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TMI Blog1975 (10) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... an Sangh was declared elected by a margin of 1,41,090 votes over his nearest rival, Shri Deorao Krishnarao Jadhav, sponsored by the Indian National Congress. 3. Udhav Singh, an elector of the Constituency, filed an election petition on 26-4-1971, in the High Court challenging the election of the respondent on two main grounds viz.,(i) that the respondent and/or his election agent had incurred or authorised expenditure in connection with the election in excess of the limit of ₹ 35,000/- prescribed under Section 77(3) of the Act read with Rule 90 of the Conduct of Election Rules, 1961 . It was alleged that the respondent made a tour in the Constituency by helicopters and showed ₹ 5,000/- only as an expense towards the cost of the aviation fuel but did not show the hiring and other charges in respect thereof. It was further alleged that the respondent hired and used motor vehicles, not less than 18, but did not show the expenditure incurred in respect thereof in the statement of election expenses submitted by him to the Election Commission: (i) that the workers of the respondent, with his consent, had threatened the electors with bodily injuries and criminally intimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r D.K. Jadhav as detailed in Paragraph 11 of the petition and if so, what is its effect? 6. Thereafter, the petitioner examined twelve witnesses on various dates, fixed in the case, from 16-12-1971 to 24-7-1972. 7. On 3-8-1972, an application (No. 58/72) was submitted by the respondent alleging that the election-petitioner has in paragraph 11(iv) of the petition alleged the commission of a corrupt practice within the meaning of Section 123(2) of the Act, by, Shri Shiv Pratap Singh, one of the candidates, but has failed to join him as a respondent, and as such, his petition is liable to be dismissed under Section 86 on account of non-compliance with the mandate of Section 82(b). In this application, the respondent reproduced Clause (iv) of Para. 11 of the petition as follows: That on or before 22-2-71, Shri Mohan Prasad Ojha a Congress worker of village Umri (Tehsil Guna) was threatened at pistol point by the workers of the respondent with his consent, Shri Shiv Pratap Singh and others of Umri threatened him not to vote and canvass in favour of the Congress candidate, Deorao Krishnarao Jadhav and threatening him with dire consequences. 8. Notice of this application was g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court. The respondent closed his evidence on 9-7-72. 11. The learned trial Judge heard these objections arising out of the non-joinder of Shri Shiv Pratap Singh, along with the final arguments in this case. 12. Shri Baghel, Counsel for the respondent, while appearing in the witness-stand was unable to say definitely whether Ex. Rule 33, was a true copy of the copy he had received from the High Court office In view of this the learned Judge held that it had not been proved that these erasures in Para 11(iv) under initials were made subsequently to the filing of the petition. He therefore, considered Clause (iv) of Para 11 sans the words erased. There, as here, it was contended that the second part of Clause (iv) of Para 11 if properly construed would mean that Shri Shiv Pratap Singh and others of Umri were threatened - and not that they threatened - not to vote and canvass in favour of the Congress candidate. The learned Judge repelled this contention with the observations that in no circumstances of the case (it) is possible to read Para 11(iv) in the manner suggested by the petitioner. According to him the allegations in this paragraph constituted a charge under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om pure points of law. In the alternative, it is submitted that the application, dated 3-8-72. whereby this objection was raised was in nature and substance additional pleading of the respondent which was accepted as such by the Court. The petitioner also submitted his reply thereto and he could not complain that he was taken by surprise. It is further urged that the provisions of Section 86, read with Section 82(b), are in the nature of a mandate to the Court, which is bound to dismiss an election petition whenever it comes to its notice, whether on its own motion, or on the motion of the respondent, that there has been a noncompliance with the imperative of Section 82(b). 18. The material part of Section 82 reads thus: Parties to the petition - A petitioner shall join as respondent to his petition: (a)... (b) any other candidate against whom allegations of any corrupt practice are made in the petition. 19. Behind this provision is a fundamental principle of natural justice viz., that nobody should be condemned unheard. A charge of corrupt practice against a candidate, if established, entails serious penal consequences. It has the effect of debarring him from being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f defence 'raises issues of fact not arising out of the plaint', such plea or ground is likely to take the plaintiff by surprise, and is therefore required to be pleaded. If the plea or ground of defence raises an issue arising out of what is alleged or admitted in the plaint, or is otherwise apparent from the plaint, itself, no question of prejudice or surprise to the plaintiff arises. Nothing in the Rule compels the defendant to plead such a ground, nor debars him from setting it up at a later stage of the case, particularly when it does not depend on evidence but raises a pure question of law turning on a construction of the plaint. Thus, a plea of limitation that can be substantiated without any evidence and is apparent on the face of the plaint itself, may be allowed to be taken at any stage of the suit. 23. An objection on the ground of non-compliance with the requirement of Section 82(b) is a plea of this category. It arises out of allegations made in the petition itself. Such a plea raises a pure question of law depending on a construction of the allegations in the petition, and does not require evidence for its determination. Such a plea therefore, can be raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was threatened at pistol point by the workers according to Counsel, stands alone, and should not be read conjointly with the second part which speaks of Shri Shiv Pratap Singh and others of Umri. However, not very consistently with this argument, it is urged further that since the allegations in the first part are set out in passive voice the contents of the second part should also be deemed to have been expressed in passive voice. If this methodology is adopted, the second part of Para 11 (iv) according to Mr. Dixit, would read like this: Shri Shiv Pratap Singh and others of Umri (were) threatened not to vote and canvass in favour of the Congress candidate, Deorao Krishna rao Jadhav.. 30. We are afraid, this ingenious method of construction after compartmentalization , dissection, segregation and inversion of the language of the paragraph, suggested by Counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from the one flowing from the plain language and tenor of Para 11(iv). We have therefore no hesitation in repelling the second contention also, canvassed on behalf of the appellant. 34. The last contention of the learned Counsel for the appellant is that even if the second part of Clause (iv) is construed as an allegation that Shri Shiv Pratap Singh and others of Umri threatened not to vote and canvass, then also, this allegation is so bereft of material facts and material particulars, that it does not constitute a complete charge of corrupt practice under Section 123(2). The material facts and material particulars, which, according to Counsel were in view of the mandate of Section 83 required to be pleaded, but have not been pleaded are: the place where the threat was given, the kind and nature of the injury threatened, or injury, if any, actually caused, the particulars of the parentage, address of Shiv Pratap Singh, and others the fact that this Shiv Pratap Singh of Umri was the same who was one of the candidates at the election and that the person threatened was an elector, and how the threat constituted an interference with the free exercise of his electoral right. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, CPC. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. 38. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are material facts . In the context of a charge of corrupt practice material facts would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election-petition, a particular fact is material or not, and as such required to be pleaded is a question which depends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared, could the court have given a verdict in favour of the election petitioner? The answer is in the negative because the allegations in the petition did not disclose any cause of action. 41. Bearing in mind the criteria for distinguishing material facts from material particulars, let us now see whether the allegations in Para 11(iv) of the petition cover all the material facts constituting a complete charge of corrupt practice within the meaning of Section 123(2) against Shri Shiv Pratap Singh who was a candidate at the election. 42. The gist of the corrupt practice of undue influence as defined in Sub-section (1) of Section 123 is direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right. 43. By way of illustration Sub-clause (1) of Clause (a) of the Proviso lays down that if a person who threatens any candidate or any elector, or any person in whom a candidate or an elector is inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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