Gadamete Vs Duter Padu

P.K. Musahary, J.@mdashHeard Mr. A.M. Mazumdar, learned senior counsel, assisted by Mr. S.S. Dey, learned Counsel, for the applicant/Respondent returned candidate. Also heard Mr. S. Shyam, learned Counsel for opposite party/election Petitioner. 2. "Dismiss this election petition at the threshold." Demands the applicant/Respondent returned candidate. He has filed the instant misc. case under Order 6, Rule 16 read with Order 7, Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as '' Code of CPC in short) and Section 87 of the Representation of People Act, 1951 (hereinafter referred to as ''RP Act'' in short). For him, there are 2 (two) preliminary grounds:

(1) The Election Petitioner has not furnished any affidavit along with verification thereby rendering the entire election petition and the pleadings contained therein unworthy of any trial; and

(2) Schedule of corrupt practice attached to the election petition is neither supported by any verification as mandatorily required u/s 83(2) of the RP Act read with Order 6, Rule 15 (4) of Code of CPC nor accompanied by any affidavit.

3. Applicant''s learned Counsel, Mr. S.S. Dey, exhaustively deals with the relevant provisions under the RP Act and the amended Code of Civil Procedure. Reference has been made by him to Section 83(1)(c) of the RP Act which provides that the election petition should be signed by the Petitioner and verified in the manner laid down in the Code of CPC for verification of pleadings. Special reference has been made to the proviso to Section 83(1)(c) of Code of Civil Procedure, which provides that where the Petitioner alleges any corrupt practice, the petition should also be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. Additionally, special reference has been made to provision u/s 83(2) of RP Act which provides that any schedule or annexure to the election petition should also be signed by the Petitioner and verified in the same manner as the petition. He then refers to Order 6, Rule 15 (4) of Code of CPC which provides that a person verifying the pleading shall also furnish an affidavit in support of his pleading. In order to make his point, he takes me through pages 95 and 96 of the election petition. So also, pages 99-104 of the election petition "schedule of corrupt practice", which, according to the applicant''s learned Counsel, are not supported by any mandatorily required verification. He again turns to pages 112-282 of the election petition "annexure to election petition", to convince me that they are without any verification. Reliance has been put by Mr. Dey, learned Counsel, on Narender Singh Vs. Mala Ram and Another, and H.D. Revanna Vs. G. Puttaswamy and Others,

4. Referring to decision in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), Mr. Dey, learned Counsel, submits that prior to amendment of Code of Civil Procedure, a plaint was to be accompanied by a verification only but after the amendment, apart from verification, an affidavit is required to be filed along with the plaint under the amended Section 26(2) of Order 6, Rule 15 (4) of the Code of CPC and it has an affect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. Referring to verification in the election petition on page 105, it is submitted that they are extremely vague and it is not stated as to what was the source of information on which pleadings are based and which part really is on the basis of personal knowledge and information, is not indicated. The opposite party/election Petitioner, according to Mr. Dey, learned Counsel, has filed the verification in a very casual manner without bothering for the mandatory provision in Order 6, Rule 15 of Code of Civil Procedure. Again referring to and reading the affidavit in the election petition on pages 106 to 111, it is submitted that it is not in Form No. 25, as prescribed under Rule 94-A of the Conduct of Election Rules, 1961. These defects in verification and affidavit are curable as held in Regu Mahesh @ Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev and Another, but if the election Petitioner takes no steps to cure the same, inspite of being pointed out, the election petition would be liable to dismissal in limini.

5. The opposite party /election Petitioner sharply reacts by taking a preliminary objection on the maintainability of the instant misc. case on the ground of constructive res judicata inasmuch as the applicant had already filed a misc. case being Misc. Case (EP) No. 02(AP) 2010 for dismissal of the election petition in limini taking the ground that on the copy of the election petition supplied to the Respondent, it is not written as attested to be true copy on the first page of the election petition. The said misc. case was rejected by this Court vide judgment and order dated 08.04.2010 holding that the election petition is maintainable and it should proceed for trial. Mr. Shyam, learned Counsel, submits that the applicant/ Respondent returned candidate is debarred from filing the second misc. application on maintainability of the election petition inasmuch as the said issue has already been settled and the doctrine of constructive res judicata would be applicable to this case. According to him, doctrine of res judicata is a matter of public policy and hence, it would be applicable to all proceedings of civil nature and it is in the interest of public at large that finality should attach to the binding decisions pronounced by the Court on competent jurisdiction. Moreover, it is in the public interest that individuals should not be vexed twice over the same kind of litigation. For his submissions, he refers to Daryao and Ors. v. State of U.P. and Ors., reported in 1961 S.T.P.L. 1895 SC.

