MOHAN RAWALE v.

DAMODAR TJ\TYABA@ DADA.SAHEB AND ORS.

AUGUST 6, 1992

[M.N. VENKATACHALIAH AND P.B. SAWANT, JJ.J

Representation of People Act, 1951: Sections 123(2)(3) and 3A-£/ection Petition-Corrupt practice-A/legations pertaining to the period prior to nomination-R.e/evance of. ·

Sections 81, 83 and 86-Election Petition-Proceedings-'Disc/osing a reasonable cause of action '-What is-Distinction between 'material facts' and 'full particulars'-What i.;.

Election Petition-Non supply of Annexures-Effect of-Contents set D out in petition but not served on respondent-Petition whether should be dismissed . .

Section 79(b )-Expression 'candidate'-Substitution of by Act 40 of 197o-Effect of.

The respondent, who was defeated at the elections to the 10th Lok Sabha from the Bombay South Central Parliamentary Constituency, filed an election petition challenging the election of the appellant, the returned candidate alleging corrupt practices under Sections 123(2)(3) and 3(A) of the Representation of People Act, 1951. The appellant took out chamber summons for an order of dismissal of the Election Petition contending that the memorandum of petition did not disclose a cause of action; that copies of annexures were not supplied; and that the pleadings were friv!>lous and vexatious but the High Court dismissed the motion.

In appeal to this Court it was contended on behalf of the appellant G that: (i) In view of the substituted definition of the expression 'candidate' in section 79(b), the appellant acquired the status of a candidate only from the date of filing of nomination; since the allegations of corrupt practices related to a period prior to the nomination i.e. prior to the appellant becoming a candidate they would not amount to corrupt practice even if H they are proved; (ii) The allegations in the election petition relating to the

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period after the commencement of the appellant's candidature are vague, A bereft of material particulars, frivolous and vexatious and do not disclose a reasonable cause of action; and (iii) the copies of certain documents which were an integral part of the proceedings were not supplied.

Disposing the appeal, this Court

HELD : 1. The allegations of corrupt practice relating to the period anterior to the commencement of the candidature cannot be relied. upon

to establish corrupt practice proprio vigore. The view taken by the High Court fails to take note of and give effect to the substitution of the definition of the expression 'candidate' in section 79(b). All sub-sections C of section 123 of the Act refer to the acts of a 'candidate' or his election agent or any other person with the consent of the candidate or his election agent. The substituted definition completely excludes the acts by a candidate upto the date he is nominated as a candidate. (856-C, 855-E]

2.1. The High Court was right in its view that there was a triable D issue arising out of the pleadings. An election petition can be rejected under Order VII Rule 11 (a) C.P.C. if it does not disclose a cause of action.

Pleadings could also be struck out under Order VI Rule 16, inter alia, if they are scandalous, frivolous or vexatious. A reasonable cause of action is said to mean a cause of action with some chance of success when only

- the allegations in the pleading are considered. But so long as the claim E discloses s_ome cause of action or raises some question fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no -ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are quite often more known than clearly understood. It does intro- F duce another special demurer in a new shape. [859 D-E, 856 G-H, 857-A]

2.2. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of'full particulars. There is a distinction amongst the 'grounds' in Section 8l(l):the 'material facts' in Section 83(l)(a) and 'full particulars' in Section 83(1)(b). Further, the distinction G between "material facts" and "full particulars" is one of degree. The lines of distinction are not sharp. "Material facts" are those which a party relies upon and which, if he does not prove, he fails at the time. The distinction between 'material facts' and 'particulars' which together constitute the facts to be proved.or the 'facta probanda' - on the one hand and the H

A evidence by which those facts are to be proved - facto probantia - on the other must be kept clearly distinguished. (857 B-G, 858-G)

Bruce v. Odhams Press Ltd., (1936) 1 K.B. 697; Philipps v. Philipps,

(1878) 4 QBD 127 and William v. Wilcox, (1838) SA & E at page 331, referred to.

Halsburys Laws of England "Pleadings" Vol. 36. para 38; Bullen and Leake and Jacob's "Precedents of Pleadings" 1975 Ed. at p. 112 and Jacob's "The Present Importance of Pleadings" (1960) Cu1Tent Legal Problems, 175- 76, referred to.

