Raj Narain Vs. Smt. Indira Nehru
Gandhi & ANR [1972] INSC 80 (15 March 1972)
HEGDE, K.S.
HEGDE, K.S.
REDDY, P. JAGANMOHAN MATHEW, KUTTYIL KURIEN
CITATION: 1972 AIR 1302 1972 SCR (3) 841 1972
SCC (3) 580
CITATOR INFO:
RF 1975 SC2299 (434) RF 1976 SC1187 (6) RF
1991 SC1557 (13,18)
ACT:
Representation of the People Act,
1951--Section 86(5)--Scope--Pleadings relating to corrupt Practice--Better
Particulars of charges may he introduced by amendment of pleadings.
Election Petition--Interrogatories--code of Civil
Procedure 1908--Order XI r. 1-Interrogatories must have reasonable close
connection with "any matters in question."
HEADNOTE:
While a corrupt practice has got to be
strictly proved it does not follow that a pleading in an election petition
should receive a strict construction. The object of section 86(5) of the
Representation of the People Act, 1951, is to see that a person accused of a
corrupt practice must know precisely what he is accused of so that he may have
the opportunity to meet the allegations made against him. If the accusation
made is nebulous and is capable of being made use of for establishing more than
one charge or if it does not make out a corrupt practice at all then the charge
fails at the threshold. So long as the charge levelled is beyond doubt, s.
86(5) is satisfied; rest is mere refinement; they either pertain to the region
of particulars or evidence. Under s. 86(5), if corrupt practice is alleged in
the ' petition, the particulars of such corrupt practice may amended or amplified
for ensuring a fair and effective trial that is, more and better particulars of
the charge may be given later, even after the period of limitation; but if a
corrupt practice is not previously alleged in the petition, an amendment which
will have the effect of introducing particulars of such a corrupt practice,
will not be permitted, after the period of limitation, because, it would
tantamount to making a fresh petition. [847 G] The appellant, in his election
petition, challenging the validity of the election of respondent No. 1, alleged
that the respondent obtained the assistance of K when he was still a Gazetted
Officer in the Government of India for the furtherance of the prospects of her
election and that K organised the electioneering work for her during the entire
period even before the filing of the nomination paper. The petition did not set
out specifically that when the respondent obtained the assistance of K, she was
a "candidate", nor did it state the date on which K was entrusted
with the electioneering work. The respondent filed an application under 0. XI,
Code of Civil Procedure, for sitting aside the interrogatories served on her by
the appellant. The trial court set aside some of the interrogatories and struck
out the issues relating to corrupt practice on the basis that the facts stated
in the petition did not disclose the corrupt practice which were the subject
matter of the issues. The Court also dismissed the appellant's application for
amending the election petition, on the ground that the appellant was seeking to
add material facts and hence they could not be accepted after the period of
limitation for filing the election petition.
HELD (i) that the trial court was not
justified in striking out the issues relating to corrupt practice. The
allegations in the petition bring 842 out all ingredients of the corrupt
practice alleged though they are lacking in better particulars such as the date
on which the respondent became a candidate and the date on which K was
entrusted with the responsibility of organising the electioneering work of the
respondent. The absence of these particulars does not per, se invalidate 'the
charge.
[1849 G] Harish Chandra Bajpai v. Triloki
Singh, [1957] S.C.R. 370;
Sainant N. Balakrishna etc. v. George
Fernandez and ors.
etc. [1969] 3 S.C.R. 603 and Hardwari Lal v.
Kanwal Singh, [1972] S.C.C. 214, referred to.
(ii) that the question as to when K's
resignation became effective has to be examined with reference to his
conditions of service and this having not been done the conclusion of the trial
judge in this regard had to be, ignored. [852) D-E] Raj Kumar v. Union of
India, [1968] 3 S.C.R. 857, referred to.
Quaere : Whether a government servant's
resignation can be accepted with effect from an earlier date and whether such
an acceptance has any validity in considering a corrupt practice under s.
123(7).
