HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 17.02.2011 Delivered on 12.08.2011 Civil Misc. Application No. 45574 of 2010, Paper No. A-9, Application No. 45570 of 2010, Paper No. A-10, Application No. 45568 of 2010, Paper No. A-11, On Behalf of Bhishma Shankar alias Kushal Tiwari.............. Applicant-respondent. IN Case :- ELECTION PETITION No. - 4 of 2009 Petitioner :- Rajesh Singh Respondent :- Bhism Shankar @ Kushal Tiwari Petitioner Counsel :- Rajiv Singh,R.N. Singh Respondent Counsel :- Chandan Sharma Hon'ble Sudhir Agarwal,J.
1. Sri U.N. Sharma, Senior Advocate, assisted by Sri Chandan Sharma, Advocate appeared for the applicant-respondent; Sri R.N. Singh and Rajiv Singh advocates have appeared for the petitioner.
2. These are three applications filed on behalf of respondent Bhishma Shankar in Election Petition No. 4 of 2009.
3. Application No. 45570 of 2010, Paper No. A-10 dated 15.2.2010 is under Order VI Rule 16 of Civil Procedure Code (in short "CPC") for striking off paragraphs no. 7 to 18 of the election petition being irrelevant, vague and fictitious.
4. Second Application No. 45568 of 2010, Paper No. A-11 dated 15.2.2010 is under Order VII Rule 11 CPC praying for dismissal of election petition for non disclosure of cause of action.
5. The third application No. 45574 of 2010, Paper No. A-9 is under Section 86(1) of Representation of People Act, 1951 (hereinafter referred to as " 1951 Act") for dismissal of election petition for non-compliance of Sections 81(3) and 86(1) of 1951 Act.
6. Petitioner Rajesh Singh contested 15th Lok Sabha General Election from Lok Sabha Constituency No. 62, Sant Kabir Nagar, State of U.P. In the aforesaid election respondent Bhishma Shankar alias Kushal Tiwari was returned elected having secured 2,11,043 votes while the petitioner was polled 107779 votes, i.e, fourth highest votes.
7. The respondent contested election on the ticket of Bahujan Samaj Party. It is said that there were 24 candidates and the number of votes polled to them is mentioned in para 3 of the petition. I am not concerned at this stage with alliance details of different political parties to which some of candidates belong being not relevant for the purpose of present dispute. The election petition contains in all 20 paragraphs. The first four paragraphs refer to the details of the candidates and votes polled to them. In 5th paragraph some ideological beliefs of the petitioner and his party is mentioned. In paras 6 and 7 averments regarding followings of the party is stated. The averments made in paragraph 8 refers to self acclaimed support of the petitioner by the people of the constituency and para 9 alleges that the petitioner had bright prospect of winning the election.
8. The allegations in general in respect to the returned candidate and its party commence from paragraphs no. 10 to 18 and read as under:
"10. That on the other hand the political motto of the returned candidate and other candidates was partisan and they had adopted all the corrupt practices for wining the election.
11. That the returned candidate adopted corrupt practice for winning the election. He as well as his party had been adopting corrupt practice as provided in Section 123 (3A) of the Representation of the People Act, 1951 (hereinafter referred to as the Act). He as well as his party openly before the public officers and election officers were spreading feelings of enmity and heartedness among various caste, particularly castigating the upper caste to which the petitioner belong for all the grieves and miseries of the dalits.
12. That besides aforesaid corrupt practice influencing the voters, the returned candidate respondent and his agents also obtained assistance of the election officers of the district and other officer and police forces in manipulating the polling of the votes as well as counting of the votes and thus also indulge in corrupt practice as provided in section 123(7) of the act.
13. That the after end of the polling of votes on the date of votes, the electronic voting machine (herein after referred to as the EVM) at various polling stations were sealed with the signature of the agents of the petitioner and other candidates.
14. That however at the time of counting of votes the Returning Officer did not allow the agents of the petitioner to inspect the all the E.V.M. as to weather seals are intact or not as provided in Rule 55C of Conduct of Election Rules, 1961. Rather before the start of the counting the Returning Officer and the other officers and personals used for counting of the votes forcefully with the help of the security personnel got the agents of the petitioner and other candidates vacated the counting hall. To say in other words the Returning Officer and other officers and personnel used in the counting virtually threw the agents out the hall of counting.
