{"id":39530,"date":"1999-03-22T00:00:00","date_gmt":"1999-03-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-s-achuthanandhan-vs-p-j-francis-and-anr-on-22-march-1999"},"modified":"2015-05-29T15:36:19","modified_gmt":"2015-05-29T10:06:19","slug":"v-s-achuthanandhan-vs-p-j-francis-and-anr-on-22-march-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-s-achuthanandhan-vs-p-j-francis-and-anr-on-22-march-1999","title":{"rendered":"V.S. Achuthanandhan vs P.J. Francis And Anr on 22 March, 1999"},"content":{"rendered":"
Supreme Court of India<\/div>\n
V.S. Achuthanandhan vs P.J. Francis And Anr on 22 March, 1999<\/div>\n
Bench: Dr. A.S. Anand, Cj, M. Srinivasan, R.P. Sethi<\/div>\n
           CASE NO.:\nAppeal (civil)  1808 of 1997\n\nPETITIONER:\nV.S. ACHUTHANANDHAN\n\nRESPONDENT:\nP.J. FRANCIS AND ANR.\n\nDATE OF JUDGMENT: 22\/03\/1999\n\nBENCH:\nDR. A.S. ANAND, CJ & M. SRINIVASAN  & R.P. SETHI\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
1999 (2) SCR 99<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
SETHI, J. the appellant a candidate of the C.P.L (M) party contested and
\nlost election from No, 99 Mararikulam Legislative Assembly Constitutency in
\nthe State of Kerala by a margin of 1965 votes. The successful candidate was
\nthe respondent No. 1 belonging to the Indian National Congress. Not
\nsatisfied with the result of the election, the appellant filed Election
\nPetition No. 11\/1996 in the High Court of Kerala mainly on the grounds of
\ncorrupt practices and illegalities in the counting of ballot papers. He
\nprayed for declaration that the election of the 1st respondent was void and
\nthat he was duly elected. Instead of filling any written statement, the
\nrespondent Ho. I filed preliminary objections which were made the basis of
\nframing the following issues :\n<\/p>\n
1.      Whether the petition has been presented in compliance with the
\nprovisions of “the Representation of the People Act?\n<\/p>\n
2.      Whether the absence of an affidavit in support of the allegations
\nof corrupt practices in the petition is fatal to the maintainability of the
\npetition?\n<\/p>\n
3.      Whether there is a proper affidavit under Rule 94-A of the Conduct
\nof Election Rules?\n<\/p>\n
4.      Whether the allegations make out a cause of action at all
\nwarranting trial of the election petition?\n<\/p>\n
5.      Whether the allegations for recount are sufficient to hold a trial
\non that issue?\n<\/p>\n
6.        Whether the failure to attest as true copy of the annexure
\nproduced along with the election petition is fatal?\n<\/p>\n
7.      Whether the election petition is liable to be dismissed as not
\nproperly framed and filed?\n<\/p>\n
Issues No 1 and 4 were decided against the appellant holding that
\nallegations made in paragraphs 11(E), (F), (H), (J), (K), (M), and (P)
\nlacked material facts and particulars and being vague and ambiguous
\nrequired no trial. Issues No, 2,3, and 6 were decided in favour of the
\nappellant Issue No. 5 was decided against the appellant holding that he had
\nfailed to establish that there existed a case where the recounting could be
\nordered. Ultimately the election petition was rejected under Section 83 of
\nthe Representation of People Act read with Order VII Rule 11 (a) of the
\nCode of Civil Procedure with costs assessed at ,Rs. 1,500, Feeling
\naggrieved by the judgment of the High Court, the appellant has preferred
\nthis appeal under Section 116-A of the Representation of People Act, 1951
\n(hereinafter referred to as `the Act’). Assailing the judgment impugned in
\nthis appeal, the learned counsel appearing for the appellant has vehemently
\nargued that the High Court has adopted hypertechnical approach in the
\nmatter and that the election petition has been dismissed finally on merits
\nwithout affording the appellant any opportunity to prove his case. It is
\ncontended that the issues decided in fact did not arise and that the High
\nCourt did not properly appreciate the difference between the `material
\nfacts’ and the material particulars’ as referred to in Section 123 of the
\nAct. It is contended that there were sufficient facts brought on record for
\nproving the corrupt practices by way of evidence and that the circumstances
\nexisted which justified re-count in the case under the provisions of the
\nAct, It is further submitted that the provisions of Section 83 of the Act
\nand Order VII Rule 11 of the Code of Civil Procedure have wrongly been
\nrelied upon for rejecting the election petition, as according to the
\nlearned counsel for the appellant, none of those provisions was applicable
\nin the instant case. It is contended that the High Court committed a
\nmistake of law by holding that the process of election ended on the date of
\nthe poll and any illegality or mat-practices committed after the date of
\nthe poll but before the declaration of the result was not a mal practice or
\ncorrupt practice. It is submitted that election process continues till the
\nresult is declared and that action of the parties to an election is
\nrelevant from the date of the commencement of the election till the
