Gurmesh Bishnoi vs Sh. Bhajan Lal, M.L.A.

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 issue, though it was not indicated in the order which of the issue was to be treated as preliminary issue. 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 read as under:-

Whether the allegations contained in paras No. 5, 6, 8(b), (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 party have relied upon the same judgment in the case of Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, .

In that case there were two applications before the Court; one under Order 6 Rule 16 of the CPC for striking out the pleadings and another application under Order 7 Rule 11 of the CPC 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 the 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 pre-requisites which are postulated under the provisions of the Representation of Peoples Act 1950-51, hereinafter called as ''the Act. It is further contended that the charge/allegations of corrupt practices as explained u/s 123 of the Act which could be a ground for declaring the election of a candidate to be void u/s 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. Balkrishna and Another Vs. V. George Fernandez and Others, ; Hardwari Lal Vs. Kanwal Singh, ; Azhar Hussain Vs. Rajiv Gandhi, and Gajanan Krishnaji Bapat and another Vs. Dattaji Raghobaji Meghe and others, .

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 CPC 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 neid or vague nor vexatious and they satisfy the pre-requisites 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 reason that the pleadings are definite and in any case the annexures attached to the petition fully elaborate facts and leaves no ambiguity in the petition. In order to support his afore-stated arguments the learned counsel for the petitioner has relied upon the cases of Shri Udhav Singh Vs. Madhav Rao Scindia, and Suryakant Venkatarao Mahadik Vs. Saroj Sandesh Naik (Bhosale) (Smt), .

As already noticed the limited question that falls for consideration is whether the paragraphs stated in the preliminary objections afore-stated 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 petition 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. These 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 provisions 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 un-necessary, scandalous, frivolous, vexatious or intends to prejudice, embarras 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 afore-stated 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 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 material facts.

In view of the these settled principles of law the Court has to discus 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 he 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 J 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 their in 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 respondent 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 Sh. 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 Sub-section (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. Paragraph 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 bundles 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 providing 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 allegation 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 Anr. (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 criterian for 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 a 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 indicate 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.

As a result of my discussion afore-stated, it is directed that paragraph No. 14(a), 14(b) and 14(e) 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 26.9.19978 and 29.9.1997. Process-fee and diet money to be filed alongwith the list by the petitioner. The petitioner shall ensure presence of all the wit nesses on the afore-stated two dates. The case to be fisted before the Court for scrutiny on 22.9.1997.