(iii) that the amendments asked for should
have been allowed. election petition is not liable to be dismissed in limine
because full particulars of corrupt practice alleged are not set out. If an
objection was taken, and the tribunal was of the view that the full particulars
have not been set out, the petitioner has to be given in opportunity to amend
or amplify the particulars. [853 B] Shri Balwan Singh v. Shri Lakshmi Narain
and ors., [1960] 3 S.C.R. 91, referred to.
(iv) that the trial court was right in
striking out the interrogatories. The interrogatories served must have
reasonable close connection with any matters in question." Questions that
may be relevant during cross examination are not necessarily relevant as
interrogatories. [853 H]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 108 and 109 of 1972.
Appeals by special leave from the orders
dated November 27.
1971 and December 22, 1971 of, the Allahabad
High Court it,.
Applications Nos. A112 and A141 in Election
Petition No. 5 of 1971, respectively.
S. V.Gupte,. J. P. Goyal, K. N. Tripathi, R.
C.
Srivastava, .S.' S. Khanduja, and R. A.
Gupta, for the appellant (in both the appeals) C, K. Daphtary, S. C. Khare,
Yogeshwar Prasad, S. K. Bagga and S.Bagga, for respondent No. 1 (in both the
appeals).
The Judgment of the Court was delivered by
Hegde, J. These. appeals by special leave arise from the election petition
filed by be, appellant challenging the validity, of the election-of respondent
No. 1 (who will hereinafter be referred to 843 as the respondent) to the Lok
Sabha from Rae Bareilly constituency, in the General Election to the Lok Sabha
held inMarch.
1971.
After the pleadings of the parties were completed
and the issues framed, the appellant applied to the court under Order Xi of The
Civil Procedure, Code for leave to deliver interrogatories in writing for the
examination of the respondent. The respondent objected to the same on the
ground that the provisions of 0. XI.
C.P.C. cannot be applied to election
petitions. In her objection-statement, the respondent reserved her right to
object to the interrogatories sought to be served at a later stage.
The application filed by the appellant for
leave 'to serve interrogatories on the respondent was heard by Broome J. The
learned Judge by his order dated September 14, 1971 overruled the objections of
the respondent and directed as follows :
"Accordingly I allow the application
A-29 and grant leave to the petitioner to deliver the accompanying
interrogatories for the examination of respondent No. 1. The affidavit in reply
shall be filed by 410-1971." The respondent appealed against that order to
this Court after obtaining special leave. That appeal was withdrawn during the
course of the hearing.
During the pendency of that appeal, the
respondent filed an application before the High Court under rule 7, Order Xi.
C.P.C.
praying that the interrogatories served on
her may be set aside as they were "unreasonable, vexatious, oppressive,
unnecessary and irrelevant". As many as 31 interrogatories had been served
on the respondent. All these interrogatories related to Issues 1 to 3. The
appellant objected to each one of them. At the hearing of that petition, it appears
it was contended on behalf, of the respondent that the allegations in the
election petition did not afford any basis for Issues 1 to 3. Consequently the
interrogatories served were irrelevant as well as unnecessary. The entire
argument before the trial judge proceeded on the basis that the, facts stated
in the petition did not disclose the corrupt practices which were the
subject-matter of Issues 1 to 3.
The learned judge accepted that contention
and set aside some of the interrogatories served on the respondent. Proceeding
further, he struck out Issues 1 to 3. Thereafter the appellant applied to that
court for amendment of paragraphs 2 and 5 of the election petition by giving
better particulars. The learned judge rejected that application on the sole ,round
that by the amendment in question, the appellant was seeking to add to material
facts and hence, they cannot-be accepted after the period of limitation for
filing the, election, petition. Civil Appeal, No. 108 of 1972 is 844 directed
against the order setting aside the interrogatories served .and the striking
out of Issues 1 to 3 and Civil Appeal No. 109 of 1972 arises from the order
rejecting the application seeking permission to amend the election petition.
