Kushalchand v. Harlal And Others

1. This case comes up today for arguments on the preliminary objections filed by the respondent No. 1 Harlal on 6-12-1977 to the effect that the petition is liable to be dismissed on the ground of non-compliance with the provisions of Section 81(3) read with Section 86(1) of the Representation of the People Act, 1951.

2. The short facts necessary for disposal of the objections may be stated as follows:--

The respondent No. 1' Harlal was declared elected as a member of the Madhya Pradesh Legislative Assembly from Sadora Constituency in the elections held on 15th June 1977. The petitioner Kushalchand was one of the candidates and since he was defeated in the elections, he filed the election petition on 29-7-1977, inter alia, on the ground of corrupt practices alleged to have been committed by the respondent No. 1. The relevant paragraph in the election petition dealing with the corrupt practices in para. 19 reads as under :--

"Appeal in the name of caste and religion. That the respondent No. 1 distributed pamphlet with the heading "Musalman Kisi Bhi Kimath Par Congress Ko Vote Na Den," from 8-6-1977 to 12-6-1977 in the length and breadth of the constituency himself and by his workers. This pamphlet was got printed and published in the Janata Printing Press by the respondent No. 1 through his agents or Janata Party in which he appealed to the Musalmans as a community not to vote to the 'Jalim', meaning thereby the petitioner, and in this appeal the respondent No. 1 has made a statement of fact against the personal character and conduct of the petitioner which is false and which he believed to be false or did not believe to be true. In this statement by innuendo, the petitioner is said to be 'Jalim'. This was an appeal in the name of caste also. The word 'Jalim' means 'hardened criminal in the area. The pamphlet is appended herewith as Annexure 'A'. "

3. One printed leaflet marked Annexure '1' was submitted along with the original petition. Mr. A. B. Mishra, learned counsel for the petitioner, has stated before me that it was inadvertently marked Annexure '1' but this is the pamphlet referred to in the petition as 'Annexure A',

4. Notice of the election petition was served on the respondent No, 1 Harlal on 11-10-1977 but copy of the election petition was not served upon him along with it. His counsel Shri Rameshwar Bhargava obtained the copy of the election petition from the office on 24-10-1977 and made the following endorsement in the margin of the order sheet of that date:--

"Recd. copy of the petition without Annexure A, Sd/- Rameshwar Bhargava 24-10-1977."

5. Now, the preliminary objection raised by the respondent No. 1 is that the petitioner did not supply copy of the leaflet (Annexure A) alone with the copy of the election petition to be served on the respondent No, 1 and, therefore, the copy of the election petition served on him is incomplete and, consequently, the petition is liable to be dismissed for non-

compliance of Section 81(3) of the Representation of the People Act, 1951 (which will hereinafter be called the Act). Shri A, B, Mishra, learned counsel for the petitioner, took time on 6-12-1977 to file a reply to the preliminary objection. Accordingly, he filed the reply on 12-12-1977 in which it was pleaded that there was no procedure for submission of preliminary objections and that the provisions of Section 81(3) of the Act' are directory and can be complied with later on by suitable amendment. Since the objection raised by the respondent No, 1 was a mixed objection of fact and law I directed his counsel to file an affidavit in support of it. As I also felt that the reply filed by the petitioner to the preliminary objections was not complete. I directed that the petitioner may file a complete reply to the preliminary objections by an affidavit (vide my order dated 12th December 1977). In compliance of the aforesaid order the respondent No. 1 filed an affidavit by Shri Rameshwar Bhargava, Advocate, on 9-1-1978. However, the petitioner neither filed a complete reply to the preliminary objections nor filed a counter affidavit,

6. The first point for determination is whether a copy of Annexure A was furnished by the petitioner to be served on the respondent No. 1 ? On this point there is the uncontroverted affidavit of Shri Rameshwar Bhargava counsel for the respondent No. 1 wherein he has sworn that copy of Annexure A was not annexed to the copy of the election petition supplied by the petitioner for service on respondent No. 1. He has stated that the file of the case was checked by the clerk concerned Shri Nakhne to see whether copy of Annexure A had been annexed to the copy of the election petition to be served on respondent No. 1 but no such copy of Annexure A was found on the file and, therefore, he made a note in the order sheet that he had received the copy of the election petition without a copy of Annexure A. As already stated above, no counter affidavit has been filed on the point on behalf of the petitioner nor it has been asserted before me by the learned counsel for the petitioner that any such copy of Annexure A was supplied, nor any tune has been sought for, for filing a counter affidavit nor any opportunity has been asked for, for adducing evidence on the point There is even no prayer made by the petitioner for cross-examining Shri Bhargava on his affidavit, In these circumstances, I have no alternative but to come to the conclusion that no copy of Annexure A was annexed, to the copy of the election petition to be served on respondent No. 1.

7. This brings me to the consideration of the question whether failure on the part of the petitioner to supply copy of Annexure A to the respondent No. 1 is a fatal defect and entails dismissal of the petition on that ground ?