6. The applicant, according to Mr. Shyam, learned Counsel for the opposite party/election Petitioner, cannot approach the Court in a piecemeal manner asking dismissal of the election petition in limini. To reinforce his submission, he refers to Explanation IV to Section 11 of Code of CPC and the decision of the Apex Court in Ramadhar Shrivas Vs. Bhagwandas, wherein it is held that the object of Explanation IV is to compel the Plaintiff or the Defendant to take all the grounds of attack or defence in one and the same suit. The applicant has offered no explanation as to why he did not make the present demand at the time when the first misc. case, mentioned above, was filed before this Court. The applicant received the copy of the election petition and entered appearance on 01.02.2010 but he filed the present misc. case/application only on 10.05.2010 i.e. after the rejection of his first misc. case on 08.04.2010. In such a situation, for failure to file an application under Order 7, Rule 11 of Code of CPC immediately after receiving the defective election petition, the Court may draw an adverse inference against the applicant and reject the present misc. case in the light of the decision rendered in Chandrakant Uttam Chodankar Vs. Shri Dayanand Rayu Mandrakar and Others,

7. The submissions of Mr. Shyam, learned Counsel, on constructive res judicata, sounds impressive but it is found inapplicable to the present case inasmuch as Explanation IV to Section 11 Code of CPC refers to ''any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly or substantially in issue in such suit''. Here in the first misc. case which has already been rejected by this Court on 08.04.2010, the issue was whether the copy of the election petition as furnished to the Respondent without being attested to be true copy should be treated as a true copy of the election petition within the meaning of Section 81(3) of the RP Act, 1951 and if it is found that it is not a true copy, whether the election petition could be dismissed in limini. In the present misc. case, the issue involved is whether the election petition is accompanied by verification and affidavit, as required to be furnished as per provision under the Code of CPC and RP Act, and whether the election petition could be dismissed at the threshold for want of such verification and affidavit. In my considered view, the issues raised in the first misc. case which was rejected by this Court on 08.04.2010 and the instant misc. case, are quite distinct and different and as such, the benefit under the principle of constructive res judicata would not be available to the opposite party/election Petitioner.

8. The specific allegation of the applicant is that ''the Election Petitioner has not furnished any affidavit along with the verification thereby rendering the entire Election Petition and the pleadings contained therein unworthy of any trial" and the pleading unsupported by any verification whatsoever, as required under law has rendered all the unverified paragraphs of the election petition liable to be struck of as the same do not hold good and can not be looked into for the purpose of trial. It may be noted that there is no prescribed form for verification. No defect in the verification of the Election Petition has been pointed out by the applicant. The requirement of law is that the verification in Election Petition must be accompanied by an affidavit in Form 25, prescribed under Rule 94A of the Conduct of Election Rules, 1961 (hereinafter referred to as'' 1961 Rules'' only), provided there are allegations of corrupt practice against the returned candidate. The election in question involves allegation of corrupt practice and therefore, it is expected that an affidavit in Form 25A should be furnished apart from the usual verification but the same has not been furnished. This is an admitted position. However, the Election Petitioner furnished an affidavit in an usual Form not in conformity with the Form 25. Whether such an affidavit is acceptable in election petition? For answering this question, it needs a brief reference to Section 83 of the RP Act, which is quoted below:

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 of 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 (5 of 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 form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the Petitioner and verified in the same manner as the petition." Relevant it is to quote the Form No. 25 as prescribed under the 1961 Rules--

FORM 25

[See Rule 94-A]

AFFIDAVIT

I,....the Petitioner in the accompanying election petition calling in question the election of Shri/Smt ....(Respondent No. ...in the said petition) make solemn affirmation/oath and say--

(a) that the statement made in paragraphs ....of the accompanying election petition about the commission of the corrupt practice of....and the particulars of such corrupt practice mentioned in paragraphs ....of the same petition and in paragraphs .... of the Schedule annexed thereto are true to my knowledge;

(b) that the statements made in paragraphs ....of the said petition about the commission of the corrupt practice of....and the particulars of such corrupt practice given in paragraphs....of the said petition and in paragraphs....of the Schedule annexed thereto are true to my information;

(c)

(d)

etc.

Signature of deponent.

Solemnly affirmed/sworn by Shri/Smt. ....before me.... at....

Magistrate of the first class/Notary/ Commissioner of Oaths.

