23. In Nilkanth v. Gopaidas, 1961 MPLJ 135 : (AIR 1963 Madh Pra 230), one of us (Shivdayal, J.), pointed out that "in Rule 5 of Order 8, the words "denied specifically" are followed by "necessary implication" which means that if from the written statement a denial must be inferred it must be taken as a denial. Where traversing one allegation necessarily and unmistakably traverses another as well, the latter allegation is denied by necessary implication. (See: Orders on Pleading and Practice (16th Edition) pp. 133-134). On the same principle, it has been held in Grocott v. Lovatt, 1916 WN 317 that the words "The defendants deny the facts alleged in para 3 of the statement of claim" used in pleading to a number of highly material allegations, were held by the Court of Appeal to be a sufficient traverse of those facts, though such pleading was criticised as being drawn "in a loose and irregular form".
24. Further, when paragraph 7 of the petition is read, it is found to contain merely a general assertion of annexure 1 being false and it has not been made clear in that paragraph as to how the petitioner connects the annexure with the 3rd respondent. In this situation, the position that we get is that the petition contains the general assertion which has been denied also in the written statement in a general manner. In such a situation, it has been held in Union of India v. Pandurang Kashinath More, AIR 1962 SC 630 that when an improper conduct is alleged, it must be set out with all particulars. A plaintiff cannot complain if general allegations made by him in the plaint are answered by equally general allegations in the written statement. In the statement of the pleadings, their Lordships in that case held that it could not be said that the defendant had admitted the fact of discrimination which was generally alleged in the plaint.
25. We, therefore, in the circumstances of this case, hold that the denial made in paragraph 7 of the written statement is sufficient for the purposes of putting the petitioner to proof of this fact that the imputations made in annexure 1 were false. We may further observe that if rules of pleadings are to be applied with strictness, then para 7 of the petition itself suffers from the defect that condemnation of the 3rd respondent by innuendo has not been brought out by alleging extrinsic facts. Due to this reason, even if a very strict view is taken of the respondent's pleadings, no advantage can be gained by the petitioner-appellant.
26. Points 3 and 4: - These points raised by Shri Dabir may be taken together. We have already held while dealing with the second point that it could pot be inferred in this case that the 1st respondent had admitted the contents of annexure 1 to be false. In an election petition, the burden of proof lies entirely on the petitioner who has alleged corrupt practices to have been committed by the respondent. Charges of corrupt practices are quasi-criminal in character and the standard of proof required for establishing any corrupt practice is that the corrupt practice should be established beyond reasonable doubt. (See: 22 Ele . LR 261 (SC) (sup. cit.) and Shankaragouda v. Veerabhadrappa, AIR 1963 Mys 81) ). In 22 Ele LR 261 (SC) (sup cit) no doubt, it has been pointed out that when the person against whom a false imputation has been made examines himself and states that he has not committed the alleged act and proved circumstances indicating motive on the part of the respondent to make false allegations against him, the Court is entitled to accept his evidence and if he does so, the onus would shift to the respondent to prove the circumstances, if any, to dislodge the assertions made by the petitioner. In this view, it was essential for the third respondent Banwarilal to depose on oath that imputations, which, he thought, were made against him, were false but be has failed to discharge this obligation.
27. Faced with this difficulty, Shri Dabir relied on the decision in Bhim Rao v. Ankush Rao, 22 Ele LR 385 (Bom) and urged that the ordinary presumption of law that a person must be presumed to be innocent would apply even in an election dispute and the burden would be upon the person who had made defamatory allegations against the character of another to prove that they were true. However, it has been explained by a Division Bench of this Court (to which one of us, Bhargava, J., was a party) in F. A. No. 23 of 1963. D/- 23-4-63 : (AIR 1963 Madh Pra 306) that the observations made in 22 Ele LR 385 (Bom) (sup. cit.) were not in substantial conflict with Gangi Reddy's case, 22 Ele LR 261 (SC) (supra). In fact, when the facts of Bhim Rao's case, 22 Ele LR 385 (Bom) are seen, it becomes clear that in that case, the person against whom imputation was made had stepped into the witness-box to deny the truth of the adverse allegations. Thus, in our opinion, there was no justification for the third respondent's omission in giving evidence.
