K K SOMANATHAN Vs. K K RAMACHANDRAN

JUDGEMENT

(1.) In the general election to the Kerala assembly held on 23-3-1987 ten candidates including once Mr. Cyriac John and respondents 1 to 3 contested for the No. 30 Sultan's battery seat. Real contest was between first respondent and Mr. Cyriac John. First respondent won by a margin of over 4,000 votes. Petitioner, an elector and the election agent of Mr. Cyriac John, seeks to declare the election of the first respondent void on various grounds. After the trial of the case started, at a time when the petitioner was partly examined as P.W. 1, first respondent wanted maintainability of the petition for want of cause of action to be heard preliminary and as agreed to on behalf of the petitioner also, the examination of P.W. 1 was suspended and the matter heard.

(2.) But at the time of argument the learned counsel for the petitioner took objection to the preliminary point being heard, seeking authority from the decision in Balwan Singh v. Lakshmi Narain, AIR 1960 SC 770. The argument was that after issues are settled and trial started there cannot be any question of deciding any preliminary point. I think the counsel has misunderstood the scope of that decision. That was a case dealing with corrupt practices, particularly those coming under S.123(5) involving hiring or procuring of vehicles for the free conveyance of electors. It was held that the corrupt practices being hiring car procuring of vehicle for the conveyance of electors, if the full particulars of conveying by a vehicle of electors to or from any polling station are given, S.83 is duly complied with, even if particulars of the contract of hiring, and distinguished from the fact of hiring, are not given. It was in that context that their Lordships said that normally the argument for hiring or procuring of a vehicle is within the special knowledge of the parties to that agreement and it is difficult to assume that it was intended to require the petitioner in an election petition to set out the particulars of such facts within the special knowledge of the other party, and expose the petitioner to a penalty of dismissal if these particulars could not be given. At the same time that decision itself said that insistence upon full particulars of corrupt practice is undoubtedly of paramount importance and if the petition is found to be defective in that respect an opportunity should be given to the petitioner to amend or amplify the particular without dismissing the petition in limine and in the event of non-compliance, charges which are vague may be struck out. It was in such a situation that their Lordships said that if the parties go for trial, despite the absence of full particulars of the corrupt practices alleged, and the evidence of the contested parties is led on the plea raised by the petitioner, the petition cannot thereafter be dismissed for want of particulars without giving an opportunity for amendment, because the defect is one of procedure and not one of jurisdiction to adjudicate the plea in the absence of particulars. After that decision was rendered S.123(5) has undergone radical amendments. Anyhow that decision only said that when material facts regarding corrupt practices are alleged and the only defect is absence of sufficient particulars under S.83(1)(b), the petition cannot be dismissed in limine, after the parties went for trial and evidence of the contesting parties is led, without giving an opportunity to amend or amplify the particulars. The limitations in the granting of such an amendment are also not for my consideration now.

(3.) Undoubtedly it is within the powers of the Court to allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may be, in the opinion of the Court, necessary for securing a fair and effective trial of the petition. Whether such a relief can be granted after the expiry of limitation is not a matter that comes up for decision. Anyhow S.86(5) itself prohibits introduction by amendment of the particulars of a corrupt practice not previously alleged. Now the law is well settled and decisions are unanimous that all material facts coming under S.83(1)(a) will have to be alleged with exactitude and even the omission of a single material fact will render the cause of action incomplete, entailing that charge being struck out under O.6, R.16 and if no further triable issue remains, the petition itself is liable to be rejected under O.7, R.11, C.P.C. as not disclosing any cause of action. So also the decisions are unanimous that while particulars under S.83(1)(b) could, in appropriate cases, be allowed to be supplied by amendment, omission of a material fact is fatal and cannot be so cured.