9. For the purpose of finding out as to whether the opposite party furnished acceptable affidavit it may be apt to quote the entire text of the affidavit as furnished with the election petition as under--

AFFIDAVIT

[FORM 25]

I, Smti. Duter Padu, Wife of Sri Geyum Padu, resident of Village-Darka, P.O. & P.S.--Aalo, District-West Siang, Arunachal Pradesh, the Petitioner in the accompanying election petition calling in question the election of Sri Gadam Ete, (Respondent in the said Petition) make solemn affirmation/oath and say--

1. That the statements made in Paragraphs 11(IX), 11(X), 11(XVI), 11(XVII), 11(XXXI), 11(XXXVII) of the accompanying election petition about the commission of the corrupt practice by the Respondent between 12.10.2009 by obtaining and procuring assistance from persons in the service of Government for the furtherance of prospect of the Respondents election and the particulars of such corrupt practice mentioned in Paragraphs 1 of the schedule annexed thereto are true to my personal knowledge and information derived from Sri Jumrik Ete, those made in Paragraphs 11 (XII), 11 (XIX), 11(XX) and 11 (XXXVI) are based on information received by me or gathered from the text of the documents referred to therein which I believe to be true.

2. That the statements made in Paragraphs 11 (I) and 11 (II) of the accompanying election petition about commission of corrupt practice by procuring the assistance of the Postal Departmental Employees in stealing the Postal Ballots by the Respondent and his agent and the particulars of such corrupt practice mentioned in Paragraph 2 of the schedule of corrupt practice are true to my knowledge, those made in Paragraphs 11 (IV), 11 (XI) and 11 (XXI) are true to my information derived from Sri Kirdo Ete and Sri Jumrik Ete and those made in Paragraphs 11 (III) and 11 (XVIII) of the election petition are based on information received by me or gathered from the text of the documents referred to therein which I believe to be true.

3. That the statements made in Paragraphs 11 (XIX), 11 (XXII), 11 (XXVI), 11 (XXVII), 11 (xxvIII), 11 (XXIX), 11 (xxx), 11 (XXXIV), 11 (XXXV), 11 (XXXVIII) and 11 (XXXIX) of the said petition about commission of corrupt practice by the Respondent by procuring and attempting to procure by himself and by his agent, the assistance of the Returning Officer who had extended undue help and assistance to the Respondent in furtherance of his poll prospect by receiving, admitting and counting the 40 forged and tampered Postal Ballots with his consent and the particulars of such corrupt practice given in those paragraphs of the said petition and in Paragraphs 3 of the schedule annexed thereto are true to my knowledge and information derived from different sources including Sri Kirdo Ete, Sri Komduk Loya, Sri Hemmar Lomi, Sri I do Loya and Nyaken Loya, those made in Paragraphs 11 (XXIII), 11 (XXV) and 11 (XXVII) are true to my information gathered from the text of those documents referred therein which I believe to be true.

4. That the statements made in Paragraphs 11 (VII) and 11 (VIII) of the said petition about the corrupt practice committed by the Respondent by himself or by his agents by procuring the assistance and undue favour from the Assistant Returning Officer Sri Kangki Darang in receiving the 65 forged Postal Ballots from Sukuni Sharma for ensuring win of the Respondent in the election and the particulars of such corrupt practice given in those paragraphs of the said petition and in Paragraph 4 of the said schedule annexed thereto are true to my information and knowledge which I believe to be true.

5. That the statements made in Paragraphs 11 (XXIV), 11 (XXXIII) of the said petition about the corrupt practice of procuring the assistance of the Postal Ballot Presiding Officer, Sri Gomo Sora, in issuing illegal Postal Ballots to persons not entitled for manipulating Postal Ballot Register, misprinting the names in the envelope containing Postal Ballots and aiding the agent of the Respondent in stealing at least 69 Postal Ballots from the Along Post Office, all acts done with the intent of enhancing the winning chances of the Respondent as mentioned in those paragraphs of the said petition and in Paragraph 5 of the schedule annexed to the petition are true to my knowledge, those in Paragraph 11 (XXXII) are true to my information gathered from the contents of the record and document mentioned therein which I believe to be true.

6. That the statements made in Paragraphs 11(V), 11(VI) and 11(XL) of the accompanying election petition about commission of corrupt practice by procuring the assistance and involvement of the Postal Departmental Employees Smti. Sukuni Sharma by the Respondent by himself or by his agent by alluring and threatening Smti. Sukuni Sharma to hand deliver the 65 forged Postal Ballots to the Returning Officer for the purpose of counting those forged postal ballots in his favour so as to ensure his win in the election as mentioned in those in Paragraph 6 of the schedule annexed thereto are true to my knowledge and from information derived from Sri Kasab Bagra which I believe to be true.

7. That the statements made in Paragraphs 11 (XIII) and 11 (XV) of the said petition about the corrupt practice u/s 123(7) of the Act of 1951 committed by the Respondent by himself or by his agent by procuring the assistance of the persons in Government service with his consent and under his influence and indulging bungling of postal ballots by stealing and forging at least 65 Postal Ballots done with the intent of enhancing his winning chances in the election as mentioned in those paragraphs of the said petition and in Paragraph 7 of the schedule annexed to the petition are true to my knowledge and information derived from Sri Kirdo Ete and Sri Jumrik Ete which I believe to be true.

