Roop Lal Sathi Vs. Nachhattar Singh
[1982] INSC 80 (2 November 1982)
SEN, A.P. (J) SEN, A.P. (J) DESAI, D.A.
CITATION: 1982 AIR 1559 1983 SCR (1) 702 1982
SCC (3) 487 1982 SCALE (2)976
CITATOR INFO :
RF 1986 SC 11 (15) RF 1990 SC 19 (24)
ACT:
Election Symbols (Reservation and Allotment)
Order 1968-Order made under Representation of the People Act, 1951.
Representation of the People Act, 1951-Trial
of election petition-Provisions of O. VI, Code of Civil Procedure, 1908
applicable except as modified by sub-s. (5) of s.86.
Representation of the People Act, 1951-Cl.
(a) of sub- s. (1) of s. 83-Trial of election petition-Omission of 'material
facts' renders whole petition bad under O. VII, r. 11 (a), Code of Civil
Procedure, 1908-Court cannot strike down portions only.
Representation of the People Act, 1951-Cl.(b)
of sub-s. (1) of s. 83-Trial of election petition-Omission of
'particulars'-Court may direct 'further and better particulars' under O. Vl, r.
5, Code of Civil Procedure, 1908.
HEADNOTE:
For a candidate to be deemed to be set up by
a political party under paragraph 13 of the Election Symbols (Reservation and
Allotment) Order 1968, it is essential that a notice in writing to that effect
signed by the duly authorised office-bearer of the political party is delivered
to the returning officer of the constituency not later than 3 p.m. on the last
day of withdrawal of candidatures. The allotment of any symbol to a candidate
by the returning officer is final under sub-r. (5) of r. 10 of the Conduct of Elections
Rules, 1961 except where it is inconsistent with any directions issued by the
Election Commission in that behalf.
The appellant, the respondent and one
Jagmohan Singh contested the election to the Punjab Legislative Assembly from
the same constituency and the respondent was declared elected. The appellant
challenged the election of the respondent under s. 100(1)(d)(iv) read with s.
123(7) of the Representation of the People Act, 1951. Paragraphs 4 to 18 of the
petition related to change of symbols allotted to the candidates. It was
averred therein that the last day for withdrawal of nomination papers was May
5, 1980; that a notice in writing signed by the authorised office-bearer of the
Indian National Congress (I) to the effect that Jagmohan Singh was contesting
as the candidate of that party 703 had been delivered to the Returning Officer
on that day;
that the Returning Officer had on May 8,
1980, intimated by a letter that on receipt of instructions from the Election
Commission a change had been effected in the symbols allotted to the candidates
according to which the symbol 'hand' reserved for the Indian National Congress
(I) had been allotted to the respondent; that in terms of paragraph 13 of the
Symbols Order Jagmohan Singh ought to have been deemed to be the candidate set
up by the Indian National Congress (I); that the Election Commission had no
power to direct re-allotment of the symbol once allotted to a candidate under
sub-r. (4) of r. 10 and therefore the action of the Returning Officer in
recalling the allotment of the symbol 'hand' to Jagmohan Singh was in violation
of the Act and the rules made thereunder. The respondent contested these
averments in his written statement and referred to the circumstances in which
the Election Commission had issued the instructions relating to change of
symbols.
The respondent raised a preliminary objection
that the averments in paragraphs 4 to 18 of the petition did not disclose any
cause of action and the High Court, accepting the objection, ordered deletion
of those paragraphs from the petition. The High Court held that it was
incumbent on the appellant to find out the circumstances in which the Election
Commission had passed the order relating to change of symbols and that in the
absence of those material circumstances non-compliance with r. 10(5) or
Paragraph 13 of the Symbols Order could not be spelled out. The High Court
further held that the Symbols Order was not an order made under the Act and
therefore s. 100(1)(d)(iv) was not attracted.
In appeal, counsel for appellant contended
that paragraphs 4 to 18 of the petition contained all the material facts
necessary to show that the change of symbols was in breach of r. 10(5) and
paragraph 13 of the Symbols Order and the High Court was not justified in
ordering their deletion.
Counsel for respondent contended that
paragraphs 4 to 18 of the petition did not disclose any cause of action as
there was non-disclosure of facts necessary to show how the order of the
Election Commission was illegal, that the High Court was justified in striking
out those paragraphs under O. Vl, r. 16 of the Code of Civil Procedure, 1908 as
it had no power to direct further and better particulars under O.
Vl, r. 5. Laying emphasis on the words
"under the Act" occurring in s. 100(1)(d)(iv) he contended that the
Symbols Order was not an Order made under the Act.
Allowing the appeal,
HELD: Cl. (a) of sub-s.(1) of s. 83 of the
Representation of the People Act, 1951 enjoins that an election petition shall
contain a concise statement of the material facts on which the election
petitioner relies. This clause is based on the provisions of O. VI, r. 2(1) of
the Code of Civil Procedure, 1908 from which it is clear that the statement of
material facts ought not to contain the evidence by which they are proved. Cl.
(b) of sub-s. (1) of s. 83 states that an 704 election petitioner must set
forth full particulars of any corrupt practice on which he challenges the
election of the returned candidate. This clause is based on O VI, r. 4 of the
Code and the High Court has ample power while trying an election petition to
direct further and better particulars as to the nature of the claim or defence
under O.VI, r.5.
The word 'material' in cl. (a) means facts
necessary for the purpose of formulating a complete cause of action; and if any
one material fact is omitted, the statement or plaint is bad; it is liable to
be struck out. The function of 'particulars' in cl. (b) is quite different; the
use of particulars is intended to meet a further and quite separate requirement
of pleading imposed in fairness and justice to the returned candidate. The
function of 'particulars' is to fill in the picture of the
election-petitioner's cause of action with information sufficiently detailed to
put the returned candidate on his guard as to the case he has to meet and to
enable him to prepare for trial in a case where his election is challenged on
the ground of any corrupt practice. Under O.VI, r.5. 'particulars' will be
ordered of the 'material facts' on which the party pleading relies for his
claim or defence. If a party's pleading is defective he can also seek leave to
alter and amend his own defective pleading under O.VI, r.17. There is no
express rule providing for the consequence of a party failing to deliver
'particulars' required by order of the Court but the decisions are to the
effect that either by the order calling for particulars or by a later order the
court can direct the claim or defence to be struck out under O.VI, r.16. [724B;
723 H; 724 C-F; 726 C-E; 724 G-H; 725 A] In the instant case the question
whether the order passed by the High Court could be justified under O.VI, r.16
would depend upon whether or not the election petition was in conformity with
the requirements of s.83. A preliminary objection that the election petition
does not contain a concise statement of material facts on which the petitioner
relies is but a plea in the nature of demurrer and in deciding the question the
court had to assume for this purpose that the averments contained in the
petition were true. Although the High Court observed that a question of this
nature had to be decided on a consideration of the averments in the election
petition alone, it later on made certain observations which tend to show that
the allegations in the written statement of the respondent were very much in
its mind. It is no part of the statement of an election- petitioner to
anticipate the defence and to state what he would have to say in answer to it.