Issue No. 2 had not been pressed before the
trial court nor was it pressed before us. Therefore we need not consider
whether that issue should be restored. Issue No. 3 is largely consequential to
Issue No. 2 though a portion of that issue bears on Issue No. 1. Hence at
present we are only concerned with Issue No. 1 and that portion of the third
issue which has a bearing on Issue No. 1. Both those aspects will be covered if
issue No. 1 is recast thus "Whether respondent No. 1 obtained and procured
the assistance of Yashpal Kapur in furtherance of the prospects of her election
while he was still a Gazetted Officer in the service of Government of India. If
so, from what date ?" We can now leave out of consideration Issue No. 3.
The main question to be decided in these
appeals is whether the allegations made in the election petition can be said to
disclose the corrupt practice which is the subject matter of Issue .No. 1.
Section 123 of the Representation of the
People Act, 1951 (lo be hereinafter referred to as the 'Act') begins by saying
that "The following shall be deemed to be corrupt practices for the
,purposes of this Act".
Sub-s. (7) of s. 123 to the extent material
for our present purpose reads :
"The obtaining or procuring or abetting
or attempting to obtain or procure by a candidate or his agent or, by any other
person with the consent of a candidate or his election agent, any assistance
(other than the giving of vote) for the furtherance of the prospects of that
candidate's election, from any person in the service of the Government and
belonging to any of The following 'classes, namely (4) gazetted officers;
The appellant's contention is that the
respondent after she became a candidate in The election in question obtained
the services 845 of Yashpal Kapur when he was still a gazetted officer in the
Government of India for the furtherance of the prospects of her election. In
order to establish that plea, he must plead and prove (1) That the respondent
obtained the assistance of Yashpal Kapur when he was a gazetted officer;
(2) That the assistance obtained by her was
for the furtherance of the prospects of her election and (3) That she obtained
that assistance after she became a candidate.
A candidate is defined in s. 79(b) of the
Act.
That section says :
" candidate' means, a person who has
been or claims to have been duty nominated as a candidate at any election and
any such person shall be deemed to have been a candidate as from the time when,
with the election in prospect, he began to hold himself out as a prospective
candidate.
The respondent became a candidate within the
first part of 79(b) when she was nominated on February 1, 1971. But if she had
held herself out as a prospective candidate with the election in prospect
before her nomination, she must be deemed to have become a candidate from the
date she so held out.
In order lo establish his plea, the appellant
has to establish that the assistance of Yashpal Kapur was obtained when he
still was a government servant and at the time such an assistance was obtained,
the respondent had become a candidate.
Now let us turn to the averments in the
election petition which alone is relevant for finding out whether the corrupt
practice referred to in Issue No. 1 is made out. Relevant averments are said to
be in paragraphs 2, 5 and 6. They read as follows :
"2 That the respondent No. 1 Shrimati
Indira Nehru Gandhi and the respondent No. 2 Swami Advaita Nand were also
candidates in the said election from the 22-Rae Bareili Parliamentary
constituency for the Lok Sabha.
"5 That the said Shri Yashpal Kapur was Gazetted
Officer in the Government of India, holding the post of an officer on Special
Duty. The respondent No. 1 Shrimati Indira Nehru .Gandhi obtained and procured
,the assistance of the said Shri Yashpal Kapur for the furtherance of the
prospects of her election from the 8-L1061Sup.Cl/73 846 constituency aforesaid
inasmuch as the said Shri Yashpal Kapur was a gazetted officer in the service
of the Government of India when his assistance was obtained and procured (a
corrupt practice under section 123(7) of the R.P. Act, 1951 was committed by
the respondent No. 1 Shrimati Indira Nehru Gandhi. The said Shri Yashpal Kapur
on the directions of Shrimati Indira Nehru Gandhi organised the electioneering
work for her in the constituency as her election agent during the entire period
from even before the tiling of the nomination paper the filing(?) the counting
and the declaration of the result of the election. The election of the
respondent No. 1 is liable to be declared void on the ground of the commission
of this corrupt practice under section 100(1)(b) of 'the Representation of
Peoples Act, 1951.
