U.S. SASIDHARAN v. K. KARUNAKARAN & ANR

Citation: [1989] 3 S.C.R. 958

Court: Supreme Court of India

Bench: M.M. DUTT, T.K. THOMMEN

Case summary

Judgment text

The Judgment of the Court was delivered by DUTT, J. This appeal under section 116-A of the Representation of the People Act, 1951 (hereinafter referrd to as 'the Act') is directed against the judgment of the Kerala High Court dismissing the election petition of the appellant. "":. The appellant is a voter in the Mala constituency of the Kerala ' y· Legislative Assembly. The election of the members of the Assembly '! 1 was held on March 23, 1987 and the first respondent, who was then the " ~ sitting Chief Minister of the State of Kerala, was declared elected from " Mala constituency. 1 The appellant challenged the election of the first respondent to the Kerala Legislative Assembly on the ground of various corrupt practices alleged to have been committed by the first respondent.

In paragraphs 5(i) and 5(ii) of the election petition, the corrupt practice that was alleged by the appellant was to the effect that the second respondent, who was a candidate for the election, published a notice -- the first respondent. It is implied that the video cassette is referred to in paragraph 5(xi) in regar~ to the alleged assistance for the furtherance of the prospects of the election of the first respondent and, accordingly, the contents of the cassette are incorporated in that paragraph by reference. In other words, the cassette forms an integral - ·-T part of paragraph 5(xi). In this connection, we may refer to Item No. 1 of the List of Documents which reads as follows: ' -( ' "l. Video Cassette by Kala Audio & Video, Kallettumkara, Tricur District titled "Malayude Purogathi" prepared at the instance of the first respondent for election propaganda, as stated in paragraph 5(xi) of the election petition. " It is clear from Item No.

1 of the List of Documents that it is the specific case of the appellant that the video cassette was prepared at 7' the instance of the first respondent for election propaganda, as stated in paragraph 5(xi) of the election petition. Whether it was so stated in Item No. 1 of the List of Documents Of not it is, as stated already, apparent on the face of the allegation in paragraph 5(xi) that it was used by the first respondent by way of assistance in furtherance of the prospects of his election and so the video cassette formed an integral part of paragraph 5(xi). Unless a copy of the video cassette was given to the first respondent, he would not know how the speeches of the said Government servants could assist the furtherance of the prospects ' of his election and would not be in a position to deal with the allegations made in paragraph 5(xi).

The copy of the election petition which was served on the first respondent without a copy of the video cassette was not, therefore, a true copy of the election petition within the meaning of section 81(3) of the Act. Much reliance has been placed on behalf of the appellant on a decision of this Court in Sahodrabai Rai v. Ram Singh Aharwar, [1968] "" 3 . banners is about 50. A photograph of one such banner is filed herewith. The cost of each such banner will be not less than Rs. 1,000. The expenditure involved in erecting these fifty banners is about Rs. 50,000. It is submitted that the ~ first Respondent has incurred the above said expenditure . T which added to the amount disclosed in the Return of Election Expenses exceeds the amount fixed under Section ""' 77(3) of the Act thus amounting to a corrupt practice under Section 123(6) of the Act.

" Admittedly, a copy of the photograph as referred to in paragraph 18(b) was not furnished to the appellant along with a copy of the election petition. This Collft took the view that the averment contained in paragraph 18(b) would be incomplete without a copy of the photograph being supplied with a copy of the election petition. The reason being that it was not possible to conceive of the dimension of the large fancy banner unless one had a look at the photograph. In that view of the matter, it was held by this Court that the photograph formed an integral part of the petition and a copy of it should have been served along with the election petition.

Accordingly, this Court > reversed the judgment of the High Court in so far as it held that the photograph of the fancy banner adverted to in paragraph 18(b) could not be treated to be an integral part of the election petition, but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and, therefore, failure to supply a copy of the photograph to the appellant did not amount to a violation of the provision of sub-section (3) of section 81 of the Act. The decision in Karunanidhi's case fully supports the view which we take, namely, the video cassette formed an integral part of the election petition because without a copy of the video cassette the first respondent was not in a position to know whether' the video cassette -4. recording the speeches of the two Government servants could be said to have been used by the first respondent for the purpose of any assistance in furtherance of the prospects of his election.

