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PETITIONER: SULTAN AHMD. OWASI

       Vs.

RESPONDENT: MOHD. OSMAN SHAHEED AND ORS.

DATE OF JUDGMENT10/04/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KAILASAM, P.S.

CITATION:  1980 AIR 1347            1980 SCR  (3) 439  1980 SCC  (3) 281  CITATOR INFO :  RF         1986 SC   3  (23,152)

ACT:      Election   Petition-Applications   for   summoning   of witnesses and  amendment of  counter-Practice and  Procedure under the  Representation of  People Act-Sections 87 and 116 of the Representation of the People Act read with Order VIII Rule 2 of Civil Procedure Code.

HEADNOTE:      In the two election petitions E. P. No. 18/78 and E. P. No. 20/78  filed by  the defeated  candidates, allegation of corrupt practice,  namely "indulgence  in  promoting  hatred rousing religious  sentiments by  speeches made  at  certain places"  was   made  against  the  appellant,  a  successful candidate.      After the  election petitioner  closed his evidence and the High  Court directed  the appellant  to file the list of his witnesses,  the appellant  filed two applications before the High  Court namely,  one for summoning witnesses Nos. 6, 8, 15  and 16  and another for amendment of his counter. The High Court  however refused to summon these witnesses on the ground that  no foundation  for the  facts on  the basis  of which these  witnesses were  sought to  be cited  or for the points on  which they  were to  be, examined was laid in the counter. Similarly,  the High Court rejected the application for amendment  of the  counter on the same grounds. The High Court was  of the  view that  in the absence of any specific plea of  alibi,  having  been  taken  in  the  counter,  the appellant could  not be  allowed to examine the witnesses or amend the counter. Hence the two appeals, by special leave.      Allowing the appeals the Court, ^      HELD: 1.  Under the provisions of the Representation of People Act,  the onus  lies entirely  on the  petitioner  to prove the  corrupt practices  alleged  against  the  elected candidate. The  necessary  facts  and  particulars  and  the statements of  facts etc.  are to be pleaded by the election petitioner with  exactitude and  precision. It  is now  well settled by  a large  catena of the authorities of this Court that a  charge of  corrupt practice  must be  proved to  the hilt, the  standard of  proof of such allegation is the same