\ndeclaration of the result. The High Court is alleged to have not taken note
\nof its own verdict in C.M.P. No 2867\/96 by which amendment was allowed for
\ncorrecting the Section of the Act under which the allegations of corrupt
\npractices already made in the petition were to fit in.\n<\/p>\n
Supporting the impugned judgment, the learned counsel for respondent No. 1
\nhas submitted that in the absence of material facts and details of corrupt
\npractices, the High Court was justified in holding that as no cause of
\naction is disclosed, the election petition deserved dismissal under Order
\nVII Rule 11 of the Code of Civil Procedure. He has contended that the
\nappellant had failed to place on record sufficient material justifying the
\nrecount. Relying upon the observations of this Court in Dharamvir v. Amar
\nSingh and Ors.,<\/a> [1996] 3 SCC 158 it has been contended that Sections 123(2)
\nand 123(7) of the Act deal with corrupt practices indulged at a stage prior
\nto the casting of votes and not thereafter and as the appellant had
\nreferred to the alleged corrupt practices after the date of poll, but
\nbefore the date of declaration of the result, no cause existed for the
\ntrial of the ease.\n<\/p>\n
Before dealing with the rival contentions of the learned counsel for the
\nparties it has to be kept in mind that free fair, fearless and impartial
\nelections are the guarantee of a democratic policy. Effective mechanism is
\nthe basic requirement for having such elections. For conducting, holding
\nand completing the democratic process, a potential law based upon
\nrequirements of the society tested on the touchstone of the experience of
\ntimes is concededly of paramount importance. A balanced judicial approach
\nin implementing the laws relating to franchise is the mandate of this
\nCourt. Law relating to the accomplishment of the democratic process by
\nholding the elections is not required to be so liberally construed as to
\nfrustrate the will of the people expressed at the elections and not too
\nrigidly applied which may result in shaking the confidence of the common
\nman in the institution entrusted with the noble task of establishment of
\nthe rule of law. It has always to be kept in mind that the law relating to
\nelections is the creation of the statute which has to be given effect to
\nstrictly in accordance with the will of the Legislature.\n<\/p>\n
It may further be noticed, as observed by this Court in Raj Narain v. Smt.
\nIndira Nehru Gandhi and Anr,,<\/a> [1972] 3 SCC 850 that rules of pleadings, are
\nintended as aids for a fair trial and for reaching a just decision. An
\naction at law should not be equated to a game of chess. Provisions of law
\nare not mere formulae to be observed as rituals. Beneath the words of a
\nprovision of law, generally speaking, there lies a juristic principle. It
\nis the duty of the court to ascertain that principle and implement it. The
\npurpose of Section 86 of the Act is to ensure that every charge of corrupt
\npractice is brought before the Court within the prescribed period of
\nlimitation and not thereafter, so that the trial of the case is not
\nconverted into a persecution by adding more and more charges or by
\nconverting one charge into another as the trial proceeds.\n<\/p>\n
It is also necessary to have in mind some of provisions of the laws
\nrelevant for the purpose of deciding this appeal.\n<\/p>\n
The Act was enacted to provide for the conduct of elections to the Houses
\nof Parliament and to the House or Houses of the Legislature of each State,
\nthe qualification and disqualifications for membership of those Houses, the
\ncorrupt practices and other offences at or in connection with such
\nelections and the decision of doubts and disputes arising out of or in
\nconnection with such elections. Part II of the Act provides for
\nqualifications and disqualifications for membership of Parliament and the
\nState Legislatures. Part IV provides for the administrative machinery for
\nthe conduct of elections and part IV-A deals with the registration of
\npolitical parties. Under Section 30 the Election Commission is obliged to
\nappoint last date for making nomination after the notification calling upon
\na constituency to elect a member is issued. On the issue of a notification
\nunder Section 30, the Returning Officer is under statutory duty to give
\npublic notice of the intended election in such form and manner as may be
\nprescribed, notifying nominations of candidates for such election and
\nspecify the place, arid date where nominations papers are to be delivered,
\nScrutiny of nominations is conducted under Section 36 and list of
\ncontesting candidates is issued under Section .18 of the Act. Procedure at
\nelection is provided under Chapter III and Chapter IV deals with, the Poll.
\nSection 64 provides that at every election where a poll is taken, vote
\nshall be counted, by or under the supervision and direction of, the
\nReturning Officer and each contesting candidate, his election agent and his
\ncounting agent shall have a right to be present at the time of counting.
