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Personnel and Administrative Reforms Secretariat (Elections)

Notification

No: DPAR 06 CHUTHAA 2024, Bengaluru, Dated:18.05.2024.

ELECTION COMMISSION OF INDIA

Nirvachan Sadan, Ashoka Road, New Delhi – 110001

No: 82/KT-LA/07 & 08/2023

Dated: 25th April 2024

5 Vaisakha, 1946 (Saka)

NOTIFICATION

No:82/KT-LA/07 & 08/2023 - In pursuance of Section 106 (b) of the

Representation of the People Act, 1951 (43 of 1951), the Election Commission

of India hereby publishes the judgment / Orders of the High Court of

Karnataka dated 14.03.2024 in the Election Petition No. 07 & 08 of 2023.

¨sÁUÀ – 4

Part – IV

2024

1946)

BENGALURU, SATURDAY, 18, MAY, 2024(VAISHAKHA, 28, SHAKAVARSHA, 1946)

. 240

No. 240

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 14^TH DAY OF MARCH, 2024

BEFORE

THE HON'BLE MR JUSTICE RAVI V HOSMANI

ELECTION PETITION NO. 7 OF 2023 (-)

BETWEEN:

MR. UMESHA G.B.

S/O BHADRAGIRIGOWDA

AGED ABOUT 36 YEARS,

R/AT NO.67-A, GODURU,

ATHIGUPPE POST,KANAKAPURA TALUK

RAMANAGARA - 562 112.

MR. MAHADEV S.,

S/O CHINNAMMA,

AGED ABOUT 35 YEARS,

R/AT KAMALAPURA, ATTKUPPE,

ATTIKUPPE, RAMANAGARA – 562 112.

MR. MAHADEVA, S/O K.R. MAYANNAGOWDA,

AGED ABOUT 45 YEARS,

R/AT BOMMACHANA HALLI,

NEAR ANGANVADI BOMMACHANA

SUGGANAHALLI, RAMANAGARA – 562 128.

MR. C. SHIVALINGAMURTHY,

S/O CHIKKANNA @ SANNAPPA,

AGED ABOUT 58 YEARS,

R/AT NO.58 KAGGALAHALLI,

HAGALAHALLI, RAMANAGARA – 562 128.

MR. SRINIVAS L.S.,S/O SWAMY,

AGED ABOUT 30 YEARS,

R/AT NO.11, LINGEGOWDANADODDI,

HAGALAHALLI, RAMANAGARA-562 128.

MR. T.S. SIDDARAJU S/O SIDDEGOWDA,

AGED ABOUT 55 YEARS,

R/AT NO.39, HOSATHOKASANDRA,

THOKASANDRA, RAMANAGARA-562 121.

(BY SRI SANDESH T.B., ADVOCATE)

…PETITIONERS

AND:

MR. H.A. IQBAL HUSSAIN,

S/O LATE ABDUL BASHEER SAB,

AGED ABOUT 62 YEARS,

R/AT NO.86, HUKUNDA VILLAGE,

UYYAMBALLI HOBLI, KANAKAPURA TALUK,

RAMANAGARA - 562 119.

… RESPONDENT

(BY SRI C.S. PATIL AND SRI RAVINDRANATH K., ADVOCATES)

THIS ELECTION PETITION IS PRESENTED UNDER SECTION 81

OF THE REPRESENTATION OF PEOPLE ACT, 1951, BY SRI UMESHA

G.B. AND 5 OTHERS PETITIONERS-ELECTORS ALONGWITH HIS

COUNSELS SRI NISHANTH .A.V, SRI KARTHIK C., SRI CLIVE JOHNS

QUADROS

AND

SRI

SANMATHI

KUMAR

(ADVOCATES

FOR

PETITIONER) BEFORE THE REGISTRAR (JUDICIAL) ON 26.06.2023

[THE PROCEEDINGS OF REGISTRAR (JUDICIAL) IS AT PAGE NO.1 OF

THE PETITION], CHALLENGING THE ELECTION OF RESPONDENT MR.

IQBAL HUSSAIN FROM 183, RAMANAGARA ASSEMBLY

CONSTITUENCY, 2023 TO THE KARNATAKA LEGISLATIVE

ASSEMBLY 2023 AND THE PETITIONER PRAYS THIS HON’BLE

COURT TO (A) CALL FOR RECORDS.(B) SET ASIDE THE

ELECTION OF THE RESPONDENT TO THE 16^TH KARNATAKA

LEGISLATIVE

ASSEMBLY

FROM

NO.183-RAMANAGARA

ASSEMBLY

CONSTITUENCY,

KARNATAKA,

LEGISLATIVE

ASSEMBLY AND ETC.

THIS PETITION, COMING ON FOR ORDERS ON IA, THIS DAY,

THE COURT MADE THE FOLLOWING:

ORDER

This petition is filed seeking for following reliefs:

(A)

Call for records;

(B)

Set aside the Election of the Respondent to the

16^th Karnataka Legislative Assembly From

no.183 – Ramanagara Assembly Constituency,

Karnataka Legislative Assembly.

In said petition, respondent (hereinafter referred to

as ‘returned candidate’) has filed I.A.no.2/2023 under Order VII

Rule 11 (a) to (d) of Code of Civil Procedure, 1908 (‘CPC’ for

short) for rejection of petition as devoid of cause of action,

failure to comply with mandatory requirements in terms of

Section 81 and untenable in terms of Section 100 of

Representation of People Act, 1951 (‘ROPA’ for short).

Learned counsel for respondent submitted that he

had contested election for being elected ‘Member of Legislative

Assembly of Karnataka’ from Ramanagara Constituency in

election held on 10.05.2023 and was declared on 13.05.2023

as returned candidate. It was submitted, on ground that above

petition was frivolous apart from being non-compliant with

mandatory requirements of ROPA. Therefore, respondent had

filed I.A.no.2/2023 for rejection of petition.

It was submitted that Section

ROPA

prescribes contents of election petition filed under Section 80 of

ROPA as follows:

“83. Contents of petition.—

(1) An election petition—

(a) shall contain a concise statement of the

material facts on which the petitioner

relies;

(b) shall 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; and

(c) shall be signed by the petitioner and

verified in the manner laid down in the

Code of Civil Procedure, 1908 (5 of

1908) for the verification of pleadings:

Provided that where the petitioner alleges any

corrupt

practice,

the

petition

shall

also

accompanied by an affidavit in the prescribed form

in support of the allegation of such corrupt practice

and the particulars thereof.

(2) Any schedule or annexure to the petition shall

also be signed by the petitioner and verified in the

same manner as the petition.

As per Section 83 (1) (a), petition is required to

disclose concise statement of material facts on which petitioner

relies, while clause (b) requires it to set forth full particulars of

any corrupt practice that petitioner alleges including names of

persons involved as well as date and place of commission of

each such corrupt practice. Proviso to sub-section (1) mandates

petitioner filing an affidavit in prescribed form in support of

allegation of corrupt practice with particulars thereof. It was

submitted, above requirements were mandatory and failure to

comply would render petition untenable and liable for rejection.

Learned counsel further submitted that Section 100

of ROPA provided limited grounds on which election of

candidate could be declared void. It was submitted, in case of

corrupt practice, Section 100 (1) (b) provided that election

could be declared void only on finding that such corrupt

practice was committed with consent of returned candidate or

his election agent, while sub-section (2) provided that if such

corrupt practice was committed contrary to orders or without

consent of candidate or his election agent

that

such

candidate had taken reasonable care for preventing commission

of corrupt practices, election could not be declared void.

It was submitted that corrupt practice for purposes

of ROPA was defined in Section 123 of ROPA as follows:

“123.

Corrupt practices.—The

following

shall

deemed to be corrupt practices for the purposes of this

Act:—

(1) “Bribery”, that is to say—

(A) any gift, offer or promise by a candidate or his

agent or by any other person with the consent of a

candidate or his election agent of any gratification, to

any person whomsoever, with the object, directly or

indirectly of inducing—

(a) a person to stand or not to stand as, or to

withdraw or not to withdraw from being a

candidate at an election, or

(b) an elector to vote or refrain from voting at an

election, or as a reward to—

(i) a person for having so stood or not stood,

or for having withdrawn or not having

withdrawn his candidature; or

(ii) an elector for having voted or refrained

from voting;

(B) ”

Explanation.—For the purposes of this clause the term

“gratification” is not restricted to pecuniary gratifications

or gratifications estimable in money and it includes all

forms of entertainment and all forms of employment for

reward but it does not include the payment of any

expenses bona fide incurred at, or for the purpose of,

any election and duly entered in the account of election

expenses referred to in Section 78.

(2) Undue influence, that is to say, any direct or indirect

interference or attempt to interfere on the part of the

candidate or his agent, or of any other person with the

consent of the candidate or his election agent, with the

free exercise of any electoral right:”

It was submitted, perusal of present petition filed

by common voters did not disclose a clear case of corrupt

practice committed by respondent or his election agent with his

consent as defined by Section 123 to substantiate grounds for

declaring election void provided in Section 100 and therefore,

petition was liable to be rejected

threshold.

was

submitted, in order to make out case of commission of corrupt

practice, petitioners were required not only to state material

facts on which they relied, but also disclose full particulars of

corrupt practice with names, date and place.

It was submitted petitioners - common voters had

sought to substantiate allegation of corrupt practice against

respondent by stating that corrupt practice was as per his

instructions, by referring to a meeting alleged to be held at

Block Congress Office, but they have not disclosed source of

information, whether personal or person from whom they had

got information as ‘source of information’ itself would be a

‘material particular’ as per requirements of Section 83 read

with Sections 100 and 123 of ROPA. It was submitted even

particulars of persons who had attended such meeting etc., are

also not pleaded which would be a fatal flaw.

10.

It was submitted, though copy of guarantee card

was enclosed to petition, same would not have evidentiary

value for present purposes in absence of particulars about date

of issue, person who issued it, validity and whether it was

issued either by or at behest of respondent. Admittedly, no

complaint has been filed against respondent or his election

agent either before Chief Election Officer or jurisdictional police

station.

11.

It was further submitted, election petition was also

defective on ground that it was not accompanied by affidavit in

form prescribed under Rule 94A of the Conduct of Election

Rules, 1961 (hereinafter referred to as ‘Rules’).

was

submitted, requirement of filing affidavit in form

was

required as per Rule 94A. It was submitted, form of affidavit

required deponent to disclose source of information, whether

personal knowledge or otherwise. Since, affidavit failed to

clarify source of information, affidavit filed did not confirm

requirement, which had to be viewed as material and fatal flaw.

Consequently election petition was liable to be dismissed.

12.

It was further submitted that Section 127-A of

ROPA requires name and address of printers and publisher

thereof on every election pamphlet or poster. It was submitted,

copy of guarantee card sought to be relied upon by petitioners

does not comply with said requirement. Mere presence of

photograph

of respondent and party symbol would not

substantiate that it was published and distributed either with

consent or as per instructions of respondent. Moreover, there is

no action initiated against anyone for violation of Section 127-A

of ROPA. Therefore, said document did not have evidentiary

value. Consequently, when entire allegation of corrupt practice

alleged against respondent in election petition is based on

guarantee card, it would be futile to permit election petition to

proceed to be put to trial. Hence, election petition was liable to

be dismissed.

13.

It was further submitted unlike assertion in petition,

copy of only one gift card is produced. Non-production of gift

cards issued to all petitioners would be fatal as gift cards is

fundamental basis of their petition.

14.

In support of his submissions, learned counsel

sought to rely on observations of Hon’ble Supreme Court in

case of Samant N. Balkrishna v. George Fernandez,

reported in (1969) 3 SCC 238, in following paragraphs:

“25. Pausing here, we may view a little more closely the

provisions bearing upon corrupt practices in Section 100.

There are many kinds of corrupt practices. They are

defined in Section 123 of the Act and we shall come to

them later. But the corrupt practices are viewed

separately according as to who commits them. The first

class consists of corrupt practices committed by the

candidate or his election agent or any other person with

the consent of the candidate or his election agent. These,

if established, avoid the election without any further

condition being fulfilled. Then there is the corrupt practice

committed by an agent other than an election agent. Here

an additional fact has to be proved that the result of the

election was materially affected. We may attempt to put

the same matter in easily understandable language. The

petitioner may prove a corrupt practice by the candidate

himself or his election agent or someone with the consent

of the candidate or his election agent, in which case he

need not establish what the result of the election would

have been without the corrupt practice. The expression

“Any other person” in this part will include an agent other

than an election agent. This is clear from a special

provision later in the section about an agent other than an

election agent. The law then is this: If the petitioner does

not prove a corrupt practice by the candidate or his

election agent or another person with the consent of the

returned candidate or his election agent but relies on a

corrupt agent, he must additionally prove how the corrupt

practice affected the result of the poll. Unless he proves

the consent to the commission of the corrupt practice on

the part of the candidate or his election agent he must

face this additional burden. The definition of agent in this

context is to be taken from Section 123 (Explanation)

where it is provided that an agent “includes an election

agent, a polling agent and any person who is held to have

acted as an agent in connection with the election with the

consent of the candidate.” In this explanation the mention

of “an election agent” would appear to be unnecessary

because an election agent is the alter ego of the candidate

in the scheme of the Act and his acts are the acts of the

candidate, consent or no consent on the part of the

candidate.

29. Having dealt with the substantive law on the subject

of election petitions we may now turn to the procedural

provisions in the Representation of Peoples Act. Here we

have to consider Sections 81, 83 and 84 of the Act. The

first provides the procedure for the presentation of

election petitions. The proviso to sub-section alone is

material here. It provides that an election petition may be

presented on one or more of the grounds specified in sub-

section (1) of Section 100 and Section 101. That as we

have shown above creates the substantive right. Section

83 then provides that the election-petition must contain a

concise statement of the material facts on which the

petitioner relies and further that he must also 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. The section is mandatory and

requires first a concise statement of material facts and

then requires the fullest possible particulars. What is the

difference between material facts and particulars? The

word “material” shows that the facts necessary to

formulate a complete cause of action must be stated.

Omission of a single material fact leads to an incomplete

cause of action and the statement of claim becomes bad.

The function of particulars is to present as full a picture of

the cause of action with such further information in detail

as to make the opposite party understand the case he will

have to meet. There may be some overlapping between

material facts and particulars but the two are quite

distinct. Thus material facts will mention that a statement

of fact (which must be set out) was made and it must be

alleged that it refers to the character and conduct of the

candidate that it is false or which the returned candidate

believes to be false or does not believe to be true and that

it is calculated to prejudice the chances of the petitioner.

In the particulars the name of the person making the

statement, with the date, time and place will be

mentioned. The material facts thus will show the ground

of corrupt practice and the complete cause of action and

the particulars will give the necessary information to

present a full picture of the cause of action. In stating the

material facts it will not do merely to quote the words of

the section because then the efficiency of the words

“material facts” will be lost. The fact which constitutes the

corrupt practice must be stated and the fact must be co-

related to one of the heads of corrupt practice. Just as a

plaint without disclosing a proper cause of action cannot

be said to be a good plaint, so also an election petition

without the material facts relating to a corrupt practice is

no election petition at all. A petition which merely cites the

sections cannot be said to disclose a cause of action where

the allegation is the making of a false statement. That

statement must appear and the particulars must be full as

to the person making the statement and the necessary

information. Formerly the petition used to be in two parts.

The material facts had to be included in the petition and

the particulars in a schedule. It is inconceivable that a

petition could be filed without the material facts and the

schedule by merely citing the corrupt practice from the

statute. Indeed the penalty of dismissal summarily was

enjoined for petitions which did not comply with the

requirement. Today the particulars need not be separately

included in a schedule but the distinction remains. The

entire and complete cause of action must be in the

petition in the shape of material facts, the particulars

being the further information to complete the picture. This

distinction is brought out by the provisions of Section 86

although the penalty of dismissal is taken away. Sub-

section (5) of that section provides:

“(5) The High Court may, upon such terms as to

costs and otherwise as it may deem fit, allow the

particulars of any corrupt practice alleged in the

petition to be amended or amplified in such manner

as may in its opinion be necessary for ensuring a fair

and effective trial of the petition, but shall not allow

any amendment of the petition which will have the

effect of introducing particulars of a corrupt practice

not previously alleged in the petition.”

The power of amendment is given in respect of particulars

but there is a prohibition against an amendment “which

will have the effect of introducing particulars of a corrupt

practice not previously alleged in the petition.” One

alleges the corrupt practice in the material facts and they

must show a complete cause of action. If a petitioner has

omitted to allege a corrupt practice, he cannot be

permitted to give particulars of the corrupt practice. The

argument that the latter part of the fifth sub-section is

directory only cannot stand in view of the contract in the

language of the two parts. The first part is enabling and

the second part creates a positive bar. Therefore, if a

corrupt practice is not alleged, the particulars cannot be

supplied. There is, however, a difference of approach

between the several corrupt practices. If for example the

charge is bribery of voters and the particulars give a few

instances, other instances can be added; if the charge is

use of vehicles for free carriage of voters, the particulars

of the cars employed may be amplified. But if the charge

is that an agent did something, it cannot be amplified by

giving particulars of acts on the part of the candidate or

vice versa. In the scheme of election law there are

separate corrupt practices which cannot be said to grow

out of the material facts related to another person.

Publication of false statements by an agent is one cause of

action, publication of false statements by the candidate is

quite a different cause of action. Such a cause of action

must be alleged in the material facts before particulars

may be given. One cannot under the cover of particulars

of one corrupt practice give particulars of a new corrupt

practice. They constitute different causes of action.

30. Since a single corrupt practice committed by the

candidate, by his election agent or by another person with

the consent of the candidate or his election agent is fatal

to the election, the case must be specifically pleaded and

strictly proved. If it has not been pleaded as part of the

material facts, particulars of such corrupt practice cannot

be supplied later on. The bar of the latter part of the fifth

sub-section to Section 86 then operates. In the petition as

originally filed the agency of Jagadguru Shankaracharya,

Mr Madhu Limaye and the Maratha (or Mr.Atrey) was the

basis of the charge and the candidate Mr.Fernandez was

left out. No allegation was personally made against him.

The only allegations against him personally were

contained in para 2-G. There it was said that

Mr.Fernandez had made certain speeches to the effect

that Mr.Patil was against the Muslims and Christians. No

evidence was led and they were not even referred to at

the hearing before us. The next reference in 2-J is to

statements of Mr.Fernandez and published by the

Maratha. These were specified and only three such

statements were included. Since the gist of the election

offence is the publication of false statements, the charge

is brought home to the candidate through the publication

by the Maratha. It is to be remembered that even the

allegation that in doing so the Maratha acted as the agent

of Mr.Fernandez, itself came by way of an amendment

which we allowed as it completed the cause of action and

is permissible. The bar of Section 86(5) (latter part) does

not apply to it and under Order 6 Rule 17 of the Code of

Civil Procedure which is applicable as far as may be, such

an amendment can be made. Similarly the allegations that

such statements were false or were believed to be false or

were not believed to be true by the Maratha (i.e.,

Mr.Atrey) and that they were calculated to prejudice

Mr.Patil's chances and did so, were allowed by us to be

added as completing the cause of action relating to a

corrupt practice already alleged. But we declined to allow

to stand the amendments which had the effect of

introducing new corrupt practices relating to the candidate

himself which had not been earlier pleaded. This kind of

amendment is prohibited under the law when the

amendment is sought after the period of limitation.

37. From our examination of all the cases that were cited

before us we are satisfied that an election petition must

set out a ground or charge. In other words, the kind of

corrupt practice which was perpetrated together with

material facts on which a charge can be made out must be

stated. It is obvious that merely repeating the words of

the statute does not amount to a proper statement of

facts and the section requires that material facts of

corrupt practices must be stated. If the material facts of

the corrupt practice are stated more or better particulars

of the charge may be given later, but where the material

facts themselves are missing it is impossible to think that

the charge has been made or can be later amplified. This

is tantamount to the making of a fresh petition.

45. Mr Jethamalani contended in further support that

there was a clear similarity in the statements and

utterances of Mr Fernandez and Mr Atrey. He inferred a

high probability of concert between them. In this

connection he referred in particular to the speech of Mr

Fernandez at Shivaji Park and the conduct of Shanbhag,

one of his workers, in following up what Mr Fernandez had

said. We shall refer to this last part later, on which a

considerable part of the time of the Court was spent,

although we had ruled out the amendment with regard to

the speech at Shivaji Park. Mr Jethamalani referred to the

following cases among others in support of his contention

that consent in such circumstances may be assumed: Nani

Gopal Swami v. Abdul Hamid Chaudhary [1959 Ass

200]. Adams v. Hon. F.F. Leveson Gower [1 O'Malley and

Hardcastls 218]; Christie v. Grieve and W.F. Spencer [1

O'Malley and Hardcastls 251] ; John Blundell v. Charles

Harrison [3 O'Malley and Hardcaitis 148] . There is no

doubt that consent need not be directly proved and a

consistent course of conduct in the canvass of the

candidate may raise a presumption of consent. But there

are cases and cases. Even if all this is accepted we are of

opinion that consent cannot be inferred. The evidence

proves only that Mr Atrey was a supporter and that

perhaps established agency of Mr Atrey. It may be that

evidence is to be found supporting the fact, that Mr Atrey

acted as agent of Mr Fernandez with his consent. That

however, does not trouble us because Mr Chari admitted

that Mr Atrey can be treated as an agent of Mr Fernandez.

It is however, a very wide jump from this to say that Mr

Fernandez had consented to each publication as it came or

even generally consented to the publication of items

defaming the character and conduct of Mr Patil. That

consent must be specific. If the matter was left entirely in

the hands of Mr Atrey who acted solely as agent of Mr

Fernandez, something might be said as was done in Rama

Krishna case by this Court. Otherwise there must be some

reasonable evidence from which an inference can be made

of the meeting of the minds as to these publications or at

least a tacit approval of the general conduct of the agent.

If we were not to keep this distinction in mind there would

be no difference between Section 100(1)(b) and 100(1)(d)

insofar as an agent is concerned. We have shown above

that a corrupt act per se is enough under Section

100(1)(b) while under Section 100(1)(d) the act must

directly affect the result of the election insofar as the

returned candidate is concerned. Section 100(1)(b) makes

no mention of an agent while Section 100(1)(d)

specifically does. There must be some reason why this is

so. The reason is that an agent cannot make the

candidate responsible unless the candidate has consented

or the act of the agent has materially affected the election

of the returned candidate. In the case of any person (and

he may be an agent) if he does the act with the consent of

the returned candidate there is no need to prove the

consent of the returned candidate and there is no need to

prove the effect on the election. Therefore, either Mr

Jethamalani must prove that there was consent and that

would mean a reasonable inference from facts that Mr

Fernandez consented to the acts of Mr Atrey or he must

prove that the result of the election was seriously affected.

If every act of an agent must be presumed to be with the

consent of the candidate there would be no room for

application of the extra condition laid down by Section

100(1)(d), because whenever agency is proved either

directly or circumstantially, the finding about consent

under Section 100(1)(d) will have to follow. We are clearly

of opinion that Mr Jethamalani's argument that Section

100(1)(b) applies can only succeed if he establishes

consent on the part of Mr Fernandez.

47. The meeting at Shivaji Park about which we shall say

something presently, was not held in Mr Fernandez's

constituency. The similarity of ideas or even of words

cannot be pressed into service to show consent. There

was a stated policy of Sampurna Maharashtra Samiti

which wanted to join in Maharashtra all the areas which

had not so far been joined and statements in that behalf

must have been made not only by Mr Atrey but by several

other persons. Since Mr Atrey was not appointed as agent

we cannot go by the similarity of language alone. It is also

very significant that not a single speech of Mr Fernandez

was relied upon and only one speech of Mr Fernandez

namely, that at Shivaji Park was brought into arguments

before us by an amendment which we disallowed. The

best proof would have been his own speech or some

propaganda material such as leaflets or pamphlets etc. but

none was produced. The “Maratha” was an independent

newspaper not under the control of the Sampurna

Maharashtra Samiti or the S.S.P. which was sponsoring Mr

Fernandez or Mr Fernandez himself. Further we have ruled

out news items which it is the function of the newspaper

to publish. A news item without any further proof of what

had actually happened through witnesses is of no value. It

is at best a second-hand secondary evidence. It is well-

known that reporters collect information and pass it on to

the editor who edits the news item and then publishes it.

In this process the truth might get perverted or garbled.

Such news items cannot be said to prove themselves

although they may be taken into account with other

evidence if the other evidence is forcible. In the present

case the only attempt to prove a speech of Mr Fernandez

was made in connection with the Shivaji Park meeting.

Similarly the editorials state the policy of the newspaper

and its comment upon the events. Many of the news items

were published in other papers also. For example Free

Press Journal, the Blitz and writers like Welles Hengens

had also published similar statements. If they could not be

regarded as agents of Mr Fernandez we do not see any

reason to hold that the “Maratha” or Mr Atrey can safely

be regarded as agent of Mr Fernandez when acting for the

newspaper so as to prove his consent to the publication of

the defamatory matter. We are therefore of opinion that

consent cannot reasonably be inferred to the publications

in the “Maratha”. We are supported in our approach to the

problem by a large body of case law to which our attention

was drawn by Mr Chari. We may refer to a few cases here

: Bishwanath Upadhaya v. Hardal Das [1958 Ass 97]

; Abdul Majeed v. Bhargavan (Krishnan) [AIR 1963 Ker

18] ; Rustom Satin v. Dr Sampoornanand [20 ELR 221]

; Sarla Devi Pathak v. Birendra Singh [20 ELR 275]

; Krishna Kumar v. Krishna Gopal [AIR 1964 Raj 21]

; Lalsing Kesbrising Sehvar v. Vallabhdas Shankarlal

Phekdi [AIR 1967 Guj 62] ; Badri Narain Singh v. Kamdeo

Prasad Singh [AIR 1951 Pat 41] and Sarat Chandra

Rabba v. Khagendranath Math [AIR 1961 SC 334] . It is

not necessary to refer to these cases in detail except to

point out that the Rajasthan case dissents from the case

from Assam on which Mr Jethamalani relied. The principle

of law is settled that consent may be inferred from

circumstantial evidence but the circumstances must point

unerringly to the conclusion and must not admit of any

other explanation. Although the trial of an election petition

is made in accordance with the Code of Civil Procedure, it

has been laid down that a corrupt practice must be proved

in the same way as a criminal charge is proved. In other

words,

the

election

petitioner

must

exclude

every

hypothesis except that of guilt on the part of the returned

candidate or his election agent. Since we have held that

Mr.Atrey's activities must be viewed in two compartments,

one connected with Mr Fernandez and the other connected

with the newspaper we have to find out whether there is

an irresistable inference of guilt on the part of Mr

Fernandez. Some of the English cases cited by Mr

Jethamalani are not a safeguide because in England a

distinction is made between “illegal practices” and “corrupt

practices”. Cases dealing with “illegal practices” in which

the candidate is held responsible for the acts of his agent

are not a proper guide. It is to be noticed that making of a

false statement is regarded as “corrupt practice” and not

an “illegal practice” and the tests are different for a

corrupt practice. In India all corrupt practices stand on the

same footing. The only difference made is that when

consent is proved on the part of the candidate or his

election agent to the commission of corrupt practice, that

itself is sufficient. When a corrupt practice is committed by

an agent and there is no such consent then the petitioner

must go further and prove that the result of the election

insofar as the returned candidate is concerned was

materially affected. In Bayley v. Edmunds, Byron and

Marshall [(1894) 11 TLR 537] strongly relied upon by Mr

Daphtary, the publication in the newspaper was not held

to be a corrupt practice but the paragraph taken from a

newspaper and printed as a leaflet was held to be a

corrupt practice. That is not the case here. Mr Patil's own

attitude during the election and after is significant. During

the election he did not once protest that Mr Fernandez

charged his workers with hooliganism. Even after the

election Mr Patil did not attribute anything to Mr

Fernandez. He even said that the Bombay election was

conducted with propriety. Even at the filing of the election

petition he did not think of Mr Fernandez but concentrated

on the “Maratha”.

50. Now it may be stated that mere knowledge is not

enough. Consent cannot be inferred from knowledge

alone. Mr Jethamalani relied upon the Taunton case [1

O'Malley and Hardcastls 181 at 185] where Blackburn, J.,

said that one must see how much was being done for the

candidate and the candidate then must take the good with

the bad. There is difficulty in accepting this contention.

Formerly the Indian Election Law mentioned “knowledge

and connivance” but now it insists on consent. Since

reference to the earlier phrase has been dropped it is

reasonable to think that the law requires some concrete

proof, direct or circumstantial of consent, and not merely

of knowledge and connivance. It is significant that the

drafters of the election petition use the phrase “knowledge

and connivance” and it is reasonable to think that they

consulted the old Act and moulded the case round

“knowledge and connivance” and thought that was

sufficient.”

15.

Likewise

observations

case

V. Narayanaswamy v. C.P. Thirunavukkarasu, reported in

(2000) 2 SCC 294, in following paragraphs:

“23. It will be thus seen that an election petition is based on

the rights, which are purely the creature of a statute, and if

the statute renders any particular requirement mandatory,

the court cannot exercise dispensing powers to waive non-

compliance. For the purpose of considering a preliminary

objection as to the maintainability of the election petition

the averments in the petition should be assumed to be true

and the court has to find out whether these averments

disclose a cause of action or a triable issue as such. Sections

81, 83(1)(c) and 86 read with Rule 94-A of the rules and

Form 25 are to be read conjointly as an integral scheme.

When so read if the court finds non-compliance it has to

uphold the preliminary objection and has no option except

to dismiss the petition. There is difference between

“material facts” and “material particulars”. While the failure

to plead material facts is fatal to the election petition the

absence of material particulars can be cured at a later stage

by an appropriate amendment. “Material facts” mean the

entire bundle of facts, which would constitute a complete

cause of action and these must be concisely stated in the

election petition, i.e., clause (a) of sub-section (1) of

Section 83. Then under clause (b) of sub-section (1) of

Section 83 the election petition must contain full particulars

of any corrupt practice. These particulars are obviously

different from material facts on which the petition is

founded. A petition levelling a charge of corrupt practice is

required by law to be supported by an affidavit and the

election petitioner is obliged to disclose his source of

information in respect of the commission of corrupt practice.

He must state which of the allegations are true to his

knowledge and which to his belief on information received

and believed by him to be true. It is not the form of the

affidavit but its substance that matters. To plead corrupt

practice as contemplated by law it has to be specifically

alleged that the corrupt practices were committed with the

consent of the candidate and that a particular electoral right

of a person was affected. It cannot be left to time, chance or

conjecture for the court to draw inference by adopting an

involved process of reasoning. Where the alleged corrupt

practice is open to two equal possible inferences the

pleadings of corrupt practice must fail. Where several

paragraphs of the election petition alleging corrupt practices

remain unaffirmed under the verification clause as well as

the affidavit, the unsworn allegation could have no legal

existence and the court could not take cognizance thereof.

Charge of corrupt practice being quasi-criminal in nature the

court must always insist on strict compliance with the

provisions of law. In such a case it is equally essential that

the particulars of the charge of allegations are clearly and

precisely stated in the petition. It is the violation of the

provisions of Section 81 of the Act which can attract the

application of the doctrine of substantial compliance. The

defect of the type provided in Section 83 of the Act on the

other hand can be dealt with under the doctrine of

curability, on the principles contained in the Code of Civil

Procedure. Non-compliance with the provisions of Section 83

may lead to dismissal of the petition if the matter falls

within the scope of Order 6 Rule 16 and Order 7 Rule 11 of

the Code of Civil Procedure. Where neither the verification in

the petition nor the affidavit gives any indication of the

sources of information of the petitioner as to the facts

stated in the petition which are not to his knowledge and

the petitioner persists that the verification is correct and the

affidavit in the form prescribed does not suffer from any

defect the allegations of corrupt practices cannot be inquired

and tried at all. In such a case the petition has to be

rejected on the threshold for non-compliance with the

mandatory provisions of law as to pleadings. It is no part of

the duty of the court suo motu even to direct furnishing of

better particulars when objection is raised by the other side.

Where the petition does not disclose any cause of action it

has to be rejected. The court, however, cannot dissect the

pleadings into several parts and consider whether each one

of them discloses a cause of action. The petition has to be

considered as a whole. There cannot be a partial rejection of

the petition.

26. Material facts and material particulars certainly connote

two different things. Material facts are those facts which

constitute the cause of action. In a petition on the allegation

of corrupt practices the cause of action cannot be equated

with the cause of action as is normally understood because

of the consequences that follow in a petition based on the

allegations of corrupt practices. An election petition seeking

a challenge to the election of a candidate on the allegation

of corrupt practices is a serious matter; if proved, not only

does the candidate suffer ignominy, he also suffers

disqualification from standing for election for a period that

may extend to six years.

Reference in this connection may be made to Section 8-A [-

A. Disqualification on ground of corrupt practices.—

(1) The case of every person found guilty of a corrupt

practice by an order under Section 99 shall be submitted, as

soon as may be, after such order takes effect, by such

authority as the Central Government may specify in this

behalf, to the President for determination of the question as

to whether such person shall be disqualified and if so, for

what period:

Provided that the period for which any person may be

disqualified under this sub-section shall in no case exceed

six years from the date on which the order made in relation

to him under Section 99 takes effect.

(2) Any person who stands disqualified under Section 8-A of

this Act as it stood immediately before the commencement

of the Election Laws (Amendment) Act, 1975 (40 of 1975),

may, if the period of such disqualification has not expired,

submit a petition to the President for the removal of such

disqualification for the unexpired portion of the said

period.(3) Before giving his decision on any question

mentioned in sub-section (1) or on any petition submitted

under sub-section (2), the President shall obtain the opinion

of the Election Commission on such question or petition and

shall act according to such opinion.”] of the Act. It was for

this purpose that the proviso to sub-section (1) of Section

83 was inserted by Act 40 of 1961 (w.e.f. 20-9-1961)

requiring filing of the affidavit in the prescribed form where

there are allegations of corrupt practice in the election

petition. Filing of the affidavit as required is not a mere

formality. By naming a document as an affidavit it does not

become an affidavit. To be an affidavit it has to conform not

only to the form prescribed in substance but has also to

contain particulars as required by the rules.

27. It is contended by Mr.Bhandare that all the material

facts have been stated in the election petition and that for

lack of material particulars, the petition could not have been

thrown out at the threshold. He said opportunity should

have been given to the appellant to supply the material

particulars. It is really a strange proposition to advance. Till

the date of the impugned judgment, the appellant had

persisted that the petition did not lack material particulars

and that the verification was in accordance with the Code

and the affidavit in support of the corrupt practice in the

form prescribed. Admittedly, the petition lacked material

particulars, the verification to the petition was not in

accordance with the Code and the affidavit did not conform

to the form prescribed. At the first opportunity, the

respondent raised objection that the petition lacked both

material facts and the material particulars and that the

verification to the petition and the affidavit were not in

accordance with law. This was repeated in the miscellaneous

application (Original Application No. 298 of 1998). In the

counter-affidavit and in the reply to the miscellaneous

application, the appellant persisted in his stand and termed

the objections raised by the respondent as irrelevant. It is

not that the appellant did not have the opportunity to

correct his mistake which he could have easily done in the

rejoinder filed by him to the counter-affidavit of the

respondent or even his reply to the miscellaneous

application (OA No. 298 of 1998). He had every opportunity

even at that stage to supply the material particulars which

admittedly were lacking and also to amend the verification

and to file the affidavit in the form prescribed but for

reasons best known to him, he failed to do so. The existence

of material facts, material particulars, correct verification

and the affidavit are relevant and important when the

petition is based on the allegation of corrupt practice and in

the absence of those, the court has jurisdiction to dismiss

the petition. The High Court has undoubtedly the power to

permit amendment of the petition for supply of better

material particulars and also to require amendment of the

verification and filing of the required affidavit but there is no

duty cast on the High Court to direct suo motu the

furnishing of better particulars and requiring amendment of

the petition for the purpose of verification and filing of

proper affidavit. In a matter of this kind the primary

responsibility for furnishing full particulars of the alleged

corrupt practices and to file a petition in full compliance with

the provisions of law is on the petitioner. (See in this

connection the Constitution Bench decision in Bhikaji Keshao

Joshi v. Brijlal Nandlal Biyani [AIR 1955 SC 610: (1955) 2

SCR 428] SCR at p. 144.)

28. The grievance of the appellant is that he wanted to meet

the MLAs other than the MLAs of the Congress Party to

which he belonged but those MLAs were kept first in Hotel

Ashoka at Pondicherry and then taken to five star hotels at

Mahabalipuram. The appellant alleged that the MLAs were

“kept” in Hotel Ashoka but he has not given particulars as to

what he meant by the word “kept”. “Kept” is certainly not

“confined”. What entertainment was provided to those MLAs

in Hotel Ashoka, Pondicherry or in five star hotels in

Mahabalipuram has also not been specified. It is not his case

that he was prevented in any way from meeting any of

those MLAs. It was a material fact to allege which he failed

to do so. This is apart from the fact that the material

particulars as to when the MLAs were taken to Hotel Ashoka

and to other places, the names of the MLAs and the names

of the hotels in Mahabalipuram, who took them there, who

paid their bills and who brought them back are lacking. The

appellant does not show as to why he could not meet all

those MLAs on 2-10-1997. Apart from one independent MLA

the other MLAs belonged to various other political parties

like DMK, TMC, CPI, PMK and the Janata Dal. Rather it can

be assumed that the MLAs voted according to their political

affiliations. It has come on record that out of a total number

of 29 MLAs who constituted the Legislative Assembly of

Pondicherry, two belonged to AIDMK, another political party.

AIDMK had taken the decision not to vote for any candidate

and that is how the two MLAs of this party did not

participate in the election and the total votes polled were

27. There was only one independent MLA and his casting of

vote either way would not have at all affected the result of

the election considering the number of votes polled by each

of the candidates. It is not the case of the appellant that he

was barred from meeting any of the MLAs in order to solicit

their votes. There is no allegation if there is any complaint

by any MLA that he was kept out of circulation by the

respondent or with his consent by any other person for the

purpose of not being accessible to the appellant.

29. The appellant in his petition said that C. Jayakumar,

Minister and K. Kandaswamy, Deputy Speaker and K.

Rajasekheran, Parliamentary Secretary to the Chief Minister,

were the agents of the respondent. He then alleged that C.

Jayakumar took Kandaswamy and Rajasekheran to Goa with

a view to influence them to get their votes in favour of the

respondent. Is it not paradoxical where one agent influences

the other agent to vote in a particular way? It certainly

could not be a corrupt practice. The appellant then alleged

that N. Keshavan, MLA belonging to DMK and also a

government whip kept independent MLA Rajaraman first in

Hotel Ashoka, Pondicherry and then took him to Kovalam,

Chengleput District, then to Tirupati in a government vehicle

and then brought back to Pondicherry on 2-10-1997. It is

not the case of the appellant that N. Keshavan did so with

the consent of the respondent or any of his agents or

otherwise. This is a material fact which the appellant failed

to allege. Lastly, notification regarding appointments of

Chairmen to various committees came out much later after

the results were declared. It is correct that none of the

nominees belonged to the Congress Party.

30. It will thus be seen that the election petition not only

lacked the material facts, it lacked material particulars,

defective verification and the affidavit filed was not in the

form prescribed. Moreover, the ingredients of corrupt

practices, as defined in Section 123(1)(B) and 123(2) of the

Act are also lacking. It is also not the case of the appellant

that any MLA whom the appellant could not meet, received

any gratification, as defined, whether as a motive or a

reward for voting or refraining from voting, or there was any

inducement or attempt to induce any such MLA to vote or

refrain from voting. Also it is not the case of the appellant

that any undue influence was exercised with the free

exercise of any electoral right of any MLA which right, as

noted above, has been defined in clause (d) of Section 79 of

the Act. There is no allegation if any particular MLA was

induced to vote or not to vote in a particular way because

he was entertained or otherwise. The allegation is that the

appellant himself could not meet the MLAs and he believed

that if he had been given a chance to meet them he would

have influenced their vote in his favour and against their

party of affiliations. There is no allegation that the MLAs

were prevented or influenced from freely exercising their

electoral right. As stated earlier the appellant did not show

as to why he could not meet the MLAs on 2-10-1997 when

they were available in Pondicherry. The material fact must

be that the appellant was prevented from meeting the MLAs

which he did not allege and as to how he was so prevented

would constitute material particulars.”

16. Likewise on observations in case of Anil Vasudev

Salgaonkar v. Naresh Kushali Shigaonkar, reported in

(2009) 9 SCC 310, in following paragraphs:

“6. It was also incorporated in the written statement that

the election petition does not set forth the material facts of

the alleged corrupt practice. The respondent herein has also

failed to disclose the names of the parties alleged to have

committed the corrupt practice. In the election petition, the

date and place of the commission of such alleged corrupt

practice has not been mentioned and, therefore, the election

petition deserved to be dismissed as not maintainable.

17. The High Court has totally misdirected itself by

misconstruing the ratio laid down in a catena of decisions

pronounced by this Court including the law laid down

in Azhar Hussain case [1986 Supp SCC 315] and H.D.

Revanna case [(1999) 2 SCC 217] which if properly applied

to the facts and circumstances of the present case would

lead to rejection of the election petition in limine.

19. In the election petition the respondent has mentioned

that there was scarcity of water supply in certain villages.

However, the respondent has failed to mention the number

of houses which face such alleged water scarcity. In the

written statement, the appellant also alleged that the

respondent in the election petition has also failed to mention

about water availability in these villages; the respondent

has further failed to mention as to since when has there

been water scarcity? The appellant in the written statement

further alleged that the respondent has also not mentioned

as to how many houses are there in these villages; how

many persons are living in each of the houses; and how

many persons are voters in these villages. The respondent

has also not mentioned as to how many villages have water

connections; and when and where the water scarcity had

been noticed in these villages. He has also not mentioned as

to when this complete breakdown or insufficient water

supply had occasioned to these villages nor has he

mentioned the date, time, place or any other details of such

breakdown and has generally failed to give the details as

required under Section 83 of the Act.

22. Similarly, the respondent failed to give particulars

regarding the bore wells whose cost as alleged amounts to

Rs.6,38,557. Similarly, expenditure of Rs.12,50,000 has

been alleged to have been made for the purchase of

ambulances. The particulars have not been provided. It is

not clear as to how the respondent has come to the figure of

Rs.5,00,000 which according to him has been spent by the

appellant. He did not give any particulars regarding either of

the bore wells or the ambulances.

23. The appellant denied crossing the limit of Rs.5,00,000

as prescribed under the Act and the Rules framed

thereunder. It is also alleged that the appellant did not

construct any bore wells nor did he provide any ambulances

to the villagers and, therefore, the question of showing the

same in the election expenses did not arise at all. The

appellant denied that an amount of Rs.6,38,557 and an

amount of Rs.12,50,000 as alleged has been the

expenditure factually incurred by the appellant and denied

having committed any corrupt practice. The question of the

election results being materially affected does not arise at

all and, therefore, the election petition is liable to be

dismissed.

24. It was specifically argued that the election petition is

liable to be dismissed because there has been non-

compliance with Section 83(1) of the Act because there was

no sufficiency and adequacy of pleadings in the election

petition.

25. Section 83(1) of the Act reads as under:

“83. Contents of petition.—(1) An election petition—

(a) shall contain a concise statement of the material facts

on which the petitioner relies;

(b) shall 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; and

(c) shall be signed by the petitioner and verified in the

manner laid down in the Code of Civil Procedure, 1908 (5

of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt

practice, the petition shall also be accompanied by an

affidavit in the prescribed form in support of the allegation

of such corrupt practice and the particulars thereof.”

27. In the impugned judgment, the High Court erroneously

concluded that the election petition when read as a whole

discloses that it has material facts stated and regarding

which triable issues are also framed and therefore, it cannot

be rejected at the preliminary stage. The High Court in the

impugned judgment has discussed the decision of this Court

in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi [1987

Supp SCC 93]. According to the appellant, the High Court

erroneously distinguished this case. The impugned judgment

of the High Court is neither in consonance with the

provisions of the Act nor according to the settled legal

position as has been crystallised in a number of cases by

this Court. Being aggrieved by the impugned judgment, the

appellant has preferred this appeal.

28. In this election petition, Respondent 1 has challenged

the appellant's election primarily on the ground of corrupt

practices, alleging that the appellant dug bore wells in the

constituency and provided ambulances after the election

notification was issued in order to lure the voters from the

constituency or induce them to vote for the appellant.

41. This controversy is no long res integra. More than a

century ago, in Phillips v. Phillips [(1878) 4 QBD 127: 48

LJQB 135 (CA)], Cotton, L.J. stated: (QBD p. 139)

“… What particulars are to be stated must depend on the

facts of each case. But in my opinion it is absolutely

essential that the pleading, not to be embarrassing to the

defendants, should state those facts which will put the

defendants on their guard and tell them what they have to

meet when the case comes on for trial.”

47. The question of material facts in the election petition

was comprehensively dealt with by this Court in Azhar

Hussain case, 1986 Supp SCC 315. The Court observed that

it is not disputed that the Code of Civil Procedure applies to

the trial of an election petition by virtue of Section 87 of the

Representation of the People Act, 1951. Section 87(1) and

Section 87(2) of the Act apply to the election petition.

49. In this view of the matter, the court trying the election

petition can act in exercise of the powers of the Code

including Order 6 Rule 16 and Order 7 Rule 11(a) of the

Code. These provisions are set out as under:

“16. Striking out pleadings.—The court may at any

stage of the proceedings order to be struck out or

amended any matter in any pleading—

(a) which may be unnecessary, scandalous, frivolous or

vexatious, or

(b) which may tend to prejudice, embarrass or delay

the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the

court.

***

11. Rejection of plaint.—The plaint shall be rejected in the

following cases—

(a)

where it does not disclose a cause of action;”

50. The position is well settled that an election petition can

be summarily dismissed if it does not furnish the cause of

action in exercise of the power under the Code of Civil

Procedure. Appropriate orders in exercise of powers under

the Code can be passed if the mandatory requirements

enjoined by Section 83 of the Act to incorporate the material

facts in the election petition are not complied with.

51. This Court in Samant N. Balkrishna case [(1969) 3 SCC

238] has expressed itself in no uncertain terms that the

omission of a single material fact would lead to an

incomplete cause of action and that an election petition

without the material facts relating to a corrupt practice is

not an election petition at all. In Udhav Singh v. Madhav

Rao Scindia [(1977) 1 SCC 511] the law has been

enunciated that all the primary facts which must be proved

by a party to establish a cause of action or his defence are

material facts. In the context of a charge of corrupt practice

it would mean that the basic facts which constitute the

ingredients of the particular corrupt practice alleged by the

petitioner must be specified in order to succeed on the

charge. Whether in an election petition a particular fact is

material or not and as such required to be pleaded is

dependent on the nature of the charge leveled and the

circumstances of the case. All the facts which are essential

to clothe the petition with complete cause of action must be

pleaded and failure to plead even a single material fact

would amount to disobedience of the mandate of Section

83(1)(a). An election petition therefore can be and must be

dismissed if it suffers from any such vice. The first ground of

challenge must therefore fail.

52. In V.Narayanaswamy v. C.P. Thirunavukkarasu, (2000)

2 SCC 294, this Court reiterated the legal position that an

election petition is liable to be dismissed if it lacks in

material

facts.

L.R.

Shivaramagowda

T.M.

Chandrashekar [(1999) 1 SCC 666] this Court again

considered the importance of pleadings in an election

petition alleging corrupt practice falling within the scope of

Section 123 of the Act and observed as under: (SCC p. 677,

para 11)

“11. This Court has repeatedly stressed the importance of

pleadings in an election petition and pointed out the

difference

between

‘material

facts’

and

‘material

particulars’. While the failure to plead material facts is

fatal to the election petition and no amendment of the

pleading could be allowed to introduce such material facts

after the time-limit prescribed for filing the election

petition, the absence of material particulars can be

cured at a later stage by an appropriate amendment.”

53. In Udhav Singh case (1977) 1 SCC 511 this Court

observed as under: (SCC pp. 522-23, para 41)

“41. Like the Code of Civil Procedure, this section also

envisages a distinction between ‘material facts’ and

‘material particulars’. Clause (a) of sub-section (1)

corresponds to Order 6 Rule 2, while clause (b) is

analogous to Order 6 Rules 4 and 6 of the Code. The

distinction

between

‘material

facts’

and

‘material

particulars’ is important because different consequences

may flow from a deficiency of such facts or particulars in

the pleading. Failure to plead even a single material

fact leads to an incomplete cause of action and

incomplete allegations of such a charge are liable to be

struck off under Order 6 Rule 16, Code of Civil Procedure.

If the petition is based solely on those allegations which

suffer from lack of material facts, the petition is liable to

be summarily rejected for want of a cause of action. In

the case of a petition suffering from a deficiency

of material particulars, the court has discretion to allow

the petitioner to supply the required particulars even after

the expiry of limitation.”

(emphasis in original)

54. In H.D. Revanna case (1999) 2 SCC 217, the appeal was

filed by the candidate who had succeeded in the election

and whose application for dismissal of the election petition

in limine was rejected by the High Court. This Court noticed

that it has been laid down by this Court that non-compliance

with the provisions of Section 83 may lead to dismissal of

the petition if the matter falls within the scope of Order 6

Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure.

In Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi,

(2005) 5 SCC 46, this Court observed thus: (SCC p. 51,

para 14)

“14. Necessary averment of facts constituting an appeal

on the ground of ‘his religion’ to vote or to refrain from

voting would be material facts within the meaning of

clause (a) of sub-section (1) of Section 83 of the Act. If

such material facts are missing, they cannot be supplied

later on, after the expiry of period of limitation for filing

the election petition and the plea being deficient, can be

directed to be struck down under Order 6 Rule 16 of the

Code of Civil Procedure, 1908 and if such plea be the sole

ground of filing an election petition, the petition itself can

be rejected as not disclosing a cause of action under

clause (a) of Rule 11, Order 7 of the Code.”

55. In Harkirat Singh v. Amrinder Singh [(2005) 13 SCC

511] this Court again reiterated the distinction between

“material facts” and “material particulars” and observed as

under: (SCC p. 527, paras 51-52)

“51.

distinction

between

‘material

facts’

and

‘particulars’, however, must not be overlooked. ‘Material

facts’ are primary or basic facts which must be pleaded

by the plaintiff or by the defendant in support of the case

set up by him either to prove his cause of action or

defence. ‘Particulars’, on the other hand, are details in

support of material facts pleaded by the party. They

amplify, refine and embellish material facts by giving

distinctive touch to the basic contours of a picture already

drawn so as to make it full, more clear and more

informative. ‘Particulars’ thus ensure conduct of fair trial

and would not take the opposite party by surprise.

52. All ‘material facts’ must be pleaded by the party in

support of the case set up by him. Since the object and

purpose is to enable the opposite party to know the case

he has to meet with, in the absence of pleading, a party

cannot be allowed to lead evidence. Failure to state even

a single material fact, hence, will entail dismissal of the

suit or petition. Particulars, on the other hand, are the

details of the case which is in the nature of evidence a

party would be leading at the time of trial.”

56. In Sudarsha Avasthi v. Shiv Pal Singh [(2008) 7 SCC

604] this Court observed as under: (SCC p. 612, para 20)

“20. The election petition is a serious matter and it

cannot be treated lightly or in a fanciful manner nor is it

given to a person who uses this as a handle for vexatious

purpose.”

57. It is settled legal position that all “material facts” must

be pleaded by the party in support of the case set up by him

within the period of limitation. Since the object and purpose

is to enable the opposite party to know the case he has to

meet with, in the absence of pleading, a party cannot be

allowed to lead evidence. Failure to state even a single

material fact will entail dismissal of the election petition. The

election petition must contain a concise statement of

“material facts” on which the petitioner relies.

58. There is no definition of “material facts” either in the

Representation of the People Act, 1951 nor in the Code of

Civil Procedure. In a series of judgments, this Court has laid

down that all facts necessary to formulate a complete cause

of action should be termed as “material facts”. All basic and

primary facts which must be proved by a party to establish

the existence of cause of action or defence are material

facts. “Material facts” in other words mean the entire bundle

of facts which would constitute a complete cause of action.

This Court in Harkirat Singh case [(2005) 13 SCC 511] tried

to give various meanings of “material facts”. The relevant

para 48 of the said judgment is reproduced as under: (SCC

pp. 526-27)

48.The expression ‘material facts’ has neither been defined

in the Act nor in the Code. According to the dictionary

meaning, ‘material’ means ‘fundamental’, ‘vital’, ‘basic’,

‘cardinal’, ‘central’, ‘crucial’, ‘decisive’, ‘essential’, ‘pivotal’,

‘indispensable’, ‘elementary’ or ‘primary’. [Burton's Legal

Thesaurus (3rd Edn.), p. 349.] The phrase ‘material facts’,

therefore, may be said to be those facts upon which a party

relies for its claim or defence. In other words, ‘material

facts’ are facts upon which the plaintiff's cause of action or

the defendant's defence depends. What particulars could be

said to be ‘material facts’ would depend upon the facts of

each case and no rule of universal application can be laid

down. It is, however, absolutely essential that all basic and

primary facts which must be proved at the trial by the party

to establish the existence of a cause of action or defence are

material facts and must be stated in the pleading by the

party.”