6. That as the petition's candidature was
being supported not only by Samyukta Socialist Party to which the petitioner
belonged but also by the Jan Sangh, the Indian National Congress
(Organization), Bhartiya Kranti Dal and the Swatantra Parties and since the
candidature of respondent No. 1, Shrimati Indira Nehru Gandhi was being
supported by the Muslim Majlis, Muslim League and the Communist Party of India
(it was apprehended by Shrimati lndira Nehru Gandhi and her election agent Shri
Yashpal Kapur that an overwhelming majority of Hindu voters migh cast their
votes for the petitioner against Shrimati Indira Nehru Gandhi.
It was accordingly decided by them to induce
the respondent No. 2 Swami Advaitanand to also stand as a candidate in the
election. The said Shri Yashpal Kapur, the election agent of Shrimati Indira
Nehru Gandhi offered and paid a sum of Rs. 50,000/to the respondent No. 2 Swami
Advaitanand as a gift with the object of directly including him to stand as a
candidate at the said Selection. The offer and payment of the amount of Rs.
50,000/was made by the said Shri Yashpal Kapur to Swami Advaitanand on the 28th
January 1971 in the town of Rae Barlow.
A corrupt practice of 'bribery under section
123 (1) (A) (a) was thus committed by Shri Yashpal Kapur, election agent of Sm.
Indira Nehru Gandhi and her election is therefore liable to be declared void
under section 100 (1 ) of the R.P. Act." It is true that the election
petition nowhere specifically say ,as to when the appellant became a
"candidate". But it is clear 847 from a reading of paragraphs 5 and 6
that according to the appellant, the respondent became a "candidate"
even before she was nominated on February 1, 1971. The petition proceeds on
that basis. It is not clear from the petition that how long before her
nomination ,he respondent held herself out as a prospective candidate. But all
the same, it is obvious from those averments that the respondent is alleged to
have obtained the assistance of Yashpal Kapur when he continued to be a
gazetted. officer for organizing her electioneering work. The expression
"electioneering" is explained in Universal English Dictionary as
"act of canvassing for votes, speaking in public and otherwise promoting
the election of a particular candidate for Parliament".
Reference to Yashpal Kapur as an election
agent on a date prior to the date when he was appointed as such-his nomination
Lis an election agent could not have been done before February 1, 1971 is
clearly a misnomer but that is irrelevant. The in paragraph 5 of the election
petition that Yashpal appellants organised the electioneeing work in the
constituency a at the direction of the respondent even before her nomination
and agent the reference to her candidature in January in paragraph shall that
according to the petitioner 'the respondent was a "candidate" even
before her nomination and. further that she obtained the assistance of Yashpal
Kapur when he was still a gazetted officer. There is no gainsayirng the fact
that the election petition was not artistically drawn LIP. That unfortunately
is the case with most of our pleadings. But if the petition is read reasonably,
as it should it is clear that the allegation of the petitioner is that the
service of Yashpal Kapur were obtained by the respondent when she had already
become a candidate and when she so obtained his assistance, Yashpal Kapur was
still a gazetted officer.' It is true (hat one of the ingredients of the
corrupt practice alleged i.c. that when 'the respondent obtained the assistance
of Kapur, she was a candidate is not specifically set out in the petition but
from 'the allegations made, it flows as a necessary implication. While a
corrupt practice has got to be strictly proved but from that it does not follow
that a pleading in an election preceding should receive a strict construction.
This Court has held that even a defective charge does not vitiate a criminal
trial unless it is proved that the same has prejudiced the accused. If a
pleading on a reasonable construction could sustain the action, the court
should accept that construction.
The courts are reluctant to frustrate an
action on technical grounds. The charge of corrupt practice in an election 'Is
a very serious charge. Purity of election is the very essence of real
democracy. The charge in question has been denied by the respondent. It has yet
to be proved. It may or may not be proved. The allegations made by the
appellant may ultimately the proved to be wholly devoid of truth. But 848 the
question is whether the appellant should be refused an opportunity to prove his
allegations ? Should the court refuse to enquire into those allegations merely
because the appellant or Someone who prepared his brief did not know the
language of the law. We have no hesitation in answering those questions in the
negative. The implications of the rule of law are manifold.
