Karnataka High Court
Shri. Mohan Kumar. B vs Smt. Shobha Karandlaje on 5 June, 2025
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
ELECTION PETITOIN NO.9 OF 2024
BETWEEN:
SHRI MOHAN KUMAR B.,
S/O BASETTY G.,
AGED ABOUT 41 YEARS,
R/O NO.19, 1ST MAIN ROAD,
SRIKANTESHWARA NAGAR,
NANDINI LAYOUT,
BENGALURU NORTH,
BENGALURU - 560 096.
...PETITIONER
(BY SRI. HARISH NARASAPPA, SENIOR COUNSEL
SRI. SMARAN SHETTY, ADVOCATE)
AND:
SMT. SHOBHA KARANDLAJE,
D/O LATE MONAPPA GOWDA,
NO.16, 2ND MAIN ROAD,
3RD CROSS, NEW BEL ROAD,
CHIKKAMARANHALLI,
BENGALURU - 560 094.
...RESPONDENT
(BY SRI. VENKATESH DALAWAI, ADVOCATE)
THIS ELECTION PETITION IS FILED UNDER SECTION 81
OF REPRESENTATION OF PEOPLE ACT, 1951 PRAYING TO
DECLARE THAT THE RESULT OF THE ELECTION OF
RESPONDENT, AS THE RETURNED CANDIDATE FROM THE 24
NORTH BENGALURU PARLIAMENTARY CONSTITUENCY IS NULL
AND VOID IN TERMS OF SECTION 100(b), SECTION 100(d)(i)
-2-
AND SECTION 100(d)(iv) OF THE REPRESENTATION OF
PEOPLE'S ACT, 1951.
THIS ELECTION PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.04.2025, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, MADE THE
FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH
CAV ORDER
ORDERS ON IA No.2 OF 2024 AND IA No. 3 OF
2024
1. In this petition, the petitioner has sought for
declaration that, the election of respondent, being the
Returned candidate, from the 24-North Bengaluru
Parliamentary Constituency as null and void in terms
of Section 100(b), 100(d)(i) and 100(d)(iv) of the
Representation of the People's Act, 1951 (hereinafter
referred to as Act).
2. On service of summons, respondent entered
appearance and filed detailed written statement,
denying the averments made in the Election Petition.
The respondent has filed application in IA No.2 of
2024 under Section 81(3) of the Act, seeking
-3-
dismissal of the Election Petition for non-compliance of
Section 81(3) of the Act. The respondent has filed IA
No.3 of 2024 under Section 83(1)(a)(b)(c) and (2) of
the Act read with Order VII Rule 11 (a) and (d) of the
Code of Civil Procedure, seeking rejection of Election
Petition as devoid of cause of action as well as not
complying with the mandatory requirements under
Section 83(1)(a)(b)(c) as well as proviso to Section
83(1) and (2) of the Act.
3. The applications were heard on merits and
disposed of by this order.
4. In order to decide the applications in IA No.2
of 2024 and IA No.3 of 2024 filed by the respondent
for rejection of Election Petition, it is relevant to
extract the prayer made in the Election Petition, which
reads as under:
"a) Call for the entire records from the Returning Officer
pertaining to the nomination papers, FORM 26 and all
other papers filed by respondent No.1 ;
-4-
b) Declare that the result of the Election of respondent No.1
as the returned candidate from the 24 North Bengaluru
Parliamentary Constituency is null and void in terms of
Section 100(b), Section 100(d)(i) and Section 100 (d)(iv)
of the Representation of the People's Act 1951;
c) Pass such other orders as this Hon'ble deems fit in the
facts and circumstances of the case, in the interest of
justice and equity."
d) Award costs towards this petition.
(Emphasis supplied)
FACTS OF THE CASE:-
5. The petitioner has presented the Election
Petition on 19th July, 2024 stating that the petitioner is
an Elector of 24-North Bangalore Parliamentary
Constituency and Voter Identification Card of the
petitioner is produced at Annexure-B1. It is stated
that the petitioner preferred this Election Petition in
the capacity as an Elector under Section 81 of the Act.
It is further averred in the petition that, the Election
Commission of India notified the General Elections to
Lok Sabha on 16.03.2024 and calendar of events for
-5-
Parliamentary Constituency No.24, North Bengaluru is
as under:
Event Schedule
Announcement and Issue of Press Note 16 March, 2024
(Saturday)
Issue of Notification 28 March, 2024
(Thursday)
Last date for filing of Nominations 04 April, 2024
(Thursday)
Scrutiny of Nomination 05 April, 2024
(Friday)
Last date for withdrawal of candidature 08 April, 2024
(Monday)
Date of Poll 26 April, 2024
(Friday)
Date of Counting of Votes 04 June, 2024
(Tuesday)
Date before which the election shall be 06 June, 2024
completed (Thursday)
6. It is further stated in the petition that, the
Government of Karnataka by its notification dated
28.03.2024 (Annexure-C) notified the proposed 2024
General Elections as per Annexure-D. It is further
averred in the petition that the respondent has filed
-6-
her nomination paper in FORM 2A under Rule 4 of the
Conduct of the Election Rule, 1961 on 03.04.2024 (as
per Annexure-E) and same was scrutinized by the
Returning Officer. In addition to the nomination paper,
the respondent has filed affidavit in FORM 26 under
Rule 4A of Conduct of Election Rules, 1961
(hereinafter to referred to as Rules, 1961) as per
Annexure-F. The list of candidates for 24 North
Bangalore Constituency is produced at Annexure-G.
Election was held on 26.04.2024 and after the
counting of votes, on 04.06.2024 and the respondent
was declared as Returned Candidate for 24-North
Bangalore Constituency. It is also averred in the
petition that affidavit in FORM 26 filed by the
respondent demonstrates the concealment of criminal
proceedings and the respondent has not disclosed the
status of her financial assets and liabilities. Therefore,
it is contended by the petitioner that, the FORM 26
affidavit filed by the respondent is contrary to the
-7-
provisions of the Act and Rules, 1961 and also the law
laid down by the Hon'ble Supreme Court, in this
regard.
7. The petitioner has raised following grounds:
7.1 The FORM 26 Affidavit of the respondent
does not disclose the pending Criminal proceedings.
7.2 The FORM 26 Affidavit does not adequately
provide details of pending Criminal proceedings.
7.3 The Returning Officer has not provided the
details in compliance of the direction of the Hon'ble
Supreme Court in W.P.(Civil) No.536 of 2011.
7.4 The respondent has not disclosed the
previous Criminal proceedings.
7.5 FORM 26 Affidavit does not properly disclose
the Financial Assets and Liabilities of the respondent.
7.6 Concealment and Mis-statement in FORM 26
Affidavit amounts to "Corrupt Practice".
-8-
8. The petitioner, by urging the aforementioned
grounds, pleaded that, as per Rule 4(A) of the Rules,
1961, it is the duty of the candidate to disclose all
relevant details as part of the Nomination Process.
Such disclosure in FORM 26 Affidavit is intended to
provide the Electorate and the public at large as to
participate in the democratic process. It is the
contention of the petitioner that, the respondent has
failed to make necessary disclosure of the Criminal
proceedings in which she was arrayed as an accused
at the time of filing of FORM 26 Affidavit and
therefore, sought for interference of this Court.
8.1 It is also contended by the petitioner that,
the respondent has disclosed only five proceedings at
Sl.No.5 of the FORM 26 affidavit, whereas, the
respondent has failed to disclose other proceedings
which were pending as on the date of filing of the
nomination paper, particularly, the proceedings in the
case of Joint Director, Directorate of Enforcement
-9-
Vs. Smt. Shobha Karandlaje (in MSA No.112 of
2018) which is pending consideration before the
competent Court as per Annexure-H. It is the
grievance of the petitioner that, the respondent has
mentioned the proceedings in MSA No.112 of 2018
during filing of nomination in the 2019 Lok Sabha
Election and Copy of the FORM 26 Affidavit filed by the
respondent is produced at Annexure-J. Hence, it is
stated that the respondent has deliberately omitted to
mention the proceedings of MSA No.112 of 2018 in
FORM 26 Affidavit and suppression of the said aspect
requires to be considered in the Election Petition. It is
also contended by the petitioner that, the respondent
has been arraigned as accused in PCR No.55750 of
2016 pending consideration before the X Additional
Chief Judicial Magistrate, Mayohall, Bengaluru
(Annexure-K) and therefore, concealing the
aforementioned aspect attracts Section 100 (1) (d) (i)
and (iv) of the Act.
- 10 -
8.2 It is further contended by the petitioner that,
the respondent, at Sl.No.5 of her FORM 26 Affidavit,
disclosed the pending Criminal proceedings, however,
the respondent failed to provide the material
particulars or adequate information and description,
namely; i) nature of the Crime, ii) the seriousness of
the offence alleged, iii) the involvement of the
candidate to the alleged Crime, iv) the punishment for
such an offence, and v) the cumulative impact of
these factors on the suitability, character and fitness
of the candidate to contest in the Lok Sabha Election.
It is also stated that, four out of five of the Criminal
proceedings disclosed in FORM 26 Affidavit do not
contain the description and therefore, sought for
interference of this Court.
8.3 It is also pleaded by the petitioner that, the
proceedings under Section 45(1) of PML Act read with
Section 200 of Cr.P.C., does not disclose the details of
the amount alleged to have been invested by the
- 11 -
respondent in Shell Company, the details of the
alleged Money Laundering, involvement of the
respondent in the transaction and corresponding
imprisonment were absent in FORM 26 Affidavit.
8.4 It is also stated in the petition that, the
respondent has failed to follow the guidelines issued
by the Election Commission of India, dated
10.10.2018 and the judgment of Hon'ble Supreme
Court in the case of Public Interest Foundation and
Others Vs. Union of India, (W.P.Civil
No.536/2011) in a prescribed standard formats,
relating to her Criminal antecedents and therefore, it
is the duty of the Returning Officer to consider the
same as per the provisions under the Act and the
Rules 1961. Referring to the judgment of this Court in
Mudiyappa Vs. Basavaraj (W.P.No.107291/2023,
dated 10.01.2024), it is contended that, not
disclosing the Criminal proceedings attracts the
provisions under the Act.
- 12 -
8.5 Nextly, it is pleaded in the Petition about the
disclosure of financial liabilities and assets in FORM 26
Affidavit. The respondent has disclosed only one loan
availed by her to an extent of Rs.4,06,00,640/- owed
to M/s. Adarsha Developers and no further information
is provided. It is also stated that, the respondent has
provided the outstanding amount and further not
disclosed nature of the loan i.e. the amount borrowed
is secured or un-secured loan, the nature of re-
payment as well as the relationship between the
respondent and the creditor, which is conspicuously
absent in FORM 26 Affidavit. Therefore, it is the
contention of the petitioner that, the respondent
deliberately suppressed and concealed as well as
withhold the crucial information from the electorant,
which amounts to guilty of "Corrupt Practice" under
Section 123(2) of the Act and same is in violation of
the judgment of the Hon'ble Supreme Court in the
case of Krishnamoorthy Vs. Sivakumar and
- 13 -
Others reported in (2015) 3 SCC 467 and in the
case of Lok Prahari Vs. Union of India reported in
(2018) 4 SCC 699. Hence, the petitioner has
presented this Election Petition.
