1999 JTR(SC) 289
1999 AIR(SC) 1128 ; 1999 AIR(SCW) 784 ; 1999 2 AllCJ 1119 ; 1999 2 AllMR(SC) 430 ; 1999 3 CivCC 171 ; 1999 1 CTC 715 ; 1999 2 JT 94 ; 1999 2 RCR(Civ) 272 ; 1999 1 Scale 693 ; 1999 3 SCC 267 ; 1999 1 SCR 983 ; 1999 KHC 1051 ; 1999 2 KLT(Online) 931 ; 1999 2 Supreme 454
1999(2) Supreme 454
Supreme Court of India
(From Madras High Court)
Dr. A.S. Anand, CJI., M. Srinivasan & R.P. Sethi, JJ.
D. Ramachandran -Appellant
versus
R.V. Janakiraman & Ors. -Respondents
Civil Appeal No. 5354 of 1997
Decided on 11-3-1999
Counsel for the Parties :
For the Appellant : A.K. Ganguli, Sr. Advocate, Krishnamurthi Swami and A. Raghuath, Advocates.
For the Respondents : V.T. Gopalan, R. Mohan, Sr. Advocates, S. Srinivasan, Mahabir Singh, V. Sudeer, M.A. Chhinnaswamy, V.G. Pragasam, Advocates.
Important Points
1. In all cases of preliminary objection, the test is to see whether any of the relief prayed for could be granted if averments made in plaint or petition are proved to be true. The averments should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such without probing into facts on basis of controversy raised in the counter.
2. There is no question of striking out any portion of pleadings under Order VII, Rule 11 of CPC.
3. Under Order VII Rule 11(a) CPC, the Court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the rule, there cannot be a partial rejection of the plaint or petition.
4. Where the respondent to election petitioner had filed detailed counter denying each and every allegation which did not contain even a whisper that allegation in election petition was vague or scandalous, unnecessary, vexatious or frivolous or vague or did not make out any cause of action, striking out part of pleadings on the basis of subsequent petition and consequent rejection of the election petition in limine without trial was not justified.
Act
Referred
:CIVIL PROCEDURE CODE : O.15 R.1, O.6 R.16, O.7 R.11(a), O.6 R.2, O.7 R.11
REPRESENTATION OF THE PEOPLE ACT : S.83, S.85, S.81
(A) The appeal pertains to an election petition challenging the result of legislative assembly elections under the Representation of the People Act 1951, read with the Civil Procedure Code. Sections 81, 83, and 85 of the Act delineate corrupt practices, their consequences, and the procedure for petitioning against elections, while Order VI Rule 16 and Order VII Rule 11(a) of the Civil Procedure Code govern the striking out of pleadings and rejection of petitions at the threshold on grounds of non-disclosure of a cause of action. The High Court erred in treating the election petition as a regular civil suit and in applying civil pleading standards to assess the merits of the allegations before trial, instead of evaluating whether the petition discloses a triable issue assuming the allegations to be true.
(B) The core legal principles are that an election petition must be tested on whether the allegations, if accepted as true, disclose a cause of action capable of resulting in the election being voided; the Court cannot dissect the petition or probe the factual veracity at the preliminary stage; and the distinction between material facts and full particulars is crucial, with the former being necessary to constitute a cause of action. The Court cannot rely on counter-affidavits or arguments framed for the first time in reply to strike out the petition in limine.
Facts of the case:
The first respondent was declared elected from a constituency with a significant margin. The appellant alleged that the first respondent was not a resident of the constituency, indulged in corrupt practices including character assassination, excess campaign expenditure, misuse of government servants, and manipulation of the voter list showing votes by persons who were not present or were dead. The first respondent filed a counter-affidavit denying all allegations and contended that the petition disclosed no cause of action. The High Court treated the counter-affidavit as a valid basis to examine the truth of the allegations and dismissed the petition at the threshold.
Findings of Court:
The High Court failed to appreciate that in a preliminary objection the averments must be taken as true and that the election petition as a whole disclosed a cause of action. The Court also misapplied Order VII Rule 11 by considering the counter-statements and did not correctly distinguish between material facts and full particulars. Consequently, the rejection of the petition in limine was unsustainable.