15. That the petitioner further states that even the Returning Officer after permitting the agents to enter the counting hall after sometime did not orally vouch that he had examined the E.V.M. and he was satisfied that the same had not been tampered with.
16. That the petitioner states that as matter of fact which his agents informed him and which he believes to be true, the Returning Officer broke the seals of a large number of the E.V.M. and deleted the votes polled and himself casted the votes with the use of control unit and balloting units in order to secure victory of the returned candidate respondent.
17. That thus the respondent No. 4 the Returning Officer and the other officers involved in the election process and security personnel in connivance with each other indulged in corrupt practice of booth capture as defined under section 135A of the Act, and thereby affected the result of the election against the petitioner.
18. That thus the result of the election is tented with corrupt practice and is liable to be declared as void as provided under section 100(1)(d)(ii) and (iv) of the Act."
9. The election in question basically has been challenged on the ground of alleged corrupt practice adopted by the returned candidate and his party. It is alleged that there is violation of Section 123 (3A), 123(7), 135A, 100(1)(d)(ii) and (iv) of 1951 Act. It is also said that there is violation of Rule 55C of Conduct of Election Rules 1961.
10. Under Section 81 of 1951 Act an election can be challenged by filing an election petition within 45 days of the date of election on the ground specified in Section 100(1) and 101. In the present case, the challenge is confined to violation of Section 100(1)(d)(ii)and (iv) of 1951 Act which reads as under:
100. Grounds for declaring election to be void (1) Subject to the provisions of sub-section (2) if the High Court is of opinion-
......................
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
.....................
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or ......................
(iv) by any non-compliance with the provisions of the constitution of of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void." (emphasis supplied) 11. Section 123 of 1951 Act sets out what shall be deemed to be corrupt practices. The petitioner has referred sub sections 3A and 7 of Section 123 which read as under: "123. Corrupt practices. The following shall be deemed to be corrupt practices for the purposes of this Act:- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. (emphasis added) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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 the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely:-
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(C) members of the armed forces of the Union'
(d) members of the police forces;
(e) excise officers;
[(f) revenue officers other than village revenue officers known as lamberdars, malguzars, patels, deshmukhs or by other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and]
(g) such other class of persons in the service of the Government as may be prescribed:
[Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election]"
12. In order to attract Section 100(1)(d), the pleadings must contain the facts to show that result of the election has been materially affected by committing corrupt practices as referred to thereunder.
13. Since the Application No. 45574 of 2010, Paper No. A-9 refers to non-compliance of Section 81(3), it would be appropriate to reproduce hereat the relevant Section 81(3) of 1951 Act as under:
"81. Presentation of petitions.--
"(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."
14. Section 83 of 1951 Act requires that the petition must contain a concise statement of material facts on which the petitioner relies. It further states that he must also set forth full particulars of any corrupt practice that he alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice, date and place of commission of each such practice. It reads as under:
"83. Contents of petition:- (1) 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
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars, thereof,] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.]"
(emphasis added)
15. Section 86(1) of 1951 Act talks of dismissal of election petition which does not comply with Sections 81, 82 or 117 and reads as under:
"86. Trial of election petition-
(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117."
16. Sri U.N. Sharma learned Senior Advocate contended that a bare reading of paragraphs no. 10 to 17 shows that requirement of Section 83(1) (a) and (b) has not been met by the petitioner and there is no cause of action shown therein except of making scandalous, vague and vexatious allegations and, therefore, not only the pleadings in these paragraphs deserve to be struck off but the petition deserves to be rejected for non-compliance of the requirement of Section 83(1) of 1951.
17. Learned counsel appearing on behalf of the petitioner however, contended that the averments contained in the election petition give sufficient details and meet the requirement of "material facts and particulars" and further specific details can be added by means of evidence and not by pleadings in the election petition itself. Hence, the applications are misconceived and deserve to be rejected.