It was contended on behalf of the respondent
that the relevant provisions of the Act precluded the appellant from proving
his allegations. Therefore let us look at those provisions in the Act i.e.
Clauses (a) and (b) of S. 83(1) and cl. (5) of s. 86 for finding out whether
the charge has to be rejected in limine.
Section 8 3 (1 ) (a) and (b) read "(1)
An election petition(a) shall contain a concise statement of the material facts
on which the petitioner relies;
(b) shall set forth full particulars of any
corrupt practice that the petitioner alleges, 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 the commission of each such practice.
Sub-s. (5) of s. 86 prescribes :
"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 or amplified in such manner as
may in its o pinion 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." From these two provisions, it follows that if the
allegations made regarding a corrupt practice do not disclose the constituent
parts of the corrupt practice alleged, the same will not be allowed to be
proved and further those allegations cannot be amended after the period of
limitation for filing an election petition-, but the court may allow
particulars of any corrupt practice alleged in the petition to be amended or
amplified. The scope of these provisions has been considered in several decisions
of this Court. The leading decision on this point is Harish indra Bajpai v.
Trilok Singh(1). It is not necessary to go to that decision as the ratio of
that decisions has been elaborately (1) [1957] S.C.R. 370.
849 explained by this Court in Samant N.
Balakrishna etc. v. George Fernandez and ors. etc.(1). Dealing with the scope
of ss. 83 and 86(5), this Court observed that s. 83 requires that the petition
must contain a concise statement of the material facts on which the petitioner
relies and the fullest possible particulars of the, corrupt practice alleged.
'Material facts' and 'particulars' may overlap but the word 'material' shows
that the ground of corrupt practice and the facts necessary to formulate a
complete cause, of action must be stated. The function of the particulars is to
present as full a picture of the cause of action as to make the opposite party
understand the case he will have to meet. Unders. 86(5), if corrupt practice is
alleged in the petition, the particulars of such corrupt practice may be
amended or amplified for ensuring a fair and effective trial, that is, more and
better particulars of the charge may be given later, even after the period o'
limitation; but if a corrupt practice is not previously alleged in the
petition, an amendment which will have the effect of introducing particulars of
such a corrupt practice will not be permitted, after the period of limitation,
because, it would tantamount to making a fresh petition. The same view was
taken by this Court in Hardwari Lal v. Kanwal Singh(3). From these decisions,
it follows that facts stated in the petition relating to any corrupt practice
must be sufficient to constitute a cause of action. In other words the facts
must bring out all the ingredients of the corrupt practice alleged. If the
facts stated fail to satisfy the hat requirement then they do not give rise, to
a triable issue. Such a defect cannot be cured by any amendment after the
period of limitation for filing the election petition. But even if all the
material facts are stated in the election petition. For a proper trial better
particulars may still be required. If those particulars are not set out in the
election petition, they may be incorporated into the election petition with the
permission of the court even after the period of limitation. The controversy in
this case is whether the election petition discloses a cause of action for
trying Issue No. 1. We think it does. Theallegations made in paragraphs 2, .5
and 6 of the petition, if read together do show that the allegation against the
respondent is that she obtained the assistance of Yashpal Kapur, a gazetted
officer, to support her candidature by organising her electioneering work.
These allegations bring out all the ingredients of the corrupt practice alleged
though they are lacking in better particulars such as the date on which the
respondent became a candidate and the date on which Yashpal Kapur was entrusted
with the responsibility of organizing the electioneering work of the
respondent. The absence of those particulars does not per se invalidate the
charge. They can be Supplied even now with the permission of the Court. In this
connection (1) [1969] 3 S.C.R. 603.
(2) [1972] S.C.C. 14.
