K. Babu vs M. Swaraj

2024 INSC 103 Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5975 OF 2023

K. Babu … Appellant

Versus

M. Swaraj and others … Respondents

JUDGMENT

SANJAY KUMAR, J

1. The short question in this appeal is whether the election petition

filed against the appellant by the first respondent herein was liable to be

rejected at the threshold? The High Court of Kerala at Ernakulam answered

this question in the negative, prompting the appellant to come before us. Signature Not Verified Digitally signed by

2. Having heard the appeal in part on 18.01.2024, we stayed further NIRMALA NEGI Date: 2024.02.12 16:35:57 IST Reason:

proceedings in the election petition.

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3. The appellant and the six respondents herein contested in the

election to the 15th Kerala Legislative Assembly, held on 06.04.2021, from

081-Tripunithura Legislative Assembly Constituency. The appellant was

declared elected on 02.05.2021, having polled 992 votes more than the

next candidate, viz., the first respondent. Thereupon, Election Petition No.

8 of 2021 was filed by the first respondent before the High Court of Kerala

at Ernakulam under Sections 80, 81, 83, 84, 100, 101 and 123 of the

Representation of the People Act, 1951 (for brevity, ‘the Act of 1951’),

seeking a declaration that the election of the appellant was void and, in

consequence, to declare him duly elected.

4. The appellant filed preliminary objections in the election petition.

Therein, he contended that the petition was liable to be dismissed under

Section 86 of the Act of 1951 for non-compliance with Section 81 thereof.

He claimed that a complete election petition, after the curing of defects,

was placed before the Court beyond the period of limitation and, further,

sufficient number of copies, as required under Rule 212 of the Rules of the

High Court of Kerala, 1971 (for brevity, ‘the Rules of 1971’), were not filed.

He also claimed that the copy of the election petition furnished to him was

not a true copy of the petition filed.

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5. The second ground urged by the appellant in his objections was in

relation to Section 83 of the Act of 1951, which requires an election petition

to contain a concise statement of material facts and full particulars of any

corrupt practice, including the names of the parties alleged to have

committed such corrupt practice along with the date and place of

commission of each such practice. The appellant asserted that the

pleadings in the election petition lacked material facts and particulars of the

corrupt practices attributed to him and, therefore, the election petition did

not disclose a cause of action. He prayed that the election petition be

dismissed at the threshold under Order VII Rule 11 CPC.

6. By the impugned order dated 29.03.2023, a learned Judge of the

High Court of Kerala at Ernakulam accepted the plea of the appellant to

some extent but ultimately found that sufficient cause of action was made

out for trial of the election petition to decide whether the election of the

appellant on 06.04.2021 was null and void. The learned Judge accordingly

held that the election petition would be proceeded with in respect of the

identified issue alone and granted time to the respondents in the election

petition to file their objections/further objections, if any.

7. Perusal of the impugned order reflects that the learned Judge was

of the opinion that the defects pointed out by the appellant were not in

3 relation to Section 81(3) of the Act of 1951 but pertained only to Rule 212 of

the Rules of 1971. The learned Judge, therefore, held that the lapses in

that regard did not amount to non-compliance with Section 81(3) of the Act

of 1951 and the election petition was not liable to be rejected by invoking

the provisions of Section 86(1) thereof.

8. Further, upon considering precedents on the issue, the learned

Judge held that the statements allegedly made by the appellant and his

election agents did not amount to a corrupt practice, as defined in Sections

123(2)(a)(ii) and 123(3) of the Act of 1951. However, apropos the allegation

that the appellant had used a religious symbol to further his prospects in

the election and thereby committed a corrupt practice within the sweep of

Section 123(3) of the Act of 1951, the learned Judge found that the slips

distributed by the appellant and his election agents depicted a picture of

Lord Ayyappa and voiced an appeal to vote for the appellant. Thereupon,

the learned Judge opined, prima facie, that use of the picture of Lord

Ayyappa in the slips distributed by and on behalf of the appellant

constitutes a corrupt practice under Section 123(3) of the Act of 1951 and

that the election petition, with respect to this aspect, was liable to be tried.

9. Aggrieved by the aforestated order, the appellant filed the present

case. In his grounds, he raised mainly two issues. He contended that the

4 election petition was not in compliance with Section 83 (sic 81) of the Act of

1951, as sufficient number of copies of the petition were not filed at the

time of its presentation. He further stated that copies of the documents

served on the respondents in the election petition were not true copies and

had not been attested as true copies. According to him, the defects pointed

out in the election petition were not cured within time and were rectified

after expiry of the period of limitation prescribed for filing of an election

petition. He reiterated his plea that the election petition, filed without

complying with statutory provisions, was liable to be rejected summarily. He

again asserted that the election petition was lacking in material facts and

particulars. According to him, facts relating to printing and publishing of the

slips with the religious symbol were not furnished to the extent required and

the election petition also did not disclose the source of information

regarding distribution of such slips by and on behalf of the appellant. He,

therefore, prayed for rejection of the election petition on these grounds.