28. In this connection, it was urged that considering the confusion which might have prevailed, it was necessary to examine Banwarilal (respondent No. 3) as a witness in this Court and it was stated by the learned counsel for the appellant that he was ready and willing to have his statement recorded in this Court. However, we are not inclined to adopt the course of examining him in this Court under the provisions of Order 41 Rule 27 of the Code of Civil Procedure. The provisions of Order 41 Rule 27 of the Code are very stringent. The true test for permitting additional evidence is whether the appellate Court is able to pronounce the judgment on the material before it without taking into consideration the additional evidence sought to be adduced. Such an opportunity cannot be given merely to fill up lacuna in the evidence of one of the parties. Where a party on whom the onus of proving a certain point lies has failed to discharge the onus, he is not entitled to a fresh opportunity to produce evidence. (See Indrachand v. Bhagwandas, AIR 1952 Nag 248 and Sonabai v. Gotiram, AIR 1956 Bom 160). In our opinion, both the appellant and respondent 3 had ample opportunity before the Election Tribunal to get the statement of Banwarilal (respondent No. 3) recorded and as that opportunity was not availed of by anyone of them, we refuse to record his statement in this Court. Further, we do not require his evidence for rendering a satisfactory judgment in this Court.
29. Point No. 5 :-- We may now pass on to consider the objection that annexnre 1 contains an appeal on the ground of caste to vote for the 1st respondent because in that pamphlet at two places, the caste of Pyarelal has been mentioned. So far as this objection is concerned, suffice it to say that the mere mention of a person's caste cannot in our opinion, amount to making an appeal on the ground of caste. As Pyarelal belonged to the 'Kanwar' community, it was his right to describe himself as 'Kanwar' as and when he liked, and merely on this ground, it cannot be reasonably urged that an appeal on the ground of caste was made. Further, we may briefly say that not a single witness has come forward to say that the mere description of Pyarelal's caste as 'Kanwar' in the pamphlet (annexure 1) was understood by any ordinary person as an appeal on the ground of caste. For these reasons, agreeing with the Tribunal, we hold that the appellant has failed to prove that annexure 1 in any way offended against the provisions of Section 123(3) or 123(4) of the Act.
30. The allegation of corrupt practice contained in paragraph 9 of the petition may now be considered. The objectionable portion from the relevant Schedule 'C' has already been reproduced above. It is alleged that the objectionable portion offends against both the provisions of Sections 123(3) or 123(4) of the Act. It is urged that inasmuch as it was stated with regard to the 1st respondent that ^^oks gekjs ?kjdk yM+dk gS**, an appeal was made to vote for him on the ground of caste or community and the provisions of Section 123(3) were violated. Further it has been urged that the pamphlet attacked the personal character or conduct of the third-respondent by describing him as ^^ijns'kh** and by commenting figuratively on him as such ^^D;k gynh dk jax D;k ijnslh dk lax** and by depicting him as a person who wants to snatch away the rights of the inhabitants of that region. This question has been considered by the Tribunal in paragraphs 22 and 23 of its order. The allegation at best is that the third respondent has been called to be an outsider and it is stressed therein that an outsider's company is as shortlived as the colour of turmeric. The other portion is that outsiders wanted to take away the rights of the residents of the area. In the circumstances, it is capable of being understood as meaning that instead of a local person, who would be more suitable to represent the electorate, an outsider wanted to take the representation. In our opinion, these assertions cannot, in any sense, be held to be objectionable. They do not attack the personal character or conduct of the third respondent, particularly when it is seen that according to the petitioner's own witness, Samarsingh (P. W. 6), Ban-warilal is an outsider, his place of residence being Bilaspur. Further, all the expressions used merely indicate the opinion of the 1st respondent in the matter and do not amount to a statement of fact which may attract the provisions of Section 123(4) of the Act. (31) In our opinion, merely describing the first respondent as ^^oks gekjs ?kjdk yM+dk gS** does not amount to making an appeal to vote for him on the ground of caste or community. These words only suggest that those who describe the 1st respondent in this manner had an affection or interest in him of such quality as if he was a member of their family. In our view, the petition is clearly misconceived inasmuch as an attempt has been made to bring tha contents of annexure 2 within the mischief of the corrupt practice alleged in Sections 123(3) and 123(4) of the Act.
32. Now, the allegations of corrupt practice contained in paragraph 8 of the petition may be examined. We have quoted already the said paragraph and the relevant portion in Schedule 'B'. The contention of the appellant is that the first respondent and some other workers of his whose names have been mentioned in Schedule 'B' canvassed for votes for him in the various villages by making an intensive appeal to the members of the 'Kanwar' community to vote for him on the ground of his being a member of the same community.
