{"id":64401,"date":"2009-11-19T00:00:00","date_gmt":"2009-11-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-p-joshi-vs-kalyan-singh-chouhan-anr-on-19-november-2009"},"modified":"2019-03-01T00:18:29","modified_gmt":"2019-02-28T18:48:29","slug":"c-p-joshi-vs-kalyan-singh-chouhan-anr-on-19-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-p-joshi-vs-kalyan-singh-chouhan-anr-on-19-november-2009","title":{"rendered":"C.P.Joshi vs Kalyan Singh Chouhan & Anr on 19 November, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
C.P.Joshi vs Kalyan Singh Chouhan & Anr on 19 November, 2009<\/div>\n
                                         1\n\n             IN THE HIGH COURT OF JUDICATAURE FOR RAJASTHAN\n\n                                  AT JODHPUR.\n\n\n                                    ORDER.\n\n\n               C.P. Joshi              vs.     Kalyan Singh Chouhan\n                                               & anr.\n\n                       S.B. Election Petition NO.1\/2009 under\n                  Sections 80,81,100(1)(d)(iii) and 100(1)(d)(iv) of\n                  the Representation of People Act, 1951.\n\n\n               Date of Order:                November 19th, 2009.\n\n\n                                PRESENT\n                      HON'BLE MR. PRAKASTH TATIA,J.\n<\/pre>\n
REPORTABLE<\/p>\n
         Mr. M.S. Singhvi, for the petitioner.\n<\/p>\n
         Mr.L.R. Mehta with Mr. Vijay Bishnoi, for respondent no.1.<\/p>\n
               In this Election Petition, challenging the election of the<\/p>\n
         sole respondent, the petitioner alleged that the respondent’s<\/p>\n
         wife cast two votes at different polling station and,<\/p>\n
         therefore, both votes are liable to be rejected. The<\/p>\n
         petitioner   also   claimed    that   six   other   voters   by<\/p>\n
         impersonation, cast votes, then the real voters approached<\/p>\n
         the Presiding Officer of the concerned polling station and<\/p>\n
         the Presiding Officer, after satisfying himself about the<\/p>\n
         identity of the voters, issued tendered ballet papers after<\/p>\n
         obtaining thumb impression\/signatures of the said voters.
\n                                 2<\/span><\/p>\n
The petitioner contended that those six votes originally cast<\/p>\n
by other persons, by impersonation, may be excluded and<\/p>\n
six tendered votes cast by the persons referred in the<\/p>\n
petition be counted as cast by the genuine voters. On doing<\/p>\n
so, the petitioner will be found to have secured more<\/p>\n
number of votes than the votes secured by the respondent.<\/p>\n
It will be worthwhile to mention here that the difference of<\/p>\n
the votes between the votes secured by the petitioner-lost<\/p>\n
candidate and the respondent-winning candidate is only<\/p>\n
one.\n<\/p>\n
       The respondent filed the reply to the election petition<\/p>\n
on 13.10.2009 but before that, already submitted the<\/p>\n
application under Order 6 Rule 16 CPC read with Section<\/p>\n
151, CPC and read with Section 87 of the Representation of<\/p>\n
People Act, 1951 on 11.8.2009. Said application was not<\/p>\n
decided as the time was sought by the learned counsel for<\/p>\n
the    respondent   on   the   ground   of   his   sickness   and,<\/p>\n
therefore, keeping the application pending, the respondent<\/p>\n
was directed to file reply and hence the reply to the election<\/p>\n
petition has been filed. By this order, this Court is deciding<\/p>\n
the application moved under Order 6 Rule 16, CPC.<\/p>\n
       According to the respondent, the averments of para<\/p>\n
nos.13 to 18 of the Election Petition, even they are<\/p>\n
assumed to be correct without being admitting, do not<\/p>\n
disclose any cause of action against respondent no.1
\n                                3<\/span><\/p>\n
inasmuch as it has not been alleged in the said paragraphs<\/p>\n
that the alleged impersonators cast their votes in favour of<\/p>\n