59. In the context of a charge of corrupt practice, “material

facts” would mean all basic facts constituting the ingredients

of the particular corrupt practice alleged, which the

petitioner (the respondent herein) is bound to substantiate

before he can succeed on that charge. It is also well settled

that if “material facts” are missing they cannot be supplied

after expiry of period of limitation for filing the election

petition and the pleading becomes deficient.

60. According to the appellant, in the election petition, there

was no averment whether the bore wells were dug with the

consent and/or active knowledge of the appellant. This

averment was absolutely imperative and the failure to

mention such an important averment in the petition is fatal

for the election petitioner (the respondent herein) and the

election petition is liable to be summarily dismissed on that

ground.

61. The legal position has been crystallised by a series of

the judgments of this Court that all those facts which are

essential to clothe the election petitioner with a complete

cause of action are “material facts” which must be pleaded,

and the failure to place even a single material fact amounts

to disobedience of the mandate of Section 83(1)(a) of the

Act.

62. When we apply the aforementioned test to the election

petition in this case, then the conclusion becomes irresistible

that the election petition lacks the materials facts. The

election petition read as a whole does not disclose any cause

of action.”

17.

And following observations in case of Kanimozhi

Karunanidhi v. A. Santhana Kumar, reported in 2023 SCC

OnLine SC 573:

“16. In the instant case, the respondent-election petitioner

has challenged the election of the appellant on the ground

that the result of the election, insofar as it concerned the

appellant, was materially affected by non-compliance with

Article 324 of the Constitution and by non-compliance with

Rule-4A of the said Rules read with Section 33 of the Act. It

may be noted that Section 33 of the Act pertains to the

presentation of nomination paper and the requirements for

a valid nomination. Section 36 pertains to the scrutiny of

nominations by the Returning Officer.

Sub-section (2) thereof empowers the Returning Officer,

either on the objections made to any nomination or on his

own motion, to reject any nomination on the grounds

mentioned therein. One of the grounds to reject the

nomination is, when there has been failure to comply with

any of the provisions of Section 33. Sub-section(4) of

Section 36 states that the Returning Officer shall not reject

any nomination paper on the ground of any defect which is

not of a substantial character.

17. Part-II of the Conduct of Election Rules, 1961 deals

with the General Provisions. Rule-4 and Rule-4A which

pertain to the submission of nomination paper and the

Form of affidavit to be filed at the time of delivering

nomination paper read as under:—

“4.

Nomination

paper-

Every

nomination

paper

presented under sub-section (i) of section 33 shall be

completed in such one of the Forms 2A to 2E as may be

appropriate:

Provided that a failure to complete or defect in completing,

the declaration as to symbols in a nomination paper in

Form 2A or Form 2B shall not be deemed to be a defect of

a substantial character within the meaning of sub-section

(4) of section 36.

4A. Form of affidavit to be filed at the time of delivering

nomination paper- The candidate or his proposer, as the

case may be, shall, at the time of delivering to the

returning officer the nomination paper under sub-section

(1) of section 33 of the Act, also deliver to him an affidavit

sworn by the candidate before a Magistrate of the first

class or a Notary in Form 26.”

Legal position:

18. The scheme of the Constitutional and statutory

provisions contained in the R.P. Act in relation to the

nature of the right to elect, the right to be elected and the

right to dispute an election have been explained and

interpreted by various Constitutional Benches since 1952.

To cite a few are N.P. Ponnuswami v. Returning Officer,

Namakkal Constituency, in Jagan Nath v. Jaswant Singh,

in Bhikji Keshao Joshi v. Brijlal Nandlal Biyani, in Murarka

Radhey Shyam Ram Kumar v. Roop Singh Rathore etc.

19. What has been gleaned from the said authorities may

be summed up by stating that a right to elect, though

fundamental it is to democracy, is neither a fundamental

right nor a common law right. It is purely a statutory right.

Similarly, right to be elected and the right to dispute an

election are also statutory rights. Since they are statutory

creations, they are subject to statutory limitations. An

Election petition is not an action at common law, nor in

equity. It is a special jurisdiction to be exercised in

accordance with the statute creating it. The concept

familiar to common law and equity must remain strangers

to election law unless statutorily embodied. Thus, the

entire election process commencing from the issuance from

the notification calling upon a constituency to elect a

member or members right upto the final resolution of the

dispute, concerning the election is regulated by

the Representation of People Act, 1951. The said R.P. Act

therefore has been held to be a complete and self-

contained code within which must be found any rights

claimed in relation to an election dispute.

20. In a very interesting and important decision in case

of Union of India v. Association for Democratic Reforms, a

three-judge Bench of this Court raising a question - in a

nation wedded to republican and democratic form of

government, whether before casting votes, the voters have

a right to know relevant particulars of their candidates

contesting election to the Parliament or to the legislature of

States,

deliberated

the

powers

the

Election

Commission under Article 324 of the Constitution, and

observed as under:—

“46. To sum up the legal and constitutional position which

emerges from the aforesaid discussion, it can be stated

that:

1. The jurisdiction of the Election Commission is wide

enough to include all powers necessary for smooth conduct

of elections and the word “elections” is used in a wide

sense to include the entire process of election which

consists of several stages and embraces many steps.

2. The limitation on plenary character of power is when

Parliament or State Legislature has made a valid law

relating to or in connection with elections, the Commission

is required to act in conformity with the said provisions. In

case where law is silent, Article 324 is a reservoir of power

to act for the avowed purpose of having free and fair

election. The Constitution has taken care of leaving scope

for exercise of residuary power by the Commission in its

own right as a creature of the Constitution in the infinite

variety of situations that may emerge from time to time

in a large democracy, as every contingency could not be

foreseen or anticipated by the enacted laws or the rules.

By issuing necessary directions, the Commission can fill the

vacuum till there is legislation on the subject. In Kanhiya

Lal Omar case [(1985) 4 SCC 628] the Court construed the

expression “superintendence, direction and control” in

Article 324(1) and held that a direction may mean an order

issued to a particular individual or a precept which many

may have to follow and it may be a specific or a general

order and such phrase should be construed liberally

empowering the Election Commission to issue such orders.

3. ….

4. To maintain the purity of elections and in particular to

bring transparency in the process of election, the

Commission can ask the candidates about the expenditure

incurred by the political parties and this transparency in the

process of election would include transparency of a

candidate

who

seeks

election

re-election.

democracy, the electoral process has a strategic role. The

little man of this country would have basic elementary right

to know full particulars of a candidate who is to represent

him in Parliament where laws to bind his liberty and

property may be enacted.”

21. It is also pertinent to note that the insertion of Rule-4A

and Form-26 appended to the said Rules is also

culmination of the said observations made this Court in the

aforesaid case, which require the candidate to disclose the

information and particulars in the form of affidavit to be

submitted along with the nomination paper.

22. The respondent-Election petitioner in this case has

challenged election of the appellant-returned candidate

under Section 100(1)(d)(iv) on the ground of non-

compliance of the said Rule-4A and the Form-26. However,

the appellant had filed the applications seeking dismissal of

the Election petition in limine, for the non-compliance of

the provisions of Section 83(1)(a) of the said Act, read with

Order VII, Rule 11 of CPC.

23. The law so far developed and settled by this Court with

regard to the non-compliance of the requirement of Section

83(1)(a) of the EP Act, namely - “an Election petition must

contain a concise statement of material facts on which the

petitioner relies”, is that such non-compliance of

Section 83(1)(a) read with Order VII, Rule 11, CPC, may

entail dismissal of the Election Petition right at the

threshold. “Material facts” are facts which if established

would give the petitioner the relief asked for. The test

required to be answered is whether the court could have

given a direct verdict in favour of the election petitioner in

case the returned candidate had not appeared to oppose

the Election petition on the basis of the facts pleaded in the

petition. They must be such facts as would afford a basis

for the allegations made in the petition and would

constitute the cause of action as understood in the Code of

Civil Procedure 1908. Material facts would include positive

statement of facts as also positive statement of a negative

fact.

24. A Three-Judge Bench in Hari Shanker Jain v. Sonia

Gandhi (supra) had an occasion to deal with Section

83(1)(a) of the RP Act and the Court dismissed the Election

petition holding that the bald and vague averments made

in the election petitions do not satisfy the requirements of

pleading “material facts” within the meaning of Section

83(1)(a) of the RP Act read with the requirements of

Order VII Rule 11 CPC. It was observed in para 23 and 24

as under:—

“23. Section 83 (1) (a) of RPA, 1951 mandates that an

election petition shall contain a concise statement of

the material facts on which the petitioner relies. By a

series of decisions of this Court, it is well settled that the

material facts required to be stated are those facts which

can be considered as materials supporting the

allegations made. In other words, they must be such

facts as would afford a basis for the allegations made in

the petition and would constitute the cause of action as

understood in the Civil Procedure Code, 1908. The

expression “cause of action” has been compendiously

defined to mean every fact which it would be necessary

for the plaintiff to prove, if traversed, in order to support

his right to the judgment of court. Omission of a single

material fact leads to an incomplete cause of action and

the statement of claim becomes bad. The function of the

party is to present as full a picture of the cause of action

with such further information in detail as to make the

opposite party understand the case he will have to meet.

(See Samant N. Balkrishna v. George Fernandez [(1969)

3 SCC 238 : (1969) 3 SCR 603], Jitendra Bahadur

Singh v. Krishna Behari [(1969) 2 SCC 433].) Merely

quoting the words of the section like chanting of a

mantra does not amount to stating material facts.

Material facts would include positive statement of facts

as also positive averment of a negative fact, if

necessary.

In V.S.

Achuthanandan v. P.J.

Francis [(1999) 3 SCC 737] this Court has held, on a

conspectus of a series of decisions of this Court, that

material facts are such preliminary facts which must be

proved at the trial by a party to establish existence of a

cause of action. Failure to plead “material facts” is fatal

to the election petition and no amendment of the

pleadings is permissible to introduce such material facts

after the time-limit prescribed for filing the election

petition.

24. It is the duty of the court to examine the petition

irrespective of any written statement or denial and reject

the petition if it does not disclose a cause of action. To

enable a court to reject a plaint on the ground that it

does not disclose a cause of action, it should look at the

plaint and nothing else. Courts have always frowned

upon vague pleadings which leave a wide scope to

adduce any evidence. No amount of evidence can cure

basic defect in the pleadings.”

25. In case of Mahadeorao Sukaji Shivankar v. Ramaratan

Bapu, a Three-Judge Bench of this Court again had an

occasion to deal with the issues as to what would constitute

“material facts” and what would be the consequences of

not stating the “material facts” in the Election petition, as

contemplated in Section 83(1)(a) of the RP Act, and the

Court observed as under:

“6. Now, it is no doubt true that all material facts have to

be set out in an election petition. If material facts are not

stated in a plaint or a petition, the same is liable to be

dismissed on that ground alone as the case would be

covered by clause (a) of Rule 11 of Order 7 of the Code.

The question, however, is as to whether the petitioner had

set out material facts in the election petition. The

expression “material facts” has neither been defined in the

Act nor in the Code. It may be stated that the material

facts are those facts upon which a party relies for his claim

or defence. In other words, material facts are facts upon

which the plaintiff's cause of action or the defendant's

defence depends. What particulars could be said to be

material facts would depend upon the facts of each case

and no rule of universal application can be laid down. It is,

however, absolutely essential that all basic and primary

facts which must be proved at the trial by the party to

establish existence of cause of action or defence are

material facts and must be stated in the pleading of the

party.

7. But, it is equally well settled that there is distinction

between “material facts” and “particulars”. Material facts

are primary or basic facts which must be pleaded by the

petitioner in support of the case set up by him either to

prove his cause of action or defence. Particulars, on the

other hand, are details in support of material facts pleaded

by the party. They amplify, refine and embellish material

facts by giving finishing touch to the basic contours of a

picture already drawn so as to make it full, more clear and

more informative. Particulars ensure conduct of fair trial

and would not take the opposite party by surprise.”

26. In Anil Vasudev Salgaonkar v. Naresh Kushali

Shigaonkar, this Court has discussed number of earlier

decisions on the issue as to when the Election petition

could be dismissed summarily if it does not furnish the

cause of action in exercise of powers under the Code of

Civil Procedure read with Section 83 of the R.P. Act.

“50. The position is well settled that an election petition

can be summarily dismissed if it does not furnish the cause

of action in exercise of the power under the Code of Civil

Procedure. Appropriate orders in exercise of powers under

the Code can be passed if the mandatory requirements

enjoined by Section 83 of the Act to incorporate the

material facts in the election petition are not complied with.

51. This Court in Samant N. Balkrishna case [(1969) 3 SCC

238] has expressed itself in no uncertain terms that the

omission of a single material fact would lead to an

incomplete cause of action and that an election petition

without the material facts relating to a corrupt practice is

not an election petition at all. In Udhav Singh v. Madhav

Rao Scindia [(1977) 1 SCC 511] the law has been

enunciated that all the primary facts which must be proved

by a party to establish a cause of action or his defence are

material facts. In the context of a charge of corrupt

practice it would mean that the basic facts which constitute

the ingredients of the particular corrupt practice alleged by

the petitioner must be specified in order to succeed on the

charge. Whether in an election petition a particular fact is

material or not and as such required to be pleaded is

dependent on the nature of the charge levelled and the

circumstances of the case. All the facts which are essential

to clothe the petition with complete cause of action must

be pleaded and failure to plead even a single material fact

would amount to disobedience of the mandate of Section

83(1)(a). An election petition therefore can be and must be

dismissed if it suffers from any such vice. The first ground

of challenge must therefore fail.

52. In V. Narayanaswamy v. C.P. Thirunavukkarasu (2000)

2 SCC 294 this Court reiterated the legal position that an

election petition is liable to be dismissed if it lacks in

material

facts.

L.R.

Shivaramagowda

T.M.

Chandrashekar (1999) 1 SCC 666 this Court again

considered the importance of pleadings in an election

petition alleging corrupt practice falling within the scope of

Section 123 of the Act and observed as under : (SCC p.

677, para 11)

“11. This Court has repeatedly stressed the importance

of pleadings in an election petition and pointed out the

difference

between

‘material

facts’

and

‘material

particulars’. While the failure to plead material facts is

fatal to the election petition and no amendment of the

pleading could be allowed to introduce such material

facts after the time-limit prescribed for filing the election

petition, the absence of material particulars can be cured

at a later stage by an appropriate amendment.”

53. In Udhav Singh case [(1977) 1 SCC 511] this Court

observed as under: (SCC pp. 522-23, para 41)

“41. Like the Code of Civil Procedure, this section also

envisages a distinction between ‘material facts’ and

‘material particulars’. Clause (a) of sub-section (1)

corresponds to Order 6 Rule 2, while clause (b) is

analogous to Order 6 Rules 4 and 6 of the Code. The

distinction

between

‘material

facts’

and

‘material

particulars’ is important because different consequences

may flow from a deficiency of such facts or particulars in

the pleading. Failure to plead even a single material

fact leads to an incomplete cause of action and

incomplete allegations of such a charge are liable to be

struck off under Order 6 Rule 16, Code of Civil

Procedure. If the petition is based solely on those

allegations which suffer from lack of material facts, the

petition is liable to be summarily rejected for want of a

cause of action. In the case of a petition suffering from a

deficiency of material particulars, the court has

discretion to allow the petitioner to supply the required

particulars even after the expiry of limitation.”

54. In H.D. Revanna case [(1999) 2 SCC 217] the appeal

was filed by the candidate who had succeeded in the

election and whose application for dismissal of the election

petition in limine was rejected by the High Court. This

Court noticed that it has been laid down by this Court that

non-compliance with the provisions of Section 83 may lead

to dismissal of the petition if the matter falls within the

scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code

of Civil Procedure. In Harmohinder Singh

Pradhan v. Ranjeet Singh Talwandi [(2005) 5 SCC 46] this

Court observed thus : (SCC p. 51, para 14)

“14. Necessary averment of facts constituting an appeal

on the ground of ‘his religion’ to vote or to refrain from

voting would be material facts within the meaning of

clause (a) of sub-section (1) of Section 83 of the Act. If

such material facts are missing, they cannot be supplied

later on, after the expiry of period of limitation for filing

the election petition and the plea being deficient, can be

directed to be struck down under Order 6 Rule 16 of

the Civil Procedure Code, 1908 and if such plea be the

sole ground of filing an election petition, the petition

itself can be rejected as not disclosing a cause of action

under clause (a) of Rule 11, Order 7 of the Code.”

55. In Harkirat Singh v. Amrinder Singh [(2005) 13 SCC

511] this Court again reiterated the distinction between

“material facts” and “material particulars” and observed as

under : (SCC p. 527, paras 51-52)

“51.

distinction

between

‘material

facts’

and

‘particulars’, however, must not be overlooked. ‘Material

facts’ are primary or basic facts which must be pleaded

by the plaintiff or by the defendant in support of the

case set up by him either to prove his cause of action or

defence. ‘Particulars’, on the other hand, are details in

support of material facts pleaded by the party. They

amplify, refine and embellish material facts by giving

distinctive touch to the basic contours of a picture

already drawn so as to make it full, more clear and more

informative. ‘Particulars’ thus ensure conduct of fair trial

and would not take the opposite party by surprise.

52. All ‘material facts’ must be pleaded by the party in

support of the case set up by him. Since the object and

purpose is to enable the opposite party to know the case

he has to meet with, in the absence of pleading, a party

cannot be allowed to lead evidence. Failure to state even

a single material fact, hence, will entail dismissal of the

suit or petition. Particulars, on the other hand, are the

details of the case which is in the nature of evidence a

party would be leading at the time of trial.”

56. In Sudarsha Avasthi v. Shiv Pal Singh [(2008) 7 SCC

604] this Court observed as under : (SCC p. 612, para 20)

“20. The election petition is a serious matter and it

cannot be treated lightly or in a fanciful manner nor is it

given to a person who uses this as a handle for

vexatious purpose.”

57. It is settled legal position that all “material facts” must

be pleaded by the party in support of the case set up by

him within the period of limitation. Since the object and

purpose is to enable the opposite party to know the case

he has to meet with, in the absence of pleading, a party

cannot be allowed to lead evidence. Failure to state even a

single material fact will entail dismissal of the election

petition. The election petition must contain a concise

statement of “material facts” on which the petitioner relies.

58. There is no definition of “material facts” either in

the Representation of the People Act, 1951 nor in the Code

of Civil Procedure. In a series of judgments, this Court has

laid down that all facts necessary to formulate a complete

cause of action should be termed as “material facts”. All

basic and primary facts which must be proved by a party to

establish the existence of cause of action or defence are

material facts. “Material facts” in other words mean the

entire bundle of facts which would constitute a complete

cause of action. This Court in Harkirat Singh case [(2005)

13 SCC 511] tried to give various meanings of “material

facts”. The relevant para 48 of the said judgment is

reproduced as under : (SCC pp. 526-27)

“48. The expression ‘material facts’ has neither been

defined in the Act nor in the Code. According to the

dictionary meaning, ‘material’ means ‘fundamental’, ‘vital’,

‘basic’, ‘cardinal’, ‘central’, ‘crucial’, ‘decisive’, ‘essential’,

‘pivotal’,

‘indispensable’,

‘elementary’

‘primary’.

[Burton's Legal Thesaurus (3rd Edn.), p. 349.] The phrase

‘material facts’, therefore, may be said to be those facts

upon which a party relies for its claim or defence. In other

words, ‘material facts’ are facts upon which the plaintiff's

cause of action or the defendant's defence depends. What

particulars could be said to be ‘material facts’ would

depend upon the facts of each case and no rule of universal

application can be laid down. It is, however, absolutely

essential that all basic and primary facts which must be

proved at the trial by the party to establish the existence of

a cause of action or defence are material facts and must be

stated in the pleading by the party.”

27. In Ram Sukh v. Dinesh Aggarwal (supra), this Court

again while examining the maintainability of Election

petition filed under Section 100(1)(d)(iv) of the RP Act,

elaborately considered the earlier decisions and observed

that it was necessary for the election petitioner to aver

specifically in what manner the result of the election in so

far as it concerned the returned candidate was materially

affected due to omission on the part of the Returning

Officer. The Court in the said case having found that such

averments being missing in the Election petition, upheld

the judgment of the High Court/Election Tribunal rejecting

the Election petition at the threshold. The Court observed

in para 14 to 21 as under:—

“14. The requirement in an election petition as to the

statement of material facts and the consequences of lack of

such disclosure with reference to Sections 81, 83 and 86 of

the Act came up for consideration before a three-Judge

Bench of this Court in Samant N. Balkrishna v. George

Fernandez [(1969) 3 SCC 238]. Speaking for the three-

Judge Bench, M. Hidayatullah, C.J., inter alia, laid down

that:

(i) Section 83 of the Act is mandatory and requires first a

concise statement of material facts and then the fullest

possible particulars;

(ii) omission of even a single material fact leads to an

incomplete cause of action and statement of claim becomes

bad;

(iii) the function of particulars is to present in full a picture

of the cause of action and to make the opposite party

understand the case he will have to meet;

(iv) material facts and particulars are distinct matters—

material facts will mention statements of fact and

particulars will set out the names of persons with date,

time and place; and

(v.) in stating the material facts it will not do merely to

quote the words of the section because then the efficacy of

the material facts will be lost.

15. At this juncture, in order to appreciate the real object

and purport of the phrase “material facts”, particularly with

reference to election law, it would be appropriate to notice

the distinction between the phrases “material facts” as

appearing in clause (a) and “particulars” as appearing in

clause (b) of sub-section (1) of Section 83. As stated

above, “material facts” are primary or basic facts which

have to be pleaded by the petitioner to prove his cause of

action and by the defendant to prove his defence.

“Particulars”, on the other hand, are details in support of

the material facts, pleaded by the parties. They amplify,

refine and embellish material facts by giving distinctive

touch to the basic contours of a picture already drawn so

as to make it full, more clear and more informative. Unlike

“material facts” which provide the basic foundation on

which the entire edifice of the election petition is built,

“particulars” are to be stated to ensure that the opposite

party is not taken by surprise.

16.

The

distinction

between

“material

facts”

and

“particulars” and their requirement in an election petition

was succinctly brought out by this Court in Virender Nath

Gautam v. Satpal Singh [(2007) 3 SCC 617] wherein C.K.

Thakker, J., stated thus : (SCC pp. 631-32, para 50)

“50. There is distinction between facta probanda (the facts

required to be proved i.e. material facts) and facta

probantia (the facts by means of which they are proved i.e.

particulars or evidence). It is settled law that pleadings

must contain only facta probanda and not facta probantia.

The material facts on which the party relies for his claim

are called facta probanda and they must be stated in the

pleadings. But the facts or facts by means of which facta

probanda (material facts) are proved and which are in the

nature of facta probantia (particulars or evidence) need not

be set out in the pleadings. They are not facts in issue, but

only relevant facts required to be proved at the trial in

order to establish the fact in issue.”

17. Now, before examining the rival submissions in the

light of the aforestated legal position, it would be expedient

to deal with another submission of the learned counsel for

the appellant that the High Court should not have exercised

its power either under Order 6 Rule 16 or Order 7 Rule 11

of the Code to reject the election petition at the threshold.

The argument is twofold viz.:

(i) that even if the election petition was liable to be

dismissed ultimately, it should have been dismissed only

after affording an opportunity to the election petitioner

to adduce evidence in support of his allegation in the

petition, and

(ii) since Section 83 does not find a place in Section 86

of the Act, rejection of the petition at the threshold

would amount to reading into sub-section (1) of Section

86 an additional ground.

In our opinion, both the contentions are misconceived and

untenable.

18. Undoubtedly, by virtue of Section 87 of the Act, the

provisions of the Code apply to the trial of an election

petition and, therefore, in the absence of anything to the

contrary in the Act, the court trying an election petition can

act in exercise of its power under the Code, including Order

6 Rule 16 and Order 7 Rule 11 of the Code. The object of

both the provisions is to ensure that meaningless litigation,

which is otherwise bound to prove abortive, should not be

permitted to occupy the judicial time of the courts. If that

is so in matters pertaining to ordinary civil litigation, it

must apply with greater vigour in election matters where

the pendency of an election petition is likely to inhibit the

elected representative of the people in the discharge of his

public duties for which the electorate have reposed

confidence in him. The submission, therefore, must fail.

19. Coming to the second limb of the argument viz.

absence of Section 83 in Section 86 of the Act, which

specifically provides for dismissal of an election petition

which does not comply with certain provisions of the Act, in

our view, the issue is no longer res integra. A similar plea

was negatived by a three-Judge Bench of this Court

in Hardwari Lal v. Kanwal Singh [(1972) 1 SCC 214],

wherein speaking for the Bench, A.N. Ray, J. (as His

Lordship then was) said : (SCC p. 221, para 23)

“23. Counsel on behalf of the respondent submitted that

an election petition could not be dismissed by reason of

want of material facts because Section 86 of the Act

conferred power on the High Court to dismiss the

election petition which did not comply with the

provisions of Section 81, or Section 82 or Section 117 of

the Act. It was emphasised that Section 83 did not find

place in Section 86. Under Section 87 of the Act every

election petition shall be tried by the High Court as

nearly as may be in accordance with the procedure

applicable under the Civil Procedure Code, 1908, to the

trial of suits. A suit which does not furnish cause of

action can be dismissed.”

20. The issue was again dealt with by this Court in Azhar

Hussain v. Rajiv Gandhi [1986 Supp SCC 315]. Referring to

earlier pronouncements of this Court in Samant N.

Balkrishna [(1969) 3 SCC 238] and Udhav Singh v. Madhav

Rao Scindia [(1977) 1 SCC 511] wherein it was observed

that the omission of a single material fact would lead to

incomplete cause of action and that an election petition

without the material facts is not an election petition at all,

the Bench in Azhar Hussain case [1986 Supp SCC 315]

held that all the facts which are essential to clothe the

petition with complete cause of action must be pleaded and

omission of even a single material fact would amount to

disobedience of the mandate of Section 83(1)(a) of the Act

and an election petition can be and must be dismissed if it

suffers from any such vice.

21. We may now advert to the facts at hand to

examine whether the election petition suffered from the

vice of non-disclosure of material facts as stipulated in

Section 83(1)(a) of the Act. As already stated the case of

the election petitioner is confined to the alleged violation of

Section 100(1)(d)(iv). For the sake of ready reference, the

said provision is extracted below:

“100. Grounds for declaring election to be void.—

(1) Subject to the provisions of sub-section

(2) if the High Court is of opinion—

***

(d) that the result of the election, insofar as it concerns

a returned candidate, has been materially affected—

***

(iv) by any non-compliance with the provisions of

the Constitution or of this Act or of any rules or orders

made under this Act, the High Court shall declare the

election of the returned candidate to be void.”

It is plain that in order to get an election declared as void

under the said provision, the election petitioner must aver

that on account of non-compliance with the provisions of

the Constitution or of this Act or of any rules or orders

made under the Act, the result of the election, insofar as it

concerned

the

returned

candidate,

was

materially

affected.”

28. The legal position enunciated in afore-stated cases may

be summed up as under:—

i. Section 83(1)(a) of RP Act, 1951 mandates that an

Election petition shall contain a concise statement of

material facts on which the petitioner relies. If material

facts are not stated in an Election petition, the same is

liable to be dismissed on that ground alone, as the case

would be covered by Clause (a) of Rule 11 of Order 7 of

the Code.

ii. The material facts must be such facts as would afford

a basis for the allegations made in the petition and

would constitute the cause of action, that is every fact

which it would be necessary for the plaintiff/petitioner to

prove, if traversed in order to support his right to the

judgment of court. Omission of a single material fact

would lead to an incomplete cause of action and the

statement of plaint would become bad.

iii. Material facts mean the entire bundle of facts which

would constitute a complete cause of action. Material

facts would include positive statement of facts as also

positive averment of a negative fact, if necessary.

iv. In order to get an election declared as void under

Section 100(1)(d)(iv) of the RP Act, the Election

petitioner must aver that on account of non-compliance

with the provisions of the Constitution or of the Act or

any rules or orders made under the Act, the result of the

election, in so far as it concerned the returned

candidate, was materially affected.

v. The Election petition is a serious matter and it cannot

be treated lightly or in a fanciful manner nor is it given

to a person who uses it as a handle for vexatious

purpose.

vi. An Election petition can be summarily dismissed on

the omission of a single material fact leading to an

incomplete cause of action, or omission to contain a

concise statement of material facts on which the

petitioner relies for establishing a cause of action, in

exercise of the powers under Clause (a) of Rule 11 of

Order VII CPC read with the mandatory requirements

enjoined by Section 83 of the RP Act.

Conclusion:

29. In the light of the afore-stated legal position, let us see

whether the respondent/election petitioner had complied

with the requirements of Section 83(1)(a) of the RP Act, by

stating “material facts” in the Election petition, constituting

cause of action and the ground as contemplated in Section

100(1)(d)(iv) of the RP Act, for declaring the election of the

Appellant-returned candidate to be void. The bone of

contention raised by the learned counsel appearing for the

respondent-election

petitioner

that

the

Election

Commission of India had called for the information

prescribing the Form 26 in regard to status of filing of

income tax return of candidates and their family members

by exercising powers under Article 324 of the Constitution

of India and in that the petitioner had provided information

that her spouse was working as consultant at foreign

country and earning salary against the column No. 8, Serial

No. 9(b) and 9A(b), respectively under Part A of Form 26.

Besides, she had mentioned “No” to the query regarding

Income tax dues of her spouse, (mentioned as “Ethumilai”

in Tamil language). She had further stated that her spouse

had bank accounts in Singapore with deposit of dollars

against column No. 7 Serial No. (ii) of column in Part A of

Form 26 but had failed to disclose the status of filing

income tax return of her spouse in the foreign country. He

therefore submitted that these material facts which have

already been stated in the Election petition, were sufficient

to constitute cause of action for filing Election petition

under Section 100(1)(d)(iv) of the RP Act.

Mere bald and vague allegations without any basis would

not be sufficient compliance of the requirement of stating

material facts in the Election Petition. As well settled not

only positive statement of facts, even a positive statement

of negative fact is also required to be stated, as it would be

a material fact constituting a cause of action. The material

facts which are primary and basic facts have to be pleaded

by the Election petitioner in support of the case set up by

him to show his cause of action and omission of a single

material fact would lead to an incomplete cause of action,

entitling the returned candidate to pray for dismissal of

Election petition under Order VII Rule 11(a) CPC read with

Section 83(1)(a) of the RP Act.

32. It is also significant to note that an affidavit in Form 26

along with the nomination paper, is required to be

furnished by the candidate as per Rule 4A of the said Rules

read with Section 33 of the said Act. The Returning Officer

is empowered either on the objections made to any

nomination or on his own motion, to reject any nomination

on the grounds mentioned in Section 36(2), including on

the ground that there has been a failure to comply with any

of the provisions of Section 33 of the Act. However, at the

time of scrutiny of the nomination paper and the affidavit

in the Form 26 furnished by the Appellant-returned

candidate, neither any objection was raised, nor the

Returning Officer had found any lapse or non-compliance of

Section 33 or Rule 4A of the Rules. Assuming that the

election petitioner did not have the opportunity to see the

Form No. 26 filled in by the Appellant-returned candidate,

when she submitted the same to the Returning Officer, and

assuming that the Returning Officer had not properly

scrutinized the nomination paper of the appellant, and

assuming that the election petitioner had a right to

question the same by filing the Election petition under

Section 100(1)(d)(iv) of the said Act, then also there are

no material facts stated in the petition constituting cause of

action under Section 100(1)(d)(iv) of the RP Act. In

absence of material facts constituting cause of action for

filing Election petition under Section 100(1)(d)(iv) of the

said Act, the Election petition is required to be dismissed

under Order VII Rule 11(a) CPC read with Section 13(1)(a)

of the RP Act.

33. As elaborately discussed earlier, Section 83(1)(a) of RP

Act mandates that an Election petition shall contain a

concise statement of material facts on which petitioner

relies, and which facts constitute a cause of action. Such

facts would include positive statement of facts as also

positive averment of negative fact. Omission of a singular

fact would lead to incomplete cause of action. So far as the

present petition is concerned, there is no averment made

as to how there was non-compliance with provisions of

the Constitution or of RP Act or of the Rules or Order made

thereunder and as to how such non-compliance had

materially affected the result of the election, so as to

attract the ground under Section 100(1)(d)(iv) of the RP

Act, for declaring the election to be void. The omission to

state such vital and basic facts has rendered the petition

liable to be dismissed under Order VII, Rule 11(a) CPC read

with Section 83(i)(a) of the RP Act, 1951.

34. In that view of the matter, Election petition being no.

3/2019 filed by the respondent-election petitioner deserves

to be dismissed, and is accordingly dismissed.”

18. Reliance was also placed on following paragraphs in

case of Azhar Hussain v. Rajiv Gandhi, reported in 1986

Supp SCC 315:

“8. The argument is that inasmuch as Section 83(1) is not

adverted to in Section 86 in the context of the provisions,

non-compliance with which entails dismissal of the election

petition,

follows

that

non-compliance

with

the

requirements of Section 83(1), even though mandatory, do

not have lethal consequence of dismissal. Now it is not

disputed that the Code of Civil Procedure (CPC) applies to

the trial of an election petition by virtue of Section 87 of the

Act [87. Procedure before the High Court.—(1) Subject to

the provisions of this Act and of any rules made thereunder,

every election petition shall be tried by the High Court, as

nearly as may be, in accordance with the procedure

applicable under the Code of Civil Procedure, 1908 (5 of

1908) to the trial of suits: Provided that the High Court shall

have the discretion to refuse, for reasons to be recorded in

writing, to examine any witness or witnesses if it is of the

opinion that the evidence of such witness or witnesses is not

material for the decision of the petition or that the party

tendering such witness or witnesses is doing so on frivolous

grounds or with a view to delay the proceedings. (2) The

provisions of the Indian Evidence Act, 1872 (1 of 1872),

shall, subject to the provisions of this Act, be deemed to

apply in all respects to the trial of an election petition.] .

Since CPC is applicable, the court trying the election petition

can act in exercise of the powers of the Code including

Order 6 Rule 16 and Order 7 Rule 11(a) which read thus:

“Order 6, Rule 16: Striking out pleadings.—The court may at

any stage of the proceedings order to be struck out or

amend any matter in any pleading—

(a) which may be unnecessary, scandalous, frivolous or

vexatious; or

(b) which may tend to prejudice, embarrass or delay the fair

trial of the suit; or

(c) which is otherwise an abuse of the process of the court.

Order 7, Rule 11: Rejection of plaint.—The plaint shall be

rejected in the following cases:

(a) where it does not disclose a cause of action; ”

9. The fact that Section 83 does not find a place in Section

86 of the Act does not mean that powers under the CPC

cannot be exercised.

10. There is thus no substance in this point which is already

concluded against the appellant in Hardwari Lal v. Kanwal

Singh [(1972) 1 SCC 214 : AIR 1972 SC 515 : (1972) 2 SCR

742] wherein this Court has in terms negatived this very

plea in the context of the situation that material facts and

particulars relating to the corrupt practice alleged by the

election petitioner were not incorporated in the election

petition as will be evident from the following passage

extracted from the judgment of A.N. Ray, J. who spoke for

the three-judge Bench: (SCC p. 221, paras 22 and 23)

“The allegations in para 16 of the election petition do not

amount to any statement of material fact of corrupt

practice. It is not stated as to what kind or form of

assistance was obtained or procured or attempted to obtain

or procure. It is not stated from whom the particular type of

assistance was obtained or procured or attempted to obtain

or procure. It is not stated in what manner the assistance

was for the furtherance of the prospects of the election. The

gravamen of the charge of corrupt practice within the

meaning of Section 123(7) of the Act is obtaining or

procuring or abetting or attempting to obtain or procure any

assistance other than the giving of vote. In the absence of

any suggestion as to what that assistance was the election

petition is lacking in the most vital and essential material

fact to furnish a cause of action.

Counsel on behalf of the respondent submitted that an

election petition could not be dismissed by reason of want of

material facts because Section 86 of the Act conferred

power on the High Court to dismiss the election petition

which did not comply with the provisions of Section 81, or

Section 82 or Section 117 of the Act. It was emphasized

that Section 83 did not find place in Section 86. Under

Section 87 of the Act every election petition shall be tried by

the High Court as nearly as may be in accordance with the

procedure applicable under the Code of Civil Procedure,

1908 to the trial of the suits. A suit which does not furnish

cause of action can be dismissed.”

11. In view of this pronouncement there is no escape from

the conclusion that an election petition can be summarily

dismissed if it does not furnish cause of action in exercise of

the powers under the Code of Civil Procedure. So also it

emerges from the aforesaid decision that appropriate orders

in exercise of powers under the Code of Civil Procedure can

be passed if the mandatory requirements enjoined by

Section 83 of the Act to incorporate the material facts in the

election petition are not complied with. This Court in Samant

case [Samant N. Balkrishna v. George Fernandez(1969) 3

SCC 238] has expressed itself in no unclear terms that the

omission of a single material fact would lead to an

incomplete cause of action and that an election petition

without the material facts relating to a corrupt practice is

not an election petition at all. So also in Udhav Singh

case [Udhav Singh v. Madhav Rao Scindia(1977) 1 SCC

511] the law has been enunciated that all the primary facts

which must be proved by a party to establish a cause of

action or his defence are material facts. In the context of a

charge of corrupt practice it would mean that the basic facts

which constitute the ingredients of the particular corrupt

practice alleged by the petitioner must be specified in order

to succeed on the charge. Whether in an election petition a

particular fact is material or not and as such required to be

pleaded is dependent on the nature of the charge leveled

and the circumstances of the case. All the facts which are

essential to clothe the petition with complete cause of action

must be pleaded and failure to plead even a single material

fact would amount to disobedience of the mandate of

Section 83(1)(a). An election petition therefore can be and

must be dismissed if it suffers from any such vice. The first

ground of challenge must therefore fail.

Ground B

25. In this case also, no time, date and place of the

speeches delivered by the respondent have been mentioned.

No exact extracts from the speeches are quoted. Nor have

the material facts showing that such statements imputed to

the respondent were indeed made been stated. No

allegation is made to the effect that it was in order to

prejudice the election of any candidate. Or in order to

further the prospects of the election of the respondent. The

essential ingredients of the alleged corrupt practice have

thus not been spelled out. So far as the meeting is

concerned, the principle [“... The pleading was so vague

that it left a wide scope to the appellant to adduce evidence

in respect of a meeting at any place on any date that he

found convenient or for which he could procure witnesses.

The pleading, in fact, was so vague and was wanting in

essential particulars that no evidence should have been

permitted by the High Court on this point....”] laid down

in Nihal Singh case [(1970) 3 SCC 239] discussed in the

context of the charge contained in ground II(i) is attracted.

The

view

taken

the

High

Court

therefore

unexceptionable.

Ground II(iii)

26. The alleged corrupt practice as incorporated in ground II

(iii) reads as under:

“In line with the respondent's speeches, his workers with

the knowledge and consent of the respondent and other

agents of the respondent entrusted with the task of

conducting the election campaign caused a poster of Hindi

and Urdu to be affixed in all prominent places throughout

the constituency. The said poster was in fact a page of the

Blitz newspaper of 30-6-1984 called the Id Special. The Id

that year was on 1-7-1984. The heading of the said poster

which was underlined in red alleged conspiracy between the

leader

the

petitioner

party

and

Bhindaranwale.

Photographs of Mrs Maneka Gandhi and Bhindaranwale

appeared separately on left and right hand corners of the

said advertisement. A literal English translation of the poster

is given below: A copy of the said poster will be filed as Ex.

B. The poster also purported to carry a fascimile copy of a

letter dated 10-9-1983, purporting to be addressed by Shri

Kalpnath Sonkar, a member of the Rashtriya Sanjay Manch,

to Shri Bhindaranwale. The letter is a forgery and that it was

forged was publicly stated by alleged author of the alleged

letter and a criminal case is pending in the matter thereof.

The letter was fabricated expressly for the express purpose

of showing:

(a)

that

Mrs.Maneka

Gandhi

was

secret

conspiracy

with Bhindaranwale.

(b) that Mrs.Maneka Gandhi illegally supplied

arms to

Bhindaranwale

and

other

secessionists

and

terrorists.

(c) that Maneka Gandhi was in sympathy with

the

creation of Khalistan and the division of the

country

and the use of violence to achieve that

end.

The said allegations are totally false and fabricated. The

respondent knew them to be false. He did not and could not

believe them to be true. That complaints were made to the

District authorities about the obnoxious wall paintings and

posters to which the attention of the respondent had been

drawn. The said authorities while clearly admitting the RSM

election agents and worker as well as to the press

correspondents that they were objectionable took no steps

to remove or obliterate them. Prominent newspapers and

press correspondents continued to draw attention to those

slogans and posters but the respondent or his workers took

no step whatsoever to stop their exhibition, circulation and

use. The respondent condoned and sanctioned the exhibition

and circulation of this poster. He did nothing to stop the use

thereof by his workers. The wall painting mentioned above

and this poster were paid out of Congress (I) party's funds.

These were therefore, his own expenses sanctioned by

himself. Cutting of some of the newspaper reports will be

filed as Ex. C.”

Why the High Court held that material facts and particulars

are absent and did not disclose a cause of action?

35. The pleading therefore does not spell out the cause of

action. So also on account of the failure to mention the

material facts, the court could not have permitted the

election petitioner to adduce evidence on this point. It would

therefore attract the doctrine laid down in Nihal Singh

case [(1970) 3 SCC 239] and there would be nothing for the

respondent to answer.

Ground XV

36. Alleged corrupt practice as incorporated in ground XV

reads as under:

“That during the course of the campaign, the respondent,

his election agent and his party brought into existence a

propaganda committee to further the prospects of the

respondent's election. This committee was called the

‘Amethi Matdata Parishad’. Through the agency of this

committee, the respondent, his election agent and others

with their consent and knowledge caused another pamphlet

to be printed, published and circulated during the entire

election campaign under the title ‘How do Intelligent people

think? Who is an obstacle in the progress of Amethi’. The

said pamphlet inter alia, contains the following statements:

‘That Maneka Gandhi is surrounded only by anti-social

elements. She was also seen in the company of terrorists.

Her whole campaign is based on money.... In my view,

Maneka seems to have a big hand in the fire of Punjab.

Maneka has no merit of her own. If she had anything in her,

it would have come out before her marriage to Sanjay If

she had any desire for leadership or service of the country,

she would have cooperated with her husband. Politics is for

her a pursuit of pleasure (“shaukiya dhandha”). Therefore,

she is conducting her politics on the strength of people like

Haji Mastan and Virendra Shahi.... A woman who could not

protect the honour of a vast country like India Maneka is

the destroyer of the country.’

The petitioner says that the entire trend of this pamphlet

and the propaganda conducted on the basis thereof casts

serious aspersions on the personal character of a candidate.

Each of these statements is false to the knowledge of the

respondent and others. The printing, publication and

circulation of the said pamphlet and the propaganda based

thereon was, in any event, done by the agents of the

respondent and in the interests of the election of the

respondent. These statements are in relation to the personal

character or conduct of a candidate and they are in relation

to her candidature. These statements were reasonably

calculated to prejudice the prospects of the petitioner's

election. The election of the respondent is thus liable to be

declared void under Section 100(1)(b). This was also liable

to be set aside under Section 100(1)(d)(ii), inasmuch as,

the result of the election insofar as it concerned the

returned candidate, has been materially affected by this

gross corrupt practice.

In this pamphlet, the same Jagdish Piyush who is referred to

in the pamphlet in the preceding paragraphs, is one of the

contributors and in that contribution, he has referred to his

publication mentioned in the previous paragraphs.”

Why the High Court held that material facts and particulars

are absent and did not disclose a cause of action?

37. The High Court observed:

“The petitioner has set out specific statements from this

pamphlet commenting adversely on the character and

conduct of Smt.Maneka Gandhi where, inter alia, her

association with terrorists and other persons of questionable

antecedents was set out. It has been stated that these

statements are false to the knowledge of the respondent

and others and the pamphlet was distributed by the agents

of the respondent in the interests of the election of the

respondent and that the result, so far as the respondent is

concerned, has been materially affected by the corrupt

practice. Here also, the petitioner has made an omnibus

statement of the printing, publication and circulation of the

pamphlet by the respondent, his election agent and others

with their consent and knowledge without trying to pinpoint

the particular person who had done so. The places, dates

where the pamphlets were distributed have also not been

indicated. It was necessary for the petitioner to do under

the law as set out above. The pleading is therefore, vague,

embarrassing and lacks in material facts and, therefore,

must fail. The petitioner's prayer for an amendment to

delete the proposal to file a copy of the pamphlet is allowed

as it is evidence and not integral part of the petition.”

Whether the High Court was right in taking the aforesaid

view?

38. In view of the doctrine laid down in Nihal Singh

case [(1970) 3 SCC 239] as early as in 1970, the High Court

was perfectly justified in taking the view that no cause of

action was made out. For, in the absence of material

particulars as to who had printed, published or circulated

the pamphlet, when, where and how it was circulated and

which facts went to indicate the respondent's consent to

such distribution, the pleading would not disclose a cause of

action. There would be nothing for the respondent to answer

and the matter would fall within the doctrine laid down

in Nihal Singh case [(1970) 3 SCC 239]. The learned

counsel for the appellant is unable to show how the court

has committed any error in reaching this conclusion.”

19.

On other hand, learned counsel

for

petitioners

sought to oppose application. It was submitted that application

was misconceived and filed with intention to dilate proceedings.

20.

It was submitted Part VI of

ROPA

dealt

with

disputes regarding elections. Section 79 provided definitions,

while Section 80 provided that no election could be called in

question except by an election petition presented as provided in

Part VI.

21.

Section 80A provided that only High Court would

have jurisdiction to try election petition which

could

presented as per Section 81 on any grounds set out in Section

100 and 101 of ROPA by any candidate at such election, or any

elector within 45 days of declaration of results of such election.

Sub-section (3) required election petition to be filed with as

many copies as respondents and each copy to be attested by

petitioner. It was submitted that Section 82 prescribed parties

to petition, while Section 83 its contents and Section 84 relief

that could be claimed. Further Section 86 stipulated procedure

for trial of election petitions. It was further submitted that as

per Section 87 (1), provisions of CPC would as far as possible

apply to election petitions subject to Election Petition Rules that

may be framed. It was submitted that Section 100 stipulated

limited grounds on which elections could be declared void. It

was submitted Section 100 (1) (b) mandated establishment of

commission of corrupt practice by returned candidate or with

consent of returned candidate or his election agent.

22.

It was further submitted as per Section 100 (1) (d)

(ii), election could be declared void even where it were

established that result of election was materially affected by

any corrupt practice committed

interest

returned

candidate by an agent other than his election agent. Attention

was also drawn to definition of corrupt practices under Section

123 of ROPA. It was submitted, specific corrupt practice alleged

in present petition was under Section 123 (1) (A) (b) (ii)

namely bribery of electors to vote for returned candidate at

election.

23.

It was submitted, there was no dispute

about

election petition suffering from technical

defects

regarding

proper Court, proper parties and reliefs

sought.

was

submitted that in paragraph no.3, petitioner had averred about

conduct of elections and declaration of results

wherein

respondent was declared elected.

was

submitted

paragraph no.6, petitioners had provided details of they being

electors by references to voters list of constituency, paragraph

no.7 about respondent being returned candidate. It was

submitted that in paragraph no.8 details of corrupt practice

being committed as per instructions of respondent were stated.

It was submitted that there was

specific

assertion

about

meeting

being

convened

respondent

06.05.2023,

07.05.2023 and 09.05.2023 at Block Congress Committee

Office. It was also specifically averred that respondent was

personally present in said meeting. In subsequent paragraph

no.14, details with sufficient particulars of guarantee cards

being distributed as inducement to vote in favour of returned

candidate, registration of FIR against respondent for offence of

commission of corrupt practice under Section 123 (1) A, B and

Section 127A of ROPA were stated.

24.

Insofar as requirement of affidavit in Form no.25, it

was submitted that affidavit filed

would

sufficiently

compliant. It was submitted that form of affidavit was not

material and even if affidavit were to be defective, same was

curable and not fatal. Therefore, application filed for rejection

of election petition on ground of failure to comply with Rule 94A

of Rules would be liable for rejection.

25.

It was further contended that respondent

had

entered appearance and filed written statement on 09.10.2023,

but no specific contention about petition being defective for

want of material etc have been urged.

26.

In response to contention of applicant, it was

submitted that production of all documents based on which

petitioners were seeking for avoiding election of respondent at

time of filing petition was not mandatory. Since it was matter of

evidence, same could be produced during trial.

27.

Insofar as objections about failure to

disclose

whether petitioners had personal knowledge about commission

of corrupt practice by returned candidate or that they believed

them to be true from information received from someone else,

which they believed to be true, it

was

contended

that

petitioners

were

electors

Ramanagara

Assembly

Constituency and had stated their credentials in paragraph no.6

of petition. They had also stated they had full knowledge,

details of same would be revealed during trial and not at stage

of consideration of application under Order VII Rule 11.

28.

Insofar as requirement of material facts with full

particulars, it was submitted that same were duly stated in

paragraph no.8 of petition with particulars of date, time and

place of holding of meeting, persons who handed over gift

cards to petitioners and manner of commission of

corrupt

practice by returned candidate. It

was

submitted

that

petitioners had also stated about press conference held by

returned candidate on 22.05.2023, at 4:30 PM in Congress

Office, Ijoor, Ramanagara, wherein he admitted to have issued

gift cards to voters as reward for voting in his favour. Even said

assertion was with full particulars including time, date and

place of holding such press conference and also manner in

which they had obtained copy of unedited video of press

conference. In fact, petitioners had made transcript of entire

press conference, part of petition.

29.

It was further submitted that in paragraph no.14 of

petition, petitioner had stated about registration of FIR in Crime

no.39/2023, on 10.05.2023 against returned candidate, for

offences punishable under Sections 123 (1) (A) and (B) and

127A of ROPA, on compliant of Mr.Rangaraju, Member of Flying

Squad Team that one Pradeep, MCC Nodal Officer received

complaint that gift cards were distributed on 10.05.2023 to

induce voters to vote in favour of returned candidate and

during inspection at polling stations no.108, 117 and 118, he

found a woman carrying ‘gift card’ displaying photo, name and

symbol of political party of returned candidate.

30.

was

submitted

that

based

above

facts/allegations, petitioners had sought for

setting

aside

election of returned candidate. Therefore, on perusal of entire

election petition, it could be seen to disclose clear and complete

cause of action against returned candidate. Hence, application

filed was liable to be dismissed.

31.

It was also contended that it was not case

returned candidate that petitioners had not

complied

with

Section 81 of ROPA, but allegation was mainly about non-

conformity with Section 83 of ROPA. Likewise, contents of

affidavit filed in support of present application would reveal

only allegation of failure to provide ‘full material particulars’

and not ‘material facts’, which is held not valid ground for

rejection of petition at threshold.

32.

It was lastly contended that

contention

petition being defective for want of full particulars of material

facts was even urged. Hence, application was wholly untenable

and liable for rejection.

33.

Reference was made to following observations of

Hon’ble Supreme Court in case of Thangjam Arunkumar v.

Yumkham Erabot Singh, reported in 2023 SCC OnLine SC

1058:

“This appeal arises out of the decision of the High Court

of Manipur dated 11.04.2023, whereby the returned

candidate's application under Order 7 Rule 11 of the Civil

Procedure Code, 1908, to dismiss the election petition

filed by the unsuccessful candidate on the ground that it

lacks material particulars and is in violation of mandatory

requirements of law was rejected by the High Court. The

returned candidate is the Appellant before us.

Facts:

2. The

short

and

precise

facts

necessary

for

our

consideration are as follows. The Appellant is the returned

candidate to the XII Manipur Legislative Assembly, having

been

elected

from

the

15-Wangkhei

Assembly

Constituency. The Respondent No.1, the unsuccessful

candidate moved Election Petition no.24 of 2022 alleging

violations under Sections 80, 80A, 81, 84 read with

Sections 100(1)(d)(iv) and 101 of the Representation of

People Act, 1951. The election petitioner prayed that the

election of the Appellant be held void and also to declare

him to be the elected candidate. It is important to note

that the election petition alleges corrupt practice, in as

much as the petitioner pleaded that the returned

candidate has not provided the material particulars with

respect to a financial transaction relating to financing a

loan.