18. I have heard learned counsel for the parties at length and perused the record.
19. An election is the essence of democratic system and purity of election must be maintained to ensure fair election. Election petition is a statutory process to hold inquiry into purity of election. However, public interest requires that sword of Damocles should not remain hanging over the head of returned candidate for indefinite period. He should be free to discharge his public duties and functions relating to his constituency.
20. It is now well settled that right to contest election or to question the election by means of election petition is neither a common law nor fundamental right. Instead, it is statutory right regulated by statutory provisions namely, in the present case, 1951 Act. There is no fundamental or common law rights in these matters.
21. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64, the apex Court has said in paragraph 12 as under:
12. It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in Wolver Hampton New Water Works Co. v. Hawkesford [(1859) 6 C.B. (N.S.) 336, 356] in the following passage:
There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that, or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at People's Union for Civil Liberties v. Union of India 7 common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
22. Similarly in Jagan Nath Vs. Jaswant Singh and others AIR 1954 SC 210 the Apex Court observed in para 7 as under:
"The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however have any application if the special law itself confers authority on a tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it.
It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence, or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected." (emphasis added)
23. In Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983, in para 8 the Apex Court held as under:
"8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, court is put in a straight-jacket................" (emphasis added)
24. This has been followed consistently and referred to in recent decisions in Dr. Krishna Murthy and others Vs. Union of India and another, JT 2010 (5) SC 601 = 2010(5) SCALE 448 = (2010) 7 SCC 202 and Kalyan Singh Chouhan Vs. C.P. Joshi 2011(1) SCALE 718.
25. In Dhartipakar Madan Lal Agarwal Versus Rajiv Gandhi AIR 1987 SC 1577 = JT 1987 (2) 402=1987 SCALE (1)1086 the Court while reiterating the above proposition said that 1951 Act is a complete and self contained code within which any rights claimed in relation to an election or an election dispute must be found. The scheme of the Act shows that an election can be questioned under the statute as provided by Section 80 on the grounds as contained in Section 100 of the Act. Section 83 lays down a mandatory provision that an election petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. The pleadings are regulated by Section 83 and makes it obligatory on the election petitioner to give the requisite facts, details and particulars of each corrupt practice with exactitude. If the election petition fails to make out a ground, it must fail at the threshold. The Code of Civil Procedure as such in its entirety may not be applicable but applies to the extent permitted by Section 87 of the Act. The purpose is that in the garb of election petition one should not be allowed to put in motion a judicial institution so as to make a fishing and roving inquiry. The allegations of corrupt practice are in the nature of a criminal charge. It is incumbent and of utmost importance that the allegations should not be vague and general so as to make it difficult to the returned candidate to know the case he has to meet.
26. It is in this context that in Dhartipakar Madan Lal Agarwal (Supra) the Court said that if an election petition does not disclose cause of action, i.e., the pleadings in various paragraphs are so vague and general and lack material facts and particulars so as to disclose the cause of action under 1951 Act, such paragraphs of the petition are liable to be struck off under Order 6 Rule 16 C.P.C. at any stage of the proceedings. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court is satisfied that the election petition does not make out any cause of action and the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement but can proceed. If after striking out the pleadings it finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII Rule 11 CPC.
27. In K. Kamaraja Nadar v. Kunju Thevar and Ors., [1959] SCR 583, Court said that the preliminary objections regarding lack of cause of action, non-disclosure of material facts and particulars etc. ought to be considered at the earliest by the Election Tribunal so as to avoid heavy expenses, loss of time and diversion of the returned candidate from his public duty in the various fields of activity including those in the House of the People.
28. Same is the view reiterated in Udhav Singh v. Madhav Rao Scindia, [1976] 2 SCR 246 and Charan Lal Sahu & Ors., v. Giani Zail Singh & Anr., [1984] 2 SCR 6.