Sd/- Duter Padu

Signature of Deponent

Solemnly affirmed/sworn by

Smti. Duter Padu at this 30th day of November, 2009, at Guwahati.

As stated earlier, there is no denial to the fact that the affidavit is not in prescribed form. In the entire affidavit, there is no mention of or reference to commission of corrupt practice. In Paragraph 2 of the affidavit, it has simply been mentioned which paragraphs of the election petition are--

(1) true to his knowledge

(2) true to his information derived from different sources including persons named therein, and

(3) are based on information received by him or gathered from the text of the documents referred to therein which he believes to be true.

The said affidavit has been mentioned as an ''Affidavit in support of the Election Petition''. The Election Petitioner has brought allegations of corrupt practice in the election petition in question. Whether he has been able to furnish ''material facts'' and ''material particulars'' of corrupt practice would be discussed later on. As for the acceptability of the affidavit, it is to find out whether each and every paragraph of the election petition pertaining to corrupt practice has been verified, either as "true to my knowledge" or "true to my information". From a close scrutiny of the affidavit it is found that Paragraphs 1 to 9 do not relate to corrupt practice. However, they have been verified either as true to knowledge or information received which the election Petitioner believes to be true. Such verification in the affidavit is superfluous but it cannot render the affidavit invalid. The allegations of corrupt practice have been made in Paragraphs 10 (I) to (XX) and 11 (I) to (XL) within the meaning of Section 123(7) of the RP Act. In the affidavit those paragraphs have been verified as true to knowledge of the election Petitioner or true to information derived from different sources, which he believes to be true. None of the statements/allegations made in the aforesaid paragraphs and sub-paragraphs has been left unverified or over-verified by way of verifying the same paragraph or sub-paragraph as true to his knowledge and true to information derived from sources and thereby a confusion has been created. Thus, from the affidavit, I find all the paragraphs and sub-paragraphs containing the allegation of corrupt practice have been verified although it has not been done in the exact manner required in an affidavit in prescribed form.

10. The Apex Court had an occasion to decide a similar issue in Umesh Challiyil Vs. K.P. Rajendran, In that case, the election Petitioner did not sign and affirm the affidavit in the prescribed manner inasmuch as there was no certification of the Notary that it was solemnly affirmed by the election Petitioner before him. The Apex Court viewed such defect as of very minor nature and it does not in any way go to the root of the matter so as to render the entire election petition not properly constituted entailing dismissal at the outset. In paragraph 12 of the said case, it is held that:

the Courts have to view whether the objections go to the root of the matter or they are only cosmetic in nature. It is true that the election petition has to be seriously construed. But that apart the election petition should not be summarily dismissed on such small breaches of procedure....

11. So also in H.D. Revanna Vs. G. Puttaswamy and Others, it is held that even where neither the verification of the election petition nor the supporting affidavit was in the prescribed form and the Petitioner had not specified as to which of the allegations were true to his personal knowledge and which ones were stated on information, the election petition was not ipso facto liable to be dismissed. The reasons have been given in Paragraph 14. The relevant portion thereof is quoted below:

14... Section 86 provides for dismissal of an election petition in limine for non-compliance with Sections 81, 82 and 117. Section 81 relates to the presentation of an election petition. It is not the case of the Appellant before us that the requirements of Section 81 were not complied with though in the High Court, a contention was urged that a true copy of the election petition was not served on the Appellant and thus the provisions of Section 81 were not complied with. Sections 82 and 117 are not relevant in this case. Significantly, Section 86 does not refer to Section 83 and non-compliance with Section 83 does not lead to dismissal u/s 86. This Court has laid down that noncompliance with Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6, Rule 16 or Order 7, Rule 11 Code of Civil Procedure. Defects in verification of the election petition or the affidavit accompanying the election petition has to be held to be curable and not fatal." In the said case, it is further held that the test in all cases of preliminary objection is to see whether any of the relief prayed for could be granted to the Petitioner if the averments made in the petition are proved to be true and if the answer to the question is in the affirmative, the maintainability of the petition has to be upheld.

12. Even in F.A. Sapa Etc., Etc., Vs. Singora and others, it was similarly held that a defect in the verification of the petition as well as a defect in the affidavit can be cured and it is not fatal to the maintainability of the petition. Furthermore, in Sardar Harcharan Singh Brar v. Sukh Darshan Singh and Ors. (2004) 11 SCC 197, it has been held as under--

4... The proviso enacted to Sub-section (1) of Section 83 of the Act is couched in a mandatory form inasmuch as it provides that a petition alleging corrupt practice shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. The form is prescribed by Rule 94-A. But at the same time, it cannot lost sight of that failure to comply with the requirements as to filing of an affidavit cannot be a ground for dismissal of an election petition in limine under Sub-section (1) of Section 86 of the Act. This point is no more res integra.... Non-compliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine u/s 86 of the Act, for alleged noncompliance with provisions of Section 83 (1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly defective affidavit is required to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case.