The High Court cast on the appellant the burden of disclosing facts not within
his knowledge. This approach was unwarranted. The High Court was not justified
in directing that the averments in paragraphs, 4 to 18 of the petition be
deleted on the ground that there was non-disclosure of material facts
sufficient to give rise to a cause of action under s. 100(1)(d)(iv). It is not
clear from the order whether the High Court proceeded to act under O.VII, r. 1
1 (a) or under O.VII, r. 16. It could not have acted under O. VII, r. 1 1 (a)
as, under that rule, when it is found that the plaint discloses no cause of
action, it is obligatory to reject the plaint as a whole and not any particular
portion thereof. The High Court's Order cannot also be sustained under O.VI,
r.16 because there was no finding that the averments in paragraphs 4 to 18 were
either unnecessary, frivolous or vexatious, or were such as may tend to
prejudice, embarrass or delay the fair trial of the election, or were such as
to constitute an abuse of the process of the court. [723C; 721H; 722 A-B; 724
B; 721C; 719 G-H; 720 A-B; E-E] 705 Bruce v. Odhams Press Ltd. [1936] 1 K.D.
697 and Samant N. Balakrishan v. George Fernandez & Ors., [1969] 3 S.C.R. 603,
referred to.
(b) The contention that the High Court had no
power to direct further and better particulars under O.VI, r.5 cannot be
accepted. Sub-s. (1) of s.87 enacts that the trial of an election petition
shall be, as nearly as may be, in accordance with the procedure applicable
under the Code of Civil Procedure, 1908 to the trial of suits, subject to the
provisions of the Act and of any rules made thereunder.
There are no express provisions in the Act or
in the rules made thereunder to deal with a situation like the one presented in
the instant case. The provisions of the Code accordingly must apply in such a
case as provided by sub- s.(1) of s 87. That being so, the provisions of O.VI
which are integral part of the Code come into play except to the extent
modified by sub-s. (5) of s. 86. [727 A-B; 726 E-G] Hari Vishnu Kamath v. The
Election Tribunal & Anr., AIR [1958] M.P. 168; distinguished.
Bhikaji Keshao Joshi & Anr. v. Brijlal
Nandlal Joshi & Ors., [1955] 2 S.C.R. 18. referred to.
2. The High Court was in error in holding
that the Election Symbols (Reservation and Allotment) Order, 1968 was not an
order made under the Representation of the People Act, 1951. The Act is a law
made by Parliament under Art.
327 of the Constitution to provide for
conduct of elections and the Conduct of Elections Rules, 1961 are rules framed
by the Central Government under s. 169 in consultation with the Election
Commission for regulating the mode of holding elections. Rule 5 requires the
Election Commission to specify the symbols that may be chosen by candidates and
the restrictions to which their choice shall be subjected. Rule 10 provides for
allotment of symbols to contesting candidates by the returning officer subject
to any general or special directions issued in that behalf by the Election
Commission. By virtue of Art. 324 of the Constitution the authority to conduct
all elections to Parliament and State Legislatures is vested in the Election
Commission. The Symbols Order has been issued by the Election Commission in
exercise of its powers under Art. 324 read with s. 5 and 10.
The primary object of the Symbol Order is to
provide for specification, reservation, choice and allotment of symbols at
elections in parliamentary and assembly constituencies.
It is a matter of common knowledge that
elections in our country are fought on the basis of symbols. It must but
logically follow as a necessary corollary that the Symbols Order is an order
made under the Act. Any other view would be destructive of the very fabric of
our system of holding parliamentary and assembly constituency elections in the
country on the basis of adult suffrage. [718 B; 712 G; 713 B-C; 713 H; 714 A;
719 D-F] Sadiq Ali & Anr. v. Election Commission of India & Ors.,
[1972] 2 S.C.R. 318, referred to.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
1106 (NCE) of 1981.
From the Judgment and Order dated the 22nd
February, 1981 of the Punjab & Haryana High Court in Election Petition No.
3 of 1980.
D.V. Patel, A.S. Sohal and M.C. Dhingra for
the Appellant.
P.R. Mridul and R.S. Sodhi for the
Respondent.
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave is from a judgment and order of the Punjab
& Haryana High Court dated February 2, 1981 by which it has directed the
deletion of paragraphs 4 to 18 of the election petition filed by the appellant
under s. 81 read with s. 100 of the Representation of the People Act, 1951
('Act' for short) calling in question the election of the respondent Nachhattar
Singh Gill to the State Legislative Assembly of Punjab from the Moga Assembly
Constituency No. 99 on the ground that there is non- disclosure of material
facts on which he alleges that the change of allotment of symbols by the
Returning Officer, Moga amounted to non-compliance with the provisions of the
Constitution, or of the Act, or any rules or orders made thereunder so that the
result of the election, insofar as it concerns the respondent i.e. the returned
candidate, is materially affected.
At the last general elections to the State
Legislative Assembly of Punjab from Moga Assembly Constituency No. 99 the
appellant contested as a candidate of the Lok Dal Party.
The last date for withdrawal of nomination
papers was notified as May 5, 1980. It appears that on that day Shri Darbara
Singh, President of the Punjab Pradesh Congress (I) Committee, intimated the
Returning Officer that Jagmohan Singh had been nominated as the official
candidate of the Indian National Congress (I) to contest the election. There is
also on record a letter dated May 5, 1980 addressed by Shri Darbara Singh,
President, Punjab Pradesh Congress (I) Committee, to the respondent stating
that Jagmohan Singh had been finally selected as the official candidate of the
Indian National Congress (I) from the 99-Moga Assembly Constituency in his
place, and he was advised to withdraw his nomination paper.