8. Section 81(3) of the Act reads as under:--

Section 81(1) x x x x (2) x x x x (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signatures to be a true copy of the petition,

(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 Civil P. C., 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."

10. Section 86(1) of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81' or Section 83 or Section 117.

11. Learned counsel for the petitioner has urged that Annexure A shall be deemed to be a part of the election petition. In support of this contention he has relied on Sardar Mal v. Smt Gayatri Devi (AIR 1964 Raj 223): Ramashanker Parmanand v. Jugalkishore Ramasahaya Bajai (AIR 1969 Madh Pra 243); Smt. Sahodrabai Rai v. Ram Singh (AIR 1968 SC 1079); Satya Nurain v. Dhuja Ram (AIR 1974 SC 1185); Samant N. Balakrishna v. George Fernandez (AIR 1969 SC 1201) and Jagat Kishore Prasad Narain Singh v. Rajendra Kumar Poddar (AIR 1971 SC 342).

12. In Sardar Mal's case (AIR 1964 Rai 223) (supra) it was held that the word "petition" as used in Section 81(3) of the Act includes the Annexures to the petition containing particulars of corrupt practices alleged therein.

13. In Ramshanker Parmanand's case (AIR 1969 Madh Pra 243) (supra) it was observed that where an election is challenged on the ground of corrupt practice, but the petitioner fails to supply copies of Annexures to the petition for being served on the respondents, the defect produced by the non-supply of copies is a defect of presentation of the petition and so cannot be allowed to be cured subsequently. Consequently, the petition is liable to be dismissed.

14. However, the law on the point has been authoritatively laid down by their Lordships of the Supreme Court in AIR 1968 SC 1079 (supra) where a distinction has been drawn between 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 petition, and annexures or schedules which are treated as integrated with the election petition. So far as the documents of the former type are concerned, the Supreme Court held that they are in no sense an integral part of the averments of the petition and, therefore, cannot be treated as part of the election petition, and need not be served upon the respondent. But as regards averments not included in the election petition but set out in the schedules or annexures attached to the election petition their Lordships observed as follows (at p. 1082):--

X X X X X "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.

X X X X X"

At this stage reference may be made to Sub-section (3) of Section 81 and Sub-section (2) of Section 83 of the Act. The first provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and that every such copy shall be an authenticated true copy, whereas the second provides that any schedule or Annexure to the petition must also be signed and verified by the petitioner.

15. Shri A. B. Mishra, learned counsel for the petitioner argued that Annexure A should not be treated as a part of the election petition itself as that would amount to too strict a reading of the provisions. He too has relied upon Sahodrabai Rai's case (AIR 1968 SC 1079) (supra) and has argued that there is no mention of any document accompanying the election petition. It may be pointed out that in that case the election petition itself reproduced the whole of the pamphlet in a translation in English and it could be said that the averments with regard to the pamphlet were themselves a part of the petition and, therefore, the pamphlet was served upon the respondents although in a translation and not in original. It has, therefore, to be seen whether Annexure A was produced as evidence of the averments of the election petition or it was itself an averment of the election petition.

16. For a proper appreciation of this contention I may here reproduce annexure in extenso :--

मुसलमान किसी भी कीमतपर कांग्रेस को वोट न दें। दिल्ली के शाही इमाम अब्दुला बुखारी की अपील: दिल्ली के शाही इमाम अब्दुला बुखारी ने विधान सभा चुनाव के सिलसिले में जनता के नाम एक अपील जारी करते हुए एलान किया है कि मुसलमान किसी भी कीमत पर कांग्रेस को वोट न दें। श्री इमाम का कहना है कि गरदन कटवाना पसन्द है लेकिन कांग्रेस को वोट देना पसन्द नहीं, ‘सूली के तख्त पर चढजाना मंजूर है, लेकिन जालिमो को गले लगाना पसंद नहीं। जून को प्रकाशित इस अपील में श्री इमाम ने कहा कि मुसलमानों, हरीजनों व दीगर कमजोर तबको पर मजालिम ढानेऔर उन के हक्क पर छापा मारने के खिलाफ हमने जिस तरह जालिम कांग्रेस सरकार को खत्म किया है, अगर मौजूदा सरकार ने जो हमारी अपनी सरकार है, इंसाफ से काम नहीं किया तो हिन्दुस्तान के आवाम अपनी दी हुई अमानत भी ले सकते हैः’’ जनता प्रींटींग प्रेस एवं काॅलेज बुक डिपो अशोकनगर

