Supreme Court of India
C. P. JOHNversusBABU M. PALISSERY & ORS.
- Citation
- 2014 INSC 625
- Decided
- 11 September 2014
- Disposal
- Dismissed
Holding
The Supreme Court held that the High Court was correct in dismissing the election petition for lack of material facts and substantial non‑compliance with statutory pleading requirements, and that no further opportunity to amend was required.
Summary
C.P. John, a losing candidate, filed an election petition challenging the election of Babu M. Palissery on grounds of bribery, false pamphlet distribution and alleged suppression of criminal convictions. The High Court dismissed the petition, holding it lacked material facts and was non‑compliant with Section 83 of the Representation of the People Act and Rule 94A of the Conduct of Election Rules. The Supreme Court examined whether the High Court should have allowed amendment of the petition and affirmed that the defects were substantial, the petitioner had not sought to correct them, and no further opportunity to cure the defects was required. It also held that the alleged bribery and pamphlet allegations were not sufficiently pleaded and that the conviction suppression claim was inapplicable as the sentences were less than a year. Consequently, the Court dismissed the appeals, upholding the High Court’s dismissal of the election petition.
Issues considered
- The election petition’s compliance with Section 83(1) of the Representation of the People Act and Rule 94A of the Conduct of Election Rules.
- Whether the High Court was obliged to grant the petitioner an opportunity to amend the petition and affidavit.
- Whether the alleged bribery under Section 123(1)(A) was sufficiently pleaded and supported by affidavit.
- Whether the pamphlet alleged to be issued by the respondent constituted a corrupt practice under Section 123(4).
- Whether the respondent’s criminal convictions required disclosure under Section 33A of the Act.
Legislation cited
- Code of Civil Procedure, 1908s. Order 7 Rule 11
- Conduct of Election Rules, 1961s. Form 25, s. Rule 94A
- Representation of the People Act, 1951s. 123(1)(A), s. 123(4), s. 33A(1)(ii), s. 83, s. 86, s. 8(i), s. 8(ii), s. 8(iii)
Subjects
election petitioncorrupt practiceRepresentation of the People ActSection 83Section 86Section 123Section 33Aaffidavitamendmentcause of action
Judgment
[2014] 13 S.C.R.1141
'
C. P.JOHN A
v.
BABU M. PALISSERY & ORS.
(Civil Appeal Nos. 5987-5988 of 2012)
B
SEPTEMBER 11, 2014
[FAKKIR MOHAMED IBRAHIM KALIFULLA
AND SHIVA KIRTI SINGH, JJ]
Representation of the People Act, 1951- ss. 83, 86, c
123(10(A), 123(4), 33A(1)(ii) ands. 8(i), (ii), (iii) - Election
Petition - Appellant challenging the successful election of
returned candidate on the ground of corrupt practices and
. that the returned candidate suppressed his conviction in two
criminal cases in nomination papers - Written statement by 0
returned candidate that the election petition not disclosed
complete cause of action and the affidavit filed was not a
proper affidavit, thus, non-compliance of s. 83 rw r. 94A and
Form 25 -·Application also filed by returned candidate
seeking rejection of election petition for the want of cause of E
action -Appellant filing counter affidavit but did not take steps
to correct the errors - Dismissal of election petition by the
High Court- Interference with - Held: Not called for- When
the appellant was not inclined to rectify the relief and was
fully prepared to accept the decision of the High Court in the
application as well as in the Election Petition, the appellant F
should not be given any further opportunity to cure the defects
which were very substantial in nature- Further, there was no
compulsion for the first respondent to disclose the conviction
in his nomination since it was for less than a year- Conduct G
of Election Rules, 1961- r. 94A.
Dismissing the appeals, the Court
HELD: 1.1 The situation relating to want of
particulars and the failure to support the allegations
H
1141
·1142 SUPREME COURT REPORTS [2014] 13 S.C.R.
A made in the Election Petition by necessary affidavit as
required to be filed under the proviso to Section 83(1) of
the Representation of the People Act, 1951 was brought
to the notice of the Appellant at the instance of the First
Respondent in his written statement. In the counter
B affidavit of the Appellant to the application, the Appellant
did not seek for any prayer to amend or add any plea to
the Election Petition or the affidavit filed in support of
the Election Petition. On the other hand, in the counter
affidavit, the Appellant continued to maintain his stand
c that whatever particulars required, have been sufficiently
set out in the petition and affidavit and it was not lacking
in any statutory requirement. Thus, the Appellant allowed
the High Court to examine the contention raised at the
preliminary stage as to the maintainability of the Election
o Petition for want of compliance of statutory requirement
as prescribed u/s. 83(1) r/w Rule 94A of the Conduct of
Election Rules, 1961 and as prescribed in Form 25 of
the relevant Election Rules. Therefore, when the
Appellant was not inclined to seek for any amendment
E to the Election Petition or to the affidavit filed in support
of the Election Petition, it cannot be understood as to
how the Appellant can now raise any grievance to the
effect that the High Court ought to have granted an
opportunity to the Appellant to amend the pleadings.
F [Para 30][1165-E-H; 1166-A-D]
1.2 In the instant case, since the allegation of bribery
falling under Section 123(1 )(A) was a serious allegation,
if according to the Appellant, for levelling the said
allegation there were no details furnished as to on which
G . date and by whom the bribe amount was promised to
be paid to the Second Respondent then, when such
averments were not duly supported in the affidavit and
when such serious defects were pointed out in the
written statement as well as in the affidavit filed in
H support of the application, the Appellant having taken a
C. P. JOHN v. BABU M. PALISSERY & ORS. 1143
rigid stand that he wanted to go by whatever averments A
contained in the Election Petition and affidavit filed in
support of the Election Petition, he cannot subsequently
turn around and state that inspite of such a categoric
stand taken by him, the High Court should have gone
out of the way and called upon him to rectify the defects, B
which were very serious defects concerning material
particulars relating to corrupt practice, for which there
was no necessity for the High Court to show any such
extraordinary indulgence to the Appellant. If the defect
was one of format and not of substance, such defect c
should also be allowed to be cured. In the instant case,
the defects pointed out in the Election Petition, as well
as, in _the affidavit were not of mere format but of
substance.[Para 35, 33][1168-G-H; 1169-A-C]
1.3 In the instant case, when the mandatory D
requirement of the pleadings as stipulated under Section
83(1) and its proviso was brought to the notice of the
Appellant, as well as, to the Court, and when a specific
application was filed for rejecting the Election Petition
for want of particulars and consequent lack of cause of E
action for maintaining the Election Petition and the
election petitioner, namely, the Appellant chose not to
cure the defects but insisted that his Election Petition
can be proceeded with keeping the material defects on
record, he cannot later on be heard to state that at any F
later point of time he must be given an opportunity to
set right the defects. The appellant ought to have realized
his serious mistake in not filing the petition as well as
the affidavit in the proper manner and should have taken
adequate recourse in filing the amended petition and G
affidavit. The appellant having failed to take recourse to
such a corrective step cannot now be heard to state that
the High Court went wrong in dismissing the election
petition. [Para 39, 41][1172-E-H; 1173-F-G]
H
1144 SUPREME COURT REPORTS [2014] 13 S.C.R.
A ·1.4 The contention that the First Respondent was
responsible for issuing the said pamphlet in the name
of the Second Respondent with a view to divert the votes
and thereby, the candidature of the Appellant was put to
serious prejudice, there is no scope to interfere with the
B conclusion of the High Court. [Para 45, 46)(1176-E-G;
1178-E-F]
1.5 The conviction and the sentence imposed on
the First Respondent was less than a year, there was no
compulsion for the First Respondent to disclose the said
C conviction in his nomination. Therefore, on this ground
the High Court rightly declined to interfere with the
elec.tion of the First Respondent. [Para 47)(1179-A-B;
1179-C-D]
D Ba/wan Singh v. Lakshmi Narain and others 1960
SCR 91 : AIR 1960 SC 770; Umesh Chal/iyi/I v.
K.P Rajendran 2008 (3) SCR 457 : (2008) 11
sec 740 '; G. M. Siddeshwac V. Prasanna Kumar.
2013 (4) scR 1101 : (2013) 4 sec 776 ; Raj
Narain v. Smt: Indira Nehrb Gandhi and another
E
. 1972 (3) SCR 841 : (1972) 3 sec 850 ; G.
