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PETITIONER: RAVINDER SINGH

       Vs.

RESPONDENT: JANMEJA SINGH & ORS.

DATE OF JUDGMENT:       19/09/2000

BENCH: N.Santosh Hegde

JUDGMENT:

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     This  appeal is directed against an order of the  High Court  of  Punjab and Haryana dated 3.6.1999, dismissing  an election petition filed by the appellant at the threshold on sustaining preliminary objection.

     The  appellant,  who  was a candidate set  up  by  the Congress  Party  was  defeated  by  respondent  No  .1,  the returned  candidate,  who had been set up by the  Akali  Dal (Badal  group).   The  elections  to  constituency  No  .96, Perozepur  Cantt of Punjab Legislative Assembly were held in 1997.  The polling took place on 7.2.1997 and after counting of  votes on 9.2.1997, respondent No.l was declared elected. In  view  of the limited nature of controversy  involved  in this  appeal,  we  are relieved of the necessity  of  giving break-up

     of  votes  or mention about other candidates, who  had also contested the election.

     The  appellant  filed an election petition seeking  to declare  the election of returned candidate void on  various grounds  and for a further declaration that the appellant be declared  duty elected as Member of the Legislative Assembly after  setting aside election of the returned candidate.  In the  election  petition,  two main  corrupt  practices  were alleged  to have been committed by the returned candidate  - one   falling   under   Section   123   (1)(A)(b)   of   the Representation of the People Act, 1951 (hereinafter referred to  as the Act) and the other falling under Section 123  (4) of  the Act.  The material facts and particulars  concerning allegations  of corrupt practice insofar as corrupt practice under  Section  123(1)  is  concerned,  are  contained  from paragraphs  28  to.   39  of the  election  petition,  while material  facts  and  particulars concerning  commission  of corrupt  practice  falling under Section 123 (4) of the  Act are  contained  in  paragraphs  12 to  27  of  the  election petition.

     Mr.   Talwar,  learned  counsel   appearing  for   the election  petitioner  has  taken  us  through  the  election petition.

     Section 123(4) of the Representation of the People Act provides :

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     "The pub1ication by a candidate or his agent or by any other person with the consent of a candidate or his election agent,  of any statement of fact which -is false, and  which he  either  believes to be false or does not believe  to  be true,  i’n relation to the personal character or conduct  of any  candidate,  or  in  relation  to  the  candidature,  or withdrawal,  of any candidate, being a statement  reasonably calculated  to  prejudice the prospects of that  candidate’s election,"

     In  vain,  have  we   searched  through  the  election petition  and,  particularly  through paragraphs  12  to  27 thereof,  dealing  with  the alleged commission  of  corrupt practice  which falls within the mischief of Section  123(4) of  the  Act,  for  any averment to  the  effect,  that  the publication  was  made  by the returned candidate  or.   his election  agent  or by any other person with the consent  of the  candidate  or his election agent’ or any  statement  of fact  which  is  false and which he either beIieves  .to  be false.   or does not believe .to be true in relation to  the personal character or conduct of the candidate.

     The  election  petition -is singularly silent  of  any such  averment that the returned candidate, even "if, it  be assumed  for  the sake of the arguments, had  published  and distributed  certain  documents, (Annexures A-1 to A-7),  as alleged  in the election petition either himself or  through any  other  persons with his consent, that those  statements were  false and that the returned., candidate ..   eJ.the"". be  I  i eved hem on be false or did not believe them to  be true,  though in paragraph 9 of the election petition, which has  been verified as correct on the basis of legal  advice, this  requirement  emanating  from Section 123(4)  has  been mentioned  but  without  any  assertion  that  the  returned candidate  in  this  case  published  the  false  statements knowing  them  to be false and/or not believing them  to  be true.  The submission of Mr.  Talwar, that at the trial, the petitioner could have said so in his evidence is futile.  It is an established proposition that no evidence can be led on a  plea  not raised in the pleadings and that no  amount  of evidence can cure defect in the pleadings.

