# \ SATHI VIJA Y KUMAR v. TOTA SINGH AND ORS

- **Citation:** [2006] Supp. 10 S.C.R. 433
- **Court:** Supreme Court of India
- **Decided:** 2006-12-08
- **Case number:** Civil Appeal No. 4093of2004
- **Bench:** Y.K. Sabharwal, C.K. Thakker, R. V. Ra Veendran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sathi-vija-y-kumar-v-tota-singh-and-ors-21136
- **Pages:** 36

## Headnote

Representation of People Act, 1951
Election petition
Necessary parties-Substitute candidate of a recognized political
party-Held-On acceptance of nomination paper of main approved candidate
of that party, nomination paper of substitute candidate has to be rejected,
and their non-joinder to an Election Petition was of no consequence.
A
B
c
Striking out pleadings-Held-The Act does not make any provision D
as to striking out pleadings-As Code of Civil Procedure, 1908 has been
made applicable to trial of Election Petitions by Section 87 of the Act,
pleadings which are required to be struck off under Rule 16 of Order VI in
a suit can also be ordered to be struck off in an election petition-However,
normally a Court cannot direct parties as to how they should prepare their E
pleadings-If parties have not offended rules of pleadings by making averments
or raising arguable issues, Court would not strike out pleadings-Power to
strike out pleadings is extraordinary in nature and must be exercised by
Court sparingly and with extreme care, caution and circumspection.
Striking out pleadings-Held-,When election petitioner has expressly F
stated that names of about six hundred electors had been deleted wrongly
and placed on record their entire list along with particulars as to serial
number, house number, name, sex, age, remarks etc., it could not be said that
a/legation was vague or incomplete and liable to be struck down-It was not
necessary for the petitioner to plead one or other reasons for such deletion- G
It was more so as petitioner was neither supplied with copy of order of
deletion of voters nor allowed to inspect it, despite request for sameMaterial facts and full particulars as required had been set out-Section 83
and 123 (7).
433
H
434
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A
Striking down pleading-Allegation that nomination paper of a
candidate improperly accepted-Held that when case is only at stage of
pleading, such allegation cannot be struck down on ground that onus was
on petitioner to discharge burden and to prove how many of voters who had
voted for that candidate would have voted in his favour.
B
Striking down pleading-Allegation in election petition that successful
candidate was guilty of corrupt practice of obtaining assistance of Returning
Officer by getting names of several electors wrongly deleted-said fact coming
to light only when those electors went to exercise their right to vote-Also
alleged that order of deletion antedated and said action taken by Returning
C Officer to further prospects of election of successful candidate-Held that
material facts and full particulars as required by Section 83 read with
Section 123(7) of the Act had been set out in election petition and same
could not be deleted.
Section 123(7)-Ambit and scope of-Corrupt practice if assistance is
D sought from a gazetted officer-Held-Consent of candidate is required only
in those cases where such assistance is sought by person other than candidate
himself (or his election agent)-Where candidate himself (or his election
agent) is seeking assistance of a gazetted officer, question of consent does
not arise.
E
Conduct of Election Rules, 1961-Rules 54A-Postal ballot without
requisite declaration-Held-Their rejection is not contrary to law-It is
irrelevant that majority of those ballot were of those electors who were
posted outside constituency and were fully conversant with voting procedure.
Appellant was defeated by first respondent in elections for State
F Assembly. Aggrieved by this, he filed and Election Petition in High Court on
the ground that the latter had committed several irregularities and at his
instance, the authorities committed illegalities to favour him, increasing his
chances of success, and thereby he got elected by committing corrupt practice.
On that basis, he prayed that election of first respondent be declared void under
G Representation of People Act, 1951 read with Conduct of the Election Rules,
1961. In response, t

## Text

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\
SATHI VIJA Y KUMAR
v.
TOTA SINGH AND ORS.
DECEMBER 8, 2006
[Y.K. SABHARWAL, CJI., C.K. THAKKER AND R. V. RA VEENDRAN, JJ.]
Representation of People Act, 1951
Election petition
Necessary parties-Substitute candidate of a recognized political
party-Held-On acceptance of nomination paper of main approved candidate
of that party, nomination paper of substitute candidate has to be rejected,
and their non-joinder to an Election Petition was of no consequence.
A
B
c
Striking out pleadings-Held-The Act does not make any provision D
as to striking out pleadings-As Code of Civil Procedure, 1908 has been
made applicable to trial of Election Petitions by Section 87 of the Act,
pleadings which are required to be struck off under Rule 16 of Order VI in
a suit can also be ordered to be struck off in an election petition-However,
normally a Court cannot direct parties as to how they should prepare their E
pleadings-If parties have not offended rules of pleadings by making averments
or raising arguable issues, Court would not strike out pleadings-Power to
strike out pleadings is extraordinary in nature and must be exercised by
Court sparingly and with extreme care, caution and circumspection.