3.1. There is distinction between cases where the nonsupply of the annexures referred to in the body of the election petition incurs the penalty of dismissal and cases where their non-supply would not entail dismissal.

One of the distinctions underlying this difference is whether the document is, in itsel.f, an integral part of the pleadings or is merely appended or D referred to as a possible means of proving the allegations. In the instant case, the purport and contents of the documents were set out in the election petition. (859 F-G, 861-D]

3.2. The question whether a particular document produced by the election petitioner partakes of the nature of and constitutes an integral E part of the pleadings or whether it is merely material by which the allegations in the election petition are intended to be proved depends upon the facts and circumstances of each case and the nature and content of the pleadings and of the documents. No hard and fast test applicable to all cases can, or is possible to, be laid down. (861-F] F Sahodrabai v. Ram Singh Ahmwar, (1968) 3 S.C.R. 13; U.S. Sasidlzaran v. K.Karunakaran & Anr., A.I.R. 1990 S.C. at 924, relied on.

M. Karunanidhi v. H. V. Handa, A.l.R. 1983 SC 558, explained.

G CIVIL APPELLATE JURISDICTION : Civil Appeal No. A 3399/92.

From the Judgment and Order dated 24-26.2.92 of the Bombay High Court in Chamber Summons No. 1179 of 1991.

H , G.L. Sanghi, Arun Jaitly, Makarand D. Adkar, Ejaj" Maqbool, VJ.

Francis, Yadhunath Choudhary and Mr. V. Subramanian for the Petitioner. A

R.F. Nariman and M.N. Shroff for the Respondents.

The following Order of the Court was delivered

Appellant seeks special leave to appeal to this Court from the order B dated 24/26th February, 1992 of the High Court of Judicature at Bombay in Chamber Summons No. 1179/1991 in Election Petition No. 4/1991.

2. Before the High Court, the first respondent, who was defeated at c the election held on 15th June, 1991, to the 10th Lok Sabha from the South Central Parliamentary Constituency, called in question the eletion of the returned candidate - the appellant. Corrupt practices under Sect.ions 123(2), 123(s) and 123(3A) :lf the Representation of People's Act, 1951 ('Act') are alleged. In the proceedings, appellant took out Chamber Summons for an order of dismissal of the election petition on the ground, inter alia, that the memorandum of election petition did not disdose a cause of D action; that copies were not supplied; that the pleadings were frivolous and vexatious and required to be struck out. The High Court has dismissed this motion.

3. We have heard Sri G.L. Anghi for the appellant and Shri R.F. nariman for the respondents. We grant special leave. The appeal is heard E and is disposed of by this order. A number of grounds appear to have been taken before the High Court in support of the Chamber Summons. But Sri Sanghi confined himself to and urged only three contentions in support of this appeal :

(i) The first is that the allegation of corrupt practice under Sections 123(2), 123(3) and 123(3A) in paras 1 to 20 of the memorandum of election petition refer to matters long anterior to 23rd April, 1991 when the nomination papers were lodged by the appellant and on which date alone appellant could be said to have legally acquired the status of a candidate and that, therefore, the allegations in these paragraphs relating, as they do, to a period anterior to 23rd April, 1991 even if proved, would not amount to corrupt practice by a candidate. Accordingly, these pleadings require to be struck out.

(ii) Secondly, the allegations in other paragraphs of the petition are vague, bereft of material particulars and do not disclose a reasonable cause of action.

(iii) Thirdly, the copies of certain documents which were an integral part of the pleadings were not supplied. Sri Sanghi referred to two instences which, according to him, attract Section 81. One was the non-supply of notes said to have bee~ prepared by Melind .Ranade (agent of the first respondent) of the speech of a £ertain sadhvi Ritambhra in support of the appellant's candidature declined by her on 21st May, 1991. The other was the cassette recording of that speech referred to by the first respondent in the election petition.