9. Upon entering appearance, the respondent
filed written statement and also IA No.2 of 2024 and
IA No.3 of 2024, seeking rejection of the Petition on
the ground that the specific allegations of Corrupt
practice as urged in the Petition do not meet the basic
requirements of law. It is further stated in the said
applications that, no trial or enquiry is required to be
made in the Petition as the same does not disclose a
triable issue or cause of action and accordingly,
sought for dismissal of the Petition.
10. It is the contention of the respondent that
the copy of Election Petition served upon the
respondent, has not been attested by the petitioner in
his own signature as true copy. It is the contention of
the respondent that, the petitioner is misleading the
- 14 -
Court and not stated in the petition as to what was
required in law to be disclosed in the FORM 26
Affidavit, except the information provided by the
respondent in FORM 26 Affidavit. It is stated that, the
proceedings initiated under PML Act, are essentially
attachment proceedings which are not Criminal
Proceedings and as such, the Enforcement Directorate
preferred MSA No.112 of 2018, which is civil in nature
and not required to be disclosed in FORM 26 Affidavit
and same is set aside by the Appellate Authority. It is
also stated that, the allegation regarding PCR
No.55750 of 2016 is pertaining to a private complaint
filed by one Roshan Baig against the respondent which
came to be dismissed for non-prosecution on
20.05.2017 by same was restored as per the order
dated 15.06.2017 of this Court and as on the date of
nomination to be filed by the respondent, the
competent Trial Court has not taken cognizance nor
issued summons to the respondent for appearance
- 15 -
and therefore, there is no requirement in law to
mention about the said case even though same was
mentioned in the previous affidavit. The said case has
not been categorized as heinous offence under Section
8 of the Act. It is also averred in the written statement
and applications that, the sole requirement prescribed
under Section 33-A of the Act, is with regard to cases
where cognizance has been taken and charges framed
therein by the competent court and in the absence of
any positive assumption made in the Election Petition,
merely non-mentioning of civil cases does not attract
the rigor of disqualification. It is also stated in the
applications that, the guidelines laid down by the
Hon'ble Supreme Court in the cases referred to above
has been followed by the respondent and nomination
has been filed along with FORM 26 Affidavit and those
documents have been scrutinized scrupulously by the
Returning Officer and therefore, sought for dismissal
of the Election Petition.
- 16 -
11. In response to the applications in IA No.2 of
2024 and IA No.3 of 2024, the petitioner has filed
statement of objections, contending that the said
applications have been filed to protract the process of
Trial in order to succeed in dragging the proceedings
beyond the term for which the respondent has been
elected. It is further stated in the statement of
objections that, the petitioner has produced all
relevant facts and particulars in the Election Petition,
which would disclose the cause of action to set-aside
the Election of the respondent on the ground of
"Corrupt practices". It is further stated that the
petitioner has pleaded all the material facts and
particulars as required under Section 83(1)(a) and (b)
of the Act, which discloses the cause of action. It is
also stated in the statement of objections that the
existence of cause of action as narrated in the petition
is sufficient for conducting trial in the Election Petition
and whether the cause of action narrated in the
- 17 -
petition against the respondent is weak or strong is a
matter of Trial which would be proved during the
course of Trial. In addition to this, the petitioner has
stated that the petitioner has provided all particulars
relating to the "Corrupt practices" indulged by the
respondent, as alleged, in the Election Petition and as
such, it is contended that, reading of the entire
petition comprehensively, makes it clear that the
material facts narrated in the Election Petition are
within the ambit of Section 123 of the Act. Hence,
sought for dismissal of the applications.
12. Heard, Sri. Harish Narasappa, learned Senior
Counsel appearing on behalf of Sri. Smaran Shetty,
learned counsel appearing for the petitioner and Sri.
Venkatesh Dalawai, learned counsel appearing for the
respondent.
CONTENTIONS OF THE LEARNED SENIOR
COUNSEL APPEARING FOR THE PETITIONER
- 18 -
13. Sri. Harish Narasappa, learned Senior
Counsel appearing on behalf of Sri. Smaran Shetty,
learned counsel appearing for the petitioner, argued
on IA No.2 of 2024 that, Election Petition was filed in
strict compliance with Section 81(3) of the Act, and
the Registry of this Court has verified additional sets
of the Election Petition and found them to be in
conformity with law and procedure thereunder, and
thereafter this Court has issued notice to the
respondent. It is contended by the learned Senior
Counsel that, the question of ante dating the verifying
affidavit does not arise since, the said affidavit bears
the seal and signature of the notary and attestation of
the said affidavit reflects the date on which the
affidavit was executed by the petitioner. He further
contended that, the petitioner did not filed the
verifying affidavit at the time of filing of the Election
Petition though same is not required under the Act,
and further, affidavit in FORM 25 was filed along with
- 19 -
the petition as per the Rules, however, the Registry of
this Court has raised objection regarding the non-filing
of verifying affidavit. Thereafter, the petitioner, with
the leave of this Court, complied with the office
objections raised by the Registry and as such,
verifying affidavit has been filed in support of the
Election Petition. It is also contended by the learned
Senior Counsel that, there exists no consequential
defect as alleged by the respondent and accordingly,
sought for dismissal of IA No.2 of 2024.
13.1 To buttress his arguments learned Senior
Counsel places reliance on the judgments of the
Hon'ble Supreme Court in the cases of Murarka
Radhey Shyam Ram Kumar Vs. Roop Singh
Rathore and Others reported in (1964) 3 SCR 573,
Dr. Anup Singh Vs. Shri. Abdul Ghani and Others
reported in (1965) 1 SCR 38 and Ch. Subba Rao
Vs. Member, Election Tribunal reported in (1964)
6 SCR 213 and argued that, the term "copy" under
- 20 -
Section 81(3) of the Act does not require exact
transcript and the ministerial errors or omissions by
notaries/oath commissioners are not fatal to a Election
Petition and same do not provide a ground for
dismissal of the Election Petition.
13.2 It is also contended by the learned Senior
Counsel that, the petitioner has amended the Election
Petition by deleting the Returning Officer, who
arraigned as respondent No.2 in the Election Petition
and made necessary changes in the Election Petition
without urging additional grounds or new documents
have been produced and therefore, sought for
dismissal of IA No.2 of 2024. It is also contended by
the learned Senior Counsel appearing for the
petitioner that, the objection raised by the respondent
are hyper technical in nature, which are
inconsequential and the Hon'ble Supreme Court has
consistently held that minor procedural defects are
curable and should not result in rejection of the
- 21 -
Election Petition, unless, there is a failure of
substantial compliance made therein in the petition.
13.3 Sri. Harish Narasappa, learned Senior
Counsel appearing for the petitioner asserts that, IA
No.3 of 2024 is devoid of merits and same is filed to
protract the proceedings. It is the contention of the
learned Senior Counsel that, the petitioner has set out
the specific instances of suppression of material
information by the respondent in her nomination
papers, which squarely fall within the ambit of
'Corrupt Practices' under Section 123 of the Act. He
also refers to the judgment referred to in the Election
Petition and submitted that, the respondent is
attempting to bid to evade the judicial scrutiny of this
Court. It is also submitted by the learned Senior
Counsel by referring to FORM 26 Affidavit that, the
respondent has not disclosed pending Criminal
proceeding in MSA No.112 of 2018 and not adequately
provide details of pending Criminal proceedings. It is
- 22 -
also argued that, the respondent has not disclosed
prior Criminal proceedings as per the declaration of
law in the case of Mudiyappa supra, inter-alia argued
that, FORM 26 Affidavit does not disclose the status of
the financial liabilities and assets of the respondent,
particularly, referring to the nature of loan availed by
the respondent from the creditor and therefore,
argued that such concealment in the FORM 26
Affidavit amounts to 'Corrupt Practices' under the Act.
Learned Senior counsel appearing for the petitioner
places reliance on the judgment of the Hon'ble
Supreme Court in the case Bhim Rao Baswanth Rao
Patil vs. K. Madan Mohan Rao and Others reported
in (2023) 18 SCC 231 and contended that, the idea
behind disclosure of Criminal antecedents is to ensure
transparency and enable the voters to make an
informed choice while casting their vote in the election
and therefore, the Election Petition cannot be rejected
- 23 -
whimsically and cause of action for a full fledged trial
is required in this petition.
13.4 Referring to paragraph Nos.20 to 28 of the
Election Petition, Sri. Harish Narasappa, learned
Senior Counsel appearing for the petitioner argued
that, the FORM 26 Affidavit shall contain the required
material for fair electioneering process and that apart,
the petitioner being a voter of the constituency must
know the antecedents of the respondent and
therefore, the learned Senior Counsel for the
petitioner contended that, dismissing the Election
Petition at the threshold for the alleged deficiencies
and lack of material facts and particulars, which are
curable in nature and therefore, places reliance on the
judgment of the Hon'ble Supreme Court in the case of
Sardar Harcharan Singh Brar vs. Sukh Darshan
Singh and Others reported in (2004) 11 SCC 196.
It is further contended by the learned Senior counsel
that, non-compliance with the affidavit requirement
- 24 -
under Section 83(1) of the Act, does not justify
dismissal under Section 86(1) of the Act. It is also
contended by the learned Senior Counsel appearing
for the petitioner that, the Election Petition has to be
read as whole and cannot be dissected in piecemeal to
determine the cause of action and as such, by
referring to the judgment in the case of Kimneo
Haokip Hangshing vs. Kenn Raikhan and Others
reported in 2024 INSC 689, it is argued that,
Election Petition should not be rejected at the very
threshold where there is a substantial compliance of
the provisions. Hence, the learned Senior Counsel
appearing for the petitioner submitted that, this Court
has to see whether the pleadings in the petition
constitute a cause of action and cannot comes to the
conclusion that, a roving enquiry is not required inter-
alia, dismiss the petition at the threshold.
13.5 Referring to the judgment of the Hon'ble
Supreme Court in the case of G.M. Siddeshwar vs.
- 25 -
Prasanna Kumar, reported in (2013) 4 SCC 776,
learned Senior Counsel appearing for the petitioner
submitted that, the language contained under Section
83(1)(C) of the Act requires the verification as per the
provisions under CPC and the said affidavit alone shall
stand and such affidavit cannot be considered as
incomplete. He also refers to paragraph 25 in the
above judgment and contended that the Act does not
require a verification of the pleadings in the Election
Petition and same do not find place in Section
83(1)(C) of the Act. Referring to the judgment of the
Hon'ble Supreme Court in the case of A. Manju vs.
Prajwal Revanna @ Prajawal R. and Others
reported in (2022)3 SCC 269, learned Senior
Counsel appearing for the petitioner contended that, it
is too early to adjudicate the petition insofar as defect
in the affidavit and therefore, contended that, the
applications deserve to be dismissed. Referring to the
judgment of the Hon'ble Supreme Court in the case of
- 26 -
Madiraju Venkata Ramana Raju vs.
