1999 Supreme(SC) 289

1999(2) Supreme 454
Supreme Court of India
(From Madras High Court)
Dr. A.S. Anand, CJI., M. Srinivasan & R.P. Sethi, JJ.
D. Ramachandran -Appellant
versus
R.V. Janakiraman & Ors. -Respondents
Civil Appeal No. 5354 of 1997
Decided on 11-3-1999
Counsel for the Parties :
For the Appellant : A.K. Ganguli, Sr. Advocate, Krishnamurthi Swami and A. Raghuath, Advocates.
For the Respondents : V.T. Gopalan, R. Mohan, Sr. Advocates, S. Srini­vasan, Mahabir Singh, V. Sudeer, M.A. Chhinnaswamy, V.G. Pragasam, Advocates.

Important Points
1. In all cases of preliminary objection, the test is to see whether any of the relief prayed for could be granted if averments made in plaint or petition are proved to be true. The averments should be assumed to be true and the Court has to find out whether those aver­ments disclose a cause of action or triable issue as such without probing into facts on basis of controversy raised in the counter.
2. There is no question of striking out any portion of pleadings under Order VII, Rule 11 of CPC.
3. Under Order VII Rule 11(a) CPC, 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.
4. Where the respondent to election petitioner had filed detailed counter denying each and every allegation which did not contain even a whisper that allegation in election petition was vague or scandalous, unnecessary, vexatious or frivolous or vague or did not make out any cause of action, striking out part of pleadings on the basis of subse­quent petition and consequent rejection of the election petition in limine without trial was not justified.

Headnote:(i) Representation of People Act, 1951-Sections 81, 83 and 85 -Code of Civil Procedure 1908-Order VII rule 11-Dismissal of petition for want of cause of action-Respondent filing detailed counter affidavit to election petition denying each one of allegations-No whisper in counter that allegation in election petition was vague or scandalous, unnecessary, vexatious or frivolous-Subsequent petition to strike out certain paragraphs in election petition and consequent prayer for rejection of election petition on ground petition did not project any material facts and did not disclose cause of action-Rejection of election petition-Not sustainable-Striking out of part of pleadings not at all justified-Election petition does disclose cause of action if unrebutted could void election-Judgment of election court set aside.

       Held : The judgment of the learned Judge is obviously based upon a confusion of ideas and failure to appreciate the distinction between the provisions in Sections 81, 83 and 85 of the Representation of the People Act 1951 (hereinafter referred to as the ‘Act’) on the one hand and Order VI, Rule 16 and Order VII, Rule 11 of the Civil Procedure Code on the other. The learned judge has chosen to test the veracity and suffi­ciency of the allegations in the election petition by taking note of the facts pleaded by the first respondent in his counter affidavit. (Para 7)

       It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such. The Court can not probe into the facts on the basis of the controversy raised in the counter. (Para 8)

       Under Order VI, Rule 16, the Court is enabled to strike out a pleading (a) which may be unnecessary, scandalous, frivolous or vexatious or (b) which may tend to prejudice embarrass or delay the fair trial of the suit; or (c) which is otherwise an abuse of the process of the Court. We have already pointed out that it is not the case of the first respondent that the pleading in the election petition is vitiated by all or any one of the aforesaid defects mentioned in the rule. Hence striking out parts of the pleading in this case was not at all justified. On the other hand, Rule 11 of Order VII enjoins the Court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this rule. The application filed by the first respondent in O.A. No. 36/97 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclos­ing a cause of action. Laying stress upon the provisions of Order VII, Rule 11(a), learned senior counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of Order VII Rule 11(a) CPC cannot therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under Order VII Rule 11(a) CPC, 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. The election petition could not have been rejected in limine without trial. (Paras 9 & 10)

       (ii) Code of Civil Procedure, 1908-Order VI, Rule 16 and Order VII Rule 11-Striking out of pleadings and rejection of plaint-Distinction between. (Paras 9 & 10)

       (iii) Code of Civil Procedure, 1908-Order VII, Rule 11-Rejec­tion of plaint-Court cannot dissect pleading into several parts and consider whether each one of them disclose a cause of action-Partial rejection of plaint or petition not permissible. (Para 10)

       (iv) Code of Civil Procedure, 1908-Order VI, Rule 16/Order VII Rule 11-Preliminary objection-Test to see whether relief could be grant­ed-Averments in plaint or petition should be assumed to be true-Court has to find out whether averments disclose cause of ac­tion -Court cannot prob into facts on basis of controversy raised in counter.