Issues:
(1) Whether an election petition which discloses a cause of action can be rejected in limine on the basis of a counter-affidavit. (2) Whether the Court can dissect the petition and examine the sufficiency of individual allegations at the preliminary stage. (3) Whether the distinction between material facts and full particulars was correctly appreciated by the trial court.
Ratio Decidendi:
An election petition must be presumed to disclose a cause of action if the allegations, when accepted as true, prima facie show that the election could be invalidated. The High Court cannot rely on the counter-affidavit or conduct a trial to determine the truth of the allegations at the preliminary stage; it must only assess whether the petition discloses a triable issue. The distinction between material facts and full particulars is determinative for the plea of cause of action.
Result:
The appeal is allowed, the High Court judgment is set aside, and the election petition is restored to file for a merits hearing. The application to strike out parts of the petition and the subsequent rejection application are dismissed.
(A) The appeal pertains to an election petition challenging the result of legislative assembly elections under the Representation of the People Act 1951, read with the Civil Procedure Code. Sections 81, 83, and 85 of the Act delineate corrupt practices, their consequences, and the procedure for petitioning against elections, while Order VI Rule 16 and Order VII Rule 11(a) of the Civil Procedure Code govern the striking out of pleadings and rejection of petitions at the threshold on grounds of non-disclosure of a cause of action. The High Court erred in treating the election petition as a regular civil suit and in applying civil pleading standards to assess the merits of the allegations before trial, instead of evaluating whether the petition discloses a triable issue assuming the allegations to be true.
(B) The core legal principles are that an election petition must be tested on whether the allegations, if accepted as true, disclose a cause of action capable of resulting in the election being voided; the Court cannot dissect the petition or probe the factual veracity at the preliminary stage; and the distinction between material facts and full particulars is crucial, with the former being necessary to constitute a cause of action. The Court cannot rely on counter-affidavits or arguments framed for the first time in reply to strike out the petition in limine.
Facts of the case:
The first respondent was declared elected from a constituency with a significant margin. The appellant alleged that the first respondent was not a resident of the constituency, indulged in corrupt practices including character assassination, excess campaign expenditure, misuse of government servants, and manipulation of the voter list showing votes by persons who were not present or were dead. The first respondent filed a counter-affidavit denying all allegations and contended that the petition disclosed no cause of action. The High Court treated the counter-affidavit as a valid basis to examine the truth of the allegations and dismissed the petition at the threshold.
Findings of Court:
The High Court failed to appreciate that in a preliminary objection the averments must be taken as true and that the election petition as a whole disclosed a cause of action. The Court also misapplied Order VII Rule 11 by considering the counter-statements and did not correctly distinguish between material facts and full particulars. Consequently, the rejection of the petition in limine was unsustainable.
Issues:
(1) Whether an election petition which discloses a cause of action can be rejected in limine on the basis of a counter-affidavit. (2) Whether the Court can dissect the petition and examine the sufficiency of individual allegations at the preliminary stage. (3) Whether the distinction between material facts and full particulars was correctly appreciated by the trial court.
Ratio Decidendi:
An election petition must be presumed to disclose a cause of action if the allegations, when accepted as true, prima facie show that the election could be invalidated. The High Court cannot rely on the counter-affidavit or conduct a trial to determine the truth of the allegations at the preliminary stage; it must only assess whether the petition discloses a triable issue. The distinction between material facts and full particulars is determinative for the plea of cause of action.
Result:
The appeal is allowed, the High Court judgment is set aside, and the election petition is restored to file for a merits hearing. The application to strike out parts of the petition and the subsequent rejection application are dismissed.
Judgment
Srinivasan, J.-Aggrieved by the dismissal of his Election Petition E.P. 3/1996 on a preliminary issue, the appellant has approached this Court.
