
\nwhole-hearted  attention to matters of public importance which clamour for his
\nattention in his capacity  as  an  elected  representative  of  the  concerned
\nconstituency.  The time and attention demanded by his elected office will have
\nto  be diverted to matters pertaining to the contest of the election petition.
\nInstead of being engaged in a campaign to relieve the distress of  the  people
\nin general and of the residents of his constituency who voted him into office,
\nand  instead  of  resolving their problems, he would be engaged in campaign to
\nestablish that he has in fact been duly elected.  Instead of  discharging  his
\nfunctions  as the elected representative of the people, he will be engaged ina
\nstruggle to establish that he is indeed such a representative, notwithstanding
\nthe fact that he has in fact  won  the  verdict  and  the  confidence  of  the
\nelectorate at  the polls.  He will have not only to win the vote of the people
\nbut also to win the vote of the court in a long drawn out litigation before he
\ncan wholeheartedly engage himself in discharging the trust reposed in  him  by
\nthe electorate.    The  pendency  of the election petition would also act as a
\nhindrance if he be trusted with some public office in  his  elected  capacity.
\nHe  may  even have occasion to deal with the representatives of foreign powers
\nwho may wonder whether he will eventually succeed and hesitate  to  deal  with
\nhim.  The fact that an election petition calling into question his election is
\npending may, in a given case, act as a psychological fetter and may not permit
\nhim to  act  with  full  freedom.    Even  if  he is made of stern mettle, the
\nconstraint introduced by the pendency of an election petition  may  have  some
\nimpact  on  his  subconscious mind without his ever being or becoming aware of
\nit.  Under the circumstances, there is greater  reason  why  in  a  democratic
\nset-up,  in  regard to a matter pertaining to an elected representative of the
\npeople which is likely to inhibit him in the discharge of his  duties  towards
\nthe  nation,  the  controversy is set at rest at the earliest, if the facts of
\nthe case and the law so warrant.  Since the court has the power to act at  the
\nthreshold  the  power  must  be  exercised at the threshold itself in case the
\ncourt is satisfied that it is a fit case for the exercise of  such  power  and
\nthat  exercise  of  such  powers is warranted under the relevant provisions of
\nlaw.  To wind up the dialogue, to contend that the powers to dismiss or reject
\nthe election petition or pass appropriate orders should not  be  exercised  at
\nthe  stage of final judgment after recording the evidence even if the facts of
\nthe case warrant exercise of such powers, at the threshold, is to contend that
\nthe legislature conferred these powers without point or purpose, and  we  must
\nclose  our mental eye to the presence of the powers which should be treated as
\nnon-existent.  The court cannot accede to such a proposition.  The  submission
\nurged  by the learned counsel for the petitioner in this behalf must therefore
\nbe firmly repelled.”\n<\/p>\n
From the above it would be quite  clear  that  the  powers  conferred  on  the
\ncompetent  Court,  should  serve  the  purpose  for  which  the same have been
\nconferred, and it would be meaningless and misconceived to contend  that  even
\nif  the  election petition was liable to be dismissed, ultimately it should be
\nso dismissed after a trial was over.  Before analysing whether  the  averments
\nmade  in the election petition, would disclose a cause of action and a triable
\nissue, it would be better to look  into  the  provisions  of  law  as  to  the
\nqualification,  disqualification  and  the  grounds  on which an election of a
\ncandidate can be declared void.\n<\/p>\n
        16.  Article 84 of the Indian Constitution speaks of the qualification
\nfor Membership of Parliament.  The same reads as follows:
\n“84.  Qualification for membership of Parliament    A  person  shall  not  be
\nqualified to be chosen to fill a seat in Parliament unless he-\n<\/p>\n
(a)  is  a  citizen  of  India,  and  makes  and subscribes before some person
\nauthorised in that behalf by the Election Commission an  oath  or  affirmation
\naccording to the form set out for the purpose in the Third Schedule;\n<\/p>\n
(b)  is,  in the case of a seat in the Council of States, not less than thirty
\nyears of age and, in the case of a seat in the House of the People,  not  less
\nthan twenty-five years of age; and\n<\/p>\n
(c) possesses such other qualifications as may be prescribed in that behalf by
\nor under any law made by the Parliament.”\n<\/p>\n
        17.  What are all the disqualifications for membership in either House
\nof  the Parliament are enumerated under Article 102 of the Constitution, which
\nreads thus:\n<\/p>\n
“102.  Disqualifications for membership  (1) A person shall  be  disqualified
\nfor being chosen as, and for being, a member of either House of Parliament –\n<\/p>\n
(a)  if  he  holds  any  office of profit under the Government of India or the
\nGovernment of any State, other than an office declared by  Parliament  by  law
\nnot to disqualify its holder;\n<\/p>\n
(b) if he is of unsound mind and stands so declared by a competent court;\n<\/p>\n
(c) if he is an undischarged insolvent;\n<\/p>\n
(d)  if  he  is  not  a  citizen  of  India,  or  has voluntarily acquired the
\ncitizenship of a foreign State, or is under any acknowledgement of  allegiance
\nor adherence to a foreign State;\n<\/p>\n
(e) if he is so disqualified by or under any law made by Parliament.
