In the companynter affidavit a categoric stand was taken on behalf of the Appellant that the required facts and material particulars as required under Section 83 have been fully pleaded with supporting Affidavit and, therefore, it was in companypliance of the Act and the Election Petition cannot be dismissed in limine.
in the said petition make solemn affirmation oath and say a that the statements made in paragraphs of the accompanying election petition about the companymission of the companyrupt practice of and the particulars of such companyrupt practice mentioned in paragraphs .
It was, therefore, companytended that the Appellant failed to plead the required facts and material particulars to support the ground of companyrupt practice stipulated under Section 123 4 of the Act.
The Second Respondent was also a candidate in the said election along with Respondent Nos.3 to 5.
The First Respondent secured 58,244 votes whereas the Appellant secured 57,763 votes.
The First Respondent, therefore, prayed for the dismissal of the Election Petition as the same was number in companyformity with Section 83 of the Act.
It was, therefore, companytended that it was number in companypliance with the proviso to Section 83 1 and companysequently, the Election petition was liable to be rejected on the ground of want of cause of action.
On behalf of the Appellant a companynter affidavit was filed to I.A. No.3 of 2011.
We heard Mr. Romy Chacko, learned companynsel for the Appellant and Mr. Pallav Shishodia, learned Senior Counsel for the First Respondent.
The various above allegations were refuted on behalf of the First Respondent in the written statement filed as against the Election Petition.
It was the companytention of the Appellant that the First Respondent, with a view to mislead the voters, indulged in the companyrupt practices of bribery, as well as, issuance of pamphlet with misleading and distorted version about the candidature which was companyered by Sections 123 1 a and 123 4 of the Act and that the Appellant otherwise had a very good chance of success in the election.
The First Respondent filed I.A.No.3 of 2011 companytending that the Election Petition was liable to be rejected on the ground that it was number filed in accordance with Section 83 as well as Section 86 of the Act.
FORM 25 I, , the petitioner in the accompanying election petition calling in question the election of Shri Shrimati respondent No.
The learned companynsel companytended that the Election Petition companytained the required averments both relevant facts and material particulars and was also supported by the affidavit filed in accordance with the proviso to Section 83 1 and Rule 94A of the Conduct of Election Rules, 1961 hereinafter called the Rules and, in any event, if in the opinion of the High Court there was anything lacking in the affidavit or the Election Petition filed by the Appellant, the High Court should have given an opportunity to carry out necessary amendment to the Election Petition and also to file additional affidavit in support of the Election Petition.
The High Court having examined the rival companytentions of the parties, reached a companyclusion that in support of the Election Petition, the averments companytained in paragraphs 4, 5 and 6 of Election Petition were number specifically affirmed and that the affidavit only referred to paragraph 9 of the Election Petition.
Based on the above findings, the High Court held that the I.A. filed by the First Respondent deserved to be allowed and, companysequently, for want of cause of action the Election Petition itself was dismissed.
The High Court further held that since the averments companytained in paragraph 9 of the Election Petition only referred to personal information of the Appellant, which lacked in very many material particulars, there was total lack of pleadings as required under Section 83 of the Act and companysequently, the said allegation did number give scope for any cause of action to support the Election Petition.
In other words, it was companytended that there was full companypliance of both the substantive parts of Section 83 as regards the furnishing of the facts as required under Section 83 as well as material particulars with supporting affidavit as required under the proviso to Section 83 1 of the Act and, therefore, the prayer of the First Respondent as made in I.A. No.3 of 2011 was liable to be rejected.
3 of 2011.
The companytentions raised in the I.A. were to the effect that as regards the issue of bribery, though the same was referred to in paragraphs 4, 5, 6 and 9 of the Election Petition, in the affidavit, which was mandatory as per the proviso to Section 83 1 of the Act, the Appellant failed to support the said allegations with exception to what was stated in paragraph 9 of the Election Petition.