Mallikarjunappa and Anr. v. Shamanur
Shivashankarappa and others (2001) 4 SCC 428 ;
Sardar Harcharan Singh Brar v. Sukh Darshan
.F Singh and others 2004 (5) Suppl. SCR 682 :
(2004) 11 SCC 196, Harkirat Singh v. Amrinder
Singh 2005 (5) Suppl. SCR 817: (2005) 13 SCC
511 ; Shaligram Shrivastava v. Naresh Singh
Patel 2002 (5) Suppl. SCR 585 : (2003) 2 SCC
176, Resurgence India v. Election Commi~sion
G of India and another 2013 SCR 360 : AIR 2014
SC 344; People's Union for Civil Liberties (PUCL)
and another v. Union of India and another 2003
(2) SCR 1136: (2003) 4 SCC 399 - referred to.
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1145
CASE LAW REFERENCE A
1960 SCR 91 referred to. Para 14
2008 (3) SCR 457 referred to. Para 14
2013 (4) SCR 1107 referred to. Para 14
B
1972 (3) SCR 841 referred to. Para 14
(2001) 4 sec 428 referred to. Para 14
2004 (5) Suppl. SCR 682 referred to. Para 14
2005 (5) Suppl. SCR 817 referred to. Para 14 c
2002 (5) Suppl. SCR 585 referred to. Para 14
2013 SCR 360 referred to. Para 14
2003 (2) SCR 1136 referred to. Para 14
CIVILAPPELLATE JURISDICTION: Civil Appeal No(s). D
5987-5988 of 2012.
From the Judgment and Order dated 02-12-2011 of the
High Court of Kera la in Election Petition No. 1 of 2011 and I.A.
No. 3 of2011.
E
Romy Chacko, Robin V.S., Ad vs. for the Appellant. .
Pallav Shishodia, Sr.Adv., G. Prakash, Mrs. B Prakash,
Advs. for the Respondents.
The Judgment of the Court was delivered by F
FAKKIR MOHAMED. IBRAHIM KALIFULLA, J.
1. These two appeals are directed against a common
judgment of the ·High Court of Kerala at Ernakulum dated·
02.12.2011 passed in Election Petition No.1 of 2011 and I.A. G
No. 3 of 2011. By the impugned judgment, the High Court, while
allowing I.A. No. 3 of 2011 simultaneously dismissed Election .
Petition No.1 of 2011 filed by the Appellant challenging the
successful election of the First Respondent to 062
Kunnamkulam Constituency in the general election held on
H
' 1146 SUPREME .COURT REPORTS . [2014] 13 S.C.R. .
A .13.04.2011, as a candidate of Communist Party of India
(Marxist) (hereinafter called "CPI (M)"), which is a constituent
of the Left"oeinocratic Fronf(hereinafter called "LDF"). Such
a decision of the Election Petition was at the threshold under
Sections 83(1) and 86 of the Representation of the People
B Act, 1951 (hereinafter called ~the Act") react'witli Rule 11 of
Order 7 of Code of Civil Procedure, 1908. '· · · · · · ·
'
2. The brief facts which are required to be 'stated are
that the Appellant was a candidate of the Communist Marxist
Party (hereinafter called "CMP"), which was a constituent of
C United Democratic Front (hereinafter called "UDF"). The
Second Respondent was also a candidate in the said election
along with Respondent Nos.3 to 5. The First Respondent
secured 58,244 votes whereas the Appellant secured 57,763
votes. The Second Respondent, who was' all independent
·D .candidate, secured 860 votes; According to the Appellant, the
Second Respondent whose name is identical to .that of the
Appellant was maliciously set up by the First Respondent to
contest the election and in that process indulged in various ·
corrupt practices, namely, inducing the Second Respondent
E by offering bribe, issued a pamphlet which was marked as·
Annexure IV in the High Court in the name of the Second
Respondent deceptively which attracted Section 123(1 )(A) and
(4) of the Act and consequently his election was liable to be
set aside. One other allegation ~f the Appellant raised in the
F Election Petition was that the First Respondent was convicted
in two criminal cases;.niimely, Sessions Case No.4of1975
(Crime No.136/1974 of Pattambi Police Station) for offences
. under Sections.1:43, 148, 323,'3.24 and 302 read with 149,
IPC for murdering one Syed Ali, an S.F.I. activist and that the ·
.G . First Respondent was the second accused in Cdme No.463/
,1994 of Kunnamkulam police Station where again he_ was
convicted by the Judicial First Class Magistrate, kunnamkulam
in CC No.167/1995 along with other.accused and was
sentenced to undergo two years rigorous imprisonment apart
. -- .. . .
-
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1147
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
from a fine of Rs.2000/~ for the offences under Sections 143, A
147, 148, 151, 332, 353 and 427 and 149, IPC and Section
3(2)(r) of the Prevention of Destruction to Public Properties
Act. It is the contention of the Appellant in the Election Petition
that the First Respondent concealed the above convictions in
his nomination which was a deliberate suppression and in B
violation of Section 33A( 1) of the Act. It is based on the above
three substantive grounds, the Appellant challenged the
successful election of the First Respondent in Election Petition
No.1 of2011.
3. As far as the allegations against the First Respondent C
were concerned, the allegation relating to the issue of bribery
falling under Section 123(1 )(A) was levelled in paragraphs 4,
5, 6 and 9 of the Election Petitio.n. The allegation relating to
the issuance of pamphlets attracting Section 123(4) of the Act
was made in paragraphs 11, 12, 13, 14 and 15 of the Election D
Petition. The allegation relating to the criminal conviction and
its suppression was raised in· paragraph 7 of the Election
Petition.
4. The various above allegations were refuted on behalf E
. of the First Respondent in the written statement filed as against
the Election Petition. The First Respondent filed 1.A.No.3 of
2011 contending that the Election Petition was liable to be
rejected on the ground'that it was not filed in accordance with
Section 83 as well as Section 86 of the Act. The contentions F
raised in the I.A. were to the effect that as regards the issue of
bribery, though the same was referred to in paragraphs 4, 5, 6
and 9 of the Election Petition, ·in the affidavit, which was
mandatory as per the proviso to Section 83(1) of the Act, the
Appellant failed to support the said allegations with exception
to what was stated in paragraph 9 of the Electiqn Petition. It G
was conternled in the I.A. thatwhile the allegations relating to
the offer of bribe to the Se9ond Respondent by way _of a gift of
Rs.50,000 and a promise to pay Rs.1,00,000/- after the
elections were raised in paragraphs 4, 5, 6 and 9, the affidavit
. . H
1148 SUPREMECOURTREPORTS • [2014]13S.C.R.
A did not support the allegations in paragraphs 4, 5 and 6 of the
Election Petition and the affidavit only mentioned paragraph
9. It was, therefore, contended that it was not in compliance
with the proviso to Section 83( 1) and consequently, the Election
petition was liable to be rejected on the ground of want of cause
B of action.
5. As far as the allegation of corrupt practice falling under
Section 123(4) of the Act was concerned, the First Respondent
by referring toAnnexure IV took the stand that the pleadings in
paragraphs 11, 12, 13 and 14, which pertained to Annexure
C IV-pamphlet in the name of the Second Respondent contended
that there was no pleading as to which part of it was false and
incorrect and how based on Annexure IV alone it was stated
that a false statement in relation to the personal character or
conduct of any candidate or in relation to the candidature or
D withdrawal of any candidate with reasonable calculation would
prejudice the prospect of that candidate's election. It was,
therefore, contended that the Appellant failed to plead the
required facts and material particulars to support the ground
of corrupt practice stipulated under Section 123(4) of the Act.
E
6. With regard to the allegations based on criminal
convictions, it was contended that of the two criminal cases
which were referred to by the Appellant in the Election Petition,
in one case the First Respondent was acquitted by the
F Sessions Court in Criminal Appeal No.248/2000 and that in
CC No.167 of 1995, the sentence awarded was less than a
year and, therefore, there was no violation of Section 33A of
the.Act. The First Respondent, therefore, prayed for the
dismissal of the Election Petition as the same was not in
G conformity with Section 83 of the Act.