\n(2)  A  person  shall  be  disqualified  for being a member of either House of
\nParliament if he is so disqualified under the Tenth Schedule.”\n<\/p>\n
        18.  Sec.8 of the Representation of the People Act,  1951,  enumerates
\ndisqualification on  conviction  for  certain offences.  Sub-sections (1 ) and
\n(2) of Sec.8 of the Act  speak  of  the  disqualification  on  conviction  for
\ncertain offences.   But, nowhere the bigamy is shown as one of the grounds for
\ndisqualification.  It is true that sub-section (3)  to  Sec.8  states  that  a
\nperson  convicted  of  any  offence and sentenced to imprisonment for not less
\nthan two years, other than any offence  referred  to  in  sub-section  (1)  or
\nsub-section  (2),  shall  be disqualified from the date of such conviction and
\nshall continue to be disqualified for a further period of six years since  his
\nrelease.  At this juncture, it remains to be stated that it is not the case of
\nthe election petitioner that the returned candidate does not possess requisite
\nqualification to be a Member of the Parliament as found under Article 84 or he
\nsuffers  any  disqualification  as  shown in Article 102 or he is disqualified
\nunder Sec.8 of the Representation of the People Act.\n<\/p>\n
        19.  What are all stated in the election petition in paragraph  43  is
\n“Therefore  admittedly  the  first  respondent  who has contracted with second
\nmarriage when a spouse is living and therefore has committed bigamy within the
\nmeaning of Sec.17 and is therefore liable for prosecution  under  Sec.494  and
\n495  of  the  I.P.C.”  From  the  very reading of the pleading by the election
\npetitioner, it would be quite clear that the returned candidate is  liable  to
\nbe prosecuted  under  Sections  494  and  495  of  the  I.P.C.   To invoke the
\ndisqualification under Sec.8(3) of the Act, the  candidate  should  have  been
\nconvicted  of  an  offence and sentenced to imprisonment for not less than two
\nyears for any offence other than those  referred  to  in  sub-section  (1)  or
\nsub-section (2).    It  is  not  the  case of the election petitioner that the
\nreturned candidate was ever prosecuted or stood charged, tried,  found  guilty
\nor sentenced  to imprisonment.  Hence, he does not suffer any disqualification
\nunder Sec.8(3) of the Act.\n<\/p>\n
        20.  What are all alleged by  the  election  petitioner  is  that  the
\nreturned  candidate  while  making  his  declaration  as  to  the  movable and
\nimmovable assets in Columns A and B in form 2-A  attached  to  the  nomination
\npapers, has stated that those assets were owned by his two spouses.  It has to
\nbe  pointed  out  that  the  case  of  the  election  petitioner  is  not  the
\nnon-disclosure of any assets; but, it is his case that the returned  candidate
\nhas  disclosed  that  he  has  got  two  spouses,  which  would  constitute an
\nadmission, and by that admission, he has violated the law of the land for  the
\ntime  being in force, and the same would directly attract the penal provisions
\nof Sections 494 of the I.P.C., and that he  can  be  termed  as  one  who  has
\nstatutorily disqualified.    According  to  Sec.17  of the Hindu Marriage Act,
\n1955, any marriage between the two Hindus solemnized after the commencement of
\nthis Act, is void, if at the date  of  such  marriage  either  party  had  the
\nhusband or wife, as the case may be, living and the provisions of Sections 494
