Supreme Court of India
SMT. NEENA VIKRAM VERMAversusBALMUKUND SINGH GAUTAM & ORS.
- Citation
- 2013 INSC 251
- Decided
- 12 April 2013
- Disposal
- Appeal(s) allowed
- Bench
- H L GOKHALE
Holding
A party that has consented to the hearing of a petition and waived objection under Order 7 Rule 11 cannot subsequently seek to strike out the same pleadings under Order 6 Rule 16 CPC.
Summary
In the 2008 Madhya Pradesh Legislative Assembly election, Neena Vikram Verma was declared elected by a single vote over Balmukund Singh Gautam, who filed an election petition alleging irregularities in postal ballot counting. Verma responded with a recrimination petition under Section 97 of the Representation of Peoples Act, 1951, alleging undisclosed criminal cases and corrupt practices by Gautam. Gautam first sought dismissal of the recrimination petition under Order 7 Rule 11 of the CPC, which the High Court granted, but the Supreme Court set aside that order by consent and restored the petition. Gautam later filed an application under Order 6 Rule 16 CPC to strike out the substantive pleadings of the recrimination petition as vague and vexatious; the High Court allowed this application. The Supreme Court held that a party who has consented to the hearing of a petition and waived objections under Order 7 Rule 11 cannot later seek to strike out the same pleadings under Order 6 Rule 16, and that sufficient material facts had been placed on record. Consequently, the High Court's order was set aside and the recrimination petition was ordered to be decided expeditiously.
Issues considered
- The effect of a party's consent to the hearing of a recrimination petition on its ability to later invoke Order 6 Rule 16 CPC to strike out pleadings.
- Whether the pleadings in paragraphs 3 and 4 of the recrimination petition are vague, vexatious, or lack material facts.
- Whether a defect in verification of an election or recrimination petition can be cured under CPC principles.
- Whether the material facts required under Section 83 and Section 33A of the Representation of Peoples Act, 1951, were adequately disclosed.
Legislation cited
- Code of Civil Procedure, 1908s. Order 12 Rule 2-A, s. Order 12 Rule 4, s. Order 6 Rule 16, s. Order 7 Rule 11
- Conduct of Elections Rules, 1961s. Form 25, s. Rule 63, s. Rule 94A
- Representation of Peoples Act, 1951s. 100(1)(d)(ii), s. 33A, s. 83, s. 86, s. 97
Subjects
election petitionrecrimination petitionOrder 6 Rule 16 CPCOrder 7 Rule 11 CPCverification defectcorrupt practicecriminal cases disclosureRepresentation of Peoples Actprocedural abuse
Judgment
[2013] 5 S.C.R. 845
SMT. NEENA VIKRAM VERMA A
v.
BALMUKUND SINGH GAUTAM & ORS.
(Civil Appeal No. 3840 of 2013)
APRIL 12, 2013
B
[H.L. GOKHALE AND MADAN B. LOKUR, JJ.]
Election Petition - Recrimination Petition - Filed by
appellant - Application of respondent u/Or. VII, r. 11 CPC for
rejection of Recrimination Petition - Allowed by High Court, c
consequently leading to dismissal of Recrimination Petition
- Appellant challenged the order - By consent order passed
by Supreme Court, order of High Court set aside, and
Recrimination Petition restored to the file of Election Petition
- Subsequent application of respondent No. 1 u/Or. VI, r. 16 D
CPC for striking off certain pleadings from the Recrimination
Petition - Allowed by High Court on ground that such
pleadings were vague, vexatious, non-specific and without
any material facts - Propriety - Held: Not proper - Once it is
accepted by a party by consent that a particular petition (in E
the instant case the Recrimination Petition) is to be heard by
the Court, by giving up the objection u/Or. VII, r.11, the very
party cannot be subsequently permitted to seek the striking
off the pleadings containing the cause of action under the garb
that the pleadings containing the cause of action are
F
unnecessary, vexatious or scandalous - No Court is
expected to permit any matter to be raised which might and
ought to have been made ground of defence or attack, once
the same is relinquished by the party concerned - High Court
ought to have noted this basic principle of any litigation - It G
could not have entertained the application u/Or. VI. 6, r. 16
when Supreme Court had restored the Recrimination Petition
to the file of High Court by consent in order to decide it
expeditiously - High Court to now proceed to decide the
845 H
846 SUPREME COURT REPORTS [2013] 5 S.C.R.
A Recrimination Petition expeditiously - Code of Civil
Procedure, 1908 - Or. VI, r. 16 and Or. VII, r. 11 -
Representation of Peoples Act, 1951 - s.97 - Conduct of
Elections Rules, 1961 - r.63.
Election Petition - Verification - Defect in - Removal -
B Held: Defect in the verification in the matter of Election
Petition can be removed in accordance with the principles of
CPC, and that it is not fatal to the Election Petition.
In the General Elections to the Madhya Pradesh
C Legislative Assembly, the appellant was declared elected
defeating the first respondent by one vote. Respondent
No. 1 filed Election Petition challenging the election of the
appellant on the ground of improper reception, refusal
and rejection of votes under the provisions of
D Representation of Peoples Act, 1951. This was principally
on the basis that the counting of the postal ballot was
done in violation of Rule 63 of the Conduct of Elections
Rules, 1961, to the benefit of the appellant. The appellant
in turn filed a Recrimination Petition under Section 97 of
E the R.P. Act, 1951, principally raising two grounds: (a) in
paragraph 3 that there were several criminal cases
pending against the 1st respondent which he had not
disclosed, and (b) in paragraph 4 that the first respondent
had indulged into various corrupt practices.
