JUDGMENT

This appeal is directed against an order of the High Court of Punjab and Haryana dated 3.6.1999, dismissing an election petition filed by the appellant at the threshold on sustaining preliminary objection.

2. The appellant, who was a candidate set up by the Congress Party was defeated by respondent No. 1, the returned candidate, who had been set by the Akali Dal (Badal group). The elections to constituency No. 96, Ferozepur Cantt of Punjab Legislative Assembly were held in 1997. The polling took place on 7.2.1997 and after counting of votes on 9.2.1997, respondent No. 1 was declared elected. In view of the limited nature of controversy involved in this appeal, we are relieved of the necessity of giving break-up of votes or mention about other candidates, who had also contested the election.

3. The appellant filed an election petition seeking to declare the election of returned candidate void on various grounds and for a further declaration that the appellant be declared duly elected as Member of the Legislative Assembly after setting aside election of the returned candidate. In the election petition, two main corrupt practices were alleged to have been committed by the returned candidate - one falling under Section 123(1)(A)(b) of the Representation of the People Act, 1951 (hereinafter referred to as the Act) and the other falling under Section 123(4) of the Act. The material facts and particulars concerning allegations of corrupt practice insofar as corrupt practice under Section 123(1) is concerned, are contained from paragraphs 28 to 39 of the election petition, while material facts and particulars concerning commission of corrupt practice falling under Section 123(4) of the Act are contained in paragraphs 12 to 27 of the election petition.

4. Mr. Talwar, learned counsel appearing for the election petitioner has taken us through the election petition.

5. Section 123(4) of the Representation of the People Act provides :

"The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate s election."

6. In vain, have we searched through the election petition and, particularly through paragraphs 12 to 27 thereof, dealing with the alleged commission of corrupt practice which falls within the mischief of Section 123(4) of the Act, for any averment to the effect, that the publication was made by the returned candidate or his election agent or by any other person with the consent of the candidate or his election agent or any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of the candidate.

7. The election petition is singularly silent of any such averment that the returned candidate, even if, it be assumed for the sake of the arguments, had published and distributed certain documents, (Annexures A-1 to A-7), as alleged in the election petition either himself or through any other persons with his consent, that those statements were false and that the returned candidate either believed them to be false or did not believe them to be true, though in paragraph 9 of the election petition, which has been verified as correct on the basis of legal advice, this requirement emanating from Section 123(4) has been mentioned but without any assertion that the returned candidate in this case published the false statements knowing them to be false and/or not believing them to be true. The submission of Mr. Talwar, that at the trial, the petitioner could have said so in his evidence is futile. It is an established proposition that no evidence can be led on a