\nResult of the election is declared under Section 66 of the Act. Part VI
\ndeals with the disputes regarding elections. No election can be called in
\nquestion except by an election petition presented in accordance with the
\nprovision of Part IV which shall be tried by the High Court having
\njurisdiction in the area where the election is held. An election petition
\ncalling in question any election has to be presented on one or more of the
\ngrounds specified in sub-section (1) of Section 100 and Section 101 to the
\nHigh Court by any candidates at such election or any elector within 45 days
\nfrom, but not earlier than the date of election of the returned candidate
\nor if there are more than one returned candidate: at the election and dates
\nof their elections are. different, the later of those two dates. Section 83
\nprovides what the contents of an election petition should be. An election
\npetition is required to setforth full particulars of any corrupt practice
\nthat the petitioner alleges, including as full a statement as possible of
\nthe names of the parties alleged to have committed such corrupt practice
\nand the date and place of commission of each of such practice which is
\nrequired to be signed by the petitioner and verified in the manner laid
\ndown in the Code of Civil Procedure for verification of the pleadings. The
\npetition based upon corrupt practices is required to be accompanied by an
\naffidavit in the prescribed form in support of the allegations of such
\npractice and the particulars thereof. Any schedule or annexure to the
\npetition is required to be signed by the petitioner and verified in the
\nsame manner as the petition. Chapter III of Part VI deals with the trial of
\nelection petitions. Section 87 provides that subject to the provisions of
\nthe Act and of any rules made thereunder, every election petition shall be
\ntried by the High Court, as nearly as may be, in accordance with the
\nprocedure applicable under the Code of Civil Procedure for the trial of
\nsuits.\n<\/p>\n
Section 100 of the Act provides ;-\n<\/p>\n
Grounds for declaring election to be void,-(1) Subject to the provisions of
\nsub section (2) if the High Court is of opinion-\n<\/p>\n
(a)    that on the date of his election a returned candidate was not
\nqualified, or was disqualified, to be chosen to fill the seat under the
\nConstitution or this Act {or the Government of Union Territories Act 1963
\n(20 of 1963) };or<\/p>\n
(b)    that any corrupt practice has been committed by a returned
\ncandidates or his election agent or by any other person with the consent of
\na returned candidate or his election agent; or<\/p>\n
(e)   that any nomination has been improperly rejected ;\n<\/p>\n
(d)   or that the result of the election, in so far as it concerns a
\nreturned candidates, has been materially affected –\n<\/p>\n
(i)    by the improper acceptance of any nomination, or<\/p>\n
(ii) by any corrupt practice committed in the interests of the returned
\ncandidate, [by an agent other than his election agent], or<\/p>\n
(in) by the improper reception, refusal or rejection of any vote or the
\nreception of any vote which is void, or<\/p>\n
(iv) by any non-compliance with the provisions of the Constitution or of
\nthis Act or of any rules or orders made under this Act, [the High Court
\nshall declare the election of the returned candidate to be void.]<\/p>\n
(2) If in the opinion of the High Court a returned candidate has been
\nguilty by an agent, other than his election agent, of any corrupt practice
\nbut[ the High Court] is satisfied –\n<\/p>\n
(a) that no such corrupt practice was committed at the election by the
\ncandidate or his election agent and every such corrupt practice was
\ncommitted contrary to the orders, and of the candidate of his election
\nagent ;\n<\/p>\n
(c)       that the candidate and his election agent took all reasonable
\nmeans for preventing the commission of corrupt practice at the election,
\nand<\/p>\n
(d)       that in all other respects the election was free from any corrupt
\npractice on the part of the candidate or any of his agents, then [the High
\nCourt] may decide that the election of the returned candidate is not void.\n<\/p>\n
Similarly Section 101 of the Act provides :-\n<\/p>\n
Grounds for which a candidate other than the returned candidate may be
\ndeclared to have been elected. If any person who has lodged a petition in
\naddition to calling in question the election of the returned candidate,
\nclaimed a declaration that he himself or any other candidate has been duly
\nelected and the High Court is of opinion-(a)   that in fact the petitioner
\nor such other candidate received a majority of the valid votes; or<\/p>\n
(b) that but for the votes obtained by the returned candidate by corrupt
\npractices the petitioner or such other candidate would have obtained a
\nmajority of the valid votes, [the High Court] shall after declaring the
\nelection of the returned candidate to be void declare the petitioner or
\nsuch other candidate, as the case may be, to have been duly elected.\n<\/p>\n
At the time of presenting an election petition, if the petitioner fails to
\ndeposit in the High Court the sum of security of costs as quantified under
\nSection 117 of the Act, the [election petition is liable to be dismissed
\nSection 123 specifies] the corrupt practices for the purposes of elections.
\nChapter III of Part VI deals with other electoral offences.\n<\/p>\n
Issues are framed under Order XIV of the Code of Civil Procedure when a
\nmaterial proposition of a fact or law is affirmed by one party and denied
\nby another. Material propositions are such proposition of law or fact which
\nthe plaintiff must allege in order to show the right to sue or a defendant
\nmust allege in order to constitute his defence. There is no dispute that
\nissues are framed on the basis of the pleadings which according to Order VI
\nRule 1, Code of Civil Procedure include plaint or written statement.