33. There cannot be any doubt that if the entire portion reproduced in Schedule 'B' as objectionable were established, it would be required to be held that an appeal on the ground of caste or community was made to the members of the 'Kanwar' community to vote for the 1st respondent but in the evidence adduced, the gist of speeches mentioned in Schedule 'B' has not been proved to a very great extent. All that the witnesses have admitted to have said is that in the speeches delivered, it was said with respect to the third respondent ^^D;k gynh dk jax D;k ijnslh dk lax**. Beyond these words, nothing positive has been established to have been said in the various speeches even if the testimony of the witnesses examined on behalf of the petitioner-appellant were fully believed, though in their own manner, the witnesses have tried to say how votes were solicited by making an appeal to the caste or community. We have considered the effect of the words ^^D;k gynh dk jax D;k ijnslh dk lax** already in connection with annexure 2 and, therefore, it is not necessary for us to repeat what we have said already in connection with Schedule 'B'.
34. On behalf of the appellant, 13 witnesses including himself have been examined to prove the verbal statements made by the first respondent in making an appeal on the ground of caste or community. We shall presently consider this evidence in detail.
35. However, before that evidence is examined, it is necessary to dispose of the important objection raised by Shri Dabir with regard to the wrongful rejection of the valuable evidence. He has urged that though the Tribunal had recorded the evidence of all these witnesses in which they deposed to about appeal being made to the 'Kanwar' voters on the ground of caste or community and in which they further deposed that when the appeal was made, they were also threatened with excommunication if they did not vote for the 1st respondent. His contention is that the threat of excommunication is part and parcel of their evidence with regard to the fact of appeal which falls within the mischief of Section 123(3) of the Act and, therefore, it was wrong for the lower Court to exclude this evidence totally from consideration. In our view, this submission has no substance. Section 123 of the Act deals with seven different grounds of corrupt practices. In Section 123(2), the corrupt practice of undue influence has been specifically dealt with. In Proviso (a) to Clause fi) of this section, it has been stated that he who threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this Clause. The petition, however, makes it clear that corrupt practice of undue influence under Section 123(4) of the Act was not at all pleaded. In the absence of any allegation of this corrupt practice, in our view, no fault can be found with the Election Tribunal for its ignoring the evidence about the threats of boycott or excommunication alleged to be given to the members of the 'Kanwar' community. In an election petition, the allegations of corrupt practice must be clearly and specifically stated and their full particulars should be given. "Evidence in regard to any corrupt practice being allowed to be tendered in the absence of clear statements and full particulars is likely to cause material prejudice to the party against whom the allegations are made. (See: 1963 MPLJ 498). The Tribunal, therefore, rightly confined itself to the evidence of the witnesses in so far as it went to indicate the existence of any corrupt practice under Section 123(3) of the Act and, has rightly refused to consider the evidence which was tendered in support of the threat of excommunication.
36. The first witness examined on behalf of the petitioner is Bade Mukutram. The gist of his evidence is that some workers of Pyarelal threatened him with outcasting for siding with Banwarilal. He stated that under the signatures of 12 or 13 persons, a 'farman' (Ex. P-1) was issued outcasting him which he subsequently destroyed after joining Pyarelal's party. The witness admitted unequivocally that he did not tell of this fact even to respondent 3 though he had met him. He deposed to about attending four or five meetings which were held by the workers of Pyarelal in which Pyarelal was present along with Jhangloo and Anjorsingh and one person of village Panchpeid who had all worked for the third respondent. But, none of these three persons was examined. In these circumstances, we do not find that the Tribunal committed any error in not placing any reliance on this witness. The greater part of his testimony had to be discarded because it fell within the corrupt practice under Section Rule 23 (2) of the Act which was not even pleaded against the respondent concerned.
37. The second witness examined is Chhote Mukutram who claims to have worked in the last election for the ist respondent because he was his caste fellow. He stated that he had worked for him of his own accord and nobody had asked him to work for Pyarelal. He tried to corroborate the 1st witness by stating that there was a paper received containing five or six persons' signatures which outcasted Bade Mukutram but he added that it also contained that he would also be outcasted if he mixed with the first witness Bade Mukutram. It is worthy of note that this fact has not been alluded to by the first witness. In the last portion of his examination-in-chief, he stated that on being asked by Amar Singh and "Ladakh of Ehaisma, he had told them that he would vote for the 1st respondent. There is nothing in his deposition to suggest that there was any appeal made to him on the ground of caste or community to vote for the 1st respondent. In his cross--examination, he clearly stated his reason of preference for Pyarelal to be that he was his caste fellow and he was an educated man, being a pleader, and it was thought that he would work for them. Thus, the testimony of this witness does not at all advance the case of the appellant against the ist respondent.