In response to the election petition, the Appellant

moved two applications under Order 7 Rule 11 read with

Section 151 of the CPC and under Section 86 of the Act

seeking dismissal of the election petition on the grounds of

–

(i) non-disclosure of cause of action/triable issue vis-

à-vis the alleged corrupt practice committed by the

Appellant;

(ii) the absence of a concise statement of facts as

mandated under Section 83 of the Act; and

(iii) for not serving a true self attested copy of the

election petition on the returned candidate as provided

under Section 81 of the Act. Apart from the above, and

more importantly, the Appellant also sought dismissal of

the election petition on the ground that the Form-25

affidavit as prescribed under Section 83 of the Act r/w

Rule 94A of the Conduct of Election Rules, 1961 has not

been filed along-with the election petition. It was alleged

that such an affidavit is mandatory, as the election

petition raises allegations of corrupt practice.

4. The High Court, by the order impugned, dismissed the

applications under Order 7 Rule 11 of the CPC. The High

Court observed that - (i) the election petitioner had

elaborately pleaded all the material facts and set forth full

particulars of all the actions and omissions of the

Appellant, sufficient to constitute a case of corrupt

practice. The High Court, therefore, concluded that there

is a cause of action and triable issues; (ii) the High Court

also concluded that the alleged non-compliance of Section

81(3) of the Act is incorrect as the election petitioner had

effectively attested the election petition. For this purpose,

High Court relied on the decisions of this Court in Ch.

Subbarao v. Member, Election Tribunal, Hyderabad, and

also

decision

the

same

Court

Pukhrem

Sharatchandra Singh v. Mairembam Prithviraj @ Prithibiraj

Singh, later came to be upheld by this Court

in Mairembam Prithviraj @ Prithviraj Singh v. Pukhrem

Sharatchandra Singh. The High Court observed that

although the election petitioner attested the election

petition as “true copy of the original” and not as “true

copy of the petition”, the same is in compliance with

Section 81(3) of the Act.

5. The submission that in all cases involving allegations of

corrupt practices, the election petitioner must mandatorily

file an affidavit under Section 83(1) of the Act was

rejected without much discussion. The High Court simply

following the decision of this Court in Lok Prahari through

its General Secretary v. Union of India, rejected the plea.

Submissions:

6. Mr.Devadatt Kamat, learned senior counsel appearing

for the Appellant initially argued the first two grounds,

namely that there is a non-disclosure of the cause of

action and also that there is a complete non-compliance of

the requirement under Section 81(3) of the Act with

respect to the attestation of the election petition.

However, as we expressed our disinclination to interfere

on those grounds, he took up the alternative point and

emphatically argued that the judgment of the High Court

is unsustainable as the election petition completely

violated the ‘mandatory’ requirement of 83(1)(c) of the

Act. He argued that the election petition must fail for not

filing the additional affidavit in support of the allegation of

corrupt practice. He elaborated this point by taking us

through the Section, and in particular, the proviso which

requires that in cases of corrupt practice, “the petition

shall also be accompanied by an affidavit”.

7. On the specific submission of Mr.Devadatt Kamat as to

how the election petition alleging corrupt practice must fail

for not filling the additional affidavit, Mr.Shadan Farasat,

learned counsel for the election petitioner submitted that

no such additional affidavit is filed. Mr.Farasat, however,

strengthened his case in the written submission by

referring to the decisions of this Court in G.M.

Siddeshwar v. Prasanna Kumar, and A. Manju v. Prajwal

Revanna, where it was held that non-filing of a Form-25

affidavit is a curable defect.

Issue for consideration:

8. The only issue for consideration is whether the election

petition is liable to be dismissed by allowing the Order 7

Rule 11 application for non-compliance of Section 83(1)(c)

of the Act.

Analysis:

9. We may at the outset state that there is absolutely no

consideration of this issue by the High Court. Neither the

implications of Section 83(1)(c) of the Act, nor the

interpretation

its

proviso

were

taken

for

consideration by the High Court. Further, surprisingly, the

High Court simply referred to the decision of this Court

in Lok Prahari (supra) and rejected the submission. Lok

Prahari (supra) has no bearing on the issue.

10. We would refer to the statutory provisions and the

judgments on the point for answering the question of law

raised by the Appellant. We will first refer to Sections 83

and 86 of the Act and Order 6 Rule 15 of the CPC.

83. Contents of petition — (1) An election petition—

(a) shall contain a concise statement of the material

facts on which the petitioner relies;

(b) shall 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; and

(c) shall be signed by the petitioner and verified in the

manner laid down in the Civil Procedure Code, 1908 (5 of

1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt

practice, the petition shall also be accompanied by an

affidavit in the prescribed form in support of the allegation

of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also

be signed by the petitioner and verified in the same

manner as the petition.

86. Trial of election petitions — (1) The High Court shall

dismiss an election petition which does not comply with the

provisions of Section 81 or Section 82 or Section 117.

Order 6 Rule 15: Verification of pleadings — (1) Save as

otherwise provided by any law for the time being in force,

every pleading shall be verified at the foot by the party or

by one of the parties pleading or by some other person

proved to the satisfaction of the court to be acquainted with

the facts of the case.

(2) The person verifying shall specify, by reference to

the numbered paragraphs of the pleading, what he verifies

of his own knowledge and what he verifies upon information

received and believed to be true.

(3) The verification shall be signed by the person

making it and shall state the date on which and the place at

which it was signed.

(4) The person verifying the pleading shall also

furnish an affidavit in support of his pleadings.”

11. The first decision on this issue is by a Constitution Bench

in T.M. Jacob v. C. Poulose. In the said case, the returned

candidate was defending an election petition filed against

him on the ground of non-compliance with the requirements

under Section 81(3) of the Act. This Court, after going

through the difference in the legislative intent of Sections 81

and 83 of the Act, observed that non-compliance with the

requirements of the former provides for an automatic

dismissal of an election petition under Section 86 of the Act,

and non-compliance with the latter is a curable defect and

would not merit dismissal at the threshold. In this light, this

Court observed that:

“38. … to our mind, the legislative intent appears to be quite

clear, since it divides violations into two classes — those

violations which would entail dismissal of the election

petition under Section 86(1) of the Act like non-compliance

with Section 81(3) and those violations which attract

Section 83(1) of the Act, i.e., non-compliance with the

provisions of Section 83. It is only the violation of Section

81 of the Act which can attract the application of the

doctrine of substantial compliance as expounded in Murarka

Radhey Shyam, (1964) 3 SCR 573 and Ch.

Subbarao, (1964) 6 SCR 213 cases. The defect of the type

provided in Section 83 of the Act, on the other hand, can be

dealt with under the doctrine of curability, on the principles

contained in the Code of Civil Procedure.”

12. In Siddeshwar (supra), the matter came up before a

three-judge bench of this Court by way of a reference. When

the matter was placed before a two-judge bench, it was

contended, relying upon P.A. Mohammed Riyas v. M.K.

Raghavan, that an election petitioner has to file the Form-25

affidavit in support of the corrupt practice allegation, in

addition to the usual verifying affidavit which forms an

integral part of the election petition. On the other hand, the

two-judge bench was also appraised of judgments to the

contrary which held that not filing of the affidavit is a

curable defect. In order to give quietus to the issue, the

matter was referred to a bench of three judges. After relying

on various precedents, the three Judge Bench

in Siddeshwar observed as under:

“1.

The

principal

question

law

raised

for

our

consideration is whether, to maintain an election petition, it

is imperative for an election petitioner to file an affidavit in

terms of Order 6 Rule 15(4) of the Civil Procedure Code,

1908 in support of the averments made in the election

petition in addition to an affidavit (in a case where resort to

corrupt practices have been alleged against the returned

candidate) as required by the proviso to Section 83(1) of

the Representation of the People Act, 1951. In our opinion,

there is no such mandate in the Representation of the

People Act, 1951 and a reading of P.A. Mohammed Riyas v.

M.K. Raghavan, (2012) 5 SCC 511, which suggests to the

contrary, does not lay down correct law to this limited

extent.

2. Another question that has arisen is that if an affidavit

filed in support of the allegations of corrupt practices of a

returned candidate is not in the statutory Form 25

prescribed by the Conduct of Elections Rules, 1961, whether

the election petition is liable to be summarily dismissed. In

our opinion, as long as there is substantial compliance with

the statutory form, there is no reason to summarily dismiss

an election petition on this ground. However, an opportunity

must be given to the election petitioner to cure the defect.

Further, merely because the affidavit may be defective, it

cannot be said that the petition filed is not an election

petition as understood by the Representation of the People

Act, 1951.

22. A plain reading of Rule 15 suggests that a verification of

the plaint is necessary. In addition to the verification, the

person verifying the plaint is “also” required to file an

affidavit in support of the pleadings. Does this mean, as

suggested by the learned counsel for Siddeshwar that

Prasanna Kumar was obliged to file two affidavits—one in

support of the allegations of corrupt practices and the other

in support of the pleadings?

23. A reading of Section 83(1)(c) of the Act makes it clear

that what is required of an election petitioner is only that

the verification should be carried out in the manner

prescribed in CPC. That Order 6 Rule 15 requires an affidavit

“also” to be filed does not mean that the verification of a

plaint is incomplete if an affidavit is not filed. The affidavit,

in this context, is a stand-alone document.

25. It seems to us that a plain and simple reading of Section

83(1)(c) of the Act clearly indicates that the requirement of

an additional affidavit is not to be found therein. While the

requirement of “also” filing an affidavit in support of the

pleadings filed under CPC may be mandatory in terms of

Order 6 Rule 15(4) CPC, the affidavit is not a part of the

verification of the pleadings—both are quite different. While

the Act does require a verification of the pleadings, the plain

language of Section 83(1)(c) of the Act does not require an

affidavit in support of the pleadings in an election petition.

We are being asked to read a requirement that does not

exist in Section 83(1)(c) of the Act.

37. A perusal of the affidavit furnished by Prasanna Kumar

ex facie indicates that it was not in absolute compliance with

the format affidavit. However, we endorse the view of the

High Court that on a perusal of the affidavit, undoubtedly

there was substantial compliance with the prescribed

format. It is correct that the verification was also defective,

but the defect is curable and cannot be held fatal to the

maintainability of the election petition.

38. Recently, in Ponnala Lakshmaiah v. Kommuri Pratap

Reddy, (2012) 7 SCC 788 the issue of a failure to file an

affidavit in accordance with the prescribed format came up

for consideration. This is what this Court had to say:

“28. … The format of the affidavit is at any rate not a

matter of substance. What is important and at the heart

of the requirement is whether the election petitioner has

made averments which are testified by him on oath, no

matter in a form other than the one that is stipulated in

the Rules. The absence of an affidavit or an affidavit in a

form other than the one stipulated by the Rules does not

by itself cause any prejudice to the successful candidate

so long as the deficiency is cured by the election

petitioner by filing a proper affidavit when directed to do

so.”

We have no reason to take a different view. The contention

urged by Siddeshwar is rejected.”

(emphasis supplied)

13. More recently, in A. Manju v/s Prajwal Revanna (supra),

this Court dealt with the same question as to whether an

election petition containing an allegation of corrupt practice

but not supported by an affidavit in Form 25, is liable to be

dismissed at the threshold. This Court had observed:

“26. However, we are not persuaded to agree with the

conclusion arrived at by the High Court that the non-

submission of Form 25 would lead to the dismissal of the

election petition. We say so because, in our view, the

observations made in Ponnala Lakshmaiah v. Kommuri

Pratap Reddy, (2012) 7 SCC 788 which have received the

imprimatur of the three-Judge Bench in G.M.

Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776,

appear not to have been appreciated in the correct

perspective. In fact, G.M. Siddeshwar v. Prasanna

Kumar, (2013) 4 SCC 776, has been cited by the learned

Judge to dismiss the petition. If we look at the election

petition, the prayer clause is followed by a verification.

There is also a verifying affidavit in support of the election

petition. Thus, factually it would not be appropriate to say

that there is no affidavit in support of the petition, albeit

not in Form 25. This was a curable defect and the learned

Judge trying the election petition ought to have granted

an opportunity to the appellant to file an affidavit in

support of the petition in Form 25 in addition to the

already existing affidavit filed with the election petition.

In fact, a consideration of both the judgments of the

Supreme Court referred to by the learned Judge

i.e. Ponnala

Lakshmaiah v. Kommuri

Pratap

Reddy, (2012) 7 SCC 788 as well as G.M.

Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776, ought

to have resulted in a conclusion that the correct ratio in

view of these facts was to permit the appellant to cure

this defect by filing an affidavit in the prescribed form.”

(emphasis supplied)

14. The position of law that emerges for the above referred

cases is clear. The requirement to file an affidavit under the

proviso to Section 83(1)(c) is not mandatory. It is sufficient

if there is substantial compliance. As the defect is curable,

an opportunity may be granted to file the necessary

affidavit.

15. In the instant case, the election petition contained on

affidavit and also a verification. In this very affidavit, the

election petitioner has sworn on oath that the paragraphs

where he has raised allegations of corrupt practice are true

to the best of his knowledge. Though there is no separate

and an independent affidavit with respect to the allegations

of corrupt practice, there is substantial compliance of the

requirements under Section 83(1)(c) of the Act.”

34.

Following paragraphs in Bhim Rao Baswanth Rao

Patil v. K. Madan Mohan Rao, reported in 2023 SCC OnLine

SC 871 were also referred to:

“The present appeal by special leave questions a judgment

and order of the Telangana High Court dismissing an

application which sought rejection of the respondent's

election petition. The appellant had contended that the

election petition (hereafter “the petition”) did not disclose

any cause of action and was barred in law and was liable

to be rejected.

2. In the present case, the High Court noticed the

contentions of the parties as well as the pleadings and was

of the opinion that having regard to the terms of Order VII

Rule 11 CPC, only the averments in the petition and the

accompanying documents could be considered and not

any other materials brought on record during the course

of the proceedings. The Court was of the opinion that

taking in the overall conspectus of the facts available on

the record did not lead to a compelling reason for

rejecting the election petition. Accordingly, the appellant's

application was dismissed, and the contentions were kept

open to be agitated during the trial.

The appellant's main contention was that though the

appellant had urged several grounds with respect to its

explanation for the alleged non-compliance of what were

termed

the

election

petitioner

mandatory

requirements, it was also alleged that Section 81(3) had

not been complied with. However, during the hearing, the

arguments on behalf of the appellant, by Mr. C.S.

Sundaram, Senior Advocate, were confined to submissions

to the aspect regarding non-disclosure of criminal cases.

The first related to a criminal case pending before the

CJM, Garhwa bearing CR 96P; case No. CF 97/13 dated

20.03.2013 in Form 26, i.e., the election affidavit. The

second case was with respect to non-disclosure in Form 26

of conviction. It was alleged that the cases referred to in

the election petition, i.e., Labour Enforcement

Officer v. Patil Construction represented by (1) Mr. B.B.

Patil (partner) and (2) Mr. M.B. Patil (partner) (Case No.

20/12), this case pertained to non-payment of minimum

wages to workers under the Payment of Wages Act, 1936

and Payment of Wages (Mines) Rules, 1956. The appellant

was convicted on 30.07.2013; the second case pertained

to State through Labour Enforcement Officer v. Patil

Construction represented by B.B. Patil and M.B.

Patil before Sub Divisional Judicial Magistrate registered

under Section 22A of the Minimum Wages Act, 1948 for

non-maintenance of records of workers/employers. The

appellant was convicted on 05.09.2017.

It was argued by Mr. Sundaram that the reference to

the pending case before the CJM Garhwa District, in the

documents filed along with the election petition, was an

abuse of process and a clear case of interpolation. Learned

counsel

pointed

out

that

this

aspect

has

been

acknowledged by the main judgment in para 27, whereby

after considering the certified copy relating to that case,

the court observed that there appeared to be some

interpolation. Learned counsel reiterated the submissions

and referred to certified copies which were placed on

record. He also referred to the original of the complaint

which was summoned by this court during the present

proceedings. It was further stated that the conclusion of

the High Court with respect to the non-disclosure of two

cases in respect of the Payment of Wages Act and

Minimum Wages requiring them to be gone into during the

trial is in error. Learned counsel contended that even upon

conviction, the minimum threshold indicated in Section

33A of the Act is not satisfied because, in either way, the

maximum sanction is a penalty.

Dr.A.M. Singhvi, learned senior counsel for the

election petitioner, urged that the impugned order

correctly appreciated the law relating to Order VII Rule 11

and

dismissed

the

appellant's

application.

Counsel

reiterated that the suppression of the truth with respect to

criminal cases, i.e., non-disclosure of cases where the

petitioner was convicted and of pending cases, in Form-26

affidavit were in relation to the following:

a) Pending cases: The appellant did not disclose

the criminal case pending before the Chief

Judicial Magistrate Garhwa relating to Forest

Department cases.

b) Regarding cases in which the appellant was

convicted (in section 6 of Form-26), there was a

deliberate attempt to suppress the truth; the

appellant had written “not applicable” when there

were two cases in which he was convicted: firstly

case No. 20/2012 Labour Case relating to

Payment of Wages and Minimum Wages Act, and

secondly, Case No 1/2013, another case relating

to Payment of Wages and Minimum Wages Act.

10. It was submitted that going into the merits of

whether those cases actually existed, and related to the

provisions of the Act, would amount to a mini-trial which

is plainly impermissible while considering an application

seeking rejection of the petition. It was submitted that the

law on the subject is well settled. Counsel stated that the

judgments of this court, such as Saleem Bhai v. State of

Maharashtra and Mayar (H.K.) Limited v. Owners and

Parties, Vessel M.V. Fortune Express had, in no uncertain

terms, ruled that while considering an application under

Order VII Rule 11, CPC, only the averments in the

pleadings

(i.e.,

the

suit

petition)

and

the

accompanying documents can be looked into. Therefore,

reference to and reliance on any document which was not

part of the petition, but produced as a part of the

respondent/defendant's plea, cannot be considered.

26. It is a salutary position in law that there cannot be a

partial rejection of the plaint (or petition, as in this case)

in exercise of power under Order VII Rule 11, CPC. This

court had stated this principle, in Sejal Glass

Ltd. v. Navilan Merchants Pvt. Ltd. in the following

manner:

“This cannot elevate itself into a Rule of law, that

once a part of a plaint cannot proceed, the other

part also cannot proceed, and the plaint as a

whole must be rejected Under Order VII Rule 11.

In all such cases, if the plaint survives against

certain Defendants and/or properties, Order VII

Rule 11 will have no application at all, and the

suit as a whole must then proceed to trial.”

27. This

principle

was

stated

clearly,

Ramachandran v. R.V. Jankiraman which, in relation to an

election petition, explained the position as follows:

“The election petition as such does disclose a

cause of action which if unrebutted could void the

election and the provisions of Order 7 Rule

11(a) CPC cannot therefore be invoked in this

case. There is no merit in the contention that

some of the allegations are bereft of material

facts and as such do not disclose a cause of

action. It is elementary that under Order 7 Rule

11(a) CPC, the Court cannot dissect the pleading

into several parts and consider whether each one

of them discloses a cause of action. Under the

Rule, there cannot be a partial rejection of the

plaint or petition.”

28. There is some authority for the proposition that the

court's power under Order XII Rule 6, CPC, is not only

discretionary but requires exercise of caution and that

unless an admission is unambiguous, enabling the court to

draw a decree, the power would not be exercised. Thus,

in Himani Alloys Ltd. v. Tata Steel Ltd., this court held

that:

“It is true that a judgment can be given on an

“admission” contained in the minutes of a

meeting. But the admission should be categorical.

It should be a conscious and deliberate act of the

party making it, showing an intention to be bound

by it. Order 12 Rule 6 being an enabling

provision, it is neither mandatory nor peremptory

but discretionary. The court, on examination of

the facts and circumstances, has to exercise its

judicial discretion, keeping in mind that a

judgment on admission is a judgment without

trial which permanently denies any remedy to the

Defendant, by way of an appeal on merits.

Therefore

unless

the

admission

clear,

unambiguous and unconditional, the discretion of

the Court should not be exercised to deny the

valuable right of a Defendant to contest the

claim. In short the discretion should be used only

when there is a clear ‘admission’ which can be

acted upon. (See also Uttam Singh Duggal and

Co. Ltd. v. United Bank of India 2000 Supp (2)

SCR 187; Karam Kapahi v. Lal Chand Public

Charitable Trust (2010) 4 SCR 422 and Jeevan

Diesels and Electricals Ltd. v. Jasbir Singh

Chadha (2010) 6 SCC 601”

29. A plain look at the election petition reveals that apart

from allegations pertaining to non-disclosure of criminal

cases pending against the appellant, or cases where he

was convicted, other averments and allegations have been

made

regarding

non-compliance

with

stipulations

regarding information dissemination and the manner of

dissemination through publication in newspapers, the font

size, the concerned newspapers’ reach amongst the

populace, etc. The alleged non-compliance with statutory

and Election Commission mandated regulations, and their

legal effect, cannot be examined in what are essentially

summary proceedings under Order VII Rule 11, CPC, or

even under Order XII Rule 6, CPC. Even if the allegations

regarding non-disclosure of cases where the appellant has

been arrayed as an accused, are ultimately true, the effect

of such allegations (in the context of provisions of law and

the non-disclosure of all other particulars mandated by the

Election Symbols orders) has to be considered after a full

trial. The admission of certain facts (and not all) by the

election petitioner cannot be sufficient for the court to

reject the petition, wholly. Even in respect of the

undeniable nature of the judicial record, the effect of its

content, is wholly inadequate to draw a decree in part.

This court has also ruled that the truth or otherwise of

anything is ordinarily a matter of evidence, in a full-blown

trial, in Virender Nath Gautam v. Satpal Singh:

“52. The High Court, in our considered opinion, stepped

into

prohibited

area

considering

correctness

allegations and evidence in support of averments by

entering into the merits of the case which would be

permissible only at the stage of trial of the election

petition and not at the stage of consideration whether the

election petition was maintainable and dismissed the

petition. The said action, therefore, cannot be upheld and

the order deserves to be set aside.”

35.

And on following paragraphs in case of A. Manju v.

Prajwal Revanna, reported in (2022) 3 SCC 269:

“Facts:

1. The moot point for consideration in the present appeal

is whether an election petition can be thrown out at the

threshold on a plea of the respondent/elected candidate

that the petition is not supported by an affidavit in Form

25, as prescribed under Rule 94-A of the Conduct of

Election Rules, 1961, even though the petition is based on

allegations of corrupt practices.

Conclusion:

22. We must begin at the inception by stating that

intrinsically, election law is technical in nature. In the

present

matter,

election

conducted

under

independent body like the Election Commission is sought

to be assailed, where the mandate of the public has gone

in a particular way. The allegations must strictly fall within

the parameters of the manner in which such a mandate

can be overturned. The primary plea taken by the

appellant is largely that success in the elections was

obtained by concealment of material, which would have

been germane in determining the opinion of the

electorate. In effect, were such material to be available

with the electorate, they would have exercised another

option on the basis of it. However, while the requirements

to be met in the election petition may be technical in

nature, they are not hypertechnical, as observed

in Ponnala Lakshmaiah case [Ponnala Lakshmaiah v.

Kommuri Pratap Reddy, (2012) 7 SCC 788]. We have

considered

the

aforesaid

aspect

quoting

the

observations made therein which have received the

imprimatur of a larger Bench.

23. In the conspectus of the aforesaid, if we examine the

facts of the present case, the hypertechnical view sought

to be taken of non-signing and verification of the index

and the synopsis has been rightly rejected by the High

Court.

24. Thus, the real and core question before us is that in

view of the allegations of the alleged non-disclosure of

assets in Form 26 by Respondent 1 being cited as “corrupt

practice”, would it be mandatory for the election petitioner

to file an affidavit in Form 25 and what would be the

consequences of not filing such an affidavit.

25. We may take note of the Constitution Bench judgment

of this Court in Murarka Radhey Shyam Ram

Kumar v. Roop Singh Rathore [Murarka Radhey Shyam

Ram Kumar v. Roop Singh Rathore, (1964) 3 SCR 573:

AIR 1964 SC 1545] which opined that the defect in

verification of an affidavit cannot be a sufficient ground for

dismissal of the petitioner's petition summarily and such

an affidavit can be permitted to be filed later. This

Constitution Bench judgment was also referred to in G.M.

Siddeshwar case [G.M. Siddeshwar v. Prasanna Kumar,

(2013) 4 SCC 776: (2013) 2 SCC (Civ) 715] to come to a

conclusion that non-compliance with the proviso to

Section 83(1) of the RP Act was not fatal to the

maintainability of an election petition and the defect could

be remedied i.e. even in the absence of compliance, the

petition would still be called an election petition. We

cannot say that the High Court fell into an error while

considering the election petition as a whole to come to the

conclusion that the allegations of the appellant were not

confined only to Section 33-A of the RP Act, but were

larger in ambit as undue influence and improper

acceptance of nomination of Respondent 1 were also

pleaded as violation of the mandate under Sections 123

and 100 of the RP Act.

26. However, we are not persuaded to agree with the

conclusion arrived at by the High Court that the non-

submission of Form 25 would lead to the dismissal of the

election petition. We say so because, in our view, the

observations made in Ponnala Lakshmaiah case [Ponnala

Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788]

which have received the imprimatur of the three-Judge

Bench

in G.M.

Siddeshwar

case [G.M.

Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776:

(2013) 2 SCC (Civ) 715] appear not to have been

appreciated in the correct perspective. In fact, G.M.

Siddeshwar case [G.M. Siddeshwar v. Prasanna Kumar,

(2013) 4 SCC 776: (2013) 2 SCC (Civ) 715] has been

cited by the learned Judge to dismiss the petition. If we

look at the election petition, the prayer clause is followed

by a verification. There is also a verifying affidavit in

support of the election petition. Thus, factually it would

not be appropriate to say that there is no affidavit in

support of the petition, albeit not in Form 25. This was a

curable defect and the learned Judge trying the election

petition ought to have granted an opportunity to the

appellant to file an affidavit in support of the petition in

Form 25 in addition to the already existing affidavit filed

with the election petition. In fact, a consideration of both

the judgments of the Supreme Court referred to by the

learned

Judge

i.e.

Ponnala

Lakshmaiah

[Ponnala

Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788]

as well as G.M. Siddeshwar [G.M. Siddeshwar v. Prasanna

Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715],

ought to have resulted in a conclusion that the correct

ratio in view of these facts was to permit the appellant to

cure this defect by filing an affidavit in the prescribed

form.

27. The arguments of the learned counsel for Respondent

were predicated on the distinction between the absence of

an affidavit and a defective affidavit. This presupposes

that for an opportunity of cure to be granted, there must

be the submission of a Form 25 affidavit which may be

defective. This would be very narrow reading of the

provisions. Once there is an affidavit, albeit not in Form

25, the appropriate course would be to permit an affidavit

to be filed in Form 25. We have to appreciate that the

petition is at a threshold stage. It is not as if the appellant

has failed to cure the defect even on being pointed out so.

This is not a case where the filing of an affidavit now in

Form 25 would grant an opportunity for embellishment as

is sought to be urged on behalf of Respondent 1.

28. The appellant states the case clearly and in no

uncertain terms with supporting material in the election

petition. Whether the violation is made out by Respondent

1 or not would be a matter of trial but certainly not a

matter to be shut out at the threshold.

29. The result of the aforesaid is that the impugned order

of the learned Single Judge dated 17-1-2020 [A.

Manju v. Prajwal Revanna, 2020 SCC OnLine Kar 1654] is

set aside and the application filed by Respondent 1 under

Order 7 Rule 11, Section 151 of the said Code and Section

86(1) of the RP Act would stand dismissed with liberty to

the appellant to file an appropriate affidavit in Form 25

within

fifteen

(15)

days

from

today.

The

further

proceedings in the election petition are required to be

taken up urgently as almost two-and-a-half years have

gone on the preliminary skirmishes rather than the meat

of the matter, which we are sure the learned Single Judge

of the High Court would so do.”

36.

Attention was drawn to following paragraphs in

Madiraju

Venkata

Ramana

Raju

Peddireddigari

Ramachandra Reddy, reported in (2018) 14 SCC 1:

“1. The present appeals emanate from the judgment and

order dated 2-8-2016 [Peddireddigari Ramachandra Reddy

v. Madiraju Venkata Ramana Raju, 2016 SCC OnLine Hyd

218: (2016) 6 ALD 299] of the High Court of Judicature at

Hyderabad for Telangana and Andhra Pradesh, striking off

paras 2 and 9 to 11 of the election petition as also

dismissing the election petition, being Election Petition No.

8 of 2014 filed by the appellant challenging the election of

Respondent.

23. The central issue in these appeals is : whether the

contents of the subject election petition disclose cause of

action warranting a trial? The High Court by a composite

judgment allowed the two applications filed by Respondent

1 (returned candidate) praying for striking out Paras 2 and

9 to 11 of the election petition, being frivolous and

vexatious and not containing any material facts and not

disclosing any cause of action; and the second application

for rejecting the election petition in limine for non-

disclosure of cause of action.

24. Ordinarily, an application for rejection of election

petition in limine, purportedly under Order 7 Rule 11 for

non-disclosure of cause of action, ought to proceed at the

threshold. For, it has to be considered only on the basis of

institutional defects in the election petition in reference to

the grounds specified in clauses (a) to (f) of Rule 11.

Indeed, non-disclosure of cause of action is covered by

clause (a) therein. Concededly, Order 7 CPC generally

deals with the institution of a plaint. It delineates the

requirements regarding the particulars to be contained in

the plaint, relief to be specifically stated, for relief to be

founded on separate grounds, procedure on admitting

plaint, and includes return of plaint. The rejection of plaint

follows the procedure on admitting plaint or even before

admitting the same, if the court on presentation of the

plaint is of the view that the same does not fulfill the

statutory and institutional requirements referred to in

clauses (a) to (f) of Rule 11. The power bestowed in the

court in terms of Rule 11 may also be exercised by the

court on a formal application moved by the defendant after

being served with the summons to appear before the

Court. Be that as it may, the application under Order 7

Rule 11 deserves consideration at the threshold.

25. On the other hand, the application for striking out

pleadings in terms of Order 6 Rule 16 may be resorted to

by the defendant(s)/respondent(s) at any stage of the

proceedings, as is predicated in the said provision. The

pleading(s) can be struck off by the Court on grounds

specified in clauses (a) to (c) of Rule 16.

26. Indeed,

the

defendant

moves

two

separate

applications at the same time, as in this case, it would be

open to the court in a given case to consider both the

applications together or independent of each other. If the

court decides to hear the application under Order 7 Rule 11

in the first instance, the court would be obliged to consider

the plaint as filed as a whole. But if the court decides to

proceed with the application under Order 6 Rule 16 for

striking out the pleadings before consideration of the

application under Order 7 Rule 11 for rejection of the

plaint, on allowing the former application after striking out

the relevant pleadings then the court must consider the

remainder pleadings of the plaint in reference to the

postulates of Order 7 Rule 11, for determining whether the

plaint (after striking out pleadings) deserves to be rejected

in limine.

39. On reading the election petition as a whole, we have

no hesitation in taking a view that the High Court

misdirected itself in concluding that the election petition did

not disclose any cause of action with or without Paras 2

and 9 to 11 of the election petition. Indeed, the pleadings

of the election petition should be precise and clear

containing all the necessary details and particulars as

required by law. “Material facts” would mean all the basic

facts constituting the ingredients of the grounds stated in

the election petition in the context of relief to declare the

election to be void. It is well established that in an election

petition, whether a particular fact is material or not and as

such required to be pleaded, is a question which depends

on the nature of the grounds relied upon and the special

circumstances of the case. Particulars, on the other hand,

are the details of the case set up by the party. The

distinction between “material facts” and “full particulars”

has been delineated in Mohan Rawale v. Damodar

Tatyaba [Mohan Rawale v. Damodar Tatyaba, (1994) 2

SCC 392. This judgment has been adverted to in the

reported decision relied on by the parties. The Court noted

thus: (SCC pp. 397-99, paras 10-18)

“10. We may take up the last facet first. As Chitty, J.

observed, “There is some difficulty in affixing a precise

meaning to” the expression “discloses no reasonable cause

of action or defence”. He said: “In point of law … every

cause of action is a reasonable one.” (See Republic of

Peru v. Peruvian Guano Co. [Republic of Peru v. Peruvian

Guano Co., (1887) LR 36 Ch D 489]) A reasonable cause of

action is said to mean a cause of action with some chances

of success when only the allegations in the pleading are

considered. But so long as the claim discloses some cause

of action or raises some questions fit to be decided by a

Judge, the mere fact that the case is weak and not likely to

succeed is no ground for striking it out. The implications of

the liability of the pleadings to be struck out on the ground

that it discloses no reasonable cause of action are quite

often more known than clearly understood. It does

introduce another special demurrer in a new shape. The

failure of the pleadings to disclose a reasonable cause of

action is distinct from the absence of full particulars. The

distinctions among the ideas of the “grounds” in Section

81(1); of “material facts” in Section 83(1)(a) and of “full

particulars” in Section 83(1)(b) are obvious. The provisions

of Section 83(1)(a) and (b) are in the familiar pattern of

Order 6 Rules 2 and 4 and Order 7 Rule 1(e) of the Code of

Civil Procedure. There is a distinction amongst the

“grounds” in Section 81(1); the “material facts” in Section

83(1)(a) and “full particulars” in Section 83(1)(b).

11. Referring to the importance of pleadings a learned

author says:

‘Pleadings do not only define the issues between the

parties for the final decision of the court at the trial, they

manifest and exert their importance throughout the whole

process of the litigation. … They show on their face whether

a reasonable cause of action or defence is disclosed. They

provide a guide for the proper mode of trial and particularly

for the trial of preliminary issues of law or fact. They

demonstrate upon which party the burden of proof lies, and

who has the right to open the case. They act as a measure

for comparing the evidence of a party with the case which

he has pleaded. They determine the range of the

admissible evidence which the parties should be prepared

to adduce at the trial. They delimit the relief which the

court can award. …’

[See : Jacob:“The Present Importance of Pleadings” (1960)

Current Legal Problems, at pp. 175-76.]

12. Further, the distinction between “material facts” and

“full particulars” is one of degree. The lines of distinction

are not sharp. “Material facts” are those which a party

relies upon and which, if he does not prove, he fails at the

time.

13. In Bruce v. Odhams Press Ltd. [Bruce v. Odhams Press

Ltd., (1936) 1 KB 697 : (1936) 1 All ER 287 (CA)] Scott

L.J. said:“The word ‘material’ means necessary for the

purpose of formulating a complete cause of action; and if

any one ‘material’ statement is omitted, the statement of

claim is bad.” The purpose of “material particulars” is in the

context of the need to give the opponent sufficient details

of the charge set up against him and to give him a

reasonable opportunity.

14. Halsbury refers to the function of particulars thus:

‘The function of particulars is to carry into

operation the overriding principle that the litigation

between the parties, and particularly the trial,

should be conducted fairly, openly and without

surprises, and incidentally to reduce costs. This

function has been variously stated, namely either

to limit the generality of the allegations in the

pleadings, or to define the issues which have to be

tried and for which discovery is required.’

(See : Pleadings Vol. 36, para 38)

15. In Bullen and Leake and Jacob's “Precedents of

Pleadings” 1975 Edn. at p. 112 it is stated:

‘The function of particulars is to carry into

operation the overriding principle that the litigation

between the parties, and particularly the trial,

should be conducted fairly, openly and without

surprises and incidentally to save costs. The object

of particulars is to “open up” the case of the

opposite party and to compel him to reveal as

much as possible what is going to be proved at the

trial, whereas, as Cotton L.J. has said

[Spedding v. Fitzpatrick, (1888) LR 38 Ch D 410

(CA)] , ‘the old system of pleading at common law

was to conceal as much as possible what was going

to be proved at the trial’.’

16.

The

distinction

between

“material

facts”

and

“particulars” which together constitute the facts to be

proved — or the facta probanda — on the one hand and the

evidence by which those facts are to be proved — facta

probantia

—

the

other

must

kept

clearly

distinguished. In Philipps v. Philipps [Philipps v. Philipps,

(1878) LR 4 QBD 127 at p. 133 (CA)] , Brett, L.J. said:

‘I will not say that it is easy to express in words

what are the facts which must be stated and what

matters need not be stated. … The distinction is

taken in the very rule itself, between the facts on

which the party relies and the evidence to prove

those facts. Erle, C.J. expressed it in this way. He

said that there were facts that might be called the

allegata probanda, the facts which ought to be

proved, and they were different from the evidence

which was adduced to prove those facts. And it was

upon the expression of opinion of Erle, C.J. that

Rule 4 [now Rule 7(1)] was drawn. The facts which

ought to be stated are the material facts on which

the party pleading relies.’

17. Lord Denman, C.J. in Williams v. Wilcox [Williams v.

Wilcox, (1838) 8 Ad & El 314 : 112 ER 857] said:

‘It is an elementary rule in pleading that, when a

state of facts is relied it is enough to allege it

simply, without setting out the subordinate facts

which are the means of proving it, or the evidence

sustaining the allegations.’

18. An election petition can be rejected under Order 7 Rule

11(a) CPC if it does not disclose a cause of action.

Pleadings could also be struck out under Order 6 Rule 16,

inter alia, if they are scandalous, frivolous or vexatious.

The latter two expressions meant cases where the

pleadings are obviously frivolous and vexatious or

obviously unsustainable.”

(emphasis supplied)

40. In Harkirat Singh [Harkirat Singh v. Amrinder Singh,

(2005) 13 SCC 511], this Court once again reiterated thus:

(SCC p. 526-28, paras 46-48)

“46. From the above provisions, it is clear that an

election petition must contain a concise statement

of “material facts” on which the petitioner relies. It

should also contain “full particulars” of any corrupt

practice that the petitioner alleges including a full

statement of names of the parties alleged to have

committed such corrupt practice and the date and

place of commission of such practice. Such election

petition shall be signed by the petitioner and

verified in the manner laid down in the Code of Civil

Procedure, 1908 (hereinafter referred to as “the

Code”) for the verification of pleadings. It should be

accompanied by an affidavit in the prescribed form

in support of allegation of such practice and

particulars thereof.

47. All material facts, therefore, in accordance with

the provisions of the Act, have to be set out in the

election petition. If the material facts are not stated

in a petition, it is liable to be dismissed on that

ground as the case would be covered by clause (a)

of sub-section (1) of Section 83 of the Act read

with clause (a) of Rule 11 of Order 7 of the Code.

48. The expression “material facts” has neither

been defined in the Act nor in the Code. According

to the dictionary meaning, “material” means

“fundamental”, “vital”, “basic”, “cardinal”, “central”,

“crucial”,

“decisive”,

“essential”,

“pivotal”,

“indispensable”,

“elementary”

“primary”.

Burton's Legal Thesaurus (3rd Edn.), p. 349.] The

phrase “material facts”, therefore, may be said to

be those facts upon which a party relies for its

claim or defence. In other words, “material facts”

are facts upon which the plaintiff's cause of action

the

defendant's

defence

depends.

What

particulars could be said to be “material facts”

would depend upon the facts of each case and no

rule of universal application can be laid down. It is,

however, absolutely essential that all basic and

primary facts which must be proved at the trial by

the party to establish the existence of a cause of

action or defence are material facts and must be

stated in the pleading by the party.”

(emphasis supplied)

Again in paras 51 and 52, this Court observed thus : (SCC

pp. 527-28)

“51. A distinction between “material facts” and

“particulars”, however, must not be overlooked.

“Material facts” are primary or basic facts which

must be pleaded by the plaintiff or by the

defendant in support of the case set up by him

either to prove his cause of action or defence.

“Particulars”, on the other hand, are details in

support of material facts pleaded by the party.

They amplify, refine and embellish material facts by

giving distinctive touch to the basic contours of a

picture already drawn so as to make it full, more

clear and more informative. “Particulars” thus

ensure conduct of fair trial and would not take the

opposite party by surprise.

52. All “material facts” must be pleaded by the

party in support of the case set up by him. Since

the object and purpose is to enable the opposite

party to know the case he has to meet with, in the

absence of pleading, a party cannot be allowed to

lead evidence. Failure to state even a single

material fact, hence, will entail dismissal of the suit

or petition. Particulars, on the other hand, are the

details of the case which is in the nature of

evidence a party would be leading at the time of

trial.”

(emphasis supplied)

And again in para 72, the Court noted thus : (SCC p. 535)

“72. The Court, however, drew the distinction

between

“material

facts”

and

“particulars”. According to the Court, “material

facts” are facts, if established would give the

petitioner the relief prayed for. The test is whether

the Court could have given a direct verdict in

favour of the election petitioner in case the

returned candidate had not appeared to oppose the

election petition on the basis of the facts pleaded in

the petition.”

(emphasis supplied)

41. In Ashraf Kokkur [Ashraf Kokkur v. K.V. Abdul Khader,

(2015) 1 SCC 129] , this Court adverted to the exposition

in M. Kamalam v. V.A. Syed Mohammed [M.

Kamalam v. V.A. Syed Mohammed, (1978) 2 SCC 659]

, G.M.

Siddeshwar v. Prasanna

Kumar [G.M.

Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013)

2 SCC (Civ) 715] and in Para 21 noted that the pleadings

must be taken as a whole to ascertain whether the same

constitute the material facts involving triable issues. In

para 22, the Court observed as follows : (SCC p. 139)

“22. After all, the inquiry under Order 7 Rule 11(a)

CPC is only as to whether the facts as pleaded

disclose a cause of action and not complete cause

of action. The limited inquiry is only to see whether

the petition should be thrown out at the threshold.

In an election petition, the requirement under

Section 83 of the RP Act is to provide a precise and

concise statement of material facts. The expression

“material facts” plainly means facts pertaining to

the subject-matter and which are relied on by the

election petitioner. If the party does not prove

those facts, he fails at the trial.”

emphasis supplied)

42. The Court then went on to analyse the decision of a

three-Judge Bench in V.S. Achuthanandan v. P.J. Francis

[V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737],

wherein it has been observed that (SCC p. 748, para 16)

an election petition was not liable to be dismissed in limine

merely because full particulars of corrupt practice alleged

were not set out. Further, material facts are such primary

facts which must be proved at the trial by a party to

establish existence of a cause of action. It has also

observed that so long as the claim discloses some cause of

action or raises some questions fit to be decided by a

Judge, the mere fact that the case is weak and not likely to

succeed is no ground for striking it out. Further, the

implications of the liability of the pleadings to be struck out

on the ground that it discloses no reasonable cause of

action are generally more known than clearly understood

and that the failure of the pleadings to disclose a

reasonable cause of action is distinct from the absence of

full particulars. This decision also adverts to Ponnala

Lakshmaiah

Kommuri

Pratap

Reddy

[Ponnala

Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788],

wherein the Court observed that (at SCC p. 798, para 17)

the courts need to be cautious in dealing with request for

dismissal of the petition at the threshold and exercise their

power of dismissal only in cases where on a plain reading

of the petition no cause of action is disclosed.

43. The counsel for the contesting respondent has relied

on the decisions in Pendyala Venakata Krishna

Rao v. Pothula Rama Rao [Pendyala Venakata Krishna

Rao v. Pothula Rama Rao, 2005 SCC OnLine AP 99: (2005)

3 ALD 47], particularly paras 8 to 10, 11 and 16 of the

reported decision. In that case, on facts, the Court found

that necessary material facts in relation to the ground of

improper acceptance of nomination form were not pleaded

by the election petitioner. In the present case, we have

held that there is discernible pleading as to what objections

were taken before the Returning Officer and as to why he

was in error in not rejecting the nomination of Respondent

44. The counsel for the contesting respondent also relied

on the decision in Samant N. Balkrishna v. George

Fernandez [Samant N. Balkrishna v. George Fernandez,

(1969) 3 SCC 238]. No doubt this decision predicates that

election petition is a statutory proceeding and not an action

at law or suit in equity. There can be no debate with regard

to this proposition. At the same time, we cannot be

oblivious about the scope of the enquiry permissible at this

stage by the election court/tribunal while considering the

application under Order 7 Rule 11(a) CPC.

45. In Kuldeep Singh Pathania [Kuldeep Singh

Pathania v. Bikram Singh Jaryal, (2017) 5 SCC 345 :

(2017) 3 SCC (Civ) 147] , the decision [Kuldeep Singh

Pathania v. Bikram Singh Jaryal, 2014 SCC OnLine HP

5911] of the High Court which is similar to the one under

consideration (namely, the impugned judgment) had

accepted the explanation offered by the respondents and

meticulously dealt with it to conclude that the petition did

not disclose any cause of action since it lacked material

facts. The High Court passed that order purportedly in

exercise of power under Order 14 Rule 2. This Court

pointed out the distinction between an order under Order 7

Rule 11 to reject the election petition in limine for non-

disclosure of cause of action and an order under Order 14

Rule 2 for disposal of the petition on a preliminary issue. In

that case, the order passed by the High Court was relatable

only to Order 7 Rule 11. This Court adverted to the

decisions in Mayar (H.K.) Ltd. v. Vessel M.V. Fortune

Express [Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express,

(2006) 3 SCC 100] and Virender Nath Gautam v. Satpal

Singh [Virender Nath Gautam v. Satpal Singh, (2007) 3

SCC 617] , and explicated that under Order 7 Rule 11(a),

only the pleadings of the plaintiff-petitioner can be looked

at as a threshold issue. Whereas, entire pleadings of both

sides can be looked into for considering the preliminary

issue under Order 14 Rule 2. Neither the written statement

nor the averments or case pleaded by the opposite party

can be taken into account for answering the threshold issue

for rejection of election petition in terms of Order 7 Rule

11(a) of the Act.

62. As regards the application for early hearing of the

election petition filed by the appellant before the High

Court, the same be treated as disposed of in terms of this

order. The imperativeness of expeditious disposal of the

election petition is underscored in Section 86(7) of the

1951 Act. As per the said provision, the trial of the election

petition is required to be disposed of preferably within six

months from the date of its presentation before the High

Court. Besides, this Court in Mohd. Akbar [Mohd.

Akbar v. Ashok Sahu, (2015) 14 SCC 519] has highlighted

the necessity of discharging the pious hope expressed by

Parliament. Therefore, we may only request the High Court

to expeditiously dispose of the election petition preferably

within three months from the production of a copy of this

judgment by either party before it.”

37.

Reference was also made to following observations

in Ajay Arjun Singh v. Sharadendu Tiwari, reported in

(2016) 15 SCC 219:

“30. Before parting with this case, we would like to place

on record that the procedure adopted by the appellant in

initially filing a petition under Order 7 Rule 11 petition

[Filed on 1-7-2014], praying that the election petition be

dismissed and filing the instant application after a long

gap [IA No. 12911 of 2014 in Election Petition No. 1 of

2014 was filed on 11-9-2014] is to be deprecated.

Preliminary objections, if any (in cases where there is

more than one), in an election petition are to be taken at

the earliest point of time and in one go. The practice such

as the one adopted by the appellant only tends to delay

the adjudication of the election petition which are

mandated [Section 86(7), Representation of the People

Act, 1951] by Parliament to be decided within a period of

six months. We declare that the later of such successive

petitions must be dismissed by the High Courts in limine

on that count alone.”

38.

Reliance was placed on decision of Hon’ble Supreme

Court in case of Ashraf Kokkur v. K.V. Abdul Khader,

reported in (2015) 1 SCC 129:

“1. The simple question arising for consideration in this

case is whether the averments in the election petition

disclose a cause of action as required under Order 7 Rule

11(a) of the Code of Civil Procedure, 1908 (hereinafter

referred to as “CPC”). Incidentally, it may be noted that

the election petition has been dismissed by the impugned

judgment dated 16-11-2011 [Asharaf Kokkur v. K.V.

Abdul Khader, Election Petition No. 2 of 2011, decided on

16-11-2011 (Ker)], which reads as follows:

Judgment

IA No. 4 of 2011 is allowed. Election petition is dismissed

in limine as it does not disclose a complete cause of action

or a triable issue.”

Of course, detailed reasons are given in the order dated

16-11-2011 [Asharaf Kokkur v. K.V. Abdul Khader,

Election Petition No. 2 of 2011, decided on 16-11-2011

(Ker)] in IA No. 4 of 2011, which is also under challenge

in one of the appeals.

22. After all, the inquiry under Order 7 Rule 11(a) CPC is

only as to whether the facts as pleaded disclose a cause of

action and not complete cause of action. The limited

inquiry is only to see whether the petition should be

thrown out at the threshold. In an election petition, the

requirement under Section 83 of the RP Act is to provide a

precise and concise statement of material facts. The

expression “material facts” plainly means facts pertaining

to the subject-matter and which are relied on by the

election petitioner. If the party does not prove those facts,

he fails at the trial [see Philipps v. Philipps [(1878) LR 4

QBD 127 (CA)] (QBD p. 133); Mohan Rawale v. Damodar

Tatyaba [(1994) 2 SCC 392] (SCC p.399, para16)].

23. This Court in Azhar Hussain v. Rajiv Gandhi [1986

Supp SCC 315], at para 11, has held that: (SCC p. 324)

“11. … Whether in an election petition a particular fact is

material or not and as such required to be pleaded is

dependent on the nature of the charge leveled and the

circumstances of the case.”

The charge leveled in the present case is that the

respondent holds an office of profit as the Chairperson of

the Kerala State Wakf Board and in that capacity he

enjoys the profits attached to that office from the

Government of Kerala.

24. In V.S. Achuthanandan v. P.J. Francis [(1999) 3 SCC

737], a three-Judge Bench of this Court has taken the

view that only because full particulars are not given, an

election petitioner is not to be thrown out at the

threshold. To quote para 15: (SCC p. 747)

“15. … An election petition was not liable to be dismissed

in limine merely because full particulars of corrupt

practice alleged were not set out. It is, therefore, evident

that material facts are such primary facts which must be

proved at the trial by a party to establish existence of a

cause of action. Whether in an election petition a

particular fact is a material fact or not, and as such,

required to be pleaded is a question which depends on the

nature of the charge leveled, the ground relied upon, and

in the light of the special circumstances of the case.”

Again at para 16 of V.S. Achuthanandan case [(1999) 3

SCC 737], it was held that: (SCC p. 748)

“16. … So long as the claim discloses some cause of action

or raises some questions fit to be decided by a Judge, the

mere fact that the case is weak and not likely to succeed

is no ground for striking it out. The implications of the

liability of the pleadings to be struck out on the ground

that it discloses no reasonable cause of action are

generally more known than clearly understood. … the

failure of the pleadings to disclose a reasonable cause of

action is distinct from the absence of full particulars.”

(emphasis supplied)

25. In Hari Shanker Jain v. Sonia Gandhi [(2001) 8 SCC

233], a three-Judge Bench of this Court held that the

expression “cause of action” would mean facts to be

proved, if traversed, in order to support his right to the

judgment of the Court and that the function of the party is

to present a full picture of the cause of action with such

further information so as to make opposite party

understand the case he will have to meet. To quote para

23: (SCC p. 251)

“23. … The expression ‘cause of action’ has been

compendiously defined to mean every fact which it

would be necessary for the plaintiff to prove, if

traversed, in order to support his right to the

judgment of Court. Omission of a single material

fact leads to an incomplete cause of action and the

statement of claim becomes bad. The function of

the party is to present as full a picture of the cause

of action with such further information in detail as

to make the opposite party understand the case he

will have to meet. (See Samant N.

Balkrishna v. George Fernandez [(1969) 3 SCC

238] and Jitendra Bahadur Singh v. Kirshna

Behari [(1969) 2 SCC 433].) Merely quoting the

words of the section like chanting of a mantra does

not amount to stating material facts. Material facts

would include positive statement of facts as also

positive averment of a negative fact, if necessary.

In V.S. Achuthanandan v. P.J. Francis [(1999) 3

SCC 737] this Court has held, on a conspectus of a

series of decisions of this Court, that material facts

are such preliminary facts which must be proved at

the trial by a party to establish existence of a cause

of action. Failure to plead ‘material facts’ is fatal to

the election petition and no amendment of the

pleadings is permissible to introduce such material

facts after the time-limit prescribed for filing the

election petition.”

26. In Syed Dastagir v. T.R. Gopalakrishna Setty [(1999)

6 SCC 337], while referring to the pleadings, it has been

held at para 9 that: (SCC p. 341)

“9. … In construing a plea in any pleading, courts

must keep in mind that a plea is not an expression

of art and science but an expression through words

to place fact and law of one's case for a relief. Such

an expression may be pointed, precise, sometimes

vague but still it could be gathered what he wants

to convey through only by reading the whole

pleading, depending on the person drafting a plea.

… So to insist for a mechanical production of the

exact words of a statute is to insist for the form

rather than the essence. So the absence of form

cannot dissolve an essence if already pleaded.”