Striking out pleadings-Held-,When election petitioner has expressly F
stated that names of about six hundred electors had been deleted wrongly
and placed on record their entire list along with particulars as to serial
number, house number, name, sex, age, remarks etc., it could not be said that
a/legation was vague or incomplete and liable to be struck down-It was not
necessary for the petitioner to plead one or other reasons for such deletion- G
It was more so as petitioner was neither supplied with copy of order of
deletion of voters nor allowed to inspect it, despite request for sameMaterial facts and full particulars as required had been set out-Section 83
and 123 (7).
433
H
434
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A
Striking down pleading-Allegation that nomination paper of a
candidate improperly accepted-Held that when case is only at stage of
pleading, such allegation cannot be struck down on ground that onus was
on petitioner to discharge burden and to prove how many of voters who had
voted for that candidate would have voted in his favour.
B
Striking down pleading-Allegation in election petition that successful
candidate was guilty of corrupt practice of obtaining assistance of Returning
Officer by getting names of several electors wrongly deleted-said fact coming
to light only when those electors went to exercise their right to vote-Also
alleged that order of deletion antedated and said action taken by Returning
C Officer to further prospects of election of successful candidate-Held that
material facts and full particulars as required by Section 83 read with
Section 123(7) of the Act had been set out in election petition and same
could not be deleted.
Section 123(7)-Ambit and scope of-Corrupt practice if assistance is
D sought from a gazetted officer-Held-Consent of candidate is required only
in those cases where such assistance is sought by person other than candidate
himself (or his election agent)-Where candidate himself (or his election
agent) is seeking assistance of a gazetted officer, question of consent does
not arise.
E
Conduct of Election Rules, 1961-Rules 54A-Postal ballot without
requisite declaration-Held-Their rejection is not contrary to law-It is
irrelevant that majority of those ballot were of those electors who were
posted outside constituency and were fully conversant with voting procedure.
Appellant was defeated by first respondent in elections for State
F Assembly. Aggrieved by this, he filed and Election Petition in High Court on
the ground that the latter had committed several irregularities and at his
instance, the authorities committed illegalities to favour him, increasing his
chances of success, and thereby he got elected by committing corrupt practice.
On that basis, he prayed that election of first respondent be declared void under
G Representation of People Act, 1951 read with Conduct of the Election Rules,
1961. In response, the first respondent filed written statement contending
that the election petition was not maintainable for non-joinder of necessary
party, non-disclosure cause of action/material facts and for pleadings therein
being otherwise an abuse of process of Court and therefore requiring to be
deleted.
H
SATHI VIJAY KUMAR v. TOTA SINGH
435
High Court held that the election petition could not be dismissed on the A
ground of non~joinder of BS as respondent inasmuch as he was not only son
of first respondent, but was also 'substitute' candidate set up by same political
party which had set up his father, and he had withdrawn his candidature after
nomination paper of his father was accepted. However, the High Court ordered
deletion of certain pleadings from the petition on the grounds that (i) it was B
not enough for the petitioner to allege that names of voters were wrongly
deleted but reasons were required to be pleaded with sufficient exactitude;
allegations that the names have been deleted by ante-dating the record did not
·sufficiently disclose material particulars and were unnecessary for decision
of election petition (ii) allegation of corrupt practice of assistance of Electoral
Registration Officer did not disclose material fact forming a complete cause C
of action within meaning of Section 123(7) of the Act as it was not alleged
that he acted with consent of first respondent and in furtherance of prospects
of his election (iii) regarding independent candidate, it was not disclosed that
votes cast for them were votes of petitioner and improper acceptance of
nomination papers of those candidates had materially affected the result of
the election (iv) allegations regarding improper rejection of postal ballot were D
not accompanied by requisite declaration and petitioner had neither pointed
out any illegality in their rejection nor was it their case that those ballot papers
were not counted.
Disposing of the appeals, the Court
HELD 1.1. The High Court was right in observing that once a nomination
paper of the first respondent, was scrutinized and accepted, nomination paper
of BS, who was a 'substitute' candidate of the same political party, could not
have been accepted and as such he could not become duly nominated candidate.
E
(463-H; 464-A) F
Har Swarup & Anr. v. Brij Bhushan Saran & Ors., (1967) 1SCR342;
Mohan Raj v. Surendra Kumar Taparia & Ors., (1969) 1SCR630; Ram Partap
Chander v. Choudhary Lalla Ram & Ors., (1998) 8 sec 564; Gadnis
Bhawani Shankar v. Faleiro Eduardo Martinho, (2000) 7 SCC 472 and
Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh & Ors., AIR (2001) G
SC 1121, relied on.
