MOHAN Vs. BHAIRON SINGH SHEKHAWAT

JUDGEMENT

(1.) This appeal under Section I 16-A of the Representation of the People Act, 1951 is against the judgment dated 25/5/1994 of the Rajasthan High court in Election Petition No. 2 of 1994 rejecting the election petition under Order VII Rule 11 Civil Procedure Code on the ground that no triable issue arises therein. The relevant pleadings are contained in paragraphs 7 and 8 of the election petition with reference to which, primarily, the correctness of the High court's view has to be tested.

(2.) The allegations in the election petition are of corrupt practices defined in Ss. (3 and (3-A) of Section 123 of the Act. The averments in the election petition have to be read along with Annx. 'a' and Annx. I to the petition, the contents of which are incorporated by reference in the petition. Annx. 'a' is a transcript of the speech alleged to have been made by the respondent - the returned candidate at Falna on 27/10/1993 at about 9.15 p. m. The contention of the learned counsel for the appellant is that the contents of paragraph 8 of the election petition are to be read together with Annx. 'a' text of the Falna speech and the news item marked Annx. I wherein the report of the contents of the speech of the respondent are mentioned. The submission of the learned counsel for the appellant is that the averments made in paragraphs 7 and 8 of the election petition read with the aforesaid Annx. 'a' and Annx. I raise triable issues of the corrupt practices defined in sub- S. (3 and (3-A) of Section 123 of the Act. On this basis, it is urged thatthere was no ground for rejection of the election petition under Order VII Rule 11 Civil Procedure Code or even of striking out any part of the pleading in the election petition under Order VI Rule 16 Civil Procedure Code. It was argued that the application made under Order VI Rule 16 Civil Procedure Code by the respondent in the High court is, therefore, liable to be rejected and the impugned judgment allowing that application as well as rejecting the election petition under Order VII Rule 11 Civil Procedure Code is liable to be set aside.

(3.) In reply, the learned counsel for the respondent submitted that if the court forms the opinion that more than one construction is possible of the pleadings contained in paragraph 8 (d) and one view is that the material facts constituting the cause of action for these corrupt practices is pleaded in paragraph 8 (d) , then it may be possible to hold that a triable issue arises out of the pleading contained in paragraph 8 (d) of the election petition. Learned counsel for the respondent submitted that even though the respondent would be able to explain him his Falna speech and contend that no such corrupt practice was committed by him, yet at this stage it may not be possible for him to contend that no triable issue arises at least to this extent. Learned counsel for the respondent, therefore, submitted that it is only to this limited extent relating to the pleading contained in paragraph 8 (d) read with Annx. 'a' and Annx. I that the election petition could be remanded for trial but the pleading contained in paragraph 8 (a) has to be struck out under Order VI Rule 16 Civil Procedure Code since no triable issue arises therefrom. Learned counsel for the respondent submitted that the pleading in paragraph 7 of the election petition is only reiteration of the law on the subject and it does not contain any material fact therein. Obviously, at this stage the matter has to be decided on a plea of demurer and at the trial it would be open to the respondent to dispute the averments even as to facts and to also explain the meaning of the speeches attributed to him.