7. On behalf of the Appellant a counter affidavit was filed
to I.A. No.3 of 2011. In the counter affidavit a categoric stand
was taken on behalf of the Appellant that the required facts
and material particulars as required under Section 83 have
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1149
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
been fully pleaded with supporting Affidavit and, therefore, it A
was in compliance of the Act arid the Election Petition cannot
be dismissed in limine. In other words, it was contended that
there was full compliance of both the substantive parts of
Section 83 as regards the furnishing of the facts as required
under Section 83 as well as material particulars with supporting B
affidavit as required under the proviso to Section 83(1) of the
Act and, therefore, the prayer of the First Respondent as made
in I.A. No.3 of 2011 was liable to be rejected.
8. The High Court having examined the rival contentions
of the parties, reached a conclusion that in support of the C
Election Petition, the averments contained in paragraphs 4, 5
and 6 of Election Petition were not specifically affirmed and
that the affidavit only referred to paragraph 9 ofthe Election
Petition. The High Court further held that since the averments
contained in paragraph 9 of the Election Petition only referred D
to personal information of the Appellant, which lacked in very
many material particulars, there was total lack of pleadings
as required under Section 83 of the Act and consequently, the
said allegation did not give scope for any cause of action to
support the Election Petition. E
9. For the allegation based onAnnexure IV, here again
the High Court held th9t the statement contained in the said
Annexure did not make out a cause of action as against t~e
First Respondent in order to attract the allegation of corrupt F
practice as stipulated under Section 123(4) of the Act and,
therefore, on that ground as well, the Election Petition could
not be proceeded with.
10. As far as the allegation based on the criminal cases
was concerned, the High Court has found that the conviction G
in Sessions Case No.4 of 1975 was set aside in Criminal
Appeal No.248 of 2000,. which was also admitted by the
Appellant and the conviction in CC No.167of1995, the certified
copy of which was placed before the Court, disclosed that the
H
1150 SUPREME COURT REPORTS [2014] 13 S.C.R.
A sentence awarded was less than a year and consequently,
there was no violation of Section 33A of the Act.
11. Based on the above findings, the High Court held
that the I.A. filed by the First Respondent deserved to be
allowed and, consequently, for want of cause of action the
B Election Petition itself was dismissed.
12. We heard Mr. Romy Chacko, learned counsel for the
Appellant and Mr. Pallav Shishodia, learned Senior Counsel
for the First Respondent. Mr. Romy Chacko learned counsel
c for the Appellant in his Sllbmissions contended that the
Appellant stood in the election for Kunnamkulam Constituency
in 2011 as a candidate of CMP, under the banner of UDF. He
pointed out that Appellant lost the election with a thin margin of
408 votes and that the Second Respondent who had the same
D name as that of the Appellant secured 860 votes. According
to the,. Appellant, but for the candidature bf the Second
Respondent; there was every scope for the Appellant to win
t_he election. It was the contention of the Appellant that the First
Respondent, with a view to mislead the voters, indulged in the
E corrupt practices of oribery, as well as, issuance of pamphlet
with misleading and distorted version about the candidature
which was covered by Sections 123(1)(a) and 123(4) of the
Act and that the Appellant otherwise had a very good chance
of success in the election.
F 13. The learned counsel contended that the Election
Petition contained the required averments both relevant facts
and material particulars and was also supported by the affidavit
filed in accordance with the proviso to Section 83(1) and Rule
94A of the Conduct of Election Rules, 1. 961 (hereinafter called
G "the Rules") and, in any event, if in the opinion of the High Court
there was anything lacking in the affidavit or the Election Petition
filed by the Appellant, the High Court should have given an
opportunity to carry out necessary amendment to the Election
Petition and also to file additional affidavit in support of the
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1151
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Election Petition. The learned counsel contended that the A
outright rejection by the High Court of the Appellant's right to
file necessary amended Election Petition and affidavit
deprived the valuable rights of the Appellant under the
provisions of the Act.
14. In support of his submissions, the learned counsel B
relied upon the decisions in Balwan Singh vs. Lakshmi
Narain and others reported in AIR 1960 SC 770, Umesh
Challiyill vs. K.P. Rajendran reported in (2008) 11 SCC 740,
G.M. Siddeshwarvs. Prasanna Kumar reported in (2013)
4 SCC 776, Raj Narain vs. Smt. Indira Nehru Gandhi and C
another reported in (1972) 3 SCC 850, G. Mallikarjunappa
and another vs. Shamanur Shivashankarappa and
others reported in (2001) 4 SCC 428, Sardar Harcharan
Singh Brar vs. Sukh Darshan Singh and others reported
in (2004) 11SCC196, Harkirat Singh vs. Amrinder Singh D
reported in (2005) 13 sec 511. The learned counsel in his
submissions, relating to improper resumption of nomination
paper5 which according to Appellant was in violation of Section
33A ,of the Act, relied upon the decisions in Shaligram
Shrivastava vs. Naresh Singh Patel reported in (2003) 2 E
SCC 176, Resurgence India v. Election Commission of
India and another reported in AIR 2014 SC 344 and Peo'ple's
Union for Civil Liberties (PUCL) and another vs. Union
of India and another reported in (2003) 4 SCC 399.
F
15. As against the above submissions, Mr. Pallav
Shishodia, learned Senior Counsel appearing for the Firs(
Respondent submitted that there was no violation of Section
33A of the Act in the filing of the nomination by the First
Respondent. The learned Senior Counsel pointed out that to G
support the said submission, the Appellant referred to two
criminal cases in which the First Respondent was involved and
that in -one criminal case the Appellant was acquitted by the
Appellate Court in Criminal Appeal No.248 of 2000 and that
H
1152 SUPREME COURT REPORTS [2014] 13 S.C.R.
A in the other criminal case in CC No.167of1995, the sentence
imposed was less than a year and, therefore, there was no
violation of Section 33A.
16. As regards the other deformity in the Election Petition,
the learned Senior Counsel contended that the ·First
8 Respondent in his written statement to the Election Petition
pointed out the serious defects in the Election Petition, but yet
the Appellant did not take any steps to correct the errors. The
learned Senior Counsel further contended that when the First
Respondent filed I.A. No.3 of 2011 raising a preliminary
C objection as to lack of cause of action in the said I.A., the
Appellant filed a counter affidavit maintaining his stand that
his Election Petition fully complied with the statutory
requirement of the Act and, therefore, nothing more was
required to be done. The learned Senior·Counsel, therefore,
D contended that since sufficient opportunities were made
available to the Appellant and the same having not been availed
· by him, the High Court cannot be expected to show any
extraordinary indulgence to the Appellant for filing any further .
to
affidavit fill up the serious lacunae in his pleadings. The
· E learned Senior Counsel, therefore, contended that none of the
decisions would support the said stand of the Appellant and,
therefore, the impugned judgment does not call for any
interference. It was also contended on behalf of the First
Respondent that such defects which have been noted by the
F High Court while allowing I.A. No.3 of 2011 and dismissing
the Election Petition were not merely cosmetic in nature in .
order to extend any further opportunity to the Appellant.
17. Having heard learned counsel .for the respective
G parties and in order to appreciate the legal issues raised in
these appeals which have been elaborately dealt with by the
High Co.urt in its judgment, the relevant sections to be noted
are Sections 83, 86; 123(:1 )(A) and 123(4) of the Act as well
as Rule 94A and Form 25 of the Rules. The said provisions
are as under:
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1153
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
83. Contents of petition.~(1)An election petition- A
(a) shall contain a concise statement of the material
fa'cts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice
that the petitioner alleges, including as.full a statement B
as .possible of the names of the parties alleged to.·
. have committed such corrupt practice and the date
and place of the commission of each such practice;
and
(c) shall be signed by the petitioner and verified in the C
manne~ laid down in the Code of Civil Procecjure,
1908 (5of1908) for the verification of plea9ings:
[Provided that where the petitioner alleges any
corrupt practice, the petition shall also be accompanied D
by an affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars
thereof.]
'
(2) Any schedule or annexure to the petition shall
also be signed by the petjtioner and verified in the same E
manner as the petition. ·
86. Trial of election petitions.-(1) The High C_ourt shall
dismiss an election petition which does not comply with
_the provisions of section 81 or section 82 or section 117.
Explanation.-An order of the High Court dismissing an F
election petition under this sub-section shall be deemed
to be an order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been
presented to the High Court, it shall be referred to the G
Judge or one of the Judges who _has or have been
. assigned by the Chief Justice for the trial of election
petitions under sub-section (2) of section BOA
H
..