27. In Mayar (H.K.) Ltd. v. Vessel M.V. Fortune

Express [(2006) 3 SCC 100], this Court at para 12 held

that: (SCC p. 115)

“12. … The Court has to read the entire plaint as a

whole to find out whether it discloses a cause of

action and if it does, then the plaint cannot be

rejected by the court exercising the powers under

Order 7 Rule 11 of the Code. Essentially, whether

the plaint discloses a cause of action, is a question

of fact which has to be gathered on the basis of the

averments made in the plaint in its entirety taking

those averments to be correct. A cause of action is

a bundle of facts which are required to be proved

for obtaining relief and for the said purpose, the

material facts are required to be stated but not the

evidence except in certain cases where the

pleadings

relied

are

regard

misrepresentation, fraud, wilful default, undue

influence or of the same nature. So long as the

plaint discloses some cause of action which

requires determination by the court, the mere fact

that in the opinion of the Judge the plaintiff may

not succeed cannot be a ground for rejection of the

plaint.”

30. Guided by the settled principles of law referred to

above, we are of the view that the election petition having

disclosed a cause of action, it should not have been

thrown out at the threshold. The impugned order and

judgment [Asharaf Kokkur v. K.V. Abdul Khader, Election

Petition No. 2 of 2011, decided on 16-11-2011 (Ker)] are

hence set aside. The appeals are allowed. The election

petition is remitted to the High Court for trial in

accordance with law. There is no order as to costs.”

39.

And

following

paragraphs

Ponnala

Lakshmaiah v. Kommuri Pratap Reddy, reported in (2012)

7 SCC 788:

“2. The factual matrix in which the election petition came

to be filed by the respondent has been set out at length

by the High Court, hence need not be recounted except to

the extent the same is essential for the disposal of the

appeal. The High Court has, while holding that the

averments made in the election petition raised triable

issues and disclosed a cause of action, observed:

“23. As seen from the statement showing voter turnout

report in connection with General Elections, 2009 to 98,

Jangaon Legislative Assembly Constituency on 16-4-2009,

the total votes polled, as reported by the Returning

Officer, is shown as 1,50,678 from 251 polling stations.

Whereas in the final result sheet in Form 20, total valid

votes is shown as 1,51,411. So, from this document, it is

clear that prima facie a proper counting had not taken

place. Therefore, prima facie it can be said to be an

irregularity on the part of the Returning Officer involved in

dereliction of the duty. Similarly, there is a specific

allegation that out of 653 postal ballots, the election

petitioner would have secured more than 300 votes, if

properly counted, and out of the said votes, 142 votes

which were validly polled in favour of the election

petitioner, were illegally declared as invalid and another

52 votes polled in favour of the election petitioner were

counted in favour of the first respondent, and 45 invalid

votes were illegally counted in favour of the first

respondent. Since the margin between the elected

candidate and the nearest rival is only 236 votes, had

postal ballots been counted properly, then there would

have been a possibility of materially affecting the result of

the election insofar as the returned candidate. So, under

no stretch of imagination, can it be said that the

allegations in the election petition are vague.

24. No doubt, it is true that in view of the decision of the

Apex Court, re-counting of the votes cannot be resorted

to as a matter of course and every endeavour should be

made to protect the secrecy of the ballots. But, at the

same time, there is suspicion of the correctness of the

figures mentioned in the crucial documents of the

statement showing voters' turnout report and Form 20

final result sheet, where there is a variance between total

number of votes polled and votes counted. The two basic

requirements laid down by the Apex Court, to order re-

counting, are: (a) the election petition seeking re-count of

the ballot papers must contain an adequate statement of

the material facts on which the allegations of irregularity

or illegality in counting are founded; and (b) on the basis

of evidence adduced in support of the allegations, the

Tribunal must be prima facie satisfied that in order to

decide the dispute and to do complete and effectual

justice between the parties, making of such an order is

imperatively necessary.

Therefore, the questions whether counting of votes by the

officials is in accordance with the rules and regulations

and also whether the votes polled in favour of the election

petitioner were rejected as invalid or there was improper

counting of votes polled in favour of the returned

candidate, are required to be decided after adducing

evidence only. The allegation that because of the

improper counting of postal ballots polled in favour of the

election petitioner, the election petitioner could not secure

300 votes, if accepted as true at this stage, it would

materially affect the election result because the margin of

votes polled between the returned candidate and his

nearest rival is very narrow. In the election petition, the

allegation with regard to irregularity or illegality in

counting of votes, which affects the election of the

returned candidate materially, has been clearly stated in

the election petition. It is not a vague or general

allegation that some irregularities or illegalities have been

committed in counting. Similarly, there is allegation that

in the first instance, after totalling of all votes, the

election petitioner secured a majority of 44 votes and the

same was informed to the electronic media, and some TV

channels telecasted the same immediately. A compact

disc (CD) is also filed along with the election petition, in

support of the said allegation. It is also alleged that none

of the contested candidates filed any petition for re-

counting of votes within maximum period of five minutes

after the election petitioner was declared to have secured

a majority of 44 votes. Therefore, there is prima facie

material to show that there was irregularity or illegality in

counting of votes which resulted in affecting materially the

election of the returned candidate, so as to proceed

further with the election petition. As, at this stage, prima

facie case for re-counting, as seen from the allegations in

the election petition, is made out, the pleadings cannot be

struck off as unnecessary. Therefore, the question of

rejecting the election petition at this stage does not

arise.”

14. In Harkirat Singh v. Amrinder Singh [(2005) 13 SCC

511] this Court once again stated the distinction between

material facts and particulars and declared that material

facts are primary and basic facts which must be pleaded

by the plaintiff while particulars are details in support of

those facts meant to amplify, refine and embellish the

material facts by giving distinct touch to the basic

contours of a picture already drawn so as to make it more

clear and informative. To the same effect are the

decisions of this Court in Umesh Challiyill v. K.P.

Rajendran [(2008) 11 SCC 740] and Virender Nath

Gautam v. Satpal Singh [(2007) 3 SCC 617].

15. The High Court has, in the present case, held that the

material facts constituting the foundation of the case set

up by the election petitioner have been stated in the

election petition. That being so, the requirement of

Section 83 of the Act viz. that “the petition shall contain a

concise statement of material facts” has been satisfied.

The question of dismissing the petition on that ground

also therefore did not arise. The High Court in our opinion

committed no wrong in coming to that conclusion.

17. While a successful candidate is entitled to defend his

election and seek dismissal of the petition on ground

legally available to him, the prolongation of proceedings

by prevarication is not conducive to the ends of justice

that can be served only by an early and speedy disposal

of the proceedings. The courts have, therefore, to guard

against such attempts made by parties who often succeed

in dragging the proceedings beyond the term for which

they have been elected. The courts need to be cautious in

dealing with requests for dismissal of the petitions at the

threshold and exercise their powers of dismissal only in

cases where even on a plain reading of the petition no

cause of action is disclosed. Beyond that note of caution,

we do not wish to say anything at this stage for it is

neither necessary nor proper for us to do so.”

40.

And from decision in case of Ram Sukh v. Dinesh

Aggarwal, reported in (2009) 10 SCC 541 following

paragraphs were referred to :

“1. This appeal under Section 116-A of the Representation

of the People Act, 1951 (for short “the Act”) is directed

against the judgment and order dated 15-1-2008

rendered by the High Court of Uttaranchal at Nainital in

Election Petition no.3 of 2007 (M/S). By the impugned

order, the High Court, upholding the preliminary objection

raised by the first respondent, has dismissed the election

petition mainly on the ground that it did not comply with

the mandatory requirement of furnishing material facts so

as to disclose the cause of action and was not supported

by an affidavit in the prescribed form.

10. Section 83, the pivotal provision for the present case,

requires that: (a) the election petition must contain a

concise statement of “material facts” on which the

petitioner relies and (b) he should also set forth “full

particulars” of any corrupt practices which the petitioner

alleges. Proviso to clause (c) of sub-section (1) of Section

83 also provides that where the petitioner alleges any

corrupt practice, the election petition shall also be

accompanied by an affidavit in the prescribed form in

support of the allegation of such corrupt practice and the

particulars thereof. It is plain that the requirement of

disclosure of “material facts” and “full particulars” as

stipulated in the section is mandatory.

11. Section 86 mandates that where the election petition

does not comply with the provisions of Section 81 or

Section 82 or Section 117 of the Act, the High Court

should dismiss the election petition. Section 87 which lays

down the procedure required to be followed by the High

Court while trying an election petition, requires that every

election petition shall be tried, as nearly as may be, in

accordance with the procedure applicable under the Code

to the trial of the suits, subject of course to the provisions

of the Act and of any requirement made thereunder.

12. It is evident that the controversy in this appeal lies in

a narrow compass. It revolves around the ambit of

Section 83 of the Act. The point for consideration is

whether the election petition lacked “material facts”

required to be stated in the election petition in terms of

Section 83(1) of the Act and if so, could it be dismissed

summarily without trial? As already noted, it is mandatory

that all “material facts” are set out in an election petition

and it is also trite that if material facts are not stated in

the petition, the same is liable to be dismissed on that

ground alone. Therefore, the question is as to whether the

election petitioner had set out “material facts” in his

petition?

13. The phrase “material facts” has neither been defined

in the Act nor in the Code and, therefore, it has been

understood by the courts in general terms to mean the

entire bundle of facts which would constitute a complete

cause of action. In other words, “material facts” are facts

upon which the plaintiff's cause of action or the

defendant's defence depends. (See Mahadeorao Sukaji

Shivankar v. Ramaratan Bapu [(2004) 7 SCC 181].)

Broadly speaking, all primary or basic facts which are

necessary either to prove the cause of action by the

plaintiff or defence by the defendant are “material facts”.

Material facts are facts which, if established, would give

the petitioner the relief asked for. But again, what could

be said to be material facts would depend upon the facts

of each case and no rule of universal application can be

laid down.

14. The requirement in an election petition as to the

statement of material facts and the consequences of lack

of such disclosure with reference to Sections 81, 83 and

86 of the Act came up for consideration before a three-

Judge Bench of this Court in Samant N. Balkrishna v.

George Fernandez [(1969) 3 SCC 238]. Speaking for the

three-Judge Bench, M. Hidayatullah, C.J., inter alia, laid

down that:

(i) Section 83 of the Act is mandatory and requires

first a concise statement of material facts and then

the fullest possible particulars;

(ii) omission of even a single material fact leads to

an incomplete cause of action and statement of

claim becomes bad;

(iii) the function of particulars is to present in full a

picture of the cause of action and to make the

opposite party understand the case he will have to

meet;

(iv) material facts and particulars are distinct

matters—material facts will mention statements of

fact and particulars will set out the names of

persons with date, time and place; and

(v) in stating the material facts it will not do merely

to quote the words of the section because then the

efficacy of the material facts will be lost.

15. At this juncture, in order to appreciate the real object

and purport of the phrase “material facts”, particularly

with reference to election law, it would be appropriate to

notice the distinction between the phrases “material facts”

as appearing in clause (a) and “particulars” as appearing

in clause (b) of sub-section (1) of Section 83. As stated

above, “material facts” are primary or basic facts which

have to be pleaded by the petitioner to prove his cause of

action and by the defendant to prove his defence.

“Particulars”, on the other hand, are details in support of

the material facts, pleaded by the parties. They amplify,

refine and embellish material facts by giving distinctive

touch to the basic contours of a picture already drawn so

as to make it full, more clear and more informative. Unlike

“material facts” which provide the basic foundation on

which the entire edifice of the election petition is built,

“particulars” are to be stated to ensure that the opposite

party is not taken by surprise.

16. The

distinction

between

“material

facts”

and

“particulars” and their requirement in an election petition

was succinctly brought out by this Court in Virender Nath

Gautam v. Satpal Singh [(2007) 3 SCC 617] wherein C.K.

Thakker, J., stated thus: (SCC pp. 631-32, para 50)

“50. There is distinction between facta

probanda (the facts required to be proved i.e.

material facts) and facta probantia (the facts by

means of which they are proved i.e. particulars or

evidence). It is settled law that pleadings must

contain

only

facta

probanda

and

not

facta

probantia. The material facts on which the party

relies for his claim are called facta probanda and

they must be stated in the pleadings. But the facts

or facts by means of which facta

probanda (material facts) are proved and which are

in the nature of facta probantia (particulars or

evidence) need not be set out in the pleadings.

They are not facts in issue, but only relevant facts

required to be proved at the trial in order to

establish the fact in issue.”

41.

From decision in Virender Nath Gautam v. Satpal

Singh, reported in (2007) 3 SCC 617 following references

were made :

“1. This appeal is filed by the appellant against the

judgment and order dated 20-12-2004 passed by the High

Court of Himachal Pradesh, Shimla in Election Petition No.

2 of 2003. By the said order, the High Court upheld the

preliminary objection raised by the first respondent that

the election petition did not disclose material facts and

was liable to be dismissed.

27. Conduct of elections has been dealt with in Part V.

Part VI relates to “Disputes regarding elections”. Section

80 requires any election to be questioned only by way of

election petition. Under Section 80-A, it is the High Court

which can try the election petitions. Section 81 provides

for presentation of election petition and prescribes the

period of limitation. Section 82 declares as to who shall be

joined as respondents to such election petition. Section 83

deals with contents of the petition and reads thus:

“83. Contents of petition.—

(1) An election petition—

(a) shall contain a concise statement of the material facts

on which the petitioner relies;

(b) shall 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; and

(c) shall be signed by the petitioner and verified in the

manner laid down in the Code of Civil Procedure, 1908 (5

of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt

practice, the petition shall also be accompanied by an

affidavit in the prescribed form in support of the allegation

of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be

signed by the petitioner and verified in the same manner

as the petition.”

28. Section 100 enumerates grounds for declaring election

to be void which inter alia includes improper reception,

refusal or ejection of any vote or the reception of any vote

which is void or there is non-compliance with the

provisions of the Constitution or with the Act or rules or

orders made under the Act. Section 101 empowers the

High Court to declare a candidate other than the returned

candidate to have been elected. Section 123 declares

certain practices as “deemed to be corrupt practices”.

29. From the relevant provisions of the Act reproduced

hereinabove, it is clear that an election petition must

contain a concise statement of “material facts” on which

the petitioner relies. It should also contain “full

particulars” of any corrupt practice that the petitioner

alleges including a full statement of names of the parties

alleged to have committed such corrupt practice and the

date and place of commission of such practice. Such

election petition shall be signed by the petitioner and

verified in the manner laid down in the Code of Civil

Procedure, 1908 (hereinafter referred to as “the Code”)

for the verification of pleadings. It should be accompanied

by an affidavit in the prescribed form in support of

allegation of such practice and particulars thereof.

30. All material facts, therefore, in accordance with the

provisions of the Act, have to be set out in the election

petition. If the material facts are not stated in a petition,

it is liable to be dismissed on that ground as the case

would be covered by clause (a) of sub-section (1) of

Section 83 of the Act read with clause (a) of Rule 11 of

Order 7 of the Code.

31. The expression “material facts” has neither been

defined in the Act nor in the Code. According to the

dictionary meaning, “material” means “fundamental”,

“vital”, “basic”, “cardinal”, “central”, “crucial”, “decisive”,

“essential”, “pivotal”, “indispensable”, “elementary” or

“primary”. [Burton's Legal Thesaurus (3rd Edn.), p. 349].

The phrase “material facts”, therefore, may be said to be

those facts upon which a party relies for his claim or

defence. In other words, “material facts” are facts upon

which the plaintiff's cause of action or the defendant's

defence depends. What particulars could be said to be

“material facts” would depend upon the facts of each case

and no rule of universal application can be laid down. It is,

however, absolutely essential that all basic and primary

facts which must be proved at the trial by the party to

establish the existence of a cause of action or defence are

material facts and must be stated in the pleading by the

party.

32. In the leading case of Philipps v. Philipps [(1878) 4

QBD 127 : 48 LJQB 135 : (1874-80) All ER Rep Ext 1684

(CA)] , Cotton, L.J. stated:

“What particulars are to be stated must depend on the

facts of each case. But in my opinion it is absolutely

essential that the pleading, not to be embarrassing to the

defendants, should state those facts which will put the

defendants on their guard and tell them what they have to

meet when the case comes on for trial.”

33. In Bruce v. Odhams Press Ltd. [(1936) 1 KB 697 :

(1936) 1 All ER 287 (CA)] , Scott, L.J. referring

to Philipps v. Philipps [(1878) 4 QBD 127 : 48 LJQB 135 :

(1874-80) All ER Rep Ext 1684 (CA)] observed: (All ER p.

294)

“The cardinal provision in Rule 4 is that the statement of

claim must state the material facts. The word ‘material’

means necessary for the purpose of formulating a

complete cause of action; and if any one ‘material’

statement is omitted, the statement of claim is bad; it is

‘demurrable’ in the old phraseology, and in the new is

liable to be ‘struck out’ under RSC Order 25 Rule 4

(see Philipps v. Philipps [(1878) 4 QBD 127 : 48 LJQB 135

: (1874-80) All ER Rep Ext 1684 (CA)] ); or ‘a further and

better statement of claim’ may be ordered under Rule 7.”

34. A

distinction

between

“material

facts”

and

“particulars”, however, must not be overlooked. “Material

facts” are primary or basic facts which must be pleaded by

the plaintiff or by the defendant in support of the case set

up by him either to prove his cause of action or defence.

“Particulars”, on the other hand, are details in support of

material facts pleaded by the party. They amplify, refine

and embellish material facts by giving distinctive touch to

the basic contours of a picture already drawn so as to

make

full,

more

clear

and

more

informative.

“Particulars” thus ensure conduct of fair trial and would

not take the opposite party by surprise.

35. All “material facts” must be pleaded by the party in

support of the case set up by him. Since the object and

purpose is to enable the opposite party to know the case

he has to meet with, in the absence of pleading, a party

cannot be allowed to lead evidence. Failure to state even

a single material fact, hence, will entail dismissal of the

suit or petition. Particulars, on the other hand, are the

details of the case which is in the nature of evidence a

party would be leading at the time of trial.

50. There is distinction between facta probanda (the facts

required to be proved i.e. material facts) and facta

probantia (the facts by means of which they are proved

i.e. particulars or evidence). It is settled law that

pleadings must contain only facta probanda and not facta

probantia. The material facts on which the party relies for

his claim are called facta probanda and they must be

stated in the pleadings. But the facts or facts by means of

which facta probanda (material facts) are proved and

which are in the nature of facta probantia (particulars or

evidence) need not be set out in the pleadings. They are

not facts in issue, but only relevant facts required to be

proved at the trial in order to establish the fact in issue.

51. In our considered opinion, material facts which are

required to be pleaded in the election petition as required

by Section 83(1) of the Act read with Order 7 Rule 11(a)

of the Code have been pleaded by the election petitioner,

cause of action has been disclosed in the election petition

and, hence, the petition could not have been dismissed by

the High Court. The impugned order of the High Court

suffers from infirmity and cannot be sustained.

52. The High Court, in our considered opinion, stepped

into

prohibited

area

considering

correctness

allegations and evidence in support of averments by

entering into the merits of the case which would be

permissible only at the stage of trial of the election

petition and not at the stage of consideration whether the

election petition was maintainable and dismissed the

petition. The said action, therefore, cannot be upheld and

the order deserves to be set aside.

53. On an additional ground also, the order of the High

Court is liable to be set aside. All allegations in para 8 of

the election petition, as also sub-paras (i) to (iv) of para 8

relate to improper and illegal reception and acceptance of

votes and the election petitioner has challenged the

election of the returned candidate on that ground and not

on the ground of “corrupt practice”. He was, therefore,

required to state material facts in the election petition

under Section 83(1)(a) of the Act. It was, however, not

necessary to “set forth full particulars”, which is the

requirement of Section 83(1)(b) of “any corrupt practice”.

54. The High Court dismissed the petition inter alia on the

ground that paras 8(i) to (iv) lacked in material

particulars. Apart from the fact that the law does not

require material particulars even in respect of allegations

of corrupt practice but only full particulars and if they are

lacking, the petition can be permitted to be amended or

amplified under Section 86 of the Act, in the instant case,

clause (b) of Section 83(1) had no application and the

petition has been dismissed by the High Court by applying

wrong test. On that ground also, the order passed by the

High Court is unsustainable (vide Harkirat

Singh v. Amrinder Singh [(2005) 13 SCC 511]).

55. For the foregoing reasons, the appeal deserves to be

allowed and is, accordingly, allowed with costs. The order

passed by the High Court is set aside. Election Petition No.

2 of 2003 is restored to file, and is remitted to the High

Court to decide the same on merits. Since the election

took place in February 2003 and the petition was

dismissed on preliminary ground as not maintainable and

is required to be decided on merits, the High Court is

requested to give priority and dispose it of expeditiously.”

42.

From

decision

Apex

Court

V.S.

Achuthanandan v. P.J. Francis, reported in (1999) 3 SCC

737, following observations were relied on:

“1. The appellant, a candidate of the CPI (M) contested

and

lost

election

from

Mararikulam

Legislative

Assembly Constituency in the State of Kerala by a margin

of 1965 votes. The successful candidate was Respondent

1 belonging to the Indian National Congress. Not satisfied

with the result of the election, the appellant filed Election

Petition No. 11 of 1996 in the High Court of Kerala mainly

on the grounds of corrupt practices and illegalities in the

counting of ballot-papers. He prayed for declaration that

the election of the 1st respondent was void and that he

was duly elected. Instead of filing any written statement,

Respondent 1 filed preliminary objections which were

made the basis of framing the following issues:

1. Whether the petition has been presented in

compliance

with

the

provisions

the

Representation of the People Act?

2. Whether the absence of an affidavit in support

of the allegations of corrupt practices in the

petition is fatal to the maintainability of the

petition?

3. Whether there is a proper affidavit under Rule

94-A of the Conduct of Election Rules?

4. Whether the allegations make out a cause of

action at all warranting trial of the election

petition?

Whether the allegations for re-count are

sufficient to hold a trial on that issue?

Whether the failure to attest as true copy of

the annexure produced along with the election

petition is fatal?

7. Whether the election petition is liable to be

dismissed as not properly framed and filed?

2. Issues 1 and 4 were decided against the appellant

holding that allegations made in paras 11(E), (F), (H), (J),

(K), (M) and (P) lacked material facts and particulars and

being vague and ambiguous required no trial. Issues 2, 3

and 6 were decided in favour of the appellant. Issue 5 was

decided against the appellant holding that he had failed to

establish that there existed a case where the re-counting

could be ordered. Ultimately, the election petition was

rejected under Section 83 of the Representation of the

People Act read with Order 7 Rule 11(a) of the Code of

Civil Procedure with costs assessed at Rs 1500. Feeling

aggrieved by the judgment of the High Court, the

appellant has preferred this appeal under Section 116-A of

the Representation of the People Act, 1951 (hereinafter

referred to as “the Act”).

14. In the instant case, as noted earlier, the election

petition has been rejected by invoking the powers of

Section 83 of the Act read with Order 7 Rule 11(a) of the

Code

Civil

Procedure.

After

referring

some

judgments, the learned trial Judge of the High Court has

concluded:

“Read as a whole, the averments contained in the election

petition do not satisfy the requirements of Section 83 of

the Act. No prima facie case is made out to hold that the

first respondent has committed corrupt practices or that it

is a fit case where re-counting is to be ordered. On a

perusal of the election petition, it is seen that the

petitioner has not pleaded the material facts with

necessary particulars which would enable the Court to

grant the prayer made in the petition. Pleadings in the

election petition do not make out a cause of action for

ordering re-count, as prayed for in the petition. So, the

election petition is liable to be rejected under Section 83

of the Act read with Order 7 Rule 11(a) CPC.”

15. It would thus appear that the election petition was

rejected mainly on the ground that it did not disclose the

cause of action as according to the learned trial Judge the

allegations regarding corrupt practice were vague and did

not disclose “material facts and full particulars” of the

corrupt practice alleged. It is evident that the learned trial

Judge did not distinguish between the “material facts” and

the “material particulars” of allegations regarding corrupt

practices as defined under Section 123 of the Act. The law

on the point is well settled which appears to have not

been taken note of or appreciated by the learned trial

Judge. After referring to various pronouncements of this

Court including cases in Balwan Singh v. Lakshmi

Narain [AIR 1960 SC 770 : (1960) 3 SCR 91] , Samant N.

Balkrishna v. George Fernandez [(1969) 3 SCC 238]

, Virendra Kumar Saklecha v. Jagjiwan [(1972) 1 SCC

826] , Udhav Singh v. Madhav Rao Scindia [(1977) 1 SCC

511] , F.A. Sapa v. Singora [(1991) 3 SCC 375]

and Gajanan Krishnaji Bapat v. Dattaji Raghobaji

Meghe [(1995) 5 SCC 347] and a host of other

authorities, this Court in L.R. Shivaramagowda v. T.M.

Chandrashekar [(1999) 1 SCC 666 : (1998) 6 Scale 361]

held that while failure to plead “material facts” is fatal to

the election petition and no amendment of the pleading is

permissible to introduce such material facts after the

time-limit prescribed for filing the election petition, the

absence of “material particulars” can be cured at a later

stage by an appropriate amendment. An election petition

was not liable to be dismissed in limine merely because

full particulars of corrupt practice alleged were not set

out. It is, therefore, evident that material facts are such

primary facts which must be proved at the trial by a party

to establish existence of a cause of action. Whether in an

election petition a particular fact is a material fact or not,

and as such, required to be pleaded is a question which

depends on the nature of the charge levelled, the ground

relied upon, and in the light of the special circumstances

of the case. In Udhav Singh case [(1977) 1 SCC 511] the

Court held: (SCC p. 523, paras 42-43)

“In short, all those facts which are essential to clothe the

petitioner with a complete cause of action, are ‘material

facts’ which must be pleaded, and failure to plead even a

single material fact amounts to disobedience of the

mandate of Section 83(1)(a).

‘Particulars’, on the other hand, are ‘the details of the

case set up by the party’. ‘Material particulars’ within the

contemplation of clause (b) of Section 83(1) would

therefore mean all the details which are necessary to

amplify, refine and embellish the material facts already

pleaded

the

petition

compliance

with

the

requirements of clause (a). ‘Particulars’ serve the purpose

of finishing touches to the basic contours of a picture

already drawn, to make it full, more detailed and more

informative.”

43.

Likewise, from decision in D. Ramachandran v.

R.V. Janakiraman, reported in (1999) 3 SCC 267 following

paragraphs were referred to:

“1. Aggrieved by the dismissal of his election petition EP

No. 3 of 1996 on a preliminary issue, the appellant has

approached this Court.

10. On the other hand, Rule 11 of Order 7 enjoins the

court to reject the plaint where it does not disclose a

cause of action. There is no question of striking out any

portion of the pleading under this Rule. The application

filed by the first respondent in OA No. 36 of 1997 is on

the footing that the averments in the election petition did

not contain the material facts giving rise to a triable issue

or disclosing a cause of action. Laying stress upon the

provisions of Order 7 Rule 11(a), learned Senior Counsel

for the first respondent took us through the entire election

petition and submitted that the averments therein do not

disclose a cause of action. On a reading of the petition, we

do not find it possible to agree with him. The election

petition as such does disclose a cause of action which if

unrebutted could void the election and the provisions of

Order 7 Rule 11(a) CPC cannot therefore be invoked in

this case. There is no merit in the contention that some of

the allegations are bereft of material facts and as such do

not disclose a cause of action. It is elementary that under

Order 7 Rule 11(a) CPC, the court cannot dissect the

pleading into several parts and consider whether each one

of them discloses a cause of action. Under the Rule, there

cannot be a partial rejection of the plaint or petition.

See Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC

487]. We are satisfied that the election petition in this

case could not have been rejected in limine without a

trial.”

44.

In case of Subhash Desai v. Sharad J. Rao,

reported in 1994 Supp (2) SCC 446, following observations

were sought to be relied on:

“1. The election of the appellant from Goregaon

Legislative Assembly Constituency, has been set aside by

the High Court, on an election petition filed on behalf of

Respondent

(hereinafter

referred

the

“respondent”). The appellant had contested the election

as a candidate of Shiv Sena, whereas the respondent as

of Janata Dal.

10. Section 86 vests power in the High Court to dismiss

an election petition which has not been properly presented

as required by Section 81; or where there has been non-

compliance of Section 82 i.e. non-joinder of the necessary

parties to the election petition; or for non-compliance of

Section 117 i.e. non-deposit of the required amount as

security for the costs of the election petition. Section 86

does not contemplate dismissal of the election petition for

non-compliance of the requirement of Section 83 of the

Act. But Section 83 enjoins that an election petition shall

contain concise statement of material facts, and shall set

forth full particulars of any corrupt practice that the

petitioner alleges, which should be verified and supported

by affidavit, so far the allegations of corrupt practices are

concerned. This provision is not only procedural, but has

an object behind it; so that a person declared to have

been elected, is not dragged to court to defend and

support the validity of his election, on allegations of

corrupt practice which are not precise and details whereof

have not been supported by a proper affidavit. Apart from

that, unless the material facts and full particulars of the

corrupt practices are set forth properly in the election

petition, the person whose election is challenged, is bound

to be prejudiced in defending himself of the charges,

which have been leveled against him. In view of the

repeated pronouncements of this Court, that the charge of

corrupt practice is quasi-criminal in nature, the person

challenging an election on the ground of corrupt practice,

cannot take liberty of making any vague or reckless

allegation, without taking the responsibility about the

correctness

thereof.

Before

the

court

proceeds

investigate such allegations, the court must be satisfied,

that the material facts have been stated along with the

full particulars of the corrupt practice, alleged by the

petitioner, which have been duly supported by an

affidavit. In cases where the court finds that neither

material facts have been stated, nor full particulars of the

corrupt practice, as required by Section 83, have been

furnished in the election petition, the election petition can

be dismissed, not under Section 86 but under the

provisions of the Code of Civil Procedure, which are

applicable, read with Section 83(1) of the Act, saying that

it does not disclose a cause of action. This aspect has

been examined by this Court in detail in the cases

of Azhar Hussain v. Rajiv Gandhi [1986 Supp SCC 315:

(1986) 2 SCR 782]; Hardwari Lal v. Kanwal Singh [(1972)

1 SCC 214: (1972) 2 SCR 742].

12. The scope of Section 83(1) has been recently

examined in the case of F.A. Sapa v. Singora [(1991) 3

SCC 375] where it was pointed out that the underlying

idea in requiring the election petition to set out in a

concise manner all the ‘material facts’ as well as the ‘full

particulars’, where the complaint is in respect of

commission of corrupt practice, is to “delineate the scope,

ambit and limits of the inquiry at the trial by the election

petition”. In the present case, the allegations made, in the

election petition, may be true or false, but it is not

possible to hold that the election petition does not disclose

any material fact or give the material particulars of any of

the corrupt practices. It need not be pointed out that even

if the court is satisfied that, in respect of one of the

corrupt practices alleged, material facts and full

particulars thereof have not been stated, still the election

petition cannot be dismissed, if in respect of another

corrupt practice the material facts and full particulars

have been stated in accordance with the requirement of

Section 83(1) of the Act.

13. In respect of the contention that the affidavit,

supporting the corrupt practices alleged to have been

committed by the appellant, is not as required by Section

83(1)(c) proviso, it was pointed out that reference has

been made in the affidavit to paragraph 746, which

contains the grounds for declaring the election of the

appellant to be void and has no relation to the paragraphs

giving particulars of corrupt practices. It is true that

instead of saying that the statements, made in paragraph

746 of the election petition about the commission of

corrupt practices, were true to the knowledge of the

appellant, it should have been stated that the statements,

made in paragraphs 49, 50, 50-A, 51 and 52 of the said

petition were true to his knowledge. But, from bare

reference to the other part of the affidavit, it shall appear

that it has also been said that making of religious appeal

to people and the particulars of the corrupt practices

mentioned in paragraphs 49, 50, 50-A, 51 and 52 of the

said election petition and the exhibits referred thereto,

were true to the knowledge of the appellant. According to

us, it cannot be held, in the facts and circumstances of the

present case, that there was no affidavit supporting the

allegations of corrupt practices, as required by Section

83(1)(c) proviso.”

45.

Heard learned counsel and perused petition.

46.

From

above,

following

points

arise

for

consideration:

i.Whether election petition is liable to be rejected on ground

of failure to indicate accrual of complete cause of action?

And

ii. Whether election petition is liable to be rejected for failure

to file verifying affidavit in prescribed Form no.25?

47.

Above application is filed for rejection of election

petition at threshold mainly on two grounds. Firstly, for failure

to plead accrual of complete cause of action as mandated by

Sections 81 and 100 of ROPA. And secondly, for failure to

disclose source of information as part of contention that there

was failure to file proper affidavit as required under Section 83

(1) (c) proviso read with Rule 94-A of Rules in prescribed Form

no.25.

48.

Insofar as failure to establish complete cause of

action, it is stated that allegation of corrupt practice was based

on pleading that a meeting was convened in Block Congress

Office,

Ramanagara

06.05.2023,

07.05.2023

and

09.05.2023 wherein, it was decided by respondent to print and

distribute gift cards to all voters in Ramanagara Assembly

Constituency and that respondent who was personally present

directed all Block Congress members and office bearers to

ensure that gift cards reach every voter and in pursuance of

same, persons named in paragraph no.8 of

petition

and

disturbed cards with consent of respondent.

49.

also

stated,

whether

petitioners

were

personally present in meeting or had knowledge about

proceedings of meeting from someone present

was

not

disclosed. It is stated that corrupt practices defined under

Section 123 of ROPA fell into two categories, first where corrupt

practice is committed by returned candidate or his election

agent or any other person with consent of returned candidate

or election agent. It is further stated, second kind were those

committed by any other person in interest

returned

candidate.

50.

It is further stated, Section

83(1)

ROPA

mandates statement of material facts on which petitioner relies

with full particulars of corrupt practice alleged to be signed and

verified and also accompanied by an affidavit in support of

allegation with full particulars of corrupt practice. It is further

stated, petitioners were required to state in affidavit filed in

Form 25 whether information about corrupt practice was within

their personal knowledge or they believed it to be true. It is

stated, petitioners had merely pleaded that gift cards were

distributed with consent of

returned

candidate

without

disclosing basis for such assumption, especially when persons

alleged to have distributed gift cards were not election agents.

51.

Insofar as meeting held at Congress office, Ijoor,

Ramanagara on 22.05.2023 at 4:30 p.m., where in press

conference, statement was alleged to be given by returned

candidate that gift cards given had not reached all concerned

and efforts would be made to honour, commitment. It is stated

that petitioners intend to imply consent by referring photograph

of returned candidate on such card and by asserting that

petitioners had voted in favour of returned candidate based on

such promise. It is stated that said allegations were inferential

and by attempting to circumvent requirement of pleading and

establishing consent, by means of clever drafting.

52.

It is also alleged that affidavits filed by petitioners

though stated to be in Form no.25, did not comply with

requirement of Section 83(1)(c) proviso read with Rule 94-A of

Rules and Form no.25. It is stated that full particulars of

material facts as mandated under Section 100 (1) (b) or

Section 100 (1) (d) (ii) were not complied and therefore,

petitioners had failed to establish accrual of complete cause of

action. On said ground, respondent sought for rejection of

election petition.

53.

Said contentions are sought to be reinforced with

observations of Hon’ble Supreme Court in Samant N

Balakrishna’s case (supra), V Narayanaswamy’s case

(supra),

Anil

Vasudev

Salgaonkar’s

case

(supra),

Kanimozhi Karunanidhi’s case (supra), and Azhar Hussain’s

case (supra).

54.

In Samant N. Balakrishna’s case (supra), it was

observed, under scheme of ROPA, corrupt practices were of two

kinds, first - those alleged to be committed by candidate

himself or his election agent or any other person with consent

of candidate or his election agent, where proof even single such

incident would render election void, without any further

requirement; And second - those committed by an agent other

than election agent, where additional fact that result of election

was materially affected due to same was required to be

established.

55.

It was further held material facts were those that

were absolutely necessary to establish accrual of complete

cause of action and omission to state even a single material

fact would render challenge against election bad, such material

facts were therefore required to be pleaded with full particulars,

to establish commission of corrupt practices of either of two

kinds.

56.

Insofar as meaning of full particulars of material

facts, it was observed, particulars of

name

person

committing corrupt practice, with date, time and place will have

to be mentioned, which would give a complete picture of

accrual of cause of action and mere recital of provisions of

enactments would not suffice.

57.

In V. Narayanaswamy’s case (supra), it is held, in

an election petition on allegation of corrupt practice, cause of

action cannot be equated with cause of action as is normally

understood because of consequences that follow. Allegation of

corrupt practices, if proved, not only does candidate suffer

ignominy, he also suffers disqualification from standing for

election for a period that may extend to six years. Therefore,

while noting difference between material facts and material

particulars, it was observed failure to plead material facts

would be fatal to election petition, absence of material

particulars can be cured at a later stage by an appropriate

amendment.

58.

It was observed that charge of corrupt practice

being quasi-criminal in nature, Court must insist on strict

compliance and that it was equally essential that particulars of

charge of allegations are clearly and precisely stated in petition

as required by Section 83, but also supported by affidavit,

wherein petitioner was obliged to disclose his source of

information in respect of commission of corrupt practice. It was

observed, he must state which of allegations were true to his

knowledge and which he believed to be true based

information received by him. It was further held that if relevant

paragraphs of petition, wherein material facts are stated were

not verified as required and allegation of corrupt practice was

open for two equally possible meanings, then election petition

would not survive. Under such circumstances, by applying

doctrine of substantial compliance, it would not be possible to

allow such defects to be cured later on and petition had to fail.

59.

In Anil Vasudev Salgaonkar’s case (supra), it

was held failure to assert, whether digging of bore-wells

(alleged to be corrupt practice) was with consent of returned

candidate, had not been specifically pleaded. Same was

considered as failure to disclose full particulars of material facts

which would be fatal to election petition.

60.

In Kanimozhi’s case (supra), observations made

were with reference to election affidavit required to be filed by

candidate in Form no.26, in context of requirement

maintaining purity of election, highlighting importance of such

affidavit. In said matter, challenge to election was on ground of

non-compliance with mandatory requirements of Section 33A of

ROPA regarding affidavit in Form no.26.

61.

In Azhar Hussain’s case, it was held though

Section 83 does not find a place in Section 86 of ROPA, it does

not mean that powers under the CPC cannot be exercised.

Referring to decision in case of Hardwari Lal v. Kanwal

Singh reported in (1972) 1 SCC 214, it was held that there

would be no escape from conclusion that an election petition

can be summarily dismissed if it does not furnish cause of

action in exercise of powers under CPC and appropriate orders

can be passed, if mandatory requirements enjoined by Section

83 of ROPA regarding statement of material facts in election

petition are not complied with.

62.

Insofar as requirement of disclosure of source of

information, it was held, where neither verification in petition

nor affidavit petitioner gives any indication of sources of

information as to facts stated in petition which are not to his

knowledge and petitioner persists that verification is correct

and affidavit in form prescribed does not suffer from any defect

allegations of corrupt practices cannot be inquired and tried at

all. In such a case, petition has to be rejected on threshold for

non-compliance with mandatory provisions of law as

pleadings. It is no part of duty of Court suo motu even to direct

furnishing of better particulars when objection is raised by

other side. Where petition does not disclose any cause of

action, it has to be rejected. Court, however, cannot dissect

pleadings into several parts and consider whether each one of

them discloses a cause of action. Petition has to be considered

as a whole. There cannot be a partial rejection of petition.

63.

Where several paragraphs of election

petition

alleging corrupt practices remain unaffirmed under verification

clause as well as affidavit, unsworn allegation could have no

legal existence and Court could not take cognizance thereof.

Defect of type provided in Section 83 of Act on other hand can

be dealt with under doctrine of

curability,

principles

contained in CPC. Non-compliance with provisions of Section 83

may lead to dismissal of petition if matter falls within scope of

Order 6 Rule 16 and Order 7 Rule 11 of CPC.

64.

other

hand,

main

ground

for

opposing

application is that requirement of filing of affidavit as stipulated

in Section 83 (1) (c) of ROPA is not mandatory, if there is

substantial compliance and that it would be a curable defect, by

relying upon decision in Thangjam Arunkumar’s case (supra).

Said decision referred to Prajwal Revanna’s case (supra). It

was therefore contended that at stage of consideration of

application for rejection of petition under Order VII Rule 11 of

CPC, it was not necessary to examine compliance with filing of

affidavit in Form no.25.

65.

Insofar as disclosure of material facts with full

particulars, it is contended that same cannot be

read

requiring statement of all facts, but, statement of necessary

particulars as would enable returned candidate to understand

accrual of complete cause of action with regard to corrupt

practice alleged. It was submitted, corrupt practice alleged

against returned candidate in instant case is ‘bribery’ falling

under Section 100 (1) (b) and (d) (ii) of ROPA, by distribution

of gift cards to induce voters to vote for returned candidate. It

was contended that necessary particulars of meeting i.e., date,

time and place, presence of returned candidate and about his

instruction for distribution/consent for distribution of gift cards

to all voters of constituency were clearly pleaded.

66.

It is further submitted, in paragraph no.8, details of

date, time and place and person/s who distributed gift cards to

each of petitioners, with consent of returned candidate as

inducement to vote for him

election

scheduled

10.05.2023 were also pleaded. In fact there is also assertion

about registration of FIR against returned candidate and others

for offences punishable under Section 123(1) (A) and (B), 127-

A of ROPA. It was contended that these particulars would be

sufficient to meet requirements of Section 83.

67.

In Bhim Rao Baswanth Rao Patil’s case (supra),

Hon’ble Supreme Court held High Court fell in error in taking

note of contentions of parties as well as pleadings, while

considering application under Order VII Rule 11 of CPC, as

overall statement of facts available on record did not lead to a

compelling reason for rejecting election petition. Accordingly,

appellant's application was dismissed, and contentions were

kept open to be agitated during trial.

68.

A three judges Bench of Hon’ble Supreme Court in

Madiraju Venkata Ramana Raju’s case (supra); two judges

benches in Ajay Arjun Singh’s case (supra) and Ashraf

Kokkur’s cases (supra), after reference to earlier decisions in

Azhar Hussain’s case (supra), V.S.Achutanandan’s cases

(supra), Hari Shanker Jain v. Sonia Gandhi, reported in

(2001) 8 SCC 233, Samant N. Balkrishna v. George

Fernandez, reported in (1969) 3 SCC 238, Syed Dastagir v.

T.R. Gopalakrishna Setty, reported in (1999) 6 SCC 337,

and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express,

reported in (2006) 3 SCC 100, Ponnala Lakshmaiah’s case

(supra), Ram Sukh’s case (supra), Virendra Nath Gautham’s

case (supra), D.Ramachandran’s case (supra), held that

entire petition has to be read as whole to identify whether it

discloses cause of action and if there is substantial compliance,

petition cannot be rejected under Order VII rule 11 of CPC.

69.

In V.S. Achutanandan’s case (supra) three judges

Bench of Hon’ble Supreme Court explained distinction between

material fact and particulars. It held, material particulars can

be added by way of amendment later on, and Courts would not

be justified in dismissing petition at threshold stage on ground

of failure to disclose material pleadings.

70.

Another three judges Bench of Hon’ble Supreme

Court in Subash Desai’s case (supra) clarified purpose behind

Section 83 of ROPA, that it was not only procedural but had an

object behind it, namely, that a person need not be called upon

to answer an allegation of corrupt practice, precise details of

which are not set out properly. It was observed that it would be

prejudicial to be called upon to defend vague and reckless

charges, which are made without taking responsibility

verifying correctness of. It

was

observed,

before

Court

proceeds to investigate such allegations, it must be satisfied

that material facts with full particulars of corrupt practice are

stated and which have been duly supported by affidavit. And

assertion that ‘contents of paragraphs … and … were true to his

knowledge’ would be sufficient.

71.

Admittedly, corrupt practice alleged to have been

committed by returned candidate in instant case is bribery by

offering gift card as gratification for inducing electors to vote

for returned candidate. As per decision of Hon’ble Supreme

Court in case of Surinder Singh v. Hardial Singh, reported in

(1985) 1 SCC 91, standard of proof applicable in election

petitions would be proof beyond reasonable doubt.

72.

As noted above, three judges Bench of Hon’ble

Supreme Court in V. Narayanaswamy’s case (supra) has

held, cause of action in an election petition on allegation of

corrupt practice, cannot be equated with cause of action as is

normally understood, due to consequences that follow. It is

held, in case of defective material facts, petition has to be

rejected at outset, but in case of failure to plead all material

particulars, defect was curable. It is further clarified, where

inspite of opportunity to cure defects in providing material

particulars, there is failure, petition has to be rejected.

73.

It is seen that petitioners herein have opposed

application for rejection of petition, by contending

that

averments in election petition disclose accrual of complete

cause of action with sufficient material particulars and it does

not suffer from defect. Even from their contention that they are

not obliged to disclose material facts with all particulars, but

only those, as would be sufficient to

indicate

accrual

complete cause of action, same stand can be deduced.

74.

Even insofar as contention about failure to disclose

‘source of information’ as a material omission,

petitioners

contend that verifying affidavit clearly states that petition

averments were within personal knowledge. Only, as regards

requirement of filing affidavit in prescribed form, they claim

liberty to cure defect.

75.

Before examining whether there is failure to plead

all material facts, it would be appropriate to refer to

observations of Hon’ble Supreme Court in Samant N.

Balakrishna’s case (supra), that under scheme of ROPA,

‘corrupt practices’ are of two kinds, first - those alleged to be

committed by candidate himself or his election agent or any

other person with consent of candidate or his election agent

and where proof even single such incident would render

election void, without any further requirement.

76.

While, second kind were those committed by an

agent other than election agent, where additional fact that

result of election was materially affected due to such corrupt

practice would be required to be established. It is not in dispute

that allegation against returned candidate in instant case is

commission of ‘corrupt practice’ of first kind.

77.

Perusal of election petition would indicate

that

petition is filed by six electors of Ramanagara Assembly

Constituency no.183. In paragraphs no.3 and 4, there are

averments about notification issued by Election Commission on

29.03.2023 for holding General Elections to 16^th Legislative

Assembly of Karnataka, with details of calendar of events. In

paragraph no.6, details of petitioners’ names in electoral rolls

are stated. It is also stated that returned candidate herein had

contested election on ticket sponsored by Indian National

Congress. Thereafter, it is stated that

election

results

declared on 13.05.2023, respondent herein was returned

candidate issued with Form no.21E.

78.

As contended, material facts regarding commission

of corrupt practice by returned candidate are stated in

paragraph no.8. It is stated that on 6^th May, 7^th May, and 9^th

May of 2023, returned candidate had convened meeting in

Block Congress Office, Ramanagara, wherein it was decided by

returned candidate to “print and distribute” “gift cards” to all

voters of Assembly Constituency no.183. It is specifically

averred that returned candidate was personally present and

directed all Block Congress Members, supporters and office

bearers to ensure that gift cards reach every single voter. And

in pursuance of said direction, gift cards were distributed to

voters including petitioners.

79.

Thereafter, particulars of person who handed over

gift cards to each of petitioners with time and place of handing

over of gift card are stated. It is stated that Mrs.Roopa wife of

Bhadragiri Gowda, Block Congress President, Harohalli –

Maralawadi Block handed over gift card to petitioner no.1 at

8:00 a.m. on 10.05.2023 near Government Higher Primary

School,

Godur

Polling

Station

no.198.

Likewise,

one

Mr.Venkataramana Shetty, a supporter of INC handed over a

gift card to petitioner no.2 at his residence on 10.05.2023 at

3:00 a.m. It is also stated that Mr.Mallesh, Bommachanahalli

Panchayat Member, handed over gift card to petitioner no.3 in

his residence at 2:00 a.m. on 10.05.2023. It is also stated that

Mr.Kaggalaiah S/o Maregowda, Ex-Member

Sugganahalli

Gram Panchayat, handed over gift card to petitioner no.4 in his

residence at 4:00 a.m. on 10.05.2023. It is also stated that

Mr.L.Umashankar S/o C.Lingaiah, Class-I Contractor, handed

over gift card to petitioner no.5 in his residence at 5:00 a.m. on

10.05.2023. It is also stated that Mr.Siddesh S/o Kariyappa, a

supporter of INC, handed over gift card to petitioner no.6 in his

residence at 2:00 a.m. on 10.05.2023.

80.

Careful perusal of above averments would indicate

that petitioners have indeed pleaded about ‘printing and

distribution of gift cards’ with consent of returned candidate.

But, without specific assertion, how said gift card could be

considered as ‘gratification or reward’, when copy of gift card

produced, does not bear indication of any value attached to it.

They have also not asserted that person while handing over gift

card had disclosed to them about such value and mode of

encashment

such

value

constitute

inducement

gratification.

81.

While averments regarding handing over of ‘gift

card’ to each of petitioner is stated individually, there is general

assertion in last part of paragraph no.8,

that

they

were

informed gift card would be activated, if they voted for returned

candidate. There is further general assertion that after voting,

petitioners could go to any shopping centre in Ramanagara

District and purchase items worth Rs.5000/-, and therefore gift

card made them to vote for returned candidate. It is also stated

when immediately after voting when petitioners went to

BIGMART SUPER BAZAR, Ramanagara on 10.05.2023 itself, Bar

Code in card did not work and they realized that they were

falsely induced to vote for returned candidate.

82.

It is thereafter stated that instances of corrupt

practice committed by respondent and his

followers,

with

consent of returned candidate was admitted by him in press

conference explained in detail in paragraph no.9.

83.

Such

general

assertion

without

disclosing

particulars of who, when and where, informed

each

petitioners that gift card was associated with monetary or other

value which could be considered as gratification or inducement.

Thus, chain of events for establishing commission of corrupt

practice falling under Section 123 (1) (A) (b) of ROPA i.e. offer

of inducement to an elector to vote or refrain from voting at an

election as a reward, cannot be complete.

84.

Keeping in mind that petitioners have alleged

inducement or gratification to be pecuniary in nature, it is seen

that, there are also no specific assertions that shopping centers

in Ramanagara District agreed to be conduits of returned

candidate in commission of corrupt practice, which would also

be material particular to complete chain of events to establish

commission of corrupt practice by returned candidate. Unless

petitioners specifically disclosed name of

person

who

had

offered inducement to them, with particulars regarding place,

time and date, even claim of admission by returned candidate

in subsequent press conference held on 22.05.2023 about

distribution of gift cards would not complete chain of events for

commission of corrupt practice falling under Section 123 (1) (A)

(b) (ii) of ROPA i.e. offer of inducement to an elector for having

voted or refrained from voting.

85.

Later assertion that immediately after voting, they

went to shopping center etc. to encash promise of gratification

or inducement as informed to them, and found it to be false

promise, and further statements that corrupt practice was

committed with consent of returned candidate was admitted by

him in press conference held on 22.05.2023 at 4:30 p.m. at

Congress Office, Ijoor, Ramanagara, in respect of which

petitioners have incorporated transcript and translation of

entire statements made by returned candidate, would be

immaterial.

86.

As per settled law, complete cause of action would

mean entire chain of events that would connect allegation of

bribery and inducement committed by returned candidate, his

election agent or any other person with his consent. It is held in

C.P. John v. Babu M. Palissery, reported in (2014) 10 SCC

547, it is held omission to plead even a single material fact

would be fatal.

87.

In Anil Vasudev Salgaonkar’s case (supra), in

context of a charge of corrupt practice, it was held “material

facts” would mean all basic facts constituting ingredients of

particular corrupt practice alleged, which petitioner is bound to

substantiate before he can succeed on that charge and if

“material facts” were missing even after expiry of period of

limitation for filing election petition, pleading becomes deficient.

In such context, failure to assert, whether digging of bore-wells

(alleged to be corrupt practice) was with consent of returned

candidate, which had not been specifically pleaded, was

considered as failure to disclose full particulars of material facts

and held fatal to election petition.

88.

Thus from above, analysis, there is failure to plead

how offer of gift card acted as inducement or gratification upon

petitioners would be a fatal defect. Point (i) is

therefore

answered in affirmative.

89.

Insofar as point (ii), proviso to Section 83 (1) (c)

requires election petitioner to file affidavit in support of

allegations of corrupt practice in addition to verification of

pleadings as required by provisions of CPC. Rule 94A of Rules

prescribes form in which affidavit is required to be filed as per

above proviso.

90.

Same is no more res integra, in view of recent

decision of Hon'ble Supreme Court in case of Prajwal

Revanna’s case (supra) referring to Ponnala Lakshmaiah’s

case (supra), three judges Bench decision in G.M.

Siddeshwar’s case (supra) and Constitution Bench decision in

case of Murarka Radhey Shyam Ram Kumar v/s Roop

Singh Rathore, reported in AIR 1964 SC 1545, has held

said requirement to be not mandatory and curable. Therefore,

point

(ii) is answered in negative.