F Respondent No.1 thereafter filed an application
under Order 7 Rule 11 of CPC for rejection of the
Recrimination Petition on the ground that it did not
disclose any cause of action. This was apart from filing
the reply on merits to the Recrimination Petition. The High
G Court allowed the said application, consequently leading
to the dismissal of the Recrimination Petition filed by the
appellant. The appellant challenged ~his order before this
Court, but by a consent order passed by this Court, the
said order of the High Court was set aside, and the
H
NEENA VIKRAM VERMA v. BALMUKUND SINGH 847
GAUTAM
'
Recrimination Petition was restored to the file of the A
Election Petition. Subsequently the High Court allowed
the Election Petition, and set aside the election of the
appellant, and directed the Recrimination Petition to be
heard.
B
The appellant filed a statutory appeal before this
Court against the order in the Election Petition under
section 116 A of the R.P. Act, 1951. In the meanwhile,
respondent No.1 filed an application under Order 6 Rule
16 for striking off the pleadings in paragraph 3 and 4 of
the Recrimination Petition. This application was allowed C
by the impugned order which led to the present appeal.
Allowing the appeal, the Court
HELD:1.1. The application under Order 7 Rule 11 of
0
CPC is required to be decided on the face of the plaint
or the petition, whether any cause of action is made out
or not. Once it is accepted by a party by consent that a
particular petition (in the instant case the Recrimination
Petition) is to be heard by the Court, by giving up the E
objection under Order 7 Rule 11, the very party cannot
be subsequently permitted to seek the striking off the
pleadings containing the cause of action under the garb
that the pleadings containing the cause of action are
unnecessary, vexatious or scandalous. One is expected
to take all necessary pleas at the same time. The party F
concerned is expected to raise such a contention at the
time of passing of the Court order (consent order in the
present case) or seek the liberty to raise it at a later point
of time that some of the pleadings, are unnecessary or
vexatious or scandalous. No Court'is expected to permit G
any matter to be raised which might and ought to have
been made ground of defence or attack, once the same
is relinquished by the party concerned. The High Court
ought to have noted this basic principle of· any litigation.
[Para 28] [867-C-F] H
848 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 1.2. That apart, the objections raised in the present
matter under Order 6 Rule 16 of CPC is based on the
requirement of Section 83 of the R.P. Act, 1951 that the
applicant is required to place material facts before the
Court. As far as the allegation of criminality is concerned,
8 sufficient material facts were placed on record alongwith
the Recrimination Petition. Subsequently, a
notice to
admit facts was given, wherein, particulars of specific
cases were given, wherein, the charge-sheets were filed
for the charges which would result into imprisonment of
C 2 years or more, as required by section 33A of the R.P.
Act, 1951. The respondent chose not to reply to this
notice. In fact the High Court ought to have drawn an
adverse inference, but he failed in doing so. [Para 29]
[867-G-H; 868-A-B]
D 1.3. It has been held by this Court time and again that
a defect in the verification in the matter of Election Petition
can be removed in accordance with the principles of CPC,
and that it is not fatal to the Election Petition. [Para 30]
[868-D-E]
E
1.4. The order passed by the High Court in allowing
the application of the first respondent under Order 6 Rule
16 of CPC was clearly untenable and bad in law. The
High Court could not have entertained the application
under Order 6 Rule 16 when this Court had restored the
F Recrimination Petition to the file of that Court by consent
in order to decide it expeditiously. The High Court erred ·
in holding that the pleadings in paragraph 3 and 4 of the
Recrimination Petition were vague, vexatious, non-
specific and without any material facts. The High Court
G will now proceed to decide the Recrimination Petition
expeditiously. [Para 31] [869-F-H; 870-A]
K.K. Modi Vs. K.N. Modi & Ors. 1998 (3) SCC 573: 1998
(1) SCR 601; H.D. Revanna Vs. G. Puttaswamy Gowda and
H Ors. 1999 (2) SCC 217: 1999 (1) SCR 198 and Ponna/a
NEENA VIKRAM VERMA v. BALMUKUND SINGH 849
GAUTAM
Lakshmaiah Vs. Kommuri Pratap Reddy and Ors. 2012 (7) A
sec 788: 2012 (6) SCR 851 - relied on.
Murarka Radhey Shyam Ram Kumar v. Roop Singh
Rathore and Anr. AIR 1964 SC 1545: 1964 SCR 573 -
followed.
8
P.A. Mohammed Riyas Vs. M.K. Raghavan & Ors. 2012
(5) SCC 511: 2012 (4) SCR 56 - referred to.
Sopan Sukhdeo Sable and Ors. v. Assistant Charity
Commissioner and Ors. 2004 (3) SCC 137: 2004 (1) SCR
1004; Jyoti Basu and Ors. Vs. Debi Ghosal and Ors. 1982 C
(1) SCC 691: 1982 (3) SCR 318; Mangani Lal Manda/ Vs.
Bishnu Deo Bhandari 2012 (3) SCC 314: 2012 (1) SCR 527
and Azhar Hussain Vs. Rajiv Gandhi AIR 1986 SC 1253:
1986 SCR 782 - cited.
D
Case Law Reference:
2004 (1) SCR 1004 cited Para 14
1982 (3) SCR 318 cited Paras 16, 24
2012 (1) SCR 527 cited Para 18 E
2012 (4) SCR 56 referred to Paras 19, 26, 30
1986 SCR 782 cited Paras 20, 24
1998 (1) SCR 601 relied on Paras 27, 28 F
1964 SCR 573 followed Para 30
1999 (1) SCR 198 relied on Para 30
2012 (6) SCR 851 relied on Para 30
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3840 of 2013.
From the Judgment & Order dated 05.12.2012 of the High
Court of Madhya Pradesh bench at Indore in IA No. 7248 of H
2012 in Election Petition No. 11 of 2009.
850 SUPREME COURT REPORJS [2013) 5 S.C.R.
A Ranjit Kumar, Pinki Anand, Navin Prakash, Sanjeev
Nasiar, Ashish G.Chaturvedi, Natasha Sehrawat, Subramanium
Prasad for the Appellant.