Peddireddigari Ramachandra Reddy and Others
reported in (2018) 14 SCC 1, learned Senior Counsel
appearing for the petitioner submitted that the cause
of action embodies a bundle of facts and the petitioner
has produced ample material facts for challenging the
Election proceedings and triable issues are required to
be framed by this Court for final adjudication and
therefore, it is too early to consider the allegation
made by the learned counsel for the respondent and
accordingly, sought for dismissal of the applications. It
is also argued that, this Court has to see the
averments in the petition alone while considering the
application for rejection of petition and further
submitted that, there is no merit in IA No.2 of 2024
and IA No.3 of 2024 and accordingly, sought for
dismissal of the applications.
CONTENTIONS OF THE LEARNED COUNSEL FOR
THE RESPONDENT:
- 27 -
14. Sri. Venkatesh P. Dalawai, learned counsel
appearing for the respondent- Returned Candidate
reiterates the averments made in the written
statement and applications in IA No.2 of 2024 and IA
No.3 of 2024. It is submitted by the learned counsel
appearing for the respondent that, though the defects
in the Election Petition, have been pointed out by the
respondent herein, however, same has not been
considered and complied with by the petitioner and no
leverage can be extended to rectify the defects by the
petitioner. It is contended that the petitioner has not
attested some of the Annexures in the petition as
required under Section 81(3) of the Act, and
signatures appended in some of the Annexures are
different and no explanation is forthcoming in the
objections filed to the applications. It is the principal
submission of the learned counsel appearing for the
respondent that, the affidavit dated 19.07.2024 is
different from affidavit filed subsequent to allow the
- 28 -
amendment application. It is also contended by the
learned counsel appearing for the respondent that, the
verifying affidavit was sworn to before the competent
notary with ante dated as if it was sworn to by the
petitioner on 19.07.2024 and this aspect was not
disputed by the petitioner in statement of objections
to IA No.2 of 2024 and IA No.3 of 2024 and therefore,
contended that the petitioner is misleading the Court
by comparing the verifying affidavit with FORM 25
Affidavit. It is contended by the learned counsel
appearing for the respondent that, the procedure for
the Election Petition requires certain things to be done
as per the provisions under the Act, compared to any
other petitions and further, though the requirement of
the compliance has been pointed out, the petitioner
has ignored the same and therefore, in terms of the
judgment of the Hon'ble Supreme Court in the case of
C.P.John vs. Babu M. Palissery and Others
reported in (2014) 10 SCC 547, Sri. Venkatesh P.
- 29 -
Dalawai, learned counsel appearing for the respondent
argued that, the Election Petition deserves to be
rejected at the threshold. He also submitted that, the
prescribed proper procedure for filing of the petition is
as per the Rules and same will have to be done in that
manner only and same cannot be considered as hyper
technical in nature since the intention of the Act and
Rules is to fix the responsibility of the person, who
files the petition and accordingly, sought for
interference of this court to dismiss the petition.
Referring to the provisions under Section 83(1) (C)
and (2) of the Act, Sri. Venkatesh P. Dalawai, learned
counsel appearing for the respondent argued that
every document or Annexure filed with the Election
Petition mandatorily requires the verification as per
the provisions under the Act, as well as Order VI Rule
15 of CPC. These provisions are mandatory in nature
and without complying with the aforementioned
- 30 -
statutory obligations, the Election Petition is liable to
be dismissed.
14.1 Nextly, learned counsel appearing for the
respondent made submission on the compliance of
FORM 26 Affidavit by the respondent at the time of
filing of nomination papers. Referring to the petition
averments particularly, paragraphs 15 to 19 and 41 to
49 are not part of FORM 26 Affidavit. In these
paragraphs, no allegation has been made with regard
to "Corrupt practice" in the Electioneering process. If
the said aspect is accepted, then that paragraphs at
15 to 19 and 41 to 49 have to be struck off from the
pleadings then the Election Petition become
incomplete even for issuance of summons by this
Court. Referring to page No.29 of respondent copy,
which has been served to the respondent and page
No.180 of the Court Copy referring to office objection
No.3, it is contended that only the affidavit filed under
Rule 94-A of the Rules is enclosed and no verifying
- 31 -
affidavit has been filed by the petitioner and
accordingly submitted that same contravenes Section
81(3) of the Act and as such sought for dismissal of
the Election Petition.
14.2 Sri. Venkatesh P. Dalawai, learned counsel
for the respondent submitted that the Election Petition
does not disclose cause of action and no material facts
are produced in the Election Petition. Referring to the
averments in the Election Petition, it is submitted that
there is no suppression of material facts in the FORM
26 Affidavit and as such referred to paragraph No.21
of the Election Petition as well as the provisions
contained under Section 33-A(1) of the Act, learned
counsel appearing for the respondent contended that
the petitioner has not furnished any particulars as
required under Section 33-A of the Act and if such an
offence is punishable with two or more years of
imprisonment and if cognizance is taken and charge is
framed thereunder and in the absence of these
- 32 -
material facts, the Election Petition requires to be
dismissed and same has to be construed as abuse of
process of law by the petitioner. Inviting the attention
of the Court to the chart, referring to the cases,
Sri.Venkatesh P. Dalawai, learned counsel for the
respondent submitted that Sl.Nos.1 to 3 are pertaining
to same case which came to be dismissed on
17.03.2021 and no charge has been framed against
the respondent. Sl.No.4 is pertaining to defamation
case filed by one Roshan Baig, in which no cognizance
has been taken by the competent court and no charge
has been framed. Insofar as the cases referred to at
Sl.Nos.5 to 7, it is contended by the learned counsel
for the respondent that these are the attachment
proceedings which are not criminal in nature though
arising out of the provisions of PML Act and the orders
were passed in favour of the respondent by the
Appellate Authority, and as such refutes the
- 33 -
contentions of the learned Senior Counsel for the
petitioner.
14.3 Nextly, it is contended by the learned
counsel for the respondent that, MSA No.112/2018
was filed by the Enforcement Directorate, which are
pending consideration before the competent court and
are not in the nature of criminal proceedings. Insofar
as the loan particulars furnished by the respondent is
concerned, it is contended by the learned counsel for
the respondent that nothing has been stated in the
Election Petition by the petitioner pointing out the
absence of material particulars and therefore,
submitted that the Election Petition is devoid of merits
and as such, sought for rejection of the same.
14.4 It is also contended by the learned counsel
for the respondent that the respondent has been
elected with a margin of more than 1.5 lakhs votes in
the General Election and as the Election Petition lacks
details of the petitioner and his background and has
- 34 -
been set up by certain inimical persons and further
the present petition has been filed to harass the
respondent and accordingly, sought for dismissal of
the Election Petition at the threshold on the ground of
lack of material facts.
14.5 Referring to the judgment dated 10.01.2024
of this Court in WP No.107291/2023, it is argued by
Sri. Venkatesh P. Dalawai that the issue involved in
the said writ petition was with regard to the provisions
contained under the Gram Panchayat Act and Section
33-A of the Act has not been dealt in the said
judgment and therefore, same is not applicable to the
facts of this case.
14.6 Nextly, Sri. Venkatesh P. Dalawai, learned
counsel for the respondent referred to the verification
paragraph at page 26 of the Election Petition and
submitted that, the verification paragraph do not
contain the date and place on which the Election
Petition has been filed by the petitioner which is
- 35 -
mandatorily required as per Order VI Rule 15 of CPC
and therefore, it is contended that, the petition
deserves to be dismissed.
14.7 It is also submitted by the learned counsel
for the respondent that, in the verifying affidavit at
page 27, the Annexures at A, B-1, M1 to M7 were
included and same has not been incorporated in the
copy of the respondent and therefore, it is contended
that, the petition requires to be dismissed for non-
compliance of Section 100 of the Act. To buttress his
arguments, learned counsel for the respondent places
reliance on the judgment of the Hon'ble Supreme
Court in the case of Krishnamoorthy (supra) and in
the case of Dhartipakar Madan Lal Agarwal vs.
Rajiv Gandhi reported in 1987 Supp.SCC 93.
Referring to the judgment of the Hon'ble Supreme
Court in the case of C.P. Jonh vs. Babu M.
Pallissery and Others reported in (2014) 10 SCC
547, particularly, referring to paragraphs 18 and 38,
- 36 -
it is contended by the learned counsel for the
respondent that, as the petitioner has failed to remove
the defect in the Election Petition despite the
opportunity has been extended to him and therefore,
the petition requires to be dismissed.
14.8 Learned counsel for the respondent places
reliance on the judgment of the Hon'ble Supreme
Court in the case of Karim Uddin Barbhuiya vs.
Aminul Haque Laskar and Others reported in 2024
SCC Online SC 509 and argued with reference to
compliance of Section 100(1) (d) (i) of the Act, that, it
is not open for the Petitioner to state at the later
stage as to how "Corrupt Practice" has materially
affected the result of the election. It is the duty of the
petitioner to produce cogent material as to how the
Nomination Form of respondent herein contained
irrelevant material, so also, suppression of materials
by the Returned Candidate. Referring to the judgment
of the Hon'ble Supreme Court in the case of
- 37 -
Kanimozhi Karunanidhi vs. A. Santhana Kumar
and Others reported in 2023 SCC Online SC 573,
at paragraphs 27 and 32, it is argued that, the
Election Petition deserves to be dismissed summarily
on the omission of a single material fact leading to an
incomplete cause of action and therefore, it is
submitted that, IA No.2 of 2024 and IA No.3 of 2024
have to be allowed. He further contended that, though
the learned Senior counsel appearing for the petitioner
submitted that substantial compliance has been made
to cure the defects in the Election Petition and the said
submission cannot be accepted on the sole ground
that, the statutory requirement under the Act has to
be scrupulously followed and complied with to remove
the entire defect as required under Section 100 of the
Act, where the legality of the election of the Return
Candidate is challenged and any result in the petition
would affect the democratic process and therefore, it
is argued that, the petitioner be cautious before filing
- 38 -
the Election Petition and as such, sought for dismissal
of the Election Petition.
ANALYSIS:
15. In the light of the submission made by the
learned counsel for the parties, I have carefully
examined the pleadings on record and the rival
submission made by the learned counsels for the
parties confining to IA No.2 of 2024 and IA No.3 of
2024.
16. IA No.2 of 2024 has been filed by the
respondent, seeking rejection of the petition for non-
compliance of Section 81(3) of the Act referring to
original petition filed before this Court with the copy of
the petition sent to the respondent through summons,
where a defective copy has been served to the
respondent. This court vide order dated 25.09.2024
pursuant to the memo dated 24.09.2024 filed by the
respondent, copy of the Election Petition along with
- 39 -
the summons received by the respondent was kept in
safe custody. These documents were also perused at
the time of arguments.
17. Insofar as submission made by the learned
counsel appearing for the parties on IA No.3 of 2024
filed by the respondent seeking dismissal of the
Election Petition for not complying with the
requirement of Section 83(1)(a)(b)(c) as well as
proviso to Section 83(1) and (2) and Section 81(3) of
the Act, I find that it is expedient to consider the
applications on merits.
