BASHIR MUSA PATELversusSATYAWAN GANPAT .JAWKAR AND ORS.

                      BASHIR MUSA PATEL                                       A
                              v.
               SATYAWAN GANPAT .JAWKAR AND ORS.

                            DECEMBER 2, 1996

             [K. RAMASWAMY AND G.T. NANAVAT!, JJ.]                             B

        Representation of Peoples Ac~ 1951: Section 86(5).

       Election Petition-Allegation of cornipt practices-Requirement to give
required particulars-Power of Cowt to give direction:r--Election petition filed C
by respondent:r--Allegation of cornipt practices against appellant-Appellant's
contention that required particula1' of conupt practices were lacl<ing-Single
Judge of the High Court held that particulars were lacking but directed the
party to furnish the particulars-C/1allenge to direction issued by High
Court-Held, having found that particulars were missing, the learned Judge
had committed an obvious error in giving the direction to fumish those D
particulars; in other words, provided an opportunity to the respondents to fill
in the gap which would gravely prejudice the appellant at the triaf-171e
impugned direction stands set aside.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 15705 of E
1996.

     From the Judgment and Order dated 11/12.2.91 of the Bombay High
Court in E.P. No. 13 of 1990.

        Jatin Jhaveri and H.J. Jhaveri for the Appellant.                     F
        AM. Khanwilkar for the Respondents.

        The following Order of the Court was delivered :

        Leave granted.
                                                                              G
      This appeal by special leave arises from the order of the learned
single Judge of the Bombay High Court, made on 11/12-2-1991 in Election
Petition No. 13/90. It is not necessary to adumberate all the corrupt
practices alleged to have been committed by the appellant mentioned in
the election petition filed by the respondents. It would appear that the H
                                    429
    430                   SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A appellant had filed an application to dismiss the election petition on a
    preliminary ground that the .required particulars of corrupt practices are
    lacking in the election petition and, therefore, no cause of action has been
    furnished to proceed further in the election petition. That objection was
    over-ruled. Subsequently, a petition has been filed to dismiss the election
B   petition itself. In the impugned order, the learned Judge while holding that
    "the particulars are lacking" has held that what is missing from the petition
    are "merely particulars" and held that under Section 86(5) of the Repre-
    sentation of People's Act, the Court has discretion to direct the P,arty to
    furnish the particulars. Accordingly, he directed to furnish the particulars
    as mentioned in the operative part of the order which reads thus :
c
            "(l). In para 5 of the Petition in respect of each instance set out
            under sub-para (a) to (e) the petitioner shall state whether the
            instances set out therein have been managed by Respondent No.
            1, or his Election Agent or by supporters of Respondent No. 1
            with the consent of Respondent No. 1. If it is alleged that it is done
D           by supporters, Petitioner to state the names of the supporters and
            if the names are not available to state that the names are not
            available.

             (2) In para 6(a) of the Petition, the names of the three persons
E            who had come to cast bogus votes to be supplied. If such names
             are not available, Petitioner to state that the names are not avail-
             able.

             (3) In para 6(b) of the Petition, Mr. Chinoy had, during the course
F            of his argument, clarified that it was not the case of the Petitioner
             that delible ink for marking fingers was used because it was so
             managed by Respondent No. 1 or his Election Agent or any of his
             supporters with the consent of the Petitioner or Respondent No.
             1. The Petitioner to so state in the Schedule now to be given,
             Further the Petitioner must give the names of hirelings and goon-
G            das of Respondent No. 1, if available. if not available to so state.
             The Petitioner to also give the names of the Presiding and Polling
             Officers at the various Booths mentioned therein and who accord-
             ing to the Petitioner, have been favouring and/or openly supporting
             Respondent No. 1. The Petitioner also to state whether the acts
H            of booth capturing was managed by Respondent No. 1 and/or/ his
               B.M.PATELv.S.G.JAWKAR                             431
Election Agent and/or supporters (whose names must be supplied A
if available) with the consent of Respondent No. 1 or his Election
Agent;

(4) In para 6(c) of the Petition in respect of each instances set out
in sub-paras (i) to (v) the Petitioner to give the same particulars
as those set out hereinabove in respect of para 6(b) viz. whether       B
it is managed by Respondent No. 1 and/or his Election Agent
and/or supporters of Respondent No. 1 with the consent of the
Respondent No. 1 or his Election Agents, the names of the parties
(if available), including the name of the persons (a) who have cast
bogus votes, (b) who prevented the Petitioner's Chief Election          C
Agent at the point of revolver, (c) who removed Book No. 17 (d)
who threatened the Petitioner's Polling Agent with murder.

