TaxTMI 
TaxTMI 
1986 (10) TMI 333
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....ons 82 83 and 86 of the Representation of the People Act, 1951 (the Act, 1951). The said application was disposed of on 13-12-1985 and was partly allowed, as only para 18 of the election petition was ordered to be struck out The contention of Sri Dwivedi is that the order dated 13-12-1985 operates as res judicata against the respondent. Same matter having already been decided between the same parties by this Court on 13-12-1985 under the application A 7 dated 7-10-1985. Sri Dwivedi argues that the contention of the respondent as raised in the application A-59 is barred by the rule of res judicata and the application A-59 which is nothing but a review application, though is not labelled under Order 47, Rule 1 C.P.C is not maintainable for two reasons : (1) that it is barred by time; and, (2) that Order 47, Rule 1 cannot be invoked in the election matters, because the Act, 1951 does not confer this power on the Court. The argument was that power of review is a part of substantive law in contradiction to procedural law and, therefore, that cannot be exercised under Section 87 of the Act, 1951, which simply provides that every election petition shall be tried by the H....
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....of Sri Dwivedi whether or not order dated 13-12-1985, in so far as it partly rejected the application A-7, deserves to be recalled under Section 151. This section refers to the inherent power of the court In exercise of such inherent power, the court can make such orders as may be necessary in the ends of justice or to prevent abuse of process of the court. From the law laid down by the Supreme Court in the case of Azhar Hussain (supra) it is manifest that when a charge of corrupt practice is raised in the election petition then both the material facts and the particulars must be stated to disclose a cause of action and clothe the court with jurisdiction to try the election petition In the absence of material facts and particulars, the election petition would be deemed not to have disclosed the cause of action and when cause of action is not there, the election petition either in entirety or in part, as the case may be, has to be dismissed Before proceeding with the trial, it is the duty of the petitioner to show that a proper cause of action has been disclosed and unless it is shown, the trial could not be permitted to go on, otherwise it would be an abuse of process of the court.....
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....ides that it has jurisdiction to try a suit then such a decision would not operate as res judicata at a subsequent stage. In support of this view, I rely on Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy, in which the Supreme Court observed : -- "A question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of that Court If by an erroneous interpretation of the Statute the Court holds that it has no jurisdiction, the question would not operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise because, if those decisions are considered as conclusive, it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature." 6. It, therefore, follows that wrong decision on the point of jurisdiction does not operate (as) res judicata in the subsequent proceedings, either based ....
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....7 at about 11 am. and then he" talked to his polling agents and took them outside". In para 13, it is averred that the respondent "had some talks with his polling agent", as named therein and with his father "in the compound of the polling stations thereafter the polling agents" of the respondent with his father "in his presence started terrorising and abusing the voters who were standing in a que from entering the polling stations for casting their votes" and as a result "of the intimidation of voters they left the polling station and did not vote". The polling stations referred to in para 13 have not been specified and they have not been linked with the polling stations, as specified in para 12. The names of the voters who were terrorised have not been disclosed The words and actual expression used for terrorising the voters have not been stated What were the talks as held between the respondent, his father and his polling agents as named in para 13, have not been stated The nature and manner of terrorisation have not been stated Also it is not averred whether the polling agents and the father of the respondent started terrorising and abusing the voters with explicit or implied c....
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....named Government Servants in the furtherance of the prospect of his election by writing letters under his own signature without giving material facts and the necessary particulars as to the nature of the assistance the time and place where it was sought from each of the persons mentioned does not furnish any cause of action and it is no election petition in the eye of law. It, therefore, follows that time and place constitute material facts and they have to be disclosed to present a full picture of cause of action like other material facts. In Daulat Ram Chauhan v. Anand Sharma their Lordships adverting to material facts of corrupt practice observed : -- "We must remember that in order to constitute corrupt practice, which entails not only the dismissal of the election petition but also other- serious consequences like disbarring the candidate concerned from contesting a future election for a period of six years, the allegation must be very strongly and narrowly construed to the very spirit and letter of the: law. In other words, in order to constitute corrupt practices the following necessary particulars, statement of facts and essential ingredients must be contained in t....
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....closure of all the material facts including the details relating to time, place, names of voters, nature and manner of threat extended to them, the actual words and expression used for giving threat, the fact of explicit or implied consent and the details of talks held between the respondent, his father and the polling agents in the petition right from inception was essential and the Court directing the petitioner vide order dt. 13-12-1985 to furnish all these details did some thing, which is not permitted by the case law, stated hereinbefore. If all these facts are not stated in the petition then it would be liable to be rejected straightway under Order 7, Rule 11(a), C.P.C. The law does not permit to inject a life in a dead petition by inserting the material facts and furnishing cause of action thereby. Continuance of the trial sans cause of action would amount to an abuse of process of the court within the meaning of Section 151 CP.C and, therefore, the court is fully empowered to exercise inherent powers to set right the wrong by recalling the order dt. 13-12-1985. 13. It is manifest that an act of the candidate concerned may amount to an allegation of corrupt practice, it m....