\nPleadings can be struck put under Rule 16 of Order VI which are
\nunnecessary, scandalous, frivolous or vexatious or which may tend to
\nprejudice, embarrass or delay the fair trial of the petition or which is
\notherwise an abuse of the process of the court. The plaint or the petition
\ncan also be rejected in the following cases:-\n<\/p>\n
(a)    where it does not disclose a cause of action;\n\n(b)    where the relief claimed is undervalued, and the plaintiff, on being\n<\/pre>\n
required by the Court to correct the valuation within a time to be fixed by
\nthe Court, fails to do so;\n<\/p>\n
(c)    where the relief claimed is properly valued, but the plaint is
\nwritten upon paper insufficiently stamped, and the plaintiff on being
\nrequired by the Court to supply the requisite stamp-paper within a time to
\nbe fixed by the Court, fails to do so;\n<\/p>\n
(d)    where the suit appears from the statement in the plaint to be barred
\nby any law :\n<\/p>\n
There is no gain-saying that the powers of superintendence, direction and
\ncontrol of election vests in the Election Commission under Part XV of the
\nConstitution of India. The orders of the Election Commission are however
\nsubject to judicial review where they are found to be contrary to the law
\nenacted under Article 327 or are otherwise arbitrary, mala fide or unfair.
\nThe High Court may also exercise the power of judicial review if it is
\nfound that the orders of the Election Commission were in excess of its
\njurisdiction, being contrary to any electoral law or rule made thereunder
\nby the competent legislature or any provision of the Constitution itself.
\nHowever, no court is entitled to entertain the questions coming under
\nArticles 327 and 328 of the Constitution or orders made by the Election
\nCommission and the matters which may be the subject of an election
\npetition. Article 329 (b) provides that no election to either House of
\nParliament or to the House or either House of the Legislature of a State
\nshall be called in question except by an election petition presented to
\nsuch authority and in such manner as may be provided for by or under any
\nlaw made by the appropriate Legislature. Election as mentioned in Article
\n329 (b) of the Constitution has been interpreted to mean the entire process
\nculminating in a candidate being declared elected and not confined to the
\nfinal result. Such an interpretation is inconsonance with the provision of
\nthe Act as contained in Part V thereof particularly Section 30, dealing
\nwith the appointment of date for nominations and Section 66 dealing with
\nthe declaration of the result.\n<\/p>\n
In the instant case, as noted earlier, the election petition has been
\nrejected by invoking the powers of Section 83 of the Act read with Order
\nVII Rule 11 (a) of the Code of Civil Procedure. After referring to some
\njudgments, the learned trial Judge of the High Court has concluded :-\n<\/p>\n
“Read as a whole, the averments contained in the Election Petition do not
\nsatisfy the requirements of Section 83 of the Act. No prima face case is
\nmade out to hold that the first respondent has committed corrupt practices
\nor that it is a fit case where recounting is to be ordered. On a perusal of
\nthe Election petition, it is seen that the petitioner has not pleaded the
\nmaterial facts with necessary particulars which would enable the Court to
\ngrant the prayer made in the petition. Pleadings in the Election Petition
\ndo not make out a cause of action for ordering recount, as prayed for in
\nthe petition. So, the Election Petition is liable to be rejected under
\nSection 83 of the Act read with order 7 rule 1 l(a) C.P.C.”\n<\/p>\n
It would, thus appear, that the election petition was rejected mainly on
\nthe ground that it did not disclose the cause of action as according to the
\nlearned trial Judge the allegations regarding corrupt practice were vague
\nand did not disclose “material facts and full particulars” of the corrupt
\npractice alleged. It is evident that the learned trial Judge did not
\ndistinguish between the `material facts’ and `material particulars’ of
\nallegations regarding corrupt practices as defined under Section 123 of the
\nAct. The Law oh the point is well-settled which appears to have not been
\ntaken note of by the learned trial Judge. After referring to various
\npronouncements of this Court including cases in Balwan Singh v. Lakshmi
\nNarain and Ors.,<\/a> [1960] 3 SCR91 ,Samara N. Balakrishna and Anr. v. George
\nFernandez and Ors.,<\/a> [1969] 3 SCC 238. virendra Kumar Sakleeha v. Jajiwan
\nand Ors;, [1973] 1 SCC 826, Shri Udhav Singh v. Madhav Rao Scindia,<\/a> [1977]
\nI SCC 511, F.A, Sapa and Ors. v. Singera and Ors. and Gajanan Krishnaji
\nBapat and Anr. y. Dattaji Raghobaji Meghe and Qrs., [1995] 5 SCC 347 and
\nhost of other authorities, this Court in L.R. Shivaramagowda etc. v. T.M.