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as a charge of fraud in a criminal case. [442B-C]      D. Venkata  Reddy v. R. Sultan and Ors., [1976] 2 S. C. C. followed.      2. So  far as the elected candidate is concerned, he is merely to  rebut the  allegations made  by the petitioner in accordance with  the provisions  of the Civil Procedure Code as far  as practicable.  In the  instant case, the appellant had taken  an express  plea in  his counter  that he did not make any  speech at  the  places  alleged  by  the  election petitioner. He  also stated that tape records or the cassets alleged to  contain his  speech were  fabricated. One of the ways of  proving this  plea could  be by  showing  that  the appellant was not physically present at the places where the speeches are  alleged to have been made as he was present at that time,  at some  other place. This is what the appellant sought to do through the proposed amendment and by summoning 440 the witnesses.  Thus it was clearly open to the appellant to have proved  facts in order to rebut the allegations made by the petitioner  that he  was not present at the places where he is said to have made speeches. [442E-G]      3. Under s. 116 of the Representation of the People Act an election  petition has  to be tried as nearly as possible according  to  the  procedure  applicable  under  the  Civil Procedure Code  to the trial of suits. Under O.VIII R. 2 the defendant must  raise by his pleading all matters which show that the  suit is  not maintainable, or that the transaction is either  void or  voidable in  point of  law, and all such grounds of  defence, as,  if not  raised, would be likely to take the  opposite party  by surprise, or would raise issues of fact  not arising  out of  the plaint.  Having  expressly denied  the  allegation  of  having  made  the  speech,  the appellant was  fully  justified  in  raising  this  defence. [442G-H, 443A]      In the  instant  case,  it  cannot  be  said  that  the witnesses sought to be examined by the appellant or the plea which he  claimed in  his counter by virtue of the amendment would spring surprise on the election petitioner because the appellant had  already denied  in clear  terms that he never made any  speeches at  the places  mentioned in the election petition. There  was no  corresponding duty on the appellant to give full particulars or detailed statement of fact which the petitioner  had to  do in  order to  set at  naught  the electoral process  which resulted  in the  election  of  the appellant. [443A-C]      4. So far as the discretion vested on the High Court by Section 87  of the Representation of the People Act, 1951 to refuse to  summon any  witness lies  only when  it is of the opinion that  the evidence of the witness is not material or that the  party  tendering  such  witness  is  doing  so  on frivolous ground  or with  a view  to delay the proceedings. [443D-E]      In the  instant  case  none  of  these  conditions  are present.  In  order  to  repel  the  plea  of  the  election petitioner, the  appellant was  entitled to lead evidence to show that  he did  not make  any speech as he was physically incapable in  doing so  at the  time and place as alleged by the petitioner.  By virtue  of the  amendment the  appellant sought to  insert a  plea that  he could  not have  made the speeches as  alleged by  the election  petitioner because he was at that time out of station and was present in Adoni-180 miles from  the places  where he  is said  to have delivered speeches. In  fact, witnesses  Nos. 6, 8, 15, 16 and 17 were summoned to prove the fact that this appellant was in Adoni. [441G-H, 442A, 443E]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 2036- 2039/79.      Appeals by  special leave  from the Judgment and Orders dated 27-4-1979,  and 25-6-1979  of the  Andhra Pradesh High Court in  U.R.S. Nos.  4039 and 4040 in W.P. Nos. 18 & 20 of 1978 and application Nos. 75 & 76 in WP Nos. 18 & 20 of 1978 respectively.      M. A. Abdul Khader, Mukramuddin and G. Narayana Rao for the Appellants.      Dr. Y.  S. Chitale,  K. Ram Kumar and T. A. Ramchandran for the Respondent.      The Judgment of the Court was delivered by 441      FAZAL ALI,  J. These appeals by special leave have been filed by  the appellant who was respondent No. 1 (before the High  Court),  the  elected  candidate  from  the  Charminar Assembly  Constituency  No.  218  in  the  State  of  Andhra Pradesh. The  election petitioner  Mohd. Osman Shaheed filed election petition  for setting  aside the  election  of  the appellant being  E.P. No.  18/78 in  the High  Court.  Ahmed Hosain, a  candidate who  was defeated  also  filed  another election petition  No. 20/78  on the  same grounds assailing the election  of the  appellant. In  the aforesaid  election petitions before  the High Court two applications were filed in each  of the petition by the appellant, one for summoning witnesses Nos.  6, 8,  15 and 16 and the other for amendment of the  counter. These  applications were  filed  after  the petitioner closed  the evidence  and the High Court directed the appellant to file the list of witnesses. The High Court, however, refused  to summon  these witnesses  on the  ground that no foundation for the facts on the basis of which these witnesses were sought to be cited or for the points on which they were  to be examined was laid in the counter. Similarly the High Court rejected the application for amendment of the counter on  the same grounds. The High Court was of the view that in  the absence  of any  specific plea  of alibi having been taken  in the  counter,  the  appellant  could  not  be allowed to  examine the  witnesses  or  amend  the  counter. Appeal  Nos.  2036-37/79  are  directed  against  the  order striking out  the witnesses  nos. 6,  8, 15,  16 and  17 and Appeal  Nos.  2038-39/79  are  directed  against  the  order rejecting the application for amendment of the counter.      We have  heard counsel  for the  parties and  have gone through the Judgment of the High Court. We have also perused the application  for  amending  the  written  statement.  It appears that  one of  the main  allegations made against the appellant was  that he  had delivered  speeches at Khilawat, Chowk and  Baragalli on  17-2-78 and 21-2-78 respectively in which he  indulged in  promoting  hatred  rousing  religious sentiments. It  was further alleged in Election Petition No. 20/78 that he made another speech at Baragalli where also he indulged in  preaching religious hatred against the election petitioner. In  his counter the appellant stoutly denied the allegation that  he ever  made any speech at these places at all. The  respondent denied  having made  speech at  all  at Khilawat or  Chowk or Baragalli. By virtue of the amendment, the appellant sought to insert a plea that he could not have made the  speeches as  alleged by  the  election  petitioner because he  was at  that time out of station and was present in Adoni-180  miles from the places where he is said to have delivered

