Can an elector who presents an election petition under Section 81 of the Representation of the People Act, 1951 claim a further declaration under Section 84?

This original application has been taken out by the first respondent/the elected candidate, invoking Order VI Rule 16 of the Code of Civil Procedure, praying to strike off pleadings in Paragraph No.5 of the Election Petition No.2 of 2026.

I have heard Mr.Satish Parasaran, learned Senior Counsel for Mr.P.J.Rishikesh, learned counsel for the applicant and Mr.R.Viduthalai, learned Senior Counsel for Ms.R.Revathy, learned counsel the first respondent/election petitioner.

The sum and substance of the prayer sought for in this application is to strike off the prayer sought for in the election petition, which has resulted in a stalemate of the democratic process and by-election being stalled without any legal foundation.

The submissions of Mr.Satish Parasaran, learned Senior Counsel are as follows:- The applicant was duly elected from 225-Ambasamudram Legislative Assembly Constituency, State of Tamil Nadu in the General Elections held on 23.04.2026. Though the applicant contested as a nominee of AIADMK party and he secured 65,589 votes, the highest number of votes amongst all candidates who stood for election and was declared as the successful candidate, which is a clear margin of over 10,000 votes over the runner up candidate, the applicant resigned from the office of MLA of Ambasanudram Constituency on 26.05.2026. The said resignation was accepted by the Speaker of the Tamil Nadu Legislative Assembly. However, the matter is now subjudice in WP No.23085 of 2026.

The election petitioner has challenged the election of the applicant on alleged corrupt practices under Sections 123(1) and 123(2) of the Representation of the People Act, 1951 (hereinafter referred to as “R.P Act”). It is mainly contended by the learned Senior Counsel that the first respondent/election petitioner is not a contesting candidate in the election held on 23.04.2026, but, only a voter and therefore, he is not entitled to invoke the provisions of Section 84 of the R.P Act, which relief can be availed of only by a candidate who has stood in the election and cannot be extended to an elector or voter.

It is further contended that suppressing service of notice on the applicant in the election petition, one K.Venkatachalapathy filed W.P No.27064 of 2026 and citing pendency of this election petition and the relief sought for under Section 84 of the R.P Act, the Hon’ble First Bench of this Court has restrained the Election Commission of India from notifying by-election to Ambasanudram Assembly Constituency. It is also submitted by Mr. Satish Parasaran that the said order was obtained by the election petitioner in collusion with the writ petitioner in W.P No.27064 of 2026 and behind the back of the applicant.

Learned Senior Counsel would further state that though Section 84 of the R.P Act entitles the petitioner, in addition to seek a declaration that the election of all or any of the returned candidates is void, can also claim a further declaration that he himself i.e., the petitioner or any other candidate has been duly elected. Inviting my specific attention to Section 84 of R.P Act, the learned Senior Counsel, Mr.Satish Parasaran would contend that the claim for a seat under Section 84 of the R.P.Act is available only to a contesting candidate either for his own benefit or for the benefit of another contesting candidate who participated in the election and not to anyone else, especially to a voter.

At this juncture, referring to Section 81 of R.P Act, Mr.Satish Parasan, learned Senior Counsel, without prejudice to the arguments advanced in the reject the election petition application, would contend that an elector who chooses to file an election petition can only simpliciter seek for a declaration under Section 100 of the R.P Act that the election is void and cannot invoke Section 84 which is reserved only for candidates and not to voters.

Pointing out to the prayer in the election petition, seeking to declare the second respondent as the elected candidate, Mr.Satish Parasaran, learned Senior Counsel would contend that the election was a multi cornered contest and not one where there were only two candidates contesting the election and therefore, in such a case, it is practically impossible to predict the mood of the electorate and the pattern of voting if the returned candidate had not contested the election.

Pointing out to Section 101(b) of the RP Act, Mr.Satish Parasaran, learned Senior Counsel would state that any declaration by way of a mandate under Section 101(b), declaring another candidate as elected can be granted only when the Court finds that but for the votes obtained by the returned candidate by corrupt practices, the other candidate, who is sought to be declared would have obtained majority of the valid votes cast in the election.

