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Ambanna Hanumappa Naik Vs. Sharnappa and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberI.A. Nos. I and II in Election Petn. No. 7 of 1972
Judge
Reported inAIR1973Kant261; AIR1973Mys261
ActsRepresentation of the Peopel Act, 1951 - Sections 83(1), 86(5), 123(1) and 123(5); Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 15
AppellantAmbanna Hanumappa Naik
RespondentSharnappa and ors.
Appellant AdvocateS.G. Bhat and ;S.P. Deshpande, Advs.
Respondent AdvocateD. Venugopala Chari, ;K.A. Swami, ;K.H.N. Kuranga and R.N. Byra Reddy, Advs.
DispositionPetition partially allowed
Excerpt:
.....section 86(5)? in our opinion the aim of that section is to see that a person accused of a corrupt practice must know precisely what he is accused of so that ho may have the opportunity to meet the allegations made against him. so long as the charge level led is beyond doubt, section 86(5) is satisfied; that section is not designed to interdict a mere clumsy pleading like the petition before us. omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. if the material facts of the corrupt practice are stated more or better particulars of the charge may be given later, but where the material facts themselves are missing it is impossible to think that the charge has been made or can be later amplified. it would, therefore, be..........be specifically pleaded and strictly proved. if it has not been pleaded as part of the material facts, particulars of such corrupt practice cannot be supplied later on. the bar of the latter part or the fifth subsection to section 86 then operates.'10. the last case to which a reference is necessary is p, c. purushothama reddiar v. s. perumal, : [1972]2scr646 . the relevant enunciations party to the scope and ambit of sub-section (6) of section 123 of the r. p. act, and the nature of amendment to be permitted. they are:'the incurring or authorising the expenditure more than the limit prescribed under section 77 is one single corrupt practice within section 123(6). it is erroneous therefore to hold that each item of expenditure is a separate corrupt practice by itself.'and'the.....
Judgment:
ORDER

B. Venkataswami, J.

1. This is an application by the Election Petitioner seeking for an amendment of the petition, filed pursuant to Sub-section (5) of Section 86 of the Representation of the People Act, 1951 (R. P. Act). The amendments sought almost wholly relate to facts and particulars pertaining to corrupt practices alleged against the first respondent.

2. It is necessary to set out some facts relating to the institution of the petition and the subsequent stages of the proceedings upto the date of the presentation of the application I. A. II, as the same would be relevant for the determination of the questions of delay and want of bona fides concerned with an application for amendment.

3. The Election Petition in question has been presented on 25-4-1972, when the Court was in recess on account of the long vacation. But it is to be noted that the Notification issued by the Chief Justice had specifically made provision for receiving Election Petitions, among other matters. The date, 29-5-1972, had been fixed for the appearance of the respondents. On that day counsel for respondents 1 and 4 only entered appearance, and respondents 2 and 3 were placed ex parte. On 19-6-1972, the written statements of the respondents were filed. On 10-7-1972 issues were framed and the case was posted to 24-7-1972 for arguments on the issues treated as preliminary. On that day, during the course of the arguments, the learned counsel for the petitioner presented an application, I. A. No. I, seeking permission to 'amend and amplify* the particulars of corrupt practices alleged in the petition. But, no amendment application as such had been produced. Hence, the arguments on preliminary issues were concluded and the case was posted for orders on such issues, along with the said I. A. No. I, to 4-8-1972. The present application came to be filed on 27-7-1972, within 93 days from the date of institution of the Election Petition.

4. I shall advert to the contents of the proposed amendments a little later. The affidavit filed in support of I. A. No. II, in support of the case of good faith, has principally relied on certain circumstances. They are that the petitioner had been under a misapprehension that the Court would be closed for summer recess and as such he had to consult his Advocate and the Registrar of the High Court as to the correct position in this behalf, and that he had not enough time thereafter to properly prepare and present the petition. On behalf of the first respondent, the application has been resisted on various grounds, including one relating to want of good faith. It has also been contended that by the proposed amendments, fresh 'material facts', which had not been earlier alleged, are sought to be introduced for the first time and that the particulars referred to were either unnecessary or such as would not properly answer to that description.