850 it is necessary to mention that the
respondent in her written statement did not say that the allegations in
question did not raise a friable issue. No such objection appears to have been
taken at the time of the framing of the issues or in any of her pleadings. It
seems that the objection was taken up for the first time when the petition to
set aside the interrogatories was heard. We are saying all these only ,to show
as to how the parties understood the allegations at the earlier stages, of the
proceedings.
Rules of pleadings are intended as aids for a
fair trial and for reaching a just decision. An action at law should not be
equated to a game of chess. Provisions of law are not mere formulaes to be
observed as rituals. Beneath the words of a provision of law.
generally speaking,, there lies a juristic
principle. It is the duty ' of the court to ascertain that principle and
implement it.
What then is the principle underlying s.
86(5)? In our opinion the aim of that section is to see that a person accused
of a corrupt practice must know precisely what he is accused of so that he may
have the opportunity to meet the allegations made against him. If the
accusation made is nebulous and is capable of being made use of for establishing
more than one charge or if it does not make out a corrupt practice at all then
the charge fails at the very threshold. So long, as the charge levelled is
beyond doubt. s. 86(5) is satisfied; rest is mere refinement.
They either pertain to the region of
particulars or evidence.
That section is not designed to interdict a
mere clumsy pleading like the petition before us. The purpose of that section
is to see that every charge of corrupt practice should be brought before the
court before the prescribed period of limitation and none thereafter so that
the trial of the case may not be converted into a persecution by adding more
and more charges or by converting one charg another as the trial proceeds. The
best illustration of the problem that s. 86(5) tries to meet is found in,
Hardwatri Lal's case (supra). The allegations made in paragraph 16 of the
petition ,therein were as follows :
"That the respondent committed the
corrupt practice of obtaining and procuring orattempting to obtain and procure
the assistance for the furtherance of the prospects of his election from the
following, persons who are in the service of the Government and belonging to
the prohibited classes within the meaning of section 123 (7) of the Act
1. Shri Chand Ram Rathi, Lecturer in
Political Science, Government College, Gurgaon.
2.Shri Gulab Singh, B.A.B.Ed., Govt. High
School Jharsa (Gurgaon).
851
3. Pt. Bhim Singh, Asstt. Sub-inspector,
Police Security Lines, Lytton Road, New Delhi.
4 .Ch. Chhatar Singh, M.A.B.T., Teacher,
V.& P.O.Bharai via Bahadurgarh, District Rohtak.
5. Ch. Mukhtiar Singh, Inspector of Police,
Delhi6. Ch. Raghbir Singh, M.A., B.T., Bahadurgarh.
The respondent has written letters under his
own signatures to the above Government servants soliciting their help and
assistance in furtherance of the prospects of his election." These were
all the material facts stated in the petition. From those averments, it was not
possible to make out from whom among the government servants mentioned, the
returned candidate alleged to have obtained or procured assistance for the
furtherance of the prospects of his election and who are those from whom he is
alleged to have attempted to obtain and procure the assistance for the said
purpose. That petition was also silent as regards the type of assistance
obtained or procured or attempted to be oil gained or procured. In that case,
it was necessary to state the type of assistance obtained or procured or
attempted to be obtained or procured because a candidate can take the assistance.
of government servants in certain respects.
The allegations made in the petition were so elastic that it could have been
used for establishing multitude of charges, leaving it free to the petitioner
to pick and choose the charge he is in a position to establish. That was an
intolerable position for his opponent. In substance. the petitioner therein had
merely quoted the relevant provision of law; he bad failed to state the
material fact,, Lo bring out the charge sought to be levelled. He had cast a
wide net. This is not so in the case before us. Herein all the ingredients of
the corrupt practice viz. (1) that the respondent obtained the assistance of
Kapur; (2) Kapur was a government servant and (3) his services were obtained in
support of the candidature of the respondent by organising her election
compaign are mentioned in the petition. The question when the respondent became
a candidate is merely a matter of evidence.