\nChandrashekar etc. [1998] 6 Scale 361 held that while failure to plead
\n`material facts’ is fatal to the election petition and no amendment of the
\npleading is permissible to introduce such material facts after the time
\nlimit prescribed for filing the election petition, the absence of `material
\nparticulars* can be cured at a later stage by an appropriate amendment. An
\nelection petition was not liable to be dismissed is limine merely because
\nfull particulars of corrupt practice alleged were not set out, It is,
\ntherefore, evident that material facts are such primary facts which must be
\nproved at the trial by a party to establish existence of a cause of action,
\nWhether in an election petition a particular fact is material fact or not,
\nand as such, required to be pleaded is a question which depends on the
\nnature of the charge levelled, the ground relied upon, and in the light of
\nthe special circumstances of the case. In Udhav Singh case (supra) the
\nCourt held :-\n<\/p>\n
“In short all those facts which are essential to clothe the petitioner with
\na complete cause of action are “material facts” which must be pleaded, and
\nfailure to plead even a single material fact amounts to disobedience of the
\nmandate of Section 83 (l)(a); “Particulars” on the other hand are ” details
\nof the case set up by the party”. “Material particulars” within
\ncontemplation of clause (b) of Section 83(1) would therefore mean all the
\ndetails which are necessary to amplify, refine and embellish. The material
\nfacts already pleaded in the petition in compliance with the requirements
\nof clause (a), `Particulars’ serve the purpose of finishing touches to the
\nbasic contours of a picture already drawn, to make it full, more detailed
\nand more informative”.\n<\/p>\n
The appellant had specified the alleged corrupt practices in paragraphs 1
\nI(E), (F), (H), (J), (K), (M) and:(P),. It was alleged that Sri Ayyappan
\nPillai, the Election Tehsildar of the Constituency was close associate and
\nfriend of the 1st respondent who played a pivotal role in the manoeuvring
\nrelating to ballot papers which were not distributed to the polling
\nstations and ultimately used for the benefit of the successful candidate.
\nHe was alleged to have been helping the 1st respondent in violation of the
\nprovisions of the Act, the Rules, Orders and instructions issued
\nthereunder. He was admittedly a gazetted officer who was alleged to have
\nacted as an agent of the 1st respondent. The trial Judge found that
\nallegations made in paragraphs 11(E), (F), (H), (J),(K), (M) and (P) of the
\nelection petition were vague in nature and did not setforth full
\nparticulars of any corrupt practice. Lacking of full particulars could not
\nbe made a basis for rejecting the election petition as the appellant had
\nthe right to amend the pleadings. The Trial judge found that, “details of
\ncorrupt practice are wanting in the election petition.” The absence of the
\ndetails appears to have persuaded the learned Judge to reject the election
\npetition apparently under a misconception of the legal position regarding
\nthe difference between the `material facts’ and `material particulars. The
\nlearned trial Judge rejected the election petition on his being satisfied
\nthat :-\n<\/p>\n
“Though as per the amended affidavit, the corrupt practice will attract
\nSection 123(7) of the Act, it is hot stated in the Ejection Petition that
\neither the candidate or his agent or any other person with the consent of
\nthe candidate or his election agent, obtained, procured, abetted or
\nattempted to obtain or procure the service of any person under the
\nGovernment for the furtherance of the prospects of the candidate’s
\nelection. Though it is stated that Sri Ayyappan Pillai is a gazetted
\nOfficer, it is not stated anywhere in the petition that the first
\nrespondent or his agent directly or by any other person with his consent or
\nthat of his election agent obtained or procured the assistance of a
\ngazetted officer It appears that he lost sight of allegations of the
\npetitioner made in paragraph 9 of the election petition wherein it was
\nstated :-\n<\/p>\n
“The result of election, in so far as it concerns the returned candidate,
\nthe 1st respondent in this case, has been materially affected by (i)
\ncorrupt practice committed in the interest of the returned candidates by
\nhis agents, election agent and the returned candidate (ii) by the improper
\nreception of votes which is void and (iii) by the non-compliance with the
\nprovision of the Constitution and the provisions of the Representation of
\nPeople Act, 1951 as also rules and orders made under the Act.”\n<\/p>\n
It was, therefore, wrongly, found that in the absence of specific pleading
\nand full particulars of corrupt practices, the election petition deserved
\nrejection as it allegedly did not disclose any cause of action. The trial
\nJudge appears to have equated the cause of action with proof and thus
\ncommitted an illegality of law requiring interference by us.\n<\/p>\n
This Court in Mohan Rawale v. Damodar Tatyaba<\/a>@ Dadasheb & Ors., [1994] 2
\nSCC 392 held that a reasonable cause of action is said to mean a cause of
\naction with some chances of success when only the allegations in the
\npleadings are considered. So long as the claim discloses some cause of
\naction or raises some questions fit to be decided by a Judge, the mere fact
\nthat the case is weak and not likely to succeed is no ground for striking
\nit out. The implications of the liability of the pleadings to be struck out
\non the ground that it discloses no reasonable cause of action are generally
\nmore know than clearly understood. It was further held that the failure of
\nthe pleadings to disclose a reasonable cause of action is distinct from the
\nabsence of full particulars. The distinctions among the ideas of the
\n“grounds” in Section 81(1); of “material facts” in Section 83 (1) (a) and
\nof “full particulars” in Section 83(1)(b) are obvious, the provisions of
\nSection 83(1 )(a) and (b) are in the familiar pattern of Order VI Rules 2
\nand 4 and Order 7,Rule l(e) Code of Civil Procedure. There is a distinction
\namongst the `grounds’ in Section 81(I); the `material facts’ in Section 83\n<\/p>\n
(l)(a) and “full particulars” in Section 83(l)(b).\n<\/p>\n
The Court approved the observations of Jacob in “The Present Importance of
\nPleadings” (1960) Current Legal Problems at pp 175-176;-\n<\/p>\n
“Pleadings do not only define the issues between the parties for the final
\ndecision of the Court at the trial, they manifest and exert their
\nimportance throughout the whole process of the litigation….. They show on
\ntheir face whether a reasonable cause of action or defence is disclosed.