91. Hence, following:

ORDER

I.A.no.2/2023 filed by returned candidate under Order VII

Rule 11 of CPC is allowed.

Consequently, Election Petition is dismissed.

Sd/-

JUDGE

GRD ;List No.: 19 Sl No.: 1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 14^TH DAY OF MARCH, 2024

BEFORE

THE HON'BLE MR JUSTICE RAVI V HOSMANI

ELECTION PETITION NO. 8 OF 2023 (-)

BETWEEN:

MR. GOVINDARAJU, S/O KULLAYYA,

AGED ABOUT 37 YEARS,

R/AT NO.8, CHOWVAYANADODDI,

MARALAVADI, MARIGOODADODDI,

KANAKAPURA, RAMANAGARA – 562 121,

(EPIC NO.XZQ2755973)

MR. SIDDEGOWDA S., S/O SHIVANEGOWDA,

AGED ABOUT 66 YEARS,

R/AT 69-A, HOSATHOKASANDRA,

GUTTALAHUNASE POST,

KANAKPURA TALUK,RAMANAGARA – 562 121.

(EPIC NO.XZQ4196523)

MR. MANJUNATH R.,S/O RAJANNA,

AGED ABOUT 28 YEARS,

R/AT NO.72, HALLIBIDDI,

DODDASADENAHALLI, R

RAMANAGARA – 562 121.

(EPIC NO.XZQ3851862)

MR. PUTTARAJU B.,S/O LATE BASAVARAJ,

AGED ABOUT 38 YEARS,

R/AT NO.94, JAKKASANDRA VILLAGE,

KANAKPURA TAUK, RAMANAGARA – 562 121.

(EPIC NO.XZQ1226653)

MR. LOKESHA,S/O NAGEGOWDA,

AGED ABOUT 46 YEARS,

R/AT KALLANAKUPPE VILLAGE,

MARALAVADI HOBLI,

KALLANAKUPPE, RAMANAGARA – 562 121.

(EPIC NO.XZQ2668036)

…. PETITIONERS

(BY SRI A.V. SRIHARI, ADVOCATE)

AND:

MR. H .A. IQBAL HUSSAIN,

S/O LATE ABDUL BASHEER SAB,

AGED ABOUT 62 YEARS,

R/AT NO.86, HUKUNDA VILLAGE,

UYYAMBALLI HOBLI,

KANAKAPURA TALUK,

RAMANAGARA – 562 119.

… RESPONDENT

(BY SRI C.S. PATIL AND SRI RAVINDRANATH K., ADVOCATES)

THIS ELECTION PETITION IS PRESENTED UNDER SECTION 81

OF THE REPRESENTATION OF PEOPLE ACT, 1951, BY SRI

GOVINDARAJU

AND

OTHERS,

PETITIONERS-ELECTORS

ALONGWITH HIS COUNSEL SRI GIRISH KUMAR B.M., MADHU T.M.

(ADVOCATES

FOR

PETITIONERS)

BEFORE

THE

REGISTRAR

(JUDICIAL) ON 26.06.2023 (THE PROCEEDINGS OF REGISTRAR

(JUDICIAL) IS AT PAGE NO.1 OF THE PETITION), CHALLENGING THE

ELECTION OF RESPONDENT MR. H.A. IQBAL HUSSAIN, FROM 183,

RAMANAGARA ASSEMBLY CONSTITUENCY, 2023 TO THE KARNATAKA

LEGISLATIVE ASSEMBLY 2023 AND THE PETITIONER PRAYS THIS

HON’BLE COURT TO (A) CALL FOR RECORDS. (B) SET ASIDE THE

ELECTION OF THE RESPONDENT TO THE 16^TH KARNATAKA

LEGISLATIVE ASSEMBLY FROM NO.183-RAMANAGARA ASSEMBLY

CONSTITUENCY,

KARNATAKA,

LEGISLATIVE

ASSEMBLY

FOR

COMMITTING CORRUPT PRACTICE OF BRIBERY AND ETC.

THIS PETITION, COMING ON FOR ORDERS ON IA, THIS DAY,

THE COURT MADE THE FOLLOWING:

ORDER

This petition is filed seeking for following reliefs:

A. Call for records;

B. Set aside the Election of the Respondent to the

16^th Karnataka Legislative Assembly From no.183 –

Ramanagara

Assembly

Constituency,

Karnataka

Legislative Assembly.

In said petition, respondent (hereinafter referred to

as ‘returned candidate’) has filed I.A.no.2/2023 under Order VII

Rule 11 (a) to (d) of Code of Civil Procedure, 1908 (‘CPC’ for

short) for rejection of petition as devoid of cause of action,

failure to comply with mandatory requirements in terms of

Section 81 and untenable in terms of Section 100 of

Representation of People Act, 1951 (‘ROPA’ for short).

Learned counsel for respondent submitted that he

had contested election for being elected ‘Member of Legislative

Assembly of Karnataka’ from Ramanagara Constituency in

election held on 10.05.2023 and was declared on 13.05.2023

as returned candidate. It was submitted, on ground that above

petition was frivolous apart from being non-compliant with

mandatory requirements of ROPA. Therefore, respondent had

filed I.A.no.2/2023 for rejection of petition.

It was submitted that Section

ROPA

prescribes contents of election petition filed under Section 80 of

ROPA as follows:

“83. Contents of petition.—

(1) An election petition—

(a) shall contain a concise statement of the material facts

on which the petitioner relies;

(b) shall 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; and

(c) shall be signed by the petitioner and verified in the

manner laid down in the Code of Civil Procedure, 1908

(5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt

practice, the petition shall also be accompanied by an

affidavit in the prescribed form in support of the allegation

of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be

signed by the petitioner and verified in the same manner

as the petition.

As per Section 83 (1) (a), petition is required to

disclose concise statement of material facts on which petitioner

relies, while clause (b) requires it to set forth full particulars of

any corrupt practice that petitioner alleges including names of

persons involved as well as date and place of commission of

each such corrupt practice. Proviso to sub-section (1) mandates

petitioner filing an affidavit in prescribed form in support of

allegation of corrupt practice with particulars thereof. It was

submitted, above requirements were mandatory and failure to

comply would render petition untenable and liable for rejection

Learned counsel further submitted that Section 100

of ROPA provided limited grounds on which election of

candidate could be declared void. It was submitted, in case of

corrupt practice, Section 100 (1) (b) provided that election

could be declared void only on finding that such corrupt

practice was committed with consent of returned candidate or

his election agent, while sub-section (2) provided that if such

corrupt practice was committed contrary to orders or without

consent of candidate or his election agent

that

such

candidate had taken reasonable care for preventing commission

of corrupt practices, election could not be declared void.

It was submitted that corrupt practice for purposes

of ROPA was defined in Section 123 of ROPA as follows:

“123. Corrupt practices.—The following shall be deemed

to be corrupt practices for the purposes of this Act:—

(1) “Bribery”, that is to say—

(A) any gift, offer or promise by a candidate or his agent

or by any other person with the consent of a candidate or

his election agent of any gratification, to any person

whomsoever, with the object, directly or indirectly of

inducing—

(a) a person to stand or not to stand as, or to withdraw or

not to withdraw from being a candidate at an election, or

(b) an elector to vote or refrain from voting at an election,

or as a reward to—

(i) a person for having so stood or not stood, or for having

withdrawn or not having withdrawn his candidature; or

(ii) an elector for having voted or refrained from voting;

(B) ......... ”

Explanation.—For the purposes of this clause the term

“gratification” is not restricted to pecuniary gratifications

or gratifications estimable in money and it includes all

forms of entertainment and all forms of employment for

reward but it does not include the payment of any

expenses bona fide incurred at, or for the purpose of, any

election and duly entered in the account of election

expenses referred to in Section 78.

(2) Undue influence, that is to say, any direct or indirect

interference or attempt to interfere on the part of the

candidate or his agent, or of any other person with the

consent of the candidate or his election agent, with the

free exercise of any electoral right:”

It was submitted, perusal of present petition filed

by common voters did not disclose a clear case of corrupt

practice committed by respondent or his election agent with his

consent as defined by Section 123 to substantiate grounds for

declaring election void provided in Section 100 and therefore,

petition was liable to be rejected

threshold.

was

submitted, in order to make out case of commission of corrupt

practice, petitioners were required not only to state material

facts on which they relied, but also disclose full particulars of

corrupt practice with names, date and place.

It was submitted petitioners - common voters had

sought to substantiate allegation of corrupt practice against

respondent by stating that corrupt practice was as per his

instructions, by referring to a meeting alleged to be held at

Block Congress Office, but they have not disclosed source of

information, whether personal or person from whom they had

got information as ‘source of information’ itself would be a

‘material particular’ as per requirements of Section 83 read

with Sections 100 and 123 of ROPA. It was submitted even

particulars of persons who had attended such meeting etc., are

also not pleaded which would be a fatal flaw.

10.

It was submitted, though copy of guarantee card

was enclosed to petition, same would not have evidentiary

value for present purposes in absence of particulars about date

of issue, person who issued it, validity and whether it was

issued either by or at behest of respondent. Admittedly, no

complaint has been filed against respondent or his election

agent either before Chief Election Officer or jurisdictional police

station.

11.

It was further submitted, election petition was also

defective on ground that it was not accompanied by affidavit in

form prescribed under Rule 94A of the Conduct of Election

Rules, 1961 (hereinafter referred to as ‘Rules’).

was

submitted, requirement of filing affidavit in form

was

required as per Rule 94A. It was submitted, form of affidavit

required deponent to disclose source of information, whether

personal knowledge or otherwise. Since, affidavit failed to

clarify source of information, affidavit filed did not confirm

requirement, which had to be viewed as material and fatal flaw.

Consequently election petition was liable to be dismissed.

12.

It was further submitted that Section 127-A of

ROPA requires name and address of printers and publisher

thereof on every election pamphlet or poster. It was submitted,

copy of guarantee card sought to be relied upon by petitioners

does not comply with said requirement. Mere presence of

photograph

of respondent and party symbol would not

substantiate that it was published and distributed either with

consent or as per instructions of respondent. Moreover, there is

no action initiated against anyone for violation of Section 127-A

of ROPA. Therefore, said document did not have evidentiary

value. Consequently, when entire allegation of corrupt practice

alleged against respondent in election petition is based on

guarantee card, it would be futile to permit election petition to

proceed to be put to trial. Hence, election petition was liable to

be dismissed.

13.

It was further submitted unlike assertion in petition,

copy of only one gift card is produced. Non-production of gift

cards issued to all petitioners would be fatal as gift cards is

fundamental basis of their petition.

14.

In support of his submissions, learned counsel

sought to rely on observations of Hon’ble Supreme Court in

case of Samant N. Balkrishna v. George Fernandez,

reported in (1969) 3 SCC 238, in following paragraphs:

“25. Pausing here, we may view a little more closely the

provisions bearing upon corrupt practices in Section 100.

There are many kinds of corrupt practices. They are

defined in Section 123 of the Act and we shall come to

them later. But the corrupt practices are viewed separately

according as to who commits them. The first class consists

of corrupt practices committed by the candidate or his

election agent or any other person with the consent of the

candidate or his election agent. These, if established, avoid

the election without any further condition being fulfilled.

Then there is the corrupt practice committed by an agent

other than an election agent. Here an additional fact has to

be proved that the result of the election was materially

affected. We may attempt to put the same matter in easily

understandable language. The petitioner may prove a

corrupt practice by the candidate himself or his election

agent or someone with the consent of the candidate or his

election agent, in which case he need not establish what

the result of the election would have been without the

corrupt practice. The expression “Any other person” in this

part will include an agent other than an election agent. This

is clear from a special provision later in the section about

an agent other than an election agent. The law then is this:

If the petitioner does not prove a corrupt practice by the

candidate or his election agent or another person with the

consent of the returned candidate or his election agent but

relies on a corrupt agent, he must additionally prove how

the corrupt practice affected the result of the poll. Unless

he proves the consent to the commission of the corrupt

practice on the part of the candidate or his election agent

he must face this additional burden. The definition of agent

in this context is to be taken from Section 123

(Explanation) where it is provided that an agent “includes

an election agent, a polling agent and any person who is

held to have acted as an agent in connection with the

election with the consent of the candidate.” In this

explanation the mention of “an election agent” would

appear to be unnecessary because an election agent is the

alter ego of the candidate in the scheme of the Act and his

acts are the acts of the candidate, consent or no consent

on the part of the candidate.

29. Having dealt with the substantive law on the subject of

election petitions we may now turn to the procedural

provisions in the Representation of Peoples Act. Here we

have to consider Sections 81, 83 and 84 of the Act. The

first provides the procedure for the presentation of election

petitions. The proviso to sub-section alone is material here.

It provides that an election petition may be presented on

one or more of the grounds specified in sub-section (1) of

Section 100 and Section 101. That as we have shown

above creates the substantive right. Section 83 then

provides that the election-petition must contain a concise

statement of the material facts on which the petitioner

relies and further that he must also 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.

The section is mandatory and requires first a concise

statement of material facts and then requires the fullest

possible particulars. What is the difference between

material facts and particulars? The word “material” shows

that the facts necessary to formulate a complete cause of

action must be stated. Omission of a single material fact

leads to an incomplete cause of action and the statement

of claim becomes bad. The function of particulars is to

present as full a picture of the cause of action with such

further information in detail as to make the opposite party

understand the case he will have to meet. There may be

some overlapping between material facts and particulars

but the two are quite distinct. Thus material facts will

mention that a statement of fact (which must be set out)

was made and it must be alleged that it refers to the

character and conduct of the candidate that it is false or

which the returned candidate believes to be false or does

not believe to be true and that it is calculated to prejudice

the chances of the petitioner. In the particulars the name

of the person making the statement, with the date, time

and place will be mentioned. The material facts thus will

show the ground of corrupt practice and the complete

cause of action and the particulars will give the necessary

information to present a full picture of the cause of action.

In stating the material facts it will not do merely to quote

the words of the section because then the efficiency of the

words “material facts” will be lost. The fact which

constitutes the corrupt practice must be stated and the fact

must be co-related to one of the heads of corrupt practice.

Just as a plaint without disclosing a proper cause of action

cannot be said to be a good plaint, so also an election

petition without the material facts relating to a corrupt

practice is no election petition at all. A petition which

merely cites the sections cannot be said to disclose a cause

of action where the allegation is the making of a false

statement. That statement must appear and the particulars

must be full as to the person making the statement and the

necessary information. Formerly the petition used to be in

two parts. The material facts had to be included in the

petition and the particulars in a schedule. It is

inconceivable that a petition could be filed without the

material facts and the schedule by merely citing the corrupt

practice from the statute. Indeed the penalty of dismissal

summarily was enjoined for petitions which did not comply

with the requirement. Today the particulars need not be

separately included in a schedule but the distinction

remains. The entire and complete cause of action must be

in the petition in the shape of material facts, the particulars

being the further information to complete the picture. This

distinction is brought out by the provisions of Section 86

although the penalty of dismissal is taken away. Sub-

section (5) of that section provides:

“(5) The High Court may, upon such terms as to costs

and otherwise as it may deem fit, allow the particulars of

any corrupt practice alleged in the petition to be

amended or amplified in such manner as may in its

opinion be necessary for ensuring a fair and effective

trial of the petition, but shall not allow any amendment

of the petition which will have the effect of introducing

particulars of a corrupt practice not previously alleged in

the petition.”

The power of amendment is given in respect of particulars

but there is a prohibition against an amendment “which will

have the effect of introducing particulars of a corrupt

practice not previously alleged in the petition.” One alleges

the corrupt practice in the material facts and they must

show a complete cause of action. If a petitioner has

omitted to allege a corrupt practice, he cannot be

permitted to give particulars of the corrupt practice. The

argument that the latter part of the fifth sub-section is

directory only cannot stand in view of the contract in the

language of the two parts. The first part is enabling and the

second part creates a positive bar. Therefore, if a corrupt

practice is not alleged, the particulars cannot be supplied.

There is, however, a difference of approach between the

several corrupt practices. If for example the charge is

bribery of voters and the particulars give a few instances,

other instances can be added; if the charge is use of

vehicles for free carriage of voters, the particulars of the

cars employed may be amplified. But if the charge is that

an agent did something, it cannot be amplified by giving

particulars of acts on the part of the candidate or vice

versa. In the scheme of election law there are separate

corrupt practices which cannot be said to grow out of the

material facts related to another person. Publication of

false statements by an agent is one cause of action,

publication of false statements by the candidate is quite a

different cause of action. Such a cause of action must be

alleged in the material facts before particulars may be

given. One cannot under the cover of particulars of one

corrupt practice give particulars of a new corrupt practice.

They constitute different causes of action.

30. Since a single corrupt practice committed by the

candidate, by his election agent or by another person with

the consent of the candidate or his election agent is fatal to

the election, the case must be specifically pleaded and

strictly proved. If it has not been pleaded as part of the

material facts, particulars of such corrupt practice cannot

be supplied later on. The bar of the latter part of the fifth

sub-section to Section 86 then operates. In the petition as

originally filed the agency of Jagadguru Shankaracharya,

Mr Madhu Limaye and the Maratha (or Mr.Atrey) was the

basis of the charge and the candidate Mr.Fernandez was

left out. No allegation was personally made against him.

The only allegations against him personally were contained

in para 2-G. There it was said that Mr.Fernandez had made

certain speeches to the effect that Mr.Patil was against the

Muslims and Christians. No evidence was led and they were

not even referred to at the hearing before us. The next

reference in 2-J is to statements of Mr.Fernandez and

published by the Maratha. These were specified and only

three such statements were included. Since the gist of the

election offence is the publication of false statements, the

charge is brought home to the candidate through the

publication by the Maratha. It is to be remembered that

even the allegation that in doing so the Maratha acted as

the agent of Mr.Fernandez, itself came by way of an

amendment which we allowed as it completed the cause of

action and is permissible. The bar of Section 86(5) (latter

part) does not apply to it and under Order 6 Rule 17 of the

Code of Civil Procedure which is applicable as far as may

be, such an amendment can be made. Similarly the

allegations that such statements were false or were

believed to be false or were not believed to be true by the

Maratha (i.e., Mr.Atrey) and that they were calculated to

prejudice Mr.Patil's chances and did so, were allowed by us

to be added as completing the cause of action relating to a

corrupt practice already alleged. But we declined to allow

to stand the amendments which had the effect of

introducing new corrupt practices relating to the candidate

himself which had not been earlier pleaded. This kind of

amendment is prohibited under the law when the

amendment is sought after the period of limitation.

37. From our examination of all the cases that were cited

before us we are satisfied that an election petition must set

out a ground or charge. In other words, the kind of corrupt

practice which was perpetrated together with material facts

on which a charge can be made out must be stated. It is

obvious that merely repeating the words of the statute

does not amount to a proper statement of facts and the

section requires that material facts of corrupt practices

must be stated. If the material facts of the corrupt practice

are stated more or better particulars of the charge may be

given later, but where the material facts themselves are

missing it is impossible to think that the charge has been

made or can be later amplified. This is tantamount to the

making of a fresh petition.

45. Mr Jethamalani contended in further support that there

was a clear similarity in the statements and utterances of

Mr Fernandez and Mr Atrey. He inferred a high probability

of concert between them. In this connection he referred in

particular to the speech of Mr Fernandez at Shivaji Park

and the conduct of Shanbhag, one of his workers, in

following up what Mr Fernandez had said. We shall refer to

this last part later, on which a considerable part of the time

of the Court was spent, although we had ruled out the

amendment with regard to the speech at Shivaji Park. Mr

Jethamalani referred to the following cases among others

in support of his contention that consent in such

circumstances may be assumed: Nani Gopal

Swami v. Abdul Hamid Chaudhary [1959 Ass

200]. Adams v. Hon. F.F. Leveson Gower [1 O'Malley and

Hardcastls 218]; Christie v. Grieve and W.F. Spencer [1

O'Malley and Hardcastls 251] ; John Blundell v. Charles

Harrison [3 O'Malley and Hardcaitis 148] . There is no

doubt that consent need not be directly proved and a

consistent course of conduct in the canvass of the

candidate may raise a presumption of consent. But there

are cases and cases. Even if all this is accepted we are of

opinion that consent cannot be inferred. The evidence

proves only that Mr Atrey was a supporter and that

perhaps established agency of Mr Atrey. It may be that

evidence is to be found supporting the fact, that Mr Atrey

acted as agent of Mr Fernandez with his consent. That

however, does not trouble us because Mr Chari admitted

that Mr Atrey can be treated as an agent of Mr Fernandez.

It is however, a very wide jump from this to say that Mr

Fernandez had consented to each publication as it came or

even generally consented to the publication of items

defaming the character and conduct of Mr Patil. That

consent must be specific. If the matter was left entirely in

the hands of Mr Atrey who acted solely as agent of Mr

Fernandez, something might be said as was done in Rama

Krishna case by this Court. Otherwise there must be some

reasonable evidence from which an inference can be made

of the meeting of the minds as to these publications or at

least a tacit approval of the general conduct of the agent. If

we were not to keep this distinction in mind there would be

no difference between Section 100(1)(b) and 100(1)(d)

insofar as an agent is concerned. We have shown above

that a corrupt act per se is enough under Section 100(1)(b)

while under Section 100(1)(d) the act must directly affect

the result of the election insofar as the returned candidate

is concerned. Section 100(1)(b) makes no mention of an

agent while Section 100(1)(d) specifically does. There must

be some reason why this is so. The reason is that an agent

cannot

make

the

candidate

responsible

unless

the

candidate has consented or the act of the agent has

materially affected the election of the returned candidate.

In the case of any person (and he may be an agent) if he

does the act with the consent of the returned candidate

there is no need to prove the consent of the returned

candidate and there is no need to prove the effect on the

election. Therefore, either Mr Jethamalani must prove that

there was consent and that would mean a reasonable

inference from facts that Mr Fernandez consented to the

acts of Mr Atrey or he must prove that the result of the

election was seriously affected. If every act of an agent

must be presumed to be with the consent of the candidate

there would be no room for application of the extra

condition laid

down

by Section 100(1)(d), because

whenever

agency

proved

either

directly

circumstantially, the finding about consent under Section

100(1)(d) will have to follow. We are clearly of opinion that

Mr Jethamalani's argument that Section 100(1)(b) applies

can only succeed if he establishes consent on the part of Mr

Fernandez.

47. The meeting at Shivaji Park about which we shall say

something presently, was not held in Mr Fernandez's

constituency. The similarity of ideas or even of words

cannot be pressed into service to show consent. There was

a stated policy of Sampurna Maharashtra Samiti which

wanted to join in Maharashtra all the areas which had not

so far been joined and statements in that behalf must have

been made not only by Mr Atrey but by several other

persons. Since Mr Atrey was not appointed as agent we

cannot go by the similarity of language alone. It is also

very significant that not a single speech of Mr Fernandez

was relied upon and only one speech of Mr Fernandez

namely, that at Shivaji Park was brought into arguments

before us by an amendment which we disallowed. The best

proof would have been his own speech or some

propaganda material such as leaflets or pamphlets etc. but

none was produced. The “Maratha” was an independent

newspaper not under the control of the Sampurna

Maharashtra Samiti or the S.S.P. which was sponsoring Mr

Fernandez or Mr Fernandez himself. Further we have ruled

out news items which it is the function of the newspaper to

publish. A news item without any further proof of what had

actually happened through witnesses is of no value. It is at

best a second-hand secondary evidence. It is well-known

that reporters collect information and pass it on to the

editor who edits the news item and then publishes it. In

this process the truth might get perverted or garbled. Such

news items cannot be said to prove themselves although

they may be taken into account with other evidence if the

other evidence is forcible. In the present case the only

attempt to prove a speech of Mr Fernandez was made in

connection with the Shivaji Park meeting. Similarly the

editorials state the policy of the newspaper and its

comment upon the events. Many of the news items were

published in other papers also. For example Free Press

Journal, the Blitz and writers like Welles Hengens had also

published similar statements. If they could not be regarded

as agents of Mr Fernandez we do not see any reason to

hold that the “Maratha” or Mr Atrey can safely be regarded

as agent of Mr Fernandez when acting for the newspaper so

as to prove his consent to the publication of the

defamatory matter. We are therefore of opinion that

consent cannot reasonably be inferred to the publications

in the “Maratha”. We are supported in our approach to the

problem by a large body of case law to which our attention

was drawn by Mr Chari. We may refer to a few cases here

: Bishwanath Upadhaya v. Hardal Das [1958 Ass 97]

; Abdul Majeed v. Bhargavan (Krishnan) [AIR 1963 Ker 18]

; Rustom Satin v. Dr Sampoornanand [20 ELR 221] ; Sarla

Devi Pathak v. Birendra Singh [20 ELR 275] ; Krishna

Kumar v. Krishna Gopal [AIR 1964 Raj 21] ; Lalsing

Kesbrising Sehvar v. Vallabhdas Shankarlal Phekdi [AIR

1967 Guj 62] ; Badri Narain Singh v. Kamdeo Prasad

Singh [AIR 1951 Pat 41] and Sarat Chandra

Rabba v. Khagendranath Math [AIR 1961 SC 334] . It is

not necessary to refer to these cases in detail except to

point out that the Rajasthan case dissents from the case

from Assam on which Mr Jethamalani relied. The principle

of law is settled that consent may be inferred from

circumstantial evidence but the circumstances must point

unerringly to the conclusion and must not admit of any

other explanation. Although the trial of an election petition

is made in accordance with the Code of Civil Procedure, it

has been laid down that a corrupt practice must be proved

in the same way as a criminal charge is proved. In other

words,

the

election

petitioner

must

exclude

every

hypothesis except that of guilt on the part of the returned

candidate or his election agent. Since we have held that

Mr.Atrey's activities must be viewed in two compartments,

one connected with Mr Fernandez and the other connected

with the newspaper we have to find out whether there is an

irresistable inference of guilt on the part of Mr Fernandez.

Some of the English cases cited by Mr Jethamalani are not

a safeguide because in England a distinction is made

between “illegal practices” and “corrupt practices”. Cases

dealing with “illegal practices” in which the candidate is

held responsible for the acts of his agent are not a proper

guide. It is to be noticed that making of a false statement

is regarded as “corrupt practice” and not an “illegal

practice” and the tests are different for a corrupt practice.

In India all corrupt practices stand on the same footing.

The only difference made is that when consent is proved on

the part of the candidate or his election agent to the

commission of corrupt practice, that itself is sufficient.

When a corrupt practice is committed by an agent and

there is no such consent then the petitioner must go

further and prove that the result of the election insofar as

the returned candidate is concerned was materially

affected. In Bayley v. Edmunds, Byron and

Marshall [(1894) 11 TLR 537] strongly relied upon by Mr

Daphtary, the publication in the newspaper was not held to

be a corrupt practice but the paragraph taken from a

newspaper and printed as a leaflet was held to be a corrupt

practice. That is not the case here. Mr Patil's own attitude

during the election and after is significant. During the

election he did not once protest that Mr Fernandez charged

his workers with hooliganism. Even after the election Mr

Patil did not attribute anything to Mr Fernandez. He even

said that the Bombay election was conducted with

propriety. Even at the filing of the election petition he did

not think of Mr Fernandez but concentrated on the

“Maratha”.

50. Now it may be stated that mere knowledge is not

enough. Consent cannot be inferred from knowledge alone.

Mr Jethamalani relied upon the Taunton case [1 O'Malley

and Hardcastls 181 at 185] where Blackburn, J., said that

one must see how much was being done for the candidate

and the candidate then must take the good with the bad.

There is difficulty in accepting this contention. Formerly the

Indian

Election

Law

mentioned

“knowledge

and

connivance” but now it insists on consent. Since reference

to the earlier phrase has been dropped it is reasonable to

think that the law requires some concrete proof, direct or

circumstantial of consent, and not merely of knowledge and

connivance. It is significant that the drafters of the election

petition use the phrase “knowledge and connivance” and it

is reasonable to think that they consulted the old Act and

moulded the case round “knowledge and connivance” and

thought that was sufficient.”

15.

Likewise

observations

case

V. Narayanaswamy v. C.P. Thirunavukkarasu, reported in

(2000) 2 SCC 294, in following paragraphs:

“23. It will be thus seen that an election petition is based

on the rights, which are purely the creature of a statute,

and if the statute renders any particular requirement

mandatory, the court cannot exercise dispensing powers to

waive non-compliance. For the purpose of considering a

preliminary objection as to the maintainability of the

election petition the averments in the petition should be

assumed to be true and the court has to find out whether

these averments disclose a cause of action or a triable

issue as such. Sections 81, 83(1)(c) and 86 read with Rule

94-A of the rules and Form 25 are to be read conjointly as

an integral scheme. When so read if the court finds non-

compliance it has to uphold the preliminary objection and

has no option except to dismiss the petition. There is

difference

between

“material

facts”

and

“material

particulars”. While the failure to plead material facts is fatal

to the election petition the absence of material particulars

can be cured at a later stage by an appropriate

amendment. “Material facts” mean the entire bundle of

facts, which would constitute a complete cause of action

and these must be concisely stated in the election petition,

i.e., clause (a) of sub-section (1) of Section 83. Then under

clause (b) of sub-section (1) of Section 83 the election

petition must contain full particulars of any corrupt

practice. These particulars are obviously different from

material facts on which the petition is founded. A petition

levelling a charge of corrupt practice is required by law to

be supported by an affidavit and the election petitioner is

obliged to disclose his source of information in respect of

the commission of corrupt practice. He must state which of

the allegations are true to his knowledge and which to his

belief on information received and believed by him to be

true. It is not the form of the affidavit but its substance

that matters. To plead corrupt practice as contemplated by

law it has to be specifically alleged that the corrupt

practices were committed with the consent of the candidate

and that a particular electoral right of a person was

affected. It cannot be left to time, chance or conjecture for

the court to draw inference by adopting an involved

process of reasoning. Where the alleged corrupt practice is

open to two equal possible inferences the pleadings of

corrupt practice must fail. Where several paragraphs of the

election

petition

alleging

corrupt

practices

remain

unaffirmed under the verification clause as well as the

affidavit, the unsworn allegation could have no legal

existence and the court could not take cognizance thereof.

Charge of corrupt practice being quasi-criminal in nature

the court must always insist on strict compliance with the

provisions of law. In such a case it is equally essential that

the particulars of the charge of allegations are clearly and

precisely stated in the petition. It is the violation of the

provisions of Section 81 of the Act which can attract the

application of the doctrine of substantial compliance. The

defect of the type provided in Section 83 of the Act on the

other hand can be dealt with under the doctrine of

curability, on the principles contained in the Code of Civil

Procedure. Non-compliance with the provisions of Section

83 may lead to dismissal of the petition if the matter falls

within the scope of Order 6 Rule 16 and Order 7 Rule 11 of

the Code of Civil Procedure. Where neither the verification

in the petition nor the affidavit gives any indication of the

sources of information of the petitioner as to the facts

stated in the petition which are not to his knowledge and

the petitioner persists that the verification is correct and

the affidavit in the form prescribed does not suffer from

any defect the allegations of corrupt practices cannot be

inquired and tried at all. In such a case the petition has to

be rejected on the threshold for non-compliance with the

mandatory provisions of law as to pleadings. It is no part of

the duty of the court suo motu even to direct furnishing of

better particulars when objection is raised by the other

side. Where the petition does not disclose any cause of

action it has to be rejected. The court, however, cannot

dissect the pleadings into several parts and consider

whether each one of them discloses a cause of action. The

petition has to be considered as a whole. There cannot be a

partial rejection of the petition.

26. Material facts and material particulars certainly connote

two different things. Material facts are those facts which

constitute the cause of action. In a petition on the

allegation of corrupt practices the cause of action cannot be

equated with the cause of action as is normally understood

because of the consequences that follow in a petition based

on the allegations of corrupt practices. An election petition

seeking a challenge to the election of a candidate on the

allegation of corrupt practices is a serious matter; if

proved, not only does the candidate suffer ignominy, he

also suffers disqualification from standing for election for a

period that may extend to six years.

Reference in this connection may be made to Section 8-A

[-A. Disqualification on ground of corrupt practices.—

(1) The case of every person found guilty of a corrupt

practice by an order under Section 99 shall be submitted,

as soon as may be, after such order takes effect, by such

authority as the Central Government may specify in this

behalf, to the President for determination of the question

as to whether such person shall be disqualified and if so,

for what period:

Provided that the period for which any person may be

disqualified under this sub-section shall in no case exceed

six years from the date on which the order made in relation

to him under Section 99 takes effect.

(2) Any person who stands disqualified under Section 8-A

this

Act

stood

immediately

before

the

commencement of the Election Laws (Amendment) Act,

1975

(40

1975),

may,

the

period

such

disqualification has not expired, submit a petition to the

President for the removal of such disqualification for the

unexpired portion of the said period.(3) Before giving his

decision on any question mentioned in sub-section (1) or

on any petition submitted under sub-section (2), the

President

shall

obtain

the

opinion

the

Election

Commission on such question or petition and shall act

according to such opinion.”] of the Act. It was for this

purpose that the proviso to sub-section (1) of Section 83

was inserted by Act 40 of 1961 (w.e.f. 20-9-1961)

requiring filing of the affidavit in the prescribed form where

there are allegations of corrupt practice in the election

petition. Filing of the affidavit as required is not a mere

formality. By naming a document as an affidavit it does not

become an affidavit. To be an affidavit it has to conform

not only to the form prescribed in substance but has also to

contain particulars as required by the rules.

27. It is contended by Mr.Bhandare that all the material

facts have been stated in the election petition and that for

lack of material particulars, the petition could not have

been thrown out at the threshold. He said opportunity

should have been given to the appellant to supply the

material particulars. It is really a strange proposition to

advance. Till the date of the impugned judgment, the

appellant had persisted that the petition did not lack

material particulars and that the verification was in

accordance with the Code and the affidavit in support of

the corrupt practice in the form prescribed. Admittedly, the

petition lacked material particulars, the verification to the

petition was not in accordance with the Code and the

affidavit did not conform to the form prescribed. At the first

opportunity, the respondent raised objection that the

petition lacked both material facts and the material

particulars and that the verification to the petition and the

affidavit were not in accordance with law. This was

repeated

the

miscellaneous

application

(Original

Application No. 298 of 1998). In the counter-affidavit and

in the reply to the miscellaneous application, the appellant

persisted in his stand and termed the objections raised by

the respondent as irrelevant. It is not that the appellant did

not have the opportunity to correct his mistake which he

could have easily done in the rejoinder filed by him to the

counter-affidavit of the respondent or even his reply to the

miscellaneous application (OA No. 298 of 1998). He had

every opportunity even at that stage to supply the material

particulars which admittedly were lacking and also to

amend the verification and to file the affidavit in the form

prescribed but for reasons best known to him, he failed to

do so. The existence of material facts, material particulars,

correct verification and the affidavit are relevant and

important when the petition is based on the allegation of

corrupt practice and in the absence of those, the court has

jurisdiction to dismiss the petition. The High Court has

undoubtedly the power to permit amendment of the

petition for supply of better material particulars and also to

require amendment of the verification and filing of the

required affidavit but there is no duty cast on the High

Court to direct suo motu the furnishing of better particulars

and requiring amendment of the petition for the purpose of

verification and filing of proper affidavit. In a matter of this

kind the primary responsibility for furnishing full particulars

of the alleged corrupt practices and to file a petition in full

compliance with the provisions of law is on the petitioner.

(See in this connection the Constitution Bench decision

in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani [AIR 1955

SC 610: (1955) 2 SCR 428] SCR at p. 144.)

28. The grievance of the appellant is that he wanted to

meet the MLAs other than the MLAs of the Congress Party

to which he belonged but those MLAs were kept first in

Hotel Ashoka at Pondicherry and then taken to five star

hotels at Mahabalipuram. The appellant alleged that the

MLAs were “kept” in Hotel Ashoka but he has not given

particulars as to what he meant by the word “kept”. “Kept”

is certainly not “confined”. What entertainment was

provided to those MLAs in Hotel Ashoka, Pondicherry or in

five star hotels in Mahabalipuram has also not been

specified. It is not his case that he was prevented in any

way from meeting any of those MLAs. It was a material fact

to allege which he failed to do so. This is apart from the

fact that the material particulars as to when the MLAs were

taken to Hotel Ashoka and to other places, the names of

the MLAs and the names of the hotels in Mahabalipuram,

who took them there, who paid their bills and who brought

them back are lacking. The appellant does not show as to

why he could not meet all those MLAs on 2-10-1997. Apart

from one independent MLA the other MLAs belonged to

various other political parties like DMK, TMC, CPI, PMK and

the Janata Dal. Rather it can be assumed that the MLAs

voted according to their political affiliations. It has come on

record that out of a total number of 29 MLAs who

constituted the Legislative Assembly of Pondicherry, two

belonged to AIDMK, another political party. AIDMK had

taken the decision not to vote for any candidate and that is

how the two MLAs of this party did not participate in the

election and the total votes polled were 27. There was only

one independent MLA and his casting of vote either way

would not have at all affected the result of the election

considering the number of votes polled by each of the

candidates. It is not the case of the appellant that he was

barred from meeting any of the MLAs in order to solicit

their votes. There is no allegation if there is any complaint

by any MLA that he was kept out of circulation by the

respondent or with his consent by any other person for the

purpose of not being accessible to the appellant.

29. The appellant in his petition said that C. Jayakumar,

Minister and K. Kandaswamy, Deputy Speaker and K.

Rajasekheran,

Parliamentary

Secretary

the

Chief

Minister, were the agents of the respondent. He then

alleged

that

Jayakumar

took

Kandaswamy

and

Rajasekheran to Goa with a view to influence them to get

their votes in favour of the respondent. Is it not

paradoxical where one agent influences the other agent to

vote in a particular way? It certainly could not be a corrupt

practice. The appellant then alleged that N. Keshavan, MLA

belonging to DMK and also a government whip kept

independent

MLA

Rajaraman

first

Hotel

Ashoka,

Pondicherry and then took him to Kovalam, Chengleput

District, then to Tirupati in a government vehicle and then

brought back to Pondicherry on 2-10-1997. It is not the

case of the appellant that N. Keshavan did so with the

consent of the respondent or any of his agents or

otherwise. This is a material fact which the appellant failed

to allege. Lastly, notification regarding appointments of

Chairmen to various committees came out much later after

the results were declared. It is correct that none of the

nominees belonged to the Congress Party.

30. It will thus be seen that the election petition not only

lacked the material facts, it lacked material particulars,

defective verification and the affidavit filed was not in the

form prescribed. Moreover, the ingredients of corrupt

practices, as defined in Section 123(1)(B) and 123(2) of

the Act are also lacking. It is also not the case of the

appellant that any MLA whom the appellant could not meet,

received any gratification, as defined, whether as a motive

or a reward for voting or refraining from voting, or there

was any inducement or attempt to induce any such MLA to

vote or refrain from voting. Also it is not the case of the

appellant that any undue influence was exercised with the

free exercise of any electoral right of any MLA which right,

as noted above, has been defined in clause (d) of Section

79 of the Act. There is no allegation if any particular MLA

was induced to vote or not to vote in a particular way

because he was entertained or otherwise. The allegation is

that the appellant himself could not meet the MLAs and he

believed that if he had been given a chance to meet them

he would have influenced their vote in his favour and

against their party of affiliations. There is no allegation that

the MLAs were prevented or influenced from freely

exercising their electoral right. As stated earlier the

appellant did not show as to why he could not meet the

MLAs

2-10-1997

when

they

were

available

Pondicherry. The material fact must be that the appellant

was prevented from meeting the MLAs which he did not

allege and as to how he was so prevented would constitute

material particulars.”

16.

Likewise on observations in case of Anil Vasudev

Salgaonkar v. Naresh Kushali Shigaonkar, reported in

(2009) 9 SCC 310, in following paragraphs:

“6. It was also incorporated in the written statement that

the election petition does not set forth the material facts of

the alleged corrupt practice. The respondent herein has

also failed to disclose the names of the parties alleged to

have committed the corrupt practice. In the election

petition, the date and place of the commission of such

alleged corrupt practice has not been mentioned and,

therefore, the election petition deserved to be dismissed as

not maintainable.

17. The High Court has totally misdirected itself by

misconstruing the ratio laid down in a catena of decisions

pronounced by this Court including the law laid down

in Azhar Hussain case [1986 Supp SCC 315] and H.D.

Revanna case [(1999) 2 SCC 217] which if properly applied

to the facts and circumstances of the present case would

lead to rejection of the election petition in limine.

19. In the election petition the respondent has mentioned

that there was scarcity of water supply in certain villages.

However, the respondent has failed to mention the number

of houses which face such alleged water scarcity. In the

written statement, the appellant also alleged that the

respondent in the election petition has also failed to

mention about water availability in these villages; the

respondent has further failed to mention as to since when

has there been water scarcity? The appellant in the written

statement further alleged that the respondent has also not

mentioned as to how many houses are there in these

villages; how many persons are living in each of the

houses; and how many persons are voters in these

villages. The respondent has also not mentioned as to how

many villages have water connections; and when and

where the water scarcity had been noticed in these

villages. He has also not mentioned as to when this

complete breakdown or insufficient water supply had

occasioned to these villages nor has he mentioned the

date, time, place or any other details of such breakdown

and has generally failed to give the details as required

under Section 83 of the Act.

22. Similarly, the respondent failed to give particulars

regarding the bore wells whose cost as alleged amounts to

Rs.6,38,557. Similarly, expenditure of Rs.12,50,000 has

been alleged to have been made for the purchase of

ambulances. The particulars have not been provided. It is

not clear as to how the respondent has come to the figure

of Rs.5,00,000 which according to him has been spent by

the appellant. He did not give any particulars regarding

either of the bore wells or the ambulances.

23. The appellant denied crossing the limit of Rs.5,00,000

as prescribed under the Act and the Rules framed

thereunder. It is also alleged that the appellant did not

construct any bore wells nor did he provide any

ambulances to the villagers and, therefore, the question of

showing the same in the election expenses did not arise at

all. The appellant denied that an amount of Rs.6,38,557

and an amount of Rs.12,50,000 as alleged has been the

expenditure factually incurred by the appellant and denied

having committed any corrupt practice. The question of the

election results being materially affected does not arise at

all and, therefore, the election petition is liable to be

dismissed.

24. It was specifically argued that the election petition is

liable to be dismissed because there has been non-

compliance with Section 83(1) of the Act because there

was no sufficiency and adequacy of pleadings in the

election petition.

25. Section 83(1) of the Act reads as under:

“83. Contents of petition.—(1) An election petition—

(a) shall contain a concise statement of the material

facts on which the petitioner relies;

(b) shall 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; and

(c) shall be signed by the petitioner and verified in the

manner laid down in the Code of Civil Procedure, 1908

(5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt

practice, the petition shall also be accompanied by an

affidavit in the prescribed form in support of the allegation

of such corrupt practice and the particulars thereof.”

27. In the impugned judgment, the High Court erroneously

concluded that the election petition when read as a whole

discloses that it has material facts stated and regarding

which triable issues are also framed and therefore, it

cannot be rejected at the preliminary stage. The High Court

in the impugned judgment has discussed the decision of

this Court in Dhartipakar Madan Lal Agarwal v. Rajiv

Gandhi [1987 Supp SCC 93]. According to the appellant,

the High Court erroneously distinguished this case. The

impugned judgment of the High Court is neither in

consonance with the provisions of the Act nor according to

the settled legal position as has been crystallised in a

number of cases by this Court. Being aggrieved by the

impugned judgment, the appellant has preferred this

appeal.

28. In this election petition, Respondent 1 has challenged

the appellant's election primarily on the ground of corrupt

practices, alleging that the appellant dug bore wells in the

constituency and provided ambulances after the election

notification was issued in order to lure the voters from the

constituency or induce them to vote for the appellant.

41. This controversy is no long res integra. More than a

century ago, in Phillips v. Phillips [(1878) 4 QBD 127: 48

LJQB 135 (CA)], Cotton, L.J. stated: (QBD p. 139)

“… What particulars are to be stated must depend on the

facts of each case. But in my opinion it is absolutely

essential that the pleading, not to be embarrassing to the

defendants, should state those facts which will put the

defendants on their guard and tell them what they have to

meet when the case comes on for trial.”

47. The question of material facts in the election petition

was comprehensively dealt with by this Court in Azhar

Hussain case, 1986 Supp SCC 315. The Court observed

that it is not disputed that the Code of Civil Procedure

applies to the trial of an election petition by virtue of

Section 87 of the Representation of the People Act, 1951.

Section 87(1) and Section 87(2) of the Act apply to the

election petition.

49. In this view of the matter, the court trying the election

petition can act in exercise of the powers of the Code

including Order 6 Rule 16 and Order 7 Rule 11(a) of the

Code. These provisions are set out as under:

“16. Striking out pleadings.—The court may at any

stage of the proceedings order to be struck out or

amended any matter in any pleading—

(a) which may be unnecessary, scandalous, frivolous

or vexatious, or

(b) which may tend to prejudice, embarrass or delay

the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the

court.

***

11. Rejection of plaint.—The plaint shall be rejected in the

following cases—

(a) where it does not disclose a cause of action;”

50. The position is well settled that an election petition can

be summarily dismissed if it does not furnish the cause of

action in exercise of the power under the Code of Civil

Procedure. Appropriate orders in exercise of powers under

the Code can be passed if the mandatory requirements

enjoined by Section 83 of the Act to incorporate the

material facts in the election petition are not complied with.

51. This Court in Samant N. Balkrishna case [(1969) 3 SCC

238] has expressed itself in no uncertain terms that the

omission of a single material fact would lead to an

incomplete cause of action and that an election petition

without the material facts relating to a corrupt practice is

not an election petition at all. In Udhav Singh v. Madhav

Rao Scindia [(1977) 1 SCC 511] the law has been

enunciated that all the primary facts which must be proved

by a party to establish a cause of action or his defence are

material facts. In the context of a charge of corrupt

practice it would mean that the basic facts which constitute

the ingredients of the particular corrupt practice alleged by

the petitioner must be specified in order to succeed on the

charge. Whether in an election petition a particular fact is

material or not and as such required to be pleaded is

dependent on the nature of the charge leveled and the

circumstances of the case. All the facts which are essential

to clothe the petition with complete cause of action must

be pleaded and failure to plead even a single material fact

would amount to disobedience of the mandate of Section

83(1)(a). An election petition therefore can be and must be

dismissed if it suffers from any such vice. The first ground

of challenge must therefore fail.

52. In V.Narayanaswamy v. C.P. Thirunavukkarasu, (2000)

2 SCC 294, this Court reiterated the legal position that an

election petition is liable to be dismissed if it lacks in

material

facts.

L.R.

Shivaramagowda

T.M.

Chandrashekar [(1999) 1 SCC 666] this Court again

considered the importance of pleadings in an election

petition alleging corrupt practice falling within the scope of

Section 123 of the Act and observed as under: (SCC p.

677, para 11)

“11. This Court has repeatedly stressed the importance

of pleadings in an election petition and pointed out the

difference

between

‘material

facts’

and

‘material

particulars’. While the failure to plead material facts is

fatal to the election petition and no amendment of the

pleading could be allowed to introduce such material

facts after the time-limit prescribed for filing the election

petition, the absence of material particulars can be cured

at a later stage by an appropriate amendment.”

53. In Udhav Singh case (1977) 1 SCC 511 this Court

observed as under: (SCC pp. 522-23, para 41)

“41. Like the Code of Civil Procedure, this section also

envisages a distinction between ‘material facts’ and

‘material particulars’. Clause (a) of sub-section (1)

corresponds to Order 6 Rule 2, while clause (b) is

analogous to Order 6 Rules 4 and 6 of the Code. The

distinction

between

‘material

facts’

and

‘material

particulars’ is important because different consequences

may flow from a deficiency of such facts or particulars in

the pleading. Failure to plead even a single material

fact leads to an incomplete cause of action and

incomplete allegations of such a charge are liable to be

struck off under Order 6 Rule 16, Code of Civil

Procedure. If the petition is based solely on those

allegations which suffer from lack of material facts, the

petition is liable to be summarily rejected for want of a

cause of action. In the case of a petition suffering from a

deficiency of material particulars, the court has

discretion to allow the petitioner to supply the required

particulars even after the expiry of limitation.”

(emphasis in original)

54. In H.D. Revanna case (1999) 2 SCC 217, the appeal

was filed by the candidate who had succeeded in the

election and whose application for dismissal of the election

petition in limine was rejected by the High Court. This

Court noticed that it has been laid down by this Court that

non-compliance with the provisions of Section 83 may lead

to dismissal of the petition if the matter falls within the

scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code

of Civil Procedure. In Harmohinder Singh

Pradhan v. Ranjeet Singh Talwandi, (2005) 5 SCC 46, this

Court observed thus: (SCC p. 51, para 14)

“14. Necessary averment of facts constituting an appeal

on the ground of ‘his religion’ to vote or to refrain from

voting would be material facts within the meaning of

clause (a) of sub-section (1) of Section 83 of the Act. If

such material facts are missing, they cannot be supplied

later on, after the expiry of period of limitation for filing

the election petition and the plea being deficient, can be

directed to be struck down under Order 6 Rule 16 of the

Code of Civil Procedure, 1908 and if such plea be the

sole ground of filing an election petition, the petition

itself can be rejected as not disclosing a cause of action

under clause (a) of Rule 11, Order 7 of the Code.”

55. In Harkirat Singh v. Amrinder Singh [(2005) 13 SCC

511] this Court again reiterated the distinction between

“material facts” and “material particulars” and observed as

under: (SCC p. 527, paras 51-52)

“51.

distinction

between

‘material

facts’

and

‘particulars’, however, must not be overlooked. ‘Material

facts’ are primary or basic facts which must be pleaded

by the plaintiff or by the defendant in support of the

case set up by him either to prove his cause of action or

defence. ‘Particulars’, on the other hand, are details in

support of material facts pleaded by the party. They

amplify, refine and embellish material facts by giving

distinctive touch to the basic contours of a picture

already drawn so as to make it full, more clear and more

informative. ‘Particulars’ thus ensure conduct of fair trial

and would not take the opposite party by surprise.

52. All ‘material facts’ must be pleaded by the party in

support of the case set up by him. Since the object and

purpose is to enable the opposite party to know the case

he has to meet with, in the absence of pleading, a party

cannot be allowed to lead evidence. Failure to state even

a single material fact, hence, will entail dismissal of the

suit or petition. Particulars, on the other hand, are the

details of the case which is in the nature of evidence a

party would be leading at the time of trial.”

56. In Sudarsha Avasthi v. Shiv Pal Singh [(2008) 7 SCC

604] this Court observed as under: (SCC p. 612, para 20)

“20. The election petition is a serious matter and it

cannot be treated lightly or in a fanciful manner nor is it

given to a person who uses this as a handle for

vexatious purpose.”

57. It is settled legal position that all “material facts” must

be pleaded by the party in support of the case set up by

him within the period of limitation. Since the object and

purpose is to enable the opposite party to know the case

he has to meet with, in the absence of pleading, a party

cannot be allowed to lead evidence. Failure to state even a

single material fact will entail dismissal of the election

petition. The election petition must contain a concise

statement of “material facts” on which the petitioner relies.

58. There is no definition of “material facts” either in the

Representation of the People Act, 1951 nor in the Code of

Civil Procedure. In a series of judgments, this Court has

laid down that all facts necessary to formulate a complete

cause of action should be termed as “material facts”. All

basic and primary facts which must be proved by a party to

establish the existence of cause of action or defence are

material facts. “Material facts” in other words mean the

entire bundle of facts which would constitute a complete

cause of action. This Court in Harkirat Singh case [(2005)

13 SCC 511] tried to give various meanings of “material

facts”. The relevant para 48 of the said judgment is

reproduced as under: (SCC pp. 526-27)

48.The expression ‘material facts’ has neither been defined

in the Act nor in the Code. According to the dictionary

meaning, ‘material’ means ‘fundamental’, ‘vital’, ‘basic’,

‘cardinal’, ‘central’, ‘crucial’, ‘decisive’, ‘essential’, ‘pivotal’,

‘indispensable’, ‘elementary’ or ‘primary’. [Burton's Legal

Thesaurus (3rd Edn.), p. 349.] The phrase ‘material facts’,

therefore, may be said to be those facts upon which a

party relies for its claim or defence. In other words,

‘material facts’ are facts upon which the plaintiff's cause of

action or the defendant's defence depends. What

particulars could be said to be ‘material facts’ would

depend upon the facts of each case and no rule of universal

application can be laid down. It is, however, absolutely

essential that all basic and primary facts which must be

proved at the trial by the party to establish the existence of

a cause of action or defence are material facts and must be

stated in the pleading by the party.”

59. In the context of a charge of corrupt practice, “material

facts”

would

mean

all

basic

facts

constituting

the

ingredients of the particular corrupt practice alleged, which

the petitioner (the respondent herein) is bound to

substantiate before he can succeed on that charge. It is

also well settled that if “material facts” are missing they

cannot be supplied after expiry of period of limitation for

filing the election petition and the pleading becomes

deficient.

