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HIGH COURT OF JUDICATURE AT MADRAS
K. VENKATARAMAN, J.
Original Application No. 215 of 2012 in Election Petition No. 11 of 2011
Decided On: 21-01-2013
The High Court dismissed the application filed by the returned candidate to strike off the pleadings in certain paragraphs of the election petition and consequently, to reject the election petition. The court held that the election petition disclosed a cause of action and it cannot be thrown out at the threshold itself. The court further held that the material facts with particulars as required under Section 83(1)(a) and (b) of the Representation of the People Act, 1951 (the Act) were set out by the election petitioner in the election petition and hence, the same does not require to be struck off. The court also held that the non-filing of the affidavit under order VI Rule 15(4) C.P.C. as mandated under Section 83(1)(c) of the Act is curable and the same has been cured by the election petitioner by filing an affidavit as required.
Fact of the Case:
The returned candidate filed an application to strike off the pleadings in certain paragraphs of the election petition and consequently, to reject the election petition. The election petitioner had alleged that the returned candidate managed to secure victory in the election by corrupt practice and by bringing upon undue influence on the District Election Officer and the Returning Officer, in his capacity as the then Cabinet Minister. The election petitioner had also alleged that the District Election Officer and the Returning Officer made ready a well designed ground for ensuring the victory by manipulating the Electronic Voting Machine (EVM).
Finding of the Court:
The court held that the election petition disclosed a cause of action and it cannot be thrown out at the threshold itself. The court further held that the material facts with particulars as required under Section 83(1)(a) and (b) of the Act were set out by the election petitioner in the election petition and hence, the same does not require to be struck off. The court also held that the non-filing of the affidavit under order VI Rule 15(4) C.P.C. as mandated under Section 83(1)(c) of the Act is curable and the same has been cured by the election petitioner by filing an affidavit as required.
Issues: 1. Whether the election petition disclosed a cause of action? 2. Whether the material facts with particulars as required under Section 83(1)(a) and (b) of the Act were set out by the election petitioner in the election petition? 3. Whether the non-filing of the affidavit under order VI Rule 15(4) C.P.C. as mandated under Section 83(1)(c) of the Act is curable?
Ratio Decidendi: 1. The court held that the election petition disclosed a cause of action and it cannot be thrown out at the threshold itself. The court relied on the judgment of the Supreme Court in D.Ramachandran v. R.V.Janakiraman, (1999) 3 SCC 267, wherein it was held that it is elementary that under Order 7 Rule 11 (a) C.P.C., the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the rule, there cannot be a partial rejection of the plaint or petition. 2. The court held that the material facts with particulars as required under Section 83(1)(a) and (b) of the Act were set out by the election petitioner in the election petition and hence, the same does not require to be struck off. The court relied on the judgment of the Supreme Court in Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617, wherein it was held that an election petition must contain a concise statement of "material facts" on which the petitioner relies. All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by Section 83(1)(a) of the RP Act read with clause(a) of Rule 11 of Order 7 CPC. 3. The court held that the non-filing of the affidavit under order VI Rule 15(4) C.P.C. as mandated under Section 83(1)(c) of the Act is curable and the same has been cured by the election petitioner by filing an affidavit as required. The court relied on the judgment of the Supreme Court in Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196, wherein it was held that the non-compliance of the same does not render the election petition dismissed in limini and the defect in verification affidavit is a curable defect.
Final Decision: The court dismissed the application filed by the returned candidate to strike off the pleadings in certain paragraphs of the election petition and consequently, to reject the election petition.
K. Venkataraman, J.
1. The present application is taken out by the applicant, the first respondent in the election petition in E.L.P.No.11 of 2011 to strike off the pleadings in paragraphs Nos.5, 9 to 12 and 22 to 47 of the election petition as being vague, vexatious, without material facts and material particulars and consequently, reject the election petition as being bereft of necessary cause of action for trial.
2. For the sake of convenience, the applicant, who is the first respondent in the election petition is referred as "returned candidate", the election petitioner is referred as "election petitioner" and the other respondents are referred as per their original capacity in the election petition.
3. In the affidavit in support of the said application, the returned candidate has stated as follows:-
(a) The election petition is bereft of any material facts and is liable to be rejected. In paragraph 5 of the election petition, the election petitioner had alleged that the returned candidate managed to secure victory in the election by corrupt practice and by bringing upon undue influence upon the District Election Officer and the Returning Officer, in his capacity as the then Cabinet Minister. Further, he has alleged that the District Election Officer and the Returning Officer made ready a well designed ground for ensuring the victory by manipulating the Electronic Voting Machine. The entire averments in the said paragraph are vague and unsupported by material facts and hence, the same is liable to be rejected.
(b) The election petitioner had made an allegation that he had brought undue influence on the District Election Officer. However, the said Election Officer was not made as a party to the election petition and hence, the same is liable to be rejected.
(c) Since the election petitioner failed to aver what are the misdeeds, if any, committed by the returned candidate in connivance with the District Election Officer and the Returning Officer to manipulate the Electronic Voting Machine, paragraph 8 is liable to be struck off.
(d) Though the election petitioner has alleged in paragraph 9 of the election petition that the Electronic Voting Machines were kept in a class room without any security, the said allegation is made only for the purpose of this election petition. All the candidates including the election petitioner were satisfied with the safety and security of the Electronic Voting Machines. The election petitioner had not given any material facts and sufficient particulars as to who had done the deliberate act of not keeping the Electronic Voting Machines in a safe manner to facilitate free ingress into the room. Hence, because of non-disclosure of any material facts, paragraph 9 is liable to be struck off.
(e) Though in paragraph 10 of the election petition, the election petitioner has alleged that on 12.5.2011, his party man led by one Karuppiah, caught a person with an Electronic Voting Machine in his possession, entering into the room where Electronic Voting Machines were kept, he had not pleaded at what time the incident took place, who were all present at that time and as to who has recorded the alleged incident and who had informed him about the alleged incident and hence, the said allegation is liable to be struck off.
(f) As regards paragraph 11, the election petitioner had not stated any material facts and full particulars as to how the presence of the alleged intruder had vitiated the election process and hence, the said paragraph is liable to be struck off.
(g) The averments made in paragraph 12 of the election petition that two unauthorized intruders manipulated the Electronic Voting Machines to materially affect the election of the election petitioner by improper acceptance of votes in favour of the returned candidate and rejection of votes against the election petitioner are vague and are liable to be struck off.
(h) The allegation made in paragraph 22 of the election petition is inconsis
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