     In  the  face of the pleadings, no charge  could  have been framed insofar as corrupt practice under Section 123(4) of the Act is concerned.  We need not detain ourselves to

     consider  the ’allegations’ in this behalf, because of the absence of the essential averments to lay a charge under Section 123(4) of the Act.  The requirement of making such a statement,  as referred to above by us.  is mandatory and in the  absence of any such statement, the charge could not  be put  to  trial.   Paced  with this  serious  lacuna  in  the pleadings,  Mr.   Talwar sought to press the allegations  of bribery under Section 123(1) as detailed in paragraphs 28 to 39 of the election petition.

     Coming  now to the charge of corrupt practice  falling under  Section  123(1) of the Act, for which material  facts and particulars have been detailed in paragraphs 28 to 39 of the  election petition, we find that those allegations could not  be put to trial either.  There is no affidavit filed in support of the allegations of corrupt practice of bribery.

     Proviso  to  Section  83(1) of the Act lays  down,  in

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mandatory  terms, that where a.n election petitioner alleges any  corrupt  practice, the election petition shall also  be accompanied  by  an  affidavit, in the prescribed  form,  in support  of  the  allegations  of   such  practice  and  the particulars thereof.  The affidavit, which has been filed in support of the election petition, does not at all deal with

     the charge of bribery falling under Section 123 (1) of the  Act.  Leaving aside the questions that the affidavit is not  even in the prescribed form - Form 25.  of the  conduct of  Election Rules, the allegations of corrupt practice made in  the election petition are not supported by the otherwise defective   affidavit  either.   .All   the  names  of   the informants  which have been given in the affidavit relate to the  corrupt practice under Section 123(4) and the affidavit in   this   respect  is  a  verbatum  reproduction  of   the verification  clause  of  the election  petition  concerning corrupt  practice  under  Section 123(4).  No  name  of  any informant  has been mentioned in respect of the  allegations of  corrupt practice under Section 123(1) in the  affidavit. In  the absence of the requisite affidavit filed in  support of  the allegation of corrupt practice under Section  123(1) of  the Act, as detailed in the election petition, no  issue could be raised for trial.

     Section  83  of the Act is mandatory in character  and requires  not only a concise statement of material facts and full  particulars of the alleged corrupt practice, so as  to present  a  full  and complete picture of the action  to  be detailed in the election petition but under the proviso to

     Section  83(1)  of  the  Act,  the  election  petition levelling a charge of corrupt practice "is required, by law, to  be  supported  by an affidavit "in  which  the  election petitioner  is obliged to disclose his source of information in  respect of the commission of that corrupt practice.  The reason  for  i:,his insistence is obvious.  It is  necessary for  an election petitioner to make such a charge with  full responsibility and to prevent any fishing and roving enquiry and  save  the  returned  candidate   from  being  taken  by surprise,  in  the  absence  of  proper  affidavit,  in  the prescribed form, filed in support of the corrupt practice of bribery, the allegation pertaining thereto, could not be put to trial the defect being of a fatal nature.

     We  also  wish  to note here that the  learned  Senior counsel  appearing  for the election petitioner in the  High Court  had  on 14.7.1998 made a statement in the High  Court that-  he was not pressing his prayer relating to recounting of votes.  No other point was raised before us.

     The  learned Single Judge of the High Court  dismissed the  election  petition  on deciding Issue No.5,  which  was treated as a preliminary issue and reads thus :

     "Whether the election petition lacks in material facts and particulars, necessary to constitute

     complete  cause  of action for setting as"’de  of  the election  of  ’the  respondent No.1, within the  meaning  of Section  83, read with Sections 100(1)(d)(1v) and 123 of the Representation of People Act.?"

     For  what.  we have said above, the order of dismissal of  the  election  petition, without putting  it  to  trial,

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cannot be faulted with.

     For our reasons) which are somewhat different from the ones  given by the High Court, we find that the decision  of the  High  Court  to  non-suit the  election  petitioner  by deciding  the preliminary issue against him is well merited. There  is no merit in this appeal.  It.  consequently, fails and  is hereby dismissed.  There shall, however, be no order as.  to costs.