P.P. Rao, Arvind V. Savant, Varun K. Chopra, Rahul
B Kaushik, B.K. Satija, S.S. Khanduja, Yash Pal Dhingra, Mishra
Saurabh for the Respondents.
The Judgment of the Court was delivered by
H.L. GOKHALE J. 1. Leave Granted.
c 2. This petition for Special Leave seeks to challenge the
order dated 5.12.2012 passed by a learned Single Judge of
the Madhya Pradesh High Court (Bench at Indore) allowing the
application filed by the first respondent under Order 6 Rule 16
of Code of Civil Procedure (CPC) being I.A No. 7248/2012 for
D striking off certain pleadings from the Recrimination Petition
filed by the Appellant herein.
Facts leading to this petition are this wise:-
E 3. The General Elections to the Madhya Pradesh
Legislative Assembly were notified by the Election Commission
of India on 14.10.2008 and were held on 27.11.2008. The
appellant herein contested the election from 201-Dhar (General)
Constituency. She was declared elected on 9.12.2008
F defeating the first respondent by one vote.
4. The respondent No. 1 filed Election Petition bearing No.
11 of 2009 before the High Court of Madhya Pradesh (Bench
at Indore), challenging the election of the appellant on the
ground of improper reception, refusal and rejection of votes
G under the provisions of Representation of Peoples Act, 1951
(R.P. Act. 1951 in short). This was principally on the basis that
the counting of the postal ballot was done in violation of Rule
63 of the Conduct of Elections Rules, 1961, to the benefit of
the appellant.
H
NEENA VIKRAM VERMA v. BALMUKUND SINGH 851
GAUTAM [H.L. GOKHALE, J.]
5. The appellant in tum filed a Recrimination Petition under A
Section 97 of the R.P. Act, 1951 within the time provided
therefor, principally raising two grounds:
(a} paragraph 3 of the Recrimination Petition claimed that
there were several criminal cases pending against the 1st
respondent which he had not disclosed, and therefore his
8
nomination was void and he cannot be declared to be elected,
(b} paragraph 4 thereof contended that the first respondent
had indulged into various corrupt practices.
c
6. Respondent No.1 thereafter filed an application under
Order 7 Rule 11 of CPC being I.A No. 8166 of 2009 for
rejection of the Recrimination Petition on the ground that it did
not disclose any cause of action. This was apart from filing the
reply on merits to the Recrimination Petition. The appellant
0
opposed I.A No. 8166 of 2009 by filing her reply. The High Court
by its order dated 14.7.2011 allowed the said application,
consequently leading to the dismissal of the Recrimination
· Petition filed by the appellant.
7. The appellant challenged this order by filing SLP (C} No. E
28031of2011 which was converted into Civil appeal No. 1554
of 2012. By a consent order dated 2.2.2012 passed by this
Court on that appeal, the said order dated 14.7.2011 passed
by the High Court was set aside, and the Recrimination Petition
was restored to the file of the Election Petition No. 11 of 2009. F
8. It so transpired that subsequently the High Court by its
judgment and order dated 19.10.2012 allowed the Election
Petition No. 11 of 2009, and set aside the election of the
petitioner herein. The High Court, therefore directed the G
Recrimination Petition to be heard.
9. We may note at this stage that the appellant has filed a
statutory appeal against the judgment and order in the Election
Petition No.11 of 2009 under section 116 A of the R.P. Act,
H
852 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 1951, which has been admitted by this Court on 8.11.2012. By
virtue of an interim order passed therein, this Court has
permitted the appellant to attend. the Assembly, but without any
right to cast vote and to receive any emoluments.
10. In the meanwhile, respondent No. 1 filed another
8 application being I.A No. 7248 of 2012 on 1.11.2012 under
Order 6 Rule 16 for striking off the pleadings in paragraph 3
and 4 of the Recrimination Petition. Appellant opposed this
application by filing a reply. This application has been allowed
by the impugned order which has led to the present Civil
C Appeal.
11. We may mention one more development. The
appellant has filed an application under Order 6 Rule 17 to
incorporate some material facts in her Recrimination Petition.
o That has been rejected by the High Court by its order dated
23.11.2012, and the appellant has filed a separate SLP against
that order.
Submissions on behalf of the appellant:-
E 12. Mr. Ranjit Kumar and Ms. Pinki Anand, senior counsel
appearing for the appellant took us through the application
under Order 6 Rule 16 filed by the respondent No.1, and
compared it with the earlier application filed by him under Order
7 Rule 11. It was submitted by them that the contents of the
F present application under Order 6 Rule 16 were identical to
those in the earlier application filed under Order 7 Rule 11.
Thus, it was pointed out that paragraphs 1 to 9 of the
application under Order 6 Rule 16 were identical to paragraphs
8 (d), 8 (e), 8(f), 8 (h), 8(i), 8 0), 8 (k), 8(1) and 8 (m) respectively
G of the earlier application. These paragraphs of the two
applications specifically dealt with paragraphs 3 (A) to 3 (G)
and paragraphs 4 (A) to 4 (D) of the Recrimination Petition.
Thus, if this application under Order 6 Rule 16 is allowed, all
the pleadings from paragraph 3 and 4 of the Recrimination
H
NEENA VIKRAM VERMA v. BALMUKUND SINGH 853
GAUTAM [H.L. GOKHALE, J.]