1.2. The High Court was right in deciding the issue keeping in view
the amended provisions of the Act, the Rules, Circular dated August 9, 1996
and relevant provisions of the 'Handbook'. In view of change in law,
clarifications had been made on nomination papers of candidates set up by H
436
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A recognized National and State political parties that such nomination papers
are required to be subscribed by only one elector as proposer and for other
candidates, it is required to be proposed by ten electors. Clarification (vii)
clearly states that once nomination paper of the 'main approved candidate' of
recognized political party is accepted, the nomination paper of a 'substitute'
B candidate of the said party has to be rejected. The instructions, however, state
that if such substitute candidate has also filed Part II of the nomination paper
or filed another nomination paper subscribed by ten electors as proposers,
his nomination paper has to be scrutinized independently by treating the
candidate as an independent candidate. Again, if the nomination paper of the
main approved candidate of a political party is rejected, then also, the
C nomination paper of the substitute candidate has to be accepted provided that
the party has intimated his name as its substitute candidate in Forms 'A' and
'B'. {463-D, E, F, GJ
Charan Lal Sahu v. Nee/am Sanjeeva Reddy, (1978) 2 SC 500; Krishna
Mohini v. Mohinder Nath Sofat, [2000] 1 SCC 145; Charan Lal Sahu v. Giani
D Zail Singh, (1984] 1 SCC 390 and Charan Lal Sahu v. Dr. A.P.J. Abdul Ka/am
& Ors., (2003[ 1 SCC 609, relied on.
1.3. The High Court was right in rejecting the contention of the returned
candidate that non-joinder of BS as party respondent was of no consequence
as he could not be regarded as 'duly nominated candidate' by a political party
E i.e., Shriomani Akali Dal (Badal). That part of the decision, therefore, does
not deserve interference. [467-C]
2.1. The Act does not make any provision as to striking out pleadings.
Section 83 of the Act mandates that every election petition should contain
F concise statement of material facts and set forth full particulars of any corrupt
practice that the petitioner alleges. Section 86 requires the High Court to
dismiss and election petition which does not comply with the provisions of
Section 81 (petition barred by limitation), or Section 82 (non joinder of parties)
or Section 117 (failure to deposit security for costs). But Section 86 is not
exhaustive as to the grounds of dismissal of an election petition in limine.
G Moreover, the provisions of the Code of Civil Procedure, 1908 have been made
applicable to the trial of election petitions by virtue of Section 87 of the Act.
A number of election petitions were, therefore, dismissed on the ground that
they did not disclose cause of action as required by Order VII, Rule 11 of the
Code. So far as striking out pleadings is concerned, the provision is found in
Rule 16 of Order VI. It empo'Yers a Court to strike out any plead~!1g if it is
H
SATHI VIJA Y KUMAR v. TOT A SINGH
437
unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass A
or delay fair trial of the suit or is otherwise an abuse of the process of the
Court. The underlying object of the rule is to ensure that every party to a
suit should present his pleading in an intelligible form without causing
embarrassment to his adversary. (447-G, H; 448-A, DJ
Davy v. Garrett, (1878) 7 Ch D 473: 47 LJ Ch 218, referred to.
B
Halsbury's Laws of England, (4th Edn.; Vol. 9; para 38), Supreme Court
Practice, 1995, p. 344 (Sweet & Maxwell), referred to.
2.2. Since the general principles as to pleadings in civil suits apply to
election petitions as well, the pleadings which are required to be struck off C
under Rule 16 of Order VI in a suit can also be ordered to be struck off in an
election petition. In appropriate cases, therefore, an election tribunal (High
Court} may invoke the power under Order VI, Rule 16 of the Code. (449-E)
Azhar Hussain v. Rajiv Gandhi, (1986) Supp SCC 315, relied on.
2.3. At the same time, however, it cannot be overlooked that ,normally a
Court cannot direct parties as to how they should prepare their pleadings. If
the parties have not offended the rules of pleadings by making averments or
raising arguable issues, the Court would not order striking out pleadings.
The power to strike out pleadings is extraordinary in nature and must be
exercised by the Court sparingly and with extreme care, caution and
circumspection. (450-CJ
Roop Lal v. Nachhatar Singh, (1982) 3 SCC 487; K.K. Modi v. K.N
Modi, [1998) 3 SCC 573 and United bank of India v. Naresh Kumar, [1996)
6 sec 660, referred to.
Knowles v. Roberts, (1888) 38 Ch D 263, referred to.