1154 SUPREME COURT REPORTS [2014] 13 S.C.R.
A (3) Where more election petitions than one are presented
to the High C:;ourt in respect of the same election, all of
them shall be referred for trial to the same Judge who
may, in his.discretion, try them separately or in one or ·
· more groups.
B (4)Any candidate not already a respondent shall, upon
application made by him to the High Court within fourteen
days from the date of commencement of the trial and
subject to any order as to security for costs which may
be made by the High Court, be entitled to be joined as a
c respondent.
Explanation.-For the purposes of this sub-section and
of section 97, the trial of a petition shall be deemed to
commence on the date fixed for the respondents to
D appear before the High Court and answer the claim or
claims made in the petition.
(5} The High Court may, upon such terms as to costs
and otherwise as it may deem fit, allow the particulars of
any corrupt practice alleged in the petition to be amended
E or amplified in such manner as may in its opinion be
necessary for ensuring a fair and effective trial of the
petition, but shall not allow any amendment of the petition
which will have the effect of introducing particulars of a
corrupt practice not previously alleged in the petition.
-F (6) The trial of an election petition shall, so far as is
practicable consistently with the interests of justice in
respect of the trial, be continued from day to day until its
conclusion, unless the High Court finds the adjournment
of the trial beyond the following day to be necessary for
G reasons to be recorded.
(7) Every election petition shall be tried as expeditiously
as possible and endeavour shall be made to conclude
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1155
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the trial within six months from the date on which the A
election petition is presented to the High Court for trial.
123(1 )(A). Corrupt practices.-The following shall be
deemed to be corrupt practices for the purposes of this
Act:-
B
(1) "Bribery", that is to say-
(A) any gift, offer or promise by a candidate or his agent
or by any other person with the consent of a candidate or
his election agent of any gratification, to any person
whomsoever, with the object, directly or indirectly of G
inducing-
(a) a person to stand or not to stand as, or to withdraw or
not to withdraw from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election, o
or as a reward to-
(i) a person for having so stood or not stood, or for having
withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting;
E
123(4). The publication by a candidate or his agent or
by any other person with the consent of a candidate or
his election agent, of any statement of fact which is false,
and which he either believes to be false or does not
believe to be true, in relation to the personal character or F. .,
conduct of any candidate, or in relation to the candidature,
or withdrawal of any candidate, being a statement
reasonably calculated to prejudice the prospects of that
candidate's election.
Rule 94A. Form of affidavit to be filed with election G
petition.- The affidavit referred to in the proviso to sub-
section (1) ·of section 83 shall be sworn before a
magistrate of the first class or a notary or a commissioner
of oaths and shall be in Form 25.
H
1156 SUPREME COURT REPORTS [2014] 13 S.C.R.
A FORM25
I, ................. , the petitioner in the accompanying
election petition calling in question the election of Shri/ ·
Shrimati ............... (respondent No ................ in the said
petition) make solemn affirmation/oath and say-
8
(a) that the statements made in paragraphs ........... of
the accompanying election petition about the commission of
the corrupt practice of ............... and the particulars of such
corrupt practice mentioned in paragraphs ................ of the
c same petition and in paragraphs ............... of the Schedule
annexed thereto ar~ true to my knowledge;
(b) thatthe statements made in paragraphs ........ of the
said petition ·about the commission of the corrupt practice of
........... and the particulars of such corrupt practice given in
D paragraphs .......... of the said petition and in paragraphs
................ of the Schedule annexed thereto are true to my
information;
(c)
E (d)
etc.
Signature of deponent
Solemnly affirmed/sworn by Shri/Shrimati ............... at
F~· ............ this .......... Day of ............. 20 .. : ..... ..
Before me, Magistrate of the first class/
Notary/Commissioner of Oaths."
18. When we read Section 83, the substantive part of
G Section 83(1) consists of three important elements, namely,
that an Election Petition should contain a concise statement
of material facts which an election petitioner relies upon. The
emphasis is on the material facts which should be stated in a
concise form. l,Jnder Section 83(1 )(b) it is stipulated that the
H Election Petition should set forth full particulars of any corrupt
C. P. JOHN v. BABU M. PALISSERY & ORS. . 1157
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
practice which is alleged by the petitioner. A reading of the A
said sub-clause 83(1 )(b) is to the effect that such particulars
should be complete in every respect and when it relates to ari
allegation of corrupt practice it should specificaily state the,,
names of the parties who alleged to have committed such
corrupt practice and also the date and place where such corrupt B
practice was committed. In other words, t~e particulars relating
to corrupt practice should not be lacking in any respect. One ·
who reads the averments relating to corrupt practice should
be in a position to gather every minute detail about the alleged
corrupt practice such as the names of the persons; the nature C
of the alleged corrupt practice indulged in by such person or
persons, the place, the date, the time and every other detail
rel.ating to the alleged corrupt practice.
19. To put it differently, when the Election Petition is taken
up for consideration, the· Court which deals with such an . D
Election Petition, should be in a position to know in exactitude
as to what is the corrupt practice alleged as against the parties
without giving ·any room for doubt as to the nature of such
allegation, the parties involved, the date, time and the place
' ~
etc. so that the party against whom such allegation is made is E
in a position to explain or defend any such allegation without
giving scope for any speculation. In that context, both Sections
83(1 )(a) and (1 )(b) and the proviso play a very key role since
the election petitioner cannot s.imply raise an allegation of
corrupt practice and get away with it, inasmuch as the affidavit F
to be filed in respect of corrupt practice should specifically
support the facts pleaded, as well as, the material particulars
furnished. Rule 94A of the Rules in turn stipulates that the
affidavit should be in the prescribed Form 25 and should be
sworn before the Magistrate of 1st class or a notary or the G
Commissioner of Oaths and makes it mandatory for the
election petitioner to comply with the said requirement
statutorily. The format of the affidavit as prescribed in Form
No.25 elaborates as to the requirement of specifically
H
1158 SUPREME COURT REPORTS [2014] 13 S.C.R.
A mentioning the paragraphs where the statement of facts are
contained and also the other paragraphs where material
particulars relating to such corrupt practices are alleged. It also
mentions as to which of those statement of facts and material
particulars are based on the personal knowledge of the election
B petitioner and such of those statements and particulars that
are made based on the information gained by the election
petitioner.
20. Therefore, a conspectus reading of Section 83(1 )(a)
read along with its proviso of the Act, as well as, Rule 94A and
C Form No. 25 of the Rules make the legal position clear that in
the filing of an Election Petition challenging the successful
election of a candidate, the election petitioner should take extra
care and leave no room for doubt while making any allegation
of corrupt practice indulged in by the successful candidate and
D that he cannot be later on heard to state that the allegations
were generally spoken to or as discussed sporadically and on
that basis the petition came to be filed. In other words, unless
and until the election petitioner comes forward with a definite
plea of his case that the allegation of corrupt practice is
E supp6rted by legally acceptable material evidence without an
iota of doubt as to such allegation, the Election Petition cannot
be entertained and will have to be rejected at the threshold. It
will be relevant to state that since the successful candidate in
an election has got the support of the majority of the voters
F who cast their votes in his favour, the success gained by a
candidate in a public election cannot be allowed to be called
in question by any unsuccessful candidate by making frivolous
or baseless allegations and thereby unnecessarily drag the
successful candidate to the Court proceedir:igs and make
G waste of his precious time, which would have otherwise been
devoted for the welfare of the members of his constituency.
Therefore, while deciding the issue raised, we wish to keep in
mind the above lofty ideas, with which the provisions contained
in Section 83(1) read along with Section 86 came to be
H incorporated while deciding this appeal.
C. P. JOHN v. BABU M. PALISSERY & ORS. 1159
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
21. Keeping the above statutory prescription in min_d, A
when we examine the case on hand, the allegation of corrupt
practice raised by the Appellant in the Election Petition was
two fold falling under Sections 123(1)(A) and 123(4) of the
Act. Section 123( 1)(A) defines the act of bribery, namely, any
gift, offer or promise by a candidate or his agent or any other B
person with the consent of the candidate or with the consent of
his election agent of any gratification to any person
whomsoever with the object directly or indirectly for inducing a
person to stand or not to stand as a candidate or to withdraw
or not to withdraw' from being a candidate at an election. In the c
case on hand, the allegation of bribery is made in paragraphs
4, 5, 6 and 9 of the election petition. In paragraph 4, it is alleged
that the First Respondent went to the house of the Second
Respondent whose father was an active member of CPI (M)
and induced him by a gift of Rs.50,000 in cash and promised o
to give Rs.1,00,000/- for developing his printing press, if he
agreed to file his nomination to contest from 062 Kunnamkulam
Constituency and further promised to bear all the expenses
for the election and by such inducement he was successful in
making the Second Respondent submit his nomination in the E
said constituency styling himself as an independent candidate.