Petition will be struck off. These paras contained the main A
grounds of the Recrimination Petition, and if these were struck
off nothing will remain in the Recrimination Petition. Mr. Ranjit
Kurnar, submitted that this new application is nothing but an
attempt to reagitate under a new garb the earlier application
under Order 7 Rule 11 which had been rejected. He pointed B
out that the High Court's order on the application under Order
7 Rule 11 dismissing the Recrimination Petition had been set-
aside by this Court by consent, and the Recrimination Petition
was set down for hearing. Paragraph 3 and 4 of the Order of
this Court dated 2.2.2012 read as follows:- c
•
3. In course of the hearing in light of the discussion that
took place, teamed senior counsel for the parties agreed
for the following order: D
(i)The order dated July 14, 2011 passed by the High
Court of Madhya Pradesh, Bench at Indore, is set aside.
(ii) The Recrimination Petition filed by the present E
appellant (returned candidate) under Section 97 of the
Representation of the People Act, 1951 is restored to the
file of the Election Petition No. 11 of 2009.
(iii) The High Court is requested to hear and conclude
the trial with regard to the challenge to the election of the F
returned candidate in Election Petition No. 11 of 2009-
Balmukund Singh Gautam Vs. Smt. Neena Vikram
Venna and others - as early as may be possible and in
no case later than May 31, 2012.
G
iv) In case the High Court declares the election of the
returned candidate to be void, the High Court shall then
proceed with the consideration of the Recrimination
Petition and conclude the enquiry in respect therof
expeditiously and positively by August 31, 2012.
H
854 SUPREME COURT REPORTS [2013) 5 S.C.R.
A 4. The parties shall fully co-operate with the High Court
in expeditious conclusion of the trial and shall not seek
unnecessary adjournments.
B
13. Mr. Ranjit Kumar, therefore submitted that since the
Recrimination Petition has been restored to the file by an order
of this Court, it was expected that the submissions therein had
to be gone into and decided. This Hon'ble Court had passed
its order on 2.2.2012 in terms of the agreement arrived at
C between the parties. The application under Order 6 Rule 16
was filed on 1.11.2012 which was 9 months after the said
consent order. This was also in the teeth of the direction by this
Court to dispose of the Recrimination Petition expeditiously,
and in fact all parties had specifically agreed before this Court
D to fully cooperate with the High Court in expeditious disposal.
Submissions on behalf of the resp~>ndent No.1 :-
14. Mr. P.P. Rao and Mr. A.V. Savant, learned senior
counsel appeared for the respondent No. 1. Mr. Rao submitted
E that the nature of an application under Order 6 Rule 16 was
different from the one under Order 7 Rule 11. Order 6 Rule 16
was to strike out those pleadings which were unnecessary,
scandalous, frivolous or vexatious. As against that, Order 7 Rule
11 dealt with a situation where a plaint did not disclose any
F cause of action. Mr. Rao submitted that the Supreme Court
Order dated 2.2.2012 did not bar filing of the application under
Order 6 Rule 16 CPC for striking off unnecessary or
scandalous pleadings. In support of his submission that the
scope of the two provisions was different, he relied upon
G paragraph 18 of the judgment of this Court in Sopan Sukhdeo
Sable and Ors. Vs.· Assistant Charity Commissioner and Ors.
reported in 2004 (3) sec 137 which is to the following effect:-
" 18. As noted supra, Order 7 Rule 11 does not
H
NEENA VIKRAM VERMA v. BALMUKUND SINGH 855
GAUTAM [H.L. GOKHALE, J.]
justify rejection of any particular portion of the plaint. A
Order 6 Rule 16 of the Code is relevant in this regard. It
deals with "striking out pleadings". It has three clauses
permitting the court at any stage of the proceeding to
strike out or amend any matter in any pleading i.e. '(a)
which may be unnecessary, scandalous, frivolous or B
vexatious, or, (b) which may tend to prejudice, embarrass
or delay the fair trial of the suit, or, (c) which is otherwise
an abuse of the process of the court."
15. Paragraph 3 of the Recrimination Petition was c
concerning the alleged criminal activities on the part of the
respondent No.1. Appellant has contended in this paragraph
that the respondent No.1 had not disclosed that he was
accused of various offences, and this non-disclosure was
contrary to the requirement under Section 33A of the R. P. Act,
0
1951. The apellant has therefore, submitted that if the
respondent No.1 was to be elected, the election would be void.
Mr. Rao, however, pointed out that this section requires the
candidate to furnish the information as to whether he is accused
of any offence which is punishable with imprisonment for two
years or more in a pending case, and in which a charge has E
been framed by a competent court. The particulars given by the
appellant did not indicate that any charge had been framed
against the respondent in any of those cases.
16. With respect to the allegations of criminality it was F
submitted that the election petition cannot be entertained,
merely on the basis of general allegations of crimin~lity unless
a specific case as required by Section 33A was made out. The
following observations of this Court from paragraph 8 in Jyoti
Basu and Ors. Vs. Debi Ghosal and Ors. reported in 1982 (1) G
sec 691 were pressed into service in that behalf:-
"8. A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a
fundamental right nor a common law right. It is pure a'nd
H
856 SUPREME COURT REPORTS [2013) 5 S.C.R.
A simple, a statutory right. So is the right to be elected. So
is the right to dispute an election. Outside of statute, there
is no right to elect, no right to be elected and no right to
dispute an election. Statutory creations they are, and
therefore, subject to §tatutory limitation. An election
B petition is not an action at common law, nor in equity. It
is a statutory proceeding to which neither the common
law nor the principles of equity apply but only those rules
which the statute makes and applies. It is a special
jurisdiction, and a special jurisdiction has always to be
c exercised in accordance with the statute creating it.
