-: 1 :- Appln. 8/10 in E.P.33/9 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPLICATION NO. 8 OF 2010 IN ELECTION PETITION NO. 33 OF 2009 Deepak Sadashiv Nikalje. ..Petitioner. Versus Chandrakant Handore & Others. ..Respondents. Mr. R. D. Soni i/b Mr. Bipin Joshi for the petitioner. Mr. A. A. Kumbhakoni with Mr. L. M. Acharya for R-1. Coram : RANJIT MORE, J. Date : November 22, 2010. P. C. : 1. The above election petition is filed for declaration that the election of the 1st respondent from 173 – Chembur Assembly Constituency is void, illegal and prayed for setting aside the same. The 1st respondent has filed above application for summarily dismissal of election petition under the provisions of section 86(1) of the Representation of People Act, 1951 [for short “the said Act”.] as also under Order VII Rule 11 of the Code of Civil Procedure, 1908 read with Section 83 of the said Act. srp -: 2 :- Appln. 8/10 in E.P.33/9 2. The petitioner’s case, in short, is that the election voting machines which were used on the date of election for the purpose of polling were different from the machines, particulars of which were provided by the election officer, to the petitioner and other candidates. It is the case of the petitioner that election officer, by its reply to the petitioner’s complaint to that effect, has admitted that there was discrepancy in the Control Unit and Ballot Unit mentioned in Form No.79. The petitioner and other candidates, except the 1st respondent, objected for counting on the basis of incorrect machine number. It is further case of the petitioner that election machines were changed after casting of votes and the defective electronic voting machines which were not in working conditions were used by manipulating the same. It is the case of the petitioner that above situation was created due to modus operandi followed by respondent no.1 and inaction on the part of respondent nos. 13, 14 and 15. In the above circumstances, the petitioner claims that the result of the election is materially affected. 3. The 1st respondent challenged maintainability of the petition and prayed for its dismissal on the following grounds: (A) Election petition is liable to the rejected under section 86(1) of the said Act on the following grounds : (i) The petition is not accompanied by Affidavit in Form No. 25, though -: 3 :- Appln. 8/10 in E.P.33/9 the petitioner has alleged corrupt practices under section 123(8) of the said Act. In the absence of aforesaid affidavit, election petition is not complete and validly filed within 45 days and therefore liable to be rejected under section 81 of the said Act. (ii) Though the petitioner in paragraph no.12 has relied upon copy of CDs in support of his case of tampering or destroying of EV machines, copies of the CDs have not been served upon respondent no.1 and non-service of CDs would amount to non service of true copy of election petition under section 86(1) of the said Act. (iii) Security deposit was not made within the time prescribed in the High Court Original Side Rules, which amounts to breach of provisions of section 117 of the said Act. (B) Election petition does not disclose the cause of action nor does it raise any triable issue and hence election petition be summarily rejected under Order-VII Rule-11 of the CPC read with section 83(1) (a) of the said Act. 3. Mr. Kumbhakoni, learned counsel for the 1st respondent submitted that the petition is not accompanied by affidavit in Form No. 25. He further submitted that filing of an affidavit is must as the petitioner has alleged corrupt practices under section 123(8) of the said Act. He -: 4 :- Appln. 8/10 in E.P.33/9 further submitted that CDs on which the petitioner has relied upon would become integral part of the election petition and non service of same amounts to non service of true copy of the election petition on the respondents. He also submitted that the provisions of section 117 of the said Act are mandatory. He further submitted that the petitioner has failed to make security deposit within the prescribed time limit, therefore, petition deserves to be dismissed. In support of his argument he relied upon decision of the Supreme Court in M. Karunanidhi v. H. V. Handa, reported in AIR-1983 SC 558. Regarding his case of non disclosure of cause of action, he took me through the pleadings in the election petition as well as relevant provisions of the said Act, and submitted that the petitioner has alleged corrupt practices only against the election officers and there is not even a vague reference of either consent given by the respondent no.1 and or a statement that the alleged acts complained in the petition are in the interest of candidate. It is the submission of Mr. Kumbhakoni, that the statement of consent or interest of candidate are material facts to maintain the election petition, which in the present petition are completely missing and, therefore, petition is not maintainable on alleged cause of action. He lastly submitted that the petitioner has not pleaded in the election petition that the result of election insofar it concerns the returned candidate has been materially -: 5 :- Appln. 