3.1. The election petitioner has stated in his election petition all material
facts disclosing the cause of action. The High Court has also not dismissed
D
E
F
the petition on the ground that it did not disclose the cause of action as
required by Section 83 of the Act read with Order VH, Rule 11 of the Code. Q
[450-H; 451-AI
3.2. When the election petitioner has expressly stated that names of as
many as 586 electors had been deleted wrongly and the entire list of those
electors had been placed on record as Schedule 'A' by no stretch of imagination,
it can be said that the allegation was vague or incomplete. In Schedule 'A' to H
438
SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A the election petition, sufficient particulars as to serial number, house number,
name of voters, sex, age, remarks etc., have been mentioned.1452-F, G]
3.3. The High Court was not right in observing that it was not sufficient
to allege that the names have been wrongly deleted and "one or the other
reasons" must be pleaded by the petitioner for such deletion. The action of
B deletion was not taken by the petitioner. His grievance was that the said 586
names were already in the voters' list and were wrongly deleted. What was
contended by the petitioner was that their names could not have been deleted
and the action was illegal and contrary to law. In fact, he wanted to know the
ground/reasons as to why the names had been deleted. He prayed for supply
C of copies of the orders on March 7, 2002 and again for inspection of record
on March 9, 2002 but neither copies were supplied nor was inspection allowed.
His doubts, hence, got confirmed that 'mischief on· 1arge scale had been
committed while preparing electoral rolls. Therefore, the High Court was
wholly wrong in observing that the allegation regarding deletion of 586 voters
from the voters' list was vague. The High Court was equally wrong in holding
D that the allegation of antedating the election rolls, was "incomplete and vague".
E
When it was alleged that names of certain electors were wrongly deleted and
all particulars relating to excluded electors numbering 586 were placed in
Schedule 'A' along with the election petition, it could not be said that the
particulars were incomplete or vague and the pleading liable to be struck down.
f 452-H; 453-A, D] ~·
4.1. The allegations in the election petition are clear that the first
respondent was guilty of corrupt practice of obtaining assistance of a Gazetted
Officer who was a Returning Officer as well as Eleetoral Registration Officer.
It was also alleged that the first respondent got names of several electors
F (586) in Schedule 'A' wrongly deleted. The said fact came to. light only when
the electors had gone to exercise their right to vote but could not exercise it
in view of deletion of their names. It was also averred in the petition that orders
were passed subsequently and were antedated and the said action was taken
by the Returning Officer with a view to furtherance of the prospects of the
election of respondent No.1. therefore, material facts and full particulars as
G required by Section 83 read with Section 123(7) had been set out in the
election petition and the High Court was wrong in deleting paragraph 13 (a)
of the election petition.1454-E, F, G)
4.2. The High Court was wrong in interpreting and applying the ambit
and scope of sub-section (7) of Section 123 of the Act. The provision enacts
'. H that it would be deemed to be a corrupt practice if assistance is sought from
-
SA THI VIJA Y KUMAR v. TOT A SINGH
439
a gazetted officer in certain cases. Such assistance may be sought either by A
(i) a candidate; or (ii) his agent; or (iii) any person with the consent of a
candidate or his election agent for the furtherance of the prospects of the
candidate's election. Thus, consent of the candidate is required only in those
cases where such assistance is sought by 'any other person, i.e., other than
the candidate himself (or his election agent). And it is obvious because where B
the candidate himself (or his election agent) is seeking assistance of a
gazetted officer, the question of consent does not arise. In the case on hand,
the allegation of the election-petitioner is that the first respondent himself
has obtained assistance of a gazetted officer " for furtherance of prospects of
his election". The High Court was, therefore, legally wrong in ordering
deletion of para 13(a) on the basis of construction of Section 123(7) of the C
Act. (455-A, DJ
5. High Court was wrong in striking down pleading in election petition
regarding independent can~idate whose nomination paper was alleged to be
improperly accepted, observing that onus was on the election-petitioner to
discharge burden and to prove how many of the voters who had voted for the D
independent candidate would have voted in favour of the petitioner. Case was
not at the stage of trial but only at the stage of pleadings. [456-E, Fl
Shiv Charan Singh v. Angad Singh, (1988) 2 SCC 12 and Santosh Yadav
v. Narender Singh, AIR (2002) SC 241, held inapplicable.
6. When the Returning Officer has passed the order that out cf22 postal
ballot papers, 20 did not contain the requisite declaration as envisaged by Rule
54A, they were liable to be rejected and if the said action had been taken, it
could not be said to be contrary to law. It was not the case of the petitioner
that in spite of requisite declaration, postal ballot papers wer'e rejected. On
E
the contrary, election-petitioner himself stated that 20 ballot papers came to F
be rejected "saying that the ballot papers were not accompanied by requisite
declaration". He only stated that the majority of the postal ballot papers were
of those electors who had been posted outside the constituency and were fully
conversant with voting procedure. That was wholly irrelevant and immaterial.