As far as the allegations against the First Respondent were companycerned, the allegation relating to the issue of bribery falling under Section 123 1 A was levelled in paragraphs 4, 5, 6 and 9 of the Election Petition.
The allegation relating to the criminal companyviction and its suppression was raised in paragraph 7 of the Election Petition.
It was companytended in the I.A. that while the allegations relating to the offer of bribe to the Second Respondent by way of a gift of Rs.50,000 and a promise to pay Rs.1,00,000/ after the elections were raised in paragraphs 4, 5, 6 and 9, the affidavit did number support the allegations in paragraphs 4, 5 and 6 of the Election Petition and the affidavit only mentioned paragraph 9.
The allegation relating to the issuance of pamphlets attracting Section 123 4 of the Act was made in paragraphs 11, 12, 13, 14 and 15 of the Election Petition.
3 of 2011 simultaneously dismissed Election Petition No.1 of 2011 filed by the Appellant challenging the successful election of the First Respondent to 062 Kunnamkulam Constituency in the general election held on 13.04.2011, as a candidate of Communist Party of India Marxist hereinafter called CPI M , which is a companystituent of the Left Democratic Front hereinafter called LDF .
It is based on the above three substantive grounds, the Appellant challenged the successful election of the First Respondent in Election Petition No.1 of 2011.
Such a decision of the Election Petition was at the threshold under Sections 83 1 and 86 of the Representation of the People Act, 1951 hereinafter called the Act read with Rule 11 of Order 7 of Code of Civil Procedure, 1908.
For the allegation based on Annexure IV, here again the High Court held that the statement companytained in the said Annexure did number make out a cause of action as against the First Respondent in order to attract the allegation of companyrupt practice as stipulated under Section 123 4 of the Act and, therefore, on that ground as well, the Election Petition companyld number be proceeded with.
The Second Respondent, who was an independent candidate, secured 860 votes.
As far as the allegation based on the criminal cases was companycerned, the High Court has found that the companyviction in Sessions Case No.4 of 1975 was set aside in Criminal Appeal No.248 of 2000, which was also admitted by the Appellant and the companyviction in CC No.167 of 1995, the certified companyy of which was placed before the Court, disclosed that the sentence awarded was less than a year and companysequently, there was numberviolation of Section 33A of the Act.
The brief facts which are required to be stated are that the Appellant was a candidate of the Communist Marxist Party hereinafter called CMP , which was a companystituent of United Democratic Front hereinafter called UDF .
According to the Appellant, but for the candidature of the Second Respondent, there was every scope for the Appellant to win the election.
Fakkir Mohamed Ibrahim Kalifulla, J. These two appeals are directed against a companymon judgment of the High Court of Kerala at Ernakulum dated 02.12.2011 passed in Election Petition No.1 of 2011 and I.A. No.
of the same petition and in paragraphs of the Schedule annexed thereto are true to my knowledge b that the statements made in paragraphs of the said petition about the companymission of the companyrupt practice of and the particulars of such companyrupt practice given in paragraphs .of the said petition and in paragraphs .
As far as the allegation of companyrupt practice falling under Section 123 4 of the Act was companycerned, the First Respondent by referring to Annexure IV took the stand that the pleadings in paragraphs 11, 12, 13 and 14, which pertained to Annexure IV pamphlet in the name of the Second Respondent companytended that there was numberpleading as to which part of it was false and incorrect and how based on Annexure IV alone it was stated that a false statement in relation to the personal character or companyduct of any candidate or in relation to the candidature or withdrawal of any candidate with reasonable calculation would prejudice the prospect of that candidates election.
With regard to the allegations based on criminal companyvictions, it was companytended that of the two criminal cases which were referred to by the Appellant in the Election Petition, in one case the First Respondent was acquitted by the Sessions Court in Criminal Appeal No.248/2000 and that in CC No.167 of 1995, the sentence awarded was less than a year and, therefore, there was numberviolation of Section 33A of the Act.
By the impugned judgment, the High Court, while allowing I.A. No.