18. The learned counsel appearing for the
respondent has contended that the petition is devoid
of merits on the ground of lack of cause of action and
learned Senior Counsel appearing for the petitioner
replied that the essential facts have been narrated and
same is required to be proved during the trial. In this
backdrop of the matter, the following points have to
be answered on these applications:
- 40 -
(1) Whether the averments made in the
Election Petition lacks material facts and do
not disclose the cause of action?
(2) Whether the grounds urged by the
respondent in IA No.2 of 2024 and IA No.3 of
2024 are just and proper, to reject Election
petition?
(3) What order ?
19. Having heard the learned counsel appearing for
the parties, it is well established principle in law that,
while considering the application under Order VII Rule
11 of the Civil Procedure Code, it is the duty of the
Court to look into the averments made in the
plaint/petition alone and documents produced along
with the plaint/petition. The plaintiff/petitioner must
make out a case for conducting trial/enquiry, inter-alia
demonstrates that, triable issues are involved in the
suit/petition and further the Court should not be
- 41 -
misguided with the defence taken in the written
statement. The petition/plaint could be rejected, if the
allegations made in the petition/plaint, are bald and
does not disclose the cause of action. It is also
pertinent to mention here that while considering such
application, the Court has to apply its mind as to
grounds urged by the respondent/defendant in the
application, comes within the parameters of Order VII
Rule 11 of the Code of Civil Procedure. The entire
averments in the plaint/petition has to be read in
whole as to satisfy the ingredients contemplated under
Order VII Rule 11 of the Code of Civil Procedure. At
this juncture, it is also to be noted that, if the petition
averments lacks cause of action or there is a patent
error to exercise the jurisdiction by the competent
Court, such application has to be accepted to save the
judicial time and not to allow the petitioner/plaintiff to
proceed in the matter further as the same will cause
hardship/injury to the defendant/respondent. Hence, it
- 42 -
is relevant to follow the following law declared by the
Hon'ble Apex Court in relation to considering the
application filed under Order VII Rule 11 of the Civil
Procedure Code, in respect of Election Petition.
20. Recently, the Hon'ble Supreme Court in the
case of Correspondence, RBANMS Educational
Institution vs. B. Gunashekar and Another
reported in 2025 SCC Online SC 793 at Paragraphs
14 and 15 held as follows:
"14. Let us first examine the scope and purpose of
Order VII Rule 11 CPC. This Court
in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) dead
through legal representatives, explained in detail the
applicable law for deciding the application for rejection of
the plaint. The relevant paragraphs of the said decision
are reproduced below:
"23.1 ...
23.2. The remedy under Order VII Rule 11 is an
independent and special remedy, wherein the Court is
empowered to summarily dismiss a suit at the
threshold, without proceeding to record evidence, and
conducting a trial, on the basis of the evidence
adduced, if it is satisfied that the action should be
terminated on any of the grounds contained in this
provision.
23.3. The underlying object of Order VII Rule 11 (a) is
that if in a suit, no cause of action is disclosed, or the
suit is barred by limitation under Rule 11 (d), the
Court would not permit the plaintiff to unnecessarily
protract the proceedings in the suit. In such a case, it
- 43 -
would be necessary to put an end to the sham
litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi13 this Court
held that the whole purpose of conferment of powers
under this provision is to ensure that a litigation which
is meaningless, and bound to prove abortive, should
not be permitted to waste judicial time of the court, in
the following words : (SCC p.324, para 12)
"12. ...The whole purpose of conferment of such power
is to ensure that a litigation which is meaningless, and
bound to prove abortive should not be permitted to
occupy the time of the Court, and exercise the mind of
the respondent. The sword of Damocles need not be
kept hanging over his head unnecessarily without
point or purpose. Even in an ordinary civil litigation,
the Court readily exercises the power to reject a
plaint, if it does not disclose any cause of action."
23.5. The power conferred on the court to terminate a
civil action is, however, a drastic one, and the
conditions enumerated in Order VII Rule 11 are
required to be strictly adhered to.
23.6. Under Order VII Rule 11, a duty is cast on the
Court to determine whether the plaint discloses a
cause of action by scrutinizing the averments in the
plaint14 read in conjunction with the documents relied
upon, or whether the suit is barred by any law.
23.7. Order VII Rule 14(1) provides for production of
documents, on which the plaintiff places reliance in his
suit, which reads as under:
"14. Production of document on which plaintiff sues or
relies.-(1) Where a plaintiff sues upon a document or
relies upon document in his possession or power in
support of his claim, he shall enter such documents in
a list, and shall produce it in Court when the plaint is
presented by him and shall, at the same time deliver
the document and a copy thereof, to be filed with the
plaint.
(2) Where any such document is not in the possession
or power of the plaintiff, he shall, wherever possible,
state in whose possession or power it is.
- 44 -
(3) A document which ought to be produced in Court
by the plaintiff when the plaint is presented, or to be
entered in the list to be added or annexed to the
plaint but is not produced or entered accordingly, shall
not, without the leave of the Court, be received in
evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document
produced for the cross examination of the plaintiff's
witnesses, or, handed over to a witness merely to
refresh his memory."
(emphasis supplied)
23.8. Having regard to Order VII Rule 14 CPC, the
documents filed alongwith the plaint, are required to
be taken into consideration for deciding the
application under Order VII Rule 11(a). When a
document referred to in the plaint, forms the basis of
the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the
Court would determine if the assertions made in the
plaint are contrary to statutory law, or judicial dicta,
for deciding whether a case for rejecting the plaint at
the threshold is made out.
23.10. At this stage, the pleas taken by the defendant
in the written statement and application for rejection
of the plaint on the merits, would be irrelevant, and
cannot be adverted to, or taken into consideration15.
23.11. The test for exercising the power under Order
VII Rule 11 is that if the averments made in the plaint
are taken in entirety, in conjunction with the
documents relied upon, would the same result in a
decree being passed. This test was laid down
in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea
Success I which reads as : (SCC p.562, para 139)
"139. Whether a plaint discloses a cause of action or
not is essentially a question of fact. But whether it
does or does not must be found out from reading the
plaint itself. For the said purpose, the averments
made in the plaint in their entirety must be held to be
correct. The test is as to whether if the averments
made in the plaint are taken to be correct in their
entirety, a decree would be passed."
- 45 -
23.12. In Hardesh Ores (P.) Ltd. v. Hede & Co.16 the
Court further held that it is not permissible to cull out
a sentence or a passage, and to read it in isolation. It
is the substance, and not merely the form, which has
to be looked into. The plaint has to be construed as it
stands, without addition or subtraction of words. If the
allegations in the plaint prima facie show a cause of
action, the court cannot embark upon an enquiry
whether the allegations are true in fact. D.
Ramachandran v. R.V. Janakiraman.
23.13. If on a meaningful reading of the plaint, it is
found that the suit is manifestly vexatious and without
any merit, and does not disclose a right to sue, the
court would be justified in exercising the power under
Order VII Rule 11 CPC.
23.14. The power under Order VII Rule 11 CPC may
be exercised by the Court at any stage of the suit,
either before registering the plaint, or after issuing
summons to the defendant, or before conclusion of
the trial, as held by this Court in the judgment
of Saleem Bhai v. State of Maharashtra18. The plea
that once issues are framed, the matter must
necessarily go to trial was repelled by this Court
in Azhar Hussain (supra).
23.15. The provision of Order VII Rule 11 is
mandatory in nature. It states that the plaint "shall"
be rejected if any of the grounds specified in clause
(a) to (e) are made out. If the Court finds that the
plaint does not disclose a cause of action, or that the
suit is barred by any law, the Court has no option, but
to reject the plaint.
24. "Cause of action" means every fact which would
be necessary for the plaintiff to prove, if traversed, in
order to support his right to judgment. It consists of a
bundle of material facts, which are necessary for the
plaintiff to prove in order to entitle him to the reliefs
claimed in the suit.
24.1. In Swamy Atmanand v. Sri Ramakrishna
Tapovanam19 this Court held:
"24. A cause of action, thus, means every fact, which
if traversed, it would be necessary for the plaintiff to
prove an order to support his right to a judgment of
the court. In other words, it is a bundle of facts, which
- 46 -
taken with the law applicable to them gives the
plaintiff a right to relief against the defendant. It must
include some act done by the defendant since in the
absence of such an act, no cause of action can
possibly accrue. It is not limited to the actual
infringement of the right sued on but includes all the
material facts on which it is founded"
(emphasis supplied)
24.2. In T. Arivandandam v. T.V. Satyapal20 this
Court held that while considering an application under
Order VII Rule 11 CPC what is required to be decided
is whether the plaint discloses a real cause of action,
or something purely illusory, in the following words :
(SCC p. 470, para 5)
"5. ...The learned Munsif must remember that if on a
meaningful - not formal - reading of the plaint it is
manifestly vexatious, and meritless, in the sense of
not disclosing a clear right to sue, he should exercise
his power under Order VII, Rule 11 CPC taking care to
see that the ground mentioned therein is fulfilled.
And, if clever drafting has created the illusion of a
cause of action, nip it in the bud at the first hearing
..."
(emphasis supplied)
24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery
Appellate Tribunal21 this Court held that law cannot
permit clever drafting which creates illusions of a
cause of action. What is required is that a clear right
must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it
has created the illusion of a cause of action, this Court
in Madanuri Sri Ramachandra Murthy v. Syed
Jalal22 held that it should be nipped in the bud, so
that bogus litigation will end at the earliest stage. The
Court must be vigilant against any camouflage or
suppression, and determine whether the litigation is
utterly vexatious, and an abuse of the process of the
court.
.....
28. A three-Judge Bench of this Court in State of
Punjab v. Gurdev Singh23 held that the Court must
examine the plaint and determine when the right to
sue first accrued to the plaintiff, and whether on the
assumed facts, the plaint is within time. The words
- 47 -
"right to sue" means the right to seek relief by means
of legal proceedings. The right to sue accrues only
when the cause of action arises. The suit must be
instituted when the right asserted in the suit is
infringed, or when there is a clear and unequivocal
threat to infringe such right by the defendant against
whom the suit is instituted. Order VII Rule 11(d)
provides that where a suit appears from the
averments in the plaint to be barred by any law, the
plaint shall be rejected."
14.1. Thus, it is clear that the above provision viz.,
Order VII Rule 11 CPC serves as a crucial filter in civil
litigation, enabling courts to terminate proceedings at the
threshold where the plaintiff's case, even if accepted in its
entirety, fails to disclose any cause of action or is barred
by law, either express or by implication. The scope of
Order VII Rule 11 CPC and the authority of the courts is
well settled in law. There is a bounden duty on the Court
to discern and identify fictitious suit, which on the face of
it would be barred, but for the clever pleadings disclosing
a cause of action, that is surreal. Generally, sub-clauses
(a) and (d) are stand alone grounds, that can be raised
by the defendant in a suit. However, it cannot be ruled
out that under certain circumstances, clauses (a) and (d)
can be mutually inclusive. For instances, when clever
drafting veils the implied bar to disclose the cause of
action; it then becomes the duty of the Court to lift the
veil and expose the bar to reject the suit at the threshold.
