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PETITIONER: D.  RAMACHANDRAN

       Vs.

RESPONDENT: R.V.  JANAKIRAMAN & ORS.

DATE OF JUDGMENT:       19/03/1999

BENCH: M.Srinivasan, R.P.Sethi

JUDGMENT:

SRINIVASAN, J.

     Aggrieved  by  the dismissal of his Election  Petition E.P.   3/1996  on  a preliminary issue,  the  appellant  has approached this Court.  2.  In the general elections held in 1996  to the Legislative Assembly of Pondicherry, the  first respondent  was  elected from No.7  Nellithope  Constituency with 8803 votes.  The appellant secured 7354 votes while the votes  polled  by  respondents  2 to 7  are  not  worthy  of mentioning.   The  8th  respondent  in this  appeal  is  the Returning  Officer.   The appeal is contested by  the  first respondent whose application O.A.  No.36/87 for striking out paras  6  to  10,  11 to 18, 19,20, 26, 31  and  32  of  the Election  Petition  and  consequent rejection  of  the  said petition at the threshold without going to trial was allowed by  the  High  Court.   3.  In the  Election  Petition,  the appellant  made  the  following   allegations.   The   first respondent  and  his  family  were not  residents  of  No.7, Nellithope  Assembly  Constituency but the first  respondent managed  to  get  the  names   recorded  as  voters  in  the constituency.   The  first respondent indulged in  character assassination against the appellant personally attacking him in T.V.  interview, in printed pamphlets distributed through his agents and workers with his consent and knowledge and in the   election  campaign  meetings.    The  1st   respondent deliberately  and purposely violated the relevant rules  and regulations.   The  1st respondent incurred  expenditure  in excess  of  the permitted limit of Rs.30,000/- and  did  not disclose  all  the  expenses  in the  accounts.   The  first respondent  utilised the services of Government servants who canvassed  for him in the elections.  There were 3216  names in the voters’ list who could not have polled at all as 1455 were not available at the addresses mentioned, 1554 had gone out  of Pondicherry and some of them were even out of  India while 207 were dead.  Though it was brought to the notice of the Returning Officer who had informed the concerned polling officers  of polling booths, 2000 of them had been shown  to have  polled their votes.  The first respondent had indulged in  several  corrupt  practices  as a result  of  which  the results  of  the  election were  materially  affected.   The appellant  prayed  for declaring the election of  the  first respondent  to be void and declaring himself to be  valildly elected  to the assembly from the constituency in  question. 4.  The first respondent filed a detailed counter- affidavit denying  each  one of the allegations made in  the  election petition  in  December 1996.  There was no  whisper  therein that  any  of the allegations in the petition was  vague  or

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made in such a way that the respondent was not in a position to understand and meet the same.  Nor was there any averment that  any  part  of the election petition  was  unnecessary, scandalous,   frivolous  or  vexatious  or  would  tend   to prejudice,  embarrass  or delay the fair trial of the  suit. There  was also no averment to the effect that the  election petition  was otherwise an abuse of process of Court.   With regard  to  some of the allegations made in the petition,  a plea  was  raised by the first respondent that they did  not disclose  a cause of action.  5.  Sometime after filing such a  counter-affidavit, the first respondent filed on  22.1.97 Original  Application  No.36/97  praying  for  striking  out paragraphs  6 to 20, 26, 31 and 32 of the election  petition and  consequently rejecting the entire election petition  in limine.   In  the  said  application  the  first  respondent averred  that  the  various   allegations  in  the  election petition  did not project any material facts and thereby any triable issue.  A perusal of the said application shows that the only basis on which the prayer therein was made was that the  allegations contained in the election petition did  not disclose  a  cause  of  action and no  triable  issue  arose thereon.   The  appellant filed a counter-affidavit  to  the said  application  opposing the same.  Apart from that,  the appellant  filed O.A.  No.  186/97 on 12.3.1997 praying  for permission  to file original documents filed along with  the reply statement as Annexures 21 to 29.  That application was also opposed by the first respondent and a counter-affidavit was  filed.  6.  The High Court heard the two  applications. The  High  Court  framed three points for  consideration  as follows:

     (1)  Whether  the original documents filed along  with the  reply  statement,  as enclosures 21 to  29  more  fully described  in  the Schedule are relevant, as  necessary  and receivable   at  this  stage,  on   the  facts  and  in  the circumstances of the case.

     (2)  Whether  preliminary objections taken as  to  the maintainability  of the Election Petition is sustainable  in law, on the facts and in the circumstances of the case;  and

     (3)  What  is  the  consequence   to  flow  from   the sustainability or otherwise of the objections so taken."

     Point  No.1 was answered against the appellant and his application O.A.  No.  186/97 was dismissed.  Point No.2 was answered  in  favour  of  the   first  respondent  and   his application  O.A.   No.  36/97 was  allowed.   Consequently, under  Point No.3 the Court rejected the main E.P.  No.3/96. 7.   It  is  that  judgment  of  the  High  Court  which  is challenged  before us.  As rightly contended by the  learned counsel for the appellant, the judgment of the learned Judge is  obviously based upon a confusion of ideas and failure to appreciate  the  distinction  between   the  provisions   in Sections  81, 83 and 85 of the Representation of the  People Act  1951 (hereinafter referred to as the ‘Act’) on the  one hand  and  Order VI, Rule 16 and Order VII, Rule 11  of  the Civil  Procedure  Code on the other.  The learned judge  has chosen  to  test  the  veracity   and  sufficiency  of   the allegations  in the election petition by taking note of  the facts  pleaded  by  the  first  respondent  in  his  counter affidavit.  In the circumstances, the learned senior counsel appearing  for the first respondent has rightly concentrated on supporting the conclusion of the High Court rejecting the election  petition  and did not make any serious  effort  to

