Arvind Tyagi vs O.P.S. Bhadoriya
2023 Latest Caselaw 4636 MP

                                         1


               IN THE HIGH COURT OF MADHYA PRADESH

                                     AT GWALIOR
                                          BEFORE
               HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL


                          ON THE 25th OF MARCH, 2023
                                   EP NO. 02 OF 2022

   Between:-
    ARVIND TYAGI , SON ON PRAHLAD SINGH, AGE-
    39YEARS, RESIDENT OF GRAM GAHELI, VILLAGE
    GAHELI, TEHSIL MEHAGAON, BHIND (MADHYA
    PRADESH)
                                                                          .....PETITIONER
   (SHRI SANKALP SHARMA- LEARNED COUNSEL FOR THE PETITIONER)

   AND

     OPS BHADORIYA, SON OF LATE SHRI HARGOVIND
    SINGH BHADORIYA, AGED 51YEARS, RESIDENTOF
    VILLAGE AKLONI, DISTRICT BHIND (MADHYA
    PRADESH)
                                                                        .....RESPONDENT
   (SHRI R. D. JAIN, LEARED SENIOR COUNSEL WITH SHRI SANGAM JAIN,
   SHRI DS RAGHUVANSHI AND SHRI DIVYANSH JAIN, COUNSEL FOR THE
   RESPONDENT )
-------------------------------------------------------------------------------

         Reserved on                          13-03-2023

         Passed on                            25.03.2023

-------------------------------------------------------------------------------

       This petition having been heard and reserved for order, coming on for
                                     2


pronouncement this day, Hon'ble Shri Justice Deepak Kumar Agarwal
pronounced the following

                                   ORDER

Heard on IA No.1056 of 2023, an application under Sections 83 and 87 of Representation of the People Act [ hereinafter referred to as ''the Act''] and under Order 6 Rule 16 as well as Order 7 Rule 11 read with Section 151 of CPC filed on behalf of respondent.

(2) It is contended by learned Senior Counsel appearing for respondent that the election petition filed by petitioner is not maintainable in the eyes of law. So far as allegations made by election petitioner regarding various corrupt practices committed by returned candidate herein respondent from the constituency of 12 Mehgaon, District Bhind that he had obtained assistance of Government officials and clouted or affected the minds of voters is concerned, the same is vague and frivolous. Only omnibus or bald allegations have been levelled by election petitioner and it is necessary for election petitioner to prove the material facts or particulars in the light of requirements of Section 83 of the Act. It is further contended that an election once, held is not to be treated in a lighthearted manner and the defeated candidate or disgruntled elector should not get away with by filing an election petition on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate and the burden is, therefore, heavy on him who assails an election which has been concluded. To buttress his contention, he has relied on the decision of Hon'ble Apex Court in the case of Rahim Khan vs. Khurshid Ahmad and Others, reported in (1974) 2 SCC

660.

(3) It is further contended that election petitioner has made unnecessary pleadings in the election petition which do not relate to the issue involved and the same amounts to abuse of process of Court. In support of his contention, he has relied on the decision of Apex Court in the case of KK Modi vs. KN Modi reported in (1998) 3 SCC 573.

(4) It is further contended that petition filed by election petitioner cannot be considered on merits and if the pleadings are such, then they can struck down under Order 7 Rule 11 and Order 6 Rule 16 of CPC. If the allegations are such that the petitioner will get no relief on the basis of pleadings, even when there is no opposition on merits, the petition cannot be considered as it is merit-less. In the case at hand, there are lack of full particulars of corrupt practices, date and place of commission of corrupt practices and non-disclosure of source of information. In support of the contention, he has relied on the decision of Hon'ble Apex Court in the case of Ravindra Singh vs. Janmeja Singh and Others, reported in (2000) 8 SCC 191.

(5) The further contention on behalf of respondent is that the petitioner has not stated that what type of assistance was taken by the respondent and its place and time as well as the person from whom such assistance was sought by the respondent. In support of the contention, learned Senior Counsel has relied on the decision of Hon'ble Apex Court in the case of Kardwarilal vs. Kanwal Singh reported in (1971) 1 SCC 214.