The power to reject a plaint under this provision is not
merely procedural but substantive, aimed at preventing
abuse of the judicial process and ensuring that court time
is not wasted on fictitious claims failing to disclose any
cause of action to sustain the suit or barred by law.
Therefore, the appeal before us requires careful
consideration of the scope of rejection of the plaint under
Order VII Rule 11 CPC, particularly, in the context of the
suit filed based on an agreement to sell against third
parties in possession.
15. Order VII Rule 11(a) CPC mandates rejection of the
plaint where it does not disclose a cause of action. In Om
Prakash Srivastava v. Union of India24, this Court pointed
out that cause of action means every fact which, if
traversed, would be necessary for the plaintiff to prove in
order to support their right to judgment. It consists of
bundle of facts which narrate the circumstances and the
reasons for filing such suit. It is the foundation on which
the entire suit would rest. Therefore, it goes without
- 48 -
saying that merely including a paragraph on cause of
action is not sufficient but rather, on a meaningful reading
of the plaint and the documents, it must disclose a cause
of action. The plaint should contain such cause of action
that discloses all the necessary facts required in law to
sustain the suit and not mere statements of fact which fail
to disclose a legal right of the plaintiff to sue and breach
or violation by the defendant(s). It is pertinent to note
here that even if a right is found, unless there is a
violation or breach of that right by the defendant, the
cause of action should be deemed to be unreal. "
19. The Hon'ble Supreme Court in the case of
Harcharan Singh Josh vs. Hari Kishan reported in
(1997) 10 SCC 294, at paragraphs 1 and 2 held as
follows:
"1. This appeal arises against the order of the Delhi High
Court made on 26-5-1995 in Election Petition No. 6 of
1994. The appellant is an unsuccessful candidate in
respect of one of the Assembly Constituencies known as
No. 64, Sadar Bazar, to the National Capital Territory of
Delhi Assembly. The elections were held on 6-11-1993.
The respondent secured 27,126 votes while the appellant
secured 25,786 votes. The latter filed an election petition
on diverse grounds including corrupt practices under
Section 123 of the Representation of the People Act,
1951. The High Court dismissed his election petition
under Section 86 of the Act on its findings on four issues
framed in that case. While upholding the findings in
favour of the appellant on Issues 1 to 3, it held that the
requisite number of true copies of the election petition
were not supplied to the respondent in compliance with
Section 81(3) of the Act. Reasons in support thereof are
some grave mistakes including omission to supply full text
of page No. 18 of the election petition. Another contention
raised by the respondent was that the affidavit is not a
true copy of the affidavit which was filed in the court
along with the election petition. Though it was rejected by
the High Court as one of the grounds against the rejection
of the election petition, the respondent has filed cross-
objections.
- 49 -
2. It is not necessary for us to go into the grounds on
which the election petition was dismissed by the High
Court. Suffice it to state that the objections raised by the
respondent regarding non-supply of the true copy of the
affidavit is a formidable objection which merits
acceptance in view of the recent judgment of this Court
in Shipra (Dr) v. Shanti Lal Khoiwal . Therein the copy of
the affidavit supplied to the respondent was not attested
by the Oath Commissioner. This Court, after considering
the entire case-law, held that the affirmation before the
prescribed authority in the affidavit and the supply of its
true copy is mandatory so that the returned candidate
would not be misled in his understanding that imputation
of the corrupt practices were solemnly affirmed and duly
verified before the prescribed authority. For that purpose,
Form 25 prescribed by Section 83 requires verification
before the prescribed authority. The concept of
substantial compliance has no application in such a case.
It is seen that the copy of the affidavit supplied to the
respondent does not contain the affirmation by the Oath
Commissioner. Under these circumstances, the defect is
not a curable defect. Therefore, the dismissal of the
election petition on this ground is sustainable in law."
20. The Hon'ble Supreme Court in the case of
Kanimozhi Karunanidhi (supra) reported in 2023
SCC Online SC 573, at paragraphs 11 to 15 and 18
to 28 held that,
"11. So far as the R.P Act, 1951, is concerned, its object
as is reflected in its short title is to provide for the
conduct of elections of the Houses of Parliament and to
the House or Houses of the legislature of each State, the
qualifications and the disqualifications for membership of
those Houses, the corrupt practices and other offences at
or in connection with such elections and the decision of
doubts and disputes arising out of or in connection with
such elections. Part-VI of the R.P. Act, 1951 deals with
the disputes regarding Elections, and Chapter II thereof
deals with the presentation of the Election petitions to the
High Court. Section 80 thereof states that no election
shall be called in question except by an election petition
presented in accordance with the provisions of Part-VI.
- 50 -
12. Section 80A confers jurisdiction on the High Court to
try election petitions. Section 81 deals with the
presentation of petitions which reads as under:
"Section 81. Presentation of Petitions- (1) An election
petition calling in question any election may be
presented on one or more of the grounds specified in
[sub-section (1)] of Section 100 and Section 101 to
the High Court by any candidate at such election or
any elector [within forty-five days from, but not
earlier than the date of election of the returned
candidate or if there are more than one returned
candidate at the election and dates of their election
are different, the later of those two dates].
Explanation. --In this sub-section, "elector" means a
person who was entitled to vote at the election to
which the election petition relates, whether he has
voted at such election or not.
(2) [***]
[(3) Every election petition shall be accompanied by
as many copies thereof as there are respondents
mentioned in the petition and every such copy shall be
attested by the petitioner under his own signature to
be a true copy of the petition.]
13. Section 82 mandates as to who shall be the parties to
the Election petition. Section 83 pertains to the contents
of the petition, which 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 Civil Procedure Code, 1908 (5
of 1908) for the verification of pleadings:
- 51 -
[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.]
14. As per Section 86, the High Court is empowered to
dismiss an election petition which does not comply with
the provisions of Section 81 or Section 82 or Section 117.
Section 87 deals with the procedure to be followed by the
High Court which reads as under:
"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
Civil Procedure Code, 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."
15. The grounds on which the High Court could
declare the election of the returned candidate to be
void are enumerated in Section 100 which reads as
under:--
100. Grounds for declaring election to be void. - (1)
Subject to the provisions of sub-section (2) if the High
Court is of opinion-
(a) --
- 52 -
(b) --
(c) --
(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected-
(i) --
(ii) --
(iii) --
(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."
***
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
- 53 -
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 Reform, 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 on the powers of 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.
- 54 -
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 or re-
election. In a 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
- 55 -
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
- 56 -
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 the case of Mahadeorao Sukaji Shivankar vs.
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 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.
- 57 -
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 the case of Anil Vasudev Salgaonkar vs. 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
Act. Paragraphs 50 to 58 reads as under:
"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
- 58 -
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. In L.R.
Shivaramagowda v. 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
a discretion to allow the petitioner to supply the
required particulars even after the expiry of
limitation."
- 59 -
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. 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
- 60 -
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.
- 61 -
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 the case of 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 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 insofar 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 paragraphs 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;
- 62 -
(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
- 63 -
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
- 64 -
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
- 65 -
(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.
- 66 -
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."
23. It is also relevant to cite the judgment of
the Hon'ble Supreme Court in Karim Uddin
Barbhuiya vs. Aminul Haque Laskar and Others
reported in 2024 SCC Online SC 509 at paragraphs
12 to 16 and 19 to 24 it is held that,
"12. At the outset, it may be noted that as per the
well settled legal position, right to contest election or to
question the election by means of an Election Petition is
neither common law nor fundamental right. It is a
statutory right governed by the statutory provisions of
the RP Act. Outside the statutory provisions, there is no
right to dispute an election. The RP Act is a complete and
self-contained code within which any rights claimed in
relation to an election or an election dispute must be
found. The provisions of Civil Procedure Code are
applicable to the extent as permissible under Section 87
of the RP Act.
- 67 -
13. It hardly needs to be reiterated that in an Election
Petition, pleadings have to be precise, specific and
unambiguous, and if the Election Petition does not
disclose a cause of action, it is liable to be dismissed in
limine. It may also be noted that the cause of action in
questioning the validity of election must relate to the
grounds specified in Section 100 of the RP Act. As held in
Bhagwati Prasad Dixit 'Ghorewala' v. Rajeev Gandhi and
in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, if the
allegations contained in the petition do not set out the
grounds as contemplated by Section 100 and do not
conform to the requirement of Section 81 and 83 of the
Act, the pleadings are liable to be struck off and the
Election Petition is liable to be rejected under Order VII,
Rule 11 CPC.
14. A beneficial reference of the decision in case of Laxmi
Narayan Nayak v. Ramratan Chaturvedi be also made,
wherein this Court upon review of the earlier decisions,
laid down following principles applicable to election cases
involving corrupt practices:--
"5. This Court in a catena of decisions has laid down
the principles as to the nature of pleadings in election
cases, the sum and substance of which being:
(1) The pleadings of the election petitioner in his
petition should be absolutely precise and clear
containing all necessary details and particulars as
required by law vide Dhartipakar Madan Lal Agarwal v.
Rajiv Gandhi [1987 Supp SCC 93] and Kona
Prabhakara Rao v. M. Seshagiri Rao [(1982) 1 SCC
442].
(2) The allegations in the election petition should not
be vague, general in nature or lacking of materials or
frivolous or vexatious because the court is empowered
at any stage of the proceedings to strike down or
delete pleadings which are suffering from such vices
as not raising any triable issue vide Manphul Singh v.
Surinder Singh [(1973) 2 SCC 599 : (1974) 1 SCR
52], Kona Prabhakara Rao v. M. Seshagiri Rao [(1982)
1 SCC 442] and Dhartipakar Madan Lal Agarwal v.
Rajiv Gandhi [1987 Supp SCC 93].
(3) The evidence adduced in support of the pleadings
should be of such nature leading to an irresistible
conclusion or unimpeachable result that the
- 68 -
allegations made, have been committed rendering the
election void under Section 100 vide Jumuna Prasad
Mukhariya v. Lachhi Ram [(1954) 2 SCC 306 : (1955)
1 SCR 608 : AIR 1954 SC 686] and Rahim Khan v.
Khurshid Ahmed [(1974) 2 SCC 660].
(4) The evidence produced before the court in support
of the pleadings must be clear, cogent, satisfactory,
credible and positive and also should stand the test of
strict and scrupulous scrutiny vide Ram Sharan Yadav
v. Thakur Muneshwar Nath Singh [(1984) 4 SCC 649].
(5) It is unsafe in an election case to accept oral
evidence at its face value without looking for
assurances for some surer circumstances or
unimpeachable documents vide Rahim Khan v.
Khurshid Ahmed [(1974) 2 SCC 660], M. Narayana
Rao v. G. Venkata Reddy [(1977) 1 SCC 771 : (1977)
1 SCR 490], Lakshmi Raman Acharya v. Chandan
Singh [(1977) 1 SCC 423 : (1977) 2 SCR 412] and
Ramji Prasad Singh v. Ram Bilas Jha [(1977) 1 SCC
260]."
