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2013 Supreme(MP) 214
(SUPREME COURT)
H.L. Gokhale and Madan B. Lokur, JJ.
Neena Vikram Verma (Smt.) v. Balmukund Singh Gautam
and others
Civil Appeal No.3840 of 2013 : against the judgment and order of M.P. High Court, Indore, passed in Interim Application No.7248 of 2012 in Election Petition No.11 of 2009; Decided on 12.4.2013.
Ranjit Kumar and Ms. Pinki Anand with Navin Prakash, Sanjeev Nasiar, Ashish G. Chaturvedi, Ms. Natasha Sehrawat, Subramanium Prasad for appellant;
P.P. Rao and Arvind V. Savant with Varun K. Chopra, Rahul Kaushik, B.K. Satija, S.S. Khanduja, Yash Pal Dhingra and Mishra Saurabh for respondents.
Headnote:Representation of the People Act, 1951 -- Ss.33A, 83(1)(c), 97, 100(1)(d)(ii) and 123 -- Civil P.C., 1908 -- O.6 R.16 and O.7 R.11 -- Conduct of Election Rules, 1961 -- Rr.63 and 94(A) -- party relinquished the ground of defence -- cannot take the same subsequently -- parties expected to take all the necessary pleas at the same time.
Held : As can be seen, the application under Order 7 rule 11 is required to be decided on the face of the plaint or the petition, whether any cause of action is made out or not. Once it is accepted by a party by consent that a particular petition (in the instant case the recrimination petition) is to be heard by the Court, by giving up the objection under Order 7 rule 11, the very party cannot be subsequently permitted to seek the striking off the pleadings containing the cause of action under the garb that the pleadings containing the cause of action are unnecessary, vexatious or scandalous. One is expected to take all necessary pleas at the same time. The party concerned is expected to raise such a contention at the time of passing of the Court order (consent order in the present case) or seek the liberty to raise it at a later point of time that some of the pleadings are unnecessary or vexatious or scandalous. No Court is expected to permit any matter to be raised which might and ought to have been made ground of defence or attack, once the same is relinquished by the party concerned. (1998)3 SCC 573 relied on.
yksd izfrfuf/kRo vf/kfu;e] 1951 && /kkjk 33d] 83¼1½¼x½] 97] 100¼1½¼?k½(ii) rFkk 123 && flfoy izfdz;k lafgrk] 1908 && vk-6 fu-16 rFkk vk-6 fu-11 && fuokZpu vkpj.k fu;e] 1961 && fu-63 rFkk 94¼d½ && i{kdkj us izfrj{kk ds vk/kkj dk R;kx fd;k && mUgsa ckn esa ugha ys ldrk && i{kdkjksa ls lHkh vko’;d vfHkokd~ mlh le; fy, tkus dh vis{kk gSA
vfHkfu/kkZfjr % tSlk fd ns[kk tk ldrk gS] vkns’k 7 fu;e 11 ds v/khu vkosnu dk fou’p; okni= ;k vthZ dks ns[krs gh fd;k tkuk visf{kr gS] pkgs dksbZ okngsrqd cuk gks ;k ughaA tc dHkh i{kdkj }kjk vkns’k 7 fu;e 11 ds v/khu vkifRr dks R;kxdj lgefr ls bls Lohdkj dj fy;k x;k gks fd U;k;ky; }kjk fdlh fof’k”V ;kfpdk ¼orZeku ekeys esa izR;kjksi vthZ½ dh lquokbZ dh tkuk gS] ml i{kdkj dks ckn esa bl :i ds v/khu fd okngsrqd varfoZ”V djus okys vfHkopu vuko’;d] d”Vizn rFkk fuankRed gSa okngsrqd varfoZ”V djus okys vfHkopuksa dks gVkus dh ek¡x djus dh vuqKk ugha nh tk ldrhA fdlh ls mlh le; lHkh vko’;d vfHkokd~ fd, tkus dh vis{kk dh tkrh gSA lacaf/kr i{kdkj ls U;k;ky; vkns’k ¼orZeku ekeys esa lgefr vkns’k½ ikfjr fd, tkus ds le; ,slk izfrokn fd dqN vfHkopu vko’;d ;k d”Vizn ;k fuankRed gSa djus dh ;k ckn esa fdlh le; bls djus dh Lora=rk dh ek¡x djus dh vis{kk dh tkrh gSA fdlh Hkh U;k;ky; ls ,slk ekeyk mBk, tkus dh vuqKk nsus dh vis{kk ugha dh tkrh gS ftls izfrj{kk ;k vkdze.k dk vk/kkj cuk;k tk ldrk Fkk ;k cuk;k tkuk pkfg, Fkk] tc dHkh lacaf/kr i{kdkj }kjk bldk R;kx fd;k x;k gksA ¼1998½3 ,l lh lh 573 voyafcrA
Gokhale, J. -- 1. Leave granted.