707 It appears that the Indian National
Congress (I) changed its official candidate and finally selected the respondent
Nachhattar Singh Gill to be the official candidate of its party. On May 7,
1980, the Returning Officer, Moga Vidhan Sabha Assembly Constituency wrote a
letter to Jagmohan Singh stating that he had been directed by the Secretary,
Election Commission of India, by means of a police radio message that the
respondent was to be treated as the finally selected candidate, and that
party's reserved symbol 'hand' be allotted to him. On May 8, 1980, the
Returning Officer, Moga Vidhan Sabha Assembly Constituency, addressed a letter
to all the candidates regarding the change in the allotment of election symbols
to the effect:
"According to the instructions from the
Chief Election Commissioner of India, certain change has been effected in the
election symbols of the candidates of the election to the 99-Moga Legislative
Assembly Constituency which is as under:
S.No. Name of the Candidate Symbol Allotted
1. Shri Nachhattar Singh 'HAND'
2. Shri Jagmohan Singh "BOW &
ARROW" Accordingly, the necessary change of symbols was effected in Form
7A, the list of contesting candidates. The respondent fought the election on
the reserved symbol of the Indian National Congress (I) 'hand' and secured
22,460 votes. As against this, the appellant, who was a candidate of the Lok
Dal party, secured 16,686 votes while the aforesaid Jagmohan Singh as an
Independent candidate got 242 votes. The appellant was therefore defeated by the
respondent by a margin of 5,774 votes. The appellant filed an election petition
challenging the election of the respondent under s. 100 (1) (d) (iv) read with
s. 123 (7) of the Act. The averments in paragraphs 4 to 18 related to the
change of symbols allotted to the respondent viz. 'hand' instead of 'bow &
arrow' allotted to Jagmohan Singh.
Upon these facts, it is averred in paragraph
12 that Jagmohan Singh alone be deemed to be set up as a candidate by the
Indian National Congress (I) within the meaning of paragraph 13 of the Election
Symbols (Reservation & Allotment) Order, 1968 and not the respondent, and
that the candidates could withdraw their 708 nomination papers under s. 37 (1)
before 3 p.m. on May 5, 1980 which was notified by the Election Commission to
be the last date for withdrawal of candidatures under s. 30 (c) and thereafter
the Returning Officer was enjoined under s. 38 (1) to publish in the prescribed
Form 7A the names and addresses of the contesting candidates together with the
symbols allotted to them. It is then averred in paragraph 14:
"On a perusal of para 18 of the Symbols
Order it is clear that the Election Commission has no power to issue
instructions and directions to the Returning Officer of an Assembly
Constituency to re-allot the symbol once allotted to a contesting candidate
under sub-rule (4) of rule 10 of the Conduct of Elections Rules and to allot
the symbol reserved for a National Party who has allotted the symbol to a
candidate deemed to be set up by that political party under para 13 of the
Symbols Order to any other person after the publication of the list of the
contesting candidates in Form 7A." In paragraph 15 after stating that
Jagmohan Singh had delivered to the Returning Officer a notice in writing as
provided for under paragraph 13 (b) from Shri Darbara Singh, President, Punjab
Pradesh Congress (I) Committee, who was duly authorized by the Indian National
Congress (I) to issue such authorization as envisaged under paragraph 13 (c),
the appellant avers that the action of the Returning Officer in recalling on
May 8, 1980 the allotment of the symbol 'hand' to Jagmohan Singh on May 5, 1980
and allotting the same to the respondent, was in violation of the provisions of
the Act and the rules made thereunder, and the result of the election, insofar
as it concerns the returned candidate i.e.
the respondent, has been materially affected
inasmuch as because of the change of symbol Jagmohan Singh got only 242 votes
while the respondent could not have secured more than the same number if he had
contested on the symbol 'bow & arrow' earlier allotted to him. If the
respondent had not been allotted the reserved symbol 'hand' of the Indian
National Congress (I), he could not have won the election.
In paragraphs 16, 17 and 18, the appellant
set out some facts showing how the result of the election, insofar as it
concerns the respondent, has been materially affected by the change of
allotment of symbols.
709 The respondent filed a written statement
controverting the allegation that there was a breach of paragraph 13 of the
Symbols Order by the change of allotment of symbols made by the Returning
Officer in accordance with the instructions issued by the Election Commission.
It was pleaded, inter alia, that the respondent had made a declaration in the
nomination paper filed by him on May 2, 1980 to the effect that he had been
selected as a candidate of the Indian National Congress (I); and that he had on
May 5, 1980 furnished a notice to the Returning Officer signed and issued by
Shri Darbara Singh, President, Punjab Pradesh Congress (I) Committee, in
pursuance of paragraph 13 (b) of the Symbols Order. It was alleged that after
the respondent had been adopted as a candidate by the Indian National Congress
(I), Jagmohan Singh made an effort to get that party's ticket for the seat and
produced a letter from Shri Darbara Singh dated May 5, 1980 before the
Returning Officer showing that he was the official candidate of the Indian
National Congress (I). When the respondent learnt of this move on the part of
Jagmohan Singh, he met the President of the Indian National Congress (I) at New
Delhi on the morning of May 5, 1980 and apprised her of the situation and was
informed that he had been finally selected as the party candidate and there was
no question of a change.
It is further averred that a communication
was sent by Shri Buta Singh on May 5, 1980 to the Chief Election Officer,
Punjab, Chandigarh and the Returning Officer, 99- Moga Assembly Constituency,
in supersession of all earlier communications with regard to the Assembly
Constituency, stating that the respondent was the official candidate of the
Indian National Congress (I) and that the party's symbol 'hand' be allotted to
him. A letter to this effect was also delivered by Smt. G. Brar, Member of
Parliament to the Election Commission on the morning of May 5, 1980.
Thereafter, Shri Ganesan, Secretary to the
Election Commission, got in touch with the Chief Electoral Officer, Chandigarh
and informed him that the respondent was the official candidate of the Indian
National Congress (I).
There was a mention of this talk in the telex
message sent by the Secretary to the Returning Officer, Moga, with copy to the
Chief Electoral Officer, Punjab on May 5, 1980.
A preliminary objection was raised on behalf
of the respondent that the averments in paragraphs 4 to 18 as well as
paragraphs 19A 710 and 20, with which we are not concerned, do not disclose any
cause of action and therefore they are liable to be deleted under Order VII, r.