17. The contents of Annexure A, it may be noted, have not been reproduced In the election petition as was done in the Supreme Court case (AIR 1968 SC 1079) wherein, in the body of the election petition itself, a translation in English of the pamphlet in Hindi was incorporated and the original pamphlet was attached to the election petition. A careful reading of the pamphlet would show that the petitioner did not even correctly and faithfully narrate the substance of the pamphlet in para. 19 of the election petition. There is nothing in the pamphlet to show that respondent No. 1 had himself made any appeal to the Musalmans not to vote for the Congress. On the other hand, the appeal is by Shahi Imam Abdullah Bukhari of Delhi. Then again, in the election petition it is mentioned that in this appeal (meaning the pamphlet) the respondent No. 1 had a statement of fact against the personal character and conduct of the petitioner which is false or which he believed to be false and did not believe to be true. However, there is no such statement of fact by the respondent So. I contained in the pamphlet. Again it is averred in the petition that the petitioner had been referred to as a 'Jalim' in the pamphlet but there is no reference ;o the petitioner at all in the pamphlet. The reference is only to the Congress. It is thus clear that the intention of the petitioner was clearly to base his allegation regarding corrupt practice on Annexure A and not to use it merely as a piece of evidence. It was, therefore, the duty of the petitioner to have either incorporated fully and faithfully the contents of Annexure A in the petition itself or to have served it on the respondent No. 1. In the facts and circumstances of the case, I have come to the conclusion that the Annexure A must be treated as integrated with the election petition and copy of the same must be served on the respondent No. 1.

18. In this connection reference may also be made to Samant N. Balakrishna v. George Fernandes (AIR 1969 SC 1201) wherein it was observed that Section 83 of the Act is mandatory and requires the election petition to contain first a concise statement of material facts and then requires the fullest possible particulars. 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 as he will have to meet. In my opinion, the facts constituting the corrupt practice alleged in para. 19 of the election petition would be wholly incomplete and would not at all meet the requirements of Section 83 of the Act in absence of 'Annexure A' which must be treated as an integral part of the election petition. I am further of opinion that it was not possible for the respondent No. 1 to file a complete reply to the election petition without being supplied, with a copy of the pamphlet.

19. Faced with this situation, learned counsel for the petitioner made an application at the close of the arguments of the learned counsel for the respondent No. 1 that the petitioner may be permitted to amend the petition by incorporating in the petition the matter contained in the pamphlet marked '1'. This application was opposed by Mr. Shinde, learned counsel for the respondent No. 1. It was submitted in the first instance that the limitation for filing the election petition, had expired and in this connection he placed reliance on Mohan Raj v. Surendra Kumar (AIR 1969 SC 677) wherein it was observed that when the Act enjoins the penalty of dismissal of the petition for non-joinder of party the provisions of the Civil F. C. cannot apply. It was further observed that an amendment to delete allegations of corrupt practice against a party cannot be permitted since it would defeat the provisions of Section 86(1) of the Act and thus every election petition can be saved by amendment in this way, but that is not the policy of law,

20. Apart from that, as stated above, if the petitioner were allowed to incorporate the contents of the pamphlet in para. 19 of the election petition, that would amount to a different allegation of corrupt practice, as para. 19 of the petition as framed at present contains something different from what is stated in the pamphlet. In Kashinath v. Smt. Kudsia Begam (AIR 1971 SC 372) insertion of the words "in whose company Madan Gopal Misra" between the words 'persons' and 'committed' in column 1 of the schedule was disallowed by the trial Judge as a defective petition could not be allow-

ed to be rectified after the period of limitation for filing it had expired and the Supreme Court upheld the view taken by the trial court.

21. Mr. Mishra, learned counsel for the petitioner, however, placed strong reliance on Sub-section (5) of Section 86 of the Act which provides that the High Court may allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition. I may, however, draw attention to the latter part of this sub-section which makes it clear that any amendment of the petition which would have the effect of introducing particulars of a corrupt practice not previously alleged in the petition shall not be allowed.

22. As already stated above, the allegations made in para. 19 of the election petition reportedly contained in the pamphlet are different from what they actually are in the pamphlet. Consequently, to allow the petitioner to incorporate the contents of the pamphlet in the petition now would have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.

23. In the facts and circumstances of the case, therefore, I am not inclined to allow the application for amendment. It appears to me that the petitioner was not at all careful in making allegations of corrupt practice in para. 19 of the election petition. He intended to make Annexure 'A' a part of the election petition but did not sign nor verify it according to law nor did he supply a copy of the same to be served on the respondent No. 1. The papers were drafted and filed in a callous manner for which the petitioner is to thank himself.

24. In the result, I hold that Annexure A must be treated as integrated with the election petition and consequently it was necessary to serve a copy of the same on the respondent No. 1, Annexure A should also have been signed and verified by the petitioner in the same manner as the petition. This has resulted in non-compliance of the provisions of Section 81(3) and Section 83(2) of the Act and the defect being fatal, the petition is liable to be dismissed under Section 86(1) of the Act.

25. Consequently I dismiss the election petition with one set of costs to respondent No. 1, if certified. Costs assessed at Rs. 400/-. The amount of costs awarded shall be deducted from the security amount and the rest of the amount may be refunded to the petitioner.