MAHADEORAO SUKAJI SHIVANKAR v. RAMARATAN BAPU AND ORS

Citation: [2004] SUPP. 3 S.C.R. 553

Court: Supreme Court of India

Bench: R.C. LAHOTI, G.P. MATHUR, C.K. THAKKER

Case summary

MAHADEORAO SUKAJI SHIVANKAR v. RAMARATAN BAPU AND ORS.pdf

Judgment text

MAHADEORAO SUKAJI SHIVANKAR v. RAMARATAN BAPU AND ORS. AUGUST 13, 2004 [R. C. LAHOTI, CJ. , G. P. MATHUR AND C. K. THAKKER, JJ.

] Representation of the People Act, 1951-Section 83(1)-Election of returned candidate challenged on groundofcorruptpractices-Application under Order VII, Rule l 1(a) for rejectio11 ofelection petition since material facts as to nature ofcorrupt practices not stated in the petition and also application under Order VJ, Rule l 6-Subsequent application by defeated candidatefor permission tofurnish material particulars ofcorruptpractices but copy not served on the returned candidate-High Court dismissed applications filed by returned candidate but allowed defeated candidate's application-On appeal, held: Election petition contained all material facts as to the nature ofcorrupt practice set out by the defeated candidate and the defeated candidate filed application to supply particulars in support offacts and allegations made in election petition, thus petition not liable to be dismissed-However, it is incumbent on the defeated candidate to serve copy of the application filed to the returned candidate and the court is to grant time to the returned candidate and pass appropriate orders-Furthermore, with regard to certainfalse andfrivolous allegations, Enquiry Commission has exonerated returned candidate-Hence, order passed by High Court set aside and matter remitted back for decision afresh-Code ofCivil Procedure, l 908-0rder, VII, Rule l l (a) and Order VJ, Rule 16.

Appellant and first respondent contested the election and appellant was declared elected. Respondent-defeated candidate filed election petition for setting aside the election of appellant-returned candidate on the ground of corrupt practices adopted by the returned candidate. Appellant filed application under Order VII, Rule ll(a) of CPC for rejection of election petition on the ground that material particulars ofcorrupt practice were not disclosed and application under Order VI, Rule 16 for striking out certain pleadings from the petition. Respondent then filed application for granting permission to furnish material particulars of 1;orrupt practices as alleged in the petition but copy of the application was not served upon the appellant. High Court dismissed the applications filed by appellant, however, allowed the ap11lication filed by respondent. Hence the present appeals.

Appellant-returned candidate contended that the 'material facts' of corrupt practices which the petitioner alleged had not been stated in the election petition, therefore, the appellant filed an application under order VII, Rule 1l(a) for dismissal of the election petition; that the copy of application filed by the election petitioner was never served upon the appellant and as such he could not file reply; that tlhe High Court ought to have granted the application under Order, VI, Rule 16 as the averments were false, frivolous, and had been leveled mala fide; that in the light of the applications filed by appellant, respond1mt filed applications disclosing 'material facts' which were not found in the election petition and as such High Court should have dismissed the respondent's application and allowed the applications of the appellant, dismissing the election petition. Allowing the appeal, the Court HELD : 1. All material facts have to be set out in an election petition.

If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by Rule ll(a) of Order VII of CPC. The expression 'material facts' has neither been defined in the Act nor in the Code. Material facts are those facts upon which the plaintiff's cause ofaction or defendant's defence depends. What Particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. There is distinction between 'material facts' and 'particulars'. Material facts are primary or basic facts which must be pleaded by the party in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving finishing to!

lch to the basic contours of a picture already drawn so as to make it fullI, more clear and more informative. Particulars ensure conduct offair trial and would not take the opposite party by surprise. (557-H; 558-A-E) 2. 1. In the instant case, material facts as to the nature of corrupt practice adopted by the returned candidate had been set out by the petitioner in the election petition and what was done by him by instituting application for granting permission was to furnish particulars in support of the allegations leveled in the election petition. Therefore, it cannot be said that material facts have been set out for the first time in the application by the petitioner and that the petition was liable to be dismissed on the ground of absence of setting out material facts in the election petition. [559-8-D] 2. 2. It was incumbent on the petitioner to serve a copy of application to the returned candidate or to his counsel.