The authorities were required to follow the Rules and when rule was followed, G
the High Court was right in striking out the said paragraph observing that
the action has been taken in consonance with Rule 54A of the Rules.
[457-D, E, F)
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4093of2004.
From the interim Order dated 27 .2.2004 of the High Court of Punjab and H
440
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A Haryana at Chandigarh in E.P. No. I3/2002.
Ravinder Shrivastava, P.S. Narasimha, Amit Sharma, Anupam Lal Das,
Rishi Malhotra, Prem Malhotra and M. Munnam Kunal Verma, Arjun Garg,
Rahul Shrivastava and Rishi Malhotra for the appearing parties.
B
The Judgment of the Court was delivered by
C.K. THAKKER, J. All these appeals have been instituted by the
aggrieved appellants against separate orders passed by the High Court of
Punjab & Haryana at Chandigarh.
C
To appreciate the issues raised in the present appeals, relevant fact may
be stated in brief.
Sathi Vijay Kumar, appellant in Civil Appeal No. 4093 of 2004 was a
candidate in the general election of the Punjab Constituent Assembly from
99, Moga Constituency scheduled to be held in February, 2002. According to
D the appellant, the Election Commission of India issued a notification for
holding election in the State of Punjab. The last date for filing nomination
papers as per the programme was January 23, 2002. The appellant filed his
nomination paper as a candidate of the Indian National Congress whereas
Tota Singh, respon~ent No. I was the candidate set up by Shiromani Akali Dal
(Badal). The nomination papers were scrutinized on January 24, 2002. The last
E date for withdrawal of candidature was January 28, 2002. Polling took place
on February I3, 2002. Votes were counted on February 24, 2002 and the results
were also declared on the same day. The appellant secured 42,275 votes, while
respondent No. I secured 42,579 votes. Thus, there was a difference of 304
votes. Accordingly, the first respondent was declared as successful candidate.
F
On April 8, 2002, the appellant filed a petition being Election Petition
No. 13 of 2002 in the High Court of Punjab & Haryana at Chandigarh
challenging the election of the first respondent, inter alia, on the ground of
corrupt practice. Likewise, one Rampa! Dhawan a!so filed a petition being
Election Petition No. 4 of2002 against the first respondent. So far as Election
G Petition No. 13 is concerned, the election petitioner (appellant herein) alleged
that the first respondent had committed several irregularities and illegalities
and at his instance, the authorities had indulged in committing such illegalities
to favour the first respondent and increased chances of his being declared
as returned candidate and thereby the first respondent got elected by
H committing corrupt practice. It is also the allegation of the election petitioner
-
SA THI VIJAY KUMAR v. TOTA SINGH [C.K. THAKKER, .I.]
441
that those illegalities and irregularities had materially affected the result and A
the election of the returned candidate was required to be declared void under
the provisions of the Representation of the People Act, 195 l (hereinafter
referred to as 'the Act') read with the Conduct of the Election Rules, 1961
(hereinafter referred to as 'the Rules'). Similar was the case of the election
petitioner in Election Petition No. 4 of 2004. He also prayed to set aside the B
election of the successful candidate-respondent No. I herein.
The first respondent filed written statement, inter alia, contending that
election petitions filed by the petitioners were not maintainable at law and
were liable to be dismissed at the threshold. It was contended that necessary
parties who were required to be joined in the election petitions were not C
joined inasmuch as Brijinder Singh had filed nomination form which had been
scrutinized and had been accepted after such scrutiny had not been joined
as party respondent. In absence of Brijinder Singh in the election petition as
one of the respondents, the petitions were liable to be rejected. It was also
contended that since allegations of corrupt practice had been levelled against
Brijinder Singh, it was obligatory on the election petitioners to make him a D
party-respondent which was not done. The said defect was of a fundamental
nature and the petitions could not be entertained by the High Court.
In respect of Election Petition No. 13 of 2004, it was further contended
by the first respondent that the petition was liable to be dismissed on the
ground that it did not disclose cause of action. Material facts and full particulars E
as required by the Act had not been set out in the election petition which
went to the root of the matter requiring the dismissal of the petition. It was
also the case of the first respondent that pleadings in certain paragraphs were
vague, unnecessary, frivolous or vexatious which would tend to prejudice,
embarrass or delay fair trial of the election petition and were otherwise an p
abuse of process of the Court and, therefore, they were required to be deleted.
Replication was filed by the petitioner denying the averments made by
the first respondent in his written statement and reiterating that material facts
and full particulars had been given in the petition. Allegations were specific
and positive, several illegalities and irregularities had been committed and G
result of the election had been materially affected. It was, therefore, submitted
that the election petition was required to be decided in acc·ordance with law
on merits.
