Harish Chandra Bajpai v Triloki Singh (1956)

The case is studied in the law of pleadings for the line it draws between a ground or charge and the particulars of that ground, and for the limit it places on the power of amendment under O. VI, r. 17. Amendment of particulars is generously allowed; amendment which introduces a new ground, or so alters the character of the pleading as to make it in substance a new proceeding when a fresh proceeding would be time-barred, is not. The judgment also holds that the Code's procedural provisions are not excluded merely because the special Act contains a narrow provision of its own on one corner of the same subject.

The appellants were declared elected to the Uttar Pradesh Legislative Assembly from the Lucknow Central Constituency, a double-member constituency, polling having taken place on 31 January 1952. On 10 June 1952 — the last date allowed by s. 81 and the rules — the respondent filed an election petition alleging corrupt practices and praying that the election be declared wholly void.

The material allegation was in para 7(c), which stated that the appellants "could in furtherance of their election enlist the support of certain Government servants", and then set out details of two eye relief camps at Kakori at which election meetings were held and which were attended by named Ministers and by district officials, winding up with the assertion that the appellants "by this device succeeded in creating an impression on the voters that they had the support of the District officials". No list of particulars was attached as provided by s. 83(2).

The appellants denied the allegation in their written statements and objected that it was vague, that it was unaccompanied by a list and was liable to be struck off. Two defeated candidates who supported the petitioner filed written statements in December 1952 alleging assistance from village officers, one of them adding Mukhias to the list. The respondent filed a replication seeking to weave those allegations into his petition. Thereafter, on 28 November 1953, the Tribunal allowed an amendment adding the names of certain village headmen (Mukhias) as having worked for the appellants and later become their polling agents — by which time a fresh petition on those allegations would have been time-barred.

The Tribunal held, by a majority, that corrupt practices under s. 123(8) (obtaining the assistance of Government servants) and s. 123(7) (employing persons in excess of the permitted number) had been committed, and declared the election void under s. 100(2)(b). The appellants came by special leave, contending that the Tribunal had no power to allow the amendment either under s. 83(3) of the Act or under O. VI, r. 17.

Section 83(3) allowed amendment of the particulars included in the list and the furnishing of further and better particulars "in regard to any matters referred to therein". The appellants read "matters" as meaning the particulars already given, so that new instances could not be introduced. The Court refused that narrow construction: the word "matter" is of wider import than particulars and would also comprehend the grounds on which the election is sought to be set aside; on the appellants' reading the provision would have to be read as further and better particulars in regard to any particulars referred to therein, which is neither a natural nor a reasonable reading.

Section 83(3) therefore clothes the Tribunal with a general power to allow not merely amendment of particulars already given but the inclusion of fresh particulars pleading new instances, subject to the condition that they are in respect of a ground set out in the petition. Even where no list has been filed at all, it is competent to allow an amendment giving for the first time instances of a corrupt practice, provided that corrupt practice has been made a ground of attack in the petition. The Court supported this by the practice of the English Election Courts, citing the observation in the Carrickfergus Case that in the trial of such petitions "the most searching enquiry should be instituted", and the statement in the Dublin Case that the utmost latitude to amend would be allowed unless the court saw that the party had kept back information when the list was furnished.

It was argued that what could not be ordered under s. 83(3) could not be ordered under O. VI, r. 17 either. The Court held the contention wholly untenable. The true scope of the limitation in s. 90(2) on the application of the Code is that where the same subject-matter is covered both by the special Act or rules and by the Code and there is a conflict, the former prevails; the limitation cannot operate where the subject-matter of the two provisions is not the same. Section 83(3) relates only to amendment of particulars, and as to those it applies to the exclusion of any conflicting rule of the Code; but where the amendment relates not to particulars but to other matters, that is a field not occupied by s. 83(3), and O. VI, r. 17 applies. The fallacy lay in assuming that s. 83(3) is a comprehensive enactment on the whole subject of amendment, which it clearly is not, and the maxim expressio unius exclusio alterius accordingly had no scope.

In reaching that conclusion the Court also held that "trial" in s. 90(2) is used in a wide sense, including the entire proceedings before the Tribunal from the transfer of the petition to it until the pronouncement of its award; and that there is no antithesis between "procedure" in s. 90(2) and "powers" in s. 92, so that where an application lies to the Tribunal under s. 90(2) it has the power to pass the necessary order on it.

The power under O. VI, r. 17, however, is exercised subject to the provisions of the Act and the rules, and the Tribunal had no power to extend the prescribed period of limitation. An order of amendment permitting a new ground to be raised beyond the time limited must therefore contravene those provisions and lies beyond the authority conferred.

The appeal was allowed, the order of the Tribunal set aside and the election petition dismissed with costs throughout. The Court summed up its conclusions in two propositions:

1. Under s. 83(3) the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended, provided the petition itself specifies the grounds or charges, and this power extends to permitting new instances to be given. 2. The Tribunal has power under O. VI, r. 17 to order amendment of a petition, but that power cannot be exercised so as to permit new grounds or charges to be raised, or so to alter its character as to make it in substance a new petition, if a fresh petition on those allegations will then be barred.

Applying that to the pleading. Leaving out the allegations about the Kakori meetings, all that remained of para 7(c) was that the appellants "could" enlist the support of Government servants. The word "could" can only mean that they were in a position to do so; it does not amount to an averment that they in fact did. Pleadings should not be too strictly construed, and regard should be had to substance rather than form; but charges of corrupt practices are quasi-criminal in character, and allegations relating to them must be sufficiently clear and precise to bring the charges home to the candidate. Judged by that standard the allegation was worthless, and the record did not bear out the claim that the appellants had understood it as a charge of corrupt practice — they had said in terms that it nowhere alleged that they had obtained or procured, or attempted to obtain or procure, the assistance of any Government servant. Even reading "could" as "did", it was not clear whether the Government servants were asked to support the candidature or to assist in furtherance of election prospects, and there was no allegation that they did in fact assist. It was, in the Court's phrase, a long jump from the petition as originally laid to the amendment, in which for the first time it was asserted that certain Mukhias — none of whom was named in the petition — had assisted the appellants. The new matters so radically altered the character of the petition as to make it practically a new petition, and the amendment was beyond the Tribunal's power. The Court added that even had the power existed, the discretion had not been exercised soundly and judicially on this history.

The second ground. On the charge under s. 123(7) of employing two persons in excess of the permitted number, the Court applied the well-established distinction between a contract for services and a contract of service: in the one case the master can order or require what is to be done, in the other he can order not only what is to be done but how it shall be done. The test is whether the agreement was for the personal labour of the person engaged, whether the work was time-work or piece-work and whether he did it himself or with the assistance of others. There being no evidence that the contract required personal performance, the finding of employment was based on no evidence and was set aside.

The decision turns on a single word. The pleading said the candidates "could" enlist support, not that they "did"; and because no charge was laid, there was nothing for the later particulars to attach themselves to. The lesson is that vagueness in the pleading is not cured by the opposite party's supposed understanding of it, especially where the allegation is quasi-criminal in character.