Back
2006 Supreme(Kar) 327
IN THE HIGH COURT OF KARNATAKA AT BAN GALORE
P. VISHWANATHA SHETTY, J.
Smt. PATIL VAISHALI ASHOK - Petitioner.
Versus
DIGAMBARRAO YASHW ANTRAO P ATIL AND OTHERS - Respondent.
Election Petition No. 12 of 2004.
Decided on 6th April, 2006b
Smt. H.D. Amaranathan for Smt. Nalini Venkatesh, Advocate for Petitioner;
Smt. Prarmila Nesargi, Senior Advocate for Sri Ravikumar D. Gokakakar, Advocate for Respondent-1.
Headnote:Civil Procedure Code - Order 6, Rule 16 -Striking of pleadings and dismissal of election petition -Order 6, Rule 16, CPC -Application of rule. [P. Vishwanatha Shetty, J.] - It is also now well-settled by the decisions of the Supreme Court that the provisions of Order VI Rule 16 of Code can be made applicable and the pleadings can be struck off and the election petition also can be dismissed for want of cause of action by applying the provisions contained under Order VII Rule 11(a) of Code.
Cases Referred: (1969) 3 SCC 238, AIR 1976 SC 744, 1986 Supp. SCC 315, (1975) 4 SCC 533, (1996) 1 SCC 394, AIR 1996 SC 1113, (1996) 1 SCC 378, AIR 1965 SC 141, AIR 1965 SC 183, (1991) 1 SCC 666, (2000) 2 SCC 294, AIR 2005 SC 22, AIR 1999 SC 768, AIR 1999 SC 1129, AIR 1999 SC 2045, (1996) 7 SCC 679, (1994) 2 SCC 393, ILR 2001 Kar 4454, AIR 1999 SC 1128, AIR 2000 SC 16.
Representation of People Act - Section 83 -Striking of pleadings and dismissal of election petition -Order 6, Rule 16, CPC - Applicability. [P. Vishwanatha Shetty, J.] - It is also now well-settled by the decisions of the Supreme Court that the provisions of Order VI Rule 16 of Code can be made applicable and the pleadings can be struck off and the election petition also can be dismissed for want of cause of action by applying the provisions contained under Order VII Rule 11(a) of Code.
Pleadings -Pleadings in Election Petition -Can be struck of by applying Order 6, Rule 16, CPC. [P. Vishwanatha Shetty, J.]. It is also now well-settled by the decisions of the Supreme Court that the provisions of Order VI Rule 16 of Code can be made applicable and the pleadings can be struck off and the election petition also can be dismissed for want of cause of action by applying the provisions contained under Order VII Rule 11(a) of Code.
Representation of people Act - Section 83 -Corrupt practice -Incomplete cause of action and incomplete allegations -Effect and consequences. [P. Vishwanatha Shetty, J.] - It is well settled by the decisions of the Supreme Court that failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order VI Rule 16 of Code. If the election petition lacks material or full particulars as required to be to be set out as provided under Clause(b) of sub-Section (1) of Section 83 of the RP Act, it is open to the Court to permit the election petitioner to amend the petition by furnishing such particulars even after the expiry of the limitation period prescribed and it is only even after affording such an opportunity if the petitioner fails to furnish the material particulars, the election petition could be rejected at the threshold. If the averments made in the petition suffer from lack or incomplete allegation made in the petition suffer from lack or incomplete allegation of material facts leading to an incomplete cause of action, such pleadings are required to struck off by this Court under Order VI Rule 16 of Code.
In this petition, the petitioner who has lost election to the 1st respondent to the Legislative Assembly Election held on 26th April, 2004, has called in question the election of 1st respondent on the ground that the 1st respondent had indulged in corrupt practice within the meaning of Section 123(3) of the Representation of the People Act, 1951 (hereinafter referred to as 'the RP Act') by appealing to the voters on communal grounds and also on the basis of Mar at hi language.
2. In LA. No. 3 of 2004 filed under Order 6, Rule 16; Order 7, Rule l1(a) and Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code') read with Section 86 of the RP Act, the 1st respondent has prayed for striking down the pleadings at paragraphs 8 to 14 of the petition; and in LA. No. I of 2005 filed under Section 86(1) of the RP Act, he has prayed for dismissing the election petition for want of cause of action.
3. The facts in brief:
The petitioner in this petition had contested general elections held on 26th April, 2004 for the Legislative Assembly from 196 Khanapur Legislative Assembly Constituency situate within Belgaum District. There were 12 candidates who had contested the elections. While the 1st respondent-Digambarrao Yashwanthrao Patil had contested the election as an independent candidate, respondent 2-Prahlad Kallappa Remani contested on behalf of JD(U); respondent 3-MallikaIjun had contested on behalf of JD(S) and respondent 4-Rafique Khatalasab Khanapur had contested on behalf of Indian National Congress. In the election, while the petitioner has secured 18,747 votes, the 1st respondent had secured 19,115 votes and the other candidates secured lesser number of votes than the petitioner. The 1st respondent, who has secured highest number of votes amongst all the candidates was duly declared as a Member of the Karnataka Legislative Assembly by the Returning Officer on 13th May, 2004. It is the case of the petitioner that the 1st respondent though had contested the election as an independent candidate, he was in fact sponsored and supported by the Maharashtra Ekikarana Samithi. According to the petitioner, the Maharashtra Ekikarana Samithi is an unregistered association and it is neither a recognised political party nor it is registered as a political party by the Election Commission of India. It is the grievance of the petitioner that the 1st respondent was able to get himself elected as Member of Karnataka Legislative Assembly on account of his appeal to the voters made both on communal grounds and on the basis of Marathi language; and the corrupt practice committed by him falls within the meaning of Section 123(3) of the RP Act and therefore, his election is liable to be set aside by this Court. Further, he had also prayed to declare that he was duly elected to fill the said seat. While the respondents 5 to 11 though served remained ex parte and did not file statement of objections, the 1st respondent has filed his objections and denied every one of the allegations made by the petitioner and prayed that the petition may be dismissed as one devoid of any merits. The 1st respondent had filed LA. No. I of 2004 seeking for rejection of the election petition. Since the said application was not signed by the Advocate, the same was dismissed by me by means of order dated 29th October, 2004. Subsequently, the 1st respondent has filed LA. No.3 of 2004 seeking for striking of paragraphs 8 to 14 of the election petition. As noticed by me earlier, he has also filed I.A. No. I of 2005 seeking for dismissal of election petition for want of cause of action. It is the case of the 1st respondent in LA. No.3 of 2004 that averments made at paragraphs 8 to 14 of the election petition are liable to be struck off on the ground that they are unnecessary, scandalous, frivolous and vexatious and that it tend to prejudice, embarrass and delay the fair trial of the election petition and do not disclose any cause of action. The said applic