29. In Azhar Hussain Vs. Rajiv Gandhi (1986)2 SCR 782 the Court said that the whole purpose of conferment of power under Order VI Rule 16 CPC to strike off the pleadings is either to dismiss the election petition in limine or striking out of unnecessary scandalous, frivolous or vexatious pleadings. This is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and does not embarrass the returned candidate. The sword of Damocle need not be kept hanging over his head unnecessarily without point or purpose. The Court also observed that hanging sword of election petition on the returned candidate would not keep him sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The precious time and attention demanded by his elected office would be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office in particular, and instead of resolving their problems, he would be engaged in devoting himself in the litigation pending against him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom.
30. In Bhagwati Prasad Dixit 'Ghorawala' v. Rajiv Gandhi (AIR 1986 SC 1534 the Apex Court again reiterated that in an election petition pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it should be rejected in limine.
31. In Dhartipakar Madan Lal Agarwal (Supra) the Apex Court also said that these authorities have settled the legal position that an election petition is liable to be dismissed in limine at the initial stage if it does not disclose any cause of action. Cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the Act. If the allegations contained in the petition do not set out grounds of challenge as contemplated by Section 100 of the Act and if the allegations do not conform to the requirement of Sections 81 and 83 of the Act, the pleadings are liable to be struck off and the election petition is liable to be rejected under Order VII Rule 11. It further says that the inference of corrupt practice cannot be drawn reading one sentence here and the other sentence there. It must be clearly specifically pleaded and should be complete in itself.
32. Now in order to consider the Application No. 45570 of 2010, Paper No. A-10 seeking striking off Paragraphs no. 7 to 18 under Order 6 Rule 16 C.P.C. it would be appropriate to consider what the provision actually require.
33. Order 6 Rule 16 provides that the Court may at any stage of proceedings order to be struck out or amended any matter in any pleading--
(a) which may be unnecessary, scandalous, frivolous, vexatious or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the Court.
34. This rule empowers the Court to strike out the pleadings whenever certain contingencies contemplated therein exist. A perusal of entire provision makes it clear that it may not be necessary to dismiss a plaint in its entirety, even if certain parts of the pleadings are ordered to be struck out or amended, inasmuch as, despite such order, cause of action may survive and therefore, proceedings may continue. The result of an order under Order VI Rule 16 necessarily may not be in rejection or cession of the proceedings.
35. To attract order VI Rule 16(a), the Court must come to a conclusion that the pleadings must be:
(i)unnecessary
(ii)scandalous
(iii)frivolous
(iv)vexatious
36. The other conditions are if the pleadings are such as may tend to prejudice the fair trial of the suit, embarrass the fair trial of suit or delay fair trial of the suit.
37. The last condition is that the pleadings otherwise constitute an abuse of the process of the Court.
38. In P Ramanatha Aiyar's Law Lexicon, The Encyclopaedic Law Dictionary (2nd Edition Reprint 2007) published by Wadhwa and Company Nagpur, the word 'unnecessary' means:
"Unnecessary. Not required under certain circumstances. Not necessary."
39. In Henry Campbell Black's Law Dictionary, Fifth Edition by St. Paul Minn. West Publishing Co. 1979 it defines:
"Unnecessary. Not required by the circumstances of the case."
40. The pleadings, which is necessary to establish the case of the party concerned should only be allowed and not which has nothing to do with the case set up by the parties concerned. In order to find out whether pleadings is necessary or not, the entire document of the pleading has to be read and not a sentence or a word in isolation. To determine the relevancy, one must consider the nature of the suit and whether any relief is sought in respect of the allegations made in the defence. In deciding the question whether the allegations, which are objected to, are relevant on any of the issues, the correct test is whether the controversial allegations should be spoken to by the defendants in their evidence for the purpose of establishing his defence, which if established, would non-suit the plaintiff, and that with reference to that matter, it would be inadmissible in evidence with reference to the relief that prayed.
41. The pleadings, which are scandalous are more serious and have to be struck out before it may cause any damage to someone. The Court has a duty to discharge towards the public and the suitors, in taking care that its records are kept free from irrelevant and scandalous matter. Scandal is calculated to do great and permanent injury to all persons, whom it affects, by making the records of the court the means of perpetuating libellous and malignant slanders. The court, in aid of the public morals, is bound to interfere to suppress such indecencies, which may stain the reputation and would the feelings of the parties and their relatives and friends. However, one must always remember that nothing can be scandalous which is relevant. If the facts pleaded are relevant and necessary, no objection on the count of being scandalous can be accepted.