11 (a) of the Code of Civil Procedure.
The High Court accordingly framed a
preliminary issue to the effect :
"Whether paragraphs 4 to 18, 19 (a) and
20 of the election petition have to be deleted because the averments made
therein do not make out any case for setting aside the election under s. 100
(1) (d) (iv) and s. 123 (7) of the Representation of the People Act." By
the judgment under appeal, the High Court sustained the preliminary objection
and directed that the averments in paragraphs 4 to 18 be struck out from the
election petition.
In dealing with the question, the High Court
observed that the preliminary issue had to be decided upon a consideration of
the pleas in the election petition and nothing averred in the written statement
could be taken into account.
On a consideration of the averments in
paragraphs 4 to 18 the High Court felt that the use of the word
"instructions" in Annexure P-I, the letter addressed by the Returning
Officer, Moga Assembly Constituency on May 8, 1980 to all the candidates
intimating about the change in the allotment of election symbol to the
respondent, cannot lead to an inference of their being issued under paragraph
18 of the Symbols Order. It then observes :
"The petitioner has not at all disclosed
in the election petition as to what was exactly the order of the Election
Commission behind the instructions in Annexure P-I, and how it was in
contravention of any of the provisions of the Act, or rule, or order made
thereunder." It was urged on behalf of the respondent that before filing
the election petition it was incumbent on the appellant to find out the entire
circumstances in which the Election Commission passed the order as to the
change of symbols and consequently issued instructions to the Returning Officer
in that behalf. The High Court accepted the contention and observed that
"in the absence of material circumstances, non-compliance with the
provisions of r. 10 (5) of the Conduct of Election Rules, 1961, or of paragraph
13 of the Election Symbols (Reservation & Allotment) Order, 1968 could not
be spelled out," Further, the High Court was of the view that 711 the
Symbols Order having been made by the Election Commission in exercise of the
powers under Art. 324 of the Constitution read with Rs. 5 and 10 of the Conduct
of Elections Rules, it cannot be said to be an order made under the Act and
therefore the provisions of s. 100 (1) (d) (iv) of the Act were not attracted.
Accordingly, the High Court directed that paragraphs 4 to 18 of the election
petition be deleted.
It is argued by learned counsel for the
appellant that under sub-s. (1) of s. 83 of the Act, an election petition must
contain a concise statement of the material facts on which the election
petitioner relies; the words "material facts" mean the facts necessary
to formulate a complete cause of action. It is urged that all the material
facts have been stated in the election petition to show that change of
allotment of symbols by the Returning Officer, in compliance with the
directions of the Election Commission, was in breach of r. 10 (5) and paragraph
13 of the Symbols Order which gave rise to a cause of action under s. 100 (1)
(d) (iv) of the Act. According to the learned counsel, the appellant had
disclosed all the facts within his knowledge and it was no part of his duty to
anticipate the defence and plead facts in relation thereto. It is further urged
that the High Court was in error in holding that the breach of r.
10 (5), paragraphs 13 and 18 of the Symbols
Order does not constitute non-compliance with any provisions of the
Constitution, or the Act, or any rules or orders made thereunder.
In reply, learned counsel for the respondent
submitted that the Symbols Order was not an order made under the Act and
therefore the change of allotment of symbols was a matter which fell outside
the purview of s. 100 (1) (d) (iv) of the Act, It was urged that there was no
breach of r. 10 (5) of the Conduct of Elections Rules or of paragraphs 13 and
18 of the Symbols Order inasmuch as the respondent was the official candidate
set up by Indian National Congress (I) and he had in the nomination paper filed
by him before the Returning Officer on May 3, 1980 made a declaration to the
effect and had also indicated his choice of that party's reserved symbol
'hand'. Our attention was drawn to certain averments in the written statement
which tend to show that the respondent was, in fact, the candidate sponsored by
the Indian National Congress (I). Learned counsel made a grievance that the
appellant had deliberately suppressed this fact in paragraph 7 of the election
petition. Further, he urged that it was incumbent on the appellant to find out
the 712 circumstances in which the Election Commission issued the necessary
instructions as to the change of symbols under paragraph 18 of the Symbols order.
It was contended that the High Court was therefore justified in striking out
paragraphs 4 to 18 of the election petition on the ground that they do not
disclose any cause of action. Further it was contended that the High Court had
no power to order further and better particulars under Order VI, r. 5 of the
Code of Civil Procedure. In support of the contention, reliance was placed on
Hari Vishnu Kamath v. The Election Tribunal, Jabalpur & Anr. (1) In this
appeal, two questions arise. First of these is whether any breach of paragraph
13 or 18 of the Symbols Order amounts to non-compliance with the provisions of
the Constitution, or the Act, or any rules or orders made under the Act and
therefore the change of allotment of symbols by the Returning Officer in
compliance with the directions of the Election Commission was a matter which
fell within the purview of s. 100 (1) (d) (iv) of the Act. The second is
whether it was incumbent on the appellant before filing the election petition
to find out the circumstances in which, and the reasons for which, the Election
Commission issued necessary instructions under paragraph 18 of the Symbols
Order; and if so, whether failure to disclose such facts amounts to
non-disclosure of material facts i.e. an incomplete cause of action under s.
100 (1) (d) (iv) of the Act and therefore the averments in paragraphs 4 to 18
of the election petition were liable to be struck out under Order VI, r. 16 of
the Code of Civil Procedure, 1908.
As to the first question, there can be no doubt
whatever that the Symbols Order is an order made under the Act. Under Art. 324
of the Constitution, the superintendence, direction and control of the
preparation of the electoral rolls for, and the conduct of, all elections to
Parliament and the Legislature of every State and of elections to the offices
of President and Vice-President held under the Constitution, vests in the
Election Commission. The Act is a law made by Parliament under Art.
327 of the Constitution to provide for the
conduct of elections to the Houses of Parliament and to the House or Houses of
the Legislature of each State, the qualifications and disqualifications for
membership of those Houses, the corrupt practices and other offences at or in
connection with 713 such elections and the decision of doubts and disputes
arising out of or in connection with such elections.