Concepts familiar to common law and equity must
remain strangers to election law unless statutorily
embodied. A court has no right to resort to them on
considerations of alleged policy because policy in such
matters as those, relating to the trial of election disputes,
D
is what the statute lays down ........ n
17. With respect to paragraph 4 (and its sub-paragraphs)
of the Recrimination Petition, Mr. Rao, submitted that this
paragraph was concerning the alleged corrupt practices on the
E part of the respondent No.1. Corrupt practice is a ground
available to set-aside the election under Section 100 (1) (d) (ii)
of the R.P. Act, 1951. The Recrimination Petition is like an
Election Petition, and Section 83 (1) (c) of the R.P. Act, 1951
requires that the Election Petition shall be signed by the
F petitioner and verified in the manner laid down in the CPC for
the verification of pleadings. Over and above that, the proviso
to Section 83 (1) (c) lays down that where the petitioner alleges
any corrupt practice, the petition has to be accompanied by an
affidavit in the prescribed form in support of the allegation of
G such corrupt practice and the particulars thereof. This affidavit
has to be as per form 25, as laid down in Rule 94A of the
Conduct of Election Rules, 1961. Mr. Rao, pointed out that in
the present matter the affidavit was not made as per these
requirements. He further pointed out that this submission had
H
NEENA VIKRAM VERMA v. BALMUKUND SINGH 857
GAUTAM [H.L. GOKHALE, J.]
been specifically raised in the affidavit of the respondent No. A
1, and the same had not been controverted by the petitioner.
18. It was then submitted that for seeking a declaration that
the election is void on the ground of corrupt practice under
Section 100 (1) (d} (ii} of the Act, it was necessary to make
8
out a prima facie case as required by Section 100 (1) (d} that
the result of the election, in so far as it concerns a returned
candidate, has been materially affected by the corrupt practice.
That has not been shown in the present matter. Paragraph 11
of the judgment of this Court in Mangani Lal Manda/ Vs. C
Bishnu Deo Bhandari reported in 2012 (3) SCC 314 which
is on sub-clause (iv} of Section 100 (1) (d} was pressed into
service in this behalf. It reads as follows:-
"11. A mere non-compliance or breach of the
Constitution or the statutory pr.a.visions noticed above, by D
itself, does not result in invalidating the election of a
returned candidate under Section 100(1)(d)(iv). The sine
qua non for declaring the election of a returned candidate
to be void on the ground under clause (iv) of Section
100(1)(d) is further proof of the fact that such breach or E
non-observance has resulted in materially affecting the
result of the returned candidate. In other words, the
violation or breach or non-observation or non-
compliance with the provisions of the Constitution or the
1951 Act or the rules or the orders made thereunder, by F
itself, does not render the election of a returned
candidate void Section 100(1)(d)(iv). For the election
petitioner to succeed on such ground viz. Section
100(1)(d)(iv), he has not only to plead and prove the
ground but also that the result of the election insofar as - G
it concerned the returned candidate has been materially
affected. The view that we have taken finds support from
the three decisions of this Court in: (1) Jabar Singh v.
Genda Lal [AIR 1964 SC 1200]; (2) L.R.
Shivaramagowda v. T.M. Chandrashekar [1999 (1) SCC
H
858 SUPREME COURT REPORTS [2013) 5 S.C.R.
A 666]; and (3) Uma Bal/av Rath v. Maheshwar Mohanty
[1999 (3J sec 357]".
19. The proposition that the verification of the petition or
Recrimination Petition has to be in the prescribed form or else
the matter cannot be gone into, was supported on the basis of
8
the decision of a bench of two Judges of this Court in P.A.
Mohammed Riyas Vs. M.K. Raghavan & Ors. reported in
2012 (5) SCC 511. Paragraph 47 of this judgment reads as
follows:-
C "47. In our view, the objections taken by Mr P.P.
Rao must succeed, since in the absence of proper
verification as contemplated in Section 83, it cannot be
said that the cause of action was complete. The
consequences of Section 86 of the 1951 Act come into
D play immediately in view of sub-section (1) which relates
to trial of election petitions and provides 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 of the 1951 Act. Although Section 83 has
E not been mentioned in sub-section (1) of Section 86, in
the absence of proper verification, it must be held that
the provisions of Section 81 had also not been fulfilled
and the cause of action for the election petition remained
incomplete. The petitioner had the opportunity of curing
F the defect, but it chose not to do so."
20. Last but not the least, with respect to the argument that
the decision on these objections can wait till the end of the trial,
the following observations in paragraph 12 in Azhar Hussain
Vs. Rajiv Gandhi reported in AIR 1986 SC 1253 were relied
G upon which read as follows:-
12. Learned counsel for the petitioner has next
argued that in any event the powers to reject an election
petition summarily under the provisions of the Code of
H
NEENA VIKRAM VERMA v. BALMUKUND SINGH 859
GAUTAM [H.L. GOKHALE, J.]
Civil Procedure should not be exercised at the threshold. A
In substance, the argument is that the court must proceed
with the trial, record the evidence, and only after the tn·a1
of the election petition is concluded that the powers under
the Code of Civil Procedure for dealing appropriately with
the defective petition which does not disclose cause of B
action should be exercised. With respect to the learned
counsel, it is an argument which it is difficult to
comprehend. The whole purpose of conferment of such
powers is to ensure that a litigation which is meaningless
and bound to prove abortive should not be permitted to c
occupy the time of the court and exercise the mind of the
respondent. The sword of Damocles need not be kept
hanging over his head unnecessarily without point or
purpose. ........... n
Rejoinder on behalf of the petitioner:- D
21. The learned senior counsel Mr. Ranjit Kumar, pointed
out in the Rejoinder that Section 83(1) of the R.P. Act, 1951,
required that the Election Petition (and for that matter the
Recrimination Petition), shall contain a concise statement of the E
material facts which are relied upon. In the instant case the
grounds raised in the Recrimination Petition were two-fold.
