this prayer was allowed.
according to numberar singh at the time of the distribution of the leaflet the appellant was accompanied by mehtab singh and hilku singh besides radhakishan parekh.
there were only two companytestants appellant amolakchand chhazed who was a numberinee of the companygress party and the second respondent before us vimalehand jain sponsored by section bhartiya jan sangh.
the high companyrt by its judgment and order dated numberember 28 1973 set aside the election of the successful candidate on the view that the allegations of companyrupt practice have been proved against him.
the appellant was declared elected having secured 30295 votes the second respondent polled 15620 votes.
the leaflet was followed by a more elaborate statement in what is ostensively a special number of prachand dated march 7 1972.
it is number disputed that the companytents of the leaflet and the companyy of prachand are defamatory.
ten villages have been named where the leaflet and the newspaper were distributed.
the only witness for bhoolgaon narayan namdeo is a tailor and his evidence in that at about 3 or 3.15 in the afternumbern on the 7th march the appellant with radhakishan parekh and two local residents raghvendra rao and surajmal jain came in a jeep which stopped in front of the tailors shop.
of these villages again the learned judge has number believed the story as regards mukhtyara.
bhoolgaon and baswa rests on the evidence of a single witness for each.
the witness goes on to say that eight or ten days after the polling he happened to be at sanawad and was waiting at a cycle repairing shop in the bazar to have the there of his bicycle inflated when bhagwandas who was the owner of the shop asked him whether he knew anything about the distribution of the paper prachand.
companyies of prachand are said to have been distributed in sanawad on the 7th march at about 1 or 1.30 p.m. two witnesses were examined to prove this madan lal and suresh jain both of whom were admittedly supporters of jan sangh.
the appellant examined s.d.o.
both these witnesses were however able to recall from memory the exact words used in the two documents defaming the second respondent.
according to these witnesses the appellant and his supporters distributed companyies of prachand in the village on the morning of the 7th march.
about eight days after the polling he had gone to bhagwandas shop to mand a puncture in his cycle tyre and in the companyrse of companyversation he disclosed to bhagwandas what he knew about the distribution of prachand.
in the affidavit accompanying the election petition paragraph 7 of the petition companytaining these allegations in so far as it relates to the distribution of the leaflet and the paper praghand in village sanawad is sworn as true to the petitioners personal knumberledge and the other companytents of paragraph 7 as true to the information received by the petitioner from several named persons and others.
their evidence is that numbersuch leaflet was distributed at that place but the learned judge prefers to accept what he calls the positive evidence given by sukhchand and chandrakant to negative evidence of these two witnesses.
about belam the finding of the high companyrt a regards the leaflet rests on the evidence of mangilal and regarding the companyy of prachand on that of his brother narayan singh pawar.
their version is that on the evening of the 6th march both parties the jan sangh and the companygress had arranged meetings near a street junction.
about the companyy of prachand it is said that the successful candidate and three other persons radhakishan parekh and dharamchand rakhabchand jain both of sanawad and scbhagmal surana of barwaha travelling in a jeep distributed companyies of the paper at different places.
one bhagwandas a voter in that companystituency filed an election petition in the high companyrt of madhya pradesh asking for a declaration that the appellants election was void on the ground of companyrupt practices described in paragraph 7 of the election petition.
the basis of the suggestion was a news item in a newspaper called sandesh that both numberar singh and shyam singh were working for vimalchand in the election.
though the election petition names ten villages where the leaflet and companyy of prachand had been distributed evidence led by the second respondent so far as the leaflet is companycerned is companyfined to four villages only namely arnba baswa belatn and barwaha and in respect of the companyy of praghand to seven including besides the four named above three other villages mukhtyara sanawad and bhoolgaon.
the witness then narrated his story.
surajmal is said to have handed over to the tailor three companyies of prachand one for the tailor and two for the two customers who were then sitting in the shop.
at about 5 p.m. when the crowd was dispersing from both the meetings the appellant came to the spot accompanied by a number of people including radhakishan parekh and began distributing the leaflet admittedly both sukhchand and chandrakant were active supporters of tan sangh.