Sub-s. (1) of s. 169 of the Act provides that
the Central Government may, after consulting the Election Commission, by
notification in the Official Gazette, make rules for carrying out the purposes
of the Act. Sub-s. (2) thereof provides that in particular, and without
prejudice to the generality of the foregoing power, the rules framed by the
Central Government under sub-s.(1) may provide for all or any of the matters
enumerated therein. In exercise of the powers under s. 169 of the Act, the
Central Government made the Conduct of Elections Rules, 1961 for the purpose of
regulating the mode of holding elections to the Houses of Parliament or to the
House or either House of the Legislature of every State. Rule 5 of the Conduct
of Elections Rules requires the Election Commission to specify the symbols that
may be chosen by candidates in parliamentary and assembly elections and the
restrictions to which that choice shall be subject, and it provides:
"5. Symbols for elections in
parliamentary and assembly constituencies-(1) The Election Commission shall, by
notification in the Gazette of India and in the Official Gazette of each State,
specify the symbols that may be chosen by candidates at elections in
parliamentary or assembly constituencies and the restrictions to which their
choice shall be subject.
(2) Subject to any general or special
direction issued by the Election Commission either under sub-rule (4) or
sub-rule (5) of rule 10, where at any such election, more nomination papers
than one are delivered by or on behalf of a candidate, the declaration as to
symbols made in the nomination paper first delivered, and no other declaration
as to symbols, shall be taken into consideration under rule 10 even if that
nomination paper has been rejected".
Rule 10 provides for allotment of symbols to
the contesting candidates by the Returning Officer subject to any general or
special 714 directions issued in that behalf by the Election Commission.
It, insofar as relevant, reads as follows:
"10. Preparation of list of contesting
candidates:
(1) xx xx xx (2) xx xx xx (3) xx xx xx (4) At
an election in a parliamentary or assembly constituency, where a poll becomes
necessary, the returning officer shall consider the choice of symbols expressed
by the contesting candidates in their nomination papers and shall, subject to
any general or special direction issued in this behalf by the Election
Commission- (a) allot a different symbol to each contesting candidate in
conformity, as far as practicable, with his choice; and (b) if more contesting
candidates than one have indicated their preference for the same symbol, decide
by lot to which of such candidates the symbol will be allotted.
(5) The allotment by the returning officer of
any symbol to a candidate shall be final except where it is inconsistent with
any directions issued by the Election Commission in this behalf in which case
the Election Commission may revise the allotment in such manner as it thinks
fit." The Election Symbols (Reservation & Allotment) Order, 1968 was
issued by the Election Commission in exercise of its powers under Art. 324 of
the Constitution read with rs.
5 and 10 of the Conduct of Elections Rules,
1961 and all other powers enabling in that behalf. The primary object and
purpose of the Symbols Order, as the long title and the preamble show, is to
provide for specification, reservation, choice and allotment of symbols at
elections in parliamentary and assembly constituencies, for the recognition of
715 political parties in relation thereto and for matters connected there-
with. The purpose and object of the Symbols Order as well as the source of
power under which the Order was issued is brought out in the preamble which
reads:
"Whereas the superintendence, direction
and control of all elections to Parliament and to the Legislature of every
State are vested by the Constitutution of India in the Election Commission of
India.
And, whereas it is necessary and expedient to
provide in the interests of purity of election to the House of the People and
the Legislative Assembly of every State and in the interests of the conduct of
such elections in a fair and efficient manner, for the specification,
reservation, choice and allotment of symbols for the recognition of political
parties in relation thereto and for matters connected therewith.
Now, therefore, in exercise of the powers
conferred by article 324 of the Constitution read with rule 5 and rule 10 of
the Conduct of Elections Rules, 1961, and all other powers enabling it in this
behalf, the Election Commission of India hereby makes the following
Order." It would be apparent from the provisions of the Conduct of
Elections Rules, 1961 and the Election Symbols (Reservation & Allotment)
Order, 1968 that when elections are imminent, allotment of symbols to
candidates for elections in parliamentary and assembly constituencies is but an
important stage of such elections. The provisions for registration of political
parties and their recognition as National or State parties by the Commission
are only for the purpose of allotment, reservation and specification of symbols
at elections. The expression, "political party" is defined in
paragraph 2 (h) to mean "an association or body of individuals of India
registered with the Commission as a political party under paragraph 3 and
includes a political party deemed to be registered with the Commission under
the proviso to sub-para (2) of that paragraph." Paragraph 3 provides for
registration with the Commission of associations and bodies of individuals as
political parties for the purposes of the Order and paragraph 4 provides for
allotment of symbols. Paragraph 5 deals with the classification of 716 symbols.
According to this paragraph, a 'reserved symbol' is a symbol reserved for a
political party for exclusive use of that party. A symbol other than the
reserved symbol has been described by the said paragraph to be a 'free symbol'.
Paragraph 6 provides for the classification
of political parties. The parties are either recognized political parties or
unrecognized political parties and it lays down the conditions necessary for a
political party to be treated as a recognized political party. If a political
party is treated as a recognized political party in four or more States in
accordance with paragraph 6, it shall have the status of a National party
throughout the whole of India.
If, on the contrary, a political party is
treated as a recognized political party in less than four States, it shall
enjoy the status of a State party in the State or States in which it is a
recognized political party. We need not dilate upon this aspect because it is
not in dispute that the Indian National Congress (I) and Lok Dal are both
National parties. Paragraph 8 regulates the manner of allotment of symbols, and
sub-para (I) and (3) which are relevant for our purposes read:
"8. Choice of symbols by candidates of
National and State Parties and allotment thereof:
(1) A candidate set up by a National party at
any election in any constituency in India shall choose and shall be allotted,
the symbol reserved for that party and no other symbol.
(2) xx xx xx (3) A reserved symbol shall not
be chosen by, or allotted to, any candidate in any constituency other than a
candidate set up by a National party for whom such symbol has been reserved or
a candidate set up by a State party for whom such symbol has been reserved in
the State in which it is a State party even if no candidate has been set up by
such National or State party in that constituency." Paragraphs 9 to 12
deal with certain restrictions on the allotment of symbols, concessions to
certain candidates as well as choice of symbols for some categories of
candidates with which we are not concerned. Paragraph 13 specifies as to when a
candidate shall be 717 deemed to be set up as a candidate by a political party
and reads as under:
"13 When a candidate shall be deemed to
be set up by a political party-For the purpose of this Order a candidate shall
be deemed to be set up by a political party if, and only if, (a) the candidate
has made a declaration to this effect in his nomination paper;
(b) a notice in writing to that effect has,
not later than 3 P.M. on the last day of withdrawal of candidatures, been
delivered to the returning officer of the constituency; and (c) the said notice
is signed by the president, the secretary or any other office-bearer of the
party and the president, secretary or such other office- bearer is authorised
by the party to send such notice and the name and specimen signature of the
president, the secretary or such other office- bearer are communicated in
advance to the returning officer of the constituency and to the Chief Electoral
Officer of the State." Paragraph 18 which is important for our purposes is
in these terms:
"18. Power of Commission to issue
instructions and directions-The Commission may issue instructions and
directions:
(a) for the clarification of any of the
provisions of this Order;
(b) for the removal of any difficulty which
may arise in relation to the implementation of any such provisions; and (c) in
relation to any matter with respect to the reservation and allotment of symbols
and recognition of political parties, for which this order makes no 718
provision or makes insufficient provision, and provision is in the opinion of
the Commission necessary for the smooth and orderly conduct of elections."
