‘Replication does not seek to incorporate any new material facts or a new cause of action’: Apex Court confirms Manipur High Court’s decision of granting leave to election petitioner to file replication
Chief Justice D.Y. Chandrachud, Justices J.B. Pardiwala & Manoj Misra [08-05-2024]
 

Read Order: SHEIKH NOORUL HASSAN v. NAHAKPAM INDRAJIT SINGH & ORS [SC- CIVIL APPEAL N0. 1389 OF 2024]

Tulip Kanth

New Delhi, May 15, 2024: The Supreme Court has clarified that while considering grant of leave to file a replication in an election petition, the Court must bear in mind that replication is not needed to merely traverse facts pleaded in the written statement and replication is not a substitute for an amendment. The Court has to make sure that a new cause of action or plea inconsistent with the plea taken in original petition/plaint is not permitted in the replication.

In the case at hand, the first respondent filed an election petition seeking a declaration that the election of the returned candidate, namely, the appellant was null and void under Section 100(1) (d) (i) (ii) and (iv); and Section 100 (1) (b) of the Representation of Peoples Act, 1951. In addition, a prayer was made to declare the election petitioner as duly elected from the concerned legislative constituency (4- Kshetrigao Assembly Constituency) of 12th Manipur Legislative Assembly.

In the election petition, it was alleged that the returned candidate had failed to make necessary disclosures in the nomination paper/the affidavit (i.e., Form 26) which had a material bearing on the election result. In support of that allegation, particulars of such non-disclosure / incorrect disclosure were detailed in the election petition. As a result, the election petitioner filed an application seeking leave to file a replication, which came to be allowed by the impugned order of the High Court. 

The appeal, before the Top Court, was directed against the order of the Manipur High Court whereby leave had been granted to the election petitioner ( first respondent) to file a replication in answer to the new facts asserted in the written statement filed by the returned candidate (appellant herein).

The appellant-returned candidate submitted that the remedy of an election petition is a statutory remedy governed by the provisions of the 1951 Act.  It was contended that there was no foundation in law for the impugned order as there is no provision in the 1951 Act for filing a replication in response to a written statement. It was contended that the Election petitioner’s replication is barred by the provisions of section 81 of the 1951 Act as it sets out a time-limit of 45 days for filing an election petition.

The first respondent-Election Petitioner submitted that it was incorrect to state that filing of a replication in the proceedings of an election petition had no legal basis as Section 87 provides that an election petition shall be tried by the High Court in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (CPC) and a written statement can be rebutted under Order VIII Rule 9. It was also submitted that no new case was introduced by way of the replication. The replication only sought to rebut the explanation offered in the written statement in respect of details of bank accounts, tax demands/liability and ownership of vehicle, which were referred to in the original petition.

Referring to the judgment in K. Laxmanan v. Thekkayil Padmini and Ors. [LQ/SC/2008/2423], the 3-Judge Bench comprising Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra opined that replication, though not a pleading as per Rule 1 of Order VI, is permissible with the leave of the Court under Order VIII Rule 9 of the CPC, which gives a right to file a reply in defence to set-off or counter-claim set up in the written statement. However, if filing of replication is allowed by the Court, it can be utilised for the purposes of culling out issues. But mere non-filing of a replication would not mean that there has been admission of the facts pleaded in the written statement. It was further stated by the Bench that Section 83 of the 1951 Act mandates that an election petition must contain a concise statement of the material facts on which the petitioner relies. Additionally, an election petition should 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.

“In light of the analysis above, we are of the view that by virtue of the provisions of Section 87 (1) of the 1951 Act, the High Court, acting as an Election Tribunal, subject to the provisions of the 1951 Act and the rules made thereunder, is vested with all such powers as are vested in a civil court under the CPC. Therefore, in exercise of its powers under Order VIII Rule 9 of the CPC, it is empowered to grant leave to an election petitioner to file a replication”, the Bench held.

The Top Court made it clear that such leave is not to be granted mechanically. The Court before granting leave must consider the averments made in the plaint/election petition, the written statement and the replication. Upon consideration thereof, if the Court feels that to ensure a fair and effective trial of the issues already raised, the plaintiff/election petitioner must get opportunity to explain/clarify the facts newly raised or pleaded in the written statement, it may grant leave upon such terms as it deems fit. 

“Further, while considering grant of leave, the Court must bear in mind that,— (a) a replication is not needed to merely traverse facts pleaded in the written statement; (b) a replication is not a substitute for an amendment; and (c) a new cause of action or plea inconsistent with the plea taken in original petition/plaint is not to be permitted in the replication”, it added.

In the application seeking leave to file replication, the election petitioner stated that the returned candidate had stated new facts in a few paragraphs for which a reply was required, therefore leave to file a replication had to granted. It was clear to the Bench that the non-disclosure of bank accounts, alleged in the election petition, was sought to be explained by the returned candidate in his written statement. The replication only sought to meet that explanation. 

Similarly, the reply in the written statement in respect of other material facts pleaded in the election petition was sought to be dealt with, by way of explanation, in the replication. The replication did not seek to incorporate any new material facts or a new cause of action to question the election. It only sought to explain the averments made in the written statement. 

“Thus, in our view, leave to file replication was justified and well within the discretionary jurisdiction of the High Court”, the Bench held while dismissing the appeal.