The High Court, on January 13, 2003 framed as many as twelve issues
H
442
SUPREME COURT REPORTS [2006) SUPP. IO S.C.R.
A in Election Petition No.13 of 2004. Since we are concerned in the present
appeals only with regard to preliminary issues, as the High Court decided the
petition on those issues, we are not considering the issues other than
preliminary issues dealt with and decided by the High Court. Preliminary
issues were issue Nos. 1 to 6 and they were ~ under;
B
1.
Whether the election petition is liable to be dismissed under
Section 86( 1) of the Representation of People Act, 1951 for non
joinder of Brijinder Singh, a candidate in the said election as the
respondent in the election petition?
2.
Whether paragraphs 7, 8, 9, 12 and 14 are vague, do not
C
constituency illegality and irregularity and do no disclose any
cause of action and triable issue and as such are liable to be
struck off from the pleading?
3.
Whether paragraph 10, 13 alongwith sub paras alleging corrupt
practices are vague, deficient in material facts and are liable to be
D
struck off from the pleadings?
E
4.
Whether paragraph 11 alongwith its sub paras are vague, deficient
in material facts and are liable to be struck off from the pleadings?
5.
Whether paragraphs 15 to 17 are vague, do .not disclose any
cause of action and triable issue and are liable to be struck off
from the pleadings, if so to what effect?
6.
Whether the petition is liable to be dismissed if the issue No. I
to 5 are decided in favour of the respondent No. I?
The High Court heard the learned counsel for the parties on the above
F issues. As to issue No.I regardingjoining ofBrijinder Singh as party-respondent
in both the election petitions, the High Court held that non-joinder of Brijinder
Singh as party respondent could not be held to be fatal and the election
petitions could not be dismissed on that ground inasmuch as Brijinder Singh
was a 'substitute' candidate set up by the same political party i.e., Shiromani
Akali Dal (Badal) which had set up Tota Singh~first respondent, whose
G nomination paper had been accepted after scrutiny. Brijinder Singh, was the
son of Tota Singh. He had withdrawn his candidature on the date of withdrawal
after the nomination paper of his father was accepted as a candidate belonged .
to Shiromani Akali Dal (Badal). The said order was passed by the High Court
on May 2, 2003. Against the said order, the returned candidate Tota Singh
H has filed two appeals (Civil Appeal Nos. 5999 and 6000of2004). We will deal
-
SATHI VIJA Y KUMAR v. TOT A SINGH [C.K. THAKKER, J.]
.443
with the said matters at an appropriate stage.
A
The Court then considered issue Nos. 2 to 5 and concluded in issue
No.6 that considering the pleadings of the parties and in the light of the
statutory provisions as well as the law laid down by this Court, paragraphs
12, 13(a), 11 and 17 forming subject matter of issues 2, 3, 4 and 5 were liable
to be struck out from pleadings. Accordingly, an order was passed on February B
27, 2004 striking out pleadings. In Civil Appeal No. 4039 of2004,the election
petitioner of Election Petition No. 13 of 2002 has challenged the said order.
On July 12, 2004, leave was granted by this Court, printing was dispensed
with and appeal was ordered to be heard on SLP paper book. Time was
granted to file additional documents. In the meanwhile, two SLPs were filed C
by the returned candidate against a finding recorded against him on Preliminary
Issue No. l. The present appeal was ordered to be heard along with those
SLPs which were also admitted by granting leave on September 10, 2004 (Civil
Appeal Nos.5999 and 6000 of2004).
We have heard the learned counsel for the parties. In Civil Appeal No.
4093 of 2004, it was contended by the learned counsel for the appellant that
the High Court committed an error of law in striking out pleadings in
paragraphs 12, I3(a), I I and 17. He submitted that material facts and particulars
D
had been stated in the election petition in the said paras. Pleadings were
express and specific on the point disclosing cause of action and raising triable E
issues. They could neither be said to be vague, embarrassing, vexatious,
frivolous or unnecessary and could not have been struck off. It was also
stated that full details have been set out in the election petition itself as to
how illegalities had been committed by the returned candidate and the election
authorities had obliged him by increasing his chances to get elected. It was F
also alleged in the petition that illegalities committed by the first respondent
materially affected the result of the election. But for such illegalities, the
election petitioner would have been elected. Regarding corrupt practice,
sufficient particulars have been stated in the petition. The High Court was
wholly wrong in ordering striking off certain paragraphs. The appeal, therefore,
deserves to be allowed by setting aside the order of the High Court and by G
directing the Court to consider the allegations levelled by the appellant in the
election petition and to decide the petition on merits in accordance with law.