In connection with the above, Mr.Satish Parasaran, learned Senior Counsel would point out that the applicant obtained 65,589 votes which represented 34.3% of the total votes hold, the second respondent who stood on Indian National Congress ticket, secured 55,344 votes which represented 28.95% of the total votes hold and the third respondent who stood on TVK ticket procured 53,611 votes which translates to 28.04% of the total votes polled and the margin/difference of votes between the respondents 2 and 3 being less than 1%, the Court exercising jurisdiction and power under the provisions of the R.P Act, cannot grant the declaratory relief sought for by the first respondent. In support of his submissions, Mr.Satish Parasaran, relied on the following decisions:-

Learned Senior counsel would therefore pray for the application being allowed by striking off the declaratory relief sought for by the first respondent viz., to declare the second respondent as elected.

Per contra, Mr.R.Viduthalai, learned Senior Counsel appearing for the first respondent/election petitioner would firstly contend that the applicant, though elected on AIADMK party ticket, defied the whip issued by the party to all its MLAs to vote against the confidence motion moved on 13.05.2026 against the Government headed by Mr.C.Joseph Vijay, leader of TVK party. In view of the applicant defying the whip of the party and voting in favour of the TVK Government, the applicant has suffered patent disqualification under the anti-defection law which is enshrined in the Tenth Schedule of the Constitution of India. Mr.R.Viduthalai, learned Senior Counsel would therefore state that having been elected as an MLA under AIADMK banner, the applicant has betrayed the trust of the people, who had voted him to power, especially against a candidate who stood under TVK ticket in the very same constituency. According to the learned Senior Counsel, the act of the applicant is therefore is a clear flouting of the fundamental principle of democracy for pure personal and political gains. Mr.Viduthalai would further state that the applicant, conscious of the fact that he would be disqualified, cleverly resigned from the MLA post and has joined hands with the ruling party viz., TVK, which conduct clearly smacks of selfishness, besides betrayal of the wishes of the Electorate

Mr.Viduthalai, learned Senior Counsel would further state that the very invocation of Order VI Rule 16 of Civil Procedure Code is not legally sustainable since the said Rule can be applied only to striking off the pleadings that are either frivolous, vexatious or an abuse of process. According to Mr.Viduthalai, learned Senior Counsel, the application filed by the returned candidate/first respondent to strike off pleadings does not make out even a prima facie case warranting invocation of Order VI Rule 16 of Civil Procedure Code. He would further state that Section 84 of the R.P Act specifically confers a statutory right on the election petitioner to claim a declaration even with respect to any other candidate and therefore, the relief sought for cannot be styled as frivolous, vexatious or even an abuse of process. Learned Senior Counsel would further state that Section 151 of Civil Procedure Code, which is only conferring discretionary power on the Civil Court, cannot be invoked to override substantive statutory provisions under the R.P Act. Learned Senior Counsel would therefore state that the very application is baseless, misconceived and only a fanciable attempt on the part of the first respondent to truncate very serious and valid objections raised by the first respondent/election petitioner.

MrViduthalai, learned Senior Counsel also points out to the phraseology employed in Section 84 of the R.P Act and contend that the Legislature has consciously employed the word “petitioner” and not a “contesting candidate” and therefore, state that the arguments of Mr.Satish Parasaran, learned Senior Counsel for the applicant giving a restricted meaning to the “petitioner” under Section 84 of the R.P Act would defeat the letter and spirit of the Section itself. According to Mr.Viduthalai, learned Senior Counsel, the word “petitioner” has to be given a wider connotation to include even an elector/voter.

As regards the interplay between Sections 84 and 101(b) of R.P Act, it is the submission of Mr.Viduthalai, learned Senior Counsel that it is not necessary that the provisions should be applied only where the contest is between two candidates. As an illustration, the learned Senior Counsel would further state that even if there had been a shift of 3% votes, the result would be telling and when, the first respondent has already raised grave allegations of corrupt practices indulged in by the applicant, the applicant cannot wriggle out by referring to the percentage of votes cast in favour of the candidates alone. Learned Senior Counsel would therefore state that the prayer in the Section 84 of R.P Act is perfectly valid in the eye of law and the same cannot be struck off without considering the pleadings, grounds and evidence to be let in by the parties at trial.

I have carefully considered the submissions advanced by the learned Senior Counsel appearing on either side. I have also gone through the pleadings in the application, the written submissions filed on both sides as well as the decisions that have been relied on by the learned Senior counsel.