Firstly, the criminality of the respondent, and secondly the
corrupt practices in which the respondent had indulged. As far
as the aspect of criminality is concerned, it was pointed that F
·the Recrimination Petition is required to be filed within 14 days
from the date of commencement of the trial as required under
the proviso of Section 97 of the RP. Act, 1951. Even so, within
that period the petitioner has placed on record the material
facts in paragraph 3 of the Recrimination Petition. In paragraph G
3(8) thereof the particulars of the criminal cases registered
against respondent were given in a table. The table contains
the following details:-
H
860 SUPREME COURT REPORTS [2013] 5 S.C.R.
A SL. Police Section Name of Challan No.
No Station/ Accused
Case No.
1. Sadalpur/ 147, 148, Balmukund 48/2-6-1985
76/ 22-5-85 149, 323, s/o Ramdeo-
B 451 IPC -Singh·
Gautam
2. Pithampur/ 341, 294, Balmukund 318/27-9-89
359126.9.89 323 IPC s/o Ramdeo-
c -singh
Gautam
alongwith one
other accused
3. Pithampur/ 294, 323, Balmukund 105/5-6-90
D 129/23-5-90 506 IPC s/o Ramdeo-
singh Gautam
4. Pithampur/ 34 Balmukund 104/29-4-96
109/24-3-96 Excise s/o Ramdeo-
Act -singh
E Gautam
alongwith two
other accused
5. Pithampur/ 307, 147, Balmukund s/o 107/18-4-98
406/24-12- 148, 149 Ramdeo-
F
97 of IPC -singh Gautam
alongwith five
other accused
6. Pithampur/ 365/34 Balmukund s/o 1/18-3-2001
G 70/12-3-01 IPC Ramdeo-
-singh Gautam
alongwith one
other accused
7. Pithampur/ 147/341 Balmukund s/o 101/9-5-
H 27/29-1-2007 IPC Ramdeo- 2007
NEENA VIKRAM VERMA v. BALMUKUND SINGH 861
GAUTAM [H.L. GOKHALE, J.]
-singh Gautam A
alognwith one
other accused
8. Pithampur/ 34 Balmukund s/o 104/29-4-96
106/24-3-96 Excise Ramdeosingh
Act. Gautam B
alongwith two
other accused
9. Sadalpur/ 34,36 Balmukund s/o 92127-6-96
3212-3-96 Excise Ramdeosingh
Act. Gautam c
10. Badnawar/ 34,49· Balmukund s/o 282131-10-
258/21-8-96 Excise Ramdeosingh 96
Act. Gautam
11. Badnawar/ 34,49 Balmukund s/o 283/31-10-
D
259/21-8-96 Excise Ramdeosingh 96
Act. Gautam
12. Indore Police 34 (1) Balmukund s/o 2001
Criminal (2) Excise Ramdeosingh
Case Act. Gautam
No. 1241/01 E
13. Sadalpur/ 379 IPC, Balmukund s/o 118/1-10-
12212-8- 247(7) Ramdeosingh 1986
. 1985 Land Gautam
Revenue
Court
F
14. Sadalpur/ 147, 148, Balmukund s/o 124/26-10-
199/13-10-86 452,506 Ramdeosingh 1986
IPC Gautam
alongwith
.~ seven other
G
accused
22. In paragraph 3(E), it was placed on record that the
respondent was declared as an absconded person in a criminal
proceeding by C.J.M Dhar in a Criminal Case No. 968/96. In H
862 SUPREME COURT REPORTS [2013] 5 S.C.R.
A paragraph 3(F) it was pointed out that the petitioner's name
was registered as a listed Gunda in the year 2004, and the
letter dated 12.1.2004 issued by S.P. Dhar to the Police
Station Pithampur in that behalf was enclosed. It was further
pointed out that on 22.11.2012, the petitioner had served a
B notice on the respondent under Order 12 Rule 4 of CPC to
admit the facts. In the said notice, it was specifically stated that
the following criminal cases are registered against him, in which
charges have been framed, and the same are punishable with
more than 2 years imprisonment. This table reads as follows:-
-
c SL. Crime No. Section Name of Police
No Accused Station
1. 76/22.5.85 147, 148, Balmukund S/o Sadalpur
149, 323, Ramdeosingh
451, IPC Gautam
D
2. 359/29.9.89 341,394, Balmukund s/o Pithampur
323 IPC Ramdeosingh
Gautam
3. 129/23.5.90 293, 323, Balmukund S/o Pithampur
E 506 IPC Ramdeosingh
Gautam .
4. 109/24.3.96 34 Excise Balmukund S/o Pithampur
Act Ramdeosingh
Gautam
F 5. 406/24.12.97 307, 147, Balmukund S/o Pithampur
148, IPC Ramdeosingh
Gautam
6. 70/12.3.2001 365,34 Balmukund S/o Pithampur
IPC Ramdeosingh
G Gautam
7. 27/29.1.07 341, 147 Balmukund S/o Pithampur
IPC Ramdeosingh
Gautam
H
' NEENA VIKRAM VERMA v. BALMUKUND SINGH 863
GAUTAM [H.L. GOKHALE, J.]
A
8. 106/24.3.96 34 Excise Balmukund S/o Pithampur
Act Ramdeosingh
Gautam
9. 32/2.3.96 34,36 Balmukund S/o Sadalpur
Excise Ramdeosingh B
Act Gautam
10. 258/21.8.96 34,49 Balmukund S/o Badnawar
Excise Ramdeosingh
Act Gautam
11. 259/21.8.96 34,49 Balmukund S/o Badnawar c
Excise Ramdeosingh
Act Gautam
12. Indore Police 31 (1) (2) Balmukund S/o Indore Police
Criminal Excise Ramdeosingh Station
Case No. Act Gautam D
1241/01
13. 35817.10.05 294, 323, Balmukund S/o Pithampur
506 IPC Ramdeosingh
Gautam
E
14. 122/2.8.85 379 IPC Balmukund S/o Sadalpur
and 247 Ramdeosingh
(7) MPLR Gautam
Code
15. 199/13.10.86 147, 148, Balmukund S/o Sadalpur F
452,506 Ramdeosingh
IPC Gautam
16. 358/7.10.05 294, 323, Balmukund S/o Pithampur
506 IPC Ramdeosingh Distt. Dhar
Gautam G
17. 38/03/ Excise Balmukund S/o Dhanpur
Act Ramdeosingh Distt.