So far as the non-joinder of Brijinder Singh as party respondent is
concerned, it was submitted by the learned counsel that the High Court was
H
444
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A wholly justified in rejecting the contention of the returned candidate in view
of the fact that Brijinder Singh was a 'substitute' candidate of the same party
to which the returned candidate belonged and as soon as nomination paper
of Tota Singh was accepted after scrutiny and the said political party was
represented through Tota Singh, Brijinder Singh could not be said to be a
B candidate belonged to the said political party and the petition could not have
been dismissed on that ground.
The learned counsel for the first respondent, on the other hand,
supported the order passed by the High Court on the reasoning and
conclusions on issue Nos. 2 to 6. He submitted that material facts and full
C particulars as required by the Act, had not been stated with sufficient precision.
According to the counsel, vague, unnecessary and vexatious averments have
been made which were not in consonance with the provisions of Order VI,
Rule 16 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the
Code'). The Court minutely considered the pleadings keeping in view the
relevant decisions and finally came to the conclusion that certain paragraphs
D were required to be struck off. Such an order could not be said to be illegal
or contrary to law requiring interference by this Court. He, therefore, submitted
that the appeal filed by the election petitioner was liable to be dismissed.
Regarding appeals against preliminary issue No. I, it was submitted by
the counsel that the High Court was wrong in· rejecting the preliminary
E objection raised by the returned candidate. According to the counsel, once
the nomination papers were scrutinized and the nomination paper ofBrijinder
Singh was found to be in order and was accepted, the High Court could not
have held that Brijinder Singh was not a candidate at the election as he was
a 'substitute' candidate and non-joinder of Brijinder Singh was immaterial.
p Even if it is assumed that acceptance of nomination paper of Brijinder Singh
was not in accordance with law, the fact could not be ignored that such
nomination paper had been accepted by the Returning Officer. Once it was
done, other questions as to whether he was a candidate belonged to the same
party or was a substitute or was son of the appellant or the fact that he
subsequently withdrew his nomination paper were totally immaterial and
G irrelevant as far as the maintainability of election petitions were concerned.
H
Since the High Court decided issue No. I against the returned candidate which
was not in accordance with law, the order deserves to be set aside by allowing
the appeals of the first respondent holding both the election petitions not
maintainable.
SATHI VIJAY KUMAR v. TOTA SINGH [C.K. THAKKER, J.]
445
Before we deal with the contentions of the parties, it would be A
appropriate to consider the relevant provisions of the Act. Part I is Preliminary.
Part II deals with qualifications and disqualifications for membership of
Parliament and of State Legislatures. While Part III provides for issuance of
notifications for elections, Part IV relates to administrative machinery for the
conduct of elections. Conduct of elections has been dealt with in Part V. B
Section 30 requires the Election Commission to issue a notification in the
Official Gazette fixing the last date for making nominations, the date for
scrutiny of nominations, the last day for the withdrawal of candidatures, the
date or dates of poll and the date before which the election should be
completed.
Section 33 provides for presentation of nomination paper and requirement
for a valid nomination, the relevant part thereof reads thus;
c
33. Presentation of nomination paper and requirements for a valid
nomination.-(!) On or before the date appointed under clause (a) of
Section 30 each candidate shall, either in person or by his proposer, D
between the hours of eleven O'clock in the forenoon and three O'clock
in the afternoon deliver to the returning officer at the place specified
in this behalf in the notice issued under Section 31, a nomination
paper completed in the prescribed form and signed by the candidate
and by an elector of the constituency as proposer:
Provided that a candidate not set up by a recognized political party,
shall not be deemed to be duly nominated for election from a
constituency unless the nomination paper is subscribed by ten
pr~posers being electors of .the constituency.
Section 36 relates to scrutiny of nomination. It requires the Returning
Officer to examine nomination papers and to decide all objections which may
be made to any nomination. It also empowers him either on objection being
taken or suo motu, after such summary inquiry, if any, as he thinks necessary,
E
F
to reject any nomination, inter alia on the ground that there has been a G
failure to comply with any of the provisions of Section 33.
Sub-section (8) of Section 36 then provides;
"(8) Immediately after all the nomination papers have
been
scrutinized and decisions accepting or rejecting the same have been H
A
B
446
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
recorded, the returning officer shall prepare a list of validly nominated
Candidates, that is to say, candidates whose nominations have been
found valid, and affix it to his notice board.
Section 37 allows withdrawal of candidature. Section 38 directs the
Returning Officer to prepare and publish a list of contesting candidates.
Part VI relates to 'Disputes regarding elections'. Section 79 defines.
certain expressions, including 'candidate' to mean "a person who has been
or claims to have been duly nominated as a candidate at any election".
Section 80 requires any election to be questioned only by way of election
petition. Under Section 80A, it is the High Court which can try election
C petitions. Section 81 provides for presentation of election petition and prescribes
the period of limitation ..