It was also the duty of the Court to grant time to the returned candidate and contesting respondents to submit reply; if any, to the said application and to pass an appropriate order in accordance with law. High Court did not adopt the said course. Further, in respect of false, frivolous allegations in the election petition, an Enquiry Commission was appointed which exonerated the appellant and High Court did not appreciate the said aspect in its proper perspective. Therefore, order of High Court is set aside and matter is remitted back for decision afresh. [560-C-E] CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8413-15 of 2003. From the Judgment and Order dated 15. 2. 2003 of the Bombay High Court in C. Application Nos. 473, 474 and 2321 of 2000 in E. P. No. I. J of 1999. V. A. Mohta and S. V. Deshpande for the Appellant. The Judgment of the Court was delivered by THAKKER, J .

: The present appeals have been filed by the appellant, returned candidate against the common order passed by the High Court of Judicature at Bombay (Nagpur Bench) in Civil Application Nos. 473 of 2000, 474 of 2000 and 2321 of 2000 in Election Petition No. 1 of 1999. By the said order, Civil Application Nos. 473 of 2000 and 474 of 2000 filed by the appellant herein were rejected by the Court and Civil Application No. 2321 of 2000 filed by the first respondent herein came to be allowed. To appreciate the questions raised by the appellant before us, relevant facts may be stated: The appellant before us contested an election from 148 Amgaon Legislative Constituency, Bhandara, Maharashtra. The first respondent also contested the election from the same Constituency. Whereas the appellant got elected, the first respondent lost the election. The later, therefore, filed an Election Petition No.

I of 1999 in the High Court of Judicature of Bombay (Nagpur Bench) for setting aside the election of the return candidate inter alia on the ground of corrupt practices adopted by the returned candidate. It was alleged that the returned candidate had not submitted correct and true accounts, had spent unaccounted mon•ey, etc. It was also alleged that the returned candidate had violated various provisions of the Representation of the People Act, 1951 (hereinafter referred t e time of election, on consideri. ng this material particular in the opinion of this Court, it will not be proper to reject the petition or strike out the pleadings and, therefore, this Court rejects the application and grants permission to the petitioner to place on record better particulars for which he has prayed vide his application Exh. 32.

" Since it was rightly submitted by the learned counsel that a copy of application Exhibit 32 was never supplied to the returned candidate (which appears to be correct as is clear and evident from the rec:ord and proceedings called for by this Court and perused by us), it would be appropriate to set aside the order passed by the High Court on that ground. In our opinion, it was incumbent on the petitioner to serve a copy of application Exh. 32 to the returned candidate or to his counsel. It was also the duty ofthe Court to grant time to the returned candidate and contesting respondents to submit reply, if any, to the said application and to pass an appropriate order in accordance with law. Since the said course has not been adopted by the High Court, the order deserved to be quashed and set aside and accordingly the order is set aside. As to application Exh.

22, it was submitted that the High Ccurt ought to have granted the said application as the averments were false, frivolous and had been leveled malafide and there was an abuse ofprocess ofCourt. It was submitted that they had no relevance to the election. Moreover, eveh in respect of tl1ose allegations, an Enquiry Commission was appointed which exonerated the appellant and the said aspect has not been appreciated in its proper perspective by the High Court. In our considered opinion, since the order is common, it has to be . set aside as a whole by remitting the matter back to the High Court to decide it in accordance with law after affording opportunity to all the parties. Since the matter pertains to election held in 1999, the High Court is expected to dispose ofthe matter as expeditiously as possible. The appeal is accordingly allowed. In the facts and circumstarices of the case, particubly when the respondents are not present, there shall be no order as to costs. N. J.

Appeal allowed.