2. This petition for special leave seeks to challenge the order dated 5.12.2012 passed by a learned Single Judge of the Madhya Pradesh High Court (Bench at Indore) allowing the application filed by the first respondent under Order 6 rule 16 of Code of Civil Procedure (CPC) being I.A. No.7248/2012 for striking off certain pleadings from the recrimination petition filed by the appellant herein.
Facts leading to this petition are this wise :
3. The General Elections to the Madhya Pradesh Legislative Assembly were notified by the Election Commission of India on 14.10.2008 and were held on 27.11.2008. The appellant herein contested the election from 201 Dhar (General) Constituency. She was declared elected on 9.12.2008 defeating the first respondent by one vote.
4. The respondent No.1 filed election petition bearing No.11 of 2009 before the High Court of Madhya Pradesh (Bench at Indore), challenging the election of the appellant on the ground of improper reception, refusal and rejection of votes under the provisions of Representation of People Act, 1951 (R.P. Act, 1951 in short). This was principally on the basis that the counting of the postal ballot was done in violation of rule 63 of the Conduct of Elections Rules, 1961, to the benefit of the appellant.
5. The appellant in turn filed a recrimination petition under section 97 of the R.P. Act, 1951 within the time provided, therefore, principally raising two grounds :
(a) Paragraph 3 of the recrimination petition claimed that there were several criminal cases pending against the 1st respondent which he had not disclosed, and therefore his nomination was void and he cannot be declared to be elected.
(b) Paragraph 4 thereof contended that the first respondent had indulged into various corrupt practices.
6. Respondent No.1 thereafter filed an application under Order 7 rule 11 of CPC being I.A. No.8166 of 2009 for rejection of the recrimination petition on the ground that it did not disclose any cause of action. This was apart from filing the reply on merits to the recrimination petition. The appellant opposed I.A. No.8166 of 2009 by filing her reply. The High Court by its order dated 14.7.2011 allowed the said application, consequently leading to the dismissal of the recrimination petition filed by the appellant.
7. The appellant challenged this order by filing SLP (C) No.28031 of 2011 which was converted into Civil Appeal No.1554 of 2012. By a consent order dated 2.2.2012 passed by this Court on that appeal, the said order dated 14.7.2011 passed by the High Court was set aside, and the recrimination petition was restored to the file of the Election Petition No.11 of 2009.
8. It so transpired that subsequently the High Court by its judgment and order dated 19.10.2012 allowed the Election Petition No.11 of 2009, and set aside the election of the petitioner herein. The High Court, therefore, directed the recrimination petition to be heard.
9. We may note at this stage that the appellant has filed a statutory appeal against the judgment and order in the Election Petition No.11 of 2009 under section 116A of the R.P. Act, 1951, which has been admitted by this Court on 8.11.2012. By virtue of an interim order passed therein, this Court has permitted the appellant to attend the Assembly, but without any right to caste vote and to receive any emoluments.
10. In the meanwhile, respondent No.1 filed another application being I.A. No.7248 of 2012 on 1.11.2012 under Order 6 rule 16 for striking off the pleadings in paragraphs 3 and 4 of the recrimination petition. Appellant opposed this application by filing a reply. This application has been allowed by the impugned order which has led to the present civil appeal.
11. We may mention one more development. The appellant has filed an application under Order 6 rule 17 to incorporate some material facts in her recrimination petition. That has been rejected by the High Court by its order dated 23.11.2012, and the appellant