It is not in dispute that the applicant contested the election on an AIADMK party ticket and he also ended up as the successful candidate. After being elected as an MLA, the AIADMK party had issued a whip to all the selected MLAs to vote against the confidence motion in favour of the single largest party viz., TVK. However, the applicant defied the whip of the party and joined hands with the single largest party viz., TVK. The applicant being conscious of the fact that having defied the whip of the party command, he is likely to suffer disqualification and even being removed from the party, he voluntarily chose to resign from the MLA post. As a result of the same, the Ambasamudram Constituency seat has fallen vacant. Though the Election Commission proposed to conduct a by-election for the said Constituency, amongst other Constituencies also where by-elections were necessitated, in writ proceedings, the Division Bench of this Court, being put on notice about the prayer sought for in the present election petition, invoking Section 84 of R.P Act, restrained the Election Commission from announcing any by-election for this Constituency. Writ proceedings are admittedly pending and not finally disposed of. However, in the mean time, on being served with notice in the election petition, the applicant/first respondent in the election petition, being the successful elected candidate has filed the present application along with an another application to reject the election petition itself. The application to reject the election petition is being decided by a separate order.

Section 84 of the R.P Act enables a petitioner, at his discretion, in addition to claiming a declaration that the election of all, or any of the returned candidates is void, claim a further declaration that the petitioner himself or any other candidate has been duly elected.

As rightly contended by Mr.R.Viduthalai, learned Senior Counsel, “any petitioner” is entitled to invoke Section 84 of RP Act. The Legislature has clearly not restricted the invocation of Section 84 to a contestant in the election alone. However, a “petitioner” is not defined under Part I Section II of the R.P Act. However, consciously, the Legislature has defined an elector under Section 2(e) of the Act, as a person whose name is entered in the electoral roll of the Constituency and such person not being subject to any disqualification mentioned in Section 16 of the RP Act. Therefore, Section 84 of RP Act, on a plain reading, can certainly be interpreted to mean that a “petitioner” employed in Section 84 is any person who presents an election petition under Section 81 of R.P Act. Under Section 81(1) of the R.P Act, an election petition can be filed questioning any election on one or more grounds specified in Sub Section 1 of Section 100 and Section 101 and such election petition can be filed by any candidate at such elections or any elector/voter. The Explanation to Section 81(1) clarifies that “elector” means a person who was entitled to vote at the election to which the election petition relates, whether or not such elector had voted or not in the said election.

Now coming to Section 100 (1) and Section 101 of R.P.Act which are the grounds on which an election can be sought to be declared as void, four broad instances have been set out under sub section (1) of Section 100 of R.P.Act. The first instance is where on the date of the election of the returned candidate, he was not qualified or he was disqualified. The second instance is where the returned candidate has committed corrupt practices or his election agent or any other person with his consent has committed corrupt practices. The third instance is where the nomination of any of the candidates has been improperly rejected and the fourth instance is where the result of the election, insofar as the returned candidate should have materially affected under 4 sub illustrations viz., (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under the RP Act.

In the present election petition, the first respondent has alleged that the applicant returned candidate has indulged in corrupt practices and has therefore sought to declare the election of the applicant as void.

The Hon’ble Supreme Court in Vatal Nagaraj vs R.Dayanand Sagar, reported in (1975) 4 SCC 127 has held that in order to attract Section 101(a) of R.P Act, it should be established that the returned candidate has obtained votes by employing corrupt practices and that such tainted votes must be quantified with judicial precision and accuracy and after deduction of such tainted votes, the election petitioner or any other contesting candidate must be shown to have secured a majority of the valid votes.

In Prakash Khandre vs Dr.Y.S.Rajasekhar Reddy, reported in (2001) 8 SCC 721, the Hon’ble Supreme Court has held that when there are more than two candidates and once an election is set aside, then, it would not be proper to declare the candidate to secure the second highest vote to be declared elected candidate under Section 101 and the proper course of action would only be to order a fresh election.

The very same view was also taken by another Three Judges’ Bench of the Hon’ble Supreme Court in Muniraju Gowda P.M vs Munirathna and Others, reported in (2020) 10 SCC 192,

Coming to the arguments with regard to whether an elector or voter can invoke Section 84 of R.P Act, I have already discussed the language employed by Legislature by entitling a “petitioner” meaning an election petitioner to seek relief under Section 84 of R.P Act. Therefore, prima facie I am unable to accept the arguments of Mr.Satish Parasaran that an elector who chooses to challenge an election petition as void is not entitled to invoke Section 84 of R.P Act.

