Judgment

SHELAT, J.: This appeal, directed against the dismissal by the High Court of Allahabad of the election petition filed by the appellant, concerns the mid-term elections to the U. P. State Assembly from Mahrauni constituency & Jhansi district which took place on February 5, 1969.

2. The appellant fought the election on the Jan Sangh party ticket while the respondent, the returned candidate, fought it on the Congress party ticket. The election petition was filed on three grounds: (1) the publication of two pamphlets (Exs. P-8 and P-9), which according to the appellant contained false statements relating to his personal character and conduct within the meaning of Section 123 (4) of the Representation of the People Act, 1951. (2) undue influence. within the meaning of Section 123 (2) and (3) incurring and authorising expenditure in excess of the prescribed amount under Section 123 (6). In this appeal, we are, however, concerned with the first ground only, as counsel for the appellant told us at the very commencement of the hearing that he did not propose to press grounds 2 and 3. The appellant s case was that the, said two pamphlets (Exs. P-8 and P-9) were widely circulated in the constituency by the respondent s workers and agents with his consent between January 13 to February 3, 1969, and were calculated to prejudice his prospects in the election.

3. The pamphlet (P-8), though published in the name of the Secretary, District Congress Committee, was printed at the Swatantra Press, owned by and located at the residence of the respondent. The allegation was that it was printed and published at the instance of the respondent. Besides Ex. P-8, there was another pamphlet (Ex. P-9) issued over the signature of one Agnihotri, which also was distributed by the respondent and with his consent by the said Agnihotri and other named in the petition at a public meeting addressed by the Prime Minister at Mahrauni on February 3, 1969.

4. Ex. P-8 commenced with the statement that the respondent would win by an overwhelming majority and after reciting certain acts of commission and omission of the Jan Sangh stated as follows:

"Mr. Raghunath Singh obtained from his Jansangh Government thousands of rupees in the name of hailstorm. Made several farmers to give grain for procurement and he himself gave not even a single grain."

Ex. P-8 was replied to by Ex. P-10 issued from Lalitpur on January 30, 1969 in which opposition of the Jan Sangh Party to the levy of the foodgrains was declared. The pamphlet also warned the public not to believe false statements made against the appellant and stated:

"Mr. Raghunath Singh took not even a pie in the name of hailstorm. The papers can be seen in Mahrauni Tehsil."

The pamphlet, EX. P-10, in its turn was replied to by Ex. P-9 issued, as aforesaid, under the signature of Agnihotri and was addressed to the voters of Mahrauni area. It contained amongst other things the following:

"Immediately after becoming M. L A. Mr. Raghunath Singh Ji got taqavi of thousands of rupees while his neighbours and poor peasants of the whole Mahrauni area kept desiring eagerly for the Government help."

5. The statements in the two pamphlets (Exs. P-8 and P-9) complained of thus related to (1) the appellant having received thousands of rupees from the Government as taqavi loans abusing his position as a member of the Legislative Assembly, and (2) of having made several cultivators in the area honour the levy imposed by the Government while he himself abstained from honouring it. The appellant s case was that both the statements were false, that they concerned his personal character and conduct, that the respondent believed them to be false or did not believe them to be true and were reasonably calculated to prejudice his prospects in the election .

6. There was, according to the appellant, a hailstorm on March 16, 1967 which swept over a number of villages in the constituency causing considerable damage to the crops and as a measure of