respondent no.1 and, therefore, the averments of para nos.<\/p>\n
13 to 18 of the election petition are unnecessary, frivolous<\/p>\n
and scandalous and they only tend to prejudice and delay<\/p>\n
the fair trial of the Election Petition filed by the petitioner<\/p>\n
against respondent no.1. On the basis of same reasons, it<\/p>\n
has been stated that para nos. 13 to 18 of the Election<\/p>\n
Petition tantamount to abuse of process of Court inasmuch<\/p>\n
as they do not disclose any cause of action for setting aside<\/p>\n
the election of respondent no.1 and on the basis of said<\/p>\n
averments, it is not open to the petitioner to submit in para<\/p>\n
no.19 that the result of the election in question has material<\/p>\n
affected on account of improper reception of votes. It has<\/p>\n
also been stated that the petitioner has not said anything<\/p>\n
about the remaining tendered ballot papers. Therefore,<\/p>\n
according to the respondent, it will be presumed that they<\/p>\n
have been cast in favour of respondent no.1.<\/p>\n
     The   learned   counsel   for   respondent   vehemently<\/p>\n
submitted that the petitioner is required to plead only<\/p>\n
concise statement of facts to prove the facts which can<\/p>\n
alone constitute the cause of action. The petitioner has not<\/p>\n
pleaded that the votes cast on earlier occasion were cast by<\/p>\n
some other persons and not by the genuine persons.<\/p>\n
Without pleading this fact, the petitioner cannot lead
\n                               4<\/span><\/p>\n
evidence on this issue that votes cast on earlier occasion<\/p>\n
were not cast by genuine persons. It is also submitted that<\/p>\n
the petitioner has not pleaded that the votes cast on earlier<\/p>\n
occasion were not in favour of the respondent, therefore,<\/p>\n
the petitioner cannot seek relief of exclusion of votes from<\/p>\n
the votes cast in favour of the respondent. It is also<\/p>\n
submitted that the petitioner also     not pleaded that six<\/p>\n
tendered votes are in favour of the petitioner nor the<\/p>\n
petitioner has pleaded that if the votes cast on earlier<\/p>\n
occasion were not in favour of the respondent, then in<\/p>\n
whose favour those votes were ? Then it is submitted that if<\/p>\n
the tendered votes were cast in favour of other candidate<\/p>\n
then their exclusion will not affect vote secured by the<\/p>\n
respondents and further, the votes tendered in favour of<\/p>\n
other candidates are not the party to the petition, therefore,<\/p>\n
these tendered votes cannot be excluded from the votes<\/p>\n
cast in favour of those candidates who are not party in the<\/p>\n
petition. More emphasis of the learned counsel for the<\/p>\n
respondent was on the point was that the petitioner should<\/p>\n
have pleaded that the earlier six votes were cast in favour<\/p>\n
of the respondent and that too by the persons who were not<\/p>\n
the real and genuine voters but other persons other than<\/p>\n
genuine votes, cast votes by impersonation and, therefore,<\/p>\n
the pleadings in para no.13 to 18 be struck off and the<\/p>\n
pleading in para 19 is based on the pleading in para nos.13
\n                              5<\/span><\/p>\n
to 18 which, after deletion of para no. 13 to 18, will also<\/p>\n
become unnecessary, hence the pleading in para no.19 also<\/p>\n
deserves to be struck off under Order 6 Rule 16 CPC.<\/p>\n
     The learned counsel for the petitioner submitted that<\/p>\n
the petitioner pleaded necessary facts in para nos.13 to 18<\/p>\n
and from these pleadings it has been disclosed by the<\/p>\n
petitioner that six votes were cast initially by the other<\/p>\n
persons in the name of genuine voters by impersonation.<\/p>\n
The petitioner neither can know       nor could have any<\/p>\n
knowledge that the persons who voted on earlier occasion,<\/p>\n
cast in whose favour. The petitioner has no knowledge<\/p>\n
about the fact that in whose favour tendered votes are. This<\/p>\n