4. On the first point, Sri Sanghi contends that the High Court fell into an error in not appreciating the effect of the substitution of the D definition of the expression 'candidate' in Section 79(b) of the Act brought about by Act 40 of 1970 which, in effe; t, made a person a "candidate" only from the day he was duly no.minated as a candidate at the election. Sri Sanghi says that while the old definition required that "any person shall be declared to have been a candidate as from the time when, with the election E in prospect, he began to hold himself out as a prospective candidate" the substituted Section 79(b), however, did away with these words. The effect of this, says Sri Sanghi, as profound and far-reaching and renders !ill th~ allegations of corrupt practice in paras 1 to 20 in relation to a period prior to the nomination irrelevant and incapable, in law, even to amount to allegations of corrupt practice. It is urged that as the candidature could be F said to have legally commenced only on 23rd April, 1991 even i( all the allegations of facts cont; i.ined in paras 1 to 20 are deemed to have been proved by non-traverse or otherwise held proved, they could not establish corrupt practice. It was accordingly urged that those paragraphs in the election petiton require to ~\!. struck out.

5. The High Court rejected this contention and held:

" In my judgment, it would not be appropriate to hold that the averments contained in the aforesaid paragraphs are / un.: necessary or irrelevant. In my view they are very much H relevant to the facts in issue. The pleadings in these

paragraphs are the foundation for the cause of action and they are material facts which constitute corrupt practice under Sections 123(2) (3), (3A) of the Act."

The reason for that view, according to the High Court, is :

"It would be seen that the candidature of respondent No.

B 1 was finelised on 16th April, 1991 and respondent No. 1 and his party workers had started campaigning on that day. In the issue· of "Samna dated 19th April, 1991 the candidature of respondent No. 1 was officially and formally announced by the Shiv-sena party and respondent No.

C 1 accepted the candidature by remaining present in the public meeting held on 19th april, 1991 at Girgaum-Chowpatty. Respondent No. 1 was introduced to the voters in the said public meeting and respondent No. 1 also sought the blessings of Shri Bal Thackeray in the said public meeting. Respondent No. 1 was thus holding out to be a D .candidate from 16th April, 1991."

This, we are afraid, is not the correct perception of the matter. the view fails to take not of and give effect to the substitution of the definition of the expression "candidate" in section 79(b). All sub-sections of section E 123 of the Act refer to the acts of a 'candidate' or his election agent or any other person with the consent of the candidate or his election agent. The substituted definition completely excludes the acts by a candidate upto the date he is nominated as a candidate. Sri Sanghi, therefore, asks us to take this position to its logical conclusions and striks out these allegations in the election petition.

6. Sri R.F. Nariman for the first respondent found it difficult to support the view taken by the High Court as to the time at which appellant's candidature could be said to have commenced. However, Sri Nariman endeavoured .to contend that even if the allegations in paragraphs 1 to 20 did not, by themselves, establish corrupt practice in law by virtue G of their commission prior to the appellant becoming a candidate, these averments and allegations must be read as parts of similar transactions pleaded in the later and subsequent paragraphs of the memorandum of the election petition. Sri Nariman said that, at all event, the allegations in paragraphs 1 to 20 cannot be said to be irrelevant if they can be sustained H

A for the purposes of probabalising of furnishing "similar-fact" evidence of the allegations of corrupt P, ractice made in the later paragraphs of the election petition.

7. We hold that all the averments in paragraphs 1 to 20 of the memorandum of electioI). petition in so far as they refer to a period prior to 23.4.1991 cannot amount to allegations of corrupt practice. But on the question whethe~ they are relevant and admissible for other purposes for the reasons., sub_mitted 'by Sri Nariman we abstain from expressing any opinion. This aspect did not engage the attention of the High Court and was not considered by it. It is for the High Court and was not considered by it. It is for the High Court to consider them at the appropriate time.

We, therefore, declare that the allegations in paras 1 to 20 relating to the period anterior to the commencement of the candidature cannot be relied upon to establish corrupt practice proprio vigore.

8. The second contention of Sri Sanghi is that even the allegations in D the later paras of the election petition relating to the period after the commencement of the appellant's candidature are vague, bereft of material particulars, frivolous and vexatious and do not disclose a reasonable cause of action. Sri Sanghi submits that Section 86 does not exhaust the grounds of _dismissal <?f an eection petition in limine. An election petition, says E counsel, can and ought to be rejected if grounds contemplated by Rule 11 of Order 7 Civil Proceducer Code exist.

• Sri Sanghi's contention really covers three distinct, though overlapping, ideas. It raises the question -of absence of material particulars, alleges frivolousness and vexatiousness of the pleadings and lastly, alleges their F inability and insufficiency to disclose a reasonable cause of action.

