2012 Supreme(Mad) 2294

2012 (3) CTC 673, 2012 (3) LW 385
High Court of Judicature at Madras
K. VENKATARAMAN, J.
P. Chidambaram
Versus
R.S. Raja Kannappan & Others
Application No.3428 of 2011 in Election Petition No.5 of 2009
Decided on: 07-06-2012

Ratios
a. In election petition, the respondent could file a petition seeking the rejection of the main petition and also striking out the pleadings.
b. Corrupt practice for the purpose of the Representation of Peoples Act, 1951 means bribery i.e., to say any gift, offer or promise by the candidate or his agent or by any other person with the consent of the candidate or his election agent.
c. To maintain election petition, the petitioner has to plead material facts with details.
d. In election matters, an order of recount cannot be granted as a matter of course.
e. Power to strike out the pleadings should be exercised by the Court sparingly and with extreme caution and circumspection.
f. In judicial proceedings, if some cause of action is disclosed, the plaint cannot be struck out merely because the case is weak and not likely to succeed.
g. When an election is challenged on the ground of corrupt practice, all the facts which are essential to cloth the petitioner with the complete cause of action must be pleaded.
h. In election petition, for deciding the question as to whether material facts were pleaded, it has to be seen whether the allegations made in the Election Petition makes the other side understand the allegations made against him and be in the position to answer those allegations.
i. Power of the Court to reject the plaint has to be exercised cautiously and with utmost care.
j. An Election Petition could be dismissed by rejection of plaint only if there is total lack of facts with lack of materials and particulars.

Headnote:(A)Representation of Peoples Act, 1951(43 of 1951)-Sec.81, 83-Code of Civil Procedure, 1908(5 of 1908)-O.VI R.16, O.VII R.11-Election petition-Rejection-Pleading-Material fact-Corrupt practice-Striking out pleading-Maintainability-Challenging the declaration in favour of the petitioner as elected in Lok Sabha election, respondent had filed election petition by alleging that the petitioner had paid money to the voters, used the staffs of nationalized bank for election work and the Returning officer had wrongly declared the petitioner as elected but in fact only the respondent secured more votes-Petitioner sought for rejection of the election petition and also expunging the averments as scandalous by stating that material facts were not pleaded in the petition and the averments against him were scandalous which plea was resisted by the respondents-Held, respondent had specifically pleaded the instances of corrupt practices and when there were such pleadings, their sufficiency or correctness could be decided only in trial-Pleadings regarding the corrupt practices were essential to decide the case and could not ordered to be struck from the petition-Petitions were dismissed.

       (B)Representation of Peoples Act, 1951(43 of 1951)-Sec.81, 83-Code of Civil Procedure, 1908(5 of 1908)-O.VI R.16, O.VII R.11-Election petition-Rejection-Pleading-Striking out pleading-Maintainability-In election petition, the respondent could file a petition seeking the rejection of the main petition and also striking out the pleadings.

       The first and foremost question that requires to be answered is whether an application under Order VI Rule 16 and Order VII Rule 11 CPC to strike out the pleadings in the Election Petition and to reject the Election Petition are maintainable in the Election Petition.

        14.1. A well answer could be YES. Para 14

       (C)Representation of Peoples Act, 1951(43 of 1951)-Sec.81, 83- Election petition-Corrupt practice-Bribery-Corrupt practice for the purpose of the Representation of Peoples Act, 1951 means bribery i.e., to say any gift, offer or promise by the candidate or his agent or by any other person with the consent of the candidate or his election agent.

       16.5. The requirement in the said provision is that corrupt practice for the purpose of the Act means Bribery i.e., to say any gift, offer or promise by the candidate or his agent or by any other person with the consent of the candidate or his election agent. In the case on hand, it was alleged in the Election Petition that the applicant has taken part in the functions organized by the women self help group by name Annai Kasthuribai Thondu Niruvanam. In order to obtain their support, the agents of the applicant was collecting the bank account details of those women Self Help Group members in order of park illegal funds into their account for purchasing the votes of their members enblock. When a complaint was lodged by the election petitioner, they changed their mode and issued tokens to the ring leaders of the Self Help Groups and the money were distributed to the token holders by Karthik Chidambaram, son of the applicant. Para 16.5

       (D)Representation of Peoples Act, 1951(43 of 1951)-Sec.81, 83- Election petition-Pleading-Material fact-To maintain election petition, the petitioner has to plead material facts with details- In election matters, an order of recount cannot be granted as a matter of course.

       17.14. Thus, the above pronouncements made by the Hon’ble Apex Court reveals that,

        (a) There should be valid allegations in the Election Petition supported by material facts to seek for a recount.

        (b) On vague allegations, recount cannot be ordered.

        (c) In a proper case where the necessity of justice demand it, the Returning Officer may be directed to produce the ballot papers and may permit inspection by the parties before it.

        (d) For granting an order for inspection requires two conditions, namely,

        (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the election petitioner relies in support of his case and

        (ii) the Court is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.

        (e) It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of the material facts pleaded in the petition and supported by the contemporaneous evidence, the recount can be ordered. Para 17.14

       (E)Code of Civil Procedure, 1908(5 of 1908)-O.VI R.16, O.VII R.11-Election petition-Rejection-Pleading-Striking out pleading-Maintainability-Power to strike out the pleadings should be exercised by the Court sparingly and with extreme caution and circumspection-In judicial proceedings, if some cause of action is disclosed, the plaint cannot be struck out merely because the case is weak and not likely to succeed.

       29. Thus, the decisions referred to above makes it clear that striking of pleadings should be exercised sparingly and with extreme caution and circumspection. Unless otherwise material facts have not been stated in the Election Petition, the same cannot be struck off at the threshold. It has also been held in those decisions that if totally there is no cause of action, the Election Petition could be dismissed. However, if some cause of action is disclosed, the pleadings cannot be struck out merely because the case is weak and not likely to succeed. As long as the Election Petition discloses some cause of action and raises some question fit to be decided by the Court, the same cannot be struck out. Para 29

       (F)Representation of Peoples Act, 1951(43 of 1951)-Sec.81, 83-Code of Civil Procedure, 1908(5 of 1908)-O.VI R.16, O.VII R.11-Election petition- Pleading-Material fact- When an election is challenged on the ground of corrupt practice, all the facts which are essential to cloth the petitioner with the complete cause of action must be pleaded-In election petition, for deciding the question as to whether material facts were pleaded, it has to be seen whether the allegations made in the Election Petition makes the other side understand the allegations made against him and be in the position to answer those allegations.

       31.1. However, when an election is challenged on the ground of corrupt practice, all the facts which are essential to cloth the petitioner with the complete cause of action must be pleaded. In deciding the said question, it has to be seen whether the allegations made in the Election Petition makes the other side understand the allegations made against him and be in the position to answer those allegations. Para 31.1

       (G)Representation of Peoples Act, 1951(43 of 1951)-Sec.81, 83-Code of Civil Procedure, 1908(5 of 1908)-O.VII R.11-Election petition-Rejection-Pleading-Material fact-Maintainability- Power of the Court to reject the plaint has to be exercised cautiously and with utmost care-An Election Petition could be dismissed by rejection of plaint only if there is total lack of facts with lack of materials and particulars.

       33. An application under Order VII Rule 11 CPC for rejecting the plaint (here the Election Petitioner) who knocks the door of Court of Justice, which is a drastic relief sought against the Election Petitioner. The same has to be exercised cautiously and with utmost care. An Election Petition could be dismissed by applying the said provision only, if there is total lack of facts with lack of materials and particulars. Para 33