42. In P Ramanatha Aiyar's Law Lexicon, The Encyclopaedic Law Dictionary (2nd Edition Reprint 2007) published by Wadhwa and Company Nagpur, the word 'scandalous' means:
"Scandalous. A pleading is said to be "Scandalous', if it alleges anything unbecoming the dignity of the Court to hear, or is contrary to good manners, or which charges a crime immaterial to the issue. But the statement of a scandalous fact that is material to the issue is not a scandalous pleading. (Millington v. Loring, 50 LJ QB 214 ; 6 QBD 190).
Of the nature of a scandal, containing defamatory information [S. 151, Indian Evidence Act].
Facts not material to the decision are impertinent, and, if reproachful, are scandalous.
The term "scandalous", as applied to the pleading of scandalous matter, cannot be applied to any matter which is not also impertinent and unnecessary."
43. In Concise Oxford English Dictionary 11th Edition (Revised) 2008 the words 'frivolous' and 'vexatious' have been defined as under:
"frivolous: adj. not having any serious purpose or value. (of a person) carefree and superficial."
"Vexatious. Adj. 1. Causing annoyance or worry. 2. Law (of an action) brought without sufficient grounds for winning, purely to cause annoyance to the defendant. "
44. In the Law Lexicon (The Encyclopaedia Law Dictionary) by P. Ramanatha Aiyar IInd Edition 1997 the words 'frivolous' and 'vexatious' have been defined as under:
"Frivolous. Of little weight or importance. A pleading is "frivolous" when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent. A claim or defense is frivolous if a proponent can present no rational argument based upon the evidence or law in support of that claim or defense. Liebowitz v. Aimexco incident. Colo, App. 701 p. 2d 140, 142. Frivolous pleadings may be amended to proper form, or ordered stricken, under federal and state Rules of Civil Procedure.
Of little or no weight or importance; not with serious attentions; manifestly futile"
"Vexatious. Includes false. 1904 AWN 116=1 ALJ 450=25 All 512) An accusation cannot be said to be vexatious unless the main intention of the complainant was to cause annoyance to the person accused, and not merely to further the ends of justice. (11 SLR 55 Appr. ; 94IC, 271=27 Cr LJ 607=AIR 1926 lah. 365.) ."
45. In Black's Law Dictionary, Fifth Edition 1979, the words 'frivolous' and 'vexatious' have been defined as under:
"Frivolous. Of little weight or importance. A pleading is "frivolous" when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent. Frivolous pleading may be amended to proper form, or ordered stricken under federal and state Rules of Civil Procedure."
"Vexatious. Without reasonable or probable cause or excuse. Gardener v. Queen Ins. Co. of America 232 Mo. App. 1101, 115 S.W.2d 4, 7."
46. In The New Lexicon Webster's Dictionary (Deluxe Encyclopedic Edition), the words 'frivolous' and 'vexatious' have been defined as under:
"Frivolous. Adj. gay and lighthearted in pursuit of trivial or futile pleasures; lacking in proper seriousness; empty, without importance."
"Vexatious. Adj. Causing vexation; (law, of actions) instituted without real grounds and meant to cause trouble or annoyance."
47. Now come to the next category i.e. tend to prejudice, embarrass or delay the fair trial of the suit. An allegation, which does not offer any defence to an action and which, if not struck out, would unnecessarily delay the suit, must be struck out. An allegation made to embarrass the defendant having no co-relation with the relief sought in the suit, cannot be permitted. A pleading is embarrassing if it is so drawn that it is not clear what case the opposite party has to meet at the trial.
48. Then last comes the abuse of the process. Whenever the process of the Court appears to be abused, the Court can direct for striking out the pleadings at any stage.
49. This Court has to consider this application in the light of specific statutory provision as to whether pleadings in the above-mentioned paragraphs satisfy any of the conditions or part thereof so as to justify striking out all or any of the paragraphs referred to above.
