Holding

The elected candidate may amend his defence to include an alibi and summon witnesses to rebut the petitioner's allegations, as the burden of proof rests on the petitioner and the High Court’s discretion under Section 87 was not justified.

Summary

Two election petitions were filed by defeated candidates alleging that the elected candidate, Sultan Ahmad Owasi, indulged in corrupt practice by delivering speeches that promoted religious hatred. The appellant denied making any such speeches and sought to prove an alibi, claiming he was in Adoni at the relevant times. He applied to the Andhra Pradesh High Court for amendment of his counter‑statement to include this alibi and for summoning witnesses to establish his whereabouts. The High Court refused, holding that no specific plea of alibi was pleaded and that the witnesses were not justified. The Supreme Court held that under the Representation of the People Act the burden of proof lies on the petitioner, and the elected candidate is entitled to amend his defence and summon witnesses to rebut the allegations, provided the High Court’s discretion under Section 87 is not exercised on improper grounds. Consequently, the appeals were allowed, the High Court’s orders set aside, and the appellant was directed to be permitted to examine the witnesses and amend his counter.

Issues considered

The burden of proof in an election petition alleging corrupt practice under the Representation of the People Act.
Whether an elected candidate may amend his counter‑statement to include an alibi and summon witnesses after the petitioner has closed evidence.
Whether the High Court correctly exercised its discretion under Section 87 of the Representation of the People Act to refuse the amendment and the witnesses.

Legislation cited

Code of Civil Procedure, 1908s. Order VIII Rule 2
Representation of the People Act, 1951s. 116, s. 87

Subjects

election petitioncorrupt practiceburden of proofamendment of counteralibi defencewitness summoningRepresentation of the People ActSection 87Section 116civil procedure

Judgment

439

SULTAN AHMD. OWASI A
V•

MOHD. OSMAN SHAHEED AND ORS.
April 10, 1980
• (S. MURTAZA FAZAL ALI AND P. S. KAJLASAM, JJ:J B
Election Petition-Applications for summoning of witnesses and amend·
ment of counter-Practice and Procedure under the Repr,esentatiOn of People
Act-Sections 87 and 116 of the Representation of the People Act read with
Order VIII Rule 2 of Civil Procedure Code.
In the two election petitions E. P. No. 18178 and E. P. No. 20178 filed by
the defeated candidates, allegation of corrupt practice, namely "indulgence in C
promoting hatred rousing religious sentiments by speeches made at certain
places" was made against the appellant, a succesSful candidate.
After the election petitioner closed his evidence and the High Court directed
tho appellant to file the list of his witnesses, the appellant filed two applications
before the High Court namely, one for summoning witnesses Nos. 6, 8, 15 and
16 and another for amendment of his counter. The High Court however refused to D
summon these witnesses on the ground that no foundation for the facts on the
basis of which these witnesses were sought to be cited or for the points on
which they were to be, examined was laid in the counfer. Similarly, the fligh
Court rejected the application for amendment of the counter on the same
grounds. The High Court was of the view that in the absence of any specific
.plea of alibi, having been taken in the counter. the appellant could not be
f allowed to examine the witnesses or amend the counter. Hence the two B
appeals, by special leave.
Allowing the appeals the Court,
. HELD : 1. Under the provisions of the Representation of People Act, the
onus Jies entirely on the petitioner to prove the corrupt practices alleged against
the elected, candidate. The. necessary facts and particulars and the statements
of facts etc. are to be pleaded by the ·election petitioner with exactitude and
precision. It is now well settled by a large catena of the authorities of this
Court tha~ a charge of corrupt practice must be proved to the hilt, the stan-
•
dard of proof of such a11egation is the same as a charge of fraud in a criminal
case. f442B-Cl
~ D. Venkata Reddy v. R. Sultan and Ors., [19761 2 S. C. C. followed.
2. So far as the elected candidate is concerned, he is merely to rebut the
G
allegations made by the petitioner in accordance with the provisions of the
'
,.l
Civil Procedure Code as far as practicable. In the instant case, the appellant
had taken an express plea in his counter that he did not make any 9peech at
the places alleged by the election petitioner. He also stated that tape records
or the cassets alleged to contain his speech were fabricated. One of the
ways of proving this plea could be by showing that the appellant was not
physically present at the places where the speeches are alleged. to. have been
H
made as he was present at that time, at some other place. This is what the
appellant sought to do through the proposed amendment and by summoning
440 SUPREME COURT REPORTS [1980] 3 s.c.R.