8/10 in E.P.33/9 affected. In this regard he relied upon decisions of the Apex Court in the matter of (i) Ram Sukh v. Dninesh Aggarwal [(2009) 10 SCC 541] (ii) Hari Shanker Jain v. Sonia Gandhi [(2001) 8 SCC 233] and (iii) Azhar Hussain v. Rajiv Gandhi [AIR-1986 SC 1253]. 4. Mr. R. D. Soni, learned counsel for the petitioner contested the application and submitted that the petitioner has filed requisite affidavit as well as concise statement as contemplated under Rule 94A and Form no. 25. In this regard he relied upon the Apex Court decision in the case of F.A.Sapa v. Singora reported in (1991) 3 SCC 375. Regarding the compliance of provisions of section 117, he submitted that deposit was accepted by the Registry of High court on the instructions of Prothonotary, who has power to instruct the acceptance of deposit. Regarding certified copies of CDs., he submitted that the said CDs. are in possession of respondent nos. 13, 14 and 15 and they would be called to produce the same at the appropriate stage of trial. Insofar as the case of respondent no.1 that the petition is liable to be dismissed under Order- VII Rule-11 of CPC for want of pleading of material facts and cause of action is concerned, Mr. Soni submitted that the petitioner has pleaded material facts. He pointed out distinction between the material facts and material particulars and submitted that the defect in regard to material particulars can be cured at later stage of trial by amendment. In this -: 6 :- Appln. 8/10 in E.P.33/9 regard, he relied upon the decisions of the Apex Court in (i) V. S.Achuthanandan v. P. J. Francis [1999 AIR(SC)-0-2044], (ii) Azhar Hussain v. Rajiv Gandhi [AIR-1986 SC 1253], (iii) Ram Sukh v. Dinesh Aggarwal [(2009) 10 SCC 541] and (iv) Sasanagouda v. Dr. S. B. Amarkhed and ors [AIR 1992 SC 1163]. He submitted that averments in the plaint as a whole are to be looked into, presuming the same to be correct for deciding the cause of action. In the above circumstances, he submitted that the application is devoid of substance and deserves to be dismissed. 5. Having heard learned counsel for the respective parties and having gone through the allegations made in the petition and annextures thereto and various decisions of the Apex Court cited at Bar, I am of the view that there is no merit in the application. 6. The allegation of respondent no.1 about non filing of affidavit in Form No.25, is without any substance. Perusal of the petition and annexures thereto discloses that the petitioner has filed requisite affidavit as well as concise statement as contemplated by Rule 94A and Form 25. Even otherwise the Apex Court in F.A.Sapa v. Singora [(1991) 3 SCC 375] has held that the said defect is merely irregularity which can be cured at later stage and it is not fatal. 7. The voting was held on 13/10/2009 and results were declared on -: 7 :- Appln. 8/10 in E.P.33/9 22/10/2009. The petitioner has filed the present petition on 7/12/2009, i.e. on the last day of limitation. It is the allegation of respondent no.1 the election petition has been lodged at 4.45 p.m. on the last day of limitation and the security deposit of Rs. 2,000/- has been accepted by the Registry/C.S. Department of the High Court at about 5.10 p.m., when admittedly the timing for acceptance of deposit as per Rule-365 of High Court Original Side Rules in the High Court is upto 1.00 p.m. on week days. It is respondent no.1’s case that the acceptance of security deposit after 1.00 p.m. is clearly illegal and therefore such illegal acceptance being non acceptance in the eyes of law such petition is to be treated as one filed without such a deposit having been made at all. This ground of objection is also without any substance in view of the provisions of Rule 39 of the High Court Original Side Rules, which reads thus : “Rule-39: Late payment when deemed to be made : When an amount is tendered in the Court on any day after 1.00 p.m., but is not accepted by the office concerned and is paid into the said office on the next working day between 11.00 a.m. and 1.00 p.m., the payment shall be deemed to have been made on the day on which the tender was made.” -: 8 :- Appln. 8/10 in E.P.33/9 8. In the present case, the security deposit was accepted by the Registry on the instructions of Prothonotary, who has power to instruct the acceptance of deposit. Thus, the provisions of section 117 of the said Act have been complied with by the petitioner. 9. So far as objection of non supply of certified copies of DVDs are concerned, it is the specific contention of the petitioner that those DVDs/CDs. are in possession of respondent nos.13, 14 & 15 and the said respondents can be directed to produce the same at later stage of trial. In this view of the matter, respondent cannot make any grievance. 