Karunanidhi's case was referred to and approved in a subsequent decision of this Court in Mithilesh Kumar Pandey v. Baidyanath Yadav, [1984] 2SCR278. U. S. SASIDHARAN v. K. KARUNAKARAN [DUIT, J. ] 971 f. Mr. Poti has, however, urged that if the averments in paragraph 5(xi) of the election petition are full and complete or, in other words, if they do not give particulars of the corrupt practice, in that case the said averments may be struck out under the provisions of Order VI Rule 16 of the Code of Civil Procedure, but the entire election petition cannot .... be dismissed. It has already been noticed that under clauses (a) and (b) of section 83( 1) of the Act, an election petition shall contain a concise statement of the material facts and shall set forth full particulars of any corrupt practice. The material facts and the full particulars of corrupt < practice will constitute cause of action for the election petition.

If the "[· material facts are not supplied or full particulars of corrupt practice are not given in the election petition, as a consequence of which the election petition does not disclose any cause of action, it is liable to be ,t dismissed under the provision of Order VII, Rule ll{a) of the Code of Civil Procedure. See Azhar Hussain v. Rajiv Gandhi, [1986] Suppl. SCC315. Apart from the striking out the whole of the election petition when it does not disclose a cause of action, the court can strike out any statement which is irrelevant, scandalous or has nothing to do with the cause of action under the provision of Order VI, Rule 16 of the Code -~ of Civil Procedure. It is submitted by Mr. Poti that if the averments in paragraph 5(xi) of the election petition are irrelevant or do not disclose any cause of action, at the most the said paragraph can be struck out by the court under the provision of Order VI, Rule 16 of the Code .. of Civil Procedure.

We are afraid, we are unable to accept the contention. We are not concerned with whether paragraph 5(xi) can be struck out by the court under the provision of Order VI, Rule 16 of the Code of Civil Procedure as not disclosing any cause of action, but really we l are concerned with the question as to whether the copy of the election petition which has been served on the first respondent without a copy of the video cassette is a true copy of the election petition or not within the meaning of section 81(3) of the Act. We have come to the concltision that the appelhnt has not served on the first respondent a true copy of the election petition inasmuch as, admittedly, a copy of the video cassette which forms an integral part of the election petition, was not served along with the election petition. There is, therefore, no ~ substance in the contention which is rejected. Mr. Poti has drawn our attention to the observations made by this Court in Shri Udhav Singh v.

Madhav Rao Scindia, [1977] 1 SCC 511 which reads as follows: J. "Like the Code of Civil Procedure, this section also envisages a distinction between "material facts" and ""material particulars". Clause (a) of sub-section (1) corresponds to Order 6, Rule 2, while clause (b) is analogous to Order 6, Rules:4 and 6 of the Code. The distinction between "mate- ~ rial facts" and "material particulars" is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Proce- 7 <lure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is ~ liable to be summarily rejected for want of a cause of action.

In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. " On the basis of the above observations, it is submitted that if paragraph 5(xi) of the election petition suffers from a deficiency of material particulars, the court has a discretion to allow the appellant to '! supply the required particulars even after the expiry of limitation.

The above observations have been made in a different context and are quite inapplicable to the facts and circumstances of the instant case which, as noticed already, relate to the question as to whether the video cassette is an integral part of the election petition and whether non-furnishing of a copy of the video cassettee to the first respondent along with a copy of election petition is non-compliance with the man- \ datory provision of section 81(3) and, as such, liable to be dismissed under section 86(1) of the Act. The question of exercise of discretion by the court in permitting the appellant to supply the particulars does not arise at all. Lastly, the decision of this Court in A. Madan Mohan v. Kalavakunta Chandrasekhara, 11984] 2 SCC 289 has been relied upon by the learned Counsel for the appellant. We fail to understand how this case is of any assistance to the appellant, for in this case also this Court '"" once more approved of the decision in Karunanidhi's case.

No other point has been urged by either party in this appeal. In view of the discussion made above, we affirm the judgment of the High Court dismissing the election petition of the appellant on the U. S. SASIDHARAN v. K. KARUNAKARAN [DUIT, J. ] 973 ground that as the copy of the video cassette was not served on the first A respondent along with a copy of the election petition, it was non~ compliance with the prvision of section 81(3) of the Act. · The appeal is, accordingly, dismissed. There will, however, be no order as to costs. B Y. Lal Appeal dismissed. I --\. ).