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1995 (12) TMI 340 - Indian Laws
Whether an implied admission of the averment in the election petition of Prof. Kapseís presence and conduct at the meeting of Sadhvi Reethambara at Thane on 21.5.1991 can be read in his written statement on the ground of non-traverse by virtue of Order 8 Rule 5(1) C.P.C.?
Held that:- The evidence led in support of the election petition which has already been discussed does not prove the commission of any corrupt practice either under sub-section (3) or sub-section (3A) of Section 123. On the other hand, Prof. Kapse and Pramod Mahajan have appeared as witnesses and denied the allegation. There is thus no legal evidence to support the allegation of corrupt practice based on the alleged speech of Pramod Mahajan. The finding of the High Court accepting the allegation and holding that a corrupt practice is proved, is clearly untenable and must be set aside.
The finding of High Court that corrupt practices are proved is based essentially on the understanding of the manifesto of the B.J.P. which is not even pleaded as the basis of the allegation, and its erroneous assumption that there are admissions that appeals were made in the name of Hindu religion which is the religion of the appellant. This is wholly untenable. There is also no legal evidence to prove the allegation of corrupt practice. The argument of learned counsel for the appellant and notice that the High Courtís judgment is based on certain notions and impressions instead of the material on record, cannot be treated as baseless. It is surprising how the election was set aside on such scanty material.
Consequently, the appeal of the returned candidate as well as the appeals of the notices are allowed. Appellant Prof. Ramchandra G. Kapse and the notice Pramod Mahajan will get their costs throughout from the respondent (election petitioner). The other notice Sadhvi Reethambara will bear her own costs since she did not appear as a witness to personally rebut the allegation made against her.