PIARAY LAL Vs. GHULAM MOHD

JUDGEMENT

(1.) The petitioner was one of the candidates contesting the election to the Jammu and Kashmir Legislative Assembly from 18, Habba Kadal constituency, Srinagar, in the elections held in 1983. He contested the election as the Congress (I) candidate. Respondent No.1 who contested the election as the National Conference candidate, was the successful candidate. The petitioner has filed this election petition calling in question the election of respondent No.1 on various grounds detailed in the Petition. Primarily, the challenge by the petitioner being that respondent No.1, his agents, workers, and supporters with his consent had committed various corrupt practices which rendered his election invalid. At this stage, it is not necessary to detail the various corrupt practices alleged in the petition and suffice it to say that the challenge to the election of respondent No.1 is based on commission of corrupt practices. In the written statement filed by respondent No.1, the returned candidate, it was averred in reply to various paragraphs of the election petition that sufficient particulars with regard to the alleged corrupt practices had not been furnished by the petitioner, and therefore, the petition did not raise any triable issue. In view of the said objection, the following preliminary issue was raised by this Court on 31-10-1983 :

(2.) Learned counsel for the petitioner Mr. M.L. Bhat conceded that sufficient particulars had not been furnished in respect of some allegations of corrupt practices allegedly committed by the respondent. No.1 himself or by others with his consent, knowledge or connivance. He, however, urged that the election petition was not liable to be dismissed on that score alone and he sought an opportunity to move an application seeking amendment of the petition so as to provide the missing particulars. Learned counsel relied upon the law laid down in this behalf in 1978 Kash LJ 148 and Election Petn. No.7 of 1983 decided on 18-11-1983. The submission found favour with the Court and the petitioner was on 19-11-1983 granted three weeks' time to file the application seeking amendment of the election petition so as to furnish better and further particulars of corrupt practices alleged in the petition. The petitioner, thereafter, sought some more time to file the application but in the meanwhile, however, respondent No.1, the returned candidate, filed CMP No.3 of 1983, seeking permission of the Court to amend the written statement by incorporating therein the pleas detailed in para 2 of the application. The application filed by respondent No.1 was allowed vide order of the Court dated 25-5-1984 and the respondent was permitted to amend the written statement by incorporating the pleas detailed in Para 2 of C. M.P. No.3 of 1983. In the amended written statement two additional pleas were raised. The first plea related to an alleged defect in the verification of the election petition, and the amended plea was to the effect that copy of the election petition which had been filed by the petitioner for service on the respondent and was actually served on the respondent was not substantially the true copy of the original petition and, therefore, the election petition was liable to be dismissed. On 3-8-1984 this court declined to frame any issue with regard to the first plea because Mr.Z.A. Shah learned counsel for respondent No.2, conceded that there was no defect in the verification of the election petition. So far as the second plea was concerned, learned counsel for the petitioner controverted the same in his objections to CMP No. 3 of 1983, and the court, thereupon, raised the following preliminary issue:

(3.) The issue which, therefore, needs to be decided by this court at this stage is: