Gurmesh Bishnoi vs Bhajan Lal

Swatanter Kumar, J.—On the pleadings of the parties, the Court vide its order dated 8.11.1996 framed as many as seven issues and directed the case to be listed for arguments on preliminary issues, though it was not indicated in the order which of the issue was to be treated as preliminary issues. However, with the consent of the parties and as was evident from the record, issue No. 1 was agreed to be treated as preliminary issue by the Court vide its order dated 13.3.1997. Issue No. 1 reads as under :

Whether the allegations contained in paras No. 5, 6, 8(b), 9(a), 11, 14(a) and 14(f) lack in material facts and are vague, if so, its effect ? OPR.

In order to substantiate the rival contentions both the learned counsel appearing for respective parties have relied upon the same judgment in the case of Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi, AIR 1987 Supreme Court 1577.

In that case there were two applications before the Court; one under Order 6 Rule 16 of the Code of Civil Procedure for striking out the pleadings and another application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the petition. At the very outset it needs to be noticed that no issue with regard to rejection of petition was framed nor there is a prayer before this Court now that the petition would be liable to be rejected as it discloses no cause of action within the scope and meaning of the relevant provisions of the Representation of Peoples Act. Thus the obvious result is that even if the preliminary issue is partly or wholly decided in favour of the respondent, it will have no other effect on the petition except to direct the deletion of some paragraphs. On the contrary Mr. Sibal, learned counsel for the respondent submitted that he does not even contend that the petition of the petitioner is liable to be rejected even if issue No. 1 is wholly decided in favour of the respondent.

It is in this background that the Court has to consider preliminary issue No. 1. The contention of the learned counsel for the petitioner is that paragraphs stated in the preliminary issue No. 1 are not specific and are vague as they do not give even minimum basic information and prerequisites which are postulated under the provisions of the Representation of Peoples Act 195051, hereinafter called as ''the Act''. It is further contended that the charges/allegations of corrupt practices as explained under Section 123 of the Act which could be a ground for declaring the election of a candidate to be void under Section 100 of the Act, are to be tried like a criminal trial and thus they have to be very specific, definite and must be spelt in the petition strictly in consonance with the provisions of Sections 80 to 83, 86 and 87 of the Act. It is also contended that the allegations contained in paragraphs 5, 6, 14(a) and 14(f) are totally vague and in fact amount to calling upon the Court to hold fishing enquiry which is not permissible in law. The respondent cannot fairly meet such allegations and would not be aware of what case the respondent is to meet even during the course of evidence. In support of the above contentions raised on behalf of the respondent the learned counsel has relied upon the cases of Samant N. Balakrishna etc. v. George Fernandez and others etc., AIR 1969 SC 120; Hardwari Lal v. Kanwal Singh, AIR 1972 SC 515; Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 and Gajanan Krishnaji Bapat and another v. Dattaji Rughobaji Meghe and others, J.T. 1995(5) SC 410.

On the other hand, the contention of the learned counsel for the petitioner is that the paragraphs stated in the preliminary objections are not liable to be struck off the pleadings under the provisions of Order 6 Rule 16 of the Code of Civil Procedure, as they are merely introductory to the main petition or by themselves constitute sufficient cause of action within the provisions of the Act. It is further contended that the paragraphs read together are neither vague nor vexatious and they satisfy the prerequisites specified under the relevant provisions of law. The contention further is that no prejudice is likely to be caused to the respondent as no fishing enquiry is to be conducted by the Court in any of the allegations of the corrupt practices stated in the petition for the reasons that the pleadings are definite and in any case the annexures attached to the petition fully elaborate facts and leave no ambiguity in the petition. In order to support his aforestated arguments the learned counsel for the petitioner has relied upon the cases of Udhav Singh v. Madhav Rao Scindia, AIR 1976 Supreme Court 744; Roop Lal Sathi v. Nachhattar Singh, AIR 1982 SC 1559 and Shri Suryakant Venkatrao Mahadik v. Smt. Saroj Sandesh Naik (Bhosale), JT 1995(8) SC 686.

As already noticed the limited question that falls for consideration is whether the paragraphs stated in the preliminary objections aforestated are liable to be struck off the record or not, within the meaning and purview of Order 6 Rule 16 of the Code. The other contention of rejection of the petitioner does not fall for consideration in view of the definite stand taken before the Court by the learned counsel for the respondent.

It is settled principle of construction of pleadings that pleadings ought to be appreciated while read in their entirety. Some paragraphs which are introductory or give an outline of the petition must necessarily be read in conjunction with the preceding paragraphs before determining whether they are so vague or lack material facts so as to result in striking out of such paragraphs from the pleadings.

Equally true is the principle that pleadings must be specific and they must indicate the specific case which the other side is called upon to meet, but evidence in detail need not be spelled out in the petition though evidence must be led within the scope of the pleadings. The allegations made in the petition are to be supported by proper evidence while the parties are called upon to lead evidence during trial. Those are some of the settled canons of law relating to construction of pleadings which have been reiterated by all Courts from time to time. The pleadings must be construed in the proper manner and in consonance with the settled principles. The Court, of course, will examine if they satisfy the statutory requirements prescribed under the Representation of Peoples Act. The paragraphs which may appear to be vague but when read in conjunction with the other paragraphs of the petition may not remain to be vague or may not be said to be lacking on the material particulars and facts. In view of the provision of Section 123 read with Section 100 and other procedural sections of the Representation of Peoples Act and Order 6 Rule 16 CPC a pleading can be struck off the record only if it is unnecessary, scandalous, frivolous, vexatious or intends to prejudice, embarrass or delay the fair trial or amounts to abuse of process of the Court and does not satisfy the statutory requirements as spelled out in the provisions of the Act. The respondent has opted to pray for striking off the aforestated paragraphs on the limited grounds that it lacks material facts and are vague. In order to establish this, the respondent must show that the paragraphs even if read in conjunction with the other paragraphs of the pleadings still would suffer from the infirmity pointed above. A paragraph read in isolation may be somewhat vague, but while read in conjunction with other paragraphs of the petition, it may convey its proper and definite meaning to the facts averred, as such may not cause any prejudice to the respondent. In that circumstance the paragraphs cannot be struck off the record. If a paragraph is introductory and its details with specifications and material facts are provided for in the subsequent paragraphs, the said paragraphs cannot be struck off the record on the ground that the same lacks materials facts.

In view of these settled principles of law the Court has to discuss the paragraphs pointed out in the preliminary objections. Paragraph 5 has been stated to be vague, lacking material particulars and is stated to have no relation to the statutory provisions of the Representation of Peoples Act. It appears to be an introductory paragraph which by itself does not constitute an offence of corrupt practice, but indicates what corrupt practices have been adopted by the respondent, the details of which have been furnished in paragraphs No. 7, 11 and 14 of the petition. The respondent, thus, has been informed what case the respondent is to meet. The allegation that complaints were made to the Chief Election Commissioner and the returning officer with regard to the corrupt practices including the booth capturing cannot be said to be vague because the details of the complaints name the persons who made the complaints and the dates of the complaints have been specified by the petitioner in accordance with law in annexure form ''BB'' wherein the telegrams and their details etc. have been given. For this reason, I am of the view that paragraph No. 5 of the petition is not liable to be struck off the pleadings.

Similar is the position with regard to paragraphs No. 6 and 7. The same are introductory paragraphs and the role attributable to the persons named therein and how they offended the provisions of the Act has been specifically stated in the subsequent paragraphs. This paragraph only gives the background as to how the persons named therein were close to the respondents and in what way they contributed with the alleged consent of the respondent to commit electoral offences, has been clearly spelled out in the subsequent paragraphs of the petition. Though there was no specific objection taken in the written statement as well as no issue was framed in regard to paragraph No. 7, but the counsel for the petitioner had no serious objection in regard to hearing of this paragraph also in this regard.