A the witnesses. Thus it was. clearly open to the appellant to have proved facts
in order to rebut the allegations made by the petitioner that he was not present
at the places where he is said to have made speeches. [442E-G]
3. Under s. 116 of the Representation of the People Act an election petition
has to be tried as nearly as possible according to the procedure applicable
under the Civil Procedure Code to the trial of suits. Under O.VIII R. 2 the
B defendant must raise by his pleading all ritatters which show that the suit is not
maintainable, or that the transaction is either void or voidable in point of law,
and all such. grounds of defence, as, if not raised, would be likely to take the
opposite party by surprise, or would raise issues of fact not arising out of the
pjaint. Having expressly denied the allegation of having made the speech, the
appellant was fully justified in raising this defence. [442G-H, 443A]
In the instant case, it cannot be said that the witnesses sought to be
c examined by the appellant or the plea which he claimed in his counter by
virtue of the amendment would spring surprise on the election petitioner
because the appellant had already denied in clear terms that he never made any
· speeches at the places mentioned in the election petition. There was no corres·
ponding duty on the appellant to give full particulars or detailed statemrnt of
fact which the petitioner had to do in order to set at naught the electoral pro·
cess which resulted in the election of the appellant. [443A-CJ
D
4. So far as the discretion vested on the HigQ Court by Section 87 of the
Representation of the People Act, 1951 to refuse to summon any witness lies
onJy when it is of the opinion that the evidence of the witness is not material
·or that the party tendering such witness is doing so on frivolous ground or
with a view to delay the proceedings. [443.D-EJ

E In the instant case none of these conditions are present. In order to repet
the plea of the election petitioner, the appellant was entitled to lead evidence
to show that he did not make any speech as he was physically incapable in
doing so at the time and place as alleged by the petitioner. By virtue of the
amendment the appellant sought to insert a plea that he could not have made-
the speeches as alleged by the election petitioner because he was at that time
out of station and was present in Adoni-180 miles from the places where he
F is said to have delivered speeches. In fact, witnesses Nos. 6, 8, 15, 16 and 1.7
were summoned to prove the fact that this appellant was in Adoni. [4410-H.
442A, 443E]
. ,t-..
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2036-
2039/79.
Appeals by special leave from the Judgment and Orders dated
G 27-4-1979, and 25-6-1979 of the Andhra Pradesh High Court in
U.R.S. Nos. 4039 and 4040 in W.P. Nos. 18 & 20 of 1978 and J
application Nos. 75 .& 76 in WP Nos. 18 & 20 of 1978 respectively. A
M. A. Abdul Khader, Mukramuddin and G. Narayana Rao for
the Appellants.
B Dr. Y. S. Chitale, K. Ram Kumar and T. A. Ramcha;idran for
the Respondent.
The Judgment of the Court was delivered by
s. A. OWASI V. OSMANSHAHBBD (Fazal Ali, J.) 441

A
FAZAL Au, J. These appeals by special leave have been filed
by the appellant who was respondent No. 1 (before the High Court),
the elected candidate from the Charminar Assembly Constituency
No. 218 in the State of Andhra Pradesh. The election petitioner
Mohd. Osman Shaheed filed election petition for setting aside the
election of the appdlant being E.P. No. 18/78 in the High Court. B
Ahmed Hosain, a candidate who was defeated also filed another
electio'n peti:ion No. 20/78 on the same grounds assailing the elec·
tion of the appellant. In the aforesaid election petitions before the
High Court two applications were filed in each of tlie petition by
the appellant, one for summoning witnesses Nos. 6, 8, 15 and 16
and the other for amendment of the counter. These applications were c
filed after the petitioner closed the evidence and the High Court
directed the appellant to file the list of witnesses. The High Court,
however, refused to summon these witnesses on the ground that no
foundation for the facts on the basis of which these witnesses were
sought to be cited or for the points on which they were to be examin-
ed was laid in the counter. Similarly the HiVi Court rejected the D
application for amendment of the counter on the same grounds. The
High Court was of the view that in the absence of any specific plea of
alibi having been taken in the counter, the appellant could not be
allowed to examine the witnesses or amend the counter. Appeal
Nos. 2036-37 /79 are direcetd against the order striking out the
E
f witnesses nos. 6, 8, 15, 16 and 17 and Appeal Nos. 2038-39/79
are directed against the order rejecting the application for amendment
of the counter.

We have heard counsel for the parties and have gone through the
Judgment of the High Court. We have also perused the application
for amending the written statement. It appears that one of the
main allegations made against the appellant was that he had deliver-
ed speeches at Khilawat, Chowk and Baragalll on 17-2-78 and
21-2-78 respectively in which he indulged in promoting hatred rousing
·religious sentiments. It was further alleged in Election Petition No.
20/78 that he made another speech at Baragalli where also he indu- G
lged in preaching religions hatred against the election petitioner. In
his counter the appellant stoutly denied the allegation that he ever
made any speech at these places at all. The respondent denied
having made speech at all at Khilawat or Chowk or Baragalli. By
virtue of the amendment, the appellant sought to insert a plea that
he could not have made the speeches as alleged by the election peti· H
tioner because he was at that time out of station and was presell.t in
Adoni-180 miles from the places where he is said to have delivered
442 SUPREME COURT REPORTS [1980] 3 S.C.R.