50. Generally, what is to be pleaded, how it is to be pleaded is all within the domain of the party who has drafted and filed petition. Of course when something is specially required to be mentioned therein by the statute, the same has to be complied. Normally, the Court would not direct or dictate the party what should be their pleadings and how should they prepare their pleadings. If there is no violation of statutory provision in making the pleadings, the parties have freedom to make appropriate averments and raise arguable issues. The authority of the Court to strike of the pleadings is therefore circumscribed with the conditions that it would be justified only when it is satisfied that the pleadings are unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay the fair trial of suit or the suit is an abuse of the process of the Court.
51. The striking off pleading bear serious adverse impact on the rights of the concerned party. The power, therefore, to do so ought to be exercised with care and caution. An oft quoted passage of Boven, L.J. in Knowles Vs. Roberts (1888) 38 Ch.D 263 referred to in various authorities of the Apex Court would be useful to refer hereat:
"It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right. It is a recognized principle that a defendant may claim ex debito justitiae to have the plaintiff's claim presented in an intelligible form, so that he may not be embarrassed in meeting it; and the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery."
52. In Sathi Vijay Kumar Vs. Tota Singh and others (2006) 13 SCC 353, the Apex Court in para 31 of the judgment said:
"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 under Rule 16 of order 6 in a suit can also be ordered to be struck off in an election petition. In appropriate causes, therefore, an election Tribunal (High Court) may invoke the power under Order 6 Rule 16 of the Code."
53. In Para 34 of the judgment in Sathi Vijay Kumar (Supra) the Apex Court quoted with approval the passage referred above in Knowles Vs. Roberts (supra).
54. In Abdul Razak (D) Through L.Rs and others Vs. Mangesh Rajaram Wagle and others JT 2010(1)SC 508 after referring to Boven, L.J.'s observation in Knowles Vs. Roberts (supra) the Court said that power to strike down pleadings is extraordinary in nature. It must be exercised sparingly and with extreme care, caution and circumspection. The above observations were made following earlier decisions in Roop Lal Sathi Vs. Nachhattar Singh Gill 1982(3)SCC 487; K.K. Modi Vs. K.N. Modi JT 1998(1)SC 407=(1998) 3 SCC 573 and Union Bank of India Vs. Naresh Kumar (1996) 6 SCC 660.
55. Thus the whole purpose of conferment of power under Order VI Rule 16 CPC to strike off the pleadings is either to dismiss the election petition in limine or striking out of unnecessary scandalous, frivolous or vexatious. This is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and does not embarrass the returned candidate. The sword of Damocle need not be kept hanging over his head unnecessarily without point or purpose. The Court also observed that hanging sword of election petition on the returned candidate would not keep him sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The precious time and attention demanded by his elected office would be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office in particular, and instead of resolving their problems, he would be engaged in devoting himself in the litigation pending against him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom.
56. Obligation on a petitioner filing election petition is to give concise statement of material facts on which he relies. This is mandatory and violation thereof would be fatal. This provision has been considered in a catena of decisions and general consensus therein is that while an election petition must necessarily contain a statement of material facts, deficiency, if any, in providing particulars of corrupt practice could be made up by the petitioner at any later stage. It has been held that where a petition does not disclose material fact it can be dismissed as one that does not disclose a cause of action but where it does disclose a cause of action, dismissal on the ground of deficiency or non disclosure of particulars of corrupt practice may be justified only if an election petitioner does not despite opportunity given by the Court supply particulars and thereby cure the defects.
57. The word "material facts" was considered in Samant N. Balkrishna and another Vs. George Fernandez and others 1969(3) SCC 238 wherein the Court held that Section 83 is mandatory. The election petition requires first a concise statement of material facts and the fullest possible particulars of corrupt practices, if any alleged. The use of word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact could consequently lead to incomplete cause of action. The function of 'particulars' is to present a full picture of the cause of action with such further information in detail as to make the opposite party understand the case he is called upon to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the same.