2. In the general elections held in 1996 to the Legislative Assembly of Pondicherry, the first respondent was elected from No. 7 Nellithope Constituency with 8803 votes. The appellant secured 7354 votes while the votes polled by respondents 2 to 7 are not worthy of mentioning. The 8th respondent in this appeal is the Returning Officer. The appeal is contested by the first respondent whose application O.A. No. 36/87 for striking out paras 6 to 10, 11 to 18, 19, 20, 26, 31 and 32 of the Election Petition and consequent rejection of the said petition at the threshold without going to trial was allowed by the High Court.
3. In the Election Petition, the appellant made the following allegations. The first respondent and his family were not residents of No. 7, Nellithope Assembly Constituency but the first respondent managed to get the names recorded as voters in the constituency. The first respondent indulged in character assassination against the appellant personally attacking him in T.V. interview, in printed pamphlets distributed through his agents and workers with his consent and knowledge and in the election campaign meetings. The 1st respondent deliberately and purposely violated the relevant rules and regulations. The 1st respondent incurred expenditure in excess of the permitted limit of Rs. 30,000/- and did not disclose all the expenses in the accounts. The first respondent utilised the services of Government servants who canvassed for him in the elections. There were 3216 names in the voters’ list who could not have polled at all as 1455 were not available at the addresses mentioned, 1554 had gone out of Pondicherry and some of them were even out of India while 207 were dead. Though it was brought to the notice of the Returning Officer who had informed the concerned polling officers of polling booths, 2000 of them had been shown to have polled their votes. The first respondent had indulged in several corrupt practices as a result of which the results of the election were materially affected. The appellant prayed for declaring the election of the first respondent to be void and declaring himself to be validly elected to the assembly from the constituency in question.
4. The first respondent filed a detailed counter-affidavit denying each one of the allegations made in the election petition in December 1996. There was no whisper therein that any of the allegations in the petition was vague or made in such a way that the respondent was not in a position to understand and meet the same. Nor was there any averment that any part of the election petition was unnecessary, scandalous, frivolous or vexatious or would tend to prejudice, embarrass or delay the fair trial of the suit. There was also no averment to the effect that the election petition was otherwise an absue of process of Court. With regard to some of the allegations made in the petition, a plea was raised by the first respondent that they did not disclose a cause of action.
5. Sometime after filing such a counter-affidavit, the first respondent filed on 22.1.97 Original Application No. 36/97 praying for striking out paragraphs 6 to 20, 26, 31 and 32 of the election petition and consequently rejecting the entire election petition in limine. In the said application the first respondent averred that the various allegations in the election petition did not project any material facts and thereby any triable issue. A perusal of the said application shows that the only basis on which the prayer therein was made was that the allegations contained in the election petition did not disclose a cause of action and no triable issue arose thereon. The appellant filed a counter-affidavit to the said application opposing the same. Apart from that, the appellant filed O.A. No. 186/97 on 12.3.1997 praying for permission to file original documents filed along with the reply statement as Annexures 21 to 29. That application was also opposed by the first respondent and a counter-affidavit was filed.
6. The High Court heard the two applications. The High Court framed three points for consideration as follows :
(1) Whether the original documents filed along with the reply statement, as enclosures 21 to 29 more fully described in the Schedule are relevant, as necessary and receivable at this stage, on the facts and in the circumstances of the case.
(2) Whether preliminary objections taken as to the maintainability of the Election Petition is sustainable in law, on the facts and in the circumstances of the case; and
(3) What is the consequence to flow from the sustainability or otherwise of the objections so taken.”
Point No. 1 was answered against the appellant and his application O.A. No. 186/97 was dismissed. Point No. 2 was answered in favour of the first respondent and his application O.A. No. 36/97 was allowed. Consequently, under Point No. 3 the Court rejected the main E.P. No. 3/96.
7. It is that judgment of the High Court which is challenged before us. As rightly contended by the learned counsel for the appellant, the judgment of the learned Judge is obviously based upon a confusion of ideas and failure to appreciate the distinction between the provisions in Sections 81, 83 and 85 of the Representation of the People Act 1951 (hereinafter referred to as the ‘Act’) on the one hand and Order VI, Rule 16 and Order VII, Rule 11 of the Civil Procedure Code on the other. The learned judge has chosen to test the veracity and sufficiency of the allegations in the election petition by taking note of the facts pleaded by the first respondent in his counter affidavit. In the circumstances, the learned senior counsel appearing for the first respondent has rightly concentrated on supporting the conclusion of the High Court rejecting the election petition and did not make any serious effort to support the reasoning contained in the judgment.