(6) It is further contended that petition filed by election petitioner deserves dismissal as there is no specific pleading that any offence was committed with

the consent of the returned candidate. In this regard, the learned Senior Counsel has placed reliance on the decision of Apex Court in the case of Azhar Hussein vs. Rajiv, reported in AIR 1986 SC 1253 and Charan Lal Sahu vs. Gyani Zail Singh and another, reported in (1984) 1 SCC 390.

(7) It is further contended by learned Senior Counsel that so far as contention of petitioner that one Shri Naval Singh Parmar was openly threatening and abusing the other candidates and supporters by calling out to shoot them if they support other candidate is concerned, it is contended by learned Senior Counsel that essential ingredients of Section 83 of the Act are lacking and in absence thereof, an enquiry cannot be held. So far as allegation regarding representation of Shri Hemant Katare is concerned, how such representation came to the knowledge of petitioner and therefore, the same cannot be considered. So far as allegation regarding help of one Shri Manoj Raput is concerned, the respondent has nothing to do with it as no material particulars have been given by petitioner in the election petition. So far as allegation about Shri Rinku Bhadoriya is concerned, the same is vague and nothing has been stated by election petitioner about the person affected, its time and date when it was done, and source of knowledge and other facts. So far as allegation regarding Shri Shankar Singh regarding giving a threat is concerned, the same is false as respondent has no connection with such person and in absence of that, no equity can be held in the present petition.

(8) The further contention of learned Senior Counsel is that copy of video cassette has not been supplied to respondent and if the entire election petition along with documents are accepted, then it is clear that there is no proper

affidavit in the prescribed form and the election petitioner is obliged to disclose as to which corrupt practices had committed by respondent. In absence of verification regarding the genuineness of allegations, the petition cannot be considered on merits and same deserves dismissal. In support of his contention, he has relied on the decision of Apex Court in the case of AKK Nambiar vs. Union of India reported in AIR 1970 SC 652.

So far as such objection of respondent is concerned, the same has been decided by this Court previously on 25th of January, 2023 while considering IA No.5253 of 2022. Accordingly, such objection is hereby rejected.

(9) Relying upon the judgment delivered on 30-09-2022 by Indore Bench of this High Court in the matter of Mukesh Choudhary vs. Shri Tulsiram Silawat and Others in Election Petition No.26 of 2019, learned Senior counsel has submitted that on account of sufferance of deficiency the election petition cannot proceed further as the reliefs claimed in the petition cannot be granted as respondent cannot be put to trial, which is the essence of charges, had failed to satisfy the mandatory requirements of law. On these grounds, learned Senior Counsel submits that the election petition is not maintainable as power of Court to strike out pleadings has to be exercised with great care and circumspection.

(10) In reply, it is submitted by Shri Sharma, learned counsel for the election petitioner that the Court can strike off pleadings only if it is satisfied that the same are unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass on delay the fair trial of the suit or the Court is satisfied that suit is an abuse of process of Court. In this regard, he has relied on the judgment of

Hon'ble Apex Court in the case of Abdul Razak vs. Mangesh R.Wagle reported in (2010) SCC 432. It is further contended that the judgment relied on behalf of respondent in the matter of Charan Lal Sahu (supra) is not relevant in the present matter as it pertains to Presidential and Vice Presidential Act, 1952. Further the judgment of Azhar Hussein (supra) relied on behalf of respondent has no relevancy as in the said case, the cause of action was not disclosed. In the present matter, the requirements of Section 83(1)(b) of the Act have been fulfilled. So far as the aforesaid IA filed on behalf of respondent is concerned, this Court has already framed issues vide order dated 25-01-2023 and the evidence of witnesses has to be recorded.

(11) From the aforesaid arguments of rival parties, it is clear that petitioner has made certain allegations which are required to be proved. In this regard, Hon'ble Apex Court in the case of Virender Nath Gautam vs Satpal Singh & Ors in Appeal(civil) 809 of 2005 decided on 8th December, 2006 in para 32 has held as under:-

''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.''

(12) Issues have already been framed and veracity of aforesaid allegations can only be ascertained at the time of evidence of the parties. Accordingly, IA No. 1056 of 2023 stands rejected. Matter be listed on 10th April, 2023.

(Deepak Kumar Agarwal) Judge

MKB

MAHENDRA BARIK 2023.03.25 17:48:52 +05'30'