It also contained the allegation that the persons who signed
the nomination of the Second Respondent as proposers were
workers/members of CPI (M). The handwritings found in Form
No.18 appointing the counting agents of Respondent Nos. 1 F
and 2 were of the same person. On the above broad averments,
it was contended that the same would fall under Section
123( 1)(A) of the Act. In paragraph 9, it was reiterated that the
Second Respondent fil~d his nomination as an independent
candidate at the insta~ce of the First Respondent by an offer G
of gratification for a gift of Rs.50,000 with a promise to pay
Rs.1, 00, 000/-after the elections and that the said inducement
was made by the First Respondent with the ulterior motive of
creating a confusion among the voters and divide the votes,
H
1160 SUPREME COURT REPORTS (2014] 13 S.C.R.
A inasmuch as, the names of the Appellant as well as that of
Second Respondent are identical.
22. With that we come to a crucial question as to how it
was contended on behalf of the First Respondent that the said
averments were riot in conformity with the provisions of Section
B 83 of the Act or that in the affidavit which was filed jn support of
the Election Petition, there was no reference to paragraphs 4,
5 and 6 and that the affidavit only mentioned about paragraph
9 alone. It was contended that the Election Petition was not
filed in compliance with Section 83 read with Rule .94A and
C Form 2.5. The sum and substance of the stand of the First
Respondent in the written statement as regards the allegation
of bribery was that in paragraph 4 there was no specific
pleading as to who paid the bribe, the date, time and place at
which the alleged bribe was paid as mandated under Section
D 83(1 )(b) of the Act and that the said pleading of corrupt practice
was not supported by the affidavit and, therefore, the entire
pleadings in paragraph 4 has to be escnewed from
consideration. As far as the averments~contained in paragraph
9 were concerned, according to"the First Respond~nt, the
E entire averments in paragraph 9 will not satisfy the statutory
requirement of Section 83( 1)(b) and farther the said averments
relating to corrupt practice were based on information and not
based on personal knowledge.
F 23. It was further contended that the allegation of bribery ..
having been pleaded in paragraphs 4, 6, 9 and 10 of the
Election Petition, those averments contained in paragraphs
4, 6 and 10 of the Election Petition were not supported by the
affidavit as required under the proviso to Section 83(1) of the
Act. In the affidavit filed in support of l.A.No.3 of 201 f, the First
G Respondent while reiterating the above contentions, stated that ·
after striking off and eschewing paragraphs 4, 7, 9 to 15 and
grounds (a), (c), (d) and (e) of the Election Petition, there were
left no material facts giving any cause of action for the Election
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1161
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Petition subsist. It was, therefore, prayed that the Election A
Petition should be dismissed at the threshold.
24. The Appellant in his counter affidavit to I.A. No.3 of
2011, did not state anything as regards the filing of proper
affidavit relating to paragraphs 4, 6 and 10 which related to
corrupt practice. On the other hand, it was contended that the B
Election Petition contained full material facts and particulars
of corrupt prcictice including the date, place and name of the
parties. It is relevant to note that till the present impugned
judgment came to be passed by the High Court, there was no
prayer made either in writing. or orally for permitting the C
Appellant to file necessary amendment to the Election Petition
or file any additional affidavit curing the defects relating to
failure to support the averments contained in paragraphs 4, 6
and 10 of the Election Petition by way of fresh affidavit or for
supplementing the averments already made with additional D
particulars or details relating to the allegation of corrupt
practices.
25. The High Court while dealing with the above issues,
after referring to paragraphs 4 as well as 9 of the Election E
Petition, held as under: ·
"It is a complex sentence. By reading it, one cannot be
say that the allegation is that first respondent personally
approached the second respondent or paid the cash or
promised Rs.1,00,000/-for developing his printing press.. F
In such circumstances, there is force in the submission
of the learned senior counsel appearing for the first ·
respondent that the allegations are too vague to constitute
an allegation of corrupt practice, to set aside the election
of the returned can9iqate under section 100(1 )(b) of the G
Act. Added to this the affidavit shows that the allegations
in paragraph 4 was not supported by the affidavit. The
question is if it does not constitute a complete cause of
action, whether the election petition is liable to be
dismissed in limine at the threshold or is it is for the court H
1162 SUPREME COURT REPORTS [2014] 13 S.C.R.
A to post the case to enable the election petitioner to file
another affidavit or an application to amend the election
petition. As rightly pointed out by the learned senior
counsel in spite of the written statement filed by the first
respondent contending that the election petition does not
B disclose a complete cause of action and the affidavit filed
is not the affidavit contemplated under the proviso to
Section 83(1) and under section 94A of the Conduct of
Elections Rules. the election petitioner did not take steps
to get the election petition amended or to file another
c affidavit in compliance with proviso to Section 83(1 )(a)
and Rule 94A. On the other hand, the counter affidavit
filed by the election petitioner to I.A. 3/2011 shows that it
is the definite case of the election petitioner that there is
no defect in the election petition. He has no case that an
D opportunity is to be granted to cure the defects.
Paragraph 8 of the said counter affidavit reads:-
"8. It is submitted that the averments in the Election
Petition are fully in compliance with the mandatory
requirements of the Act and Rules, especially under
E Sections 83 and 87 of the Representation of the
People Act and Rule 94 of the Conduct of Election
Rules, 1968. Specific averments are set out in the
election petition, pointing out the specific acts as well
as the name/identity of the persons who are parties to
F the transactions which forms the basis of the election
petition."
In paragraph 9 of the affidavit he has further asserted
that the affidavit is in accordance with the requirement of
Rule 94. In such circumstances question is whether an
G opportunity is to be granfed to cure the defect."
(Underlining is ours)
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1163
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
26. Thereafter, the High Court after referring to the various A
decisions of this Court, relating to the interpretation of Section
83(1 )(a) of the Act, ultimately held as under:
"It is clear that the affidavit filed along with the election
petition in Form 25 is in accordance with the requirement
provided under Rule 94A and as mandated under the B
proviso to section 83(1) of the Act. The affidavit filed does
not support the allegations made in paragraph 4 of the
election petition which deals with the allegation of corrupt
practice of bribery, based on which election is sought to
be declared void under section 100(1)(b) of the Act. C
Though learned counsel argued that in that case it is the
duty of the court to grant an opportunity to cure the defect,
I cannot agree with the submission. As pointed out by
the Apex Court in V. Narayanaswamy's case (supra)
when the first respondent pointed out that the election D
petition does not contain the required concise statement
of material facts and the affidavit filed under proviso to
Section 83(1) does not satisfy the legal requirement, the
case of the petitioner is that it satisfied all the
· requirements. He did not take any steps to get the E
pleadings amended or to file an affidavit in conformity
with the proviso to section 83(1) and Rule 94A of the
Conduct of Election Rules. In such circumstances it can
only be found that it is not an affidavit as required under
the proviso to section 83( 1) and Rules 94A ........ " F
27. On the above issue, the contention of the Appellant
was two fold. In the first instance, Mr. Chacko, learned counsel
contended that even if there was some omission on the part of
the Appellant in filing the necessary affidavit, with particular G
ref€rence to the allegations in paragraphs 4, 6 and 10 of the
Election Petition, the High Court ought to have given an
opportunity to cure the said defects which were purely
cosmetic. It was also contended that the averments, contained
in paragraph 9 which were duly supported by the affidavit were H
1164 SUPREME COURT REPORTS [2014] 13 S.C.R.
A sufficient to prove the allegation of bribery alleged against the
First Respondent, which the Appellant would have been able
to sufficiently demonstrate and establish at the time of hearing
of the Election Petition. According to the learned counsel, the
Election Petition ought not to have, therefore, been dismissed
B by the High Court in limine.
28. In support of the above contentions the learned
. counsel relied upon the decision in Balwan Singh (supra).