(6) The onus of proof of the allegations made in the
election petition is undoubtedly on the person who
assails an election which has been concluded vide
Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660],
Mohan Singh v. Bhanwarlal [(1964) 5 SCR 12 : AIR
1964 SC 1366] and Ramji Prasad Singh v. Ram Bilas
Jha [(1977) 1 SCC 260]."
15. The legal position with regard to the non-compliance
of the requirement of Section 83(1)(a) of the RP Act and
the rejection of Election Petition under Order VII Rule 11,
CPC has also been regurgitated recently by this Court in
case of Kanimozhi Karunanidhi v. A. Santhana Kumar
(supra):--
"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.
- 69 -
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."
16. Bearing in mind the aforestated legal position, let us
consider the averments and allegations made by the
respondent no. 1 in the Election Petition in which the
election of the Appellant is sought to be challenged
basically on two grounds : (1) that the appellant has
committed corrupt practice and (2) the result of the
election in so far as it concerned the appellant, was
materially affected by the improper acceptance of his
nomination. In short, the respondent no. 1 has invoked
Section 100(1)(b) and Section 100(1)(d)(i) of the Act, for
declaring the election of the Appellant as void.
- 70 -
***
19. Now, from the bare reading of the Election petition, it
emerges that the respondent no. 1 has made only bald
and vague allegations in the Election Petition without
stating the material facts in support thereof as required to
be stated under Section 83(1)(a) of the RP Act. Apart
from the fact that none of the allegations with regard to
the false statements, and suppression and
misrepresentation of facts allegedly made by the
respondent no. 1 with regard to his educational
qualification or with regard to his liability in respect of the
loan availed by him for his partnership firm or with regard
to his default in depositing the employer's contribution to
provident fund, would fall within the definition of "Corrupt
practice" of "undue influence" as envisaged in Section
123(2) of the RP Act, the Election petition also lacks
concise statement of "material facts" as contemplated in
Section 83(a), and lacks "full particulars" of the alleged
Corrupt practice as contemplated in Section 83(b) of the
RP Act.
20. So far as the allegations of "Corrupt practice" are
concerned, the respondent no. 1 was required to make
concise statement of material facts as to how the
appellant had indulged into "Corrupt practice" of undue
influence by directly or indirectly interfering or attempted
to interfere with the free exercise of any electoral right.
Mere bald and vague allegations without any basis would
not be sufficient compliance of the requirement of making
a concise statement of the "material facts" in the Election
Petition. The material facts which are primary and basic
facts have to be pleaded in support of the case set up by
the Election petitioner to show his cause of action. Any
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) of CPC read with Section 83(1)(a) of
the RP Act. The said legal position has been well settled
by this Court in Azhar Hussain v. Rajiv Gandhi, wherein
this Court after referring to the earlier pronouncements in
Samant N. Balkrishna v. George Fernandez and Shri
Udhav Singh v. Madhav Rao Scindia, 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.
It was further 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
- 71 -
83(1)(a) of the Act and an Election petition can be and
must be dismissed, if it suffers from any such vice.
21. It is also pertinent to note at this juncture that a
charge of "Corrupt practice" is easy to level but difficult to
prove because it is in the nature of criminal charge and
has got to be proved beyond doubt. The standard of proof
required for establishing a charge of "Corrupt practice" is
the same as is applicable to a criminal charge. Therefore,
Section 83(1)(b) mandates that when the allegation of
"Corrupt practice" is made, the Election Petition shall set
forth full particulars of the corrupt practice that the
Election Petitioner alleges, including as full a statement as
possible of the names of parties alleged to have
committed such corrupt practice and the date and place
of the commission of each such practice. The pleadings
with regard to the allegation of corrupt practice have to
be precise, specific and unambiguous whether it is bribery
or undue influence or other corrupt practices as stated in
Section 123 of the Act. If it is corrupt practice in the
nature of undue influence, the pleadings must state the
full particulars with regard to the direct or indirect
interference or attempt to interfere by the candidate, with
the free exercise of any electoral right as stated in
Section 123(2) of the Act. We are afraid, Mr. Gupta has
failed to point out from the pleadings of the Election
petition as to how the appellant had interfered or
attempted to interfere with the free exercise of any
electoral right so as to constitute "undue influence" under
Section 123(2) of the Act.
22. So far as the ground contained in clause (d) of
Section 100(1) of the Act, with regard to improper
acceptance of the nomination of the Appellant is
concerned, there is not a single averment made in the
Election Petition as to how the result of the election, in so
far as the appellant was concerned, was materially
affected by improper acceptance of his nomination, so as
to constitute a cause of action under Section 100(1)(d)(i)
of the Act. Though it is true that the Election Petitioner is
not required to state as to how corrupt practice had
materially affected the result of the election, nonetheless
it is mandatory to state when the clause (d)(i) of Section
100(1) is invoked as to how the result of election was
materially affected by improper acceptance of the
nomination form of the Appellant.
23. As transpiring from the Election Petition, the
respondent no. 1 himself had not raised any objection in
- 72 -
writing against the nomination filed by the Appellant, at
the time of scrutiny made by the Returning Officer under
Section 36 of the Act. According to him, he had raised
oral objection with regard to the education qualification
stated by the Appellant in the Affidavit in Form-26. If he
could make oral objection, he could as well, have made
objection in writing against the acceptance of nomination
of the Appellant, and in that case the Returning Officer
would have decided his objection under sub-section (2) of
Section 36, after holding a summary inquiry. Even if it is
accepted that he had raised an oral objection with regard
to the educational qualification of the Appellant before the
Returning Officer at the time of scrutiny, the respondent
no. 1 has failed to make averment in the Election Petition
as to how Appellant's nomination was liable to be rejected
by the Returning Officer on the grounds mentioned in
Section 36(2) of the Act, so as to make his case fall under
clause (d)(i) of Section 100(1) that there was improper
acceptance of the nomination of the Appellant. The non-
mentioning of the particulars as to how such improper
acceptance of nomination had materially affected the
result of the election, is apparent on the face of the
Election Petition.
24. As stated earlier, in Election Petition, the pleadings
have to be precise, specific and unambiguous. If the
allegations contained in Election Petition do not set out
grounds as contemplated in Section 100 and do not
conform to the requirement of Section 81 and 83 of the
Act, the Election Petition is liable to be rejected under
Order VII, Rule 11 of CPC. An 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 Election petitioner relies for establishing a
cause of action, would entail rejection of Election Petition
under Order VII Rule 11 read with Section 83 and 87 of
the RP Act."
24. In the light of the dictum of the Hon'ble
Supreme Court referred to above, I have carefully
considered the verification paragraph mentioned in
the Election petition by the petitioner, stated at page
- 73 -
No. 26 of the Election Petition and in this regard, it is
relevant to extract Order VI Rule 15 of CPC which
reads as under:
"Order 6, Rule 15 CPC
15. Verification of pleadings.
(1) Save as otherwise provided by any law for the time
being in force, every pleading shall be varied 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."
(Emphasis supplied)
25. The language employed in Order VI Rule 15
(3) of CPC, wherein the word "shall", reflects that, the
said compliance of providing details in the verification
paragraph is mandatory. On careful examination of
the verification appended to the Election Petition at
paragraph 26 of the Election petition, the learned
counsel for the respondent is justified in submitting
- 74 -
that, the verification paragraph do not contain the
place and date as required under Order VI Rule 15(3)
of CPC. Though it is a procedural requirement by the
petitioner /plaintiff to rectify the same, by filing a
fresh affidavit/verification to cure the procedural
defect in filing the Election Petition and following the
judgment of the Hon'ble Supreme Court in the case of
Salem Advocate Bar Association, Tamil Nadu vs.
Union of India reported in AIR 2003 SC 189,
wherein, an opportunity has to be extended to the
petitioner to cure the said defect, however, same has
not been complied with by the petitioner herein and
therefore, I find force in the submission made by the
learned counsel for the respondent that, the Election
Petition has been filed without removing defects and
callousness, in filing the petition so also, to harass the
respondent-the Returned Candidate.
26. In the case of Krishnamoorthy (supra) the
Hon'ble Supreme Court after considering entire gamet
- 75 -
of law relating to disclosure of antecedents of
candidate, at paragraphs 20, 94 held as follows:
"20.Dharmadhikari, J. in his supplementing opinion,
observed thus:
"127. The reports of the advisory commissions set up one
after the other by the Government to which a reference
has been made by Brother Shah, J., highlight the
present political scenario where money power and
muscle power have substantially polluted and perverted
the democratic processes in India. To control the ill-
effects of money power and muscle power the
commissions recommend that election system should be
overhauled and drastically changed lest democracy
would become a teasing illusion to common citizens of
this country. Not only a half-hearted attempt in the
direction of reform of the election system is to be taken,
as has been done by the present legislation by
amending some provisions of the Act here and there,
but a much improved elections system is required to be
evolved to make the election process both transparent
and accountable so that influence of tainted money and
physical force of criminals do not make democracy a
farce - the citizen's fundamental "right to information"
should be recognised and fully effectuated. This
freedom of a citizen to participate and choose a
candidate at an election is distinct from exercise of his
right as a voter which is to be regulated by statutory
law on the election like the RP Act."
94. In view of the above, we would like to sum up our
conclusions:
94.1 Disclosure of criminal antecedents of a candidate,
especially, pertaining to heinous or serious offence or
offences relating to corruption or moral turpitude at the
time of filing of nomination paper as mandated by law is a
categorical imperative.
94.2 When there is non-disclosure of the offences
pertaining to the areas mentioned in the preceding clause,
it creates an impediment in the free exercise of electoral
right.
94.3 Concealment or suppression of this nature deprives
the voters to make an informed and advised choice as a
- 76 -
consequence of which it would come within the
compartment of direct or indirect interference or attempt
to interfere with the free exercise of the right to vote by
the electorate, on the part of the candidate.
94.4 As the candidate has the special knowledge of the
pending cases where cognizance has been taken or
charges have been framed and there is a non-disclosure on
his part, it would amount to undue influence and,
therefore, the election is to be declared null and void by
the Election Tribunal under Section 100(1)(b) of the 1951
Act.
94.5 The question whether it materially affects the election
or not will not arise in a case of this nature."
27. In the case of C.P.John (supra), the Hon'ble
Supreme Court at paragraphs 18 to 20 and 38 held as
follows:
"18.When we read Section 83, the substantive part
of Section 83(1) consists of three important elements,
namely, that an Election Petition should contain a concise
statement of material facts which an election petitioner
relies upon. The emphasis is on the material facts which
should be stated in a concise form. Under Section
83(1)(b) it is stipulated that the Election Petition should set
forth full particulars of any corrupt practice which is alleged
by the petitioner. A reading of the said sub-clause 83(1)(b)
is to the effect that such particulars should be complete in
every respect and when it relates to an allegation of
corrupt practice it should specifically state the names of
the parties who alleged to have committed such corrupt
practice and also the date and place where such corrupt
practice was committed. In other words, the particulars
relating to corrupt practice should not be lacking in any
respect. One who reads the averments relating to corrupt
practice should be in a position to gather every minute
detail about the alleged corrupt practice such as the names
of the persons, the nature of the alleged corrupt practice
indulged in by such person or persons, the place, the date,
- 77 -
the time and every other detail relating to the alleged
corrupt practice.