Because of what has been discussed in the light of the law laid down by Apex Court in regard to dismissal of election petition for not furnishing verification and affidavit on alleged corrupt practice, 1 am not prepared to accept the submissions made by the learned Counsel for the applicant/returned candidate and dismiss the election petition in limini.

13. Another point seriously urged upon by the learned Counsel for the applicant is that the election petition is liable to be dismissed in limini as the schedule and/or the annexure to the election petition have not been verified as required u/s 83(2) of the R.P. Act in the same manner as the petition. I have been taken through 50 Annexure to the Election Petition marked as Annexure P-1 to P-50 at pages 112 to 282. It is correct that none of those annexure pertaining to corrupt practice has been accompanied by any verification. The legal question posed is whether such verification is necessary in this case and if so, what is the consequence thereof? This question has been answered in Sahodrabai Rai Vs. Ram Singh Aharwar, wherein it is held that the law requiring to furnish verification for each and every appendix as annexure would apply only to a schedule or annexure which is an integral part of the election petition and not to a schedule or annexure which is merely evidence in the case but which is annexed to the election petition merely for the sake of adding strength to it. What forms an integral/integrated part of the election petition has been explained by an illustration in the above cited case, thus--

... For example, the details of corrupt practice in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the Respondents if the requirement regarding service of the election petition is to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions, they are in no sense an integral part of the averments and in proof thereof....

14. The appendixes and annexures to the election petition in question have been perused and examined in the light of the examples/ illustrations set by the Apex Court. They are mostly in the nature of supplement to the details of corrupt practice which have already been narrated in the respective paragraphs of the election petition. They partake the character of additional force to the averments made on alleged corrupt practice and they are nothing but proof/evidence. They are found to have been annexed to the election petition as a measure of extra care or abundant precaution to inform the Respondent about the foundation of allegation on corrupt practice against him and the nature of evidence which are going to be adduced before the Court. The Plaintiff, under the Code of Civil Procedure, is not required to supply the proof/evidence. The trial of election petition, as per the admitted position of law, has to follow as far as may be, the provisions of the Code of Civil Procedure. The election Petitioner is, therefore, not required to supply all those annexures and the same may be ignored at this stage because the election Petitioner would be called upon to prove her case by the list of documents and the witnesses to be furnished as per the provision under the Code of Civil Procedure. In my considered view, the election Petitioner is not legally bound to furnish verification for each and every Annexures P-1 to P-50 and for want of such verification, it cannot be held that the election petition would not be maintainable.

15. The last and the most crucial preliminary objection raised by the applicant-returned candidate is that opposite party-election Petitioner has furnished no material facts and particulars in respect of corrupt practice allegedly committed by him within the meaning of Section 123(7) of the RP Act by utilizing the services of and by unduly influencing and procuring the assistance of Government servants for furtherance of his election prospect. It is pleaded by the applicant that all the sub-paragraphs of Paragraphs 10 and 11 relating to corrupt practice, even if it is assumed to be correct for the sake of argument, do not disclose any material fact as to how the illegality in the postal department, as sought to be projected, can materially affect the result of the election inasmuch as there is no statement of material facts even remotely indicating as to how 69 postal ballot papers were counted and, if at all they were counted, in whose favour and how? Further, it is pleaded that there is no iota of material fact in those paragraphs that the illegalities of the postal department had in any manner materially affected the result of the election so far as it concerns the applicant returned candidate. Besides, as pleaded by the applicant, the supporting documents/Annexures P-1 to P-50, being not verified and accompanied by affidavits as required under the law, they cannot be looked into or taken into account and as such, all the sub-paragraphs in Paragraphs 10 and 11 are liable to be struck off as unnecessary, frivolous and vexatious.