The learned counsel by relying upon the statement of law at
page 77 4 contended that the said decision being a
C Constitution Bench decision, the High Court should have
applied the said ruling and extended an opportunity to the
Appellant to file necessary affidavit in support of the allegation
contained in the Election Petition. To appreciate the stand of
the Appellant, we refer to the passage relied upon by the
D learned counsel which is found in paragraph 8 of the said
decision. The said part of paragraph 8 can be usefully referred
to which reads as.under:
"8 .........An election petition is not liable to be dismissed
in limine merely because full particulars of a corrupt
E
practice alleged in the petition, are not set out. Where
an objection is raised by the respondent that a petition
is defective ~ecause full particulars of an alieged corrupt
practice are not set out, the Tribunal is bound to decide
whether the objection is well-founded. If the Tribunal
·F
upholds the objection, it should give an opportunity to
the petitioner to apply for leave to amend or amplify the
particulars of the corrupt practice alleged; and in the event
of non-compliance with that order the Tribunal may strike
out the charges which remain vague ............ "
G
. 29. When we refer to the said passage of the Constitution
Bench decision, we have to bear in mind that.in that case when
we looked into the facts which gave rise to the said judgment,
we find thaf in the Election Petition, the allegation of corrupt
H practice falling under Section 123(5) was alleged to the effect
C. P. JOHN v. BABU M. PALISSERY & ORS. 1165
[FAKKIR MOHAMED IBRAHIM KAUFULLA, J.]
thatthe successful candidate indulged.in gathering the voters A
by hiring bullock carts and tractors to and from the polling
station. When in the written statement, it was pointed out that
the said allegation lacked in detailed particulars by way of
Annexure D-1 to the main Election Petition, the election
petitioner furnished the details as to who procured the bullock B
carts and tractors and who were all transported from which
village to which polling station and sq on. At the instance of the
. successful candidate, the Election Tribunal declined to accept
the saidAnnexure 0-1 and deleted the relevant paragraph in
the Election Petition for want of detailed particulars. However, C
when the election petitioner sought for a review, the Tribunal in
review accepted the Annexure D-1. This order in review was
challenged before the High Court. The High Gou rt also upheld
the order in review passed by the Tribunal, which was ultimately
brought before this Court by the successful candidate; It was o
. ih this context, it was· held that when an objection is raised by
the Respondent"in the Election Petition pointing out the defects
that full particulars of alleged corrupt practice were not set out,
the Election Tribunal, while accepting the said statement should
give an opportunity to the election petitioner to apply for leave, E
to amend or amplify the corrupt practice alleged.
30. In the case on hand, the .said situation relating to want
of particulars and the failure to support the allegations made
in the Election Petition by necessary affidavit as required to
be filed under the proviso to Section 83(1) was brought to the F
notice of the Appellant at the instance'of the First Resppndent
in his written statement. The written statement was filed by First
Respondent on 24,09.2011. The I.A No.3 of 2011 was filed
on .the same date. The counter affidavit to the said I.A. was
filed by the Appellant on 06.10.2011. The imp.ugned order G
came to be passed on 02.12.2011. It is significant to note that
in the counter affidavit of the Appellant to I.A. No.3 of 2011, the
Appellant did not seek for any prayer to amend or add any
pie.a to the Election Petition or the affidavit filed in support of
H
1166 SUPREME COURT REPORTS [2014] 13 S.C.R.
A the Election Petition. On the other hand, in the counter affidavit,
the Appellant continued to maintain his stand that whatever
particulars required, have been sufficiently set out in the petition
and affidavit and it was not lacking in any statutory requirement.
Thus, the Appellant allowed the High Court to examine the
B contention raised at the preliminary stage as to the
maintainability of the Election Petition for want of compliance
of statutory requirement as prescribed under Section 83(1) of
theAct read along with Rule 94A of the Rules and as prescribed
in Form 25 of the relevant Election Rules. Therefore, when the
c Appellant was not inclined to seek for any amendment to the
Election Petition or to the affidavit filed in support of the Election
Petition, we fail to understand as to how the Appellant can now
raise any grievance to the effect thatthe High Court ought to
have granted an opportunity to the Appellant to amend the
o pleadings. In any event, the ratio of the decision set out in the
Constitution Bench decision can have no application to the ·
case on hand, as it materially differed in very many facts and
the conduct of the party. We, therefore, do not find any scope
to apply the decision in Balwan Singh (supra) to the case of
E the Appellant.
31. Reliance was then placed upon the decision in
Umesh Challiyill (supra). In that case, a preliminary objection
was raised to the effect that the affidavit in Form 25 was not
affirmed and as such the affirmation was not duly certified and
F the verification of the Election Petition was defective, etc. While
dealing with the said objection, the Election Tribunal summarily
dismissed the Election Petition at the stage when the Election
Petition was taken up for enquiry. While examining the
correctness of the said decision of the High Court, this Court
G has held as under in paragraphs 12 and 13:
"12. Both the defects which have been pointed out by
the learned Single Judge were too innocuous to have
resulted in dismissal of the election petition on the basis
of the preliminary objection. The courts have to view
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1167
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
whether the objections go to the root of the matter or they A
are only cosmetic in nature. It is true that the election
petition has to be seriously construed. But that apart the
election petition should not be summarily dismissed on
such small breaches of procedure. Section 83 itself says
that the election petition should contain material facts. B
.Section 86 says that the High Court shall dismiss the
election petition which does not comply with the
provisions of Section 81 or Section 82 or Section 117.
But not of defect of the nature as pointed out by the
respondent would entail dismissal of the election petition. C
These were the defects, even if the Court has construed
them to be of serious nature, at least notice should have
been issued to the party to rectify the same instead of
resorting to dismissal of the election petition at the outset.
(Emphasis added) D
13. Learned counsel for the respondent has tried to justify
and support the order of the learned Single Judge and
submitted that in fact these objections were raised by
the respondent in his counter-affidavit and the appellant
had sufficient opportunity to have cured them and in that E
connection, learned counsel for the respondent pointed
out that the election petition was presei:ited on 22-S-2006
and the first date of hearing was on 30-8-2006. The
appellant should have cured these defects but the same
was not done. Therefore, there was no option with the F
learned Single Judge but to dismiss the election petition.
We fail to appreciate this argument of the learned counsel
for the respondent for the simple reason that how can
the appellant who bona fidely felt that his election petition
in all respects is complete will entail such a serious G
consequence of dismissal·of the election petition on such
minor omissions. In case the learned Single Judge found
that the election-petition was not in the format then after
recording his finding, the learned Single Judge should
H
1168 , SUPREME COURT REPORTS [2014] 13 S.C.R.
A have given an opportunity to the appellant to amend or
cure certain defects pointed out by the Court. It may be
relevant to mention, these are not the grounds mentioned
in Section 86 of the Act for dismissal of the election
petition. But nonetheless even if it is to entail serious
B consequence of dismissal of the election petition for not
being properly constituted, then too at least the appellant
should have been given an opportunity to cure these
defects and put the election petition in proper format.
But the learned Single Judge instead of giving an
c opportunity has taken the easy course to dismiss the
election petition which in our opinion, was not warranted."
32. What has been stated in the above paragraphs is
that where the defects pointed out were too innocuous and
cosmetic in nature, the Election Tribunal should have given an
D opportunity to rectify those defects instead of throwing out the
El~ction Petition atthe very threshold. There can be no two
opinions about the proposition of law so stated by this Court
in the above referred to decisions. The defects which were
pointed out in those cases were that the affidavit was not sworn
E in the pr~scribed format and in the verification column, certain
words were missing. It was in that context that this Court held
that when such innocuous mistakes in the format of the affidavit
were noted, in the interest of justice, the proper course was
thatthe Tribunal s.hould have called upon the election petitioner
F to rectify those minor cosmetic defects instead of dismissing
the Election Petition at the threshold.
33. In the case on hand, since the allegation of bribery
falling under Section 123(1)(A) was a serious allegation, if
G according to the Appellant, for levelling the said allegation there
were no details furnished as to on which date and by whom
the bribe amount was promised to be paid to the Second
Respondent then, when such averments were not duly
supported in the affidavit and when such serious defects were
pointed out in the written statement as well as in the affidavit
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1169
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
filed in support of I.A. No.3 of 2011, the Appellant having taken A
a rigid stand that he wanted to go by whatever averments
contained in the Election Petition and affidavit filed in support
of the Election Petition, he cannot subsequently turn around
and state that inspite of such a categoric stand taken by him,
the High Court should have gone out of the way and called B
upon him to rectify the defects, which were very serious defects
concerning material particulars relating to corrupt practice, for
which there was no necessity for the High Court to show any
such extraordinary indulgence to the Appellant. We, therefore,
do not find any scope to apply the decision in Umesh Chailiyill C
(supra) to support the stand of the Appellant.