58. In Raj Narain vs. Indira Nehru Gandhi (1972) 3 SCC 850 it was observed that if a pleading on a reasonable construction could sustain the action, the court should accept that construction and be slow in dismissing election petition lest it frustrates the cause of action only on technical grounds. The Court further observed:
"While a corrupt practice has got to be strictly proved but from that it does not follow that a pleading in an election preceding should receive a strict construction. This Court has held that even a defective charge does not vitiate a criminal trial unless it is proved that the same has prejudiced the accused. If a pleading on a reasonable construction could sustain the action, the court should accept that construction. The courts are reluctant to frustrate an action on technical grounds."
59. In Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511 the Apex Court held, while 'material facts' and 'primary or basic facts' which must be pleaded by the plaintiff, 'particulars' or details in support of such "material facts" pleaded by the party. They simply amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial so that the opposite party is not taken by surprise.
60. In Virendra Nath Gautam Vs. Satpal Singh 2007(3) SCC 617 the Court said:
"50. There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue." (emphasis added)
61. The expression "material facts" though has not been defined in the Act or in the Code of Civil Procedure but it has been understood by the Courts in general term to mean the entire bundle of facts which would constitute a complete cause of action. In Ram Sukh Vs. Dinesh Aggarwal (2009) 10 SCC 541=AIR 2010 SC 1227 the Court observed that material facts are facts upon which the plaintiff's cause of action or the defendant's defence depends. Broadly speaking primary or basic facts which are necessary either to prove cause of action by the plaintiff or defence by the defendants are the material facts. Material facts are facts which if established would give the petitioner relief prayed for but again what could be said to the material facts would be dependant upon the facts of each case and no rule of universal application can be laid down.
62. In Samant N. Balkrishna (Supra) the Court also observed that while stating material facts it will not be sufficient merely to quote the words of Section since efficacy of material fact in that event would be lost. This has been reiterated by a three Judge Bench in Mahadeorao Sukaji Shivankar vs. Ramratan Bapu and others (2004) 7 SCC 181 and Govind Singh vs. Harchand Kaur 2010 (12) SCALE 287.
63. In this backdrop this Court proceeds to consider whether paragraphs no. 7 to 18 of the election petition comes within the mischief of Order VI, Rule 16 CPC justifying their striking out.
64. So far as paragraphs no. 7, 8 and 9 of the election petition are concerned, learned counsel for applicant respondent did not make any argument to suggest that the same suffer the vice of the conditions prescribed under Order VI Rule 16 CPC warranting striking off.
65. Now Judging the question, whether pleadings in paras no. 10 to 18 suffer from the vice(s) under Order VI Rule 16 CPC, I find that para 10 of the petition is very vague and general. It does not make any specific averment in so much so it says that political motto of the returned candidate and other candidates was partisan. No other candidate except the returned candidate is impleaded as respondent in this case. The name etc. of any other candidate is not mentioned. What kind of partisan attitude was taken is not known. Even when it alleges that they adopted all corrupt practices for winning the election, it does not specify as to what kind of corrupt practices the petitioner intended to allege against the returned candidate and other candidates. No place, date or time is given. The pleadings in para 10 in my view, is vague, vexatious and frivolous.
66. Similarly para 11 contains pleadings about adopting corrupt practice violating Section 123 (3A) of 1951 Act. It is said that the returned candidate and his party were openly spreading feelings of enmity and heartedness among various caste, particularly castigating the upper caste to which the petitioner belong for all the grievances and miseries of dalits. Neither the place of such canvassing nor the date, nor other details or specific instances are mentioned. Which Public Officer and Election Officer(s) intended to be referred by the petitioner is also not mentioned. The averments are as vague as anything. They do not constitute at all giving "material facts" and 'particulars' as contemplated in the statute.
67. In para 12 it is alleged that besides influencing voters, the returned candidate and his agents have obtained assistance of the Election Officers of the district and other officer and police forces in manipulating polling of the votes as well as counting of votes. Here also neither name(s) and particulars of alleged officers nor his/their polling station, polling booth etc. are specified and only vague and generalized allegations have been made. No date, place, time etc. is given. The pleadings lack full particulars as required under section 83(1)(b) and are clearly vague, vexatious etc.