    It being clarified that the Petitioner need not for the present
give the names of marathi speaking persons who were not per-
mitted to go to the Polling Stations. This as a possibility exists of   D
these witnesses being approached.

(5) In respect of para 7 of the Petition, Mr. Chinoy has clarified
that the Petitioner does not have and will not lead any positive
evidence to show that the instances set out in this para have been
                                                                        E
managed or committed by Respondent No. 1 or his Election Agent
and/or any supporters of Respondent No. 1 with the consent of
the Respondent No. 1 or his Election Agent. Mr. Chinoy however
clarifies that one of the arguments of the Petitioner will be that
these have materially affected the result of Election of Respondent
No. 1 and that the natural and only inference would be that they        F
were managed by Respondent No. 1 or his Election Agent or by
his supporters with the consent of Respondent or his Election
Agent.

(6) As regards para 9 of the Petition, apart from the two Registra-
tion Numbers of the Vehicles mentioned in this paragraph and two G
further Registration Numbers of Vehicles mentioned in Exhibit
'J-1; to the Petition, if the petitioner is relying upon or has any
other Registration Numbers of these vehicles also. The petitioner
must also state, if available, the Booth numbers to which the voters
were carried by to and by which vehicle. If available, the Petitipner H
    432                 SUPREME COURT REPORTS [1996) SUPP. 9 S.C.R.

A         must give the names of the voters whom accordingly to the
          Petitioner, have been carried to the Polling Booths in those
          vehicles. The petitioner to also state whether the hirelings and/or
          grounds, and/or his Election Agent and/or supporters of Respon-
          dent No. 1 with the consent of Respondent No. 1 and/or with the
          consent of his Election Agent. If it is alleged that it is by supporters,
B
          the Petitioner must give names of the supporters, if available. If
          not to so state.

          (7) Mr. Chinoy has clarified that even though there is reference to
          pamphlets and wall posters in para lOA of the P~tition for the case
C         made out in this para the Petitioner is only relying upon the
          pamphlets Exhibit 'X' to the Petition.

          (8) In respect of para 10B, the Petitioner to state whether the Issue
          and circulation of pamphlets (Exhibit 'Y') was by Respondent No.
          1 and/or by his Election Agent and/or supporters (with names, if
D         available) with the consent of Respondent No. 1 and/or his Elec-
          tion Agent. The Petitioner to state when and where the pamphlets
          mentioned in sub-paras (a) and (b) were circulated. The Petitioner
          also to underline portions of Exhibits 'X' and 'Y' which according
          to him amounts, to campaigning on ground of religion and/or
E         creation and/or promotion of enmity and hatred between two
          classes of citizen. If it is the case of the Petitioner that the entire
          documents does so, then the Petitioner to so state.

          (9) In sub-paras (cJ and (e) the Petitioner to give details like time
          and place where the speeches were made and tlie names of
F         speakers. The Petitioner also to give the names and dates of the
          newspaper relied upon by them. The Petitioner to give similar
          details in respect of Press Conference and the campaigns men-
          tioned in sub-para (e). The petitioner also to give in respect of
          each speech the gist of the speech which according to the
          Petitioner amounts to campaigning in the name of religion and/or
G
          creating or promoting feelings of enmity and/or hatred. In case, a
          speech or Press Conference or a campaign is by a Person other
          than Respondent No. 1 the Petitioner to state whether the same
          is with the consent of Respondent No. 1 and/or his Election Agent.

H         (10) The same particulars as set out hereinabove in respect of
                        B.M. PATEL v. S.G. JAWKAR                          433
         pamphlets and the speeches also to be supplied in respect of             A
         Adverfisement, paintings, posters, banners, referred to in para lOA
         of the Petition."

       .This direction is now the subject matter of this appeal. Shri Khan-
wilkar, learned counsel for the respondent, in fairness, has stated that the
Court cannot give a new cause of action by directing to furnish the               B
particulars which are not already part of the election petition but he sought
to sustain the order stating that these are only amplifications of the material
allegations made of the corrupt practices in the election petition. There-
fore, they ate no new facts or constitute no new cause of action. We do
not agree with the learned counsel. These facts do fornish the further            C
particulars filling up the gaps which are found in the election petition.
Having found that these particulars are missing, the learned Judge has
committed an obvious error in giving the direction to furnish those par-
ticulars; in other words, providing an opportunity to the respondents to fill
in the gap which would gravely prejudice the appellant at the trial. Under
this situation, the impugned direction stands set aside and it would be open      D
to the learned Judge to proceed with the trial of the matter in accordance
with law.

      The appeal is accordingly allowed. No costs.

T.N.A.                                                       Appeal allowed.      E