Gujarat Gautam Dahopd
Declared Gujarat
Absconded H
864 SUPREME COURT REPORTS [2013] 5 S.C.R.
A
18. 358/ 294, 323, Balmukund S/o Pithampur
7.10.05 506, IPC Ramdeosingh Distt. Dhar
Gautam
19. 38/03/ Excise Balmukund S/o Dhanpur
8 Act Ramdeosingh Distt. Dahod
Gujarat Gautam Gujarat
Declared
Absconded
20. 239/03 19, 1/54, Balmukund S/o Bhilwara
c 19/54-65, Ramdeosingh Rajasthan
19/54(a) Gautam
Excise Declared
Act Absconded
Rajasthan
D
21. 19/10 420, 181, Balmukund S/o Plice Raoji
200 of Ramdeosingh Bazar,
IPC Gautam Indore
23. It was then pointed out that on 23.11.2013 the
E respondent sought time before the learned Single Judge to file
reply to this notice to admit facts. On 4.12.2013, the learned
Judge recorded that even though the respondent had stated on
23.11.2012 that he wished to file a reply, now he had decided
to wait for the outcome of the application under Order 6 Rule
F 16 of CPC and, if required, to file a reply thereafter. Mr. Ranjit
Kumar pointed out that this kind of reply will mean that the
documents are deemed to be admitted, in view of the provision
of Order 12 Rule 2-A of CPC. It was therefore, submitted that
the High Court could not have held that the petitioner had not
G given the particulars in support of the allegations of criminality,
as required by Section 33A of the R.P. Act, 1951.
24. The second limb of the argument of Mr. Rao was that
for raising the ground of corrupt practice, full particulars of the
H
NEENA VIKRAM VERMA v. BALMUKUND SINGH 865
GAUTAM [H.L. GOKHALE, J.]
corrupt practice are required to be given under Section 83 (1) A
(b) of the R.P. Act, 1951. Mr. Ranjit Kumar, pointed out that
Section 83 (1) (b) requires one to set forth full particulars of any
corrupt practice, including as full a statement as possible of the
names of the parties alleged to have committed such corrupt
practice and the date and place of commission of each such B
practice. It was therefore pointed out that in paragraph 4(A) of
the Recrimination Petition it was specifically pleaded that on
11.11.2008, at the instance ofthe respondent his younger
brother Rakesh Singh had threatened the candidate of BSP
namely Shri G.F>. Saket, that if his nomination form was not C
withdrawn he shall have to face dire consequences. It was
further pointed out that similar type of threat was given to the
election agent of the said candidate namely Shri Munnalal
Diwan. A letter dated 11.11.2008 sent to the Police Thana
Pitampur was also enclosed with the Recrimination Petition. In D
paragraph 4(C) it was specifically pointed out that respondent
was a liquor contractor, and during the election period several
cases were registered against him and his associates/servants
details of which were enclosed in an Annexure. A news report
in Dainik Agniban dated 5.11.2008 was also enclosed, which E
stated that 700 boxes of illegal beer were seized by the
Alirajpur Police, and in that case respondent was involved. It
was alleged that he was distributing the beer bottles in the
constituency, and it could amount to bribery and a corrupt
practice under Section 123 of the R.P. Act, 1951. In para 4 (D) F
it was alleged that his agents /associates were found to indulge
in digging bore-well without proper permission in the
constituency, which would amount to a corrupt practice and
bribery, and a copy of the information given by T.I. Police
Station dated 14.1.2009 was enclosed. Mr. Ranjit Kumar G
pointed out that Section 83 (1) (b) requires one to give full
particulars of the corrupt practices as possible, and that had
been done. In the facts of the present case, the propositions
from the judgments in the cases of Jyoti Basu, Mangani Lal
H
866 SUPREME COURT REPORTS [2013] 5 S.C.R.
A Manda! and Azhar Hussain (all supra) relied on behalf of the
respondent have no application.
25. The other submission on behalf of the respondent No.1
was that the petitioner ought to prima-facie show that because
B of the corrupt practice his election was materially affected. In
the instant case the appellant had won the election by just one
vote, and obviously such corrupt practice would tilt the balance
one way or the other and materially affect the result of the
election.
c 26. The last submission of Mr. Rao was that when corrupt
practices are alleged, an affidavit is to be sworn in the
prescribed form, which is Form No. 25, and reliance was
placed on paragraph 47 of the judgment of this Court in P.A.
Mohammed Riyas (supra), which stated that in the absence
D of proper verification, the High Court has to dismiss the Election
Petition. Mr. Ranjit Kumar, however, pointed out from paragraph
47 quoted above, that the petitioner in that matter had the
opportunity of curing the defects, but he had chosen not to do
E so, and that made the difference. He pointed out that the
absence of this affidavit is not laid down as a ground for
dismissal of the Election Petition under Section 86 of the Act,
and that has been the consistent view taken by this Court in
various judgments.
F 27. Last but not the least, the principal submission of Mr.
Ranjit Kumar was that at the time when the Recrimination
Petition was restored by consent, nothing prevented the
respondent from pointing out to this Court that the pleadings in
the Recrimination Petition were in any way defective,
G unnecessary or scandalous. The respondent agreed to the
Recrimination Petition being restored, and is now trying to
reagitate the very cause under Order 6 Rule 16 of CPC which
was undoubtedly impermissible as held by this Court in K.K.
H
NEENA VIKRAM VERMA v. BALMUKUND SINGH 867
GAUTAM [H.L. GOKHALE, J.]