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9. We may take up the last facet first. As Chitty J. obsenred: "There is some difficulty in affixing a precise meaning to" the expression "discloses no reasonable cause of action or defence". He said: "In point of law .... • every cause of action is a reasonable one". [See Republic of Peru v. Pernvian G Guano co., 1887 36 Ch.D. 489). A reasonable cause of action is said to mean a cause of action with some chance of success when only the allegations in the pleading are considered. But so long as the claim discloses some-cause•of action or raises some question fit to be decided by a Judge, the mere fact that the case is weak and not likely to succed is no H ground for striking it out. The implications of the liability of the pleadings

' .,

to be struck out ori the liability of the pleadings to be struck out on the A ground that it discloses no reasonable cause of action are quite often more known than clearly understood. It does incroduce another special demurer in a new shape. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. The distinctions among the ideas of the "grounds" in Section 81(1); of "material facts" in Section 83(1)(a) and of "full particulars" in Section 83(l)(b) are obvious. I The provisions of Section 83{1)(a) and (b) are in the familiar pattern of Order VI, Rules 2 and 4 and Order 7, Rule l(e) Code of Civil Procedure.

There is a distinction amongst the 'grounds' in Section 81(1); the 'material facts' in Section 83(1)(a) and 'full particulars; in Section 83(1)(b ).

- 10. Ref erring to the importance of pleadings a learned author says :

"Pleadings do not only define the issues between the parties for the final deciion of the court at the trial, they manifest and exert their importance throughout the whole

process of the litigation ..... They show on their face f whether a reasonable cause of action or defence is disclosed. They provide a guide for the proper mode of trial and particularly for the trial of preliminary issues of law or fact. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They J act as a measure for comparing the evidence of a party with the case which he has pleaded. They determine the. range of the admissible evidence which the parties should be prepared to adduce at the trial. They delimit the relief which the court can award ..... "

(See: Jacob, "The Present Importance of Pleadings" (1960 Current Legal Problems, at 175-76).

Further, the distinction between "material facts" and "full particulars" is one of degree. The lines of distinction are not sharp. "Material facts" are those which a party relies upon and which, if he does not prove, he fails at the time.

In Bntce v. Odltams Press Ltd., (1936) 1 K.B. 697, Scote LJ. said ; "The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material fact' is omitted, the

\.. statement of daims i!> bad". The purpose of 'material particulars' is in the context of the nted to _give the opponent sufficient details of the charge set up against him and to give him a reasonable opportunity.

Halsbury refers to the function of particulars thus:

"The function of particulars is to carry into operation the overriding principle that the litigation between the parties, . and . particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs ...... This function has been variously stated namely either to limit the generality of the allegations in fhe pleadings, or to define the issues which have to be tried and for which discovery is required ..... "

(See: "Pleadings" vol. 36 para 38)

) in Bullen and Leake and Jacob's "Precedents of Pleadings" 1975 Ed. at p. 112 it is stated :

"The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to save costs. The object of particulars is to "open up" the case of the opposite party and to compel him to reveal as much as possible what is going to be proved at the social, whereas, as cost of the has said, "the old system of pleading at common layout to conceal as much as possible what has going to be proved at the trial."

11. The distinction between 'material facts' and 'particulars' which together constitute the facts to be proved - or the 'f acia probanda' - on the one hand and the evidence by which those facts are to be proved - facta probaniia - on the other must be kept clearly distinguished. In Pltlipps v. Phillipps, (1878) 4 QBD 127 at p. 133, Brett, L.J. said :

"I will not say that it is easy to express in words what are the facts which must be stated and what matters need not be stated ...... The distinction is taken in the very rule itself, between the facts on whicp the party relies and the

evidence to prove those facts. Erle C.J. expressed it in this way. He said that there were facts that might be called the allegata probanda, the facts which ought to be proved, and they were different from the evidence which was adduced to prove those facts. And it was upon the expression of opinion of Erle C.J. that rule 4 now r. 7(1) was drawn. The facts which ought to be stated are the material facts on which the party pleading relies."

Lord Denman, CJ. in William v. Wilcox, (1838) 8 A & Eat page 331, said:

"It is an elementary rule in pleading that, when a state of facts is relied it is enough to allege it simply, without setting out the subordinate facts which are. the means of proving it, or the evidence sustaining the allegation."