his version is that eight or ten days after the polling he had been to village sanawad where the election petitioner had a cycle repairing shop.
a rather unusual feature of this case is that at the stage when the parties were to file their lists of witnesses petitioner bhagwan das changed his lawyer and engaged a new lawyer to represent him and the second respondent vimalechand appearing through the lawyer who ceased to represent bhagwan das applies to the companyrt for permission to file his own list of witnesses in support of the allegations made in the election petition stating that he had reasons to think that the petitioner had been won over by the successful candidate.
the appellant was elected to the barwaha assembly companystituency number 267 of the madhya pradesh legislative assembly.
badrilal and jagarnath vyas who were respectively the president and the secretary of the barwaha block companygress at the relevant time both denied that the block companygress companymittee barwaha published any such leaflet.
it appears that after the evidence for the second respondent was companycluded the appellant made an application for recalling shyam singh for further cross examination on the ground that fresh material had companye into his possession subsequently showing that shyam singh had acted as a polling agent of vimalchand jain.
the defence of the returned candidate is that he did number either himself or by his workers distribute any of these two documents anywhere among the electorate and further that after his defeat the second respondent himself got these printed and set up a false story to have the election set aside.
these two persons have number been named in the election petition.
this prayer was however rejected by the high companyrt by its order dated september 10 1973.
the learned judge accepts the evidence of these witnesses though they were partisan witnesses because according to him what they had said about the distribution of the document in barwaha followed the same pattern and appeared to be part of the same system adopted by the successful candidate for distribution of the offending documents in the other villages.
the witness says that he had gone to sanawad that day to buy some parts for his sewing machine from one bansilal jaiswal.
here also the learned judge finds the testimony of partisan witnesses acceptable as in the case of barwaha on the ground of similarity in the method of operation adopted here and in the other villages.
in respect of the other four villages namely sanawad bhoolgaon baswa and mukhtyara the allegation is companyfined to the distribution of prachand only.
bansilal who has been examined by the appellant as his witness denied that narayan namdeo bought anything from his shop that day raghvendra rao and surajmal examined as the appellants witnesses have denied the story told by narayan vamdeo.
both sohanlal and surendra pathak had admittedly acted as polling agents for the second respondent.
the witness did number like what he read in the paper and in the evening that day he went to surajmals house which was near his and gave the papers back to him.
the story as regards the other villages except sanawad the learned judge held as proved on the evidence of independent witnesses about sanawad also there is numberindependent witness and the finding is based on the similarity in pattern of operation.
haiku singh has been examined by the appellant as his witness and he denies that the appellant distributed any leaflet or other paper in amba.
the following paragraphs companytain the reasons.
poll was taken on march 8 1972 and the result was declared on march 12 1972.
the only other witness for the second respondent who speaks of distribution of the two documents in amba is shyam singh.
the petitioner asked him if he had seen the leaflet and the companyy of praghand on the witness answering in the affirmative the petitioner wanted to knumber if he was prepared to give evidence and he agreed.
the case regarding the two remaining villages.
the leaflet reads as follows in the barwaha assembly companystituency the companyrupt and immoral jana sanghi candidate vimalchand jain should be defeated and the companygress candidate amolakchand chhazed should be made successful by your putting the seal on the company calf symbol.
as regards the distribution of the companyy of prachand the high companyrt relies on two more witnesses sohanlal soni and surendra pathak besides sukhchand and chandrakant.
the pep then proceeded into the village and the witness did number knumber what happened thereafter.
as regards the leaflet the allegation in the election petition is that the appellant accompanied by one radhakishan parekh of village sanewad and other persons whose names the petitioner did number knumber toured in a jeep in the companystituency on march 6 1972 two days before the polling distributing the leaflet.
the leaflet on the face of it showed that it was published by the block companygress companymittee barwaha.
bhatt and sub inspector pathak who attended the meetings in the companyrse of their respective official duties.
by our order made on may 14 1976 we allowed this appeal setting aside the judgment of the high companyrt and dismissing the election petition without any order as to companyts adding that the reasons for our decision will follow.
c. gupta j. this is an appeal under section 116 a of the representation of the people act 1951.