D
E
F
G
Section 82 declares as to who shall be joined as respondents to such
election petition. The said section reads thus;
"82. Parties to the petition.-A petitioner shall join as respondents
to his petition-
(a) where the petitioner, in addition to claiming a declaration that the
election of all . or any of the returned candidates is void, claims a
further declaration that he
himself or any other candidate has been
duly elected, all the contesting candidates other than the petitioner,
and where no such further declaration is claimed, all the returned
candidates; and
(b) any other candidate against whom allegations of any corrupt
practice are made in the petition."
Section 83 deals with contents of petition. It is also a material provision
and may be reproduced;
"83. Contents of petition. (l) An Election petition (a) shall contain a
concise statement of the material facts on which the petitioner relies;
(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
H
( c) shall be signed by the petitioner and verified in the manner laid
SA THI VIJA Y KUMAR v. TOT A SINGH [C.K. THAKKER, J.]
447
down in the Code of Civil Procedure, 1908 ( 5 of 1908) for the verification A
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 B
the petitioner and verified in the same manner as the petition."
Section 100 enumerates the grounds on which election of a returned
candidate may be challenged and declared void. Commission of corrupt practice
is one of the grounds for declaring an election void. Section 123 declares
certain practices as "deemed to be corrupt practices". The material part of the C
section reads thus;--
123. Corrupt practices. The following shall be deemed to be corrupt
practices for the purposes of this Act:
(l)to(6) .....
(7) The obtaining or procuring or abetting or attempting to obtain
or procure by a candidate or his agent or, by any other person
with the consent of a candidate or his election agent, any
assistance (other than the giving of vote) for the furtherance of
D
the prospects of that candidate's election, from any person in the E
service of the Government and belonging to any of the following
classes, namely:-
(a)
gazetted officers;
(b)
to (g)° ....... .
Sub-Section (8) of Section 123 relates to booth capturing which is an
offence punishable under Section 135-A of the Act.
Now it is true that the Act does not make any provision as to striking
F
out pleadings. Section 83 of the Act mandates that every election petition
should contain concise statement of material facts and set forth full particulars G
of any corrupt practice that the petitioner alleges. Section 86 requires the High
Court to dismiss an election petition which does not comply with the provisions
of Section 81 (petition barred by limitation), or Section 82 (non joinder of
parties) or Section 117 (failure to deposit security for costs). But as held by
this Court in several cases, Section 86 is not exhaustive as to the grounds H
448
SUPREME COURT REPORTS (2006) SUPP. 10 S.C.R.
A of dismissal of an election petition in limine. Moreover, the provisions of the
~ Code have been made applicable to the trial of election petitions by virtue of
Section 87 of the Act. A number of election petitions were, therefore, dismissed
on the ground that they did not disclose cause of action as required by Order
VII, Rule 11 of the Code. So far as striking out pleadings is concerned, the
B provision is found in Rule 16 of Order VI which reads thus:
c
I 6. Striking out pleadings. -The Court may at any stage of the
"j)roceedings order to be struck out or amended any matter in any
pleading-
(a)
which may be unnecessary, scandalous, frivolous or vexatious,
or
(b) which may tend to prejudice, embarrass or delay the fair trial of
Jhe suit, or
( c) which is otherwise an abuse of the process of the Court.
D
The above provision empowers a Court to strike out any pleading if it
is unnecessary, scandalous, frivolous or vexatious or tend to prejudice,
embarrass or delay fair trial of the suit or is otherwise an abuse of the process
of the Court. The underlying object of the rule is to ensure that every party
to a suit should present his pleading in an intelligible form without causing
E embarrassment to his adversary [vide Davy v. Garrett, (1878) 7 Ch D 473 : 47
LJ Ch 218].
F
Bare reading of Rule 16 of Order VI makes it clear that the Court may
order striking off pleadings in the following circumstances;
(i)
Where such pleading is unnecessary, scandalous, frivolous or
vexatious; or
(b) Where such pleading tends to prejudice, embarrass or delay fair
trial of the suit; or
(c)
Where such pleading is otherwise an abuse of the process of the
G
Court.
H
In Halsbury's Laws of England, (4th Edn.; Vol. 9; para 38), it has been
stated:
"Certain acts of a lesser nature may also constitute an abuse of '
process as, for instance, initiating or carrying on proceedings which
SA THI VIJA Y KUMAR v. TOTA SINGH [C.K. THAKKER, J.]
449
are wanting in bona fides or which are frivolous, vexatious, a A
oppressive. In such cases the court has extensive alternative powers
to prevent an abuse of its process by striking out or staying
proceedings or by prohibiting the taking of further proceedings without
leave.