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support  the reasoning contained in the judgment.  8.  We do not  consider it necessary to refer in detail to any part of the  reasoning  in  the judgment;  instead,  we  proceed  to consider  the  arguments advanced before us on the basis  of the  pleadings  contained in the election petition.   It  is well settled that in all cases of preliminary objection, the test  is to see whether any of the reliefs prayed for  could be  granted  to the appellant if the averments made  in  the petition  are  proved  to  be  true.   For  the  purpose  of considering  a  preliminary objection, the averments in  the petition  should be assumed to be true and the Court has  to find  out whether those averments disclose a cause of action or  triable issue as such.  The Court can not probe into the facts on the basis of the controversy raised in the counter. 9.   Under Order VI, Rule 16, the Court is enabled to strike out  a  pleading (a) which may be  unnecessary,  scandalous, frivolous  or  vexatious or (b) which may tend to  prejudice embarrass or delay the fair trial of the suit;  or (c) which is  otherwise an abuse of the process of the Court.  We have already  pointed  out that it is not the case of  the  first respondent  that  the pleading in the election  petition  is vitiated  by  all  or  any  one  of  the  aforesaid  defects mentioned  in  the  rule.  Hence striking out parts  of  the pleading in this case was not at all justified.  10.  On the other hand, Rule 11 of Order VII enjoins the Court to reject the  plaint  where it does not disclose a cause  of  action. There  is  no  question of striking out any portion  of  the pleading  under  this  rule.  The application filed  by  the first  respondent in O.A.  No.  36/97 is on the footing that the  averments in the election petition did not contain  the material  facts giving rise to a triable issue or disclosing a  cause  of action.  Laying stress upon the  provisions  of Order VII, Rule 11 (a), learned senior counsel for the first respondent  took us through the entire election petition and submitted that the averments therein do not disclose a cause of  action.  On a reading of the petition, we do not find it possible  to agree with him.  The election petition as  such does  disclose  a cause of action which if unrebutted  could void the election and the provisions of O.VII R.11(a) C.P.C. can  not  therefore  be invoked in this case.  There  is  no merit  in  the contention that some of the  allegations  are bereft of material facts and as such do not disclose a cause of  action.   It  is elementary that under  O.VII  R.11  (a) C.P.C.,  the Court can not dissect the pleading into several parts  and  consider  whether each one of them  discloses  a cause of action.  Under the rule, there can not be a partial rejection  of  the plaint or petition.  See Roop  Lal  Sathi Versus  Nachhattar Singh Gill (1982) 3 S.C.C.  487.  We  are satisfied  that the election petition in this case could not have  been  rejected  in  limine   without  a  trial.    11. Designedly,   we  are  refraining   from  adverting  to  the arguments pertaining to each allegation of corrupt practice, lest  any  observation by us might affect the views  of  the trial  judge.   Suffice it to point out that this court  has repeatedly clarified the difference between "material facts" and  "full  particulars" and the different  consequences  of failure to set out either of them.  In L.R.  Shivaramagowda, Etc.   Vs.   T.M.   Chandrashekar Etc.  (1998) 6  Scale  361 cited by counsel on both sides, the case law has been traced and  the  propositions are reiterated.  12.   The  following rulings  relied  on by learned senior counsel for the  first respondent  have  no  application  here  as  they  were  all rendered  in  election petitions disposed after trial.   (a) Surinder  Singh  Vs.  Hardial Singh & Ors.  (1985) 1  S.C.C. 91.   (b)  Manohar  Joshi Vs.  Nitin Bhaurao  Patil  &  Anr.

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(1996)  1  S.C.C.  169.  (c) Moreshwar Save  Vs.   Dwarkadas Yashwantrao  Pathrikar  (1996) 1 S.C.C.  394.  (d)  Ramakant Mayekar  etc.   Vs.   Celine D’Silva(Smt.)  Etc.   (1996)  1 S.C.C.   399.   13.   The decision in Ram Chand  Bhatia  Vs. Shri  Hardyal  (1986)  2 S.C.C.  121  making  a  distinction between  statements  assailing personal character and  those assailing  public  or political character of a candidate  is not  relevant at this stage.  As pointed out by the Bench in that  case,  the question would depend on the facts of  each case.   Such facts can be determined only at the trial.  The decision  in  Azhar  Hussain Vs.  Rajiv Gandhi  1986  (Supp) S.C.C.   315  relied on by learned senior counsel turned  on the  facts  of the case and has no relevance in  this  case. 14.  In the view, we have expressed, it is not necessary for us  to refer in detail to the rulings relied upon by learned counsel  for  the appellant.  15.  As regards O.A.   186/97, the approach of the learned judge is totally erroneous as he has  not  kept  in mind the  distinction  between  "material facts"  and  "full  particulars".    Nor  has  be  correctly appreciated  the decisions of this Court referred to by him. We  do not want to express any opinion at this stage on  the additional  documents produced by the appellant.  The  trial court  may  decide  the  application in  the  light  of  the relevant  judgments  of  this Court,  in  particular,  those laying  down  the  difference between "material  facts"  and "full  particulars".  Hence the order in O.A.  186/97 is set aside  and the application is remanded for fresh disposal in accordance  with law.  16.  In the result, we hold that  the judgment of the High Court is unsustainable and it is hereby set aside.  The appeal is allowed and E.P.  3/96 is restored to  file.  O.A.36/97 stands dismissed.  We request the  High Court  to expeditiously dispose of the election petition  on merits.  There will no order as to costs.