Fazal Ali, J. - (1.) These appeals by special leave have been filed by the appellant who was respondent No.1 (before the High Court), the elected candidate from the Charminar Assembly Constituency No. 218 in the State of Andhra Pradesh. The election petitioner Mohd. Osman Shaweed filed election petition for setting aside the election of the appellant being E. P. No. 18/78 in the High Court. Ahmed Hosain, a candidate who was defeated also filed another election petition No. 20/78 on the same grounds assailing the election of the appellant. In the aforesaid election petitions before the High Court two applications were filed in each of the petitions by the appellant, one for summoning witnesses Nos. 6, 8, 15 and 16 and the other for amendment of the counter. These applications were filed after the petitioner closed the evidence and the High Court directed the appellant to file the list of witnesses. The High Court, however, refused to 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 counter. Similarly the High Court rejected the application for amendment of the counter 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. Appeals Nos. 2036-37/79 are directed against the order striking out the witnesses Nos. 6, 8, 15, 16 and 17 and Appeals Nos. 2038-39/79 are directed against the order rejecting the application for amendment of the counter.
(2.) We have heard counsel for the parties and have gone through the judgment of the High Court. We have also perused the application for amending the written statement. It appears that one of the main allegations made against the appellant was that he had delivered speeches at Khailawat, Chowk and Baragalli on 17-2-78 and 21-2-78 respectively in which he indulged in promoting hatred rousing religious sentiments. It was further alleged in Election Petition No. 20/78 that he made another speech at Baragalli where also he indulged in preaching religious hatred against the election petitioner. In his counter the appellant stoutly denied the allegation that he ever made any speech at these places at all. The respondent denied having made speech at all at Khilawat or Chowk or Baragalli. By virtue of the amendment, the appellant sought to insert a plea that he could have made the speeches as alleged by the election petitioner because he was at that time out of station and was present in Adoni-180 miles from the places where he (is) said to have delivered the speeches. In fact, witnesses Nos. 6, 8, 15, 16 and 17 were summoned to prove the fact that the appellant was in Adoni.
(3.) With due respect, we may observe that in refusing the amendment of the counter or summoning the witnesses the High Court seems to have overlooked the fact that under the provisions of the Representation of the People Act, the onus lies 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 that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal case. In the case of D. Venkata Reddy v. R. Sultan, (1976) 2 SCC 455, this Court observed as follows:- "Another principle that is equally well settled is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practices being in the nature of a quasi-criminal charge the same must be proved beyond any shadow of doubt." 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 speech at the places alleged by the election petitioner. He also stated that tape records or the cassette 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 the witnesses. Thus it was clearly open to the appellant to have proved these facts in order to rebut the allegations made by the petitioner that he was present at the places where he is said to have made speeches. 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 matters 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 nor arising out of the plaint. Having expressly denied the allegation of having made the speech, the appellant was fully justified in raising this defence.;