SULTAN AHMD. OWASI versus MOHD. OSMAN SHAHEED AND ORS.

Citation: [1980] 3 S.C.R. 439 · Decided: 10-04-1980 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI, P.S. KAILASAM · Disposal: Appeal(s) allowed

Judgment (excerpt)

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f 
439 
SULTAN AHMD. OWASI 
V• 
MOHD. OSMAN SHAHEED AND ORS. 
April 10, 1980 
(S. MURTAZA FAZAL ALI AND P. S. KAJLASAM, JJ:J 
Election Petition-Applications for summoning of witnesses and amend· 
ment of counter-Practice and Procedure under the Repr,esentatiOn of People 
Act-Sections 87 and 116 of the Representation of the People Act read with 
Order VIII Rule 2 of Civil Procedure Code. 
A 
B 
In the two election petitions E. P. No. 18178 and E. P. No. 20178 filed by 
the defeated candidates, allegation of corrupt practice, namely "indulgence in 
C 
promoting hatred rousing religious sentiments by speeches made 
at certain 
places" was made against the appellant, a succesSful candidate. 
After the election petitioner closed his evidence and the High Court directed 
tho appellant to file the list of his witnesses, the appellant filed two applications 
before the High Court namely, one for summoning witnesses Nos. 6, 8, 15 and 
16 and another for amendment of his counter. The High Court however refused to 
D 
summon these witnesses on the ground that no foundation for the facts on the 
basis of which these witnesses were sought to be cited or for the points on 
which they were to be, examined was laid in the counfer. Similarly, the fligh 
Court rejected the application for amendment of the 
counter on the same 
grounds. The High Court was of the view that in the absence of any specific 
.plea of alibi, having been taken in the counter. the appellant could not be 
allowed to examine the witnesses 
or amend the counter. Hence 
the two 
B 
appeals, by special leave. 
Allowing the appeals the Court, 
. HELD : 1. Under the provisions of the Representation of People Act, the 
onus Jies entirely on the petitioner to prove the corrupt practices alleged against 
the elected, candidate. The. necessary facts and particulars and the statements 
of facts etc. are to be pleaded by the ·election petitioner with exactitude and 
precision. It is now well settled by a large catena of the authorities of this 
Court tha~ a charge of corrupt practice must be proved to the hilt, the stan-
dard of proof of such a11egation is the same as a charge of fraud in a criminal 
case. f442B-Cl 
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D. Venkata Reddy v. R. Sultan and Ors., [19761 2 S. C. C. followed. 
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2. So far as the elected candidate is concerned, he is merely to rebut the 
allegations made by the petitioner in accordance with the provisions of the 
Civil Procedure Code as far as practicable. In the instant case, the appellant 
had taken an express plea in his counter that he did not make any 9peech at 
the places alleged by the election petitioner. He also stated that tape records 
or the cassets 
alleged to contain his 
speech were fabricated. 
One of the 
ways of proving this plea could be by showing that the appellant was not 
physically present at the places where the speeches are alleged. to. have been 
made as he was present at that time, at some other place. This is what the 
appellant sought to do through the proposed amendment and by summoning 
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B 
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G 
B 
440 
SUPREME COURT REPORTS 
[1980] 3 s.c.R. 
the witnesses. Thus it was. clearly open to the appellant to have proved facts 
in order to rebut the allegations made by the petitioner that he was not present 
at the places where he is said to have made speeches. [442E-G] 
3. Under s. 116 of the Representation of the People Act an election petition 
has to be tried as nearly as possible according to the procedure 
applicable 
under the Civil Procedure Code to the trial of suits. Under O.VIII R. 2 the 
defendant must raise by his pleading all ritatters which show that the suit is not 
maintainable, or that the transaction is either void or voidable in point of law, 
and all such. grounds of defence, as, if not raised, would be likely to take the 
opposite party by surprise, or would raise issues of fact not arising out of the 
pjaint. Having expressly denied the allegation of having made the speech, the 
appellant was fully justified in raising this defence. [442G-H, 443A] 
In the instant case, 
it cannot be said that the witnesses sought 
to be 
examined by the appellant or the plea which he claimed in his counter by 
virtue of the amendment 
would spring surprise on the 
election petitioner 
because the appellant had already denied in clear terms that he never made any 
· speeches at the places mentioned in the election petition. There was no corres· 
ponding duty on the appellant to give full 

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