60. According to the appellant, in the election petition,

there was no averment whether the bore wells were dug

with the consent and/or active knowledge of the appellant.

This averment was absolutely imperative and the failure to

mention such an important averment in the petition is fatal

for the election petitioner (the respondent herein) and the

election petition is liable to be summarily dismissed on that

ground.

61. The legal position has been crystallised by a series of

the judgments of this Court that all those facts which are

essential to clothe the election petitioner with a complete

cause of action are “material facts” which must be pleaded,

and the failure to place even a single material fact amounts

to disobedience of the mandate of Section 83(1)(a) of the

Act.

62. When we apply the aforementioned test to the election

petition in this case, then the conclusion becomes

irresistible that the election petition lacks the materials

facts. The election petition read as a whole does not

disclose any cause of action.”

17.

And following observations in case of Kanimozhi

Karunanidhi v. A. Santhana Kumar, reported in 2023 SCC

OnLine SC 573:

“16. In the instant case, the respondent-election petitioner

has challenged the election of the appellant on the ground

that the result of the election, insofar as it concerned the

appellant, was materially affected by non-compliance with

Article 324 of the Constitution and by non-compliance with

Rule-4A of the said Rules read with Section 33 of the Act. It

may be noted that Section 33 of the Act pertains to the

presentation of nomination paper and the requirements for

a valid nomination. Section 36 pertains to the scrutiny of

nominations by the Returning Officer.

Sub-section (2) thereof empowers the Returning Officer,

either on the objections made to any nomination or on his

own motion, to reject any nomination on the grounds

mentioned therein. One of the grounds to reject the

nomination is, when there has been failure to comply with

any of the provisions of Section 33. Sub-section(4) of

Section 36 states that the Returning Officer shall not reject

any nomination paper on the ground of any defect which is

not of a substantial character.

17. Part-II of the Conduct of Election Rules, 1961 deals

with the General Provisions. Rule-4 and Rule-4A which

pertain to the submission of nomination paper and the

Form of affidavit to be filed at the time of delivering

nomination paper read as under:—

“4.

Nomination

paper-

Every

nomination

paper

presented under sub-section (i) of section 33 shall be

completed in such one of the Forms 2A to 2E as may be

appropriate:

Provided that a failure to complete or defect in completing,

the declaration as to symbols in a nomination paper in

Form 2A or Form 2B shall not be deemed to be a defect of

a substantial character within the meaning of sub-section

(4) of section 36.

4A. Form of affidavit to be filed at the time of delivering

nomination paper- The candidate or his proposer, as the

case may be, shall, at the time of delivering to the

returning officer the nomination paper under sub-section

(1) of section 33 of the Act, also deliver to him an affidavit

sworn by the candidate before a Magistrate of the first

class or a Notary in Form 26.”

Legal position:

18. The scheme of the Constitutional and statutory

provisions contained in the R.P. Act in relation to the

nature of the right to elect, the right to be elected and the

right to dispute an election have been explained and

interpreted by various Constitutional Benches since 1952.

To cite a few are N.P. Ponnuswami v. Returning Officer,

Namakkal Constituency, in Jagan Nath v. Jaswant Singh,

in Bhikji Keshao Joshi v. Brijlal Nandlal Biyani, in Murarka

Radhey Shyam Ram Kumar v. Roop Singh Rathore etc.

19. What has been gleaned from the said authorities may

be summed up by stating that a right to elect, though

fundamental it is to democracy, is neither a fundamental

right nor a common law right. It is purely a statutory right.

Similarly, right to be elected and the right to dispute an

election are also statutory rights. Since they are statutory

creations, they are subject to statutory limitations. An

Election petition is not an action at common law, nor in

equity. It is a special jurisdiction to be exercised in

accordance with the statute creating it. The concept

familiar to common law and equity must remain strangers

to election law unless statutorily embodied. Thus, the

entire election process commencing from the issuance from

the notification calling upon a constituency to elect a

member or members right upto the final resolution of the

dispute, concerning the election is regulated by

the Representation of People Act, 1951. The said R.P. Act

therefore has been held to be a complete and self-

contained code within which must be found any rights

claimed in relation to an election dispute.

20. In a very interesting and important decision in case

of Union of India v. Association for Democratic Reforms, a

three-judge Bench of this Court raising a question - in a

nation wedded to republican and democratic form of

government, whether before casting votes, the voters have

a right to know relevant particulars of their candidates

contesting election to the Parliament or to the legislature of

States,

deliberated

the

powers

the

Election

Commission under Article 324 of the Constitution, and

observed as under:—

“46. To sum up the legal and constitutional position which

emerges from the aforesaid discussion, it can be stated

that:

1. The jurisdiction of the Election Commission is wide

enough to include all powers necessary for smooth conduct

of elections and the word “elections” is used in a wide

sense to include the entire process of election which

consists of several stages and embraces many steps.

2. The limitation on plenary character of power is when

Parliament or State Legislature has made a valid law

relating to or in connection with elections, the Commission

is required to act in conformity with the said provisions. In

case where law is silent, Article 324 is a reservoir of power

to act for the avowed purpose of having free and fair

election. The Constitution has taken care of leaving scope

for exercise of residuary power by the Commission in its

own right as a creature of the Constitution in the infinite

variety of situations that may emerge from time to time

in a large democracy, as every contingency could not be

foreseen or anticipated by the enacted laws or the rules.

By issuing necessary directions, the Commission can fill the

vacuum till there is legislation on the subject. In Kanhiya

Lal Omar case [(1985) 4 SCC 628] the Court construed the

expression “superintendence, direction and control” in

Article 324(1) and held that a direction may mean an order

issued to a particular individual or a precept which many

may have to follow and it may be a specific or a general

order and such phrase should be construed liberally

empowering the Election Commission to issue such orders.

3. ….

4. To maintain the purity of elections and in particular to

bring transparency in the process of election, the

Commission can ask the candidates about the expenditure

incurred by the political parties and this transparency in the

process of election would include transparency of a

candidate

who

seeks

election

re-election.

democracy, the electoral process has a strategic role. The

little man of this country would have basic elementary right

to know full particulars of a candidate who is to represent

him in Parliament where laws to bind his liberty and

property may be enacted.”

21. It is also pertinent to note that the insertion of Rule-4A

and Form-26 appended to the said Rules is also

culmination of the said observations made this Court in the

aforesaid case, which require the candidate to disclose the

information and particulars in the form of affidavit to be

submitted along with the nomination paper.

22. The respondent-Election petitioner in this case has

challenged election of the appellant-returned candidate

under Section 100(1)(d)(iv) on the ground of non-

compliance of the said Rule-4A and the Form-26. However,

the appellant had filed the applications seeking dismissal of

the Election petition in limine, for the non-compliance of

the provisions of Section 83(1)(a) of the said Act, read with

Order VII, Rule 11 of CPC.

23. The law so far developed and settled by this Court with

regard to the non-compliance of the requirement of Section

83(1)(a) of the EP Act, namely - “an Election petition must

contain a concise statement of material facts on which the

petitioner relies”, is that such non-compliance of

Section 83(1)(a) read with Order VII, Rule 11, CPC, may

entail dismissal of the Election Petition right at the

threshold. “Material facts” are facts which if established

would give the petitioner the relief asked for. The test

required to be answered is whether the court could have

given a direct verdict in favour of the election petitioner in

case the returned candidate had not appeared to oppose

the Election petition on the basis of the facts pleaded in the

petition. They must be such facts as would afford a basis

for the allegations made in the petition and would

constitute the cause of action as understood in the Code of

Civil Procedure 1908. Material facts would include positive

statement of facts as also positive statement of a negative

fact.

24. A Three-Judge Bench in Hari Shanker Jain v. Sonia

Gandhi (supra) had an occasion to deal with Section

83(1)(a) of the RP Act and the Court dismissed the Election

petition holding that the bald and vague averments made

in the election petitions do not satisfy the requirements of

pleading “material facts” within the meaning of Section

83(1)(a) of the RP Act read with the requirements of

Order VII Rule 11 CPC. It was observed in para 23 and 24

as under:—

“23. Section 83 (1) (a) of RPA, 1951 mandates that an

election petition shall contain a concise statement of

the material facts on which the petitioner relies. By a

series of decisions of this Court, it is well settled that the

material facts required to be stated are those facts which

can be considered as materials supporting the

allegations made. In other words, they must be such

facts as would afford a basis for the allegations made in

the petition and would constitute the cause of action as

understood in the Civil Procedure Code, 1908. The

expression “cause of action” has been compendiously

defined to mean every fact which it would be necessary

for the plaintiff to prove, if traversed, in order to support

his right to the judgment of court. Omission of a single

material fact leads to an incomplete cause of action and

the statement of claim becomes bad. The function of the

party is to present as full a picture of the cause of action

with such further information in detail as to make the

opposite party understand the case he will have to meet.

(See Samant N. Balkrishna v. George Fernandez [(1969)

3 SCC 238 : (1969) 3 SCR 603], Jitendra Bahadur

Singh v. Krishna Behari [(1969) 2 SCC 433].) Merely

quoting the words of the section like chanting of a

mantra does not amount to stating material facts.

Material facts would include positive statement of facts

as also positive averment of a negative fact, if

necessary.

In V.S.

Achuthanandan v. P.J.

Francis [(1999) 3 SCC 737] this Court has held, on a

conspectus of a series of decisions of this Court, that

material facts are such preliminary facts which must be

proved at the trial by a party to establish existence of a

cause of action. Failure to plead “material facts” is fatal

to the election petition and no amendment of the

pleadings is permissible to introduce such material facts

after the time-limit prescribed for filing the election

petition.

24. It is the duty of the court to examine the petition

irrespective of any written statement or denial and reject

the petition if it does not disclose a cause of action. To

enable a court to reject a plaint on the ground that it

does not disclose a cause of action, it should look at the

plaint and nothing else. Courts have always frowned

upon vague pleadings which leave a wide scope to

adduce any evidence. No amount of evidence can cure

basic defect in the pleadings.”

25. In case of Mahadeorao Sukaji Shivankar v. Ramaratan

Bapu, a Three-Judge Bench of this Court again had an

occasion to deal with the issues as to what would constitute

“material facts” and what would be the consequences of

not stating the “material facts” in the Election petition, as

contemplated in Section 83(1)(a) of the RP Act, and the

Court observed as under:

“6. Now, it is no doubt true that all material facts have to

be set out in an election petition. If material facts are not

stated in a plaint or a petition, the same is liable to be

dismissed on that ground alone as the case would be

covered by clause (a) of Rule 11 of Order 7 of the Code.

The question, however, is as to whether the petitioner had

set out material facts in the election petition. The

expression “material facts” has neither been defined in the

Act nor in the Code. It may be stated that the material

facts are those facts upon which a party relies for his claim

or defence. In other words, material facts are facts upon

which the plaintiff's cause of action or the defendant's

defence depends. What particulars could be said to be

material facts would depend upon the facts of each case

and no rule of universal application can be laid down. It is,

however, absolutely essential that all basic and primary

facts which must be proved at the trial by the party to

establish existence of cause of action or defence are

material facts and must be stated in the pleading of the

party.

7. But, it is equally well settled that there is distinction

between “material facts” and “particulars”. Material facts

are primary or basic facts which must be pleaded by the

petitioner in support of the case set up by him either to

prove his cause of action or defence. Particulars, on the

other hand, are details in support of material facts pleaded

by the party. They amplify, refine and embellish material

facts by giving finishing touch to the basic contours of a

picture already drawn so as to make it full, more clear and

more informative. Particulars ensure conduct of fair trial

and would not take the opposite party by surprise.”

26. In Anil Vasudev Salgaonkar v. Naresh Kushali

Shigaonkar, this Court has discussed number of earlier

decisions on the issue as to when the Election petition

could be dismissed summarily if it does not furnish the

cause of action in exercise of powers under the Code of

Civil Procedure read with Section 83 of the R.P. Act.

“50. The position is well settled that an election petition

can be summarily dismissed if it does not furnish the cause

of action in exercise of the power under the Code of Civil

Procedure. Appropriate orders in exercise of powers under

the Code can be passed if the mandatory requirements

enjoined by Section 83 of the Act to incorporate the

material facts in the election petition are not complied with.

51. This Court in Samant N. Balkrishna case [(1969) 3 SCC

238] has expressed itself in no uncertain terms that the

omission of a single material fact would lead to an

incomplete cause of action and that an election petition

without the material facts relating to a corrupt practice is

not an election petition at all. In Udhav Singh v. Madhav

Rao Scindia [(1977) 1 SCC 511] the law has been

enunciated that all the primary facts which must be proved

by a party to establish a cause of action or his defence are

material facts. In the context of a charge of corrupt

practice it would mean that the basic facts which constitute

the ingredients of the particular corrupt practice alleged by

the petitioner must be specified in order to succeed on the

charge. Whether in an election petition a particular fact is

material or not and as such required to be pleaded is

dependent on the nature of the charge levelled and the

circumstances of the case. All the facts which are essential

to clothe the petition with complete cause of action must

be pleaded and failure to plead even a single material fact

would amount to disobedience of the mandate of Section

83(1)(a). An election petition therefore can be and must be

dismissed if it suffers from any such vice. The first ground

of challenge must therefore fail.

52. In V. Narayanaswamy v. C.P. Thirunavukkarasu (2000)

2 SCC 294 this Court reiterated the legal position that an

election petition is liable to be dismissed if it lacks in

material

facts.

L.R.

Shivaramagowda

T.M.

Chandrashekar (1999) 1 SCC 666 this Court again

considered the importance of pleadings in an election

petition alleging corrupt practice falling within the scope of

Section 123 of the Act and observed as under : (SCC p.

677, para 11)

“11. This Court has repeatedly stressed the importance

of pleadings in an election petition and pointed out the

difference

between

‘material

facts’

and

‘material

particulars’. While the failure to plead material facts is

fatal to the election petition and no amendment of the

pleading could be allowed to introduce such material

facts after the time-limit prescribed for filing the election

petition, the absence of material particulars can be cured

at a later stage by an appropriate amendment.”

53. In Udhav Singh case [(1977) 1 SCC 511] this Court

observed as under: (SCC pp. 522-23, para 41)

“41. Like the Code of Civil Procedure, this section also

envisages a distinction between ‘material facts’ and

‘material particulars’. Clause (a) of sub-section (1)

corresponds to Order 6 Rule 2, while clause (b) is

analogous to Order 6 Rules 4 and 6 of the Code. The

distinction

between

‘material

facts’

and

‘material

particulars’ is important because different consequences

may flow from a deficiency of such facts or particulars in

the pleading. Failure to plead even a single material

fact leads to an incomplete cause of action and

incomplete allegations of such a charge are liable to be

struck off under Order 6 Rule 16, Code of Civil

Procedure. If the petition is based solely on those

allegations which suffer from lack of material facts, the

petition is liable to be summarily rejected for want of a

cause of action. In the case of a petition suffering from a

deficiency of material particulars, the court has

discretion to allow the petitioner to supply the required

particulars even after the expiry of limitation.”

54. In H.D. Revanna case [(1999) 2 SCC 217] the appeal

was filed by the candidate who had succeeded in the

election and whose application for dismissal of the election

petition in limine was rejected by the High Court. This

Court noticed that it has been laid down by this Court that

non-compliance with the provisions of Section 83 may lead

to dismissal of the petition if the matter falls within the

scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code

of Civil Procedure. In Harmohinder Singh

Pradhan v. Ranjeet Singh Talwandi [(2005) 5 SCC 46] this

Court observed thus : (SCC p. 51, para 14)

“14. Necessary averment of facts constituting an appeal

on the ground of ‘his religion’ to vote or to refrain from

voting would be material facts within the meaning of

clause (a) of sub-section (1) of Section 83 of the Act. If

such material facts are missing, they cannot be supplied

later on, after the expiry of period of limitation for filing

the election petition and the plea being deficient, can be

directed to be struck down under Order 6 Rule 16 of

the Civil Procedure Code, 1908 and if such plea be the

sole ground of filing an election petition, the petition

itself can be rejected as not disclosing a cause of action

under clause (a) of Rule 11, Order 7 of the Code.”

55. In Harkirat Singh v. Amrinder Singh [(2005) 13 SCC

511] this Court again reiterated the distinction between

“material facts” and “material particulars” and observed as

under : (SCC p. 527, paras 51-52)

“51.

distinction

between

‘material

facts’

and

‘particulars’, however, must not be overlooked. ‘Material

facts’ are primary or basic facts which must be pleaded

by the plaintiff or by the defendant in support of the

case set up by him either to prove his cause of action or

defence. ‘Particulars’, on the other hand, are details in

support of material facts pleaded by the party. They

amplify, refine and embellish material facts by giving

distinctive touch to the basic contours of a picture

already drawn so as to make it full, more clear and more

informative. ‘Particulars’ thus ensure conduct of fair trial

and would not take the opposite party by surprise.

52. All ‘material facts’ must be pleaded by the party in

support of the case set up by him. Since the object and

purpose is to enable the opposite party to know the case

he has to meet with, in the absence of pleading, a party

cannot be allowed to lead evidence. Failure to state even

a single material fact, hence, will entail dismissal of the

suit or petition. Particulars, on the other hand, are the

details of the case which is in the nature of evidence a

party would be leading at the time of trial.”

56. In Sudarsha Avasthi v. Shiv Pal Singh [(2008) 7 SCC

604] this Court observed as under : (SCC p. 612, para 20)

“20. The election petition is a serious matter and it

cannot be treated lightly or in a fanciful manner nor is it

given to a person who uses this as a handle for

vexatious purpose.”

57. It is settled legal position that all “material facts” must

be pleaded by the party in support of the case set up by

him within the period of limitation. Since the object and

purpose is to enable the opposite party to know the case

he has to meet with, in the absence of pleading, a party

cannot be allowed to lead evidence. Failure to state even a

single material fact will entail dismissal of the election

petition. The election petition must contain a concise

statement of “material facts” on which the petitioner relies.

58. There is no definition of “material facts” either in

the Representation of the People Act, 1951 nor in the Code

of Civil Procedure. In a series of judgments, this Court has

laid down that all facts necessary to formulate a complete

cause of action should be termed as “material facts”. All

basic and primary facts which must be proved by a party to

establish the existence of cause of action or defence are

material facts. “Material facts” in other words mean the

entire bundle of facts which would constitute a complete

cause of action. This Court in Harkirat Singh case [(2005)

13 SCC 511] tried to give various meanings of “material

facts”. The relevant para 48 of the said judgment is

reproduced as under : (SCC pp. 526-27)

“48. The expression ‘material facts’ has neither been

defined in the Act nor in the Code. According to the

dictionary meaning, ‘material’ means ‘fundamental’, ‘vital’,

‘basic’, ‘cardinal’, ‘central’, ‘crucial’, ‘decisive’, ‘essential’,

‘pivotal’,

‘indispensable’,

‘elementary’

‘primary’.

[Burton's Legal Thesaurus (3rd Edn.), p. 349.] The phrase

‘material facts’, therefore, may be said to be those facts

upon which a party relies for its claim or defence. In other

words, ‘material facts’ are facts upon which the plaintiff's

cause of action or the defendant's defence depends. What

particulars could be said to be ‘material facts’ would

depend upon the facts of each case and no rule of universal

application can be laid down. It is, however, absolutely

essential that all basic and primary facts which must be

proved at the trial by the party to establish the existence of

a cause of action or defence are material facts and must be

stated in the pleading by the party.”

27. In Ram Sukh v. Dinesh Aggarwal (supra), this Court

again while examining the maintainability of Election

petition filed under Section 100(1)(d)(iv) of the RP Act,

elaborately considered the earlier decisions and observed

that it was necessary for the election petitioner to aver

specifically in what manner the result of the election in so

far as it concerned the returned candidate was materially

affected due to omission on the part of the Returning

Officer. The Court in the said case having found that such

averments being missing in the Election petition, upheld

the judgment of the High Court/Election Tribunal rejecting

the Election petition at the threshold. The Court observed

in para 14 to 21 as under:—

“14. The requirement in an election petition as to the

statement of material facts and the consequences of lack of

such disclosure with reference to Sections 81, 83 and 86 of

the Act came up for consideration before a three-Judge

Bench of this Court in Samant N. Balkrishna v. George

Fernandez [(1969) 3 SCC 238]. Speaking for the three-

Judge Bench, M. Hidayatullah, C.J., inter alia, laid down

that:

(i) Section 83 of the Act is mandatory and requires first a

concise statement of material facts and then the fullest

possible particulars;

(ii) omission of even a single material fact leads to an

incomplete cause of action and statement of claim becomes

bad;

(iii) the function of particulars is to present in full a picture

of the cause of action and to make the opposite party

understand the case he will have to meet;

(iv) material facts and particulars are distinct matters—

material facts will mention statements of fact and

particulars will set out the names of persons with date,

time and place; and

(v.) in stating the material facts it will not do merely to

quote the words of the section because then the efficacy of

the material facts will be lost.

15. At this juncture, in order to appreciate the real object

and purport of the phrase “material facts”, particularly with

reference to election law, it would be appropriate to notice

the distinction between the phrases “material facts” as

appearing in clause (a) and “particulars” as appearing in

clause (b) of sub-section (1) of Section 83. As stated

above, “material facts” are primary or basic facts which

have to be pleaded by the petitioner to prove his cause of

action and by the defendant to prove his defence.

“Particulars”, on the other hand, are details in support of

the material facts, pleaded by the parties. They amplify,

refine and embellish material facts by giving distinctive

touch to the basic contours of a picture already drawn so

as to make it full, more clear and more informative. Unlike

“material facts” which provide the basic foundation on

which the entire edifice of the election petition is built,

“particulars” are to be stated to ensure that the opposite

party is not taken by surprise.

16.

The

distinction

between

“material

facts”

and

“particulars” and their requirement in an election petition

was succinctly brought out by this Court in Virender Nath

Gautam v. Satpal Singh [(2007) 3 SCC 617] wherein C.K.

Thakker, J., stated thus : (SCC pp. 631-32, para 50)

“50. There is distinction between facta probanda (the facts

required to be proved i.e. material facts) and facta

probantia (the facts by means of which they are proved i.e.

particulars or evidence). It is settled law that pleadings

must contain only facta probanda and not facta probantia.

The material facts on which the party relies for his claim

are called facta probanda and they must be stated in the

pleadings. But the facts or facts by means of which facta

probanda (material facts) are proved and which are in the

nature of facta probantia (particulars or evidence) need not

be set out in the pleadings. They are not facts in issue, but

only relevant facts required to be proved at the trial in

order to establish the fact in issue.”

17. Now, before examining the rival submissions in the

light of the aforestated legal position, it would be expedient

to deal with another submission of the learned counsel for

the appellant that the High Court should not have exercised

its power either under Order 6 Rule 16 or Order 7 Rule 11

of the Code to reject the election petition at the threshold.

The argument is twofold viz.:

(i) that even if the election petition was liable to be

dismissed ultimately, it should have been dismissed only

after affording an opportunity to the election petitioner

to adduce evidence in support of his allegation in the

petition, and

(ii) since Section 83 does not find a place in Section 86

of the Act, rejection of the petition at the threshold

would amount to reading into sub-section (1) of Section

86 an additional ground.

In our opinion, both the contentions are misconceived and

untenable.

18. Undoubtedly, by virtue of Section 87 of the Act, the

provisions of the Code apply to the trial of an election

petition and, therefore, in the absence of anything to the

contrary in the Act, the court trying an election petition can

act in exercise of its power under the Code, including Order

6 Rule 16 and Order 7 Rule 11 of the Code. The object of

both the provisions is to ensure that meaningless litigation,

which is otherwise bound to prove abortive, should not be

permitted to occupy the judicial time of the courts. If that

is so in matters pertaining to ordinary civil litigation, it

must apply with greater vigour in election matters where

the pendency of an election petition is likely to inhibit the

elected representative of the people in the discharge of his

public duties for which the electorate have reposed

confidence in him. The submission, therefore, must fail.

19. Coming to the second limb of the argument viz.

absence of Section 83 in Section 86 of the Act, which

specifically provides for dismissal of an election petition

which does not comply with certain provisions of the Act, in

our view, the issue is no longer res integra. A similar plea

was negatived by a three-Judge Bench of this Court

in Hardwari Lal v. Kanwal Singh [(1972) 1 SCC 214],

wherein speaking for the Bench, A.N. Ray, J. (as His

Lordship then was) said : (SCC p. 221, para 23)

“23. Counsel on behalf of the respondent submitted

that an election petition could not be dismissed by reason

of want of material facts because Section 86 of the Act

conferred power on the High Court to dismiss the election

petition which did not comply with the provisions of Section

81, or Section 82 or Section 117 of the Act. It was

emphasised that Section 83 did not find place in Section

86. Under Section 87 of the Act every election petition shall

be tried by the High Court as nearly as may be in

accordance with the procedure applicable under the Civil

Procedure Code, 1908, to the trial of suits. A suit which

does not furnish cause of action can be dismissed.”

20. The issue was again dealt with by this Court in Azhar

Hussain v. Rajiv Gandhi [1986 Supp SCC 315]. Referring to

earlier pronouncements of this Court in Samant N.

Balkrishna [(1969) 3 SCC 238] and Udhav Singh v. Madhav

Rao Scindia [(1977) 1 SCC 511] wherein it was observed

that the omission of a single material fact would lead to

incomplete cause of action and that an election petition

without the material facts is not an election petition at all,

the Bench in Azhar Hussain case [1986 Supp SCC 315]

held that all the facts which are essential to clothe the

petition with complete cause of action must be pleaded and

omission of even a single material fact would amount to

disobedience of the mandate of Section 83(1)(a) of the Act

and an election petition can be and must be dismissed if it

suffers from any such vice.

21. We may now advert to the facts at hand to

examine whether the election petition suffered from the

vice of non-disclosure of material facts as stipulated in

Section 83(1)(a) of the Act. As already stated the case of

the election petitioner is confined to the alleged violation of

Section 100(1)(d)(iv). For the sake of ready reference, the

said provision is extracted below:

“100. Grounds for declaring election to be void.—

(1) Subject to the provisions of sub-section

(2) if the High Court is of opinion—

***

(d) that the result of the election, insofar as it concerns

a returned candidate, has been materially affected—

***

(iv) by any non-compliance with the provisions of

the Constitution or of this Act or of any rules or orders

made under this Act, the High Court shall declare the

election of the returned candidate to be void.”

It is plain that in order to get an election declared as void

under the said provision, the election petitioner must aver

that on account of non-compliance with the provisions of

the Constitution or of this Act or of any rules or orders

made under the Act, the result of the election, insofar as it

concerned

the

returned

candidate,

was

materially

affected.”

28. The legal position enunciated in afore-stated cases may

be summed up as under:—

i. Section 83(1)(a) of RP Act, 1951 mandates that an

Election petition shall contain a concise statement of

material facts on which the petitioner relies. If material

facts are not stated in an Election petition, the same is

liable to be dismissed on that ground alone, as the case

would be covered by Clause (a) of Rule 11 of Order 7 of

the Code.

ii. The material facts must be such facts as would afford

a basis for the allegations made in the petition and

would constitute the cause of action, that is every fact

which it would be necessary for the plaintiff/petitioner to

prove, if traversed in order to support his right to the

judgment of court. Omission of a single material fact

would lead to an incomplete cause of action and the

statement of plaint would become bad.

iii. Material facts mean the entire bundle of facts which

would constitute a complete cause of action. Material

facts would include positive statement of facts as also

positive averment of a negative fact, if necessary.

iv. In order to get an election declared as void under

Section 100(1)(d)(iv) of the RP Act, the Election

petitioner must aver that on account of non-compliance

with the provisions of the Constitution or of the Act or

any rules or orders made under the Act, the result of the

election, in so far as it concerned the returned

candidate, was materially affected.

v. The Election petition is a serious matter and it cannot

be treated lightly or in a fanciful manner nor is it given

to a person who uses it as a handle for vexatious

purpose.

vi. An Election petition can be summarily dismissed on

the omission of a single material fact leading to an

incomplete cause of action, or omission to contain a

concise statement of material facts on which the

petitioner relies for establishing a cause of action, in

exercise of the powers under Clause (a) of Rule 11 of

Order VII CPC read with the mandatory requirements

enjoined by Section 83 of the RP Act.

Conclusion:

29. In the light of the afore-stated legal position, let us see

whether the respondent/election petitioner had complied

with the requirements of Section 83(1)(a) of the RP Act, by

stating “material facts” in the Election petition, constituting

cause of action and the ground as contemplated in Section

100(1)(d)(iv) of the RP Act, for declaring the election of the

Appellant-returned candidate to be void. The bone of

contention raised by the learned counsel appearing for the

respondent-election

petitioner

that

the

Election

Commission of India had called for the information

prescribing the Form 26 in regard to status of filing of

income tax return of candidates and their family members

by exercising powers under Article 324 of the Constitution

of India and in that the petitioner had provided information

that her spouse was working as consultant at foreign

country and earning salary against the column No. 8, Serial

No. 9(b) and 9A(b), respectively under Part A of Form 26.

Besides, she had mentioned “No” to the query regarding

Income tax dues of her spouse, (mentioned as “Ethumilai”

in Tamil language). She had further stated that her spouse

had bank accounts in Singapore with deposit of dollars

against column No. 7 Serial No. (ii) of column in Part A of

Form 26 but had failed to disclose the status of filing

income tax return of her spouse in the foreign country. He

therefore submitted that these material facts which have

already been stated in the Election petition, were sufficient

to constitute cause of action for filing Election petition

under Section 100(1)(d)(iv) of the RP Act.

Mere bald and vague allegations without any basis would

not be sufficient compliance of the requirement of stating

material facts in the Election Petition. As well settled not

only positive statement of facts, even a positive statement

of negative fact is also required to be stated, as it would be

a material fact constituting a cause of action. The material

facts which are primary and basic facts have to be pleaded

by the Election petitioner in support of the case set up by

him to show his cause of action and omission of a single

material fact would lead to an incomplete cause of action,

entitling the returned candidate to pray for dismissal of

Election petition under Order VII Rule 11(a) CPC read with

Section 83(1)(a) of the RP Act.

32. It is also significant to note that an affidavit in Form 26

along with the nomination paper, is required to be

furnished by the candidate as per Rule 4A of the said Rules

read with Section 33 of the said Act. The Returning Officer

is empowered either on the objections made to any

nomination or on his own motion, to reject any nomination

on the grounds mentioned in Section 36(2), including on

the ground that there has been a failure to comply with any

of the provisions of Section 33 of the Act. However, at the

time of scrutiny of the nomination paper and the affidavit

in the Form 26 furnished by the Appellant-returned

candidate, neither any objection was raised, nor the

Returning Officer had found any lapse or non-compliance of

Section 33 or Rule 4A of the Rules. Assuming that the

election petitioner did not have the opportunity to see the

Form No. 26 filled in by the Appellant-returned candidate,

when she submitted the same to the Returning Officer, and

assuming that the Returning Officer had not properly

scrutinized the nomination paper of the appellant, and

assuming that the election petitioner had a right to

question the same by filing the Election petition under

Section 100(1)(d)(iv) of the said Act, then also there are

no material facts stated in the petition constituting cause of

action under Section 100(1)(d)(iv) of the RP Act. In

absence of material facts constituting cause of action for

filing Election petition under Section 100(1)(d)(iv) of the

said Act, the Election petition is required to be dismissed

under Order VII Rule 11(a) CPC read with Section 13(1)(a)

of the RP Act.

33. As elaborately discussed earlier, Section 83(1)(a) of RP

Act mandates that an Election petition shall contain a

concise statement of material facts on which petitioner

relies, and which facts constitute a cause of action. Such

facts would include positive statement of facts as also

positive averment of negative fact. Omission of a singular

fact would lead to incomplete cause of action. So far as the

present petition is concerned, there is no averment made

as to how there was non-compliance with provisions of

the Constitution or of RP Act or of the Rules or Order made

thereunder and as to how such non-compliance had

materially affected the result of the election, so as to

attract the ground under Section 100(1)(d)(iv) of the RP

Act, for declaring the election to be void. The omission to

state such vital and basic facts has rendered the petition

liable to be dismissed under Order VII, Rule 11(a) CPC read

with Section 83(i)(a) of the RP Act, 1951.

34. In that view of the matter, Election petition being no.

3/2019 filed by the respondent-election petitioner deserves

to be dismissed, and is accordingly dismissed.”

18. Reliance was also placed on following paragraphs in

case of Azhar Hussain v. Rajiv Gandhi, reported in 1986

Supp SCC 315:

“8. The argument is that inasmuch as Section 83(1) is not

adverted to in Section 86 in the context of the provisions,

non-compliance with which entails dismissal of the election

petition,

follows

that

non-compliance

with

the

requirements of Section 83(1), even though mandatory, do

not have lethal consequence of dismissal. Now it is not

disputed that the Code of Civil Procedure (CPC) applies to

the trial of an election petition by virtue of Section 87 of the

Act [87. Procedure before the High Court.—(1) Subject to

the provisions of this Act and of any rules made thereunder,

every election petition shall be tried by the High Court, as

nearly as may be, in accordance with the procedure

applicable under the Code of Civil Procedure, 1908 (5 of

1908) to the trial of suits: Provided that the High Court shall

have the discretion to refuse, for reasons to be recorded in

writing, to examine any witness or witnesses if it is of the

opinion that the evidence of such witness or witnesses is not

material for the decision of the petition or that the party

tendering such witness or witnesses is doing so on frivolous

grounds or with a view to delay the proceedings. (2) The

provisions of the Indian Evidence Act, 1872 (1 of 1872),

shall, subject to the provisions of this Act, be deemed to

apply in all respects to the trial of an election petition.] .

Since CPC is applicable, the court trying the election petition

can act in exercise of the powers of the Code including

Order 6 Rule 16 and Order 7 Rule 11(a) which read thus:

“Order 6, Rule 16: Striking out pleadings.—The court may at

any stage of the proceedings order to be struck out or

amend any matter in any pleading—

(a) which may be unnecessary, scandalous, frivolous or

vexatious; or

(b) which may tend to prejudice, embarrass or delay the fair

trial of the suit; or

(c) which is otherwise an abuse of the process of the court.

Order 7, Rule 11: Rejection of plaint.—The plaint shall be

rejected in the following cases:

(a) where it does not disclose a cause of action; ”

9. The fact that Section 83 does not find a place in Section

86 of the Act does not mean that powers under the CPC

cannot be exercised.

10. There is thus no substance in this point which is already

concluded against the appellant in Hardwari Lal v. Kanwal

Singh [(1972) 1 SCC 214 : AIR 1972 SC 515 : (1972) 2 SCR

742] wherein this Court has in terms negatived this very

plea in the context of the situation that material facts and

particulars relating to the corrupt practice alleged by the

election petitioner were not incorporated in the election

petition as will be evident from the following passage

extracted from the judgment of A.N. Ray, J. who spoke for

the three-judge Bench: (SCC p. 221, paras 22 and 23)

“The allegations in para 16 of the election petition do not

amount to any statement of material fact of corrupt

practice. It is not stated as to what kind or form of

assistance was obtained or procured or attempted to obtain

or procure. It is not stated from whom the particular type of

assistance was obtained or procured or attempted to obtain

or procure. It is not stated in what manner the assistance

was for the furtherance of the prospects of the election. The

gravamen of the charge of corrupt practice within the

meaning of Section 123(7) of the Act is obtaining or

procuring or abetting or attempting to obtain or procure any

assistance other than the giving of vote. In the absence of

any suggestion as to what that assistance was the election

petition is lacking in the most vital and essential material

fact to furnish a cause of action.

Counsel on behalf of the respondent submitted that an

election petition could not be dismissed by reason of want of

material facts because Section 86 of the Act conferred

power on the High Court to dismiss the election petition

which did not comply with the provisions of Section 81, or

Section 82 or Section 117 of the Act. It was emphasized

that Section 83 did not find place in Section 86. Under

Section 87 of the Act every election petition shall be tried by

the High Court as nearly as may be in accordance with the

procedure applicable under the Code of Civil Procedure,

1908 to the trial of the suits. A suit which does not furnish

cause of action can be dismissed.”

11. In view of this pronouncement there is no escape from

the conclusion that an election petition can be summarily

dismissed if it does not furnish cause of action in exercise of

the powers under the Code of Civil Procedure. So also it

emerges from the aforesaid decision that appropriate orders

in exercise of powers under the Code of Civil Procedure can

be passed if the mandatory requirements enjoined by

Section 83 of the Act to incorporate the material facts in the

election petition are not complied with. This Court in Samant

case [Samant N. Balkrishna v. George Fernandez(1969) 3

SCC 238] has expressed itself in no unclear terms that the

omission of a single material fact would lead to an

incomplete cause of action and that an election petition

without the material facts relating to a corrupt practice is

not an election petition at all. So also in Udhav Singh

case [Udhav Singh v. Madhav Rao Scindia(1977) 1 SCC

511] the law has been enunciated that all the primary facts

which must be proved by a party to establish a cause of

action or his defence are material facts. In the context of a

charge of corrupt practice it would mean that the basic facts

which constitute the ingredients of the particular corrupt

practice alleged by the petitioner must be specified in order

to succeed on the charge. Whether in an election petition a

particular fact is material or not and as such required to be

pleaded is dependent on the nature of the charge leveled

and the circumstances of the case. All the facts which are

essential to clothe the petition with complete cause of action

must be pleaded and failure to plead even a single material

fact would amount to disobedience of the mandate of

Section 83(1)(a). An election petition therefore can be and

must be dismissed if it suffers from any such vice. The first

ground of challenge must therefore fail.

Ground B

25. In this case also, no time, date and place of the

speeches delivered by the respondent have been mentioned.

No exact extracts from the speeches are quoted. Nor have

the material facts showing that such statements imputed to

the respondent were indeed made been stated. No

allegation is made to the effect that it was in order to

prejudice the election of any candidate. Or in order to

further the prospects of the election of the respondent. The

essential ingredients of the alleged corrupt practice have

thus not been spelled out. So far as the meeting is

concerned, the principle [“... The pleading was so vague

that it left a wide scope to the appellant to adduce evidence

in respect of a meeting at any place on any date that he

found convenient or for which he could procure witnesses.

The pleading, in fact, was so vague and was wanting in

essential particulars that no evidence should have been

permitted by the High Court on this point....”] laid down

in Nihal Singh case [(1970) 3 SCC 239] discussed in the

context of the charge contained in ground II(i) is attracted.

The

view

taken

the

High

Court

therefore

unexceptionable.

Ground II(iii)

26. The alleged corrupt practice as incorporated in ground II

(iii) reads as under:

“In line with the respondent's speeches, his workers with

the knowledge and consent of the respondent and other

agents of the respondent entrusted with the task of

conducting the election campaign caused a poster of Hindi

and Urdu to be affixed in all prominent places throughout

the constituency. The said poster was in fact a page of the

Blitz newspaper of 30-6-1984 called the Id Special. The Id

that year was on 1-7-1984. The heading of the said poster

which was underlined in red alleged conspiracy between the

leader

the

petitioner

party

and

Bhindaranwale.

Photographs of Mrs Maneka Gandhi and Bhindaranwale

appeared separately on left and right hand corners of the

said advertisement. A literal English translation of the poster

is given below: A copy of the said poster will be filed as Ex.

B. The poster also purported to carry a fascimile copy of a

letter dated 10-9-1983, purporting to be addressed by Shri

Kalpnath Sonkar, a member of the Rashtriya Sanjay Manch,

to Shri Bhindaranwale. The letter is a forgery and that it was

forged was publicly stated by alleged author of the alleged

letter and a criminal case is pending in the matter thereof.

The letter was fabricated expressly for the express purpose

of showing:

(a)

that

Mrs.Maneka

Gandhi

was

secret

conspiracy

with Bhindaranwale.

(b)

that Mrs.Maneka Gandhi illegally supplied arms to

Bhindaranwale

and

other

secessionists

and

terrorists.

(c)

that Maneka Gandhi was in sympathy with the creation of

Khalistan and the division of the country and the

use of violence to achieve that end.

The said allegations are totally false and fabricated. The

respondent knew them to be false. He did not and could not

believe them to be true. That complaints were made to the

District authorities about the obnoxious wall paintings and

posters to which the attention of the respondent had been

drawn. The said authorities while clearly admitting the RSM

election agents and worker as well as to the press

correspondents that they were objectionable took no steps

to remove or obliterate them. Prominent newspapers and

press correspondents continued to draw attention to those

slogans and posters but the respondent or his workers took

no step whatsoever to stop their exhibition, circulation and

use. The respondent condoned and sanctioned the exhibition

and circulation of this poster. He did nothing to stop the use

thereof by his workers. The wall painting mentioned above

and this poster were paid out of Congress (I) party's funds.

These were therefore, his own expenses sanctioned by

himself. Cutting of some of the newspaper reports will be

filed as Ex. C.”

Why the High Court held that material facts and particulars

are absent and did not disclose a cause of action?

35. The pleading therefore does not spell out the cause of

action. So also on account of the failure to mention the

material facts, the court could not have permitted the

election petitioner to adduce evidence on this point. It would

therefore attract the doctrine laid down in Nihal Singh

case [(1970) 3 SCC 239] and there would be nothing for the

respondent to answer.

Ground XV

36. Alleged corrupt practice as incorporated in ground XV

reads as under:

“That during the course of the campaign, the respondent,

his election agent and his party brought into existence a

propaganda committee to further the prospects of the

respondent's election. This committee was called the

‘Amethi Matdata Parishad’. Through the agency of this

committee, the respondent, his election agent and others

with their consent and knowledge caused another pamphlet

to be printed, published and circulated during the entire

election campaign under the title ‘How do Intelligent people

think? Who is an obstacle in the progress of Amethi’. The

said pamphlet inter alia, contains the following statements:

‘That Maneka Gandhi is surrounded only by anti-social

elements. She was also seen in the company of terrorists.

Her whole campaign is based on money.... In my view,

Maneka seems to have a big hand in the fire of Punjab.

Maneka has no merit of her own. If she had anything in her,

it would have come out before her marriage to Sanjay If

she had any desire for leadership or service of the country,

she would have cooperated with her husband. Politics is for

her a pursuit of pleasure (“shaukiya dhandha”). Therefore,

she is conducting her politics on the strength of people like

Haji Mastan and Virendra Shahi.... A woman who could not

protect the honour of a vast country like India Maneka is

the destroyer of the country.’

The petitioner says that the entire trend of this pamphlet

and the propaganda conducted on the basis thereof casts

serious aspersions on the personal character of a candidate.

Each of these statements is false to the knowledge of the

respondent and others. The printing, publication and

circulation of the said pamphlet and the propaganda based

thereon was, in any event, done by the agents of the

respondent and in the interests of the election of the

respondent. These statements are in relation to the personal

character or conduct of a candidate and they are in relation

to her candidature. These statements were reasonably

calculated to prejudice the prospects of the petitioner's

election. The election of the respondent is thus liable to be

declared void under Section 100(1)(b). This was also liable

to be set aside under Section 100(1)(d)(ii), inasmuch as,

the result of the election insofar as it concerned the

returned candidate, has been materially affected by this

gross corrupt practice.

In this pamphlet, the same Jagdish Piyush who is referred to

in the pamphlet in the preceding paragraphs, is one of the

contributors and in that contribution, he has referred to his

publication mentioned in the previous paragraphs.”

Why the High Court held that material facts and particulars

are absent and did not disclose a cause of action?

37. The High Court observed:

“The petitioner has set out specific statements from this

pamphlet commenting adversely on the character and

conduct of Smt.Maneka Gandhi where, inter alia, her

association with terrorists and other persons of questionable

antecedents was set out. It has been stated that these

statements are false to the knowledge of the respondent

and others and the pamphlet was distributed by the agents

of the respondent in the interests of the election of the

respondent and that the result, so far as the respondent is

concerned, has been materially affected by the corrupt

practice. Here also, the petitioner has made an omnibus

statement of the printing, publication and circulation of the

pamphlet by the respondent, his election agent and others

with their consent and knowledge without trying to pinpoint

the particular person who had done so. The places, dates

where the pamphlets were distributed have also not been

indicated. It was necessary for the petitioner to do under

the law as set out above. The pleading is therefore, vague,

embarrassing and lacks in material facts and, therefore,

must fail. The petitioner's prayer for an amendment to

delete the proposal to file a copy of the pamphlet is allowed

as it is evidence and not integral part of the petition.”

Whether the High Court was right in taking the aforesaid

view?

38. In view of the doctrine laid down in Nihal Singh

case [(1970) 3 SCC 239] as early as in 1970, the High Court

was perfectly justified in taking the view that no cause of

action was made out. For, in the absence of material

particulars as to who had printed, published or circulated

the pamphlet, when, where and how it was circulated and

which facts went to indicate the respondent's consent to

such distribution, the pleading would not disclose a cause of

action. There would be nothing for the respondent to answer

and the matter would fall within the doctrine laid down

in Nihal Singh case [(1970) 3 SCC 239]. The learned

counsel for the appellant is unable to show how the court

has committed any error in reaching this conclusion.”

19.

On other hand, learned counsel

for

petitioners

sought to oppose application. It was submitted that application

was misconceived and filed with intention to dilate proceedings.

20.

It was submitted Part VI of

ROPA

dealt

with

disputes regarding elections. Section 79 provided definitions,

while Section 80 provided that no election could be called in

question except by an election petition presented as provided in

Part VI.

21.

Section 80A provided that only High Court would

have jurisdiction to try election petition which

could

presented as per Section 81 on any grounds set out in Section

100 and 101 of ROPA by any candidate at such election, or any

elector within 45 days of declaration of results of such election.

Sub-section (3) required election petition to be filed with as

many copies as respondents and each copy to be attested by

petitioner. It was submitted that Section 82 prescribed parties

to petition, while Section 83 its contents and Section 84 relief

that could be claimed. Further Section 86 stipulated procedure

for trial of election petitions. It was further submitted that as

per Section 87 (1), provisions of CPC would as far as possible

apply to election petitions subject to Election Petition Rules that

may be framed. It was submitted that Section 100 stipulated

limited grounds on which elections could be declared void. It

was submitted Section 100 (1) (b) mandated establishment of

commission of corrupt practice by returned candidate or with

consent of returned candidate or his election agent.

22.

It was further submitted as per Section 100 (1) (d)

(ii), election could be declared void even where it were

established that result of election was materially affected by

any corrupt practice committed

interest

returned

candidate by an agent other than his election agent. Attention

was also drawn to definition of corrupt practices under Section

123 of ROPA. It was submitted, specific corrupt practice alleged

in present petition was under Section 123 (1) (A) (b) (ii)

namely bribery of electors to vote for returned candidate at

election.

23.

It was submitted, there was no dispute

about

election petition suffering from technical

defects

regarding

proper Court, proper parties and reliefs

sought.

was

submitted that in paragraph no.3, petitioner had averred about

conduct of elections and declaration of results

wherein

respondent was declared elected. It was

submitted

paragraphs no.7 to 11, petitioners had provided their details as

electors by references to voters list of constituency, paragraph

no.13 about respondent being returned candidate. It was

submitted that in paragraphs no.14 to 16 details of corrupt

practice being committed as per instructions of respondent

were stated. It was submitted that there was specific assertion

about meeting being convened by respondent on 06.05.2023,

07.05.2023 and 09.05.2023 at Block

Congress

Committee

Office. It was also specifically averred that respondent was

personally present in said meeting. In subsequent paragraphs

up to paragraph no.16, details with sufficient particulars of gift

cards being distributed as inducement to vote in favour of

returned candidate, registration of FIR against respondent for

offence of commission of corrupt practice under Section 123 (1)

A, B and Section 127A of ROPA were stated.

24.

Insofar as requirement of affidavit in Form no.25, it

was submitted that affidavit filed

would

sufficiently

compliant. It was submitted that form of affidavit was not

material and even if affidavit were to be defective, same was

curable and not fatal. Therefore, application filed for rejection

of election petition on ground of failure to comply with Rule 94A

of Rules would be liable for rejection.

25.

It was further contended that respondent

had

entered appearance and filed written statement on 09.10.2023,

but no specific contention about petition being defective for

want of material etc have been urged.

26.

In response to contention of applicant, it was

submitted that production of all documents based on which

petitioners were seeking for avoiding election of respondent at

time of filing petition was not mandatory. Since it was matter of

evidence, same could be produced during trial.

27.

Insofar as objections about failure to

disclose

whether petitioners had personal knowledge about commission

of corrupt practice by returned candidate or that they believed

them to be true from information received from someone else,

which they believed to be true, it

was

contended

that

petitioners

were

electors

Ramanagara

Assembly

Constituency and had stated their credentials in paragraphs

no.7 to 11 of petition. They had also stated they had full

knowledge, details of same would be revealed during trial and

not at stage of consideration of application under Order VII

Rule 11.

28.

Insofar as requirement of material facts with full

particulars, it was submitted that same were duly stated in

paragraphs no.14 to 16 of petition with particulars of date, time

and place of holding of meeting, persons who handed over gift

cards to petitioners and manner of commission of corrupt

practice by returned candidate. It

was

submitted

that

petitioners had also stated about press conference held by

returned candidate on 22.05.2023, at 4:30 PM in Congress

Office, Ijoor, Ramanagara, wherein he admitted to have issued

gift cards to voters as reward for voting in his favour. Even said

assertion was with full particulars including time, date and

place of holding such press conference and also manner in

which they had obtained copy of unedited video of press

conference. In fact, petitioners had made transcript of entire

press conference, part of petition.

29.

It was further submitted that in paragraph no.26 of

petition, petitioner had stated about registration of FIR in Crime

no.39/2023, on 10.05.2023 against returned candidate, for

offences punishable under Sections 123 (1) (A) and (B) and

127A of ROPA, on compliant of Mr.Rangaraju, Member of Flying

Squad Team when he found a woman carrying ‘gift card’

displaying photo, name and symbol

political

party

returned candidate, near polling station no.108, 117 and 118

on 10.05.2023 i.e. date of election.

30.

was

submitted

that

based

above

facts/allegations, petitioners had narrated grounds for setting

aside election of returned candidate, in paragraphs no.27 to 32

of petition. Therefore, on perusal of entire election petition, it

could be seen to disclose clear and complete cause of action

against returned candidate. Hence, application filed was liable

to be dismissed.

31.

It was also contended that it was not case

returned candidate that petitioners had not

complied

with

Section 81 of ROPA, but allegation was mainly about non-

conformity with Section 83 of ROPA. Likewise, contents of

affidavit filed in support of present application would reveal

only allegation of failure to provide ‘full material particulars’

and not ‘material facts’, which is held not valid ground for

rejection of petition at threshold.

32.

It was lastly contended that

contention

petition being defective for want of full particulars of material

facts was even urged. Hence, application was wholly untenable

and liable for rejection.

33.

Reference was made to following observations of

Hon’ble Supreme Court in case of Thangjam Arunkumar v.

Yumkham Erabot Singh, reported in 2023 SCC OnLine SC

1058:

“This appeal arises out of the decision of the High Court of

Manipur

dated

11.04.2023,

whereby

the

returned

candidate's application under Order 7 Rule 11 of the Civil

Procedure Code, 1908, to dismiss the election petition filed

by the unsuccessful candidate on the ground that it lacks

material particulars and is in violation of mandatory

requirements of law was rejected by the High Court. The

returned candidate is the Appellant before us.

Facts:

2. The

short

and

precise

facts

necessary

for

our

consideration are as follows. The Appellant is the returned

candidate to the XII Manipur Legislative Assembly, having

been elected from the 15-Wangkhei Assembly Constituency.

The Respondent No.1, the unsuccessful candidate moved

Election Petition no.24 of 2022 alleging violations under

Sections 80, 80A, 81, 84 read with Sections 100(1)(d)(iv)

and 101 of the Representation of People Act, 1951. The

election petitioner prayed that the election of the Appellant

be held void and also to declare him to be the elected

candidate. It is important to note that the election petition

alleges corrupt practice, in as much as the petitioner

pleaded that the returned candidate has not provided the

material particulars with respect to a financial transaction

relating to financing a loan.

3. In response to the election petition, the Appellant moved

two applications under Order 7 Rule 11 read with

Section 151 of the CPC and under Section 86 of the Act

seeking dismissal of the election petition on the grounds of –

(i) non-disclosure of cause of action/triable issue vis-

à-vis the alleged corrupt practice committed by the

Appellant;

(ii) the absence of a concise statement of facts as

mandated under Section 83 of the Act; and

(iii) for not serving a true self attested copy of the

election petition on the returned candidate as provided

under Section 81 of the Act. Apart from the above, and

more importantly, the Appellant also sought dismissal of the

election petition on the ground that the Form-25 affidavit as

prescribed under Section 83 of the Act r/w Rule 94A of the

Conduct of Election Rules, 1961 has not been filed along-

with the election petition. It was alleged that such an

affidavit is mandatory, as the election petition raises

allegations of corrupt practice.