16. Turning to the aforesaid paragraphs under Paragraphs 10 and 11 of the election petition, Mr. Dey, learned Counsel, submits that the statements/allegations made therein are all general in nature without setting forth the material facts and material particulars, far from being in exactitude. The election Petitioner, according to Mr. Dey, simply quoted the phrases/words from the statute, namely, the RP Act, without any material facts and material particulars relating to corrupt practice disclosing no cause of action and as such, the election petition is liable to be dismissed in limine. Further, he contends that even if the election Petitioner succeeds in proving the irregularities/illegalities allegedly committed by the postal staff, the election of the applicant can not be declared void inasmuch as no allegation has been made that such irregularities/illegalities were committed by them (postal staff) with the consent and/or knowledge of the applicant-returned candidate or his election Agent or polling Agent or his workers with their consents. A number of cases have been cited by him in support of his above submissions which are as under:

(1) Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi,

(2) Narender Singh Vs. Mala Ram and Another,

(3) Hardwari Lal Vs. Kanwal Singh,

(4) AIR 1986 SC 1535: Bhagwati Prasad Dixit Ghoreala v. Rajiv Gandhi

(5) Rohiteswar Saikia Vs. Tonu Konwar and Others,

(6) Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar,

(7) Mr. V. Narayanaswamy Vs. Mr. C.P. Thirunavukkarasu,

(8) Ram Sukh Vs. Dinesh Aggarwal,

17. Mr. Shyam, learned Counsel for the opposite party-election Petitioner, submits that he has no dispute on the basic principles laid down by the Apex Court in the cases cited by the applicant. Dispelling the submission of the applicant that the election petition should be dismissed for want of material facts and material particulars, it has been argued that while considering an application under Order 7, Rule 11 Code of Civil Procedure, the plaint/petition has to be read as a whole and all the averments have to be presumed to be correct. Further, referring to D. Ramachandran Vs. R.V. Janakiraman and Others, he submits that the Court cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action and under the Rule, there cannot be a partial rejection of plaint or petition. He also refers to decision rendered in Bidesh Singh Vs. Madhu Singh and Others, wherein it is held that there is a

difference between the requirement of pleadings as regards election petition based and/or u/s 100(1)(d)(iii) and an election petition based on Section 100(1)(b) of the Representation of People Act, 1951. In case an election petition based on Section 100(1)(d)(iii) is concerned, the election Petitioner is required to set out the material facts and particulars inasmuch as to make out a prima facie case for inspection of ballot papers. Where the Tribunal finds the material facts set out in such an election petition are lacking, the election Petitioner is entitled to supply necessary material facts and particulars under Order 17 of the Code of Civil Procedure.

In the said case, according to Mr. Shyam, the Apex Court has categorically held and reiterated the law that non-compliance of Section 83 of the RP Act is not a ground for dismissal of an election petition at the threshold. To make the aforesaid point clearer, reference has also been made to Umesh Challiyil Vs. K.P. Rajendran, Sardar Harcharan Singh Brar Vs. Sukh Darshan Singh and Others, and Virender Nath Gautam Vs. Satpal Singh and Others, Last of all, the opposite party-Election Petitioner presses into service the case of Sathi Vijay Kumar v. Tota Singh, reported in (2006) 13 SCC 353, wherein it has been observed that normally a Court cannot direct parties as to how they should prepare the pleadings and the Court would not order striking out pleadings if the parties have not offended the rules of pleadings by making averments or raising arguable issues.

18. This Court has been taken through averments made in Paragraphs 10 (I) to (XX) and 11 (I) to (XL) of the election petition in order to make a point that the election Petitioner has categorically pleaded the mode of assistance, measure of assistance and persons/Government servants from whom the assistance was obtained on certain dates and time by the returned candidate and his election Agent and workers with due consent from the returned candidate. The aforesaid material facts and material particulars, according to Mr. Shyam, have constituted triable issues inasmuch as the election Petitioner is seeking relief only on two distinct grounds--

(1) A declaration on the ground u/s 100(1)(d)(iii) of the RP Act that the result of the election, insofar as it concerns the returned candidate, has been materially affected by improper reception of 44 votes which were void votes; and

(2) A declaration on the ground u/s 100(1)(b) of the RP Act that the result of the returned candidate has been materially affected by corrupt practice within the meaning of Section 123(7) committed by the returned candidate and/ or his election Agent or by any other person with the consent of the returned candidate.

19. Before making any discussion on the deficient material facts and particulars, it may be pertinent to note certain facts as stated in Paragraph 7 of the election petition--

20. In her election petition, the opposite party has challenged the election of the returned candidate-applicant on two grounds--

(1) Improper reception of void Postal Ballots, which, if rejected, would result in receiving the majority of the votes cast at the election.

(2) Commission of corrupt practices u/s 123(7) of the RP Act by the returned candidate himself and through his election Agent and other persons acting with his consent by way of utilizing the services of, and by unduly influencing and procuring, by himself, and through his election Agent and other persons with his consent, the assistance of Government servants for furtherance of his election prospects.