Even a plain reading of Section 84 of R.P Act, postulates a scenario where a petitioner who challenges an election is also entitled to seek a further declaration that he himself or any other candidate has been duly elected. Therefore, I am unable to countenance the arguments of Mr.Satish Parasaran that an elector or voter cannot invoke Section 84 of R.P Act and only a contestant in the election alone can file a petition under Section 84 of R.P.Act. Therefore, I do not see how, the relief under Section 84 of R.P.Act can be dismissed on this ground of such relief under Section 84 of R.P.Act not being available to the voter. At the same time, the controversy does not rest here.

The Hon’ble Supreme Court in Prakash Khandre vs Dr.Y.S.Rajasekhar Reddy, reported in (2001) 8 SCC 721 as well as Muniraju Gowda P.M vs Munirathna and Others, reported in (2020) 10 SCC 192, held that when there is more than a two candidate contest in an election, a declaration cannot be granted, declaring the candidate who secured the second highest vote as the elected candidate. The Court cannot presume or assume that in the event of the returned candidate being a non-starter or that he did not contest the election, then, the entire votes secured by him would have gone in the very same ratio or proportion in which the votes were cast to the other contestants. This clearly defies logic and any sense of practicality. That is the reason why the Hon’ble Supreme Court held that even when the returned candidate’s election is set aside, the next highest vote securer cannot be automatically declared as elected under Section 101 of R.P.Act and the only course open is to order a fresh election.

In Muniraju Gowda P.M vs Munirathna and Others, reported in (2020) 10 SCC 192, the language employed under Section 101 of R.P.Act has been specifically dealt with by Three Judges Bench of Hon’ble Supreme Court, where the Hon’ble Supreme Court has clearly laid down the law that the Rule for exclusion of votes secured by corrupt practices by returned candidate in computation of total votes and consequently declaring the candidate who secured the second highest number of votes, as duly elected, can be applied only when there are just two candidates at an election and not when there are more than two candidates. In the light of the law settled down by two Three Judges’ Benches of Hon’ble Supreme Court referred herein supra and admittedly, in the present case, there are more than two candidates who contested the election, the power of the Court to declare the candidate who secured the second highest votes as elected, cannot be exercised.

Under Order VI Rule 16 of Civil Procedure Code, the Court, at any stage of proceedings, can order striking off any matter in any pleading, which is unnecessary, scandalous, frivolous or vexatious or when any matter in such pleading tends to prejudice, embarrass or delay the fair trial of the suit or otherwise an abuse of the process of the Court.

In the present case, I am conscious of the fact that despite being the returned candidate, the first respondent has resigned his MLA post and the electorate remains unrepresented as on date. But, for the prayer sought for invoking Section 84 of R.P.Act, read with Section 101 of R.P.Act, the Election Commission would be clearly well within its right to conduct a fresh election. The relief sought for under Section 84 of R.P.Act by the first respondent is impeding such conduct of a fresh election, which has left the Constituency headless and clearly resulting in failure of the democratic process.

In view of the above discussions, when I have categorically found that the petitioner is not entitled to relief when election has been a multi-pronged contest and not merely two pronged, then, clearly the relief which cannot be granted is unnecessary, frivolous and vexatious. It also causes serious prejudice since the Constituency continues to remain unrepresented on account of the resignation of the first respondent.

As regard the arguments of Mr.Viduthalai, learned Senior Counsel appearing for the first respondent that Order VI Rule 16 of Civil Procedure Code cannot be invoked to strike off prayer, but only a pleading. I can only find such arguments fanciful and taken up to be rejected. The Code, empowers the Court, at any stage of the proceedings to strike off or even amend not just pleadings but any matter in any pleading, provided sub rules (a), (b) or (c) of Rule 16 of Civil Procedure Code are made out. The relief sought for in the election petition is certainly forming part of the pleading and it will definitely come within “any matter in any pleading”.

In such view of the matter, I do not see why this Court should not exercise power under Order VI Rule 16 of Civil Procedure Code and strike off the relief sought for under Section 84 of R.P.Act.

For all the above reasons, O.A.No.839 of 2026 is allowed as prayed for. 01.10.2026