An election petition can be rejected under Order VII Rule ll(a) D C.P .C. if it does not disclose a cause of action. Pleadings could also be struck out under Orde.r VI Rule 16, inter alia, if they are scandalous, frivolous or vexatious. The latter two expressions meant cases where the pleadings are obviously frivolous and vaxatious or obviously unsustainable.

12. We have considered the submissions of the learned counsel on both sides. We are not persuaded to the view that the order of the High Court on this aspect of the controversy calls for interference. The High Court was right in its view that there was a triable issue arising out of the pleadings. The second contention, in our opinion, is insubstantial.

13. The third contention of Sri Sanghi needs to be answered on the distinction between cases where the non-supply of the annexures referred

to in the body of the election petition incurs the penalty of dismissal and cases where their non-supply would not entail dismissal. Decided cases lay down the principles on which the courts act. One of the distinctions G underlying this difference is whether the document is, in itself, an integral part of the pleadings or is merely appended or referred to as a possible means of proving the allegations.

In Salwdrabai v. Ram Singh Alzarwar, [1968] 3 SCR 13 at page 19, this Court observed : H

H -

SUP~EME COURT REPORTS (1992] SUPP. 3 S.C.R.

" ..... We have already pointed out that Section 81(3) speaks only of the election petition. Pausing here, we would say - that since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet was served upon the respondents although in a translation and not in original. Even it this be not the case, we are quite clear that subsectio~ (2) of Section 83 has ref ere nee not to a document which is produced as evidence of the avennents oj the election petition but to avennents of the election petition which are put, not in the election petition but in the accompanying schedules or annexures.

[Emphasis supplied]

In U.S. Sasidharan v. K Kanmakaran & Anr., AIR (1990) SC at 924, the distinction is brought out :

"The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner without pleading the material facts or particulars of corrupt practice, may refer to the document.

When sucha reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the docume_nt becomes incorporated in the election petition any reference.

In other words it forms an integral part of the election petition , Sec. 81(3) provides for giving a true copy of the electionpetition. when a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of S. 81(3) and, as such, the court has to dismiss the election petition under S.86(1) for non-compliance with s.81(3). On the other hand, if the contents of the document in question are pleaded in the

election petition, the document does not form an integral part of the election petition. ln such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provision of S.81(3).

The document may be relied upon as an evidence in the proceedings ...... "

[Emphasis supplied]

14. Appellant contended before the High Court that the notes made by Milind Rana.de of the speech of a certain Sadhvi Ritambhra referred to

in the election petition not having been supplied tlie Election Petition must C be dismissed for non compliance of section 81(3) read with sction 86 of the 'Act'. It was also urged that a 'cassette' recording that speech had not been supplied.

We have examined this contention of Sri Sanghi in the context of the actual pleadings. In our opinion, they are clearly covered by the letter part D of the enuunciation in Sasidharan case excerpted above. The Purport and contents of the documents were set out in the election petition. Shri Sanghi however, sought to rely upon this Courses pronouncement in the case of M. Kanmanidhi v. H. V. Handa, AIR (1983) SC 558, as to what was held in that case held to be the consequence of the nonsupply of the photograph E of the "banner". In that case, the photograph was to be an integral part of the pleadings.

The question whether a particular document produced by the election petitioner partakes of the nature of and constitutes an integral part of the pleadings or whether it is merely material by which the allggations in F the election petition are intended to be proved depends upon the facts and circumstances of each case and the nature and content of the pleadings and of the documents. No hard and fast test applicable to all cases can, or is possible to, be laid down. Karunanidhi's case did not depart from the principle laid down in earlier cases but merely illustrated one particular G application of the rule to the facts of that case. The third contention is not substantial either.

15. In the result, the first point is held in favour of the appeUant and the averments and allegations in paras 1 to 20 in so far as they relate to a period prior to 23.4.1991 are held incapable of amounting to allegations of H

A corrupt practice. Whether they are relevant or admissible for other purposes is a matter which the High Court will decide at the appropriate time.

The other two contentions are rejected. The. appeal is dispose.d of accordingly. No costs.

T.N.A.

Appeal disposed of.

....