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.... with the consent of the respondent and his election agent is detailed hereinafter". 14. In para 14 of the said decision, the Supreme Court rejecting the contention of the counsel for the appellant observed as under : "Even if this allegation is taken at its face value, there is no mention at all about Sood or Satish having taken the consent of the appellant for indulging in corrupt practices. Strong reliance was placed on the second part of the recitals which disclose that there was a catalogue of corrupt practices committed by the appellant, his election agent and other persons as detailed in the petition. The learned counsel for the appellant wants us to read para 4 in conjunction with para 16 and then to arrive at the conclusion that libellous slogans were shouted by Sood and Satish with the consent of the appellant. We are however not in a position to accept this somewhat complex process of reasoning. In our opinion, such a disjoined scheme of averring particulars so that one has to read one part of the allegation with another and then by joining the two produce a particular result to infer an allegation of corrupt practice is not contemplated by Section 123 of the....
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.... 'agent' used in second part cannot be equated with the words 'polling agents', occurring in the first part. Whereas, the allegation of consent has been made in the first part with reference to the polling agents, no such allegation has been made with reference to the agents and workers, as pleaded in the second part. Who were these polling agents, agents and workers of the respondent nothing has been said in this behalf. 18. In para 20, it is stated that "the petitioner also sent a telegram to the Chief Election Commission, New Delhi on 3-3-1985 complaining of both capturing at polling stations 175, 176 and 177 by Vinod Kumar himself. Neither the contents of such telegram have been reproduced in para 20 nor has the telegram been filed Moreover, it is entirely an independent allegation having no nexus with the charge of booth capturing alleged in the earlier paragraphs. Thus there are no material facts either in para 16 or 20. 19. In para 21 the allegation is that "the Presiding Officer's diary of the polling stations 175, 176 and 177 are not filled in accordance with the direction of the Election Commission and the diary of the polling stations 175 and 17....
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.... and which, they believed to be false and did not believe it to be true, in relation to the personal character and conduct of the petitioner, with a calculated motive to prejudice the prospect of the petitioner's election". The paragraphs containing the facts for this ground are 24 to 34. The averment in para 24 is : "That the respondent No. 1, his agents, workers and supporters with his consent got published an appeal to the voters on behalf of the respondent No. 1 from Vishwa Karma Press, Puranpur." The Photostat copy of the pamphlet is Annexure 1 to the petition. The said Annexure enumerates at serial Nos. 1 to 19, the achievements, purportedly claimed having been made by the respondent during his term, ended in March, 1985 as a member of the Legislative Assembly. The last paragraph refers to an appeal purportedly made by the respondent to the electorate to be careful from the petitioner and his supporters, who due to their misdeeds and criminal activities, created terror among the people. It is also stated that the petitioner and his supports rendered a great support to the Sikhs and a sum of Rs. 2 lacs raised by way of contribution from the people, was sent to Bhinderwala ....
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....n agent and others with their consent caused another pamphlet to be printed, published and circulated during the election campaign, the Supreme Court observed in para 38 that the High Court was perfectly justified in taking the view that no cause of action was made out for in the absence of material particulars as to who had printed, published or circulated the pamphlet, when where and how it was circulated and which facts went to indicate the respondent's consent to such distribution, the pleading would not disclose a cause of action. 24. So the case of Azhar Hussain (supra) furnishes sufficient guideline as to what should be the material facts in the matter of publication of pamphlet Let us test the facts as stated in paras 24 to 34 in the instant petition on the touchstone of the principles laid down in the case of Azhar Hussain (supra). An omnibus allegation has been made in para 24 that the respondent, his agents, workers and supporters with his consent got published an appeal to the voters on behalf of the respondent No. 1 from Vishwa Karma Press, Puranpur. The names of the agents, workers and supporters have not been stated Also the particulars of consent, how, when w....
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.... have been stated as to whom the pamphlets were distributed by the persons mentioned in column 3 of the Table. The Table also does not disclose to whom the pamphlets were distributed by the respondent Nor did the petitioner disclose this material fact in para 32. 25. In para 33 it is averred that "on 14-2-1985 at the aforesaid meeting, the respondent No. 1 gave speech before the arrival of the Chief Minister, Sri, N. D. Tewari. In the speech the respondent No. 1, reiterated the allegations made against the character of the petitioner in the aforesaid pamphlet and accused him of having links with Bhinderwale and of misusing public funds of the Ram Lila Committee and Public Intermediate College, Puranpur, District Pilibhit". The allegation made in para 33 firstly has nothing to do with the grounds, as stated in para 7, which raises a charge of corrupt practice as covered by Section 123(4) and secondly, it deserves to be struck out, inasmuch as, no material facts have been stated in regard to speech. The contents of the speech have not been reproduced Moreover, the speech of the kind as stated in para 33 is not covered by Sub-section (3) of Section 123 which refers to an appeal to ....