\nand 495 of  I.P.C.    shall apply accordingly.  Marrying again during the life
\ntime of husband or wife is void by reason of its taking place during the  life
\ntime of such husband or wife and is liable to be punished with imprisonment of
\neither  description for a term which may extend to 7 years and also liable for
\nfine under Sec.494 of the Penal Code.  Placing  much  reliance  on  the  above
\nprovisions  of law under the Hindu Marriage Act and the Indian Penal Code, the
\nelection petitioner has put forth his case stating that the returned candidate
\nhas violated the law for the time being in force.  A reading of the provisions
\nunder Sec.17 of the Hindu Marriage Act would make it clear that  any  marriage
\nbetween  the two Hindus solemnized after the commencement of the Act, is void,
\nif on the date of such marriage either party has the other spouse living,  and
\napart  from  that, the provisions under Sections 494 and 495 of the Penal Code
\nwould apply accordingly.  In order to invoke and give effect to Sec.17 of  the
\nsaid  Act,  so as to declare a marriage between the two Hindus as void for the
\nreason of such marriage taking place during the life time of the other spouse,
\nit is very essential to show that such marriage which is sought to be declared
\nas void should have been solemnized.  The Supreme Court in catena of decisions
\nhas interpreted the word ‘solemnized’ as employed in  Sec.1  7  of  the  Hindu
\nMarriage  Act,  to  the  effect that such marriage should have been celebrated
\nwith proper ceremonies and in due form.  No doubt, bigamy is punishable  under
\nSec.494 of  the I.P.C.  But, an act of bigamy can be complained of only by the
\nfirst wife or by the named close relatives in view of Sec.198 of Cr.P.C.,  and
\nno one  else  in  law is entitled to complain about the bigamy.  It is not the
\ncase of the election petitioner that there was any complaint  as  against  the
\ndeclared  candidate  as  to the alleged bigamous marriage or he stood charged,
\ntried, found guilty or sentenced to imprisonment.  As per Sec.198 of  Cr.P.C.,
\nthe  election  petitioner  cannot file a complaint of bigamy against the first
\nrespondent.\n<\/p>\n
        21.  Attractive though  the  contention  put  forth  by  the  election
\npetitioner’s side that the returned candidate himself has made an admission in
\nthe affidavit that he has got two spouses, which would stand a good proof that
\nhe  contracted  the  second marriage, the same would not stand the scrutiny of
\nlaw, in view of the following pronouncements of the  Apex  Court.    The  Apex
\nCourt has  held  in  BHAURAO  SHANKAR  LOKHANDE  AND  ANOTHER V.  THE STATE OF
\nMAHARASHTRA AND ANOTHER (AIR<\/a> 1965 SUPREME COURT 1564) as follows:
\n“(5) The word ‘solemnize’ means, in connection with a marriage,  to  celebrate
\nthe  marriage with proper ceremonies and in due form, according to the Shorter
\nOxford Dictionary.   It  follows,  therefore,  that  unless  the  marriage  is
\n‘celebrated  or  performed  with  proper ceremonies and due form’ it cannot be
\nsaid to be ‘solemnized’.  It is, therefore, essential, for the purpose of S.17
\nof the Act, that the marriage to which S.494, I.P.C.  applies  on  account  of
\nthe  provisions of the Act, should have been celebrated with proper ceremonies
\nand in due form.  Merely going through certain ceremonies with  the  intention
\nthat  the  parties  be  taken  to  be  married,  will  not make the ceremonies
\nprescribed by law or approved by any established custom.