In respect of Ground No. 1, it has been stated in the election petition that--

(1) As many as 169 registered letters were booked on 12.10.2009 at Along Post Office containing Postal Ballots for 6 (six) Assembly Constituencies. Out of those 169 registered letters issued by the Returning Officer, West Siang District, containing Postal Ballots, 90 were pertaining to 30-Along (West) Legislative Assembly Constituency addressed to Government employees sent out on election duty to be delivered at Itanagar locality through the respective post offices routed through the Itanagar Head Post Office. Out of those 90 Postal Ballots, only 21 were actually delivered to the genuine addresses/ applicants and 69 Postal Ballots never reached their destinations. Non -delivery of those 69 Postal Ballots has materially affected the election prospect of the opposite party-election Petitioner.

(2) Those 69 Postal Ballots were intercepted by the Agents of the Respondent returned candidate after being registered at Along Post Office on 12.10.2009 and as many as 65 Postal Ballots were evidently forged and tampered with by the Agents and supporters of the Respondent returned candidate acting under his instruction and with his consent and thereafter, those Ballots were hand delivered to one postal employee Smti. Sukuni Sharma, GDS, MC, outside the Post Office after office working hours by some unidentified supporters of the Respondent returned candidate.

The above constitutes the material facts on improper reception of Postal Ballots. The material particulars there of have been furnished in sub-paragraph (I) to (XX) of Paragraph 10 of the election petition. In my considered view, the election Petitioner has been able to disclose sufficient material facts and particulars but a question may arise, even if it is accepted that such improper reception of Postal Ballots had taken place, whether any issue can be framed on it and tried, for want of disclosure of the names of the Agents and supporters of the applicant returned candidate involved in non-delivery of Postal Ballots to addressees, and tampering of 65 Postal Ballots and hand delivery of the same to a postal employee by some unidentified supporter thereby furthering the election prospect of the returned candidate. A bare reading of relevant paragraphs of the election petition confirms that the election Petitioner has failed to disclose the names of the agents and supporters of the Respondent returned candidate who acted under his instruction and with his consent, far less in disclosing the material fact or particulars regarding "void Postal Ballot papers" by furnishing the counter foils or serial numbers of such void Postal Ballots. Normally, failure in furnishing material particulars would entail striking out of relevant paragraphs of the election petition. But I am afraid, in the present case, it could be done so. This is because, the election Petitioner is not in possession of the counter foils of the "void Postal Ballot papers" nor is/was she legally permitted to inspect and take note of them, for it would violate the principle of secrecy of votes. The election Petitioner, somehow, as stated in the election petition, obtained the facts and materials through Right to Information Act, 2005, and as such, it cannot be expected or demanded that she should furnish more particulars about void Postal Ballot papers. Equally, it is not expected that the election Petitioner would be able to give the names of person (s) responsible for interception of registered posts containing Postal Ballot papers and forging of or tampering with 69 of them in favour of the returned candidate. The election Petitioner would be required to produce the postal officials concerned to prove this fact. The Court may also at the relevant stage direct the Returning Officer and postal staff to produce the relevant records, including the Postal Ballots in question for its inspection and find out whether the purity of votes has been maintained in the election. In other words, the Court is cast with duty to enquire into the conduct of free and fair election vis-a-vis the purity of votes. This issue takes away the matter from the domain of the election Petitioner and the returned candidate to the entire electorates who have exercised the franchise to maintain democracy. And this enables the Court to move beyond the technicality of furnishing material particulars by the election Petitioner. I find no valid reason in the demand for striking out the Paragraph 10 (I) to (XX) of the election petition and accordingly, the same is rejected.

21. Similar question on deficiency of material facts and particulars has also been raised in respect of corrupt practice and striking out the relevant Paragraph 11 (I) to (XL) of the election petition. It may be noted that in Paragraph 9 of the election petition, statements have been made to the effect that the returned candidate Respondent had

by himself and through his election Agent and other persons acting with his consent, committed corrupt practices u/s 123(7) of the Act, utilizing the services of and by unduly influencing and procuring, by himself, and through his election Agent and other persons with his consent, the assistance of Government servants for the furtherance of the election prospect of the Respondent

On going through the entire Paragraph 11 (I) to (XL), it is found that although the election Petitioner is using the term "other persons", she has not quoted any name or particulars of the "other persons" who committed the corrupt practice with the consent or knowledge of the returned candidate. I am in agreement with the applicant returned candidate that it is incumbent upon the election Petitioner to furnish the names and particulars of the persons involved in the commission of corrupt practice. At the same time, I am not in agreement with him that for the failure in furnishing the names and particulars of the "other persons" or workers of the returned candidate alone, the election petition would be rendered unworthy of being tried or the relevant paragraph should be struck off. It cannot be done so because the returned candidate himself and his election Agent are alleged to have taken assistance from the Government officials and they have committed the corrupt practice u/s 123(7) of the RP Act and there remains triable issue minus the allegation of corrupt practice against ''other persons''. Moreover, the law has been settled in Sathi Vijay Kumar (supra) that the power of striking off pleadings should be exercised sparingly and with extreme caution, care and circumspection. The legal position can be appreciated if Paragraph 50 of the said case is quoted-