\nThey provide a guide for the proper mode of trial and particularly for the
\ntrial of preliminary issues of law of fact. They demonstrate upon which
\nparty the burden of proof lies, and who has the right to open the ease.
\nThey act as a measure for comparing the evidence of a party with the case
\nwhich he was pleaded. They determine the range of the admissible evidence
\nwhich the parties should be prepared to adduce at the trial. They delimit
\nthe relief which the court can award….”\n<\/p>\n
Looking at the averments made in the election petition, it cannot be said
\nthat it suffered from lack of disclosure of material facts. The absence of
\nmaterial particulars, if any, could be rectified by resort to amendment of
\nthe pleadings in terms of Order VI Rule 17 of the C.P.C.\n<\/p>\n
The reliance of the learned counsel for respondent No. 1 on the
\nobservations of this Court in Dharamvir v. Amar Singh and Ors,<\/a> (1996) 3 SCC
\n158 (supra) is also of no help to him for the purpose of upholding the
\njudgment of the High Court. The observations in that case, that the corrupt
\npractices mentioned in Sections 123 (2) and (7) referred to only such
\npractices done for furtherance of the election only to pre-voting stage and
\nnot post voting stage cannot be termed to be the verdict of this Court
\ninasmuch as the Bench itself observed, “prima facie these two sub-sections
\nwill apply only to pre-voting stage and not post-voting stage,” (underlined
\nby us). The aforesaid observations were neither relevant nor necessary for
\nthe disposal of Dharamvir Case and appear to have been made without
\nnoticing the earlier judgment of this Court wherein it was held that the
\nelection process ended with the declaration of the result of the candidates
\nand not only after the voting.\n<\/p>\n
The corrupt practices referred to in the aforesaid two sub-sections are
\ndeemed to be corrupt practices if such practices are committed, “for the
\nfurtherance of the prospects of that candidate’s election.” The word
\n`election’ cannot be restricted only to the electoral process which
\ncommences with the issuance of the notification and ends with the casting
\nof votes at the Polls. The word `election’ as used in the Representation of
\nthe People Act has been interpreted by this court to mean “that every stage
\nfrom the time the notification calling for elections is issued till the
\ndeclaration of the result,”\n<\/p>\n
Relying upon the judgment of this Court in N.P, Ponnuswami v. Returning
\nOfficer, Namakkal, AIR<\/a> (1952) SC 64, the Allahabad High Court in Ashraf Ali
\nKhan v, Tika Ram and Ors.(20 E.L.R. 470) rightly explained the position of
\nlaw in this behalf as under :-\n<\/p>\n
“The question is when does an election begin and end ?\n<\/p>\n
Now, it has been held in Yeshayantrao Balwantrao Chavan V. K.T. Mangalmurti
\nand Another that-\n<\/p>\n
“In the case of an election there are certain steps to be taken until poll
\nis taken. In the first place, there is an announcement about the holding of
\nan election. This is followed by nomination of candidates. After the
\nnominations are made, a scrutiny of the nominations is held. After the
\nnominations are scrutinized a list of validity nominated candidates is
\nprepared. After the list of validly nominated candidates is prepared, there
\nis a stage of withdrawal enabling a candidate to withdraw his candidature.