\n(6) We are of opinion that, unless  the  marriage  which  took  place  between
\nappellant No.1 and Kamalabai in February 1962 was performed in accordance with
\nthe  requirements of the law applicable to a marriage between the parties, the
\nmarriage cannot be said to have been ‘ solemnized’ and,  therefore,  appellant
\nNo.1 cannot be held to have committed the offence under S.494, I.P.C.”\n<\/p>\n
        22.  Stating the law that the admission of marriage by an accused in a
\ncriminal proceedings  under Sec.494 of the I.P.C.  is no evidence of marriage,
\nthe Apex  Court  in  KANWAL  RAM  AND  OTHERS  V.     THE   HIMACHAL   PRADESH
\nADMINISTRATION (AIR<\/a> 1966 SUPREME COURT 614) has held thus:
\n“Secondly,  it is clear that in law such admission is not evidence of the fact
\nof the second marriage having taken place.   In  a  bigamy  case,  the  second
\nmarriage  as  a  fact, that is to say, the ceremonies constituting it, must be
\nproved.”\n<\/p>\n
        23.  It has been held by the Apex Court in PRIYA BALA GHOSH V.  SURESH
\nCHANDRA GHOSH (AIR<\/a> 1971 SUPREME COURT 1153) as follows:\n<\/p>\n
“17.  In Kanwal Ram v.  The Himachal Pradesh Admn.<\/a>  (1966) 1 SCR  539  =  (AIR
\n1966  SC  614)  this  Court  again  reiterated the principles laid down in the
\nearlier decision referred to above that in a prosecution for bigamy the second
\nmarriage has to be proved as a fact and  it  must  also  be  proved  that  the
\nnecessary ceremonies  had  been  performed.   Another proposition laid down by
\nthis decision, which answers the second contention of the learned counsel  for
\nthe  appellant,  is that admission of marriage by an accused is no evidence of
\nmarriage for the purpose of proving an offence of bigamy or adultery.  On  the
\nevidence it was held in the said decision, that the witnesses have not proved,
\nthat the essential ceremonies had been performed.”\n<\/p>\n
        24.   From the above decisions, it would be abundantly clear that even
\nif an accused facing a charge for bigamous marriage under  Sec.494  of  I.P.C.
\nmakes  an  admission before the Court, he could not be found guilty in view of
\nthe admission made by him; but, before finding him guilty,  it  would  require
\nthe necessary  pleading  and  the  proof as to the bigamous marriage.  At this
\njuncture, it has to be pointed out that the election petitioner  has  made  an
\naverment  stating  that the returned candidate is liable for prosecution under
\nSec.494 of I.P.C.  in view of the admission made by him in an affidavit  filed
\nalong with  the  nomination  papers  before  the Returning Officer.  Except by
\nstating that the returned candidate has admitted that he has got two  spouses,
\nthe  election  petitioner  has  not  made any allegations which are necessary,
\nrequisite, crucial, and material facts as to the alleged bigamous marriage  of
\nthe returned  candidate.    In  view  of  all  the  above,  the  Court  has to
\nnecessarily state that the contention of the election petitioner’s  side  that
\nthe  declared  candidate has violated the law for the time being in force, and
\nhe  is  to  be  termed  as  one  statutorily  disqualified  has  got   to   be
\ndiscountenanced.\n<\/p>\n
        25.   It  is mandatory under Sec.83(1)(a) of the Representation of the
\nPeople Act 1951, that the election petition should contain a concise statement
\nof the material facts on which the election petitioner relies.    Needless  to
\nsay  that  the material facts are those facts which if established, would give
\nthe election petitioner the relief asked for.   The  test  to  be  applied  is
\nwhether  the  Court  can  give  a  direct  verdict  in  favour of the election
\npetitioner in case the returned candidate  had  not  appeared  to  oppose  the
\nelection petition on the basis of the facts pleaded in the petition.  Material
\nfacts are those facts which would form a basis for the allegations made in the
\npetition  and  would  constitute a cause of action as found in Civil Procedure
\nCode.  The Apex Court in the decision reported in (2001) 8 SUPREME COURT CASES
\n233 (HARI SHANKER JAIN V.  SONIA GANDHI)<\/a> has  discussed  about  the  mandatory
\nnature of Sec.83(1)(a) of the Act as to the material facts and cause of action
\nin an election petition, as follows:\n<\/p>\n
“23.   Section  83(1)(a) of RPA, 1951 mandates that an election petition shall
\ncontain a concise statement of the material  facts  on  which  the  petitioner
\nrelies.   By  a series of decisions of this Court, it is well settled that the
\nmaterial facts required to be stated are those facts which can  be  considered
\nas materials  supporting  the  allegations made.  In other words, they must be
\nsuch facts as would afford a basis for the allegations made  in  the  petition
\nand  would  constitute  the cause of action as understood in the Code of Civil
\nProcedure, 1908.  The expression “cause  of  action”  has  been  compendiously
\ndefined  to  mean  every fact which it would be necessary for the plaintiff to
\nprove, if traversed, in order to support his right to the judgment  of  Court.