50. With respect, the High Court was wrong in interpreting and applying the ambit and scope of Sub-section (7) of Section 123 of the Act. The provision has been reproduced in the earlier part of the judgment. It enacts that it would be deemed to be a corrupt practice if assistance is sought from a Gazetted Officer in certain cases. Such assistance may be sought either by (i) a candidate; or (ii) his agent; or (iii) any person with the consent of a candidate or his election agent for the furtherance of the prospects of the candidate''s election. Thus, consent of the candidate is required only in those cases where such assistance is sought by "any other person" i.e. other than the candidate himself (or his election Agent). And it is obvious because where the candidate himself (or his election Agent) is seeking assistance of a Gazetted Officer; the question of consent does not arise. In the case on hand, the allegation of the election Petitioner is that the first Respondent himself has obtained assistance of a Gazetted Officer (Mr. Jassi) for "furtherance of prospects of his election". The High Court was, therefore, legally wrong in ordering deletion of Para 13(a) on the basis of construction of Section 123(7) of the Act.

Considered in the light of the above decision, I do not find legally sustainable ground for striking out the Paragraph 11 (I) to (XL) of the election petition and as such, the prayer of the applicant is rejected. Besides, in my considered view, the election Petitioner has been able to plead sufficient material facts and particulars enabling the Respondent returned candidate to know the case he has to meet with and he cannot demand more than that which is a matter to be considered and proved at the time of trial. For instance, the allegation of non-delivery of Postal Ballot papers to addressees, interception of Postal Ballots, forging of or tampering with Postal Ballots, counting of void Postal Ballots etc. to further the election prospect of the returned candidates are matters to be proved by documentary and oral evidence at the time of trial. Similarly, whether void Postal Ballots were counted in favour of the returned candidate and whether it has materially affected the election of the election Petitioner is to be proved by documentary and oral evidence at the time of trial. In the present case, there is a specific pleading that the Respondent returned candidate was declared elected by defeating the election Petitioner by a margin of 31 votes only and she would have been declared elected had all the 69 Postal Ballots reached the addressees and had there been no foul play committed by the returned candidate himself, his election Agent and other persons with his consent by way of forging of and tampering with those 69 Postal Ballots and counting them in favour of the returned candidate. In a like case namely Virender Nath Gautam (supra), the Apex Court, in Paragraph 37, has observed--

37. In Para 8, the election Petitioner has asserted that as many as 188 votes have been wrongly counted in spite of the fact that all those votes were invalid/void votes. He had also stated that since the margin of votes between the defeated candidate and the successful candidate was only 51, wrong counting of 188 invalid/void votes "materially affected" the result of the election. The High Court had not dealt at all with Para 8 in the impugned judgment. Only on this short ground, in our opinion, the impugned order deserves to be set aside.

22. At this stage, it is not necessary to look into the Annexures P-1 to P-50 to the election petition which are photocopies of some affidavits sworn by some electors who did not receive the Postal Ballots issued to them, complaints lodged by the election Petitioner and her Agents/Workers with the Returning Officer/District Election Officer, Chief Electoral Officer, Officer-in-Charge of Aalo and Itanagar Police Stations, Postal Officials, etc., and over and above, an order dated 22.10.2009 passed by the Returning Officer, 30-Along West (ST) Legislative Assembly Constituency, to the effect that all the 48 Postal Ballot papers identified to be tampered with and not delivered in proper channel and laid down postal norms should be separately kept in one bundle. This Court, without taking into consideration of those Annexures, is satisfied from the examination of the plaint/election petition that the cause of action vis-a-vis triable issues have been made out, more particularly taking note of the small margin of votes i.e. 31 votes between the contesting parties in the election. It would be most appropriate to rely on the law laid down in Dhartipakar (supra) wherein it is held, amongst other, that it is the duty of the Court to examine the plaint and on such examination, if the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay proceedings, the Court need not wait for the filing of the written statement by the Defendant; instead it can proceed to hear the preliminary objections and strike out the pleadings and if after striking out the pleadings, the Court finds that no triable issues remain to be considered, it has the power to reject the election petition under Order 7, Rule 11 of the Code of Civil Procedure.

23. In view of the above discussions, findings arrived at and the law settled in regard to the preliminary issues raised by the applicant, I come to a conclusion that there is no substance in the present application and the same is liable to be dismissed. It is accordingly dismissed. No order as to costs.

24. The applicant-Respondent/returned candidate is directed to file written statement in the election case within a period of 20 (twenty) days from today.

25. Registry to proceed accordingly.