In our judgment, the High Court was clearly in error in holding that the
Symbols Order was not an order made under the Act and therefore the change of
allotment of symbols by the Returning Officer in compliance with the directions
issued by the Election Commission, even if it was in breach of paragraph 13
thereof, did not amount to non-compliance with the provisions of the Constitution,
or the Act, or any rules or orders made under the Act and therefore the matter
fell outside the ambit of s. 100 (1) (d) (iv) of the Act. It is however urged
by learned counsel for the respondent that the Symbols Order was not an order
made under the Act.
Emphasis is laid on the words "under the
Act" occurring in s. 100 (1) (d) (iv) of the Act. We are afraid, the
argument is too tenuous to be accepted. The Symbols Order was issued by the
Election Commission under Art. 324 of the Constitution in exercise of its
undoubted powers of superintendence, direction and control of the conduct of
all elections to Parliament and Legislature of every State. It is also
relatable to rules 5 and 10 of the Conduct of Elections Rules framed by the
Central Government in exercise of their powers under s. 169 of the Act. Rule 4
of the Conduct of Elections Rules provides that every nomination paper
presented under s. 33 of the Act shall be in Forms 2A to 2E, as may be
appropriate. The Forms 2A and 2B require the candidate to choose symbol. Under
r. 5 (1) the Election Commission by notification may specify the symbols that
may be chosen by candidates at elections to parliamentary and assembly
constituencies. Under r. 10 (4) the Returning Officer shall consider the choice
of symbols expressed by contesting candidates and "subject to any general
or special direction issued by the Election Commission" allot different
symbols to different candidates. The allotment of symbols by the Returning
Officer is final under sub-r. (5) of r. 10 except where it is inconsistent with
any directions issued by the Election Commission in that behalf in which case
the Election Commission may revise the allotment in such manner as it thinks
fit.
In Sadiq Ali & Anr. v. Election
Commission of India & Ors.(1) Khanna, J. speaking for the court, after
setting out the scheme of 719 the Symbols Order, explained the reasons which
led to the introduction of symbols, in these words:
"It is well known that overwhelming
majority of the electorate are illiterate. It was realised that in view of the
handicap of illiteracy, it might not be possible for the illiterate voters to
cast their votes in favour of the candidate of their choice unless there was
some pictorial representation on the ballot paper itself whereby such voters
might identify the candidate of their choice. Symbols were accordingly brought
into use. Symbols or emblems are not a peculiar feature of election law of
India. In some countries, details in the form of letters of alphabet or numbers
are added against the name of each candidate while in others, resort is made to
symbols or emblems. The object is to ensure that the process of election is as
genuine and fair as possible and that no elector should suffer from any
handicap in casting his vote in favour of a candidate of his choice." The
Symbols Order made by the Election Commission in exercise of its power under
Art 324 of the Constitution read with rs. 5 and 10 of the Conduct of Elections
Rules and all other powers enabling it in that behalf, are in the nature of
general directions issued by the Election Commission to regulate the mode of
allotment of symbols to the contesting candidates. It is a matter of common
knowledge that elections in our country are fought on the basis of symbols.
It must but logically follow as a necessary
corollary that the Symbols Order is an order made under the Act. Any other view
would be destructive of the very fabric of our system of holding parliamentary
and assembly constituency elections in the country on the basis of adult
suffrage.
As to the second question, there can be no
doubt whatever that the High Court was not justified in directing that the
averments in paragraphs 4 to 18 of the election petition be deleted on the
ground that there was non- disclosure of material facts sufficient to give rise
to a cause of action under s. 100 (1) (d) (iv) of the Act.
The order passed by the High Court directing
the striking out of paragraphs 4 to 18 of the election petition can hardly be
supported. It is not clear from the order that the High Court 720 proceeded to
act under Order VII, r. II (a) or under Order VI, r. 16 of the Code in passing
the order that it did. It is rightly conceded that the High Court could not
have acted under Order VII, r. II (a) of the Code. Where the plaint discloses
no cause of action it is obligatory upon the Court to reject the plaint as a
whole under Order VII, r. II (a) of the Code, but the rule does not justify the
rejection of any particular portion of a plaint: Mulla's Civil Procedure Code,
13th Edn., Vol. 1, p. 755. It is therefore necessary to consider whether the
order passed by the High Court could be justified under order VI, r. 16 of the
Code, which reads as follows:
"16.Striking out pleadings-The Court may
at any stage of the proceedings order to be struck out or amended any matter in
any 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." The
order passed by the High Court directing that paragraphs 4 to 18 of the
election petition be struck out cannot be sustained on the terms of Order VI,
r. 16 of the Code. There is no finding reached by the High Court that the
averments in paragraphs 4 to 18 of the election petition are either
unnecessary, frivolous or vexatious, or that they are such as may tend to
prejudice, embarrass or delay the fair trial of the election, nor is there any
finding that the averments therein are such as to constitute an abuse of the
process of the court. That being so, the High Court had no power to direct the
striking out of paragraphs 4 to 18 of the election petition.
It is submitted by learned counsel for the
respondent that there is non-disclosure of the necessary facts by the appellant
in paragraphs 4 to 18 of the election petition to show as to how the order of
the Election Commission was illegal, or as to how there was non-compliance with
the provisions of the Constitution, or the Act, or any rules or orders made
under the Act within the meaning of s. 100 (1) (d) (iv) of the Act. He urges
that it was incumbent on the appellant to 721 find out the circumstances in
which the Election Commission issued the necessary instructions as to the
change of symbols under paragraph 18 of the Symbols Order. It is contended that
the High Court was therefore justified in striking out paragraphs 4 to 18 of
the election petition on the ground that they do not disclose any cause of
action inasmuch as the averments therein do not constitute a plea of
non-compliance with the provisions of the Constitution, or the Act, or any
rules or orders made under the Act so as to attract s. 100 (1) (d) (iv) of the
Act. These contentions, in our opinion, cannot be given effect to.