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442 speeches. In  fact, witnesses  nos. 6, 8, 15, 16 and 17 were summoned to prove the fact that this appellant was in Adoni.      With due  respect, we  may observe that in refusing the amendment of  the Counter  or summoning  the witnesses,  the High Court seems to have over-looked the fact that under the provisions of  the Representation  of People  Act, the  onus lies  entirely  on  the  petitioner  to  prove  the  corrupt practices  alleged   against  the   elected  candidate.  The necessary facts  and particulars and the statements of facts etc. are  to be  pleaded by  the  election  petitioner  with exactitude and  precision. It is now well settled by a large catena of  the authorities  of this  Court that  a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal  case. In  the case  of D.  Venkata Reddy  v.  R. Sultan & Ors.,(1) this Court observed as follows:-           "Another principle that is equally well settled is      that election petitioner in order to succeed must plead      all material  particulars and  prove them  by clear and      cogent evidence.  The allegations  of corrupt practices      being in the nature of a quasi-criminal charge the same      must be proved beyond any shadow of doubt."      So far  as the  elected candidate  is concerned,  he is merely to  rebut the  allegations made  by the petitioner in accordance with  the provisions of the Civil Procedure Code, as far as practicable. In the instant case the appellant had taken an  express plea  in his  counter that he did not make any speech at the places alleged by the election petitioner. He also  stated that  tape records or the casette alleged to contain his  speech were  fabricated. One  of  the  ways  of proving this plea could be by showing that the appellant was not physically  present at the places where the speeches are alleged to have been made as he was present at that time, at some other  place. This  is what  the appellant sought to do through  the   proposed  amendment   and  by  summoning  the witnesses. Thus it was clearly open to the appellant to have proved these facts in order to rebut the allegations made by the petitioner that he was present at the places where he is said  to   have  made   speeches.  Under   s.  116   of  the Representation of the People Act an election petition has to be tried  as nearly  as possible  according to the procedure applicable under  the Civil  Procedure Code  to the trial of suits. Under  O. VIII  R. 2  the defendant must raise by his pleading all  matters  which  show  that  the  suit  is  not maintain able,  or that  the transaction  is either  void or voidable in  point of  law, and all such grounds of defence, as, if not raised, would be likely 443 to take  the opposite  party by  surprise,  or  would  raise issues of  fact  not  arising  out  of  the  plaint.  Having expressly denied  the allegation  of having made the speech, the appellant was fully justified in raising this defence.      Thus in  the instant  case it  cannot be  said that the witnesses sought to be examined by the appellant or the plea which he  claimed in  his counter by virtue of the amendment would spring surprise on the election petitioner because the appellant had  already denied  in clear  terms that he never made any  speeches at  the places  mentioned in the election petition. There  was no  corresponding duty on the appellant to give full particulars or detailed statement of fact which the petitioner  had to  do in  order to  set at  naught  the electoral process  which resulted  in the  election  of  the appellant. In fact proviso to s. 87 of the Representation of the People Act which may be extracted thus provides:

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         "Provided that  the  High  Court  shall  have  the      discretion to  refuse, for  reasons to  be recorded  in      writing, to  examine any  witness or  witnesses is  not      material for  the decision  of the petition or that the      party tendering  such witness  or witnesses is doing so      on frivolous  grounds or  with  a  view  to  delay  the      proceedings."      So far as the discretion on the High Court to refuse to summon any  witness lies only when it is of the opinion that the evidence  of the  witness is  not material  or that  the party tendering such witness is doing so on frivolous ground or with  a view  to delay  the proceedings.  None  of  these conditions appear  to be present in the instant case nor did the High  Court dismiss the application for amendment of the counter or  refused to  examine the witnesses on the grounds mentioned above. It it, therefore, manifest that in order to repel the  plea of the election petitioner the appellant was entitled to  lead evidence  to show that he did not make any speech as  he was  physically incapable  in doing  so at the time and  place as  alleged by  the election petitioner. For these reasons, therefore, we are clearly of the opinion that the High  Court was  wrong in disallowing the prayer made by the appellant  for examining  the witnesses and for allowing amendment  of  the  counter.  The  appeals  are  accordingly allowed, the Judgment of the High Court is set aside and the High Court  is directed  to allow  the appellant  to examine witnesses Nos.  6, 8,  15, 16  & 17 and the amendment prayed for by  the appellant is also hereby allowed. The High Court will dispose  of the  election petition now as expeditiously as possible.  The costs  of these  appeals  will  abide  the result of the election petition. S.R.                                        Appeals allowed. 444