34. Mr. Chacko, learned counsel then relied upon the
decision in G.M. Siddeshwar (supra). In the said decision, it
was held that if there is substantial compliance with the
prescribed format of the affidavit, an Election Petition cannot . D
be thrown out on a hyper technical ground particularly when
there were some defects in the format which were curable.
Paragraphs 37 and 38 are relevant for our consideration which
are as under:
E
"37. A perusal of the affidavit furnished by Prasanna
Kumar ex facie indicates that it was not in absolute
compliance with the format affidavit. However, we
endorse the view of the High Court that on a perusal of
the affidavit, undoubtedly there was substantial
compliance with the presct·ibed format. It is correct that F
the verification was also defective, but the defect is
curable and cannot be held fatal to the maintainability of
the election petition.
38. Recently, in Ponna/a Lakshmaiah v. Kommuri Pratap G
Reddy the issue of a failure to file an affidavit in
accordance with the prescribed format came up for
consideration. This is what this Court had to say: (SCC
p. 802, para 28)
H
1170. SUPREME COURT REPORTS [2014] 13 S.C.R.
A "28. ... The format of the affidavit is at any rate not a
matter of substance. What is important and at the heart
of the requirement is whether the election petitioner
has made averments which are testified by him on
oath, no matter in a form other than the one that is
B stipulated in the Rules. The absence of an affidavit or
an affidavit in a form other than the one stipulated by
the Rules does not by itself cause any prejudice to the
successful candidate so long as the deficiency is cured
by the election petitioner by filing a proper affidavit
c when directed to do so."
We have no reason to take a different view. The
contention urged by Siddeshwar is rejected."
35. A reading of the above paragraphs themselves show
D that ifthe defect was one of format and not of substance, such
defect should also be allowed to be cured. In the case on hand,
we have already held that the detects pointed out in the
Election Petition, as well as, in the affidavit were not of mere
format but of substance and, therefore, we are unable to apply
E the ratio in G.M. Siddeshwar (supra) to the case on hand.
36. In Raj Narain (supra) paragraph-23 can be usefully
referred to which reads as under:
"23. Now coming to the appeal against the order on the
amendment application, the learned trial Judge ·
F disallowed the amendments sought on the sole ground
that if those amendments are allowed, it will amount to
amending the statement of material facts and the same
is not permissible in view of Section 86(5). We have
alre.:Ady found that that conclusion of the learned trial
G JL.Jge is not correct. l (1c amendment application was
movea even before the trial of the case commenced. It
is not shown how the amendments sought in respect of
paragraphs 2 and 5 of the petition can prejudice the case
of the respondent. They are merely clarificatory in
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1171
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
character. This Court ruled in Shri Ba/wan Singh v. Shri A
Lakshmi Narain and others, that an election petition was
not liable to be dismissed in limine because full particulars
of corrupt practice alleged were not set out.
It further observed that-if an objection was taken and the
Tribunal was of the view that the full particulars have not B
been set out, the petitioner had to be given an opportunity
to amend or amplify the particulars, It was only in the event
of non-compliance with the order to supp~ the particulars
that the charge which remained vague could be struck
out. In that case the amendment was sought after the C
evidence was closed in the case. This Court allowed the
same. Courts are ordinarily liberal in allowing
amendment of pleadings unless it results in prejudicing
the case of the opposite party. Any inconvenience caused
by an amendment can always be compensated by costs. D
We think that the amendments asked for, should have
been allowed and we allow the same. The election
petition will be accordingly amended and the respondent
will be afforded an opportunity to file any additional written
statement, if she so desires." E
37. As the statements contained in the said paragraph
disclose that when some defects in the Election Petition were /
pointed out, the Election Petitioner in that case took steps for
amending the pleadings which were declined. In contrast to F
the above case, in the case on hand, inspite of pointing out
the defects, the Appellant did not evince any interest to amend
either the Election Petition or the affidavit filed in support of
the Election Petition. We, therefore, do not find any scope to
apply the decision fn Raj Narain (s'upra) to the facts of this G
case.
38. Reliance was placed upon the decision in G.
Mallikarjunappa (supra), paragraph 7, which reads as under:
H
1172 SUPREME COURT REPORTS [2014] 13 S.C.R.
A "7. An election petition is liable to be dismissed in limine
under Section 86(1) of the Act if the election petition does
not comply with either the provisions of "Section 81 or
Section 82 or Section 117 of the RP Act". The
requirement of filing an affidavit along with an election
B petition, in the prescribed form, in support of allegations
of corrupt practice is contained in Section 83( 1) of the
Act. Non-compliance with the provisions of Section 83
of the Act, however, does not attract the consequences
envisaged by Section 86(1) of the Act. Therefore, an
C election petition is not liable to be dismissed in limine
under Section 86 of the Act, for alleged non-compliance
with provisions of Section 83(1) or (2) of the Act or of its
proviso. The defect in the verification and the affidavit is
a curable defect. What other consequences, if any, may
o follow from an allegedly "defective" affidavit, is required
to be judged at the trial of an election petition but Section
86(1) of the Act in terms cannot be attracted to such a
case." ·
39. There can be no two opinions that consequences
E envisaged by Section 86( 1) of the Act will have no application
. to the non-compliance of Section 83(1) or (2) or its proviso.
But the question before us is when the mandatory requirement
of the pleadings as stipulated under Section 83(1) and its
proviso was brought to the notice of the Appellant, as well as,
F to the Court, and when a specific application was filed for
rejecting the Election Petition for want of particulars and
consequent lack of cause of action for maintaining the Election
Petition and the election petitioner, namely, the Appellant herein
chose not to cure the defects but insisted that his Election
G Petition can be proceeded with keeping the material defects
on record, he cannot later on be heard to state that at any later
point of time he must be given an opportunity to set right the
defects. We are unable to appreciate such an extreme stand
made on behalf of the Appellant. Therefore, even while applying
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1173
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the above proposition of law stated by this Court in paragraph A
7, we do not find any scope to interfere with the order impugned
in these appeals.
40. Reliance was then placed upon the decision in
Sardar Harcharan Singh Brar (supra). After making
reference to the nature of defects in the affidavit, and dismissal B
of the Election Petition at the threshold, this Court has stated
as under in paragraph 14:
"14 .... ... .".Therefore, an election petition is not liable to
be dismissed in limine under Section 86 of the Act, for c
alleged non-compliance with provisions of Section 83(1)
or (2) of the Act or of its proviso. The defect in the
verification and the affidavit is a curable defect. What
, other consequences, if any, may follow from an allegedly
"defective" affidavit, is required to be judged at the trial o·
of an election petition but Section 86( 1) of the Act in terms
cannot be attracted to such a case."
41. As has been stated therein the defect was only in the
form and not in substance. In fact, in the case on hand after
pointing out the substantial defects in the Election Petition as E
well as the affidavit filed in support· of the Election Petition, the
First Respondent came forward with a separate application,
namely, I.A. No.3 of 2011 for rejecting the Election Petition for
want of cause of action. When the said I.A. along with an
Election Petition was taken up for hearing, the Appellant ought F
to have realized his serious mistake in not filing the petition as
well as the affidavit in the proper manner and should have taken
adequate recourse in filing the amended petition and affidavit.
The Appellant having failed to take recourse to such a
corrective step cannot now be heard to state that the High Court G
went wrong in dismissing the Election Petition. We, therefore,
do not find any support from the said decision to.the case on
hand.
H
1174 SUPREME COURT REPORTS [2014] 13S.C.R.
A 42. The last of the decision relied upon by the learned
~
counsel for the Appellant was Harkirat Singh (supra). In
paragraphs 51 and 52, the necessity for pleading material facts
and particulars as required under Section 83 of the Act have
been succinctly stated. The said paragraphs are as under:
B "51. A distinction between "material facts" and
"particulars", however, must not be overtooked. "Material
. facts" are primary or basic facts which must be pleaded
by the plaintiff or by the defendant in support of the case
set up by him either to prove his cause of action or
c defence. "Particulars", on the other hand, are details in
support of material facts pleaded by the party. They
amplify, refine and embellish material facts by giving
distinctive tou.ch to the basic contours of a picture already
drawn so as to make it full, more clear and more
D informative. "Particulars" thus ensure conduct offair trial
and would not take the opposite party by surprise.