5. Before adverting to the questions arising in the case, and in order to clear the ground as to the law governing such matters, it would be relevant to refer to certain enunciations of the Supreme Court. They are as hereunder:--

6. In the case of R. M. Seshadri v. G. Vasantha Pai, : [1969]2SCR1019 , in para 16 of the said report, Hidayatullah, C. J. has observed thus:

'............ The Policy of election law seems to be that for the establishment of purity of elections, investigation into all allegations of mal-practices including corrupt practices at elections should be thoroughly investigated. ............'

The same learned Chief Justice in S. N. Balakrishna v. George Fernandez, : [1969]3SCR603 , has on the subject of amendment, stated the position, in para 23 of the report, thus:

'The subject of the amendment of an election petition has been discussed from different angles in several cases of the High Courts and this Court. Each case, however, was decided on its own facts, that is to say, the kind of election petition that was filed, the kind of amendment that was sought, the stage at which the application for amendment was made and the state of the law at the time and so on. These cases do furnish some guidance but it is not to be thought that a particular case is intended to cover all situations. It is always advisable to look at the statute first to see alike what it authorises and what it prohibits.'

7. In Manubhai Nandlal Amersey v. Popatlal Manila; Joshi, : [1969]3SCR217 , Bachawat, J., has referred to the considerations that ought to weigh with a Court in granting or refusing an amendment. The relevant passage occurs in para 5 of the above report and runs thus:

'............ Normally an application for amendment under Section 86(5) should be made within a reasonable time before the commencement of the trial. The Court has power to allow an amendment even after the commencement of the trial, but as a rule leave to amend at a later stage should be given in exceptional cases where the petitioner could not with reasonable diligence have discovered the new facts earlier. Leave to amend will not be given if the petitioner is not acting in good faith or has kept back the facts known to him before the trial started.' (Underlining is mine)

6. In the case of Raj Narain v. Smt. Indira Gandhi, : [1972]3SCR841 , the following two enunciations by Hegde, J., would also be relevant. In para 19 of the above report, it is observed thus:

'From these two provisions, (viz., Sections 83(1)(a) and (b) and 86(5) of the R. P. Act), it follows that if the allegations made regarding a corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and further those allegations cannot be amended after the period of limitation for filing an election petition; but tho Court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified............'

Again at para 20, it is observed thus:

'............ What then is the principleunderlying Section 86(5)? In our opinion the aim of that section is to see that a person accused of a corrupt practice must know precisely what he is accused of so that ho may have the opportunity to meet the allegations made against him. If the accusation made is nebulous and is capable of being made use of for establishing more than one charge or if it does not make out a corrupt practice at all then the charge fails at tho very threshold. So long as the charge level led is beyond doubt, Section 86(5) is satisfied; rest is mere refinement. They either pertain to the region of particulars or evidence. That section is not designed to interdict a mere clumsy pleading like the petition before us. The purpose of that section is to see that every charge of corrupt practice should be brought before the Court before the prescribed period of limitation and none thereafter so that the trial of the case may not be converted into a persecution by adding more and more charges or by converting one charge into another as the trial proceeds.'

9. Once again in S. N. Balakrishna's case : [1969]3SCR603 , it would be material to refer to the following enunciations relative to 'material facts' and 'particulars' and the scope of an amendment to an Election Petition : They are :

'(1) The word 'material' shows that facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct The material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. An election petition without the material facts relating to a corrupt practice is no election petition at all '.'.......'

(2) In a petition the kind of corrupt practice which was perpetrated together with material facts on which a charge can be made out must be stated. If the material facts of the corrupt practice are stated more or better particulars of the charge may be given later, but where the material facts themselves are missing it is impossible to think that the charge has been made or can be later amplified. The power of amendment is given in respect of particulars but there is a prohibition against an amendment 'which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.'

(3) One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice. They constitute different causes of action. Since a single corrupt practice committed by the candidate, by his election agent or by another person with the consent of the candidate or his election agent is fatal to the election, the case, must be specifically pleaded and strictly proved. If it has not been pleaded as part of the material facts, particulars of such corrupt practice cannot be supplied later on. The bar of the latter part or the fifth subsection to Section 86 then operates.'