4. The High Court, by the order impugned, dismissed the

applications under Order 7 Rule 11 of the CPC. The High

Court observed that - (i) the election petitioner had

elaborately pleaded all the material facts and set forth full

particulars of all the actions and omissions of the Appellant,

sufficient to constitute a case of corrupt practice. The High

Court, therefore, concluded that there is a cause of action

and triable issues; (ii) the High Court also concluded that

the alleged non-compliance of Section 81(3) of the Act is

incorrect as the election petitioner had effectively attested

the election petition. For this purpose, High Court relied on

the decisions of this Court in Ch. Subbarao v. Member,

Election Tribunal, Hyderabad, and also a decision of the

same Court in Pukhrem Sharatchandra Singh v. Mairembam

Prithviraj @ Prithibiraj Singh, later came to be upheld by

this Court in Mairembam Prithviraj @ Prithviraj

Singh v. Pukhrem Sharatchandra Singh. The High Court

observed that although the election petitioner attested the

election petition as “true copy of the original” and not as

“true copy of the petition”, the same is in compliance with

Section 81(3) of the Act.

5. The submission that in all cases involving allegations of

corrupt practices, the election petitioner must mandatorily

file an affidavit under Section 83(1) of the Act was rejected

without much discussion. The High Court simply following

the decision of this Court in Lok Prahari through its General

Secretary v. Union of India, rejected the plea.

Submissions:

6. Mr.Devadatt Kamat, learned senior counsel appearing for

the Appellant initially argued the first two grounds, namely

that there is a non-disclosure of the cause of action and also

that there is a complete non-compliance of the requirement

under Section 81(3) of the Act with respect to the

attestation of the election petition. However, as we

expressed our disinclination to interfere on those grounds,

he took up the alternative point and emphatically argued

that the judgment of the High Court is unsustainable as the

election

petition

completely

violated

the

‘mandatory’

requirement of 83(1)(c) of the Act. He argued that the

election petition must fail for not filing the additional

affidavit in support of the allegation of corrupt practice. He

elaborated this point by taking us through the Section, and

in particular, the proviso which requires that in cases of

corrupt practice, “the petition shall also be accompanied by

an affidavit”.

7. On the specific submission of Mr.Devadatt Kamat as to

how the election petition alleging corrupt practice must fail

for not filling the additional affidavit, Mr.Shadan Farasat,

learned counsel for the election petitioner submitted that no

such additional affidavit is filed. Mr.Farasat, however,

strengthened his case in the written submission by referring

to the decisions of this Court in G.M.

Siddeshwar v. Prasanna Kumar, and A. Manju v. Prajwal

Revanna, where it was held that non-filing of a Form-25

affidavit is a curable defect.

Issue for consideration:

8. The only issue for consideration is whether the election

petition is liable to be dismissed by allowing the Order 7

Rule 11 application for non-compliance of Section 83(1)(c)

of the Act.

Analysis:

9. We may at the outset state that there is absolutely no

consideration of this issue by the High Court. Neither the

implications of Section 83(1)(c) of the Act, nor the

interpretation of its proviso were taken up for consideration

by the High Court. Further, surprisingly, the High Court

simply referred to the decision of this Court in Lok

Prahari (supra) and rejected the submission. Lok

Prahari (supra) has no bearing on the issue.

10. We would refer to the statutory provisions and the

judgments on the point for answering the question of law

raised by the Appellant. We will first refer to Sections 83

and 86 of the Act and Order 6 Rule 15 of the CPC.

83. Contents of petition — (1) An election petition—

(a) shall contain a concise statement of the material

facts on which the petitioner relies;

(b) shall 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; and

(c) shall be signed by the petitioner and verified in the

manner laid down in the Civil Procedure Code, 1908 (5 of

1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt

practice, the petition shall also be accompanied by an

affidavit in the prescribed form in support of the allegation

of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also

be signed by the petitioner and verified in the same manner

as the petition.

86. Trial of election petitions — (1) The High Court shall

dismiss an election petition which does not comply with the

provisions of Section 81 or Section 82 or Section 117.

Order 6 Rule 15: Verification of pleadings — (1) Save as

otherwise provided by any law for the time being in force,

every pleading shall be verified at the foot by the party or

by one of the parties pleading or by some other person

proved to the satisfaction of the court to be acquainted with

the facts of the case.

(2) The person verifying shall specify, by reference to

the numbered paragraphs of the pleading, what he verifies

of his own knowledge and what he verifies upon information

received and believed to be true.

(3) The verification shall be signed by the person

making it and shall state the date on which and the place at

which it was signed.

(4) The person verifying the pleading shall also

furnish an affidavit in support of his pleadings.”

11. The first decision on this issue is by a Constitution

Bench in T.M. Jacob v. C. Poulose. In the said case, the

returned candidate was defending an election petition filed

against him on the ground of non-compliance with the

requirements under Section 81(3) of the Act. This Court,

after going through the difference in the legislative intent of

Sections 81 and 83 of the Act, observed that non-

compliance with the requirements of the former provides for

an automatic dismissal of an election petition under Section

86 of the Act, and non-compliance with the latter is a

curable defect and would not merit dismissal at the

threshold. In this light, this Court observed that:

“38. … to our mind, the legislative intent appears to be quite

clear, since it divides violations into two classes — those

violations which would entail dismissal of the election

petition under Section 86(1) of the Act like non-compliance

with Section 81(3) and those violations which attract

Section 83(1) of the Act, i.e., non-compliance with the

provisions of Section 83. It is only the violation of Section

81 of the Act which can attract the application of the

doctrine of substantial compliance as expounded in Murarka

Radhey Shyam, (1964) 3 SCR 573 and Ch.

Subbarao, (1964) 6 SCR 213 cases. The defect of the type

provided in Section 83 of the Act, on the other hand, can be

dealt with under the doctrine of curability, on the principles

contained in the Code of Civil Procedure.”

12. In Siddeshwar (supra), the matter came up before a

three-judge bench of this Court by way of a reference. When

the matter was placed before a two-judge bench, it was

contended, relying upon P.A. Mohammed Riyas v. M.K.

Raghavan, that an election petitioner has to file the Form-25

affidavit in support of the corrupt practice allegation, in

addition to the usual verifying affidavit which forms an

integral part of the election petition. On the other hand, the

two-judge bench was also appraised of judgments to the

contrary which held that not filing of the affidavit is a

curable defect. In order to give quietus to the issue, the

matter was referred to a bench of three judges. After relying

on various precedents, the three Judge Bench

in Siddeshwar observed as under:

“1. The principal question of law raised for our

consideration is whether, to maintain an election petition, it

is imperative for an election petitioner to file an affidavit in

terms of Order 6 Rule 15(4) of the Civil Procedure Code,

1908 in support of the averments made in the election

petition in addition to an affidavit (in a case where resort to

corrupt practices have been alleged against the returned

candidate) as required by the proviso to Section 83(1) of

the Representation of the People Act, 1951. In our opinion,

there is no such mandate in the Representation of the

People Act, 1951 and a reading of P.A. Mohammed Riyas v.

M.K. Raghavan, (2012) 5 SCC 511, which suggests to the

contrary, does not lay down correct law to this limited

extent.

2. Another question that has arisen is that if an affidavit

filed in support of the allegations of corrupt practices of a

returned candidate is not in the statutory Form 25

prescribed by the Conduct of Elections Rules, 1961, whether

the election petition is liable to be summarily dismissed. In

our opinion, as long as there is substantial compliance with

the statutory form, there is no reason to summarily dismiss

an election petition on this ground. However, an opportunity

must be given to the election petitioner to cure the defect.

Further, merely because the affidavit may be defective, it

cannot be said that the petition filed is not an election

petition as understood by the Representation of the People

Act, 1951.

22. A plain reading of Rule 15 suggests that a verification of

the plaint is necessary. In addition to the verification, the

person verifying the plaint is “also” required to file an

affidavit in support of the pleadings. Does this mean, as

suggested by the learned counsel for Siddeshwar that

Prasanna Kumar was obliged to file two affidavits—one in

support of the allegations of corrupt practices and the other

in support of the pleadings?

23. A reading of Section 83(1)(c) of the Act makes it clear

that what is required of an election petitioner is only that

the verification should be carried out in the manner

prescribed in CPC. That Order 6 Rule 15 requires an affidavit

“also” to be filed does not mean that the verification of a

plaint is incomplete if an affidavit is not filed. The affidavit,

in this context, is a stand-alone document.

25. It seems to us that a plain and simple reading of Section

83(1)(c) of the Act clearly indicates that the requirement of

an additional affidavit is not to be found therein. While the

requirement of “also” filing an affidavit in support of the

pleadings filed under CPC may be mandatory in terms of

Order 6 Rule 15(4) CPC, the affidavit is not a part of the

verification of the pleadings—both are quite different. While

the Act does require a verification of the pleadings, the plain

language of Section 83(1)(c) of the Act does not require an

affidavit in support of the pleadings in an election petition.

We are being asked to read a requirement that does not

exist in Section 83(1)(c) of the Act.

37. A perusal of the affidavit furnished by Prasanna Kumar

ex facie indicates that it was not in absolute compliance with

the format affidavit. However, we endorse the view of the

High Court that on a perusal of the affidavit, undoubtedly

there was substantial compliance with the prescribed

format. It is correct that the verification was also defective,

but the defect is curable and cannot be held fatal to the

maintainability of the election petition.

38. Recently, in Ponnala Lakshmaiah v. Kommuri Pratap

Reddy, (2012) 7 SCC 788 the issue of a failure to file an

affidavit in accordance with the prescribed format came up

for consideration. This is what this Court had to say:

“28. … The format of the affidavit is at any rate not a

matter of substance. What is important and at the heart

of the requirement is whether the election petitioner has

made averments which are testified by him on oath, no

matter in a form other than the one that is stipulated in

the Rules. The absence of an affidavit or an affidavit in a

form other than the one stipulated by the Rules does not

by itself cause any prejudice to the successful candidate

so long as the deficiency is cured by the election

petitioner by filing a proper affidavit when directed to do

so.”

We have no reason to take a different view. The contention

urged by Siddeshwar is rejected.”

(emphasis supplied)

13. More recently, in A. Manju v/s Prajwal Revanna (supra),

this Court dealt with the same question as to whether an

election petition containing an allegation of corrupt practice

but not supported by an affidavit in Form 25, is liable to be

dismissed at the threshold. This Court had observed:

“26. However, we are not persuaded to agree with the

conclusion arrived at by the High Court that the non-

submission of Form 25 would lead to the dismissal of the

election petition. We say so because, in our view, the

observations made in Ponnala Lakshmaiah v. Kommuri

Pratap Reddy, (2012) 7 SCC 788 which have received the

imprimatur of the three-Judge Bench in G.M.

Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776,

appear not to have been appreciated in the correct

perspective. In fact, G.M. Siddeshwar v. Prasanna

Kumar, (2013) 4 SCC 776, has been cited by the learned

Judge to dismiss the petition. If we look at the election

petition, the prayer clause is followed by a verification.

There is also a verifying affidavit in support of the election

petition. Thus, factually it would not be appropriate to say

that there is no affidavit in support of the petition, albeit

not in Form 25. This was a curable defect and the learned

Judge trying the election petition ought to have granted

an opportunity to the appellant to file an affidavit in

support of the petition in Form 25 in addition to the

already existing affidavit filed with the election petition.

In fact, a consideration of both the judgments of the

Supreme Court referred to by the learned Judge

i.e. Ponnala

Lakshmaiah v. Kommuri

Pratap

Reddy, (2012) 7 SCC 788 as well as G.M.

Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776, ought

to have resulted in a conclusion that the correct ratio in

view of these facts was to permit the appellant to cure

this defect by filing an affidavit in the prescribed form.”

(emphasis supplied)

14. The position of law that emerges for the above referred

cases is clear. The requirement to file an affidavit under the

proviso to Section 83(1)(c) is not mandatory. It is sufficient

if there is substantial compliance. As the defect is curable,

an opportunity may be granted to file the necessary

affidavit.

15. In the instant case, the election petition contained on

affidavit and also a verification. In this very affidavit, the

election petitioner has sworn on oath that the paragraphs

where he has raised allegations of corrupt practice are true

to the best of his knowledge. Though there is no separate

and an independent affidavit with respect to the allegations

of corrupt practice, there is substantial compliance of the

requirements under Section 83(1)(c) of the Act.”

34. Following paragraphs in Bhim Rao Baswanth Rao

Patil v. K. Madan Mohan Rao, reported in 2023 SCC OnLine

SC 871 were also referred to:

“The present appeal by special leave questions a judgment

and order of the Telangana High Court dismissing an

application which sought rejection of the respondent's

election petition. The appellant had contended that the

election petition (hereafter “the petition”) did not disclose

any cause of action and was barred in law and was liable to

be rejected.

2. In the present case, the High Court noticed the

contentions of the parties as well as the pleadings and was

of the opinion that having regard to the terms of Order VII

Rule 11 CPC, only the averments in the petition and the

accompanying documents could be considered and not any

other materials brought on record during the course of the

proceedings. The Court was of the opinion that taking in the

overall conspectus of the facts available on the record did

not lead to a compelling reason for rejecting the election

petition.

Accordingly,

the

appellant's

application

was

dismissed, and the contentions were kept open to be

agitated during the trial.

The appellant's main contention was that though the

appellant had urged several grounds with respect to its

explanation for the alleged non-compliance of what were

termed

the

election

petitioner

mandatory

requirements, it was also alleged that Section 81(3) had not

been complied with. However, during the hearing, the

arguments on behalf of the appellant, by Mr. C.S.

Sundaram, Senior Advocate, were confined to submissions

to the aspect regarding non-disclosure of criminal cases.

The first related to a criminal case pending before the CJM,

Garhwa bearing CR 96P; case No. CF 97/13 dated

20.03.2013 in Form 26, i.e., the election affidavit. The

second case was with respect to non-disclosure in Form 26

of conviction. It was alleged that the cases referred to in the

election petition, i.e., Labour Enforcement Officer v. Patil

Construction represented by (1) Mr. B.B. Patil (partner) and

(2) Mr. M.B. Patil (partner) (Case No. 20/12), this case

pertained to non-payment of minimum wages to workers

under the Payment of Wages Act, 1936 and Payment of

Wages (Mines) Rules, 1956. The appellant was convicted on

30.07.2013; the second case pertained to State through

Labour Enforcement Officer v. Patil Construction represented

by B.B. Patil and M.B. Patil before Sub Divisional Judicial

Magistrate registered under Section 22A of the Minimum

Wages Act, 1948 for non-maintenance of records of

workers/employers.

The

appellant

was

convicted

05.09.2017.

It was argued by Mr. Sundaram that the reference to

the pending case before the CJM Garhwa District, in the

documents filed along with the election petition, was an

abuse of process and a clear case of interpolation. Learned

counsel pointed out that this aspect has been acknowledged

by the main judgment in para 27, whereby after considering

the certified copy relating to that case, the court observed

that there appeared to be some interpolation. Learned

counsel reiterated the submissions and referred to certified

copies which were placed on record. He also referred to the

original of the complaint which was summoned by this court

during the present proceedings. It was further stated that

the conclusion of the High Court with respect to the non-

disclosure of two cases in respect of the Payment of Wages

Act and Minimum Wages requiring them to be gone into

during the trial is in error. Learned counsel contended that

even upon conviction, the minimum threshold indicated in

Section 33A of the Act is not satisfied because, in either

way, the maximum sanction is a penalty.

Dr.A.M. Singhvi, learned senior counsel for the

election petitioner, urged that the impugned order correctly

appreciated the law relating to Order VII Rule 11 and

dismissed the appellant's application. Counsel reiterated

that the suppression of the truth with respect to criminal

cases, i.e., non-disclosure of cases where the petitioner was

convicted and of pending cases, in Form-26 affidavit were in

relation to the following:

a) Pending cases: The appellant did not disclose the

criminal

case

pending

before

the

Chief

Judicial

Magistrate Garhwa relating to Forest Department cases.

b) Regarding cases in which the appellant was convicted

(in section 6 of Form-26), there was a deliberate

attempt to suppress the truth; the appellant had written

“not applicable” when there were two cases in which he

was convicted: firstly case No. 20/2012 Labour Case

relating to Payment of Wages and Minimum Wages Act,

and secondly, Case No 1/2013, another case relating to

Payment of Wages and Minimum Wages Act.

10.

It was submitted that going into the merits of whether

those cases actually existed, and related to the provisions of

the Act, would amount to a mini-trial which is plainly

impermissible while considering an application seeking

rejection of the petition. It was submitted that the law on

the subject is well settled. Counsel stated that the

judgments of this court, such as Saleem Bhai v. State of

Maharashtra and Mayar (H.K.) Limited v. Owners and

Parties, Vessel M.V. Fortune Express had, in no uncertain

terms, ruled that while considering an application under

Order VII Rule 11, CPC, only the averments in the pleadings

(i.e., in the suit or petition) and the accompanying

documents can be looked into. Therefore, reference to and

reliance on any document which was not part of the petition,

but produced as a part of the respondent/defendant's plea,

cannot be considered.

26.

It is a salutary position in law that there cannot be a

partial rejection of the plaint (or petition, as in this case) in

exercise of power under Order VII Rule 11, CPC. This court

had stated this principle, in Sejal Glass Ltd. v. Navilan

Merchants Pvt. Ltd. in the following manner:

“This cannot elevate itself into a Rule of law, that once a

part of a plaint cannot proceed, the other part also

cannot proceed, and the plaint as a whole must be

rejected Under Order VII Rule 11. In all such cases, if

the plaint survives against certain Defendants and/or

properties, Order VII Rule 11 will have no application at

all, and the suit as a whole must then proceed to trial.”

27. This principle was stated clearly, in D.

Ramachandran v. R.V. Jankiraman which, in relation to an

election petition, explained the position as follows:

“The election petition as such does disclose a cause of

action which if unrebutted could void the election and

the provisions of Order 7 Rule 11(a) CPC cannot

therefore be invoked in this case. There is no merit in

the contention that some of the allegations are bereft of

material facts and as such do not disclose a cause of

action. It is elementary that under Order 7 Rule

11(a) CPC, the Court cannot dissect the pleading into

several parts and consider whether each one of them

discloses a cause of action. Under the Rule, there

cannot be a partial rejection of the plaint or petition.”

28. There is some authority for the proposition that the

court's power under Order XII Rule 6, CPC, is not only

discretionary but requires exercise of caution and that

unless an admission is unambiguous, enabling the court to

draw a decree, the power would not be exercised. Thus,

in Himani Alloys Ltd. v. Tata Steel Ltd., this court held that:

“It is true that a judgment can be given on an

“admission” contained in the minutes of a meeting. But

the admission should be categorical. It should be a

conscious and deliberate act of the party making it,

showing an intention to be bound by it. Order 12 Rule 6

being an enabling provision, it is neither mandatory nor

peremptory

but

discretionary.

The

court,

examination of the facts and circumstances, has to

exercise its judicial discretion, keeping in mind that a

judgment on admission is a judgment without trial

which permanently denies any remedy to the

Defendant, by way of an appeal on merits. Therefore

unless the admission is clear, unambiguous and

unconditional, the discretion of the Court should not be

exercised to deny the valuable right of a Defendant to

contest the claim. In short the discretion should be used

only when there is a clear ‘admission’ which can be

acted upon. (See also Uttam Singh Duggal and Co.

Ltd. v. United Bank of India 2000 Supp (2) SCR

187; Karam Kapahi v. Lal Chand Public Charitable

Trust (2010) 4 SCR 422 and Jeevan Diesels and

Electricals Ltd. v. Jasbir Singh Chadha (2010) 6 SCC

601”

29. A plain look at the election petition reveals that apart

from allegations pertaining to non-disclosure of criminal

cases pending against the appellant, or cases where he was

convicted, other averments and allegations have been made

regarding

non-compliance

with

stipulations

regarding

information dissemination and the manner of dissemination

through publication in newspapers, the font size, the

concerned newspapers’ reach amongst the populace, etc.

The alleged non-compliance with statutory and Election

Commission mandated regulations, and their legal effect,

cannot be examined in what are essentially summary

proceedings under Order VII Rule 11, CPC, or even under

Order XII Rule 6, CPC. Even if the allegations regarding non-

disclosure of cases where the appellant has been arrayed as

an accused, are ultimately true, the effect of such

allegations (in the context of provisions of law and the non-

disclosure of all other particulars mandated by the Election

Symbols orders) has to be considered after a full trial. The

admission of certain facts (and not all) by the election

petitioner cannot be sufficient for the court to reject the

petition, wholly. Even in respect of the undeniable nature of

the judicial record, the effect of its content, is wholly

inadequate to draw a decree in part. This court has also

ruled that the truth or otherwise of anything is ordinarily a

matter of evidence, in a full-blown trial, in Virender Nath

Gautam v. Satpal Singh:

“52. The High Court, in our considered opinion, stepped

into prohibited area of considering correctness of allegations

and evidence in support of averments by entering into the

merits of the case which would be permissible only at the

stage of trial of the election petition and not at the stage of

consideration whether the election petition was maintainable

and dismissed the petition. The said action, therefore,

cannot be upheld and the order deserves to be set aside.”

35.

And on following paragraphs in case of A. Manju v.

Prajwal Revanna, reported in (2022) 3 SCC 269:

“Facts:

1. The moot point for consideration in the present appeal is

whether an election petition can be thrown out at the

threshold on a plea of the respondent/elected candidate that

the petition is not supported by an affidavit in Form 25, as

prescribed under Rule 94-A of the Conduct of Election Rules,

1961, even though the petition is based on allegations of

corrupt practices.

Conclusion:

22. We must begin at the inception by stating that

intrinsically, election law is technical in nature. In the

present matter, an election conducted under an independent

body like the Election Commission is sought to be assailed,

where the mandate of the public has gone in a particular

way. The allegations must strictly fall within the parameters

of the manner in which such a mandate can be overturned.

The primary plea taken by the appellant is largely that

success in the elections was obtained by concealment of

material, which would have been germane in determining

the opinion of the electorate. In effect, were such material

to be available with the electorate, they would have

exercised another option on the basis of it. However, while

the requirements to be met in the election petition may be

technical in nature, they are not hypertechnical, as observed

in Ponnala Lakshmaiah case [Ponnala Lakshmaiah v.

Kommuri Pratap Reddy, (2012) 7 SCC 788]. We have

considered the aforesaid aspect by quoting the observations

made therein which have received the imprimatur of a

larger Bench.

23. In the conspectus of the aforesaid, if we examine the

facts of the present case, the hypertechnical view sought to

be taken of non-signing and verification of the index and the

synopsis has been rightly rejected by the High Court.

24. Thus, the real and core question before us is that in

view of the allegations of the alleged non-disclosure of

assets in Form 26 by Respondent 1 being cited as “corrupt

practice”, would it be mandatory for the election petitioner

to file an affidavit in Form 25 and what would be the

consequences of not filing such an affidavit.

25. We may take note of the Constitution Bench judgment

of this Court in Murarka Radhey Shyam Ram Kumar v. Roop

Singh Rathore [Murarka Radhey Shyam Ram Kumar v. Roop

Singh Rathore, (1964) 3 SCR 573: AIR 1964 SC 1545]

which opined that the defect in verification of an affidavit

cannot be a sufficient ground for dismissal of the petitioner's

petition summarily and such an affidavit can be permitted to

be filed later. This Constitution Bench judgment was also

referred to in G.M. Siddeshwar case [G.M.

Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776: (2013)

2 SCC (Civ) 715] to come to a conclusion that non-

compliance with the proviso to Section 83(1) of the RP Act

was not fatal to the maintainability of an election petition

and the defect could be remedied i.e. even in the absence of

compliance, the petition would still be called an election

petition. We cannot say that the High Court fell into an error

while considering the election petition as a whole to come to

the conclusion that the allegations of the appellant were not

confined only to Section 33-A of the RP Act, but were larger

in ambit as undue influence and improper acceptance of

nomination of Respondent 1 were also pleaded as violation

of the mandate under Sections 123 and 100 of the RP Act.

26. However, we are not persuaded to agree with the

conclusion arrived at by the High Court that the non-

submission of Form 25 would lead to the dismissal of the

election petition. We say so because, in our view, the

observations made in Ponnala Lakshmaiah case [Ponnala

Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788]

which have received the imprimatur of the three-Judge

Bench

in G.M.

Siddeshwar

case [G.M.

Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776: (2013)

2 SCC (Civ) 715] appear not to have been appreciated in

the correct perspective. In fact, G.M. Siddeshwar case [G.M.

Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776: (2013)

2 SCC (Civ) 715] has been cited by the learned Judge to

dismiss the petition. If we look at the election petition, the

prayer clause is followed by a verification. There is also a

verifying affidavit in support of the election petition. Thus,

factually it would not be appropriate to say that there is no

affidavit in support of the petition, albeit not in Form 25.

This was a curable defect and the learned Judge trying the

election petition ought to have granted an opportunity to

the appellant to file an affidavit in support of the petition in

Form 25 in addition to the already existing affidavit filed

with the election petition. In fact, a consideration of both

the judgments of the Supreme Court referred to by the

learned Judge i.e. Ponnala Lakshmaiah [Ponnala Lakshmaiah

v. Kommuri Pratap Reddy, (2012) 7 SCC 788] as well

as G.M. Siddeshwar [G.M. Siddeshwar v. Prasanna Kumar,

(2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715], ought to have

resulted in a conclusion that the correct ratio in view of

these facts was to permit the appellant to cure this defect

by filing an affidavit in the prescribed form.

27. The arguments of the learned counsel for Respondent

were predicated on the distinction between the absence of

an affidavit and a defective affidavit. This presupposes that

for an opportunity of cure to be granted, there must be the

submission of a Form 25 affidavit which may be defective.

This would be very narrow reading of the provisions. Once

there is an affidavit, albeit not in Form 25, the appropriate

course would be to permit an affidavit to be filed in Form

25. We have to appreciate that the petition is at a threshold

stage. It is not as if the appellant has failed to cure the

defect even on being pointed out so. This is not a case

where the filing of an affidavit now in Form 25 would grant

an opportunity for embellishment as is sought to be urged

on behalf of Respondent 1.

28. The appellant states the case clearly and in no uncertain

terms with supporting material in the election petition.

Whether the violation is made out by Respondent 1 or not

would be a matter of trial but certainly not a matter to be

shut out at the threshold.

29. The result of the aforesaid is that the impugned order of

the learned Single Judge dated 17-1-2020 [A.

Manju v. Prajwal Revanna, 2020 SCC OnLine Kar 1654] is

set aside and the application filed by Respondent 1 under

Order 7 Rule 11, Section 151 of the said Code and Section

86(1) of the RP Act would stand dismissed with liberty to

the appellant to file an appropriate affidavit in Form 25

within fifteen (15) days from today. The further proceedings

in the election petition are required to be taken up urgently

almost

two-and-a-half

years

have

gone

the

preliminary skirmishes rather than the meat of the matter,

which we are sure the learned Single Judge of the High

Court would so do.”

36.

Attention was drawn to following paragraphs in

Madiraju

Venkata

Ramana

Raju

Peddireddigari

Ramachandra Reddy, reported in (2018) 14 SCC 1:

“1. The present appeals emanate from the judgment and

order dated 2-8-2016 [Peddireddigari Ramachandra Reddy

v. Madiraju Venkata Ramana Raju, 2016 SCC OnLine Hyd

218: (2016) 6 ALD 299] of the High Court of Judicature at

Hyderabad for Telangana and Andhra Pradesh, striking off

paras 2 and 9 to 11 of the election petition as also

dismissing the election petition, being Election Petition No.

8 of 2014 filed by the appellant challenging the election of

Respondent.

23. The central issue in these appeals is : whether the

contents of the subject election petition disclose cause of

action warranting a trial? The High Court by a composite

judgment allowed the two applications filed by Respondent

1 (returned candidate) praying for striking out Paras 2 and

9 to 11 of the election petition, being frivolous and

vexatious and not containing any material facts and not

disclosing any cause of action; and the second application

for rejecting the election petition in limine for non-

disclosure of cause of action.

24. Ordinarily, an application for rejection of election

petition in limine, purportedly under Order 7 Rule 11 for

non-disclosure of cause of action, ought to proceed at the

threshold. For, it has to be considered only on the basis of

institutional defects in the election petition in reference to

the grounds specified in clauses (a) to (f) of Rule 11.

Indeed, non-disclosure of cause of action is covered by

clause (a) therein. Concededly, Order 7 CPC generally

deals with the institution of a plaint. It delineates the

requirements regarding the particulars to be contained in

the plaint, relief to be specifically stated, for relief to be

founded on separate grounds, procedure on admitting

plaint, and includes return of plaint. The rejection of plaint

follows the procedure on admitting plaint or even before

admitting the same, if the court on presentation of the

plaint is of the view that the same does not fulfill the

statutory and institutional requirements referred to in

clauses (a) to (f) of Rule 11. The power bestowed in the

court in terms of Rule 11 may also be exercised by the

court on a formal application moved by the defendant after

being served with the summons to appear before the

Court. Be that as it may, the application under Order 7

Rule 11 deserves consideration at the threshold.

25. On the other hand, the application for striking out

pleadings in terms of Order 6 Rule 16 may be resorted to

by the defendant(s)/respondent(s) at any stage of the

proceedings, as is predicated in the said provision. The

pleading(s) can be struck off by the Court on grounds

specified in clauses (a) to (c) of Rule 16.

26. Indeed,

the

defendant

moves

two

separate

applications at the same time, as in this case, it would be

open to the court in a given case to consider both the

applications together or independent of each other. If the

court decides to hear the application under Order 7 Rule 11

in the first instance, the court would be obliged to consider

the plaint as filed as a whole. But if the court decides to

proceed with the application under Order 6 Rule 16 for

striking out the pleadings before consideration of the

application under Order 7 Rule 11 for rejection of the

plaint, on allowing the former application after striking out

the relevant pleadings then the court must consider the

remainder pleadings of the plaint in reference to the

postulates of Order 7 Rule 11, for determining whether the

plaint (after striking out pleadings) deserves to be rejected

in limine.

39. On reading the election petition as a whole, we have no

hesitation in taking a view that the High Court misdirected

itself in concluding that the election petition did not disclose

any cause of action with or without Paras 2 and 9 to 11 of

the election petition. Indeed, the pleadings of the election

petition should be precise and clear containing all the

necessary details and particulars as required by law.

“Material facts” would mean all the basic facts constituting

the ingredients of the grounds stated in the election petition

in the context of relief to declare the election to be void. It

is well established that in an election petition, whether a

particular fact is material or not and as such required to be

pleaded, is a question which depends on the nature of the

grounds relied upon and the special circumstances of the

case. Particulars, on the other hand, are the details of the

case set up by the party. The distinction between “material

facts” and “full particulars” has been delineated in Mohan

Rawale v. Damodar Tatyaba [Mohan Rawale v. Damodar

Tatyaba, (1994) 2 SCC 392. This judgment has been

adverted to in the reported decision relied on by the parties.

The Court noted thus: (SCC pp. 397-99, paras 10-18)

“10. We may take up the last facet first. As Chitty, J.

observed, “There is some difficulty in affixing a precise

meaning to” the expression “discloses no reasonable cause

of action or defence”. He said: “In point of law … every

cause of action is a reasonable one.” (See Republic of

Peru v. Peruvian Guano Co. [Republic of Peru v. Peruvian

Guano Co., (1887) LR 36 Ch D 489]) A reasonable cause of

action is said to mean a cause of action with some chances

of success when only the allegations in the pleading are

considered. But so long as the claim discloses some cause of

action or raises some questions fit to be decided by a Judge,

the mere fact that the case is weak and not likely to succeed

is no ground for striking it out. The implications of the

liability of the pleadings to be struck out on the ground that

it discloses no reasonable cause of action are quite often

more known than clearly understood. It does introduce

another special demurrer in a new shape. The failure of the

pleadings to disclose a reasonable cause of action is distinct

from the absence of full particulars. The distinctions among

the ideas of the “grounds” in Section 81(1); of “material

facts” in Section 83(1)(a) and of “full particulars” in Section

83(1)(b) are obvious. The provisions of Section 83(1)(a)

and (b) are in the familiar pattern of Order 6 Rules 2 and 4

and Order 7 Rule 1(e) of the Code of Civil Procedure. There

is a distinction amongst the “grounds” in Section 81(1); the

“material facts” in Section 83(1)(a) and “full particulars” in

Section 83(1)(b).

11. Referring to the importance of pleadings a learned

author says:

‘Pleadings do not only define the issues between the parties

for the final decision of the court at the trial, they manifest

and exert their importance throughout the whole process of

the litigation. … They show on their face whether a

reasonable cause of action or defence is disclosed. They

provide a guide for the proper mode of trial and particularly

for the trial of preliminary issues of law or fact. They

demonstrate upon which party the burden of proof lies, and

who has the right to open the case. They act as a measure

for comparing the evidence of a party with the case which

he has pleaded. They determine the range of the admissible

evidence which the parties should be prepared to adduce at

the trial. They delimit the relief which the court can award.

…’

[See : Jacob:“The Present Importance of Pleadings” (1960)

Current Legal Problems, at pp. 175-76.]

12. Further, the distinction between “material facts” and

“full particulars” is one of degree. The lines of distinction are

not sharp. “Material facts” are those which a party relies

upon and which, if he does not prove, he fails at the time.

13. In Bruce v. Odhams Press Ltd. [Bruce v. Odhams Press

Ltd., (1936) 1 KB 697 : (1936) 1 All ER 287 (CA)] Scott L.J.

said:“The word ‘material’ means necessary for the purpose

of formulating a complete cause of action; and if any one

‘material’ statement is omitted, the statement of claim is

bad.” The purpose of “material particulars” is in the context

of the need to give the opponent sufficient details of the

charge set up against him and to give him a reasonable

opportunity.

14. Halsbury refers to the function of particulars thus:

‘The function of particulars is to carry into operation the

overriding principle that the litigation between the

parties, and particularly the trial, should be conducted

fairly, openly and without surprises, and incidentally to

reduce costs. This function has been variously stated,

namely either to limit the generality of the allegations in

the pleadings, or to define the issues which have to be

tried and for which discovery is required.’

(See : Pleadings Vol. 36, para 38)

15. In Bullen and Leake and Jacob's “Precedents of

Pleadings” 1975 Edn. at p. 112 it is stated:

‘The function of particulars is to carry into operation the

overriding principle that the litigation between the

parties, and particularly the trial, should be conducted

fairly, openly and without surprises and incidentally to

save costs. The object of particulars is to “open up” the

case of the opposite party and to compel him to reveal

as much as possible what is going to be proved at the

trial, whereas, as Cotton L.J. has said

[Spedding v. Fitzpatrick, (1888) LR 38 Ch D 410 (CA)] ,

‘the old system of pleading at common law was to

conceal as much as possible what was going to be

proved at the trial’.’

16.

The

distinction

between

“material

facts”

and

“particulars” which together constitute the facts to be

proved — or the facta probanda — on the one hand and the

evidence by which those facts are to be proved — facta

probantia — on the other must be kept clearly distinguished.

In Philipps v. Philipps [Philipps v. Philipps, (1878) LR 4 QBD

127 at p. 133 (CA)] , Brett, L.J. said:

‘I will not say that it is easy to express in words what

are the facts which must be stated and what matters

need not be stated. … The distinction is taken in the

very rule itself, between the facts on which the party

relies and the evidence to prove those facts. Erle, C.J.

expressed it in this way. He said that there were facts

that might be called the allegata probanda, the facts

which ought to be proved, and they were different from

the evidence which was adduced to prove those facts.

And it was upon the expression of opinion of Erle, C.J.

that Rule 4 [now Rule 7(1)] was drawn. The facts which

ought to be stated are the material facts on which the

party pleading relies.’

17. Lord Denman, C.J. in Williams v. Wilcox [Williams v.

Wilcox, (1838) 8 Ad & El 314 : 112 ER 857] said:

‘It is an elementary rule in pleading that, when a state

of facts is relied it is enough to allege it simply, without

setting out the subordinate facts which are the means

of proving it, or the evidence sustaining the allegations.’

18. An election petition can be rejected under Order 7 Rule

11(a) CPC if it does not disclose a cause of action. Pleadings

could also be struck out under Order 6 Rule 16, inter alia, if

they are scandalous, frivolous or vexatious. The latter two

expressions meant cases where the pleadings are obviously

frivolous and vexatious or obviously unsustainable.”

(emphasis supplied)

40. In Harkirat Singh [Harkirat Singh v. Amrinder Singh,

(2005) 13 SCC 511], this Court once again reiterated thus:

(SCC p. 526-28, paras 46-48)

“46. From the above provisions, it is clear that an

election petition must contain a concise statement of

“material facts” on which the petitioner relies. It should

also contain “full particulars” of any corrupt practice

that the petitioner alleges including a full statement of

names of the parties alleged to have committed such

corrupt practice and the date and place of commission

of such practice. Such election petition shall be signed

by the petitioner and verified in the manner laid down in

the Code of Civil Procedure, 1908 (hereinafter referred

to as “the Code”) for the verification of pleadings. It

should be accompanied by an affidavit in the prescribed

form in support of allegation of such practice and

particulars thereof.

47. All material facts, therefore, in accordance with the

provisions of the Act, have to be set out in the election

petition. If the material facts are not stated in a

petition, it is liable to be dismissed on that ground as

the case would be covered by clause (a) of sub-section

(1) of Section 83 of the Act read with clause (a) of Rule

11 of Order 7 of the Code.

48. The expression “material facts” has neither been

defined in the Act nor in the Code. According to the

dictionary meaning, “material” means “fundamental”,

“vital”,

“basic”,

“cardinal”,

“central”,

“crucial”,

“decisive”,

“essential”,

“pivotal”,

“indispensable”,

“elementary” or “primary”. Burton's Legal Thesaurus

(3rd Edn.), p. 349.] The phrase “material facts”,

therefore, may be said to be those facts upon which a

party relies for its claim or defence. In other words,

“material facts” are facts upon which the plaintiff's

cause of action or the defendant's defence depends.

What particulars could be said to be “material facts”

would depend upon the facts of each case and no rule

of universal application can be laid down. It is, however,

absolutely essential that all basic and primary facts

which must be proved at the trial by the party to

establish the existence of a cause of action or defence

are material facts and must be stated in the pleading by

the party.”

(emphasis supplied)

Again in paras 51 and 52, this Court observed thus : (SCC

pp. 527-28)

“51.

distinction

between

“material

facts”

and

“particulars”,

however,

must

not

overlooked.

“Material facts” are primary or basic facts which must

be pleaded by the plaintiff or by the defendant in

support of the case set up by him either to prove his

cause of action or defence. “Particulars”, on the other

hand, are details in support of material facts pleaded by

the party. They amplify, refine and embellish material

facts by giving distinctive touch to the basic contours of

a picture already drawn so as to make it full, more clear

and more informative. “Particulars” thus ensure conduct

of fair trial and would not take the opposite party by

surprise.

52. All “material facts” must be pleaded by the party in

support of the case set up by him. Since the object and

purpose is to enable the opposite party to know the

case he has to meet with, in the absence of pleading, a

party cannot be allowed to lead evidence. Failure to

state even a single material fact, hence, will entail

dismissal of the suit or petition. Particulars, on the other

hand, are the details of the case which is in the nature

of evidence a party would be leading at the time of

trial.”

(emphasis

supplied)

And again in para 72, the Court noted thus : (SCC p. 535)

“72. The Court, however, drew the distinction between

“material facts” and “particulars”. According to the

Court, “material facts” are facts, if established would

give the petitioner the relief prayed for. The test is

whether the Court could have given a direct verdict in

favour of the election petitioner in case the returned

candidate had not appeared to oppose the election

petition on the basis of the facts pleaded in the

petition.”

(emphasis supplied)

41. In Ashraf Kokkur [Ashraf Kokkur v. K.V. Abdul Khader,

(2015) 1 SCC 129] , this Court adverted to the exposition

in M. Kamalam v. V.A. Syed Mohammed [M.

Kamalam v. V.A. Syed Mohammed, (1978) 2 SCC 659]

, G.M.

Siddeshwar v. Prasanna

Kumar [G.M.

Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013)

2 SCC (Civ) 715] and in Para 21 noted that the pleadings

must be taken as a whole to ascertain whether the same

constitute the material facts involving triable issues. In para

22, the Court observed as follows : (SCC p. 139)

“22. After all, the inquiry under Order 7 Rule 11(a) CPC is

only as to whether the facts as pleaded disclose a cause of

action and not complete cause of action. The limited inquiry

is only to see whether the petition should be thrown out at

the threshold. In an election petition, the requirement under

Section 83 of the RP Act is to provide a precise and concise

statement of material facts. The expression “material facts”

plainly means facts pertaining to the subject-matter and

which are relied on by the election petitioner. If the party

does not prove those facts, he fails at the trial.”

(emphasis supplied)

42. The Court then went on to analyse the decision of a

three-Judge Bench in V.S. Achuthanandan v. P.J. Francis

[V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737],

wherein it has been observed that (SCC p. 748, para 16) an

election petition was not liable to be dismissed in limine

merely because full particulars of corrupt practice alleged

were not set out. Further, material facts are such primary

facts which must be proved at the trial by a party to

establish existence of a cause of action. It has also observed

that so long as the claim discloses some cause of action or

raises some questions fit to be decided by a Judge, the

mere fact that the case is weak and not likely to succeed is

no ground for striking it out. Further, the implications of the

liability of the pleadings to be struck out on the ground that

it discloses no reasonable cause of action are generally more

known than clearly understood and that the failure of the

pleadings to disclose a reasonable cause of action is distinct

from the absence of full particulars. This decision also

adverts to Ponnala Lakshmaiah v. Kommuri Pratap Reddy

[Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7

SCC 788], wherein the Court observed that (at SCC p. 798,

para 17) the courts need to be cautious in dealing with

request for dismissal of the petition at the threshold and

exercise their power of dismissal only in cases where on a

plain reading of the petition no cause of action is disclosed.

43. The counsel for the contesting respondent has relied on

the decisions in Pendyala Venakata Krishna Rao v. Pothula

Rama Rao [Pendyala Venakata Krishna Rao v. Pothula Rama

Rao, 2005 SCC OnLine AP 99: (2005) 3 ALD 47], particularly

paras 8 to 10, 11 and 16 of the reported decision. In that

case, on facts, the Court found that necessary material facts

in relation to the ground of improper acceptance of

nomination form were not pleaded by the election petitioner.

In the present case, we have held that there is discernible

pleading as to what objections were taken before the

Returning Officer and as to why he was in error in not

rejecting the nomination of Respondent 1.

44. The counsel for the contesting respondent also relied on

the decision in Samant N. Balkrishna v. George

Fernandez [Samant N. Balkrishna v. George Fernandez,

(1969) 3 SCC 238]. No doubt this decision predicates that

election petition is a statutory proceeding and not an action

at law or suit in equity. There can be no debate with regard

to this proposition. At the same time, we cannot be oblivious

about the scope of the enquiry permissible at this stage by

the election court/tribunal while considering the application

under Order 7 Rule 11(a) CPC.

45. In Kuldeep Singh Pathania [Kuldeep Singh

Pathania v. Bikram Singh Jaryal, (2017) 5 SCC 345 : (2017)

SCC (Civ) 147] , the decision [Kuldeep Singh

Pathania v. Bikram Singh Jaryal, 2014 SCC OnLine HP 5911]

of the High Court which is similar to the one under

consideration

(namely,

the

impugned

judgment)

had

accepted the explanation offered by the respondents and

meticulously dealt with it to conclude that the petition did

not disclose any cause of action since it lacked material

facts. The High Court passed that order purportedly in

exercise of power under Order 14 Rule 2. This Court pointed

out the distinction between an order under Order 7 Rule 11

to reject the election petition in limine for non-disclosure of

cause of action and an order under Order 14 Rule 2 for

disposal of the petition on a preliminary issue. In that case,

the order passed by the High Court was relatable only to

Order 7 Rule 11. This Court adverted to the decisions

in Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [Mayar

(H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC

100] and Virender Nath Gautam v. Satpal Singh [Virender

Nath Gautam v. Satpal Singh, (2007) 3 SCC 617] , and

explicated that under Order 7 Rule 11(a), only the pleadings

of the plaintiff-petitioner can be looked at as a threshold

issue. Whereas, entire pleadings of both sides can be looked

into for considering the preliminary issue under Order 14

Rule 2. Neither the written statement nor the averments or

case pleaded by the opposite party can be taken into

account for answering the threshold issue for rejection of

election petition in terms of Order 7 Rule 11(a) of the Act.

62. As regards the application for early hearing of the

election petition filed by the appellant before the High Court,

the same be treated as disposed of in terms of this order.

The imperativeness of expeditious disposal of the election

petition is underscored in Section 86(7) of the 1951 Act. As

per the said provision, the trial of the election petition is

required to be disposed of preferably within six months from

the date of its presentation before the High Court. Besides,

this Court in Mohd. Akbar [Mohd. Akbar v. Ashok Sahu,

(2015) 14 SCC 519] has highlighted the necessity of

discharging the pious hope expressed by Parliament.

Therefore, we may only request the High Court to

expeditiously dispose of the election petition preferably

within three months from the production of a copy of this

judgment by either party before it.”

37.

Reference was also made to following observations

in Ajay Arjun Singh v. Sharadendu Tiwari, reported in

(2016) 15 SCC 219:

“30. Before parting with this case, we would like to place

on record that the procedure adopted by the appellant in

initially filing a petition under Order 7 Rule 11 petition

[Filed on 1-7-2014], praying that the election petition be

dismissed and filing the instant application after a long

gap [IA No. 12911 of 2014 in Election Petition No. 1 of

2014 was filed on 11-9-2014] is to be deprecated.

Preliminary objections, if any (in cases where there is

more than one), in an election petition are to be taken at

the earliest point of time and in one go. The practice such

as the one adopted by the appellant only tends to delay

the adjudication of the election petition which are

mandated [Section 86(7), Representation of the People

Act, 1951] by Parliament to be decided within a period of

six months. We declare that the later of such successive

petitions must be dismissed by the High Courts in limine

on that count alone.”

38.

Reliance was placed on decision of Hon’ble Supreme

Court in case of Ashraf Kokkur v. K.V. Abdul Khader,

reported in (2015) 1 SCC 129:

“1. The simple question arising for consideration in this

case is whether the averments in the election petition

disclose a cause of action as required under Order 7 Rule

11(a) of the Code of Civil Procedure, 1908 (hereinafter

referred to as “CPC”). Incidentally, it may be noted that

the election petition has been dismissed by the impugned

judgment dated 16-11-2011 [Asharaf Kokkur v. K.V.

Abdul Khader, Election Petition No. 2 of 2011, decided on

16-11-2011 (Ker)], which reads as follows:

Judgment

IA No. 4 of 2011 is allowed. Election petition is dismissed

in limine as it does not disclose a complete cause of action

or a triable issue.”

Of course, detailed reasons are given in the order dated

16-11-2011 [Asharaf Kokkur v. K.V. Abdul Khader,

Election Petition No. 2 of 2011, decided on 16-11-2011

(Ker)] in IA No. 4 of 2011, which is also under challenge

in one of the appeals.

22. After all, the inquiry under Order 7 Rule 11(a) CPC is

only as to whether the facts as pleaded disclose a cause of

action and not complete cause of action. The limited

inquiry is only to see whether the petition should be

thrown out at the threshold. In an election petition, the

requirement under Section 83 of the RP Act is to provide a

precise and concise statement of material facts. The

expression “material facts” plainly means facts pertaining

to the subject-matter and which are relied on by the

election petitioner. If the party does not prove those facts,

he fails at the trial [see Philipps v. Philipps [(1878) LR 4

QBD 127 (CA)] (QBD p. 133); Mohan Rawale v. Damodar

Tatyaba [(1994) 2 SCC 392] (SCC p.399, para16)].

23. This Court in Azhar Hussain v. Rajiv Gandhi [1986

Supp SCC 315], at para 11, has held that: (SCC p. 324)

“11. … Whether in an election petition a particular fact is

material or not and as such required to be pleaded is

dependent on the nature of the charge leveled and the

circumstances of the case.”

The charge leveled in the present case is that the

respondent holds an office of profit as the Chairperson of

the Kerala State Wakf Board and in that capacity he

enjoys the profits attached to that office from the

Government of Kerala.

24. In V.S. Achuthanandan v. P.J. Francis [(1999) 3 SCC

737], a three-Judge Bench of this Court has taken the

view that only because full particulars are not given, an

election petitioner is not to be thrown out at the

threshold. To quote para 15: (SCC p. 747)

“15. … An election petition was not liable to be dismissed

in limine merely because full particulars of corrupt

practice alleged were not set out. It is, therefore, evident

that material facts are such primary facts which must be

proved at the trial by a party to establish existence of a

cause of action. Whether in an election petition a

particular fact is a material fact or not, and as such,

required to be pleaded is a question which depends on the

nature of the charge leveled, the ground relied upon, and

in the light of the special circumstances of the case.”

Again at para 16 of V.S. Achuthanandan case [(1999) 3

SCC 737], it was held that: (SCC p. 748)

“16. … So long as the claim discloses some cause of action

or raises some questions fit to be decided by a Judge, the

mere fact that the case is weak and not likely to succeed

is no ground for striking it out. The implications of the

liability of the pleadings to be struck out on the ground

that it discloses no reasonable cause of action are

generally more known than clearly understood. … the

failure of the pleadings to disclose a reasonable cause of

action is distinct from the absence of full particulars.”

(emphasis supplied)

25. In Hari Shanker Jain v. Sonia Gandhi [(2001) 8 SCC

233], a three-Judge Bench of this Court held that the

expression “cause of action” would mean facts to be

proved, if traversed, in order to support his right to the

judgment of the Court and that the function of the party is

to present a full picture of the cause of action with such

further information so as to make opposite party

understand the case he will have to meet. To quote para

23: (SCC p. 251)

“23. … The expression ‘cause of action’ has been

compendiously defined to mean every fact which it would

be necessary for the plaintiff to prove, if traversed, in

order to support his right to the judgment of Court.

Omission of a single material fact leads to an incomplete

cause of action and the statement of claim becomes bad.

The function of the party is to present as full a picture of

the cause of action with such further information in detail

as to make the opposite party understand the case he will

have to meet. (See Samant N. Balkrishna v. George

Fernandez [(1969) 3 SCC 238] and Jitendra Bahadur

Singh v. Kirshna Behari [(1969) 2 SCC 433].) Merely

quoting the words of the section like chanting of a mantra

does not amount to stating material facts. Material facts

would include positive statement of facts as also positive

averment of a negative fact, if necessary. In V.S.

Achuthanandan v. P.J. Francis [(1999) 3 SCC 737] this

Court has held, on a conspectus of a series of decisions of

this Court, that material facts are such preliminary facts

which must be proved at the trial by a party to establish

existence of a cause of action. Failure to plead ‘material

facts’ is fatal to the election petition and no amendment of

the pleadings is permissible to introduce such material

facts after the time-limit prescribed for filing the election

petition.”

26. In Syed Dastagir v. T.R. Gopalakrishna Setty [(1999)

6 SCC 337], while referring to the pleadings, it has been

held at para 9 that: (SCC p. 341)

“9. … In construing a plea in any pleading, courts must

keep in mind that a plea is not an expression of art and

science but an expression through words to place fact and

law of one's case for a relief. Such an expression may be

pointed, precise, sometimes vague but still it could be

gathered what he wants to convey through only by

reading the whole pleading, depending on the person

drafting a plea. … So to insist for a mechanical production

of the exact words of a statute is to insist for the form

rather than the essence. So the absence of form cannot

dissolve an essence if already pleaded.”

27. In Mayar (H.K.) Ltd. v. Vessel M.V. Fortune

Express [(2006) 3 SCC 100], this Court at para 12 held

that: (SCC p. 115)

“12. … The Court has to read the entire plaint as a whole

to find out whether it discloses a cause of action and if it

does, then the plaint cannot be rejected by the court

exercising the powers under Order 7 Rule 11 of the Code.

Essentially, whether the plaint discloses a cause of action,

is a question of fact which has to be gathered on the basis

of the averments made in the plaint in its entirety taking

those averments to be correct. A cause of action is a

bundle of facts which are required to be proved for

obtaining relief and for the said purpose, the material

facts are required to be stated but not the evidence

except in certain cases where the pleadings relied on are

in regard to misrepresentation, fraud, wilful default,

undue influence or of the same nature. So long as the

plaint discloses some cause of action which requires

determination by the court, the mere fact that in the

opinion of the Judge the plaintiff may not succeed cannot

be a ground for rejection of the plaint.”