38. The next witness examined is Bhaiyalal. He deposes in his examination-in-chief that Pyarelal had come to his house about 15 days' before the election and told him that he was his ^^lxk HkkbZ** and should, therefore, vote for him. He further told that he assured Pyarelal and others that he would vote for Pyarelal because he was his ^^lxk HkkbZ** In the later portion of his examination-in-chief, the story of a threat being given is added which appears oa the face of it to be ridiculous. It is inconceivable that if he on being approached by Pyarelal had without any hitch promised to vote lor him, a threat would be given to him in the manner alleged. The fact of the alleged approach of Pyarelal to him is made suspicious by his admission in the cross-examination that they were never on dining terms at any time. In the cross-examination, he stated that he never told Banwarilal -that Pyareial had asked him and others to vote for him on the ground of caste of community. In fact, he went on to state that he never told this fact anywhere else and it was for the first time in Court that he was telling it. If things were as he alleged to be, it is difficult to see how he could be cited as a witness at all. His testimony also is, therefore, unconvincing.
39. Jahansai (witness No. 4 for the petitioner) gives direct testimony about Pyarelal telling him that other 'Kanwars' of his tehsil Katghora that 'Kanwars' should vote for him because he was a 'Kanwar'. He first deposed that that was all what Pyarelal said but later he added that Pvarelal further told them that they would be outcasted if they did not vote for him. In his cross-examination, he stated that "even if Pyarelal had not come to him, 1 would still have voted for him as he is an educated boy of my community". It is somewhat surprising that e\ en to such a witness Pyarelal and his workers would give a threat. It may be that when Pyarelal came to him on his first visit, he had simply told them as he was an educated man of the area, he should be helped and ha would serve to the best of his ability. He has made no secret of the fact that they all helped him because of this fact. He has not been able to maintain the tall claim of caste made by him which he made in his cross-examination.
40. Someshwarsingh Thakur (P. W. 5) was the Sub-Inspector of Police posted at Station House Korba at the election time. He stated that one Jhangloo had submitted a written report that 'Kanwars' were threatening to outcast those who would not vote Pyarelal, He stated that the report had been sent by him to his higher authority. It is significant that no attempt was made to put the said report on record and an attempt was made to establish the contents of the report by his oral evidence. It is clear that as no case was made out for reception of secondary evidence, his oral testimony about the contents of the report in question was inadmissible in evidence. It is further worthy of note that Jhangloo who is alleged to have made that report is not examined although he is admitted by many witnesses to have worked for the third respondent. His testimony, therefore, appears to be worthless.
41. Samarsingh (witness No. 6) has given evidence about the first report telling him to call his caste people to vote for him and that he was told that if votes were not given to Pyarelal; they would not remain in the caste. He stated that out of fear, he and the other members of the 'Kanwar' community of the village said that they would vote for Pyarelal. He also produced in Court a document (Ex. P-1) which is said to have come in his possession when he was asked to canvass for Pyarelal. Even if no importance is attached to the late production of the document (Ex. P-1), which, in the words of the Election Tribunal, came as "a surprise document at the late stage of evidence", there is nothing in this document which contains an appeal to vote for the 1st respondent on the ground of his being a member of the 'Kanwar' caste. He deposed that he had not shown the document (Ex. P-1) to Banwarilal and the appellant at any time before its production and still it was produced in Court because the appellant had asked him to bring it. Though he claims to be a relation of Pyarelal, it appears that his relations with Pyarelal must be strained. He admitted the fact that Pyarelal's .paternal uncle was the leader of one party and he himself was the leader of the rival party.
42. The testimony of Pitambarsingh (No. 7) is to the effect that a conference of 'Kanwars' of the village Panchpeid and also other caste people was held and Pyarelal told there that vote should be given to him as he was a member of their community. On the face of it, the statement seems to be unbelievable because Pyarelal could not make a request to the members of the other caste to vote for him on the ground of his being a member of 'Kanwar' community. He also has not hesitated to give evidence in regard to the threat of excommunication. His testimony also does not impress us.
43. Patait Ram (No. 8) is a satnami by caste and Tannilal (No. 9) is a sunar by caste. There is nothing in their evidence to show that Pyarelal sought votes on the ground of his caste or community. The testimony of Kartikram (No. 10), Itwarsingh (No. 11) and Kunjram (No. 12) is no better and does not, in any sense, improve the case.