68. So far as para 13 is concerned it only makes a statement of fact that after polling of votes, the electronic voting machine (EVM) were sealed and signed by agents of the petitioner and other candidates. It is not an allegation against the returned candidate or anyone else.
69. In para 14 the petitioner has said that at the time of counting of votes the Returning Officer did not allow agents of the petitioner to inspect all the E.V.Ms. as to weather seals are intact or not as provided in Rule 55C of Conduct of Election Rules, 1961. Rather before the start of the counting the Returning Officer and the other officers and personnels used for counting of votes forcefully, with the help of the security personnel, got the agents of petitioner and other candidates vacated the counting hall. Here also neither the agent(s) who was/were allegedly ousted forcefully are named nor the date and time etc. is mentioned, nor details of alleged various officers and personnels and security personnel in respect to whom allegations have been made are given. It is also not said that the act alleged in para 14 was on dictates of returned candidate or his party or at their instance. The allegations are basically against the Returning Officer without making him party in the matter. It has not been specified as to how he could be said to have worked with consent or in connivance of returned candidate so as to constitute corrupt practice on the part of returned candidate.
70. Likewise, averments contained in para 15 also relate to Returning Officer and there is no averments whatsoever that he performed under the influence or under the direction of returned candidate or his party. The averments contained in paras 14 and 15 do not show, in the absence of any averment against the returned candidate, how they constitute a corrupt practice on the part of the returned candidate.
71. The averment in para 16 based on belief, the basis whereof is not mentioned at all. No details have been given and here again the petitioner has not given particulars of agents who allegedly informed him about breaking of seals and deletion of votes polled etc. The averments are totally hearsay, lack material facts and full particulars.
72. Paragraph 17 though drafted like an inferential statement. It talks of what transpired at the time of polling of votes. It alleges that there was a booth capturing as defined in Section 135A of 1951 Act without disclosing details of such polling booth etc.
73. Paragraph 18 merely alleges that election result has been tainted with corrupt practices without even making a whisper that it would materially affect result of the election and without demonstrating it.
74. Considering the entire facts and circumstances in the light of exposition of law as discussed above and the pleadings of the petitioner made in this election petition, in my view, paragraphs no. 10, 11, 12, 14, 15, 16, 17 and 18 lack material facts and full particulars. They are scandalous in nature, vague and ambiguous, hence, deserve to be struck out from the petition.
75. So far as Application No. 45574 of 2010, Paper No. A-9 is concerned, it alleges that the election petition does not contain contents as required under Section 83(1)(a) and (b) of 1951 Act. It also alleges that as contemplated under Section 81(3) every election petition shall be accompanied with as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner in his own signature to be a true copy of the petition. In paragraphs no. 12 and 13 of the affidavit the application says that the petitioner has referred to certain documents which have not been supplied to the returned candidate as true copies. It is not specified as to which document has not been supplied or attested being true copy. The averment is clearly vague and therefore, it cannot be said that the petitioner has not complied with the requirement of Section 81(3) of the Act. The election petition under section 86 can be dismissed only if it does not comply with the provisions of Sections 81, 82 or 117 . It does not talk of Section 83. Since I do not find any non-compliance of Section 81(3) of 1951 Act. This application in my view deserves to be rejected.
76. In the result, Application No. 45570 of 2010, Paper No. A-10 is allowed partly. Paragraphs no. 10, 11, 12, 14, 15, 16, 17 and 18 of Election Petition are struck off from Election Petition No. 4 of 2009.
77. Application No. 45574 of 2010, Paper No. A-9 is hereby dismissed.
78. Application No. 45568 of 2010, Paper No. A-11 in view of the fact that after striking off the paragraphs as directed above from the election petition, whatever remained therein, do not disclose any cause of action whatsoever and, therefore, the election petition cannot survive as it does not disclose any cause of action. Application No. 45568 of 2010, Paper No. A-11 under Order VII Rule 11 C.P.C., is allowed. The election petition deserves to be dismissed.
79. In the result, the Election Petition is dismissed.
80. The petitioner shall be liable to pay costs which I quantify at Rupees Five Thousand only.
Dated: 12th August 2011 Akn.