is because of the fact that the election is conducted by<\/p>\n
secrete voting. The petitioner specifically pleaded that<\/p>\n
earlier votes have been cast by “some body else” and not<\/p>\n
by the voters who cast votes subsequently as tendered<\/p>\n
votes. Learned counsel for the petitioner submitted that the<\/p>\n
petitioner is not seeking recounting of votes but seeking<\/p>\n
counting of genuine votes for which the petitioner has to<\/p>\n
plead and prove one fact that tendered votes were<\/p>\n
demanded and were given and the tendered votes were<\/p>\n
cast. The tendered votes are more than the difference<\/p>\n
between the votes secured by the petitioner and the votes<\/p>\n
secured by the respondent.\n<\/p>\n
                               6<\/span><\/p>\n
     It is not in dispute that if the pleading is found to be<\/p>\n
scandalous, unnecessary, frivolous or vexatious or it may<\/p>\n
tend to prejudice, embarrass or delay the fair trial of the<\/p>\n
election petition or otherwise is an abuse of process of<\/p>\n
court, then that part of the pleading can be struck out by<\/p>\n
the order of the Court. Every pleading must contain only<\/p>\n
statement in a concise form of material facts on which the<\/p>\n
party pleading relief for his claim. The pleading should also<\/p>\n
not contain the evidence on which the facts are to be<\/p>\n
proved. Apart from the power of the court to strike out<\/p>\n
pleading by exercising power under Order 6 Rule 16, CPC, if<\/p>\n
the court finds that the petition does not disclose the cause<\/p>\n
of action from the statement in the petition or that the<\/p>\n
petition is barred by any law, then the petition can be<\/p>\n
rejected by exercise of power Order 7 Rule 11, CPC. From<\/p>\n
the argument advanced by the learned counsel for the<\/p>\n
respondent, it appears that according to the respondent,<\/p>\n
the pleadings in para nos.13 to 18, even if stands admitted,<\/p>\n
even then did not disclose any cause of action against<\/p>\n
respondent no.1. If it is so, then the petitioner’s contention<\/p>\n
though raised in different manner, is a claim under Order 7<\/p>\n
Rule 11, CPC, as the Order 7 Rule 11 CPC specifically<\/p>\n
provides that a plaint (here in this case, the election<\/p>\n
petition) shall be rejected   where it does not disclose a<\/p>\n
cause of action. But that is not the prayer of the
\n                                7<\/span><\/p>\n
respondent, which appears to be because of the reason that<\/p>\n
facts and grounds raised in para nos.13 to 18 and 19 are<\/p>\n
not the only grounds to challenge the election of the<\/p>\n
respondent and one of the ground and that is, twice casting<\/p>\n
of votes by one of the voters, the wife of the respondent is<\/p>\n
also there on the basis of which the petitioner is seeking the<\/p>\n
relief of setting aside of the election of the respondent. Be it<\/p>\n
as it may be, the respondent’s plea is that pleading in para<\/p>\n
nos.13 to 18 be struck off.\n<\/p>\n
     To examine whether the pleadings in the petition are<\/p>\n
unnecessary, scandalous, frivolous, vexatious or tend to<\/p>\n
prejudice, embarrass or delay the fair trial of the petitioner<\/p>\n
or is otherwise it is an abuse of process of court, we may<\/p>\n
look into the pleadings in para nos.13 to 18 which is<\/p>\n
pleaded for different voters who cast votes at different<\/p>\n
polling stations. It has been stated that when the real voter<\/p>\n
reached to her\/his polling station, number of which has<\/p>\n
been given in the pleadings, found that      “some body else<\/p>\n
had already cast votes by Electronic Voting Machine (EVM)<\/p>\n
on her\/his serial number by practicing impersonation”. Then<\/p>\n
the Presiding Officer of the concerned polling station, put<\/p>\n
questions to the voter named in the pleading in separate<\/p>\n
para referred above regarding her\/his identity and on giving<\/p>\n
satisfactory reply by that voter to the questions, the voter<\/p>\n