The approach of the High Court in dealing
with the preliminary issue appears to be wholly unwarranted. In dealing with
the question whether or not paragraphs 4 to 18 of the election petition
disclose any cause of action, the High Court has cast on the appellant the
burden of disclosing facts not within his knowledge. It speaks of his duty to
produce evidence prima facie to show that the change of allotment of symbols by
the Returning Officer to the respondent was in contravention of r. 10 (5) of
the Conduct of Elections Rules read with paragraph 13 of the Symbols Order. It
then observes that the onus was on him to establish as to how and under what
circumstances the Election Commission issued the instructions in question. It
accepts the contention of the respondent that it was incumbent on the appellant
to set himself on an inquiry into these circumstances. According to the High
Court, failure to disclose the circumstances which led the Election Commission
to issue directions or instructions to the Returning Officer to effect a change
in the allotment of symbols, amounts to non-disclosure of material facts which
must entail in deletion of the averments in paragraphs 4 to 18 by which the
appellant seeks relief under s. 100 (1) (d) (iv) of the Act.
We are afraid, the High Court has viewed the
matter from a wrong perspective.
We find it difficult to comprehend the
reasoning adopted by the High Court that there was non-disclosure of material
facts. True it is that it begins the judgment by observing that a question of
this nature, as it must be so, has to be decided on a consideration of the
averments in the election petition alone, and the allegations in the written
statement cannot be taken into account. A preliminary objection that the
election petition is not in conformity with s. 83 (1) (a) of the Act i.e. it
does not contain the concise statement of the material facts on which the
petitioner relies is but a plea in the 722 nature of demurrer and in deciding
the question the Court has to assume for this purpose that the averments
contained in the election petition are true. Unfortunately, while deciding the
preliminary issue the High Court has made certain observations which tend to
show that the allegations in the written statement were very much present in
its mind.
In repelling the contention of the appellant
that the instructions issued by the Election Commission for re- allotment of
symbols were referable to paragraph 18 of the Symbols Order, the High Court
observes:
"Upon the use of word "instructions"
in Annexure P-1, it was sough to be inferred that the issuance thereof could
only be within the ambit of para 18 of the Symbols Order, since the change of
Symbols was outside the ambit of para 18 therefore the said change was illegal.
The argument has not impressed me, inasmuch as in the normal course of things
the Election Commission, having passed an order, issues instructions, for its
compliance. As such, the use of the "instructions" in any
communication cannot lead to an inference of their being issued under the said
para 18 of the Symbols Order." It then goes on to observe:
"The petitioner has not at all disclosed
in the election petition as to what was exactly the order of the Election
Commission behind the instructions in Annexure P-1 and how it was in
contravention of the provisions of the aforesaid Act or the rules or order made
thereunder." It proceeds to say:
"Thus, the argument of the learned
counsel for the returned candidate proceeded that before filing the election
petition it was incumbent upon the petitioner to find out the entire
circumstances in which the Election Commission passed the order as to the
change of symbols and consequently issued instructions vide Annexure P-1 to the
Returning Officer." In coming to the conclusion that there was non-
disclosure of material facts, the High Court observes:
"In the complete absence of the material
circumstances, non-compliance with the aforesaid provisions could not be 723
spelt out and hence in the election petition none of the said provisions has
been specifically sought.... .
I direct that paras 4 to 18 of the election
petition be deleted." These observations made by the High Court proceed on
a misconception of law.
It is therefore necessary to consider whether
the order passed by the High Court could be justified under Order VI, r. 16 of
the Code. That would depend on whether or not the election petition is in
conformity with the requirements of s. 83 of the Act, which reads as follows:
"83. Contents of Petition-(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; and
(c) shall be signed by the petitioner and verified in the manner laid down in
the Code of Civil Procedure, 1908 for the verification of pleadings:
Provided that where the petitioner alleges
any corrupt practice, the petition shall also be accompanied by an affidavit in
the prescribed from in support of the allegation of such corrupt practice and
the particulars thereof.
(2) Any schedule of annexure to the petition
shall also be signed by the petitioner and verified in the same manner as the
petition." Cl. (a) of s. 83 is based on the provisions of Order VI, r.2(1)
of the Code which states the basic or cardinal rules of pleadings and is in the
following terms:
724 "2. Pleading to state material facts
and not evidence- Every pleading shall contain, and contain only, a statement
in a concise form of the material facts on which the party pleading relies for
his claim in defence, as the case may be, but not the evidence by which they
are to be proved." Cl. (a) of sub-s. (1) of s. 83 of the Act enjoins that
an election petition shall contain a concise statement of the material facts on
which the election petitioner relies. It is no part of the statement of claim
of an election petitioner to anticipate the defence and to state what he would
have to say in answer to it. Cl. (b) of sub-s.(1) of s. 83 interdicts that an
election petitioner must set forth full particulars of any corrupt practice on
which he challenges the election of the returned candidate under s.
123(7) including as full 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. It is
more or less based on Order VI, r.4 of the Code which reads:
"4. In all cases in which the party
pleading relies on any misrepresentation, fraud, breach of trust, wilful
default, or undue influence, and in all other cases in which particulars may be
necessary beyond such as are exemplified in the forms aforesaid, particulars
(with dates and items if necessary) shall be stated in the pleading." The
High Court has ample power while trying an election petition to direct further
and better particulars as to the nature of the claim or defence under Order VI,
r. 5 of the Code which reads:
"5. A further and better statement of
the nature of the claim or defence, or further and better particulars of any
matter stated in an pleading may in all cases be ordered, upon such terms, as
to costs and otherwise, as may be just." Under Order VI, r.5, particulars
will be ordered of the material facts on which the party pleading relies for
his claim or defence. If a party's pleading is defective he can also seek leave
to alter and amend his own defective pleading under Order VI, r.17. There is no
express rule providing for the consequence of a party failing to deliver
particulars required by order of Court. but the decisions are 725 to the effect
that either by the order calling for particulars or by a later order the Court
can direct the claim or defence to be struck out under Order VI, r. 16 of the
Code.