A , speeches. In fact, witnesses nos. 6, 8, 15, 16 and 17 were summon-
ed to prove the fact that this appellant was in Adoni.
With due respect, we may observe that in refusing the amend-
ment of the Counter or summoning the witnesses, the High Court
seems. to have over-looked the fact that U:Uder the provisions of the
B Representation of People Act, the onus lies entirely on the petitioner
to prove the corrupt practices alleged· against the elected candidate.
The necessary facts and particulars and the siatements of facts etc.
are to be ple~ded by the election ·petitioner with exectitude and pre-
cision. It is now well settled by a large catena of the authorities
of this Court that a charge of corrupt practice must be proved to
C the hilt, the standard of proof of such allegation is the same as a
charge of fraud in a criminal case. In the case of D. Venkata Reddy
v. R. Sultan & Ors.,(') this Court observed as follows : -
"Anoth•er principle that is equally well settled is that
• election petitioner in order to succeed must plead all mate-
rial particulars and prove them by clear and cogent evidence.
D The allegations of corrupt practices hoeing in the nature of
a quasi-criminal charge the same must be proved beyond
any shadow of doubt."
So far as the elected candidate is concerned, he is merely to rebut
the allegations made by the petitioner in accordance with the pro-
visions of the Civil Procedure Code, as far as practicable. In the
instant case the appellant had taken an express plea in his counter
that he did not make any speech at the places alleged by the election
petitioner. He also stated that tape records or . the cassete alleged
to contain his speech were fabricated. One of the ways of proving
this plea could be by showing that the appellant was not physically
F present at the places where the speeches are alleged to have been
. made as he was present at that time, at some other place. This is
what the appellant sought to do through the proposed amendment and
by summoning the witnesses. Thus it was clearly open to the appel-
lant to have proved these facts i\1 order to rebut the allegations made
by the petitioner that he was present at the places where he is said
G to have made speeches. Under s. 116 of the Representation of the
People Act an election petition has to be tried as nearly as possible
according to the procedure applicable under the Civil Procedure Code
to the trial of suits. Under 0. VIII R. 2 the defendant must raise
by his pleading all matters which show that the suit is not maintain-
B able, or that the transaction is either void or voidable in point of
law, and all such grounds of defence, as, if not raised, would be likely
(I) [1976] 2 s. c. c. 455
s. A. OWASI v. OSMANSHAHEED (Fazal Ali, J.) 443

to take the opposite party by surprise, or would raise issues of fact A
not arising out of the plaint. Having expressly denied the allega-
tion of having made the speech, the appellant was fully justified in
raising this defence.
Thus in the instant case it cannot be said that the witnesses sought
to be examined by the appellant or the plea which he claimed in his
counter by virtue of the amendment would spring surprise on the B
election petitioner because the appellant had already denied in clear
terms that he never made any speeches at the places mentioned in the
election petition. There was no corresponding duty on the appellant
to give full particulars or detailed statement of fact which the peti-
tioner had to do in order to set at naught the electoral process which
resulted in the election of the appellant. In fact proviso to s. 87
c
of the Representation of the People Act which may be extracted thus
provides : ·
"Provided that the High Court shall have the discretion
to refuse, for reasons to b~ recorded in writing, to examine
. any witness or witnesses is not material for the decision of D
the petition or that the party tendering such witness or wit-
nesses is doing so oh frivolous grounds or with a view to
delay the proceedings."
So far as the discretion on the High Court to refuse to summon
any witness lies only when it is of the opinion that the evidence of
f the witness is not material or that the party tendering such witness is
doing so oh frivolous ground or with a view to delay the proceed-
E

ings. Nohe of these conditions appear to be present in the instant
case nor did the High Court dismiss the application for amendment
of the counter or refused to examine the witnesses on the grounds
mentioned above. It is, therefore, manifest that in order to repel the
plea of the election petitioner the appellant was entitled to lead evi- F
dence to show that he did not make any speech as he was physically
. -1 . incapab:e in doing so at the time and place as alleged by the elec-
tion petitioner. For these reasons, therefore, we are clearly of the
opinion that the High Courr was wrong in disallowing the prayer
• made by the appellant for examining the witnesses and for allowing
G
amendment of the counter. The appeals are accordingly allowed, the
Judgment of the High Court is se.t aside and the High Court is direct-
ed to allow the appellant to examine witnesses Nos. 6, 8, 15, 16 &
17 and the amendment prayed for by the appellant is also hereby
allowed. The High Court will dispose of the election petition now
as expeditiously as possible. The costs of these appeals will abide
the result of the election petition. •
S.R. Appeals allowed.