was asked to put her\/his thumb impression\/signature
\n                                8<\/span><\/p>\n
against the entry relating to her\/his name in Form 17B. On<\/p>\n
putting the thumb impression\/signature against the entry<\/p>\n
relating to her\/his name in Form 17B, the voter was<\/p>\n
supplied a tender ballet paper, who thereafter cast her\/his<\/p>\n
vote on the tender ballet paper. As per rule 49P of the<\/p>\n
Conduct of Election Rules, 1961, a tender vote can be given<\/p>\n
to a person by the Presiding Officer if a person is<\/p>\n
representing himself to be a particular elector seeks to vote,<\/p>\n
after another person has already voted on such elector. The<\/p>\n
tender vote is not issued     on mere asking by any person.<\/p>\n
Sub-rule (2) Rule 49P itself clearly provides that the<\/p>\n
Presiding Officer may ask question relating to identity of the<\/p>\n
elector and if the Presiding Officer is satisfied that the<\/p>\n
person is a genuine voter and another person has already<\/p>\n
voted for the person claiming himself to be particular<\/p>\n
elector, then only a tendered ballet paper is supplied.<\/p>\n
Therefore, issuance of tendered ballet paper and casting of<\/p>\n
tendered vote by a persons is a material fact, which<\/p>\n
inherently includes in it that some other person had cast<\/p>\n
vote and genuine voter approached the Presiding Officer of<\/p>\n
the concerned booth, who enquired about the identity of<\/p>\n
such   person   and   after   satisfying   himself   about   the<\/p>\n
genuineness of such person, issued tendered ballet paper.<\/p>\n
The Presiding Officer cannot hold detail enquiry about<\/p>\n
genuineness of the voter to whom he issued the tender
\n                              9<\/span><\/p>\n
ballet paper nor can hold enquiry who was the other person<\/p>\n
cast the vote on earlier occasion. Some what similar facts<\/p>\n
were under consideration before the Full Bench of the<\/p>\n
Punjab and Haryana High Court in the case of Rameshwara<\/p>\n
Nand v. Madho Ram (AIR 1968 Punj. 173 (FB)), wherein it<\/p>\n
was held that apart from Rule 42(analogous to rule 49 of<\/p>\n
the Rules of 1961), there is no other provision either in the<\/p>\n
Act or in the Rules with regard to the use to be made of the<\/p>\n
tendered votes; that it would be for the High Court in the<\/p>\n
election petition to determine how many of the tendered<\/p>\n
votes are valid and how many of the tendered votes are<\/p>\n
invalid and then decide whether any evidence and how<\/p>\n
much evidence should be allowed to be produced with<\/p>\n
regard to those votes; that at no prior stage could it be<\/p>\n
determined either by the Presiding Officer or by the<\/p>\n
Returning Officer as to how many votes out of the tendered<\/p>\n
votes have been cast validly and could be taken into<\/p>\n
account. The above Full Bench decision of the Punjab and<\/p>\n
Haryana High Court came up for consideration before the<\/p>\n
Judicial Commissioner of Goad, Daman & Diu in the case of<\/p>\n
Wilfred D’Souza v. Francis Menino Jesus Ferrao (AIR<\/a> 1976<\/p>\n
Goa, Daman & Diu 64) and Wilfred D’Souza’s case, it has<\/p>\n
been observed that in view of the provisions of rule 42<\/p>\n
(analogous to Rule 49) and of the finding of Rameshwara<\/p>\n
Nand’s case mere mention that vote is of “tendered vote”,
\n                                 10<\/span><\/p>\n
is sufficient disclosure of facts material within Section 83(1)<\/p>\n
(a) of the Act. Of course, that, the number of tendered<\/p>\n
votes is higher than the difference between the votes polled<\/p>\n
for   the petitioner and those polled for the respondent, is<\/p>\n
necessary fact. It has been held that as long there is a<\/p>\n
possibility of the counting of tendered votes upsetting the<\/p>\n
result of the election, the mere mention of the existence of<\/p>\n
tendered votes furnishes material particulars. Then it has<\/p>\n
been held that the difference is that in cases of tendered<\/p>\n