52. All "material facts" must be pleaded by the party in
support of the case set up by him. Since the object and
purpose is to enable the opposite party to know the case
E
he has to meet with, in the absence of pleading, a party
cannot be allowed to lead evidence. Failure to state even
. a single material fact, hence, will entail dismissal of the
suit or petition. Particulars, on the other hand, are the
details of the case which is in the nature of evidence a
F
party would be leading at the time of trial."
43. However, this Court found that the High Court without
any plea from any party went into the allegations made in the
Election Petition and rejected the same holding that the
G Election Petition did not state material facts and, therefore,
did not disclose a cause of action. In paragraphs 82 and 83 it
has been held as under:
"82. As we have already observed earlier, in the present
case, "material facts" of corrupt practice said to have
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1175
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
been adopted by the respondent had been set out in the A
petition with full particulars. It has been expressly stated
as to how Mr. Chahal who was a gazetted officer of Class
I in the Government of Punjab assisted the respondent
by doing several acts, as to complaints made against
him by authorities and taking of disciplinary action. It has B
also been stated as to how a police officer, Mr. Mehra,
who was holding the post of Superintendent of Police
helped the respondent by organising a meeting and by
distributing posters. It was also alleged that correct and
proper accounts of election expenses have not been C
maintained by the respondent. Though at the time of
hearing of the appeal, the allegation as to projecting
himself as "Maharaja of Patiala" by the respondent had
not been pressed by the learned counsel for the appellant,
full particulars had been set out in the election petition in .D
respect of oHier allegations. The High Court, in our
opinion, was wholly unjustified in entering into the
correctness or otherwise of the facts stated and
allegations made in the election petition and in rejecting
the petition holding that it did not state material facts and E
thus did not disclose a cause of action. The High Court,
in our considered view, stepped into the prohibited area
of appreciating the evidence and by entering into merits
of the case which would be permissible only at the stage
of trial of the election petition and not at the stage of F
consideration whether the election petition was
maintainable.
83. We, therefore, hold that the High Court was wrong in
dismissing the election petition on the ground that
material facts had not been set out in the election petition G
and the election petition did not disclose a cause of
action. The order passed by the High Court, therefore,
deserves to be quashed and set aside."
H
1176 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 44. The distinguishing feature which we noted as
between the said case and the case on hand is that here there
was a written statement filed pointing out the serious defects
as regards the material facts and the particulars as set out in
the Election Petition and also the non-compliance of the
B proviso to Section 83( 1) in the affidavit filed in support of the
Election Petition. Tha~ apart, an I.A. was taken out in I.A. No.3
of 2011 at the instance of the First Respondent to reject the
Election Petition for want of cause of action in which specific
grounds were raised which were contested by the Appellant
c by filing a counter affidavit but yet, even at that stage, the
Appellant did not take the stand that he was inclined to rectify
whatever defects were pointed in the Election Petition as well
as in the affidavit. When such a categoric stand was taken on
behalf of the Appellant and he was fully prepared to accept the
o ultimate decision of the High Court in the application as well
as in the Election Petition, we see no reason why the Appellant
should now be given any further opportunity to cure the defects
which were substantial in nature. Therefore, the said decision
also does not in anyway support the case of the Appellant.
E 45. With that when we come to the next part of the
judgment, namely, the· alleged corrupt practice under Section
123(4) based upon Annexure IV, which was the pamphlet
distributed in the name of Second Respondent, the contention
was that the First Respondent was responsible for issuing the
F said pamphlet in the riame of the Second Respondent with a
view to divert the votes of UDF and thereby, the candidature of
the Appellant was put to serious prejudice. Dealing with the
said issue, the High Court has stated as under in paragraphs
17 and 19:
G
"17. The question is even if the case of the election
.petitioner is to be accepted and the notice was printed
and published by the first respondent in the name of the
second respondent, whether it is a corrupt practice as
provided under sub section (4) of Section 123. The
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1177
[FAKKIR MOH~MED IBRAHIM KALIFULLA, J.]
argument of the learned counsel appearing for the A
electi"on petitioner is that election petitioner is the
candidate of the United Democratic Front and by reading
the appeal the voters may think that second respondent,
who is having identical name as that of the election
petitioner, is the candidate of the United Democratic Front B
and it was printed and published with the intention of
causing loss of votes to the election petitioner, as those
who read the appeal may think that second respondent
is the candidate of the United Democratic Front and
would cast their votes to the second respondent on a C
mistaken impression that instead of the election petitioner
second respondent is the candidate of the United
Democratic Front. Learned senior counsel appearing for
the election petitioner argued that unless Annexure IV
appeal contains any statement which are false and either D
the first respondent believed to be false or did not believe
to be true and such statements are in relation to the
personal character or conduct of any candidate or in
relation to the candidature or withdrawal of any candidate
and that too reasonably calculated to prejudice the E
prospects of that candidate's election, it will not
constitute a corrupt practice as provided under sub
section (4) of Section 123 of the Act.
19. It is clear that in order to attract sub section (4) of
section 123, there should be a publication by a candidate F
or his agent or by any other person with the consent of
the candidate or his election agent. The statement of fact
in the publication must be false. The candidate should
either believe it to l;>e false or does not believe it to be
true. The statement must be in relation to the personal G
character or conduct of any candidate or in relation to
the candidature or withdrawal of any candidate. The
statement must be reasonably calculated to prejudice
the prospects of that candidate's election. Even if the
H
...
1178 SUPREME COURT REPORTS [2014] 13 S.C.R.
A statement is false and the candidate did not believe the
statement to be true or believe it to be false, unless the
statement is in relation to the personal character or
conduct of any candidate or in relation to the candidature
or withdrawal of any candidate, it is not a corrupt practice.
B Even if the statement is in relation to the p_ersonal
character or conduct of any candidate or in relation to
the candidature or withdrawal of any candidate, .unless it
was reasonably calculated to prejudice the prospects of
that candidate's election, it will not amount to a corrupt
c practice. Each of the ingredients in the section has its
own importance. The omission to plead any one of the
ingredients is fatal. In the absence of any of the
ingredients, it will not constitute a complete cause of
action to challenge the election on the ground of corrupt
o . practice under section 123(4) of the Act."
46. On a reading of the above discussion made by the
High Court with which we fully concur, we do not find any scope
to take a different view. The said conclusion of the High Court
in the context of Section 123(4) is the only way to understand
E the implication of the Annexure IV-pamphlet alleged to have
been distributed by the Second Respondent at the instance of
the First Respondent. Therefore, on this ground, as well, we
do not find any scope to interfere with th_e impugned judgment
of the High Court.
F
47. The only other ground which was raised in the Election
Petition related to violation of Section 33A of the Act wherein,
the First Respondent stated to have suppressed his conviction
in two criminal cases. As far as those two criminal cases are
G concerned, Mr. Shishodia, learned Senior Counsel appearing
for the First Respondent brought to our notice that the
contention of the Appellant based on those two criminal cases
were factually incorrect. In the impugned judgment it has been
noted that the First Respondent was convicted for offence in
Sessions Case No.4of1975 but, howeveF, the said conviction
H
C. P. JOHN v. BABU M. PALISSERY & ORS. 1179
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
was set aside in Criminal Appeal No.248 of 2000 which was A
not in dispute. Similarly, with reference to the conviction in CC
No.167 of 1995 the High Court has noted that the certified
copy of the judgment in the said case was produced which
disclosed that the sentence imposed in the said case was
less than a year. Under Section 33A(1)(ii) of the Act, the B
requirement of the candidate is to furnish the information in
the nomination as regards his/her conviction for any offence
/
referred to in sub-sections (i), (ii) and (iii) of section 8 and if
he/she is sentenced to imprisonment for a period of one year
or more, only then should it be disclosed in the nomination. As c
it has been found in the present case that the conviction in CC
No.167 of 1995 and the sentence imposed was less than a
year, there was no compulsion for the First Respondent to
disclose the said conviction in his nomination. Therefore, on
this ground when the High Court declined to interfere with the o
election of the First Respondent, no fault can be found with the
said conclusion.
48. Having regard to our above discussions and findings
there is no merit in these appeals and the same are dis.missed.
No costs E
Nidhi Jain Appeals dismissed.
fa
j
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