Judgment

GUPTA, J. :- This is an appeal under Section 116-A of the Representation of the People Act, 1951. By our order made on May 14, 1976 we allowed this appeal setting aside the Judgment of the High Court and dismissing the election petition without any order as to costs adding that the reasons for our decision will follow. The following paragraphs contain the reasons.

2. The appellant was elected to the Barwaha Assemebly Constituency No. 267 of the Madhya Pradesh Legislative Assembly. Poll was taken on March 8, 1972 and the result was declared on March 12, 1972. There were only two contestants, appellant Amolakchand Chhazed who was a nominee of the Congress party and the second respondent before us. Vimalchand Jain, sponsored by Bhartiya Jan Sangh. The appellant was declared elected having secured 30295 votes, the second respondent polled 15620 votes. One Bhagwandas, a voter in that constituency, filed an election petition in the High Court of Madhya Pradesh asking for a declaration that the appellants election was void on the ground of corrupt practices described in paragraph 7 of the election petition. A rather unusual feature of this case is that at the stage when the parties were to file their lists of witnesses, petitioner Bhagwandas changed his lawyer and engaged a new lawyer to represent him and the second respondent Vimalchand appearing through the lawyer who ceased to represent Bhagwandas applied to the court for permission to file his own list of witnesses in support of the allegations made in the election petition stating that he had reasons to think that the petitioner had been won over by the successful candidate. This prayer was allowed. The High Court by its Judgment and order dated November 28, 1973 set aside the election of the successful candidate on the view that the allegations of corrupt practice have been proved against him.

3. It is alleged in the election petition that the successful candidate and his agents and workers, at his instance and in the presence, distributed in different villages in the constituency a leaflet published by the Block Congress Committee, Barwaha, and copies of a weekly paper named PRACHAND containing statements regarding the personal character and conduct of the second respondent which the successful candidate knew to be false and did not believe to be true. The leaflet reads as follows:

"In the Barwaha Assembly Constituency the corrupt and immoral Jana Sanghi candidate Vimalchand Jain should be defeated and the Congress candidate Amolakchand Chhazed should be made successful by your putting the seal on the cowcalf symbol. Read in Prachand the black doings of the Jana Sangh candidate and then decide whom to give your vote."

The leaflet was followed by a more elaborate statement in what is ostensibly a special number of PRACHAND dated March 7, 1972. It is not disputed that the contents of the leaflet and the copy of PRACHAND are defamatory. The defence of the returned candidate is that he did not either himself or by his workers distribute any of these two documents anywhere among the electorate and further, that after his defeat the second respondent himself got these printed and set up a false story to have the election set aside.

4. As regards the leaflet the allegation in the election petition is that the appellant accompanied by one Radhakishan Parekh of village Sanawad and other persons whose names the petitioner did not know, toured in a jeep in the constituency on March 6, 1972, two days before the polling, distributing the leaflet. About the copy of PRACHAND, it is said that the successful candidate and three other persons, Radhakishan Parekh and Dharamchand Rakhabchand Jain, both of Sanawad, and Sobhagmal Surana of Barwaha traveling in a jeep distributed copies of the paper at different places. Ten villages have been named where the leaflet and the newspaper were distributed. In the affidavit accompanying the election petition, paragraph 7 of the petition containing the