10. This takes me to consider respondent no.1’s objection regarding non pleading of material facts and non disclosure of cause of action. Respondent no.1 contends that in the absence of non disclosure of cause of action the petition deserves to be dismissed under Order-VII Rule-11 of CPC read with section 83(1)(a) of the said Act. The election of respondent no.1 is challenged under the provisions of section 123(8) of the said Act on the allegation that the EVMs, which were used on the date of election for the purpose of polling were different from the particulars of which were provided by the Election Officer to the petitioner and other candidates. It is the specific contention of petitioner that the EVMs were changed after casting of votes. The petitioner in paragraph no. 10 of the petition has made following averments : -: 9 :- Appln. 8/10 in E.P.33/9 “The petitioner submits that from the aforesaid facts and circumstances of the case, and from the modus operandi of the Respondent no.1 and inaction on the part of the Respondent Nos. 13, 14, 15 and/or officers, they have indulged into corrupt practice within the meaning of provisions of Representation of Peoples Act, 1951 and therefore election of respondent no.1 ought to be set aside by this Hon’ble Court under the said Act.” . In Paragraph no.11 of the petition, the petitioner has made following averments “... The aforesaid act on the part of the Respondent no.1 and/or his election agent and/or his worker amounts to corrupt practice and therefore this Hon’ble Court be pleased to set aside the election of respondent nod.1.” In paragraph no.12 of the petition, the petitioner has stated that in view of the above misconduct and corrupt practice within the meaning of section 123, the same has materially affected result of election and in the interest of justice, this Hon’ble Court be pleased to set aside the election in accordance with provisions of section 123(8) of the said Act. 11. The petitioner has annexed various documents to the petition by way of Exhibits, which include correspondence between himself and Election Officer. Exhibit-J to the petition is the notice dated 23/10/2009. This notice is an integral part of the pleadings and is -: 10 :- Appln. 8/10 in E.P.33/9 required to be read alongwith petition to ascertain the cause of action. Paragraph no.3 of the said notice reads as follows : “3. My client says that election in 173 Chembur Assembly Constituency has been systematically rigged by the aforesaid means and methods, which are directly attributed to the congress candidate Mr. Chandrakant Handore and my client has reason to believe that this has been done with the help of the concerned Polling Officers. There was a complete failure of the election machinery and there was corruption, malpractice and fraud in the conduct of the election in the 173 Chembur Assembly Constituency. My client and his supporters have been denied their democratic right to vote and elect. All these have resulted in failure to conduct free and fair election and, therefore, the said election in the 173 Chembur Assembly Constituency is illegal and deserved to be declared as invalid.” 12. If the statements made in the petition in paragraph nos.10, 11 and 12 as well as in notice dated 23/10/2009, which is at Exhibit-J to the petition, are taken into consideration, then in my opinion, it cannot be said that the petitioner has not set out all material facts. I, thus, find that the petitioner has complied with all the requirements of section 83(1) of the said Act. At this stage, reference can be made to the -: 11 :- Appln. 8/10 in E.P.33/9 decisions of the Apex Court in (i) V. S.Achuthanandan v. P. J. Francis [1999 AIR(SC)-0-2044], (ii) Azhar Hussain v. Rajiv Gandhi [AIR-1986 SC 1253], (iii) Ram Sukh v. Dninesh Aggarwal [(2009) 10 SCC 541] and (iv) Sasanagouda v. Dr. S. B. Amarkhed and ors [AIR 1992 SC 1163]. These decisions distinguish the material facts from material particulars. The Apex Court has held that failure to plead material facts is fatal to the election petition and no amendment is permissible after the time limit prescribed for filing election petition. The absence of material particulars, however, can be cured at a later stage by appropriate amendment. Election petition is not liable to be dismissed in limine merely because all particulars of corrupt practice alleged were not set out. The decision of the Apex Court in Ram Sukh v. Dinesh Aggarwal [(2009) 10 SCC 541] and Azhar Hussain v. Rajiv Gandhi [AIR-1986 SC 1253] will not be of any help to respondent no.1 to substantiate his contention inasmuch as I find that the petitioner has pleaded material facts disclosing the cause of action. It is settled law that while considering the objection under Order-VII Rule-11 of CPC, the averments made in the plaint as a whole are required to be considered presuming same to be correct. In this regard reference can be made to the decisions of Apex Court in Mayar (H.K.) Ltd v. Owners and Parties, Vessel M. V. Fortune Express reported in 2006 BC(SC) 30156 and (ii) Liverpool -: 12 :- Appln. 8/10 in E.P.33/9 and London S.P. and IASSOn Ltd v. M. V. Sea Success reported in 2003 Scale 10-1. 13. Taking overall view of the circumstances into consideration, I find no merit in the application and same is therefore rejected. (RANJIT MORE, J.)