19.To put it differently, when the Election Petition is taken
up for consideration, the Court which deals with such an
Election Petition, should be in a position to know in
exactitude as to what is the corrupt practice alleged as
against the parties without giving any room for doubt as to
the nature of such allegation, the parties involved, the
date, time and the place etc. so that the party against
whom such allegation is made is in a position to explain or
defend any such allegation without giving scope for any
speculation. In that context, both Sections 83(1)(a) and
(1)(b) and the proviso play a very key role since the
election petitioner cannot simply raise an allegation of
corrupt practice and get away with it, inasmuch as the
affidavit to be filed in respect of corrupt practice should
specifically support the facts pleaded, as well as, the
material particulars furnished. Rule 94A of the Rules in turn
stipulates that the affidavit should be in the prescribed
Form 25 and should be sworn before the Magistrate of 1st
class or a notary or the Commissioner of Oaths and makes
it mandatory for the election petitioner to comply with the
said requirement statutorily. The format of the affidavit as
prescribed in FORM25 elaborates as to the requirement of
specifically mentioning the paragraphs where the
statement of facts are contained and also the other
paragraphs where material particulars relating to such
corrupt practices are alleged. It also mentions as to which
of those statement of facts and material particulars are
based on the personal knowledge of the election petitioner
and such of those statements and particulars that are
made based on the information gained by the election
petitioner.
20.Therefore, a conspectus reading of Section
83(1)(a) read along with its proviso of the Act, as well as,
Rule 94A and FORM 25 of the Rules make the legal position
clear that in the filing of an Election Petition challenging
the successful election of a candidate, the election
petitioner should take extra care and leave no room for
doubt while making any allegation of corrupt practice
indulged in by the successful candidate and that he cannot
- 78 -
be later on heard to state that the allegations were
generally spoken to or as discussed sporadically and on
that basis the petition came to be filed. In other words,
unless and until the election petitioner comes forward with
a definite plea of his case that the allegation of corrupt
practice is supported by legally acceptable material
evidence without an iota of doubt as to such allegation, the
Election Petition cannot be entertained and will have to be
rejected at the threshold. It will be relevant to state that
since the successful candidate in an election has got the
support of the majority of the voters who cast their votes
in his favour, the success gained by a candidate in a public
election cannot be allowed to be called in question by any
unsuccessful candidate by making frivolous or baseless
allegations and thereby unnecessarily drag the successful
candidate to the Court proceedings and make waste of his
precious time, which would have otherwise been devoted
for the welfare of the members of his constituency.
Therefore, while deciding the issue raised, we wish to keep
in mind the above lofty ideas, with which the provisions
contained in Section 83(1) read along with Section
86 came to be incorporated while deciding this appeal."
***
38. There can be no two opinions that consequences
envisaged by Section 86(1) of the Act will have no
application to the non-compliance with Section 83(1) or
(2) or its proviso. But the question before us is when the
mandatory requirement of the pleadings as stipulated
under Section 83(1) and its proviso was brought to the
notice of the appellant, as well as, to the Court, and when
a specific application was filed for rejecting the election
petition for want of particulars and consequent lack of
cause of action for maintaining the election and the
election petitioner, namely, the appellant herein chose not
to cure the defects but insisted that his election petition
can be proceeded with keeping the material defects on
record, he cannot later on be heard to state that at any
later point of time he must be given an opportunity to set
right the defects. We are unable to appreciate such an
extreme stand made on behalf of the appellant.
Therefore, even while applying the above proposition of
law stated by this Court in para 7 of G. Mallikarjunappa
- 79 -
case, we do not find any scope to interfere with the order
impugned in these appeals."
28. In the case of Senthil Balaji Vs. A. P.
Geetha reported in (2023) SCC Online 679, the
Hon'ble Supreme Court at paragraph 16 held as
follows:
"16. The consensus of judicial opinion is that the failure to
plead material facts concerning alleged corrupt practice is
fatal to the election petition. The material facts are the
primary facts which must be proved on trial by a party to
establish the existence of a cause of action. In the
present case, taking the averments made in the petition
as it is, not a single material fact is pleaded making out
an allegation of corrupt practice covered by Section 123
of the RP Act of 1951. All that the first respondent has
pleaded is that he made representations to the Returning
Officer and other authorities complaining about the
corrupt practice on the part of the appellant. What is the
nature of the corrupt practice is not mentioned even in
brief. Therefore, material facts, which according to the
first respondent constitute corrupt practice were not
pleaded in the Election Petition."
29. In the Election Petition, the petitioner has
mentioned at paragraph 42 as to details of prior
criminal proceedings. It is as follows:
Sl. Court and Involvement of Disposal Date
No. Case Number Respondent No.1
1. PCR 30/2019 Respondent No.1 Disposed on
Before CCH 91, arrayed as Accused 17.03.2021.
VX Additional No.1
- 80 -
City Civil and
Sessions Judge,
Bengaluru
2. Criminal Petition Respondent No.1 Disposed on
No.6815 of 2019 was the Petitioner 01.10.2020
before the Hon'ble and sought
High Court of quashing of PCR
Karnataka 30/2019
3. Special C Respondent No.1 Disposed on
865/2019 Was arrayed as 02.12.2020
Before CCH82 Accused No.1
LXXXI ADDL. CITY
CIVIL AND
SESSIONS JUDGE
4. Criminal Petition Respondent No.1 Disposed on
No.4555 of 2017 was arrayed as 15.06.2017
before the Hon'ble Respondent therein
High Court of
Karnataka, at
Bengaluru
5. FPA-PMLA- Respondent No.1 Disposed on
636/BNG/2014 Was the Appellant in 22.06.2017
And FPA-PMLA- the said proceedings
588/BNG/2014
before the
Appellate Tribunal
For Prevention of
Money Laundering
Act
6. FPA-PMLA- Respondent No.1 Disposed on
2127/BNG/2017 Was the Appellant in 18.06.2018
Before the the said proceedings
- 81 -
Appellate Tribunal
For Prevention of
Money Laundering
Act.
7. WP 26622/2014 Respondent No.1 Disposed on
(GM-RES) was the Petitioner in 25.06.2014
Before the Hon'ble the said proceedings
High Court of
Karnataka,
Bengaluru
30. Section 33-A of the Act, reads as under:
"33A. Right to information.--
(1) A candidate shall, apart from any information which he
is required to furnish, under this Act or the rules made
thereunder, in his nomination paper delivered under sub-
section (1) of section 33, also furnish the information as to
whether--
(i) he is accused of any offence punishable with
imprisonment for two years or more in a pending case in
which a charge has been framed by the court of competent
jurisdiction;
(ii) he has been convicted of an offence other than any
offence referred to in sub-section (1) or sub-section (2), or
covered in sub-section (3), of section 8 and sentenced to
imprisonment for one year or more.
(2) 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, also
deliver to him an affidavit sworn by the candidate in a
prescribed form verifying the information specified in sub-
section (1).
- 82 -
(3) The returning officer shall, as soon as may be after the
furnishing of information to him under sub-section (1),
display the aforesaid information by affixing a copy of the
affidavit, delivered under sub-section (2), at a conspicuous
place at his office for the information of the electors
relating to a constituency for which the nomination paper is
delivered.
31. Perusal of the language employed in Section
33-A (1)(i) of the Act, requires only pending cases is
to be disclosed in which charge has been framed and
punishment is more than two years. Applying the
aforementioned provision to the case on hand, the
petitioner has referred to the proceedings in MSA
No.112 of 2018 and the said case has not been
mentioned in FORM 26 Affidavit. In the case of Vijay
Madanlal Choudhary and Others Vs. Union of
India and Others in Special Leave Petition (Criminal)
No.4634 of 2014 disposed off on 27.07.2022, it is held
that, as the special mechanism has been envisaged
under the Prevention of Money Laundering Act, 2002,
the proceedings will be ended with attachment of
property and no penal action to be taken against the
respondent-accused therein and same has to be
- 83 -
considered as in the nature of civil proceedings and
therefore, the contention raised by the learned Senior
Counsel for the appellant cannot be accepted.
32. On careful examination of page 42 of the
Election Petition, wherein Sl.No.1- in PCR 30 of 2019,
the criminal case was disposed off on 17.03.2021.
The said judgment in PCR No.30 of 2019 was
questioned before this Court in Criminal Petition
No.6815 of 2019 which came to be disposed off on
01.10.2020. The Hon'ble Supreme Court in the case
of Union of India Vs. Association for Democratic
Reforms and Another with Peoples Union for Civil
Liberties and Another Vs. Union of India and
Another reported in AIR 2002 SC 2112, laid down
the guidelines relating to furnishing the antecedents of
the candidates and pursuant to the same the Election
Commission of India has issued Circular dated
10.10.2018 specifically stated that, the candidates at
elections to the Houses of Parliament and Houses of
- 84 -
State Legislature have to furnish pending cases or
cases of conviction in passed and to the political
parties that set up such candidates. The said circular
has been issued in terms of the judgment of the
Hon'ble Supreme Court, wherein, it is clearly stated by
the Hon'ble Supreme Court that, the candidates has to
furnish pending criminal cases and cases in which
order of conviction is passed against him/her. Insofar
as the contention with regard to not disclosing
proceedings in PCR No.55750 of 2016, private
complaint filed by one Roshan Beig against the
respondent was dismissed for non-prosecution and
thereafter, same was restored as per the order dated
15.06.2017 of this Court and in this regard, the
respondent has neither received notice not aware
about the revival of the proceedings and therefore,
the contention raised by the learned Senior Counsel
appearing for the petitioner cannot be accepted.
- 85 -
33. Perusal of the FORM 26 Affidavit by the
respondent, wherein the respondent has furnished the
pending criminal cases in which she has been
arraigned as accused, so also, in terms of the
judgment of the Hon'ble Supreme Court in
Krishnamoorthy (supra) case, has to furnish pending
cases in which the punishment is more than two years
and therefore, I find force in the submission made by
the learned counsel appearing for the respondent that,
there is no cause of action to prefer the Election
Petition. In that view of the matter, the judgment
referred to by the Learned Senior Counsel for the
petitioner in the case of Bhim Rao Baswanth Rao
Patil (supra) is not applicable to the case on the hand
as the respondent has disclosed the pending criminal
cases, in which, the punishment is more than two
years and therefore, the contentions raised by the
petitioner cannot be accepted.
- 86 -
34. It is to be noted that, unless there is a
specific averment and material evidence in support of
the contention that such material of non-disclosure of
pending or prior criminal cases and also as to not filing
the requisite assets and liabilities as contended by the
petitioner, to establish the "Corrupt Practice" in the
Election Petition, it is the duty of the petitioner or
anyone who challenges the election of the Returned
Candidate must required to plead essential material
statement of facts with full particulars of any Corrupt
Practice with a full statement of possible name of the
parties who have committed such "Corrupt practice"
along with a date and place of commission of such
practice, this Court has to exercise jurisdiction under
Order VII Rule 11 of CPC. It is evident from reading of
the averments made in the petition that, a clever
drafting has been made to create a illusion of cause of
action and same cannot be entertained within the
purview of Order VII Rule 11 of the Code of Civil
- 87 -
Procedure. On a combined reading of Sections 81, 83,
86 and 87 of the Act, it is apparent that those
paragraphs of the petition particularly the grounds
urged do not disclose any cause of action.