\nOmission  of a single material fact leads to an incomplete cause of action and
\nthe statement of claim becomes bad.  The function of the party is  to  present
\nas  full  a  picture  of  the cause of action with such further information in
\ndetail as to make the opposite party understand the case he will have to meet.
\n(See Samant N.Balkrishna v.   George  Fernandez,  Jitendra  Bahadur  Singh<\/a>  v.
\nKrishna  Behari.)  Merely  quoting the words of the section like chanting of a
\nmantra does not amount to  stating  material  facts.    Material  facts  would
\ninclude  positive  statement  of facts as also positive averment of a negative
\nfact, if necessary.  In V.S.  Achuthanandan v.  P.J.  Francis<\/a> this  Court  has
\nheld,  on  a  conspectus of a series of decisions of this Court, that material
\nfacts are such preliminary facts which must be proved at the trial by a  party
\nto establish  existence  of  a  cause  of  action.  Failure to plead “material
\nfacts” is fatal to the election petition and no amendment of the pleadings  is
\npermissible  to  introduce such material facts after the time-limit prescribed
\nfor filing the election petition.”\n<\/p>\n
If this test as enunciated by the Supreme Court  in  the  above  decision,  is
\napplied  to  the  present  allegations,  then  it  can be well stated that the
\nelection petition not only lacks in material facts, but also does not disclose
\na cause of action.\n<\/p>\n
        26.  As stated supra, the election petitioner has sought to avoid  the
\nelection  of  the  declared  candidate  under Sec.100(1)(d)(i) and (iv) of the
\nRepresentation of the People Act.  Sec.100(1)(d)(i) and (iv) read:
\n“100.Grounds for declaring election to be void  (1) Subject to the provisions
\nof sub-section (2) if the High Court is of opinion –\n<\/p>\n
(a) …..\n<\/p>\n
(b) …..\n<\/p>\n
(c) …..\n<\/p>\n
(d) that the result of the election, in so  far  as  it  concerns  a  returned
\ncandidate, has been materially affected-\n<\/p>\n
(i)by the improper acceptance of any nomination, or\n<\/p>\n
(ii) …..\n<\/p>\n
(iii) ….\n<\/p>\n
(iv)  by any non-compliance with the provisions of the Constitution or of this
\nAct or of any rules or orders made under this Act,
\nthe High Court shall declare the election of  the  returned  candidate  to  be
\nvoid.”\n<\/p>\n
In  order  to find out whether the election petitioner has disclosed any cause
\nof action or a triable issue, the averments in the election petition  have  to
\nbe viewed  with reference to Sec.100(1)(d)(i) and (iv) of the said Act.  Under
\nthe Representation of the People Act, Sec.10 0 is  the  only  provision  which
\nspeaks of the grounds for setting aside the election.\n<\/p>\n
        27.   The  Apex  Court had an occasion to consider the jurisdiction of
\nthe  High  Court  and  the  scope  of  the  provisions  of  Sec.100   of   the
\nRepresentation of  the  People  Act in HARI SHANKER JAIN V.  SONIA GANDHI<\/a> ((20\n<\/p>\n
01) 8 SUPREME COURT CASES 233) and held thus:\n<\/p>\n
“8.   It  is  clear  from  a  conspectus  of  the  abovesaid  provisions  that
\njurisdiction to try an election petition has been conferred on the High Court.