\nAfter the withdrawal, if any a candidate may retire from contest, and
\nfinally, there is the poll, indeed, an election is one continuous process
\ninvolving these steps. In this connection. I may refer to what has been
\npointed out in the case of Shankar v. Returning Officer, Kolaba. With
\nregard to the express `election,’ it was Stated as follows :\n<\/p>\n
“The expression `election’ in article 329 (b) of the Constitution of India
\nbears a wider meaning than the very limited restricted meaning of the
\nresult of an election or the counting of votes. “Election” has the same
\nmeaning as the expression Used in articles 327 and 328 viz., matters
\nrelating to or in connection with election. Therefore, nomination of
\ncandidates, scrutinizing of nominations, and decisions as to whether a
\nnomination paper is valid or not, are all part and parcel of an election.\n<\/p>\n
“Election’ is not merely the ultimate decision or the ultimate result.
\n`Election is every stage from the time the notification is issued till the
\nresult is declared, and even perhaps if there is an election petition, till
\nthe decision of the Election Tribunal, It is one whole continuous
\nintegrated proceeding and every aspect of it and every stage of it and
\nevery step taken in it is a part of the election, and what is prohibited by
\narticle 329 (b) is calling in question any one aspect or stage of the
\nelection. The expression `except by an election petition’ in the article
\ndoes not point to the period when it can be called in question; it rather
\npoints to the manner and the mode in which it can be called in question;
\nand article 329 (b) provides that the only way any matter relating to or in
\nconnection with an election can be called in question is by an election
\npetition, which could be presented to such authority and in such manner as
\nmay be provided for by law passed by the appropriate Legislature,”\n<\/p>\n
It may be observed that in this cited case the court was considering
\narticle 329 (b) of the Constitution of India. But, in our view, what has
\nbeen stated in that case with regard to the wide meaning of the term
\n“election” may be also applied to an election contemplated under the
\nRepresentation of the People Act, 1951. Section 2(i)(d) of the Act defines
\nelection as “an election to fill a seat or seats in inter alia either House
\nor the Legislature of a State,”\n<\/p>\n
We may also on this point refer to two Supreme Court rulings-N.P.
\nPommuswami V. Returning Officer, Namkkal and Hari Vishnu Kamath v. Ahmad
\nIshaque and others<\/a>, on which the aforesaid Bombay ruling is based.”\n<\/p>\n
The position of law on this point was again reiterated in Mohinder Singh
\nGill and Anr. v. The Chief Election Commissioner & Ors., AIR (1978) SC 851
\nholding :\n<\/p>\n
“As already pointed out, it is well settled that election covers the entire
\nprocess from the issue of the notification under Section 14, to the
\ndeclaration of the result under Section 66 of the Act. When a poll that has
\nalready taken place has been cancelled and a fresh poll has been ordered,
\nthe order therefore, with amended date, is passed as an integral part of
\nthe electoral process.”\n<\/p>\n
and further approved in The Election Commission of India v, Shivaji& Ors.,
\nAIR (1988) SC 61.\n<\/p>\n
It appears that while interpreting the provisions of Order VII Rule 11 of
\nthe Code of Civil Procedure and Section 83 read with Section 123 of the
\nAct, the learned trial Judge has taken a hypertechnical view in the matter
\nwhich if approved would frustrate the purpose of the purity of the
\nelections which has been held to be mechanism devised to ascertain the true
\nwishes and will of the people in the matter of choosing their political
\nleaders in a democratic system.\n<\/p>\n
Similarly the learned trial Judge was not justified in rejecting the
\nelection petition without affording the appellant opportunity to place on
\nrecord the circumstances justifying the recount as prayed for by him. It is
\ntrue that on vague and ambiguous evidence no court can direct recount. But
\nit is equally true that the doors of justice cannot be shut for a person
\nseeking recount without affording him ah opportunity of proving the
\ncircumstances justifying a recount. In his petition the appellant had given
\ndetails of the alleged illegalities and irregularities committed by the
\nrespondent No; 1 which accprding to him justified the holding of a recount.