For the reasons mentioned above, we think
that the learned judge was not justified in striking out Issue No. 1. On the
other hand.
he should have reframed that issue, as
mentioned earlier. Before leavingthis question, it is necessary to mention one
other fact. Yashpal Kapur appears to have tendered his resignation to the
office he was holding on January 13, 1971. The certified copy of the
notification produced shows that the President accepted his resignation on the
25th of January '71 and the same was 852 gazetted on February 6, 1971. The
order of the President shows that he accepted Yashpal Kapur's resignation with
effect from January 14, 1971. The learned trial judge without examining the
true effect of the President's order has abruptly come to the conclusion that
Yashpal Kapur's resignation became effective as from January 14, 1971. This
conclusion, in our opinion, requires re examination. It is necessary to examine
whether a government servant's resignation can be accepted with effect from an
earlier date. At any rate whether such an acceptance has any validity in
considering a corrupt practice under S. 123(7). If such a course is
permissible, it might enable the government to defeat the mandate of S. 123(7).
The question as to when a government servant's resignation becomes effective
came up for consideration by this Court in Raj Kumar v. Union of India(1).
Therein this Court ruled that when a public servant has invited by his letter
of resignation the determination of his employment, his service normally stands
terminated from the date on which the letter of resignation is accepted by the
appropriate authority and, in the absence of any law or statutory rule
governing the conditions of his service, to the contrary, it will not be open
to the public servant to withdraw his resignation after it is accepted by the
appropriate authority. Hence the question as to when Yashpal Kapur's
resignation became effective will have to be examined with reference to his
conditions of service. This examination having nor been done, the conclusion of
the learned trial judge that it became effective on January 14, 1971, has to be
ignored.
For the foregoing reasons, we set aside the
order of the trial judge striking out Issue No. 1 and the last part of Issue
No.3 and restore Issue No. 1 as amended by us.
Now coming to the appeal against the' order
on the amendment application, the learned trial judge 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 S. 86(5). We have already found that that conclusion of the learned
trial judge is not correct. The amendment application was moved 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 character. This Court ruled in
Shri Balwan Singh v. Shri Lakshmi Narain and ors.(2) 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 been set
out, the. petitioner had (1) [1963] 3 S.C.R.857.
(2) [1960] 3 S.C. R. 9 1.
853 to be given an opportunity to amend or
amplify the particulars.
It was only in the event of non-compliance
with the order to supply the particulars that the charge which remained vague
could be struck out. In that case The amendment was sought after the 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. 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.
as 31 interrogatories have been served on the
respondent as mentioned earlier. Out of them Nos. 24 to 30 have been allowed,
Hence we need not consider them. Interrogatories Nos. 19 to 23 relate to Issue
No. 2. Therefore they are rightly struck out. We now come to interrogatories
Nos. 1 to 18 and 31. We have carefully examined those interrogatories. None of
them touch the core of the allegations relating to commission of the corrupt
practice which is the subject matter of Issue No. 1. They merely touch the fringe
of the matter.
Order XI, r. 1, C.P.C. provides "In any
suit the plaintiff or defendant by leave of the Court may deliver
interrogatories in writing for the examination of the opposite parties or any
one or more of such parties and such interrogatories when delivered shall have
a note at the foot thereof stating which of such interrogatories each of such
person is required to answer; Provided that no party shall deliver more than
one set of interrogatories to the same party without an order for that purpose.
Provided also that interrogatories which do
not relate to any matters in question in the suit shall be deemed irrelevant,
notwithstanding that they might be admissible on the oral cross-examination of
a witness." Questions that may be relevant during cross-examination are
not necessarily relevant as interrogatories. The only questions that are
relevant as interrogatories are those relating to "any matters in
question". The interrogatories served must have, reasonably close
connection with "matters in question". Viewed thus, interrogatories 1
to 18 as well as 31 must be held to irrelevant.
854 In the result Civil Appeal No. 108 of
1972 is allowed to the extent mentioned above. In other respects the same is
dismissed.
Civil Appeal No. .109 of 1972 is allowed in
full. In the circumstances of these cases, we make no order as to costs.
K. B. N.
Civil Appeal No. 108 of 1972 allowed in part.
Civil Appeal No. 109 of 1972 allowed.
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