\nThe  grounds  for  declaring  an  election  to  be  void  must  conform to the
\nrequirement of Section 100 and the operative part of the  order  of  the  High
\nCourt must conform to the requirement of Sections 98 and 99 of RPA, 1951.  The
\nvires  of  any law may be put in issue by either party to an election petition
\nbefore the High Court and the High Court can adjudicate upon such an issue  if
\nit  becomes  necessary to do so for the purpose of declaring an election to be
\nvoid under Section 100 and for the purpose of making an  order  in  conformity
\nwith Sections  98  and  99 of RPA, 1951.  The only restriction on the power of
\nthe High  Court,  as  spelled  out  by  clause  (a)  of  Article  329  of  the
\nConstitution,  is that the validity of any law relating to the delimitation of
\nconstituencies  or  allotment  of  seats  to  such  constituencies,  made   or
\npurporting  to  be  made under Article 327 or Article 328, cannot be called in
\nquestion and hence cannot be so adjudged.  A Judge  of  the  High  Court  can,
\ntherefore, while hearing an election petition, adjudicate upon the validity of
\nany statutory  provision  subject  to  two  limitations:   (1) that it must be
\nnecessary to go into that question for  the  purpose  of  trying  an  election
\npetition  on  any one or more of the grounds enumerated in Section 100 and for
\nthe purpose of granting any one or more of the reliefs under Sections  98  and
\n99  of the Act, and ( ii) a specific case for going into the validity or vires
\nof any law is made out on the pleadings raised in the election petition.”\n<\/p>\n
        28.  The very reading of the decision  of  the  Supreme  Court  stated
\nabove  would  make  it  clear that the grounds for declaring the election void
\nmust strictly conform to the grounds mentioned in Sec.100, and the allegations
\nof disqualification found in the election petition have to be interpreted very
\nstrictly.  The election petitioner has sought the relief of  declaration  that
\nthe  election  of the returned candidate the first respondent therein, is void
\non  the  grounds  of  (1)  improper  acceptance  of  the  nomination  and  (2)
\nnon-compliance   with   the   provisions   of   the  Constitution  or  of  the
\nRepresentation of the People Act or any Rules or Orders made under  that  Act.
\nIt  is  not  in  dispute that after the filing of the nomination papers by the
\nreturned candidate, the election petitioner made a representation on 24.4.2004
\nrequesting the Returning  Officer  to  reject  the  nomination  of  the  first
\nrespondent\/elected candidate on the ground of bigamy.  After giving sufficient
\nopportunity of being heard to both sides, the objection raised by the election
\npetitioner,  was  rejected by the Returning Officer at the time of scrutiny on
\nthe ground that when there was no conviction for bigamy by the Criminal Court,
\nthere was no bar for the first respondent returned candidate in contesting the
\nelection.  The contention of the election petitioner’s side  that  he  was  to
\nadduce  proof  if there was a denial; but, in the instant case, in view of the
\nadmission  by  the  first  respondent  returned  candidate,  it  need  not  be
\nstatutorily proved  cannot  be  countenanced.    The  reason  adduced  by  the
\nReturning  Officer  for  rejecting  the  objection  raised  by  the   election
\npetitioner  on the ground of bigamy was a sound one, since mere admission made
\nby the candidate in the affidavit  filed  along  with  the  nomination  papers
\nstating  that  he  has  two  spouses,  by  itself would not amount to criminal
\noffence, and he never stood charged, tried or punished for bigamy.\n<\/p>\n
        29.  The election petitioner has also sought to avoid the election  of
\nthe  returned  candidate  on  the  ground  stated  in Sec.100(1)(d)(iv) of the
\nRepresentation of the People Act.  In order to avoid the  election  under  the
\nsaid  provision  by  declaring  it  as void, the election petitioner must make
\nrequisite and specific allegations as to the noncompliance with the provisions