\nThe learned trial Judge relied up on some judgments where recount was not
\nallowed after trial and wrongly dismissed the election petition filed by
\nthe appellant without affording him the opportunity to substantiate the
\nallegations made in the petition or to bring on record the evidence
\njustifying a recount. It is settled position of law that the court trying
\nan election petition can direct inspection and recount of votes if the
\nmaterial facts and particulars are pleaded and proved for directing such
\nrecount in the interest of justice. In doing so, the provisions of Section
\n94 of the Act have to be kept in mind and given due weight before directing
\ninspection and recount. In M.R. Gopalkrishnan v, Thachady Prabhakaran and
\nOrs.. [1995] Supp. 2 SCC 101 it was held ;-\n<\/p>\n
“After a cursory glance of the relevant provisions discussed above it is
\nthus abundantly clear that the rules provides adequate Opportunity to a
\ncandidate, his election agent and counting agent to have a watch over the
\ncounting process before the result is declared and if they raise any
\nobjection as to the validity or otherwise or any ballot paper and if the
\nSaid objection is improperly rejected the candidate, his counting and
\nelection agent are well informed of the nature of the objection that was
\nraised with regard to the ballot papers and make a concise statement of
\nmaterial\/acts in the election petition in relation thereto. It is for these
\nreasons that this court has repeatedly held that the secrecy Of the vote
\nhas to be maintained and a demand of recount should not ordinarily be
\ngranted unless the election petitioner makes out a prima facie case with
\nregard to the errors in the counting and is able to show that the errors
\nare of such magnitude that the result of the election of the returned
\ncandidate is materially affected. The election petitioner, in order to seek
\nan order of recount, has to place material and make out a prima facie case
\non the threshold and before an order of recount is actually made. The
\ndemand of a defeated candidate for recount of votes has to be considered
\nkeeping in view that secrecy of the ballot is sacrosanct in a democracy,
\nand. therefore, unless the election petitioner is able not only to plead
\nand disclose the martial facts but also substantiate the same by means of
\nevidence of reliable Character that there existed a prima facie case for
\nthe recount, no tribunal or court would be justified in directing the
\nrecount.\n<\/p>\n
This Court in Bhabi v. Sheo Govind, [1:976] 1 SCC 687 while dealing with
\nthe question of direction for inspection and recount, on a close and
\ncareful Consideration of various authorities of this court laid down
\ncertain guidelines and conditions which are imperative before a court can
\ngrant inspection of the ballot papers. The said conditions and guidelines
\nare set out below ;- [SCC pp. 693-694, para 15]<\/p>\n
(1) That it is important to maintain the secrecy of the ballot which is
\nsacrosanct and should not be allowed to be violated on frivolous, vague and
\nindefinite allegations;\n<\/p>\n
(2)  That before inspection is allowed the allegations made against the
\nelected candidate must be clear and specific and must be supported by
\nadequate statements of material facts :\n<\/p>\n
(3) the court must be prima facie satisfied on the materials produced
\nbefore the Court regarding the truth of the allegations made for a recount;\n<\/p>\n
(4)  That the court must come to the conclusion that in order to grant
\nprayer for inspection it is necessary and imperative to do full justice
\nbetween the parties;\n<\/p>\n
(5) That the discretion conferred on the court should not be exercised in
\nsuch a way so as to enable the applicant to indulge in a roving inquiry
\nwith a view to fish materials for declaring the election to be void; and<\/p>\n
(6)  That on the special facts of a given case sample inspection may be
\nordered to lend further assurance to the prima facie satisfaction of the
\nCourt regarding the truth of the allegations made for a recount, and not
\nfor the purpose of fishing out materials.”\n<\/p>\n
In a recent decision in Satyanarain Dudhari v. Uday Kumar<\/a> `Singh, [1993]
\nSuppl. 2 SCC 82 this Court again reiterated the similar view by observing
\nthat the secrecy of the ballot papers cannot be permitted to be tinkered
\nwith lightly and an order of recount cannot be granted as a matter of
\ncourse. It is only when the High Court is satisfied on the basis of
\nmaterial facts pleaded in the petition and supported by the contemporaneous
\nevidence that recount can be ordered. When there is no contemporaneous
\nevidence to show any irregularity or illegality in the counting, ordinarily
\nit would not be proper to order recount on the basis of bare allegations in
\nthe election petition.”\n<\/p>\n
Without commenting upon the merits of the ease, lest it may prejudice the
\nrights of the parties we feel that the trial Judge was not justified in
\nrejecting the election petition at the initial stage without affording the
\nappellant an opportunity to prove the existence of circumstances prima
\nfacie justifying the existence of grounds requiring recount.\n<\/p>\n
In the light of what has been noticed hereinabove, we are of the opinion
\nthat the judgment impugned is not sustainable in the eyes of law.
\nAccordingly, this appeal is allowed by setting aside the judgment impugned
\nand remitting the case back to the High Court for trial of the same on
\nmerits after affording the respondent No. 1 to file his detailed written
\nstatement and the parties an opportunity to lead evidence. The High Court
\nis requested to finally dispose of the election petition expeditiously
\npreferably within a period of one year. The appellant is also held entitled
\nto costs which are directed to be paid by respondent No.1 and assessed at
\nRs. l0,000\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India V.S. Achuthanandhan vs P.J. Francis And Anr on 22 March, 1999 Bench: Dr. A.S. Anand, Cj, M. Srinivasan, R.P. Sethi CASE NO.: Appeal (civil) 1808 of 1997 PETITIONER: V.S. ACHUTHANANDHAN RESPONDENT: P.J. FRANCIS AND ANR. DATE OF JUDGMENT: 22\/03\/1999 BENCH: DR. A.S. ANAND, CJ & M. SRINIVASAN & R.P. SETHI JUDGMENT: […]<\/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":[30],"tags":[],"class_list":["post-39530","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nV.S. Achuthanandhan vs P.J. 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