SUPREME COURT UPHOLDS HIGH COURT’S DECISION TO ALLOW ELECTION PETITIONER TO FILE A REPLICATION TO A WRITTEN STATEMENT, AS IT DID NOT INTRODUCE NEW FACTS

A three-Judge Bench of the Hon’ble Supreme Court comprising of Chief Justice Dr. D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra passed a Judgment dated 08-05-2024 in the matter of Sheikh Noorul Hassan vs. Nahakpam Indrajit Singh & Ors., Civil Appeal No. 1389/2024 and observed that the High Court has authority to authorise an Election Petitioner to file replication in response to the written submissions of a returned candidate. However, this allowance is subject to the condition that the replication must refrain from introducing any new facts that contradict the facts initially presented in the election petition.

FACTS:

i) That the aforesaid Appeal was filed before the Apex Court by one, Sheikh Noorul Hassan (Appellant) against one Nahakpam Indrajit Singh, one Wahengbam Rohit Singh @ Bullet and one Punnam Rani Wangkhem (Respondents), who challenged the decision of the Hon’ble High Court of Manipur, Imphal (High Court) which, vide, Order dated 14.03.2023, allowed the Election Petitioner (Respondent No.1) to submit a Replication in response to the new facts presented in the Written Statement filed by the Returned / Elected Candidate (Appellant)Top of Form

ii) The Respondent No. 1 filed an Election Petition bearing No. ELP-6-2022 seeking a declaration that the election of the Returned Candidate, i.e. the Appellant herein, is null and void under Sections 100(1)(d)(i)(ii) and (iv), and Section 100(1)(b) of the Representation of the People Act, 1951[i] (Act) (Grounds for declaring election to be void).

iii) Additionally, a prayer was made to declare the Election Petitioner as duly elected under Section 67 of the Act (Report of the result) of the Act from the concerned legislative constituency (4- Kshetrigao Assembly Constituency) of the 12th Manipur Legislative Assembly.

iv) Further, in the Election Petition it was alleged, among other things, that the Appellant had failed to make necessary disclosures in the Nomination Paper/Affidavit (i.e., Form 26) which had a material bearing on the election result. The Election Petition detailed the particulars of such non-disclosure/incorrect disclosure.

v) However, the Written Statement filed by the Appellant not only traversed these allegations but also laid out additional facts. Consequently, the Election Petitioner filed an Application seeking leave to file a Replication, which the High Court allowed through the Impugned Order dated 14.03.2023.

HIGH COURT:

The High Court, vide Impugned Order dated 14.03.2023, granted permission for the Election Petitioner to file a subsequent pleading. The Hon’ble High Court observed that the Respondent’s Written Statement introduced new facts, such as the accounts being for Self Help Groups, necessitating clarification. Emphasizing the principle of variance between pleading and proof in civil cases, the Court allowed the Replication to address these new assertions without introducing fresh facts, ensuring a fair trial and upholding the principles of justice.

SUPREME COURT:

Aggrieved by the High Court Order dated 14.03.2023, the Appellant filed Civil Appeal No.1389 of 2024 before the Supreme Court. The Apex Court vide Order dated 08.05.2024 held as follows:

 ISSUE:

Whether during the course of the proceeding of an Election Petition, preferred under the provisions of the 1951 Act, subsequent pleading, as envisaged in Order VIII Rule 9 of Code of Civil Procedure 1908 (CPC) (Subsequent Pleadings), is permissible? If yes, in what circumstances leave to file such subsequent pleading may be granted by an Election Tribunal/ Court?

OBSERVATION:

1) The Supreme Court, after a thorough examination, concluded that the High Court, acting as an Election Tribunal, is permeated with the powers akin to those vested in a Civil Court under the CPC, as per Section 87(1) of the 1951 Act (Procedure before the High Court).

2) Consequently, the High Court possesses the authority to grant leave for a replication pursuant to Order VIII Rule 9 of the Code of Civil Procedure, 1908, provided it ensures a fair and effective trial of the issues raised in the petition.

3) The Apex Court emphasized that such leave should not be granted mechanically; rather, it should be considered in light of the averments made in the petition, the written statement, and the replication.

4) The granting of leave should be aimed at allowing the petitioner to explain or clarify newly raised facts in the written statement, contributing to the fairness of the trial process.

5) Before granting leave, the Court should bear in mind certain principles:

i) A replication should not merely traverse facts pleaded in the written statement.

ii) A replication cannot serve as a substitute for an amendment to the original petition.

iii) The replication should not introduce a new cause of action or plea inconsistent with the original petition.

6) In the present case, the material facts alleged in the Election Petition pertained to the Respondent’s alleged failure to disclose various details during nomination. Further, the Respondent’s Written Statement included explanations and defense for these allegations, addressing issues such as bank accounts, ownership of a motor vehicle, and liabilities.

7) The Replication filed by the Petitioner aimed to address and disprove the explanations provided by the Respondent in their Written Statement.

8) Moreover, the Replication did not introduce any new material facts or causes of action; instead, it sought to clarify and respond to the assertions made in the Respondent’s Written Statement.

9) Therefore, the Supreme Court found that the grant of leave for the Replication was justified and fell within the discretionary jurisdiction of the High Court.

Conclusion:

Based on aforementioned facts, the Supreme Court upheld the High Court’s decision to grant the Petitioner leave for filing Replication and dismissed the Appeal accordingly. Further, the Apex Court affirmed the discretionary powers of the High Court, acting as an Election Tribunal, in granting leave for replications in election petitions. This authority, derived from Section 87(1) of the 1951 Act, aligns with the principles of fairness and effective trial procedure.

The Supreme Court stressed that such leave should not be granted mechanically but should be contingent upon a thorough consideration of the pleadings. Further, the Bench held that the replications should aim to clarify or refute assertions made in the respondent’s written statement, without introducing new causes of action or material facts. In the case at hand, the Replication served this purpose, addressing explanations provided by the Respondent without deviating from the Original Petition.

 

Sakshi Raghuvanshi

Legal Associate

The Indian Lawyer

 

[i] 100. Grounds for declaring election to be void.—

[(1) Subject to the provisions of sub-section (2)

if [the High court] is of opinion—

(a) that on the date of his election a returned candidate was not qualified or was disqualified, to be chosen to fill the seat under the Constitution or this Act 5

[or the Government of Union Territories

Act, 1963 (20 of 1963)]; or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected—

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate 6

[by an agent other than his election agent], or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any

rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void.]

[(2)] If in the opinion of 2

[the High Court], a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice 8*** but [the High Court] is satisfied—

(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and [without the consent], of the candidate or his election agent;

10* * * * *

(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt 11*** practices at the election; and

(d) that in all other respects the election was free from any corrupt 11*** practice on the part of the candidate or any of his agents, then 2 [the High Court] may decide that the election of the returned candidate is not void.