\nof the Constitution or the provisions of the Representation of the People  Act
\nor of  any  Rules  or  Orders made under that Act.  Needless to say that under
\nSec.100(1)(d)(iv), it is absolutely necessary for the election  petitioner  to
\nplead  that  the  result  of  the election insofar as it concerns the returned
\ncandidate, has  been  materially  affected  by  the  non-compliance  with  the
\nprovisions of  the  Act  or  of  the  Rules.   A careful reading of the entire
\nelection petition would reveal that there is absolutely  no  averment  in  the
\nelection  petition  that  the  returned  candidate  has  not complied with the
\nprovisions  of  the  Constitution  or  has  committed  any  violation  of  the
\nprovisions of the Representation of the People Act or any Rules or Orders made
\nunder that  Act.    In  the  absence  of  any  material  facts in the election
\npetition, it can be well stated that the election petitioner has not  strictly
\ncomplied   with   the   mandatory   provisions  under  Sec.8  3(1)(a)  of  the
\nRepresentation of the People Act, nor has he made any necessary  averments  or
\nmaterials disclosing  a  cause of action and as such, any triable issue.  Mere
\nallegation that the returned candidate has admitted in the statement of assets
\nthat he has got two spouses cannot be considered as  necessary  and  requisite
\nfacts supporting his case or it would make a basis for the allegations made in
\nthe  election  petition or it would constitute a cause of action as understood
\nin the Civil Procedure Code.  In short, if the  allegations  are  viewed  with
\nreference  to  Sec.100(1)(d)(i)  or 100(1)(d)(iv) of the Representation of the
\nPeople Act, then the same do not disclose a  cause  of  action  or  a  triable
\nissue.   Hence,  on those grounds, this Court is of the view that the election
\npetition has got to be necessarily rejected.\n<\/p>\n
        30.  Insofar far as the contention of the petitioner that the election
\npetition was not properly verified, and supporting affidavit  was  not  filed,
\nthis Court is of the opinion that on that ground, the election petition cannot
\nbe rejected.   So far as the other ground raised by the petitioner herein that
\nan affidavit in support of his pleadings by the person to verify the pleadings
\nin the election petition as required under Order VI Rule 15(4) of C.P.C.,  was
\nnot  furnished  Is  concerned,  the same cannot also be a reason to reject the
\nelection petition for the reason that if such an affidavit was  not  filed  by
\nthe  election  petitioner,  he  can  be  directed by the Court to file such an
\naffidavit before the commencement of the trial, and  hence,  the  same  cannot
\nalso  be considered as a ground to reject the election petition in the instant
\ncase.  The above point is answered accordingly.\n<\/p>\n
        31.  For the foregoing reasons, this Court is of the firm opinion that
\nthe election petition is liable to be  rejected.    Therefore,  this  original
\napplication is  allowed.    Consequently,  Election  Petition  No.6 of 2004 is
\nrejected.\n<\/p>\n
Index:  yes
\nInternet:  yes
\nnsv\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court T.R.Baalu : vs S.Purushothaman on 29 August, 2005 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29\/08\/2005 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM O.A.No.106 of 2005 T.R.Baalu :Petitioner -vs- 1.S.Purushothaman 2.Bader Syed 3.P.Thiagarajan 4.K.Pugazhenthi 5.P.Rajan 6.S.Vivekananda 7.The Returning Officer (Deputy Commissioner (Education) Corporation of Chennai) No.3 Madras (South) Parliamentary Constituency, Rippon Buildings Chennai […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-186012","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nT.R.Baalu : vs S.Purushothaman on 29 August, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/t-r-baalu-vs-s-purushothaman-on-29-august-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"T.R.Baalu : vs S.Purushothaman on 29 August, 2005 - 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