There is distinction between "material
facts" and "particulars" The word "material facts"
show that the facts necessary to formulate a complete cause of action must be
stated. Omission of a single material fact leads to an incomplete cause of
action and the statement or plaint becomes bad. The distinction which has been
made between "material facts" and "particulars" was brought
out by Scott, L.J. in Bruce v. Odhams Press Ltd. (1) in the following passage:
"The cardinal provision in r. 4 is that
the statement of claim must state the material facts. The word
"material" means necessary for the purpose of formulating a complete
cause of action; and if any one "material" fact is omitted, the
statement of claim is bad: it is "demurrable" in the old phraseology,
and in the new is liable to be "struck out" under O. xxv, r.
4; See Philips v. Philips (2): or "a
further and better statement" of claim may be ordered under O.XIX r. 7.
The function of "particulars" under
r. 6 is quite different. They are not to be used in order to fill material gaps
in a demurrable statement of claim-gaps which ought to have been filled by
appropriate statements of the various material facts which together constitute
the plaintiff's cause of action. The use of particulars is intended to meet a
further and quite separate requirement of pleading, imposed in fairness and
justice to the defendant. Their function is to fill in the picture of the
plaintiff's cause of action with information sufficiently detailed to put the
defendant on his guard as to the case he has to meet and to enable him to
prepare for trial." The dictum of Scott, L.J. in Bruce's case, supra, has
been quoted with approval by this Court in Samant N. Balakrishan v. George
Fernandez & Ors.(3) and while observing that the requirements of 726 s. 83
are mandatory, the distinction between material facts and particulars was
brought out in the following terms:
"The word "material" shows
that the facts necessary to formulate a complete cause of action must be
stated. Omission of a single material fact leads to an incomplete cause of
action and the statement of claim becomes bad. The function of particulars is
to present as full a picture of the cause of action with such further
information in detail as to make the opposite party understand the case he will
have to meet." Thus, the word "material" in material facts under
s. 83 of the Act means facts necessary for the purpose of formulating a
complete cause of action; and if any one "material" fact is omitted,
the statement or plaint is bad; it is liable to be struck out. The function of
"particulars" is quite different, the use of particulars is intended
to meet a further and quite separate requirement of pleading imposed in
fairness and justice to the returned candidate. Their function is to fill in
the picture of the election petitioner's cause of action with information
sufficiently detailed to put the returned candidate on his guard as to the case
he has to meet and to enable him to prepare for trial in a case where his
election is challenged on the ground of any corrupt practice.
Sub-s. (1) of s. 87 of the Act enacts that
the trial of an election petition shall be, as nearly as may be, in accordance
with the procedure applicable under the Code of Civil Procedure, 1908 to the
trial of suits, subject to the provisions of the Act and of any rules made
thereunder.
There are no express provisions in the Act or
in the rules made thereunder as contemplated under sub-s. (1) of s. 87 of the
Act to deal with the situation like the present. The provisions of the Code
accordingly must apply in such a case as provided by sub-s. (1) of s. 87 of the
Act. That being so, the provisions of Order VI which are integral part of the
Code come into play except to the extent modified by sub-s. (5) of s. 86 of the
Act.
Learned counsel for the respondent however
contends that the High Court had no power to direct further and better
particulars under Order VI, r. 5 of the Code. In support of the contention,
reliance is placed on the decision of the Madhya Pradesh High 727 Court in Hari
Vishnu Kamath v. The Election Tribunal & Anr.
(1) It is urged that the particulars given in
the petition were insufficient to formulate a cause of action and, therefore
the High Court had the power to strike out the pleadings under Order VI, r. 16
of the Code. The contention cannot, in our opinion, be accepted. In Bhikaji
Keshao Joshi & Anr. v. Brijlal Nandlal Joshi & Ors, (2) the Court
recognized a power in the Tribunal to direct particulars of a corrupt practice
and to strike out the pleadings in a case where there was a default in
compliance with a previous order directing particulars. Thereafter, there was a
change brought about in law by Act 27 of 1956. Sub-s. (5) of s. 90 introduced
by that Act recast the old sub-s. (3) of s. 83 and took away the power of the
Election Tribunal to order further and better particulars of corrupt practice while
retaining the power to allow amendment or amplification though the language
used was slightly different.
The decision of the Madhya Pradesh High Court
in Hari Vishnu Kamath's case, (supra) on which reliance is placed is
inapplicable. A question arose whether the Election Tribunal was justified in
directing furnishing of better particulars of certain corrupt practices. There,
the High Court was dealing with the Act as it stood after its amendment by Act
27 of 1956. In view of the change in law brought about, the High Court held
that the rule as laid down by this Court in Bhikaji Keshao Joshi's case,
(supra) was no longer applicable. After the repeal of sub-s. (3) of s. 83 of
the Act by Act 27 of 1956, which introduced in its place sub-s.
(5) of s. 90, conferring power on the
Tribunal to allow amendment or amplification of particulars, the High Court
held that the word "allowed" meant allowed on an application and
therefore there was no power left with the Tribunal under sub-s. (5) of s. 90 to
direct the furnishing of better particulars and that there would equally be no
power to strike out the pleadings for default of furnishing particulars, if
directed. It was however, held that it was open to the Tribunal to find that
the particulars given in a petition were insufficient for trial. It is evident
that the decision of the High Court turned on the provisions of sub- s. (5) of
s. 90, which is identical to sub-s. (5) of s. 86 of the Act, but both these
provisions relate to allowing an amendment of the election petition subject to
such terms as to costs or otherwise with a view to furnish the particulars of
any corrupt practice. The decision of the 728 Madhya Pradesh High Court in Hari
Vishnu Kamath's case, (supra) is therefore distinguishable.
It must accordingly be held that the High
Court was not justified in striking out paragraphs 4 to 18 of the election
petition acting presumably under Order VI, r. 16 of the Code of Civil
Procedure, 1908 on the ground that the facts stated therein were not sufficient
to formulate a complete cause of action under s. 100(1) (d)(iv) of the
Representation of the People Act, 1951 i.e. due to non-disclosure of material
facts.
In the result, the appeal succeeds and is
allowed with costs. The judgment of the High Court striking out the averments
in paragraphs 4 to 18 of the election petition is set aside and it is directed
to proceed with the trial according to law.
H.L.C. Appeal allowed.
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