10. The last case to which a reference is necessary is P, C. Purushothama Reddiar v. S. Perumal, : [1972]2SCR646 . The relevant enunciations party to the scope and ambit of Sub-section (6) of Section 123 of the R. P. Act, and the nature of amendment to be permitted. They are:

'The incurring or authorising the expenditure more than the limit prescribed under Section 77 is one single corrupt practice within Section 123(6). It is erroneous therefore to hold that each item of expenditure is a separate corrupt practice by itself.'

and

'The particulars of a corrupt practice falling under Section 123(6) may in an appropriate case be introduced by amendment. By doing so no additional ground of corrupt practice can be said to have been introduced.'

In the light of the above enunciations, I shall now proceed to examine the contentions urged on behalf of the parties.

11. On behalf of the first respondent, it is contended that the petitioner had deliberately suppressed the facts and particulars although he had been aware of them, as conceded in the affidavit filed along with the main petition. It would, therefore, be a clear case of 'bad faith' and in the light of the enunciation in Manubhai's case : [1969]3SCR217 earlier reproduced, the application is liable to be dismissed. I cannot accede to this contention.

12. The enunciation relied on in Manubhai's case clearly refers to an amendment sought at a late stage of the trial of an election petition. The policy of the election law is that cases of corrupt practices would call for investigation in order to maintain the purity of elections and consequently of the Government, and public interest would also be sub-served by it. It is seen from the facts and circumstances earlier enumerated that there has not been any undue delay in making the application. There is also no serious want of diligence on the part of the petitioner. As regards the knowledge attributed to the petitioner as to the facts and particulars, I should think it would not be a sufficient circumstance to prevent an amendment as regards 'particulars' being allowed. It also seems to me that there is a built in safeguard in the statutory provision of Section 86(5) in that no amendment of 'material facts' is permitted after the period of limitation prescribed for the presentation of an election petition, Moreover amendments ought not to be refused whenever it is reasonably possible to compensate the party affected thereby by an award of compensatory costs and there is not any statutory inhibition in regard to it, and a case of total want of good faith on the part of the person seeking the amendment is not established. I also find it difficult to conclude that on account of prior knowledge of facts and particulars of the petitioner, even if true, the application deserves to be rejected as contended. I am also satisfied that there has not been any undue want of diligence on the part of the petitioner in making the present application. The contention of the first respondent in this behalf must, therefore, fail.

13. I shall now turn to the other contention urged on behalf of the first respondent that in the guise of amendment of particulars new 'material facts' are sought to be introduced. I have been taken through the relevant paras of the application side by side with those contained in the election petition relevant thereto. I propose to consider them accordingly.

14. It is seen from para III (2) of the petition that there is a general allegation to this effect:

'The respondent No. I has committed by himself and through other persons with his consent 'corrupt practices' in the election. The corrupt practices practised are among other things.'

15. Then follow the corrupt practices enumerated in a general way, mostly keeping in mind the definitions contained in Section 123 of the R. P. Act. Such corrupt practices have been elaborated upon in paragraphs IV to IX of the petition. It seems to me that the clause reproduced above must be treated more or less as a part of each and every corrupt practice alleged.

By I. A. No. II, elaborate amendments in respect of all the above paragraphs of the petition have been sought. Indeed, one of the criticisms advanced in regard to this matter has been that the amendment is lengthier than main petition itself.

16. Reverting to the application I. A. No. II, it is seen that the first paragrah, with its Sub-paragraphs (1) to (5), relates to details of the nature and registration numbers of the vehicles pressed into service by the first respondent, allegedly in support of the allegation of corrupt practice denned in Section 123(5) of the R. P. Act. The relevant allegations in the petition, are contained in paragraph IV. They are to the effect that respondent 1 had 'hired or otherwise engaged several vehicles of the type of vans, cars, jeeps and trucks to carry voters to and from the several polling booths. Then six polling booths have been particularised by names of places. On behalf of the respondent 1 it is submitted that by the proposed amendment names of more places, other than those mentioned earlier, have been mentioned. Further there is a reference to the use of the vehicles, a lorry, belonging to the respondent himself. These are not mere 'particulars' but are additional material facts within the meaning of the election law and, therefore, they Ought not to be permitted.