Modi Vs. K.N. Modi & Ors. reported in 1998 (3) SCC 573. He A
submitted that this would amount to abuse of process of court.
Consideration of the submissions:-
28. We have noted the submissions of both the counsel.
B
As can be seen, the application under Order 7 Rule 11 is
required to be decided on the face of the plaint or the petition,
whether any cause of action is made out or not. Once it is
accepted by a party by consent that a particular petition (in the
instant case the Recrimination Petition) is to be heard by the C
Court, by giving up the objection under Order 7 Rule 11, the
very party cannot be subsequently permitted to seek the striking
off the pleadings containing the cause of action under the garb
that the pleadings containing the cause of action are
unnecessary, vexatious or scandalous. One is expected to take D
all necessary pleas at the same time. The party concerned is
expected to. raise such a contention at the time of passing of
the Court order (consent order in the present case) or seek the
liberty to raise it at a later point of time that some of the
pleadings are unnecessary or vexatious or scandalous. No E
Court is expected to permit any matter to be raised which might
and ought to have been made ground of defence or attack,
once the same is relinquished by the party concerned. The
learned Single Judge ought to have noted this basic principle
of any litigation. Reliance on the judgment in the case of K.K.
F
Modi (supra) is quite apt in this behalf.
29. That apart, even when we look to the objections raised
in the present matter under Order 6 Rule 16, the same is based
on the requirement of Section 83 of the R.P. Act, 1951 that the
applicant is required to place material facts before the Court. G
As far as the allegation of criminality is concerned, in our view
sufficient material facts were placed on record alongwith the
Recrimination Petition. Subsequently, a notice to admit facts
was given, wherein, particulars of specific cases were given,
H
868 SUPREME COURT REPORTS (2013) 5 S.C.R.
A wherein, the charge-sheets were filed for the charges which
would result into imprisonment of 2 years or more, as required
by section 33A of the R.P. Act, 1951. The respondent chose
not to reply to this notice. In fact the learned Judge ought to have
drawn an adverse inference, but he failed in doing so.As far
B as the ground of corrupt practice is concerned, as can be seen
from the pleadings quoted above, on that aspect also material
facts were placed on record as rightly pointed out by Mr. Ranjit
Kumar.
c 30. With reference to the observations in paragraph 47 of
the judgment in the case of P.A. Mohammed Riyas (supra),
we may note that way back in the case of Murarka Radhey
Shyam Ram Kumar Vs. Roop Singh Rathore and Anr.
reported in AIR 1964 SC 1545 a Constitution Bench of this
D Court has in terms held that a defect in the verification in the
matter of Election Petition can be removed in accordance with
the principles of CPC, and that it is not fatal to the Election
Petition. This decision has been referred and followed by this
Court time and again. Thus in H.D. Revanna Vs. G.
E Puttaswamy Gowda and Ors. reported in 1999 (2) SCC 217,
this Court observed as follows in paragraph 15:-
"15. In Murarka Radhey Shyam Ram Kumar V. Roop
Singh Rathore a Constitution Bench has held in
unmistakable terms that a defect in the verification of an
F
election petition as required by Section 83(1)(c) of the Act
was not fatal to the maintainability of the petition and that
a defect in the affidavit was not a sufficient ground for
dismissal of the petition. Another Constitution Bench held
in Ch Subbarao V. Member, Election Tribunal
G
Hyderabad that even with regard to Section 81 (3),
substantial compliance with the requirement thereof was
sufficient and only in cases of total or complete non-
compliance with the provisions of Section 81 (3), it could
'H
NEENA VIKRAM VERMA v. BALMUKUND SINGH 869
GAUTAM [H.L. GOKHALE, J.]
be said that the election petition was not one presented A
in accordance with the provisions of that part of the Act."
This Court has in Ponnala Lakshmaiah Vs. Kommuri Pratap
Reddy and Ors. reported in 2012 (7) sec 788, reiterated the
law in Murarka Radhey Shyam (supra). Paragraph 26 of this B
judgment reads as follows:-
"26. We may also refer to a Constitution Bench decision
of this Court in Murarka Radhey Shyam Ram Kumar v.
Roop Singh Rathore where this Court held that a C
defective affidavit is not a sufficient ground for summary
dismissal of an election petition as the provisions of
Section 83 of the Act are not mandatorily to be complied
with nor did the same make a petition invalid as an
affidavit can be allowed to be filed at a later' s/age or so.
0
Relying upon the decision of a three-Judge Bench. of this
Court, in T. Phungzathang v. Hangkhanlian {2001 (8)
SCC 358] this Court held that non-compliance with
Section 83 is not a ground for dismissal of an election
petition under Section 86 and the defect, if any, is curable E
as has been held by a three-Judge Bench of this Court
in Manohar Joshi v. Nitin Bhaurao Patil {1996 (1) SCC
169] and H.D. Revanna v. G. Puttaswamy Gowda [1999
(2) sc9 217]. n
31. In v_iew of what is rt~ted above, the order passed by F
the learned Single Judge in;allowing the application of the first
respondent under Order 6 Rule 16 of CPC was clearly
untenable and bad in law. The learned Single Judge of the High
Court could not have entertained the application under Order
6 Rule 16 when this Court had restored the Recrimination G
Petition to the file of that Court by consent in order to decide it
expeditiously. The learned Judge has erred in holding that the
pleadings in paragraph 3 and 4 of the Recrimination Petition
were vague, vexatious, non-specific and without any material
H
870 SUPREME COURT REPORTS [2013] 5 S.C.R.
A facts. The appeal is therefore allowed. The impugned order is
set-aside. The learned Judge of the High Court will now
proceed to decide the Recrimination Petition as filed by the
petitioner expeditiously. The parties will bear their own cost of
litigation.
B
B.B.B. Appeal allowed.
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