Case Note & Summary
The petitioner, Eknath Bayaji Gadkari, filed an election petition under Section 33(1) of the Mumbai Municipal Corporation Act, 1888, challenging the election of respondent No.3, Sunil Govind Shinde, from Ward No. 194 (Parel BDD Chawls) in the Bombay Municipal Corporation elections held on 01.02.2007. The petitioner alleged that the respondent No.3 and his agents indulged in corrupt practices, including an appeal to vote in the name of religion at a joint public meeting of BJP and Shiv Sena on 28.01.2007, where speeches were made by Bal Thakare and Narendra Modi. The petitioner claimed that these speeches, reported in newspapers, materially affected the election result. The Small Causes Court, on a preliminary issue, struck out several paragraphs of the election petition (paragraphs 3, 3(a) to 3(r)) for not disclosing a cause of action, but refused to reject the entire petition under Order VII Rule 11 CPC. Aggrieved, the petitioner filed a writ petition under Article 227 of the Constitution. The High Court examined whether the struck-out paragraphs disclosed a cause of action. It noted that the allegations in those paragraphs were vague and did not specifically aver that the returned candidate (respondent No.3) consented to the alleged corrupt practice. The court held that for an appeal to vote in the name of religion to constitute a corrupt practice, it must be shown that the appeal was made with the consent of the candidate or his election agent. Since the petition lacked such specific averments, the paragraphs were rightly struck off under Order VI Rule 16 CPC. The court also upheld the trial court's decision not to reject the entire petition under Order VII Rule 11, as some paragraphs might still disclose a cause of action. The writ petition was dismissed.
Headnote
A) Civil Procedure - Striking Out Pleadings - Order VI Rule 16 CPC - Cause of Action - The court may strike out pleadings which are unnecessary, scandalous, frivolous, or vexatious, or which may prejudice, embarrass, or delay fair trial, or which disclose no reasonable cause of action. The power under Order VI Rule 16 is distinct from rejection under Order VII Rule 11 and can be exercised even if the petition is not rejected in entirety. (Paras 1-2) B) Election Law - Corrupt Practices - Appeal on Ground of Religion - Section 123(3) of the Representation of the People Act, 1951 (as applicable to municipal elections) - For an appeal to vote in the name of religion to constitute a corrupt practice, it must be shown that the appeal was made with the consent of the candidate or his election agent. Vague allegations without specific averments of consent are liable to be struck off. (Paras 5-6) C) Election Law - Cause of Action - Election Petition - The election petition must disclose a cause of action. If the allegations in certain paragraphs are vague and do not connect the returned candidate to the alleged corrupt practice, those paragraphs can be struck off under Order VI Rule 16 CPC. (Paras 2-3)
Issue of Consideration
Whether the Small Causes Court was justified in striking out certain paragraphs of the election petition for not disclosing a cause of action, and whether the election petition was liable to be rejected under Order VII Rule 11 CPC.
Final Decision
The High Court dismissed the writ petition, upholding the order of the Small Causes Court striking out the paragraphs for not disclosing a cause of action, but not rejecting the entire petition under Order VII Rule 11 CPC.
Law Points
- Cause of action
- Striking out pleadings
- Election petition
- Corrupt practices
- Consent of candidate
- Order VI Rule 16 CPC
- Order VII Rule 11 CPC
- Section 33 Mumbai Municipal Corporation Act 1888