17. It seems to me that the proposed amendment of para IV of the petition ought not to be permitted so as to include the allegations relative to polling booths which have not been specified earlier in the main petition. Although the relevant allegations of material facts in this behalf in the main petition had generally referred to the use of the vehicles in 'several places' mention only of six places is to he found. Specifying any other place or booth, to my mind, amounts to additional material facts and the same is not to be permitted. Moreover, in law, each such act constitutes a corrupt practice within the meaning of Section 123(5) of the R. P. Act and for that reason must be set out as a 'material fact' in the petition itself. In regard to the use of the lorry under the control and possession* of the first respondent, the same ought to have been set out as a 'material fact'. Moreover, in the context of this matter, the particulars as to the nature, registration number and ownership of such vehicles ought to have been furnished. Amendment sought in this behalf is too vague and is capable of being molded in evidence to suit one's own case. Hence, the amendment in this regard ought not also to be permitted.

18. I, therefore, hold that the amendment proposed to para IV of the petition be allowed only to the extent that vehicles specified as having been used in the six polling booths named in the petition are concerned, and it would not include the use of the lorry allegedly in the 'control and possession' of the first respondent. It follows from this that the petitioner cannot lead any evidence on the matters disallowed herein.

19. The next amendment proposed relates to paragraph V of the petition. The allegations in this regard in the petition refer to supply of some edibles and drinks and distribution of money, clothes and other gifts to 'voters and leaders' with a view to purchase votes. The allegations consist of two parts. The first part relates to the provision of refreshments on the date of polling. The second part consists of gifts and money paid during canvassing in the course of the election. The allegations are relevant to corrupt practice as defined in Section 123(1) of the R. P. Act. By the proposed amendment the time, place, names of persons and the nature and quantum of the gifts have been mentioned for the first time. There is also a reference to several donations and gifts to temples and some other religious and social institutions. It seems to me that these particulars could be furnished only if the allegations in the petition as to material facts and particulars in this regard disclose a cause of action. In order that such allegations to constitute a cause of action, the test to be employed, to my mind, is whether a petitioner could lead evidence on such allegations without giving rise to any objection that the opponent had been taken by surprise. It seems to me that in the case on hand, in the absence of material facts and particulars relating to even one such corrupt practice, any evidence that the petitioner might adduce is bound to take the opponent by surprise. It is no doubt true in the case of corrupt practice of 'bribery' falling under Section 123(1) of the R. P. Act, it may perhaps be possible to add by way of particulars of other instances of such bribery if, and only if, 'material facts' and particulars of other instances had been furnished in the petition. Moreover, the position in law in regard to such corrupt practices is that each such act constitutes a cause of action and, therefore, the material facts and particulars relevant to each of such acts must be set out thus complying with Section 83 of the R. P. Act. In the instant case, the allegations in the petition are too vague and general, and not a single instance of such act of 'bribery' has been particularised in any manner. In this context it is relevant to recall the observations of Hidayatullah, C. J. in Samant's case : [1969]3SCR603 in addition to those extracted earlier. They read thus:

'There is, however, a difference of approach between the several corrupt practices. If for example the charge is bribery of voters and the particulars give a few instances, other instances can be added; if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified.'

For the above reasons, I have no alternative but to hold that the proposed amendment of para V of the petition ought to be disallowed.

20. The next amendment relates to para VI of the petition. The allegations in this behalf in the petition relate to a 'corrupt practice' as defined in Section 123(3) of the R. P. Act. The specific allegation in the petition is that in the course of canvassing the first respondent and others with his consent, induced the voters to vote for him as he belonged to the 'Lingayet' community and not to vote for the petitioner on the ground that he belonged to 'Naik' (i. e. Bedar) community. But, beyond naming certain villages, where such canvassing is said to have taken place, the allegations are completely devoid of particulars as to time and names of persons and such other details, which are material for putting the opponent on notice of his case. It is relevant to note that there is a reference only to respondent 1 and other persons at his instance' in regard to such canvassing. By the proposed amendment the time, place and persons concerned with various meetings alleged to have been held in the course of the election, have been sought to be introduced. It seems to me that the relevant allegations in the petition when subjected to the same test as was applied to the amendment of Para V of the petition, would clearly fail to satisfy the requirements of a cause of action. The amendments proposed, therefore, do not appertain to the region of particulars only. Hence this amendment also has to be disallowed.