35. On careful examination of the language
employed under Section 123 of the Act, which
discloses the type of a practice which shall be
considered as a "Corrupt Practice" where the same
has been done by a candidate or his agent or any
other person with the consent of the candidate or his
agent.
36. I am also well conscious of the fact that the
Election Petition can not be summarily rejected, if the
averments made in the petition are sufficient to
conduct trial in the matter. However, Hon'ble Supreme
Court in the case of Samant N. Balkrishna vs.
George Fernandis reported in (1969) 3 SCC 238
held that the omission of single material fact would
lead to an incomplete cause of action and that too, in
- 88 -
Election Petition, in the absence of material fact
relating to a Corrupt practice, has to be consider
seriously and such petition is not a Election petition.
The said aspect was also reiterated by the Hon'ble
Supreme Court in the case of Udhav Singh vs.
Madava Rao Scindia reported in (1977)1 SCC 511,
that all the primary facts has to be reflected in the
pleadings which must be proved by a party to
establish a cause of action or his defence or material
facts. The basic facts which constitute the ingredients
of a particular corrupt practice alleged by the
petitioner must be averred in the petition in order to
succeed in the petition.
37. It is also pertinent to mention here that a
particular fact is material or not is depend upon the
nature of the allegation made in the petition under the
circumstance of each case, on merits. Therefore, it is
required for the petitioner in the present case to
narrate the essential facts with complete cause of
- 89 -
action has to be pleaded in the petition and failure to
plead even a single material fact is contrary to
requirement of Section 83(1)(a) of the Act. It is also
to be considered that the allegations of "Corrupt
Practice" as narrated in the Election Petition are in the
nature of criminal charges against the respondent-
Returned Candidate and therefore, there should
precision and specific allegation and shall not be
vagueness in making allegation, so that, the
respondent may know the case as to meet and
contradicts the allegations in the petition. The charge
of "Corrupt practice" being quasi-criminal in nature
and as such, the Court has to insist on strict
compliance with the provisions of law. Therefore, it is
equally essential that the particulars of a charge of
allegations must clearly and precisely stated in the
petition. The burden, is on the petitioner who
challenges the election, to narrate material facts and
same shall be specific with providing details of such
- 90 -
allegations. It is also to be noted that the provision
under Section 83(1)(a) of the Act, requires that, while
challenging the Election of the returned candidate, the
Election petitioner should take extra care, leave no
room for doubt, while making such allegation of
"Corrupt Practice" indulged in by the successful
candidate in the Election, if any [See (2014)10 SCC
547]. It is also pertinent to mention here that the
respondent herein had succeeded in the election by a
margin of more than one lakh votes, has got the
support of majority of the voters who cast their vote
in her favour. The success gained by the respondent
in a Lok Sabha Election cannot be allowed to be called
in question by a voter by making frivolous or baseless
allegations and thereby, no room for unnecessarily
drag the respondent to the Court proceedings.
38. The scope of Order VII Rule 11 of the Code
of Civil Procedure is to avoid roving enquiry and
therefore, it is duty of the Court to scrutinize the
- 91 -
pleadings in Election Petition relating to "Corrupt
Practice" in a strict manner. It is settled principle by
the Hon'ble Supreme Court in the aforementioned
cases that the Election Petition must contain a concise
statement of essential material facts in which the
relief sought for by the petitioner and failure to state
even a single material fact would entail the dismissal
of the Election Petition.
39. At this juncture, it is relevant to cite the
judgment of Honb'le Supreme Court in the case of
Ram Sevak Yadav vs. Hussain Kamil Kidwai and
Others reported in (1964) 6 SCR 238, wherein, it is
held that the relief not founded in the pleadings
should not be granted to the petitioner. It is also
observed by the Hon'ble Supreme Court that, no party
should be permitted to travel beyond the pleadings
and the parties are bound to disclose all material facts
in support of their case in the petition. On the other
hand, it is to be held that pleadings, in the petition
- 92 -
must ensure that each of the parties to the
proceedings are aware about the issues that are likely
to be raised as well as there must be an opportunity
of placing the relevant evidence before the Court for
its consideration. If the pleadings are short of material
proposition of fact, then it is not permissible for the
Court to frame an issue not arising out of the
pleadings urged by the parties as no evidence can be
let in by the parties based on the pleadings, so also,
the absence of material facts in the petition on a
particular issue. Applying the principles laid down by
the Hon'ble Supreme Court in the case of Kanimozhi
Karunanidi (supra), wherein Hon'ble Supreme Court
has laid down the guidelines, after discussing the
entire gamet of law relating to the application of Order
VII Rule 11 of the Code of Civil Procedure in relation
to Election Petition and following the dictum of the
Hon'ble Apex Court, I am of the view that the
judgments referred to by the learned Senior Counsel
- 93 -
appearing for the petitioner are not applicable to the
case on hand since the averments made in the
Election Petition, have to be looked into based on
allegations made thereunder coupled with the
circumstances and the essential facts narrated to
prove such allegations in a manner known to law. It
is also to be noted that the cases referred to by the
learned Senior Counsel appearing for the petitioner
are considered in the light of the factual aspects and
the judgment of the Hon'ble Supreme Court, referred
to above, the material enclosed along with the
Election Petition has to establish the Corrupt practices
alleged against the respondent-Returned Candidate
and further the cases referred to by the leaned Senior
Counsel appearing for the petitioner were referred to
in the case of Kanimozhi Karunanidi (supra). The
Hon'ble Supreme Court has arrived at a conclusion
that the unsuccessful candidate in the election must
made out a case for trial and the entire gamet of law
- 94 -
was discussed in the said judgment by Hon'ble
Supreme Court in the case of A. Manju (supra) and
applying those principles to the facts narrated in the
present petition and further taking into consideration
the entire factual aspects on record as averred in the
petition as well as the averments made thereunder, I
am of the view that, same do not constitute cause of
action to conduct a trial in the case as the petition is
devoid of cause of action. Therefore, the judgments
referred to by the learned counsel appearing for the
respondent are applicable to case on hand as the
pleadings in the Election Petition is devoid of cause of
action in terms of law declared by Hon'ble Supreme
Court in the case of Karim Uddin Barbhuiya (supra)
and as such, the points for determination referred to
at paragraph 22 favours the respondent as the
petitioner fails to fulfill the mandatory requirement
under law.
- 95 -
40. I have also noticed the averments in IA
No.2 of 2024, for non compliance of Section 81(3) of
the Act. In the amended petition filed on 28.08.2024,
paragraph 3 in the verifying affidavit at page 28,
notarized on 28.08.2024, extracted as follows:
"3. I state that, the documents produced at Annexure-P is
original. I state that, documents produced at Annexure-B-
2, E, and N are certified copies. I state that, Annexure-A,
B-1, C, F, M1 to M7 are true prints."
41. In the original Election Petition filed on
19.07.2024 at page 27, verifying affidavit notarized
on 19.07.2024, wherein paragraph 'C' extracted as
under:
"C. I state that, the documents produced at Annexure-P is
original. I state that, documents produced at Annexure-B-
2, E, and N are certified copies. I state that, Annexure-A,
B-1, L-2 to M-7 are true prints."
42. On comparison of these two affidavits, I find
force in the submission made by the learned counsel
appearing for the respondent that there is discrepancy
in the verifying affidavits filed by the petitioner. The
declaration of law made by the Hon'ble Supreme Court
- 96 -
in the case of C.P. John (supra), at paragraph 16
reads as under:
" 16. As regards the other deformity in the Election
Petition, the learned Senior Counsel contended that the
First Respondent in his written statement to the Election
Petition pointed out the serious defects in the Election
Petition, but yet the Appellant did not take any steps to
correct the errors. The learned Senior Counsel further
contended that when the First Respondent filed I.A. No.3
of 2011 raising a preliminary objection as to lack of cause
of action in the said I.A., the Appellant filed a counter
affidavit maintaining his stand that his Election Petition
fully complied with the statutory requirement of the Act
and, therefore, nothing more was required to be done.
The learned Senior Counsel, therefore, contended that
since sufficient opportunities were made available to the
Appellant and the same having not been availed by him,
the High Court cannot be expected to show any
extraordinary indulgence to the Appellant for filing any
further affidavit to fill up the serious lacunae in his
pleadings. The learned Senior Counsel, therefore,
contended that none of the decisions would support the
said stand of the Appellant and, therefore, the impugned
judgment does not call for any interference. It was also
contended on behalf of the First Respondent that such
defects which have been noted by the High Court while
allowing I.A. No.3 of 2011 and dismissing the Election
Petition were not merely cosmetic in nature in order to
extend any further opportunity to the Appellant."
43. Following the declaration of law made by the
Hon'ble Supreme Court in the above case, I find force
in the submission made by the learned counsel
appearing for the respondent that, there is
- 97 -
discrepancy in filing the affidavit and also ante-dating
of the affidavit by the notary is forthcoming.
Therefore, I am of the view that, non-compliance of
Section 83 of the Act by the petitioner and the
judgment of the Hon'ble Supreme Court referred to
above is, squarely, applicable to accept the
applications. Hence, IA No.2 of 2024 is liable to be
allowed on the sole ground that, the petitioner herein
has miserably failed to remove the defects even after
identified by the respondent herein and brought to the
notice of the petitioner.
44. I have also keenly noticed the callousness
on the part of the petitioner in filing the Election
Petition and perusal of prayer column in the Election
Petition is self-explanations, wherein, there is no
provision of Section 100(b), 100 (d)(i) and Section
100 (d)(iv) under the Act as contained in the prayer
column. Though the correct provision is not mentioned
in the prayer column, and same be cured by way of
- 98 -
amendment, however, the petitioner has not made
efforts to notice the same and correct the provision,
which has been incorporated by way of amendment
knowing fully well that, there is no such provision
under the Act.
45. On overall reading of the Election Petition,
this Court is of the opinion that the petition lacks
material fact constituting the cause of action as
required under the provisions of the Act and does not
fulfill the mandatory requirement of law. That apart,
the Election Petition does not contain a concise
statement of material fact, inter-alia and also does not
disclose a triable issue or cause of action. The
contentions and allegations of the petitioner is based
on assumption and imagination and same cannot be a
basis for challenging the Election of the respondent.
In the light of the aforesaid judgments rendered by
the Hon'ble Supreme Court, and the analysis made in
this order, I am of the view that, there is no escape
- 99 -
from the conclusion that the Election Petition can be
summarily rejected as the Election Petition do not
conform to Section 83 of the Act. In the result, I pass
the following:
ORDER
Applications in IA No.2 of 2024 and IA.3
of 2024 filed by the respondent-Returned
Candidate seeking rejection of the petition
are hereby allowed. Consequently, Election
Petition is rejected.
No order as to costs.
Pending applications, if any, stands
disposed of.
SD/-
(E.S. INDIRESH)
JUDGE
SB
[ad_1]
Source link