44. In paragraphs 28 to 44 of its order, the Tribunal has closely examined the evidence led by the petitioner-appellant, with regard to the verbal statements alleged to have been made by the first respondent and his workers. In our view, the evidence of all these witnesses has been fairly and fully appreciated by the Tribunal. The learned counsel for the appellant was unable to point out any special feature in their evidence to induce us to a contrary opinion. The testimony of some of these witnesses appears to be opposed to the natural probabilities of the case. We may now examine this evidence briefly. It is verv significant that almost all the witnesses examined on behalf of the appellant have tried in the witness-box to prove the threat of excommunication being given by the first respondent. The unanimity on this 'point in their testimony affects their credibility, because we feel that if there were any truth in the threat of excommunication, the appellant would not have failed to allege it in the petition.
45. We may now consider the evidence of the petitioner Habib Bhai himself. It is significant that he did not examine himself at the initial stage of the trial and chose to be the last witness in the case on his side. It cannot be doubted that he had a very deep interest in Banwarilal (respondent No. 3). He has not made a secret of the fact that he filed the present petition for the benefit of Banwarilal. He is the solitary witness on record to connect the allegations made in an-nexure I with Banwarilal positively. In Schedule 'B', he alleged that Pyarelal and several others solicited votes on the ground of caste for him. But, it is significant that no evidence at all has been adduced in the case to show that any person other than Pyarelal canvassed for votes for him on the ground of caste or community. He has figured in the case more or less as a substitute for Eanwarilal and, therefore, we have no hesitation in agreeing with the Election Tribunal when it felt the necessity of some proper corroboration of his statement of a sweeping range. The Supreme Court has pointed out in the case of Sri Baru Ram v. Smt. Prasanni, 1959 SCR 1403 : (AIR 1959 SC 93) that when the rinding of the Tribunal rests only on appreciation of oral evidence, importance should be attached to it. In our opinion, unless the appellant is able to show that, upon consideration of the evidence as a whole, there is substantial balance in his favour, the Tribunal's appraisal should not be reversed.
46. The evidence of the petitioner has been completely rebutted by the testimony of Pyarelal (respondent No. 3). J't was not necessary for him to examine other witnesses in rebuttal when the evidence led by the petitioner himself was not convincing. In our opinion, therefore, it could not be held on the evidence adduced in the case that respondent 1 is guilty of any corrupt practice of publishing a statement of fact which is false relating to the character or conduct of the candidate and/or of making any appeal by himself or his agents or any other person with his consent to vote for him on the ground of caste or community. The corrupt practices alleged under Sections 123(4) and 123(3) of the Act are, in our judgment, not established against him.
47. For all these reasons, in the result this appeal fails and is hereby dismissed. Apart from the costs awarded to the first respondent by the Tribunal, he will be entitled to his costs in this Court which we fix at Es. 300/-. There shall be no order as to costs so far as respondent 3 is concerned. The other respondents remained ex parte in this Court and, therefore, we make no order as to costs so far as they are concerned. Shiv Dayal, J.
48. Shri Dabir's argument that the word "PHIR SE" referred to Banwarilal who was a sitting member and was again contesting the election, from the same constituency and that "CHAND CHANDIKE TUKDE" conveyed the imputation that the voters would be offered illegal gratification, at first appeared attractive and impressive, but on reflection it has been found to be without substanee. The question has already been discussed in paragraphs 18 to 20 above. It is not as if the impugned expression conveys that and that meaning alone which Shri Dabir attaches to it. In the setting of facts and the background which then existed, it can reasonably be said that there is yet another intelligible meaning which that expression "CHAND CHANDI KE TUKDE......" admits of for being conveyed to the electors through the poster. The Congress is the ruling party, it gives money in various forms, e. g., loans, relief in cash, Taccavi etc., you are suspeotible to fall a prey to the temptation that if you vote for a Congress candidate, you will get monetary aid from the Government: ("CHAND CHANDI KE TUKDON KE LALACH MEN ANE PAR"); but you must remember that if you succumb to such temptations, you will have to repent and will have to suffer your miserable plight for another five years: ("PHIR SE AAP KO PANCH SAL TAK DUKH BHOGNA PADEGA"), If this is also a probable and reasonable interpretation, then, firstly, it was merely to canvass against the Congress and it cannot be said that it necessarily conveyed an insinuation against Ban-warilal in relation to his personal character, namely, that he was out to pay cash for votes. Secondly, the insinuation had reference to temptations of getting money; after the elections not to temptations of getting money for casting vote in favour of a certain candidate. This is only to demonstrate the necessity for the petitioner to prove, with cogency, how the electors understood it.
49. The expression "PHIR SE", when it is carefully read, does not refer to the cause (falling a prey to the temptation), but refers to the consequence (continuance of suffering).
50. This I have said only to reinforce what is already said in regard to the poster. My learned brother has pronounced all the findings and the result which we have concurrently reached.