21. The next amendment proposed relates to para VII of the petition. The allegations in this regard seemingly have relevance to corrupt practice of undue influence and coercion falling under the definitions in Section 123(2) of the R. P. Act. The allegations relating to threats and intimidation are too vague and general in character. There is not a single instance of corrupt practice set out by clearly furnishing material facts relevant thereto. Nowhere among the allegations in question could be found any reference to the persons responsible for such threats and coercive acts. Nor the names of persons who were subject to such threats and coercion. Even if one has recourse to the reference to the respondent in para III (2) of the petition, as mentioned earlier, it is not possible to hold that such acts were attributable to the respondent or his agents or other persons at his instance. The allegations, therefore, do not constitute a cause of action. By the amendment proposed 'material facts' are also sought to be introduced for the first time, which clearly is impermissible. Further, for tie first time it is sought to foist the blame for such acts of undue influence and coercion on the respondent herein. This clearly is a material fact which ought to have been alleged in the first instance. Hence the amendment proposed cannot be permitted, and is accordingly disallowed.

22. Coming next to Para VIII of the petition, it relates to proxy voles cast on behalf of the living as well as dead persons. The places where such voting is alleged to have occurred have been mentioned. There is no reference whatsoever to the names of persons who voted and of those who were impersonated, whether dead or alive. There is also no allegation as to whether the result of the election has been materially affected on this account. In short, the allegations are of a highly vague and general character. It is, therefore, clear that the petitioner does not disclose a cause of action at all. Hence there is nothing which calls for an amendment. By the amendment for the first time it is sought to refer to a list of 38 persons who were said to have been impersonated. Again, even in the amendment there is no reference to the fact whether such voters in the list have been dead or alive. The true legal position in this regard can be gathered from the following observations of a Division Bench of this Court in H. Nagappa v. G. Venkategowda, (1964-2 Mys LJ 51). The enunciation in question occurs at page 57 of that report and reads thus:

'............ The question whether anyparticular voter was dead or was in jail of that he was not entitled to vote, is a material fact and unless that fact is alleged in the pleadings, it is extremely difficult for any respondent to disprove the evidence tendered by the petitioners. In C. R. Narasimhan V. Election Tribunal, Mudurai, ((1958) 16 Ele LR 327 (Mad)), the High Court of Madras held that a general allegation in the election petition that impersonation of dead persons has taken place, does not entitle the petitioner to lead evidence when the petitioner does not give in the election petition itself the names of the persons who are said to have been impersonated or at least before the period of limitation for filing the election petition expires, and that if a list of names of impersonated voters has been in the petition, he cannot be permitted to prove during the trial that other persons whose names were not included in the list of names supplied by him, had also been impersonated.' Hence amendment proposed to paragraph VIII of the petition, is disallowed.

23. Turning now to paragraph IX of the petition, it relates to election expenses incurred in excess of that authorised under Section 77 of the R. P. Act, thus bringing it within the mischief of the definition of Section 123(6) of that Act. There is some reference to certain items of expenditure among the allegations in the petition bearing on this question. By the proposed amendment certain other items of expenditure have been sought to be introduced for the first time. It seems to me that such an amendment is clearly permissible. The corrupt practice defined in Section 123(6) of the R. P. Act is one and indivisible. The various items of expenses incurred arc merely the components of a single corrupt practice. In that view, it would be permissible to add to them by way of particulars. The amendment, therefore, as detailed in paragraph VI of I. A. No. II, is allowed.

24. In the result, I. A. No. II is allowed in part to the extent indicated above. But taking the totality of circumstances into consideration, I am clearly of opinion that the first respondent would be entitled to compensatory costs from the petitioner, and I fix the same at Rs. 150/- only.

25. In view of this order, no orders are necessary on I. A. No. 1, and the same stands disposed of accordingly.


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