8. We do not consider it necessary to refer in detail to any part of the reasoning in the judgment; instead, we proceed to consider the arguments advanced before us on the basis of the pleadings contained in the election petition. It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such. The Court can not probe into the facts on the basis of the controversy raised in the counter.
9. Under Order VI, Rule 16, the Court is enabled to strike out a pleading (a) which may be unnecessary, scandalous, frivolous or vexatious or (b) which may tend to prejudice embarrass or delay the fair trial of the suit; or (c) which is otherwise an abuse of the process of the Court. We have already pointed out that it is not the case of the first respondent that the pleading in the election petition is vitiated by all or any one of the aforesaid defects mentioned in the rule. Hence striking out parts of the pleading in this case was not at all justified.
10. On the other hand, Rule 11 of Order VII enjoins the Court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this rule. The application filed by the first respondent in O.A. No. 36/97 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order VII, Rule 11(a), learned senior counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of Order VII Rule 11(a) CPC cannot therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under Order VII Rule 11(a) CPC, the Court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the rule, there cannot be a partial rejection of the plaint or petition. See Roop Lal Sathi v. Nachhattar Singh Gill1. We are satisfied that the election petition in this case could not have been rejected in limine without a trial.
11. Designedly, we are refraining from adverting to the arguments pertaining to each allegations of corrupt practice, lest any observation by us might affect the views of the trial judge. Suffice it to point out that this Court has repeatedly clarified the difference between “material facts” and “full particulars” and the different consequences of failure to set out either of them. In L.R. Shivaramgowda, Etc. v. T.M. Chandrashekar Etc.2 cited by counsel on both sides, the case law has been traced and the propositions are reiterated.
12. The following rulings relied on by learned senior counsel for the first respondent have no application here as they were all rendered in election petitions disposed after trial.
(a) Surinder Singh v. Hardial Singh & Ors.3.
(b) Manohar Joshi v. Nitin Bhaurao Patil & Anr.4.
(c) Moreshwar Save v. Dwarkadas Yashwantrao Pathrikar5.
(d) Ramakant Mayekar etc. v. Celine D’ Silva (Smt.) Etc.6.
13. The decision in Ram Chand Bhatia v. Shri Hardyal7 making a distinction between statements assailing personal character and those assailing public or political character of a candidate is not relevant at this stage. As pointed out by the Bench in that case, the question would depend on the facts of each case. Such facts can be determined only at the trial. The decision in Azhar Hussain v. Rajiv Gandhi8 relied on by learned senior counsel turned on the facts of the case and has no relevance in this case.
14. In the view, we have expressed, it is not necessary for us to refer in detail to the rulings relied upon by learned counsel for the appellant.
15. As regards O.A. 186/97, the approach of the learned Judge is totally erroneous as he has not kept in mind the distinction between “material facts” and “full particulars”. Nor has be correctly appreciated the decisions of this Court referred to by him. We do not want to express any opinion at this stage on the additional documents produced by the appellant. The trial Court may decide the application in the light of the relevant judgments of this Court, in particular, those laying down the difference between “material facts” and “full particulars”. Hence the order in O.A. 186/97 is set aside and the application is remanded for fresh disposal in accordance with law.
16. In the result, we hold that the judgment of the High Court is unsustainable and it is hereby set aside. The appeal is allowed and E.P. 3/96 is restored to file. O.A. 36/97 stands dismissed. We request the High Court to expeditiously dispose of the election petition on merits. There will no order as to costs.
(C.R.)
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Parallel Citations of other Journals :
D. Ramachandran v. R.V. Janakiraman & Ors., 1999(2) Supreme 454 : 1999(2) CCC 9 (SC) : (1999) 3 SCC 267 : 1999 Lab. IC 1114 : AIR 1999 SC 1128 : 1999(2) JT 94 (SC)
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