30. Guided by the settled principles of law referred to

above, we are of the view that the election petition having

disclosed a cause of action, it should not have been

thrown out at the threshold. The impugned order and

judgment [Asharaf Kokkur v. K.V. Abdul Khader, Election

Petition No. 2 of 2011, decided on 16-11-2011 (Ker)] are

hence set aside. The appeals are allowed. The election

petition is remitted to the High Court for trial in

accordance with law. There is no order as to costs.”

39.

And

following

paragraphs

Ponnala

Lakshmaiah v. Kommuri Pratap Reddy, reported in (2012)

7 SCC 788:

“2. The factual matrix in which the election petition came

to be filed by the respondent has been set out at length

by the High Court, hence need not be recounted except to

the extent the same is essential for the disposal of the

appeal. The High Court has, while holding that the

averments made in the election petition raised triable

issues and disclosed a cause of action, observed:

“23. As seen from the statement showing voter turnout

report in connection with General Elections, 2009 to 98,

Jangaon Legislative Assembly Constituency on 16-4-2009,

the total votes polled, as reported by the Returning

Officer, is shown as 1,50,678 from 251 polling stations.

Whereas in the final result sheet in Form 20, total valid

votes is shown as 1,51,411. So, from this document, it is

clear that prima facie a proper counting had not taken

place. Therefore, prima facie it can be said to be an

irregularity on the part of the Returning Officer involved in

dereliction of the duty. Similarly, there is a specific

allegation that out of 653 postal ballots, the election

petitioner would have secured more than 300 votes, if

properly counted, and out of the said votes, 142 votes

which were validly polled in favour of the election

petitioner, were illegally declared as invalid and another

52 votes polled in favour of the election petitioner were

counted in favour of the first respondent, and 45 invalid

votes were illegally counted in favour of the first

respondent. Since the margin between the elected

candidate and the nearest rival is only 236 votes, had

postal ballots been counted properly, then there would

have been a possibility of materially affecting the result of

the election insofar as the returned candidate. So, under

no stretch of imagination, can it be said that the

allegations in the election petition are vague.

24. No doubt, it is true that in view of the decision of the

Apex Court, re-counting of the votes cannot be resorted

to as a matter of course and every endeavour should be

made to protect the secrecy of the ballots. But, at the

same time, there is suspicion of the correctness of the

figures mentioned in the crucial documents of the

statement showing voters' turnout report and Form 20

final result sheet, where there is a variance between total

number of votes polled and votes counted. The two basic

requirements laid down by the Apex Court, to order re-

counting, are: (a) the election petition seeking re-count of

the ballot papers must contain an adequate statement of

the material facts on which the allegations of irregularity

or illegality in counting are founded; and (b) on the basis

of evidence adduced in support of the allegations, the

Tribunal must be prima facie satisfied that in order to

decide the dispute and to do complete and effectual

justice between the parties, making of such an order is

imperatively necessary.

Therefore, the questions whether counting of votes by the

officials is in accordance with the rules and regulations

and also whether the votes polled in favour of the election

petitioner were rejected as invalid or there was improper

counting of votes polled in favour of the returned

candidate, are required to be decided after adducing

evidence only. The allegation that because of the

improper counting of postal ballots polled in favour of the

election petitioner, the election petitioner could not secure

300 votes, if accepted as true at this stage, it would

materially affect the election result because the margin of

votes polled between the returned candidate and his

nearest rival is very narrow. In the election petition, the

allegation with regard to irregularity or illegality in

counting of votes, which affects the election of the

returned candidate materially, has been clearly stated in

the election petition. It is not a vague or general

allegation that some irregularities or illegalities have been

committed in counting. Similarly, there is allegation that

in the first instance, after totalling of all votes, the

election petitioner secured a majority of 44 votes and the

same was informed to the electronic media, and some TV

channels telecasted the same immediately. A compact

disc (CD) is also filed along with the election petition, in

support of the said allegation. It is also alleged that none

of the contested candidates filed any petition for re-

counting of votes within maximum period of five minutes

after the election petitioner was declared to have secured

a majority of 44 votes. Therefore, there is prima facie

material to show that there was irregularity or illegality in

counting of votes which resulted in affecting materially the

election of the returned candidate, so as to proceed

further with the election petition. As, at this stage, prima

facie case for re-counting, as seen from the allegations in

the election petition, is made out, the pleadings cannot be

struck off as unnecessary. Therefore, the question of

rejecting the election petition at this stage does not

arise.”

14. In Harkirat Singh v. Amrinder Singh [(2005) 13 SCC

511] this Court once again stated the distinction between

material facts and particulars and declared that material

facts are primary and basic facts which must be pleaded

by the plaintiff while particulars are details in support of

those facts meant to amplify, refine and embellish the

material facts by giving distinct touch to the basic

contours of a picture already drawn so as to make it more

clear and informative. To the same effect are the

decisions of this Court in Umesh Challiyill v. K.P.

Rajendran [(2008) 11 SCC 740] and Virender Nath

Gautam v. Satpal Singh [(2007) 3 SCC 617].

15. The High Court has, in the present case, held that

the material facts constituting the foundation of the case

set up by the election petitioner have been stated in the

election petition. That being so, the requirement of

Section 83 of the Act viz. that “the petition shall contain a

concise statement of material facts” has been satisfied.

The question of dismissing the petition on that ground

also therefore did not arise. The High Court in our opinion

committed no wrong in coming to that conclusion.

17. While a successful candidate is entitled to defend his

election and seek dismissal of the petition on ground

legally available to him, the prolongation of proceedings

by prevarication is not conducive to the ends of justice

that can be served only by an early and speedy disposal

of the proceedings. The courts have, therefore, to guard

against such attempts made by parties who often succeed

in dragging the proceedings beyond the term for which

they have been elected. The courts need to be cautious in

dealing with requests for dismissal of the petitions at the

threshold and exercise their powers of dismissal only in

cases where even on a plain reading of the petition no

cause of action is disclosed. Beyond that note of caution,

we do not wish to say anything at this stage for it is

neither necessary nor proper for us to do so.”

40.

And from decision in case of Ram Sukh v. Dinesh

Aggarwal, reported in (2009) 10 SCC 541 following

paragraphs were referred to :

“1. This appeal under Section 116-A of the Representation

of the People Act, 1951 (for short “the Act”) is directed

against the judgment and order dated 15-1-2008

rendered by the High Court of Uttaranchal at Nainital in

Election Petition no.3 of 2007 (M/S). By the impugned

order, the High Court, upholding the preliminary objection

raised by the first respondent, has dismissed the election

petition mainly on the ground that it did not comply with

the mandatory requirement of furnishing material facts so

as to disclose the cause of action and was not supported

by an affidavit in the prescribed form.

10. Section 83, the pivotal provision for the present case,

requires that: (a) the election petition must contain a

concise statement of “material facts” on which the

petitioner relies and (b) he should also set forth “full

particulars” of any corrupt practices which the petitioner

alleges. Proviso to clause (c) of sub-section (1) of Section

83 also provides that where the petitioner alleges any

corrupt practice, the election petition shall also be

accompanied by an affidavit in the prescribed form in

support of the allegation of such corrupt practice and the

particulars thereof. It is plain that the requirement of

disclosure of “material facts” and “full particulars” as

stipulated in the section is mandatory.

11. Section 86 mandates that where the election petition

does not comply with the provisions of Section 81 or

Section 82 or Section 117 of the Act, the High Court

should dismiss the election petition. Section 87 which lays

down the procedure required to be followed by the High

Court while trying an election petition, requires that every

election petition shall be tried, as nearly as may be, in

accordance with the procedure applicable under the Code

to the trial of the suits, subject of course to the provisions

of the Act and of any requirement made thereunder.

12. It is evident that the controversy in this appeal lies in

a narrow compass. It revolves around the ambit of

Section 83 of the Act. The point for consideration is

whether the election petition lacked “material facts”

required to be stated in the election petition in terms of

Section 83(1) of the Act and if so, could it be dismissed

summarily without trial? As already noted, it is mandatory

that all “material facts” are set out in an election petition

and it is also trite that if material facts are not stated in

the petition, the same is liable to be dismissed on that

ground alone. Therefore, the question is as to whether the

election petitioner had set out “material facts” in his

petition?

13. The phrase “material facts” has neither been defined

in the Act nor in the Code and, therefore, it has been

understood by the courts in general terms to mean the

entire bundle of facts which would constitute a complete

cause of action. In other words, “material facts” are facts

upon which the plaintiff's cause of action or the

defendant's defence depends. (See Mahadeorao Sukaji

Shivankar v. Ramaratan Bapu [(2004) 7 SCC 181].)

Broadly speaking, all primary or basic facts which are

necessary either to prove the cause of action by the

plaintiff or defence by the defendant are “material facts”.

Material facts are facts which, if established, would give

the petitioner the relief asked for. But again, what could

be said to be material facts would depend upon the facts

of each case and no rule of universal application can be

laid down.

14. The requirement in an election petition as to the

statement of material facts and the consequences of lack

of such disclosure with reference to Sections 81, 83 and

86 of the Act came up for consideration before a three-

Judge Bench of this Court in Samant N. Balkrishna v.

George Fernandez [(1969) 3 SCC 238]. Speaking for the

three-Judge Bench, M. Hidayatullah, C.J., inter alia, laid

down that:

(i) Section 83 of the Act is mandatory and requires

first a concise statement of material facts and then

the fullest possible particulars;

(ii) omission of even a single material fact leads to

an incomplete cause of action and statement of

claim becomes bad;

(iii) the function of particulars is to present in full a

picture of the cause of action and to make the

opposite party understand the case he will have to

meet;

(iv) material facts and particulars are distinct

matters—material facts will mention statements of

fact and particulars will set out the names of

persons with date, time and place; and

(v) in stating the material facts it will not do merely

to quote the words of the section because then the

efficacy of the material facts will be lost.

15. At this juncture, in order to appreciate the real object and

purport of the phrase “material facts”, particularly with reference to

election law, it would be appropriate to notice the distinction

between the phrases “material facts” as appearing in clause (a) and

“particulars” as appearing in clause (b) of sub-section (1) of Section

83. As stated above, “material facts” are primary or basic facts

which have to be pleaded by the petitioner to prove his cause of

action and by the defendant to prove his defence. “Particulars”, on

the other hand, are details in support of the material facts, pleaded

by the parties. They amplify, refine and embellish material facts by

giving distinctive touch to the basic contours of a picture already

drawn so as to make it full, more clear and more informative. Unlike

“material facts” which provide the basic foundation on which the

entire edifice of the election petition is built, “particulars” are to be

stated to ensure that the opposite party is not taken by surprise.

16. The distinction between “material facts” and “particulars” and

their requirement in an election petition was succinctly brought out

by this Court in Virender Nath Gautam v. Satpal Singh [(2007) 3

SCC 617] wherein C.K. Thakker, J., stated thus: (SCC pp. 631-32,

para 50)

“50. There is distinction between facta probanda (the facts required

to be proved i.e. material facts) and facta probantia (the facts by

means of which they are proved i.e. particulars or evidence). It is

settled law that pleadings must contain only facta probanda and

not facta probantia. The material facts on which the party relies for

his claim are called facta probanda and they must be stated in the

pleadings. But the facts or facts by means of which facta

probanda (material facts) are proved and which are in the nature

of facta probantia (particulars or evidence) need not be set out in

the pleadings. They are not facts in issue, but only relevant facts

required to be proved at the trial in order to establish the fact in

issue.”

41. From decision in Virender Nath Gautam v. Satpal

Singh, reported in (2007) 3 SCC 617 following references

were made :

“1. This appeal is filed by the appellant against the judgment and

order dated 20-12-2004 passed by the High Court of Himachal

Pradesh, Shimla in Election Petition No. 2 of 2003. By the said

order, the High Court upheld the preliminary objection raised by

the first respondent that the election petition did not disclose

material facts and was liable to be dismissed.

27. Conduct of elections has been dealt with in Part V. Part VI

relates to “Disputes regarding elections”. Section 80 requires any

election to be questioned only by way of election petition. Under

Section 80-A, it is the High Court

which can try the election petitions. Section 81 provides for

presentation of election petition and prescribes the period of

limitation. Section 82 declares as to who shall be joined as

respondents to such election petition. Section 83 deals with

contents of the petition and reads thus:

“83. Contents of petition.—

(1) An election petition—

(a) shall contain a concise statement of the material facts on

which the petitioner relies;

(b) shall 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; and

(c) shall be signed by the petitioner and verified in the manner

laid down in the Code of Civil Procedure, 1908 (5 of 1908) for

the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice,

the petition shall also be accompanied by an affidavit in the

prescribed form in support of the allegation of such corrupt

practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed

by the petitioner and verified in the same manner as the

petition.”

28. Section 100 enumerates grounds for declaring election to be

void which inter alia includes improper reception, refusal or

ejection of any vote or the reception of any vote which is void or

there is non-compliance with the provisions of the Constitution

or with the Act or rules or orders made under the Act. Section

101 empowers the High Court to declare a candidate other than

the returned candidate to have been elected. Section 123

declares certain practices as “deemed to be corrupt practices”.

29. From the relevant provisions of the Act reproduced

hereinabove, it is clear that an election petition must contain a

concise statement of “material facts” on which the petitioner

relies. It should also contain “full particulars” of any corrupt

practice that the petitioner alleges including a full statement of

names of the parties alleged to have committed such corrupt

practice and the date and place of commission of such practice.

Such election petition shall be signed by the petitioner and

verified in the manner laid down in the Code of Civil Procedure,

1908 (hereinafter referred to as “the Code”) for the verification

of pleadings. It should be accompanied by an affidavit in the

prescribed form in support of allegation of such practice and

particulars thereof.

30. All material facts, therefore, in accordance with the

provisions of the Act, have to be set out in the election petition.

If the material facts are not stated in a petition, it is liable to be

dismissed on that ground as the case would be covered by

clause (a) of sub-section (1) of Section 83 of the Act read with

clause (a) of Rule 11 of Order 7 of the Code.

31. The expression “material facts” has neither been defined in

the Act nor in the Code. According to the dictionary meaning,

“material” means “fundamental”, “vital”, “basic”, “cardinal”,

“central”,

“crucial”,

“decisive”,

“essential”,

“pivotal”,

“indispensable”, “elementary” or “primary”. [Burton's Legal

Thesaurus (3rd Edn.), p. 349]. The phrase “material facts”,

therefore, may be said to be those facts upon which a party

relies for his claim or defence. In other words, “material facts”

are facts upon which the plaintiff's cause of action or the

defendant's defence depends. What particulars could be said to

be “material facts” would depend upon the facts of each case

and no rule of universal application can be laid down. It is,

however, absolutely essential that all basic and primary facts

which must be proved at the trial by the party to establish the

existence of a cause of action or defence are material facts and

must be stated in the pleading by the party.

32. In the leading case of Philipps v. Philipps [(1878) 4 QBD 127

: 48 LJQB 135 : (1874-80) All ER Rep Ext 1684 (CA)] , Cotton,

L.J. stated:

“What particulars are to be stated must depend on the facts of

each case. But in my opinion it is absolutely essential that the

pleading, not to be embarrassing to the defendants, should state

those facts which will put the defendants on their guard and tell

them what they have to meet when the case comes on for trial.”

33. In Bruce v. Odhams Press Ltd. [(1936) 1 KB 697 : (1936) 1

All ER 287 (CA)] , Scott, L.J. referring

to Philipps v. Philipps [(1878) 4 QBD 127 : 48 LJQB 135 : (1874-

80) All ER Rep Ext 1684 (CA)] observed: (All ER p. 294)

“The cardinal provision in Rule 4 is that the statement of claim

must state the material facts. The word ‘material’ means

necessary for the purpose of formulating a complete cause of

action; and if any one ‘material’ statement is omitted, the

statement of claim is bad; it is ‘demurrable’ in the old

phraseology, and in the new is liable to be ‘struck out’ under

RSC Order 25 Rule 4 (see Philipps v. Philipps [(1878) 4 QBD 127

: 48 LJQB 135 : (1874-80) All ER Rep Ext 1684 (CA)] ); or ‘a

further and better statement of claim’ may be ordered under

Rule 7.”

34. A distinction between “material facts” and “particulars”,

however, must not be overlooked. “Material facts” are primary or

basic facts which must be pleaded by the plaintiff or by the

defendant in support of the case set up by him either to prove

his cause of action or defence. “Particulars”, on the other hand,

are details in support of material facts pleaded by the party.

They amplify, refine and embellish material facts by giving

distinctive touch to the basic contours of a picture already drawn

so as to make it full, more clear and more informative.

“Particulars” thus ensure conduct of fair trial and would not take

the opposite party by surprise.

35. All “material facts” must be pleaded by the party in support

of the case set up by him. Since the object and purpose is to

enable the opposite party to know the case he has to meet with,

in the absence of pleading, a party cannot be allowed to lead

evidence. Failure to state even a single material fact, hence, will

entail dismissal of the suit or petition. Particulars, on the other

hand, are the details of the case which is in the nature of

evidence a party would be leading at the time of trial.

50. There is distinction between facta probanda (the facts

required to be proved i.e. material facts) and facta

probantia (the facts by means of which they are proved i.e.

particulars or evidence). It is settled law that pleadings must

contain only facta probanda and not facta probantia. The

material facts on which the party relies for his claim are

called facta probanda and they must be stated in the pleadings.

But the facts or facts by means of which facta

probanda (material facts) are proved and which are in the nature

of facta probantia (particulars or evidence) need not be set out

in the pleadings. They are not facts in issue, but only relevant

facts required to be proved at the trial in order to establish the

fact in issue.

51. In our considered opinion, material facts which are required

to be pleaded in the election petition as required by Section

83(1) of the Act read with Order 7 Rule 11(a) of the Code have

been pleaded by the election petitioner, cause of action has been

disclosed in the election petition and, hence, the petition could

not have been dismissed by the High Court. The impugned order

of the High Court suffers from infirmity and cannot be sustained.

52. The High Court, in our considered opinion, stepped into

prohibited area of considering correctness of allegations and

evidence in support of averments by entering into the merits of

the case which would be permissible only at the stage of trial of

the election petition and not at the stage of consideration

whether the election petition was maintainable and dismissed

the petition. The said action, therefore, cannot be upheld and

the order deserves to be set aside.

53. On an additional ground also, the order of the High Court is

liable to be set aside. All allegations in para 8 of the election

petition, as also sub-paras (i) to (iv) of para 8 relate to improper

and illegal reception and acceptance of votes and the election

petitioner has challenged the election of the returned candidate

on that ground and not on the ground of “corrupt practice”. He

was, therefore, required to state material facts in the election

petition under Section 83(1)(a) of the Act. It was, however, not

necessary to “set forth full particulars”, which is the requirement

of Section 83(1)(b) of “any corrupt practice”.

54. The High Court dismissed the petition inter alia on the

ground that paras 8(i) to (iv) lacked in material particulars.

Apart from the fact that the law does not require material

particulars even in respect of allegations of corrupt practice but

only full particulars and if they are lacking, the petition can be

permitted to be amended or amplified under Section 86 of the

Act, in the instant case, clause (b) of Section 83(1) had no

application and the petition has been dismissed by the High

Court by applying wrong test. On that ground also, the order

passed by the High Court is unsustainable (vide Harkirat

Singh v. Amrinder Singh [(2005) 13 SCC 511]).

55. For the foregoing reasons, the appeal deserves to be

allowed and is, accordingly, allowed with costs. The order passed

by the High Court is set aside. Election Petition No. 2 of 2003 is

restored to file, and is remitted to the High Court to decide the

same on merits. Since the election took place in February 2003

and the petition was dismissed on preliminary ground as not

maintainable and is required to be decided on merits, the High

Court

requested

give

priority

and

dispose

expeditiously.”

42.

From

decision

Apex

Court

V.S.

Achuthanandan Vs. P.J. Francis, reported in (1999) 3 SCC

737, following observations were relied on:

“1. The appellant, a candidate of the CPI (M) contested

and

lost

election

from

Mararikulam

Legislative

Assembly Constituency in the State of Kerala by a margin

of 1965 votes. The successful candidate was Respondent

1 belonging to the Indian National Congress. Not satisfied

with the result of the election, the appellant filed Election

Petition No. 11 of 1996 in the High Court of Kerala mainly

on the grounds of corrupt practices and illegalities in the

counting of ballot-papers. He prayed for declaration that

the election of the 1st respondent was void and that he

was duly elected. Instead of filing any written statement,

Respondent 1 filed preliminary objections which were

made the basis of framing the following issues:

1. Whether the petition has been presented in

compliance

with

the

provisions

the

Representation of the People Act?

2. Whether the absence of an affidavit in support

of the allegations of corrupt practices in the

petition is fatal to the maintainability of the

petition?

3. Whether there is a proper affidavit under Rule

94-A of the Conduct of Election Rules?

4. Whether the allegations make out a cause of

action at all warranting trial of the election

petition?

5. Whether the allegations for re-count are

sufficient to hold a trial on that issue?

Whether the failure to attest as true copy of

the annexure produced along with the election

petition is fatal?

7. Whether the election petition is liable to be

dismissed as not properly framed and filed?

2. Issues 1 and 4 were decided against the appellant

holding that allegations made in paras 11(E), (F), (H), (J),

(K), (M) and (P) lacked material facts and particulars and

being vague and ambiguous required no trial. Issues 2, 3

and 6 were decided in favour of the appellant. Issue 5 was

decided against the appellant holding that he had failed to

establish that there existed a case where the re-counting

could be ordered. Ultimately, the election petition was

rejected under Section 83 of the Representation of the

People Act read with Order 7 Rule 11(a) of the Code of

Civil Procedure with costs assessed at Rs 1500. Feeling

aggrieved by the judgment of the High Court, the

appellant has preferred this appeal under Section 116-A of

the Representation of the People Act, 1951 (hereinafter

referred to as “the Act”).

14. In the instant case, as noted earlier, the election

petition has been rejected by invoking the powers of

Section 83 of the Act read with Order 7 Rule 11(a) of the

Code

Civil

Procedure.

After

referring

some

judgments, the learned trial Judge of the High Court has

concluded:

“Read as a whole, the averments contained in the election

petition do not satisfy the requirements of Section 83 of

the Act. No prima facie case is made out to hold that the

first respondent has committed corrupt practices or that it

is a fit case where re-counting is to be ordered. On a

perusal of the election petition, it is seen that the

petitioner has not pleaded the material facts with

necessary particulars which would enable the Court to

grant the prayer made in the petition. Pleadings in the

election petition do not make out a cause of action for

ordering re-count, as prayed for in the petition. So, the

election petition is liable to be rejected under Section 83

of the Act read with Order 7 Rule 11(a) CPC.”

15. It would thus appear that the election petition was

rejected mainly on the ground that it did not disclose the

cause of action as according to the learned trial Judge the

allegations regarding corrupt practice were vague and did

not disclose “material facts and full particulars” of the

corrupt practice alleged. It is evident that the learned trial

Judge did not distinguish between the “material facts” and

the “material particulars” of allegations regarding corrupt

practices as defined under Section 123 of the Act. The law

on the point is well settled which appears to have not

been taken note of or appreciated by the learned trial

Judge. After referring to various pronouncements of this

Court including cases in Balwan Singh v. Lakshmi

Narain [AIR 1960 SC 770 : (1960) 3 SCR 91] , Samant N.

Balkrishna v. George Fernandez [(1969) 3 SCC 238]

, Virendra Kumar Saklecha v. Jagjiwan [(1972) 1 SCC

826] , Udhav Singh v. Madhav Rao Scindia [(1977) 1 SCC

511] , F.A. Sapa v. Singora [(1991) 3 SCC 375]

and Gajanan Krishnaji Bapat v. Dattaji Raghobaji

Meghe [(1995) 5 SCC 347] and a host of other

authorities, this Court in L.R. Shivaramagowda v. T.M.

Chandrashekar [(1999) 1 SCC 666 : (1998) 6 Scale 361]

held that while failure to plead “material facts” is fatal to

the election petition and no amendment of the pleading is

permissible to introduce such material facts after the

time-limit prescribed for filing the election petition, the

absence of “material particulars” can be cured at a later

stage by an appropriate amendment. An election petition

was not liable to be dismissed in limine merely because

full particulars of corrupt practice alleged were not set

out. It is, therefore, evident that material facts are such

primary facts which must be proved at the trial by a party

to establish existence of a cause of action. Whether in an

election petition a particular fact is a material fact or not,

and as such, required to be pleaded is a question which

depends on the nature of the charge levelled, the ground

relied upon, and in the light of the special circumstances

of the case. In Udhav Singh case [(1977) 1 SCC 511] the

Court held: (SCC p. 523, paras 42-43)

“In short, all those facts which are essential to clothe the

petitioner with a complete cause of action, are ‘material

facts’ which must be pleaded, and failure to plead even a

single material fact amounts to disobedience of the

mandate of Section 83(1)(a).

‘Particulars’, on the other hand, are ‘the details of the

case set up by the party’. ‘Material particulars’ within the

contemplation of clause (b) of Section 83(1) would

therefore mean all the details which are necessary to

amplify, refine and embellish the material facts already

pleaded

the

petition

compliance

with

the

requirements of clause (a). ‘Particulars’ serve the purpose

of finishing touches to the basic contours of a picture

already drawn, to make it full, more detailed and more

informative.”

43.

Likewise, from decision in D. Ramachandran v.

R.V. Janakiraman, reported in (1999) 3 SCC 267 following

paragraphs were referred to:

“1. Aggrieved by the dismissal of his election petition EP

No. 3 of 1996 on a preliminary issue, the appellant has

approached this Court.

10. On the other hand, Rule 11 of Order 7 enjoins the

court to reject the plaint where it does not disclose a

cause of action. There is no question of striking out any

portion of the pleading under this Rule. The application

filed by the first respondent in OA No. 36 of 1997 is on

the footing that the averments in the election petition did

not contain the material facts giving rise to a triable issue

or disclosing a cause of action. Laying stress upon the

provisions of Order 7 Rule 11(a), learned Senior Counsel

for the first respondent took us through the entire election

petition and submitted that the averments therein do not

disclose a cause of action. On a reading of the petition, we

do not find it possible to agree with him. The election

petition as such does disclose a cause of action which if

unrebutted could void the election and the provisions of

Order 7 Rule 11(a) CPC cannot therefore be invoked in

this case. There is no merit in the contention that some of

the allegations are bereft of material facts and as such do

not disclose a cause of action. It is elementary that under

Order 7 Rule 11(a) CPC, the court cannot dissect the

pleading into several parts and consider whether each one

of them discloses a cause of action. Under the Rule, there

cannot be a partial rejection of the plaint or petition.

See Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC

487]. We are satisfied that the election petition in this

case could not have been rejected in limine without a

trial.”

44.

In case of Subhash Desai v. Sharad J. Rao,

reported in 1994 Supp (2) SCC 446, following observations

were sought to be relied on:

“1. The election of the appellant from Goregaon

Legislative Assembly Constituency, has been set aside by

the High Court, on an election petition filed on behalf of

Respondent

(hereinafter

referred

the

“respondent”). The appellant had contested the election

as a candidate of Shiv Sena, whereas the respondent as

of Janata Dal.

10. Section 86 vests power in the High Court to dismiss

an election petition which has not been properly presented

as required by Section 81; or where there has been non-

compliance of Section 82 i.e. non-joinder of the necessary

parties to the election petition; or for non-compliance of

Section 117 i.e. non-deposit of the required amount as

security for the costs of the election petition. Section 86

does not contemplate dismissal of the election petition for

non-compliance of the requirement of Section 83 of the

Act. But Section 83 enjoins that an election petition shall

contain concise statement of material facts, and shall set

forth full particulars of any corrupt practice that the

petitioner alleges, which should be verified and supported

by affidavit, so far the allegations of corrupt practices are

concerned. This provision is not only procedural, but has

an object behind it; so that a person declared to have

been elected, is not dragged to court to defend and

support the validity of his election, on allegations of

corrupt practice which are not precise and details whereof

have not been supported by a proper affidavit. Apart from

that, unless the material facts and full particulars of the

corrupt practices are set forth properly in the election

petition, the person whose election is challenged, is bound

to be prejudiced in defending himself of the charges,

which have been leveled against him. In view of the

repeated pronouncements of this Court, that the charge of

corrupt practice is quasi-criminal in nature, the person

challenging an election on the ground of corrupt practice,

cannot take liberty of making any vague or reckless

allegation, without taking the responsibility about the

correctness

thereof.

Before

the

court

proceeds

investigate such allegations, the court must be satisfied,

that the material facts have been stated along with the

full particulars of the corrupt practice, alleged by the

petitioner, which have been duly supported by an

affidavit. In cases where the court finds that neither

material facts have been stated, nor full particulars of the

corrupt practice, as required by Section 83, have been

furnished in the election petition, the election petition can

be dismissed, not under Section 86 but under the

provisions of the Code of Civil Procedure, which are

applicable, read with Section 83(1) of the Act, saying that

it does not disclose a cause of action. This aspect has

been examined by this Court in detail in the cases

of Azhar Hussain v. Rajiv Gandhi [1986 Supp SCC 315:

(1986) 2 SCR 782]; Hardwari Lal v. Kanwal Singh [(1972)

1 SCC 214: (1972) 2 SCR 742].

12. The scope of Section 83(1) has been recently

examined in the case of F.A. Sapa v. Singora [(1991) 3

SCC 375] where it was pointed out that the underlying

idea in requiring the election petition to set out in a

concise manner all the ‘material facts’ as well as the ‘full

particulars’, where the complaint is in respect of

commission of corrupt practice, is to “delineate the scope,

ambit and limits of the inquiry at the trial by the election

petition”. In the present case, the allegations made, in the

election petition, may be true or false, but it is not

possible to hold that the election petition does not disclose

any material fact or give the material particulars of any of

the corrupt practices. It need not be pointed out that even

if the court is satisfied that, in respect of one of the

corrupt practices alleged, material facts and full

particulars thereof have not been stated, still the election

petition cannot be dismissed, if in respect of another

corrupt practice the material facts and full particulars

have been stated in accordance with the requirement of

Section 83(1) of the Act.

13. In respect of the contention that the affidavit,

supporting the corrupt practices alleged to have been

committed by the appellant, is not as required by Section

83(1)(c) proviso, it was pointed out that reference has

been made in the affidavit to paragraph 746, which

contains the grounds for declaring the election of the

appellant to be void and has no relation to the paragraphs

giving particulars of corrupt practices. It is true that

instead of saying that the statements, made in paragraph

746 of the election petition about the commission of

corrupt practices, were true to the knowledge of the

appellant, it should have been stated that the statements,

made in paragraphs 49, 50, 50-A, 51 and 52 of the said

petition were true to his knowledge. But, from bare

reference to the other part of the affidavit, it shall appear

that it has also been said that making of religious appeal

to people and the particulars of the corrupt practices

mentioned in paragraphs 49, 50, 50-A, 51 and 52 of the

said election petition and the exhibits referred thereto,

were true to the knowledge of the appellant. According to

us, it cannot be held, in the facts and circumstances of the

present case, that there was no affidavit supporting the

allegations of corrupt practices, as required by Section

83(1)(c) proviso.”

45.

Heard learned counsel and perused petition.

46.

From

above,

following

points

arise

for

consideration:

i. Whether election petition is liable to be rejected on

ground of failure to indicate accrual of complete cause of

action? And

ii. Whether election petition is liable to be rejected for failure

to file verifying affidavit in prescribed Form no.25?

47.

Above application is filed for rejection of election

petition at threshold mainly on two grounds. Firstly, for failure

to plead accrual of complete cause of action as mandated by

Sections 81 and 100 of ROPA. And secondly, for failure to

disclose source of information as part of contention that there

was failure to file proper affidavit as required under Section 83

(1) (c) proviso read with Rule 94-A of Rules in prescribed Form

no.25.

48.

Insofar as failure to establish complete cause of

action, it is stated that allegation of corrupt practice was based

on pleading that a meeting was convened in Block Congress

Office,

Ramanagara

06.05.2023,

07.05.2023

and

09.05.2023 wherein, it was decided by respondent to print and

distribute gift cards to all voters in Ramanagara Assembly

Constituency and that respondent who was personally present

directed all Block Congress members and office bearers to

ensure that gift cards reach every voter and in pursuance of

same, persons named in paragraphs no.16(a) to (e) of petition

and disturbed cards with consent of respondent.

49.

also

stated,

whether

petitioners

were

personally present

meeting or

had

knowledge about

proceedings of meeting from someone present

was

not

disclosed. It is stated that corrupt practices defined under

Section 123 of ROPA fell into two categories, first where corrupt

practice is committed by returned candidate or his election

agent or any other person with consent of returned candidate

or election agent. It is further stated, second kind were those

committed by any other person in interest

returned

candidate.

50.

It is further stated, Section

83(1)

ROPA

mandates statement of material facts on which petitioner relies

with full particulars of corrupt practice alleged to be signed and

verified and also accompanied by an affidavit in support of

allegation with full particulars of corrupt practice. It is further

stated, petitioners were required to state in affidavit filed in

Form 25 whether information about corrupt practice was within

their personal knowledge or they believed it to be true. It is

stated, petitioners had merely pleaded that gift cards were

distributed with consent of

returned

candidate

without

disclosing basis for such assumption, especially when persons

alleged to have distributed gift cards were not election agents.

51.

Insofar as meeting held at Congress office, Ijoor,

Ramanagara on 22.05.2023 at 4:30 p.m., where in press

conference, statement was alleged to be given by returned

candidate that gift cards given had not reached all concerned

and efforts would be made to honour, commitment. It is stated

that petitioners intend to imply consent by referring photograph

of returned candidate on such card and by asserting that

petitioners had voted in favour of returned candidate based on

such promise. It is stated that said allegations were inferential

and by attempting to circumvent requirement of pleading and

establishing consent, by means of clever drafting.

52.

It is also alleged that affidavits filed by petitioners

though stated to be in Form no.25, did not comply with

requirement of Section 83(1)(c) proviso read with Rule 94-A of

Rules and Form no.25. It is stated that full particulars of

material facts as mandated under Section 100 (1) (b) or

Section 100 (1) (d) (ii) were not complied and therefore,

petitioners had failed to establish accrual of complete cause of

action. On said ground, respondent sought for rejection of

election petition.

53.

Said contentions are sought to be reinforced with

observations of Hon’ble Supreme Court in Samant N

Balakrishna’s case (supra), V Narayanaswamy’s case

(supra),

Anil

Vasudev

Salgaonkar’s

case

(supra),

Kanimozhi Karunanidhi’s case (supra), and Azhar Hussain’s

case (supra).

54.

In Samant N. Balakrishna’s case (supra), it was

observed, under scheme of ROPA, corrupt practices were of two

kinds, first - those alleged to be committed by candidate

himself or his election agent or any other person with consent

of candidate or his election agent, where proof even single such

incident would render election void, without any further

requirement; And second - those committed by an agent other

than election agent, where additional fact that result of election

was materially affected due to same was required to be

established.

55.

It was further held material facts were those that

were absolutely necessary to establish accrual of complete

cause of action and omission to state even a single material

fact would render challenge against election bad, such material

facts were therefore required to be pleaded with full particulars,

to establish commission of corrupt practices of either of two

kinds.

56.

Insofar as meaning of full particulars of material

facts, it was observed, particulars of

name

person

committing corrupt practice, with date, time and place will have

to be mentioned, which would give a complete picture of

accrual of cause of action and mere recital of provisions of

enactments would not suffice.

57.

In V. Narayanaswamy’s case (supra), it is held, in

an election petition on allegation of corrupt practice, cause of

action cannot be equated with cause of action as is normally

understood because of consequences that follow. Allegation of

corrupt practices, if proved, not only does candidate suffer

ignominy, he also suffers disqualification from standing for

election for a period that may extend to six years. Therefore,

while noting difference between material facts and material

particulars, it was observed failure to plead material facts

would be fatal to election petition, absence of material

particulars can be cured at a later stage by an appropriate

amendment.

58.

It was observed that charge of corrupt practice

being quasi-criminal in nature, Court must insist on strict

compliance and that it was equally essential that particulars of

charge of allegations are clearly and precisely stated in petition

as required by Section 83, but also supported by affidavit,

wherein petitioner was obliged to disclose his source of

information in respect of commission of corrupt practice. It was

observed, he must state which of allegations were true to his

knowledge and which he believed to be true based

information received by him. It was further held that if relevant

paragraphs of petition, wherein material facts are stated were

not verified as required and allegation of corrupt practice was

open for two equally possible meanings, then election petition

would not survive. Under such circumstances, by applying

doctrine of substantial compliance, it would not be possible to

allow such defects to be cured later on and petition had to fail.

59.

In Anil Vasudev Salgaonkar’s case (supra), it

was held failure to assert, whether digging of bore-wells

(alleged to be corrupt practice) was with consent of returned

candidate, had not been specifically pleaded. Same was

considered as failure to disclose full particulars of material facts

which would be fatal to election petition.

60.

In Kanimozhi’s case (supra), observations made

were with reference to election affidavit required to be filed by

candidate in Form no.26, in context of requirement of

maintaining purity of election, highlighting importance of such

affidavit. In said matter, challenge to election was on ground of

non-compliance with mandatory requirements of Section 33A of

ROPA regarding affidavit in Form no.26.

61.

In Azhar Hussain’s case, it was held though

Section 83 does not find a place in Section 86 of ROPA, it does

not mean that powers under the CPC cannot be exercised.

Referring to decision in case of Hardwari Lal v. Kanwal

Singh reported in (1972) 1 SCC 214, it was held that there

would be no escape from conclusion that an election petition

can be summarily dismissed if it does not furnish cause of

action in exercise of powers under CPC and appropriate orders

can be passed, if mandatory requirements enjoined by Section

83 of ROPA regarding statement of material facts in election

petition are not complied with.

62.

Insofar as requirement of disclosure of source of

information, it was held, where neither verification in petition

nor affidavit petitioner gives any indication of sources of

information as to facts stated in petition which are not to his

knowledge and petitioner persists that verification is correct

and affidavit in form prescribed does not suffer from any defect

allegations of corrupt practices cannot be inquired and tried at

all. In such a case, petition has to be rejected on threshold for

non-compliance with mandatory provisions of law as

pleadings. It is no part of duty of Court suo motu even to direct

furnishing of better particulars when objection is raised by

other side. Where petition does not disclose any cause of

action, it has to be rejected. Court, however, cannot dissect

pleadings into several parts and consider whether each one of

them discloses a cause of action. Petition has to be considered

as a whole. There cannot be a partial rejection of petition.

63.

Where several paragraphs of election

petition

alleging corrupt practices remain unaffirmed under verification

clause as well as affidavit, unsworn allegation could have no

legal existence and Court could not take cognizance thereof.

Defect of type provided in Section 83 of Act on other hand can

be dealt with under doctrine of

curability,

principles

contained in CPC. Non-compliance with provisions of Section 83

may lead to dismissal of petition if matter falls within scope of

Order 6 Rule 16 and Order 7 Rule 11 of CPC.

64.

other

hand,

main

ground

for

opposing

application is that requirement of filing of affidavit as stipulated

in Section 83 (1) (c) of ROPA is not mandatory, if there is

substantial compliance and that it would be a curable defect, by

relying upon decision in Thangjam Arunkumar’s case (supra).

Said decision referred to Prajwal Revanna’s case (supra). It

was therefore contended that at stage of consideration of

application for rejection of petition under Order VII Rule 11 of

CPC, it was not necessary to examine compliance with filing of

affidavit in Form no.25.

65.

Insofar as disclosure of material facts with full

particulars, it is contended that same cannot be

read

requiring statement of all facts, but, statement of necessary

particulars as would enable returned candidate to understand

accrual of complete cause of action with regard to corrupt

practice alleged. It was submitted, corrupt practice alleged

against returned candidate in instant case is ‘bribery’ falling

under Section 100 (1) (b) and (d) (ii) of ROPA, by distribution

of gift cards to induce voters to vote for returned candidate. It

was contended that necessary particulars of meeting i.e., date,

time and place, presence of returned candidate and about his

instruction for distribution/consent for distribution of gift cards

to all voters of constituency were clearly pleaded.

66.

It is further submitted, in paragraphs no.16 (a) to

(e), details of date, time and place

and

person/s

who

distributed gift cards to each of petitioners, with consent of

returned candidate as inducement to vote for him in election

scheduled on 10.05.2023 were also pleaded. In fact there is

also assertion about registration of FIR against

returned

candidate and others for offences punishable under Section

123(1) (A) and (B), 127-A of ROPA. It was contended that

these particulars would be sufficient to meet requirements of

Section 83.

67.

In Bhim Rao Baswanth Rao Patil’s case (supra),

Hon’ble Supreme Court held High Court fell in error in taking

note of contentions of parties as well as pleadings, while

considering application under Order VII Rule 11 of CPC, as

overall statement of facts available on record did not lead to a

compelling reason for rejecting election petition. Accordingly,

appellant's application was dismissed, and contentions were

kept open to be agitated during trial.

68.

A three judges Bench of Hon’ble Supreme Court in

Madiraju Venkata Ramana Raju’s case (supra); two judges

benches in Ajay Arjun Singh’s case (supra) and Ashraf

Kokkur’s cases (supra), after reference to earlier decisions in

Azhar Hussain’s case (supra), V.S.Achutanandan’s cases

(supra), Hari Shanker Jain v. Sonia Gandhi, reported in

(2001) 8 SCC 233, Samant N. Balkrishna v. George

Fernandez, reported in (1969) 3 SCC 238, Syed Dastagir v.

T.R. Gopalakrishna Setty, reported in (1999) 6 SCC 337,

and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express,

reported in (2006) 3 SCC 100, Ponnala Lakshmaiah’s case

(supra), Ram Sukh’s case (supra), Virendra Nath Gautham’s

case (supra), D.Ramachandran’s case (supra), held that

entire petition has to be read as whole to identify whether it

discloses cause of action and if there is substantial compliance,

petition cannot be rejected under Order VII rule 11 of CPC.

69.

In V.S. Achutanandan’s case (supra) three judges

Bench of Hon’ble Supreme Court explained distinction between

material fact and particulars. It held, material particulars can

be added by way of amendment later on, and Courts would not

be justified in dismissing petition at threshold stage on ground

of failure to disclose material pleadings.

70.

Another three judges Bench of Hon’ble Supreme

Court in Subash Desai’s case (supra) clarified purpose behind

Section 83 of ROPA, that it was not only procedural but had an

object behind it, namely, that a person need not be called upon

to answer an allegation of corrupt practice, precise details of

which are not set out properly. It was observed that it would be

prejudicial to be called upon to defend vague and reckless

charges, which are made without taking responsibility

verifying correctness of. It

was

observed,

before

Court

proceeds to investigate such allegations, it must be satisfied

that material facts with full particulars of corrupt practice are

stated and which have been duly supported by affidavit. And

assertion that ‘contents of paragraphs … and … were true to his

knowledge’ would be sufficient.

71.

Admittedly, corrupt practice alleged to have been

committed by returned candidate in instant case is bribery by

offering gift card as gratification for inducing electors to vote

for returned candidate. As per decision of Hon’ble Supreme

Court in case of Surinder Singh v. Hardial Singh, reported in

(1985) 1 SCC 91, standard of proof applicable in election

petitions would be proof beyond reasonable doubt.

72.

As noted above, three judges Bench of Hon’ble

Supreme Court in V. Narayanaswamy’s case (supra) has

held, cause of action in an election petition on allegation of

corrupt practice, cannot be equated with cause of action as is

normally understood, due to consequences that follow. It is

held, in case of defective material facts, petition has to be

rejected at outset, but in case of failure to plead all material

particulars, defect was curable. It is further clarified, where

inspite of opportunity to cure defects in providing mat

73.

It is seen that petitioners herein have opposed

application for rejection of petition, by contending

that

averments in election petition disclose accrual of complete

cause of action with sufficient material particulars and it does

not suffer from defect. Even from their contention that they are

not obliged to disclose material facts with all particulars, but

only those, as would be sufficient to

indicate

accrual

complete cause of action, same stand can be deduced.

74.

Even insofar as contention about failure to disclose

‘source of information’ as a material omission,

petitioners

contend that verifying affidavit clearly states that petition

averments were within personal knowledge. Only, as regards

requirement of filing affidavit in prescribed form, they claim

liberty to cure defect.

75.

Before examining whether there is failure to plead

all material facts, it would be appropriate to refer to

observations of Hon’ble Supreme Court in Samant N.

Balakrishna’s case (supra), that under scheme of ROPA,

‘corrupt practices’ are of two kinds, first - those alleged to be

committed by candidate himself or his election agent or any

other person with consent of candidate or his election agent

and where proof even single such incident would render

election void, without any further requirement.

76.

While, second kind were those committed by an

agent other than election agent, where additional fact that

result of election was materially affected due to such corrupt

practice would be required to be established. It is not in dispute

that allegation against returned candidate in instant case is

commission of ‘corrupt practice’ of first kind.

77.

Perusal of election petition would indicate

that

petition is filed by five electors of Ramanagara Assembly

Constituency no.183. In paragraphs no.3 and 4, there are

averments about notification issued by Election Commission on

29.03.2023 for holding General Elections to 16^th Legislative

Assembly of Karnataka, with details of calendar of events. In

paragraphs no.7 to 11, details of petitioners’ names in electoral

rolls are stated. It is also stated that returned candidate herein

had contested election on ticket sponsored by Indian National

Congress. Thereafter, it is stated that

election

results

declared on 13.05.2023, respondent herein was returned

candidate issued with Form no.21E.

78.

As contended, material facts regarding commission

of corrupt practice by returned candidate are stated in

paragraph no.14. It is stated that on 6^th May, 7^th May, and 9^th

May of 2023, returned candidate had convened meeting in

Block Congress Office, Ramanagara, wherein it was decided by

returned candidate to “print and distribute” “gift cards” to all

voters of Assembly Constituency no.183. It

specifically

averred that returned candidate was personally present and

directed all Block Congress Members, supporters and office

bearers to ensure that gift cards reach every single voter. And

in pursuance of said direction, gift cards were distributed to

voters including petitioners.

79.

Thereafter, particulars of person who handed over

gift cards to each of petitioners with time and place of handing

over of gift card are stated. It is stated that Mr.Raju S/o

Bolegowda handed over gift card to petitioner no.1 at his

residence on 10.05.2023 at 2:30 a.m. Likewise, one Mr.Siddesh

S/o Kariyappa handed over a gift card to petitioner no.2 at his

residence on 12.05.2023 at 12:30 a.m. It is also stated that

Mr.Ankappa S/o Ankappa handed over gift card to petitioner

no.3 in his residence at 5:15 a.m. on 10.05.2023. It is also

stated that Mr.Cable Ravi S/o Narayanappa, handed over gift

card to petitioner no.4 in his residence at 11:45 p.m. on

09.05.2023.

also stated that Mr.Shivashankar

S/o

Kenchappa, handed over gift card to petitioner no.5 in his

residence at 5:30 a.m. on 10.05.2023.

80.

Careful perusal of above averments would indicate

that petitioners have indeed pleaded about ‘printing and

distribution of gift cards’ with consent of returned candidate.

But, without specific assertion, how said gift card could be

considered as ‘gratification or reward’, when copy of gift card

produced, does not bear indication of any value attached to it.

They have also not asserted that person while handing over gift

card had disclosed to them about such value and mode of

encashment

such

value

constitute

inducement

gratification.

81.

While averments regarding handing over of ‘gift

card’ to each of petitioner is stated individually, there is general

assertion in paragraph no.17, that they were informed gift card

would be activated, if they voted for returned candidate. There

is further general assertion that after voting, petitioners could

go to any shopping centre in Ramanagara District and purchase

items worth Rs.5000/-, and therefore gift card made them to

vote for returned candidate. It is also stated when immediately

after

voting,

petitioner

no.1

went

FRESHLAND

HYPERMARKET, Ramanagara on 10.05.2023 itself, he was

informed that gift card is not acceptable, when he realized

about false inducement to vote for returned candidate.

82.

Likewise, petitioner no.2 went to BENAKA SUPER

BAZAAR, Ramanagara on 11.05.2023, he was informed that

gift card is not acceptable, when he realized about false

inducement to vote for returned candidate. Even petitioner no.3

went to MORE SUPERMARKET, Ramanagara on 10.05.2023, he

was informed that gift card is not acceptable, when he realized

about false inducement to vote

for

returned

candidate.

Likewise, petitioner no.4 went to BIGMART SUPERBAZAR,

Ramanagara on 11.05.2023, he was informed that gift card is

not acceptable, when he realized about false inducement to

vote for returned candidate. So also, petitioner no.5 went to

VISHAL MEGA MART, Ramanagara on 11.05.2023, he was

informed that gift card is not acceptable, when he realized

about false inducement to vote for returned candidate.

83.

It is thereafter stated that instances of corrupt

practice committed by respondent and his

followers,

with

consent of returned candidate was admitted by him in press

conference explained in detail in paragraph no.23.

84.

Such

general

assertion

without

disclosing

particulars of who, when and where, informed

each

petitioners that gift card was associated with monetary or other

value which could be considered as gratification or inducement.

Thus, chain of events for establishing commission of corrupt

practice falling under Section 123 (1) (A) (b) of ROPA i.e. offer

of inducement to an elector to vote or refrain from voting at an

election as a reward, cannot be complete.

85.

Keeping in mind that petitioners have alleged

inducement or gratification to be pecuniary in nature, it is seen

that, there are also no specific assertions that shopping centers

in Ramanagara District agreed to be conduits of returned

candidate in commission of corrupt practice, which would also

be material particular to complete chain of events to establish

commission of corrupt practice by returned candidate. Unless

petitioners specifically disclosed name of

person

who

had

offered inducement to them, with particulars regarding place,

time and date, even claim of admission by returned candidate

in subsequent press conference held on 22.05.2023 about

distribution of gift cards would not complete chain of events for

commission of corrupt practice falling under Section 123 (1) (A)

(b) (ii) of ROPA i.e. offer of inducement to an elector for having

voted or refrained from voting.

86.

Later assertion that immediately after voting, they

went to shopping center etc. to encash promise of gratification

or inducement as informed to them, and found it to be false

promise, and further statements that corrupt practice was

committed with consent of returned candidate was admitted by

him in press conference held on 22.05.2023 at 4:30 p.m. at

Congress Office, Ijoor, Ramanagara, in respect of which

petitioners have incorporated transcript and translation of

entire statements made by returned candidate, would be

immaterial. Interestingly, in paragraph no.16(b), petitioner

no.2 states that he was given gift card at 12:30 a.m. on

12.05.2023 but in paragraph no.19, he claims to have sought

to encash it at BENAKA SUPER BAZAAR on 11.05.2023 itself

which would be material discrepancy.

87.

As per settled law, complete cause of action would

mean entire chain of events that would connect allegation of

bribery and inducement committed by returned candidate, his

election agent or any other person with his consent. It is held in

C.P. John v. Babu M. Palissery, reported in (2014) 10 SCC

547, it is held omission to plead even a single material fact

would be fatal.

88.

In Anil Vasudev Salgaonkar’s case (supra), in

context of a charge of corrupt practice, it was held “material

facts” would mean all basic facts constituting ingredients of

particular corrupt practice alleged, which petitioner is bound to

substantiate before he can succeed on that charge and if

“material facts” were missing even after expiry of period of

limitation for filing election petition, pleading becomes deficient.

In such context, failure to assert, whether digging of bore-wells

(alleged to be corrupt practice) was with consent of returned

candidate, which had not been specifically pleaded, was

considered as failure to disclose full particulars of material facts

and held fatal to election petition.

89.

Thus from above, analysis, there is failure to plead

how offer of gift card acted as inducement or gratification upon

petitioners would be a fatal defect. Point (i) is

therefore

answered in affirmative.

90.

Insofar as point (ii), proviso to Section 83 (1) (c)

requires election petitioner to file affidavit in support of

allegations of corrupt practice in addition to verification of

pleadings as required by provisions of CPC. Rule 94A of Rules

prescribes form in which affidavit is required to be filed as per

above proviso.

91.

Same is no more res integra in view of recent

decision of Hon'ble Supreme Court in case of Prajwal

Revanna’s case (supra) referring to Ponnala Lakshmaiah’s

case (supra), three judges Bench decision in G.M.

Siddeshwar’s case (supra) and Constitution Bench decision in

case of Murarka Radhey Shyam Ram Kumar v/s Roop Singh

Rathore, reported in AIR 1964 SC 1545, has held said

requirement to be not mandatory and curable. Therefore, point

(ii) is answered in negative. Hence, following:

ORDER

I.A.no.2/2023

filed by returned candidate under

Order

VII

Rule

of CPC is allowed.

Consequently, Election Petition is dismissed.

Sd/-

JUDGE

GRD

List No.: 19 Sl No.: 2

249

By order

(B C PATRA)

SECRETARY

ELECTION COMMISSION OF INDIA

(MADHU A C)

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