Paragraph 8(b) relates to certain allegations of appointment of Shri R.C. Sharma as returning officer and his participation in requiring the people to vote for the respondent. Paragraph 8(b) again must be read in conjunction with paragraph No. 11 wherein it is specifically averred that these officers were acting at the instance and consent of the respondent. The argument collectively based in regard to paragraphs 8(b) and 11 as a whole by the respondent is, that offence(s) should be committed by the candidate himself or with his consent. Learned counsel for the petitioner contended that under subsection (8) of Section 123, consent is not a material fact as far as booth capturing is concerned and for corrupt practices also the pleadings sufficiently indicate the consent of the respondent. Paragraphs 8(b), 9(a) and 11 have to be read together and they cannot be construed or interpreted in isolation to each other. In paragraph 10 and in the opening words of paragraph 11 it has been specifically stated that the corrupt practices were done by the respondent or with his consent by other persons or his election agents as per the details given. In these paragraphs the details of corrupt practices and booth capturing both have been given and they must be read together to know the real substance of the petition. Cause of action has to be determined on the basis of complete bundle of facts which is stated in the petition.

Where date time and place of the act amounting to corrupt practices was pleaded and averment of the consent was made, in that circumstances the allegations could not be held to be vague, disentitling the petitioner from taking advantage of such pleadings (Shri Suryakant Venkatrao Mahadik''s case, supra). The onus of proving the corrupt practices averred is heavily on the petitioner, but such onus has to be discharged during trial by adducing proper evidence. At this stage the Court is primarily concerned with the allegations in the petition. The political parties are expected to maintain true and correct accounts of the expenditure incurred or authorised to be incurred in regard to the election. The Supreme Court in the case of Gajanan Krishnaji Bapat and another (supra) indicated the above observations. But the Court has to prevent a probing or a fishing enquiry on the basis of vague and bald statement in the interest of justice and to avoid prejudice to the respondent.

Paragraph of a petition by itself cannot be a criterion of determining whether the petition discloses cause of action or not. Similarly whether the paragraphs are vague and lack material facts has to be construed and understood in the light of the petition being read as a whole and not on the basis of certain introductory or explanatory paragraphs of the petition departed from the main pleadings. A paragraph by itself may or may not be very specific, but in the facts and circumstances of a given case read in conjunction with the subsequent and explanatory paragraph the apparent vagueness of that paragraph may not subsist. That is the vagueness apparent at the initial juncture, of a para, may not be the correct interpretation of the petition while read in entirety.

What has been conceded by the learned counsel for the respondent itself indicates that the petition was not liable to be rejected even if the above paragraphs were deleted. That means the other paragraphs of the petition are the material paragraphs and they do furnish material facts and are in adherence to the statutory provisions of the Act. There can be no doubt then, that the above paragraphs are merely introductory or explanatory paragraphs, which must be seen in the background of the facts and allegations made in the entire petition to determine the present question. Presence of some vagueness of these paragraphs read in isolation cannot be a ground for striking out these paragraphs from the pleadings of the parties.

Coming to paragraphs 14(a) and 14(b), the contention of learned counsel for the respondent is well founded. These subparagraphs are not only vague but they lack even the basic essential ingredients which ought to have been pleaded for the purposes of constituting these paragraphs as examples of corrupt practices by incurring and authorising expenditure in excess of the prescribed limited. No details of the vehicles and names of the persons whether they were friends of the respondents or were actually engaged by the respondents are not mentioned in this paragraph. Similarly in paragraph 14(f) no details of the ownership of the property have been provided. Even clause (e) at the face of it and even if taken to be correct does not constitute an offence or violation which may be covered under the head of ''corrupt practices''. The contention of learned counsel for the petitioner that these are also mere explanations of excessive expenditure, it not sustainable. The pleadings must be definite and the respondent must know as to what cars had he engaged from whom and which property, at what point of time, he utilised for what purpose for which he was required and he actually paid the consideration. Such vague allegations which are not only lacking material facts, but on the face of it to an extent, are even vexatious, cannot be permitted to remain as part of the petition.

As a result of my discussion aforestated, it is directed that paragraphs No. 14(a), 14(b) and 14(c) shall be struck off the petition and would not be treated as part of the record. The mere fact that written statement has been filed would be of no advantage to the petitioner in the facts and circumstances of the present case. Preliminary objection is accordingly disposed of.

It is further directed that petitioner shall file his list of witnesses within two weeks from today with advance copy to the respondent. The respondent, within one week thereafter, shall file his list of witnesses in the Registry. The petitioner shall summon his witnesses for 26.9.1997 and 29.9.1997. Processfee and diet money to be filed along with the list by the petitioner. The petitioner shall ensure presence of all the witnesses on the aforestated two dates. The case to be listed before the Court for scrutiny on 22.9.1997.