10. We may first take note of the relevant provisions in the Act of

1951. Section 86 is the first provision in Chapter III of the Act of 1951, titled

‘Trial of Election Petitions’. Section 86(1) alone is relevant for the purposes

of this case and it reads thus: -

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‘86. Trial of election petitions.-

(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.’

In turn, Section 81(3), which is presently pertinent, falling in Chapter

II of the Act of 1951, titled ‘Presentation of Election Petitions to High Court’,

reads thus: -

‘81. Presentation of petitions.-

(1)…..

(2)…..

(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition…..’

Section 83, falling in the same Chapter, deals with the contents of

an election petition and, to the extent relevant, it is extracted hereunder: -

‘83. Contents of Petition.-

(1) An election petition—

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c)…….’

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11. Before us, arguments were advanced only upon non-compliance

with Section 81(3) of the Act of 1951, warranting invocation of Section 86(1)

thereof, and not on the other issue regarding lack of material facts and

particulars in the pleadings, as required by Section 83 of the Act of 1951. In

any event, it is well settled that non-compliance with the requirements of

Section 83 of the Act of 1951 is not fatal, as Section 86(1) thereof only

speaks of non-compliance with Sections 81, 82 or 117 being the basis for

dismissal of an election petition at the outset. Defects in an election petition

that constitute non-compliance with Section 83 of the Act of 1951 have

been held to be curable defects (See T. Phungzathang vs. Hangkhanlian

and others1; Umesh Challiyill vs. K.P. Rajendran 2; Ponnala

Lakshmaiah vs. Kommuri Pratap Reddy and others 3; G.M. Siddeshwar

vs. Prasanna Kumar4; and A. Manju vs. Prajwal Revanna alias Prajwal R

and others5). Further, once the High Court opined that a triable issue

under Section 123(3) of the Act of 1951 is made out, we find no grounds to

interfere therewith.

12. As regards the appellant’s primary ground, i.e., non-compliance

with the requirements of Section 81(3) of the Act of 1951, warranting

1 (2001) 8 SCC 358 2 (2008) 11 SCC 740 3 (2012) 7 SCC 788 4 (2013) 4 SCC 776 5 (2022) 3 SCC 269

7 peremptory rejection of the election petition, it may be noted that it was

never the case of the appellant that the election petition was not

accompanied by as many copies as there were respondents in the petition.

His complaint was that sufficient number of authenticated copies were not

furnished as required under Rule 212 of the Rules of 1971. This Rule is

contained in Chapter XVI of the Rules of 1971, titled ‘Election Petitions’.

Rule 212, to the extent relevant, reads as follows: -

‘212. Copies of petitions etc., to be furnished.-

(1) Every petition shall be accompanied by 3 authenticated copies of the application for the use of the court and twice the number of additional copies as there are respondents to be produced along with the application for service along with summons as per rules 210 and 211…….’

13. It is obvious from a plain reading of the aforestated Rule that the

three authenticated copies are for the use of the Court only. Further, copies

of petitions to be furnished under this Rule are clearly in addition to what is

required to be filed under Section 81(3) of the Act of 1951. Though the

appellant also made a bald statement in his preliminary objections that the

copy of the petition furnished to him was not a true copy of the election

petition, he did not elaborate on what he meant by that. More importantly, a

specific allegation was never made by him that the copy of the petition

8 furnished to him was not attested by the first respondent under his own

signature to be a true copy of the election petition.

14. In his grounds in the present case, the appellant stated that copies

of the documents served on the respondents in the election petition were

not true copies and had not been attested as such. However, a precise

averment was not made by the appellant even before us that the copy of

the petition supplied to him was not attested by the first respondent under

his own signature to be a true copy of the election petition. Significantly, the

copy of the petition furnished to him was neither produced before the High

Court nor before us to substantiate this plea. In effect, the only point urged

by the appellant is that the election petition is liable to be rejected for

non-compliance with the requirement of Rule 212 of the Rules of 1971.

15. Though it has been argued before us that the requirements of Rule

212 of the Rules of 1971 must be imported into and combined with those

prescribed by Section 81(3) of the Act of 1951, we are not impressed.

When the statutory provision unequivocally stipulates as to what is required

to be done to comply with the mandate thereof, it is not permissible in law

to read something more into that provision. Rule 212 of the Rules of 1971

introduces additional requirements prescribed by the High Court and the

9 same cannot, by any stretch of imagination, be read into and be made part

and parcel of Section 81(3) of the Act of 1951.

16. Viewed thus, the objections raised by the appellant against the

maintainability of the election petition filed by the first respondent had no

merit and the order of the High Court holding to that effect warrants no

interference.

The appeal is accordingly dismissed.

Interim order dated 18.01.2024 shall stand vacated.

Pending miscellaneous application(s) shall stand dismissed.

Parties shall bear their own costs.

………………………..,J (ANIRUDDHA BOSE)

………………………..,J (SANJAY KUMAR) February 12, 2024;

New Delhi.

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