votes what is asked for is the counting and not the re-<\/p>\n
counting of the votes and it is elementary that every<\/p>\n
candidate had the right to the counting of the votes polled<\/p>\n
and the tendered votes may have to be counted if their<\/p>\n
number is such that a possibility exists of changing the<\/p>\n
result of the count by the Returning Officer.<\/p>\n
      The judgment of Wilfred D’Souza’s case was under<\/p>\n
challenge before the Hon’ble Supreme Court wherein also,<\/p>\n
Hon’ble the Supreme Court considered the various aspects<\/p>\n
relating to tendered votes (in Dr.Wilfred D’Souza v. Francis<\/p>\n
Menino Jesus Ferrao (AIR<\/a> 1977 SC 286). Hon’ble the<\/p>\n
Supreme Court held as under:-\n<\/p>\n<\/p>\n
             “….   tendered   ballet   papers,   even   though
\n        excluded from consideration at the time of counting
\n        of votes after the poll, can be taken into account in
\n        proceedings to challenge the validity of the election
\n                                 11<\/span><\/p>\n
       of     the    returned   candidates   provided   certain
\n       conditions are fulfilled….. .”<\/p><\/blockquote>\n
     Therefore, in view of the Rules as framed as well as in<\/p>\n
view of the fact that there is no rule specifically providing<\/p>\n
how and when a tendered vote can be considered and in<\/p>\n
view of the     decisions referred above, it is clear that the<\/p>\n
tendered vote may constitute a cause of action for filing the<\/p>\n
election petition, where alone on proving certain facts, the<\/p>\n
tendered ballet paper can be taken into account. The<\/p>\n
petitioner, in the present petition, therefore, has not<\/p>\n
pleaded in para nos.13 to 18 unnecessarily nor the pleading<\/p>\n
is scandalous, frivolous or vexatious, the pleadings in para<\/p>\n
nos.13 to 18 cannot prejudice or embarrass or delay the<\/p>\n
fair trial of the suit nor is otherwise an abuse of process of<\/p>\n
the court. Rather say, the pleadings in para nos.13 to 18<\/p>\n
are statements in concise form, that is of material facts and<\/p>\n
further more, is necessary pleadings for the relief claimed<\/p>\n
by the petitioner.\n<\/p>\n
     The learned counsel for the respondent also submitted<\/p>\n
that the petitioner has not pleaded that genuine voter had<\/p>\n
not cast vote on earlier occasion, therefore, the petitioner<\/p>\n
cannot lead evidence that the vote cast on earlier occasion<\/p>\n
was not cast by genuine voter. The learned counsel for the<\/p>\n
respondent relied upon the judgment delivered in the case<\/p>\n
of Raimal v. Lakha (1967 RLW 103), wherein it has been
\n                              12<\/span><\/p>\n
observed that it is only when a person has already cast a<\/p>\n
vote representing him to be a particular elector and another<\/p>\n
person appears and claims that he is the real elector, that a<\/p>\n
tendered ballet paper is handed over to him when the<\/p>\n
Returning Officer is satisfied that he is the real voter.<\/p>\n
Raimal’s case (supra) was in relation to the challenge to an<\/p>\n
election of member of Gram Panchayat, where also there<\/p>\n
was no provision in the Panchayat Act or in the Rules,<\/p>\n
expressly authorising the Tribunal to count a tendered vote<\/p>\n
on being satisfied that the ballot paper which was put in the<\/p>\n
ballet box was marked by imposter in the name of the<\/p>\n
elector who subsequently cast the tendered vote . Following<\/p>\n
the earlier judgment of this Court delivered in the case of<\/p>\n
Roop Narain vs. The Munsif Behror and others (SB Civil Writ<\/p>\n
Petition No.125 of 1966 decided on 5.5.1966), it has been<\/p>\n
held that on general principles that the Tribunal should<\/p>\n
count a tendered vote on being satisfied that the ballot<\/p>\n
paper which was put in the ballot box was marked by an<\/p>\n
imposter in the name of the elector who subsequently cast<\/p>\n
the tendered vote. In Raimal’s case(supra), it has been held<\/p>\n
that the tendered vote cannot obviously counted unless it is<\/p>\n
proved that the first vote in the name of the elector was<\/p>\n
cast by an imposter. The High Court was conscious of the<\/p>\n
fact that there may be possibility that the elector may cast<\/p>\n
vote twice; one as first voter then as second voter by
\n                              13<\/span><\/p>\n
casting tendered vote. Then this Court allowed the petition<\/p>\n
of the petitioner and allowed the petitioner to summon the<\/p>\n
elector who cast tendered ballet paper so that the Tribunal<\/p>\n
may record its finding that whether another person cast the<\/p>\n
vote for the genuine elector. The above judgment do not<\/p>\n
help the respondent in any manner inasmuch as that view<\/p>\n
which has been taken by this Court in Raimal’s case, is the<\/p>\n
same view as has been taken in the case referred above in<\/p>\n
Wilfred D’Souza’s case. The tendered vote if accepted and<\/p>\n
the difference between the margin of votes of the petitioner<\/p>\n
and the winning candidate is higher, then that can be a<\/p>\n
ground to challenge the election of the respondent and for<\/p>\n
that purpose it was necessary for the petitioner to plead<\/p>\n
that on which polling stations for which of the voters, votes<\/p>\n
alleged to have been cast by other persons and the<\/p>\n
tendered ballet papers were issued by the Returning Officer<\/p>\n
and   tendered votes have been cast and those tendered<\/p>\n
votes are required to be counted by excluding the earlier<\/p>\n
cast votes. The petitioner was not supposed to even plead<\/p>\n
that who cast the earlier votes because there is prima facie<\/p>\n
satisfaction of the election officer about the genuineness of<\/p>\n
the voters seeking tender vote to whom he issued the<\/p>\n
tender ballet paper and that person has cast tendered vote.<\/p>\n
The petitioner was not supposed to know nor he could have<\/p>\n
know to whom the first vote was cast and to whom
\n                                  14<\/span><\/p>\n
tendered vote was cast. The tendered vote is required to be<\/p>\n
counted on proving required facts and and as held in Wilfred<\/p>\n
D’Souza’s case(supra), counting of tendered vote is not the<\/p>\n
re-counting of votes but is counting of genuine vote which<\/p>\n
is a right of a candidate.\n<\/p>\n
       In view of the above, it is held that the pleadings in<\/p>\n
para    nos.13   to   18   in   the   election petition    are   not<\/p>\n
unnecessary,     scandalous,      frivolous   or   to     prejudice,<\/p>\n
embarrass or delay the fair trial of the election or<\/p>\n
otherwise, in any manner, is an abuse of process of court.<\/p>\n
Rather say, the pleadings in para nos. 13 to 18 are<\/p>\n
necessary pleadings.\n<\/p>\n
       In view of the above discussion, there is no merit in<\/p>\n
the application filed by the respondents under Order 6 Rule<\/p>\n
16 CPC and Section 151,CPC read with Section 87 of the<\/p>\n
Representation of People Act of 1951.\n<\/p>\n
       Hence, the application of the respondent is dismissed.<\/p>\n
                                      ( PRAKASH TATIA),J.\n<\/p>\n
mlt.<\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur C.P.Joshi vs Kalyan Singh Chouhan & Anr on 19 November, 2009 1 IN THE HIGH COURT OF JUDICATAURE FOR RAJASTHAN AT JODHPUR. ORDER. C.P. Joshi vs. Kalyan Singh Chouhan & anr. S.B. Election Petition NO.1\/2009 under Sections 80,81,100(1)(d)(iii) and 100(1)(d)(iv) of the Representation of People Act, 1951. Date of Order: […]<\/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":[8,19],"tags":[],"class_list":["post-64401","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nC.P.Joshi vs Kalyan Singh Chouhan & Anr on 19 November, 2009 - 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\/c-p-joshi-vs-kalyan-singh-chouhan-anr-on-19-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"C.P.Joshi vs Kalyan Singh Chouhan & Anr on 19 November, 2009 - 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