Orissa High Court
Afr Kishore Kumar Nayak …. Election vs Byomkesh Nayak And Ors on 8 August, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
I.A. No. 6 of 2025
(ARISING OUT OF ELPET No.8 of 2024)
(An application under Section 86 of the Representation of the People
Act, 1951 read with Order VI Rule 16, Order VII Rule-11 and Section
151 of the Code of Civil Procedure)
AFR Kishore Kumar Nayak .... Election Petitioner
-Versus-
Byomkesh Nayak and Ors. .... Respondents
Advocate(s) appeared in this case:-
_______________________________________________________
For Election Petitioner : M/s. N.K Sahu, B. Swain, A. Panda,
S.S.Sahu, A. Modi & S. Sahu,
Advocates.
For Respondents : M/s. U K Samal, M.R. Mohapatra,
S.P. Patra, N. Samal, A.B. Tarini &
P.K. Mohapatra, Advocates
(For R-1)
Bidyadhar Mishra, Sr. Advocate
with M/s.Tarinikanta Biswal,
P. Bhardwaj, R.R. Panda & B.S.
Panigrahi, Advocate
(For R-2)
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
8th August, 2025
Page 1 of 59
SASHIKANTA MISHRA, J.
The present application has been filed by the
Respondent no.1 in the above-mentioned Election Petition
under Section 86 of the Representation of the People Act,
1951 read with Order VI Rule 16, Order-VII Rule-11 and
Section 151 of the Code of Civil Procedure. Through this
application, the Respondent prays for striking out the
pleadings contained in Paragraphs 6 (A) to 6 (G) and for the
rejection/dismissal of the Election Petition in its entirety at
the very threshold in terms of Section 86 of the said Act. It
is contended that the pleadings sought to be struck off are
wholly irrelevant, frivolous, and scandalous, amounting to
gross abuse of the process of this Court. Additionally, it is
submitted that the Election Petition lacks essential
material facts and particulars, fails to disclose a complete
cause of action, and does not raise any triable issues,
thereby warranting its dismissal at the preliminary stage.
2. According to Respondent No.1, the present I.A
basically raises the following questions;
A. Whether the Election Petition filed by the Election
Petitioner- opp. Party No. l complies with mandatory
requirement of law as envisaged under Sub-Sections
Page 2 of 59
(1) and (3) of Section 81 of the Representation of the
People Act, 1951.
B. Whether in the absence of complete material facts,
the Election Petition shall be dismissed/ rejected?
C. Whether in the absence of the full particulars, the
Election Petition shall be dismissed/ rejected?
D. Whether in the absence of proper verification of
pleading as per the manner laid down in the Code of
Civil Procedure, 1908, the Election Petition shall be
dismissed/rejected?
E. Whether in the conspicuous absence of an
additional affidavit in the prescribed Form No.25 as
per the requirement of the proviso to sub-Section 1 of
Section 83 of Representation of the People Act, 1951
and Rule 94-A of the Conduct of Election Rules, 1961,
in support of the allegation of corrupt practice and
particulars thereof with the alleged Sections and Sub-
sections of that corrupt practice, the Election Petition
shall be dismissed/ rejected?
F. Whether, for the non-disclosure of the source of
information, the Election Petition shall be dismissed/
rejected?
G. Whether in the absence of specific pleading that
the result of the election in so far as it concerns a
Returned Candidate, has been materially affected,
the Election Petition shall be dismissed/ rejected?
H. Whether this Court while disposing of the
application filed under Order VII Rule 11 C.P.C. shall
consider the entire pleadings made in the Election
Petition or any part thereof and while considering the
said application the written statement filed by the
Respondent No.1 and any other pleadings shall be
taken into consideration?
I. Whether the Election Petition is liable for rejection
as the document on which the alleged cause of action
based, has not produced?
J. Whether the pleading of the Election Petition and
verification is in terms of the Representation of the
People Act, 1951.”
3. Written objection has been filed by the
Election Petitioner basically stating that all material
Page 3 of 59
facts constituting valid cause of action and triable
issues have been substantially pleaded. As regards the
procedural defects and filing of Form-25 pointed out, the
same are curable in nature. The pleadings are based on
the affidavit in Form-26 submitted by the Respondent
at the time of his nomination and therefore, in order.
4. The grounds cited by the Respondent for
summary dismissal of the Election Petition, rejection of
plaint and striking out pleadings shall be discussed
individually along with the contentions raised by the
parties.
5. For convenience, the parties are referred to as
per their original status in the Election Petition.
6. Heard Mr. U.K Samal, learned counsel for the
Respondent No.1(Petitioner in the I.A); Mr. B. Mishra,
learned Senior Counsel with Mr. T.K. Biswal, learned
counsel for the Respondent No.2 in the Election Petition
and Mr. N.K Sahu, learned counsel for the Opposite
Party(Election Petitioner).
7. Mr. Samal makes the following preliminary
arguments:
Page 4 of 59
(i) The averments made in Paragraphs 1 to 5,
Paragraphs 6 to 12, and Paragraphs 6-A to 6-G of the
Election Petition merely recount general background
information and do not set forth specific, material facts
necessary to constitute a cause of action. It is submitted
that, except for routine references to statutory
notifications, filing of nominations, and declaration of
results, the said paragraphs are vague, lacking in material
particulars, and are replete with bald, frivolous, vexatious,
and scandalous allegations, which amount to an abuse of
the process of the Court and are therefore, liable to be
struck out.
(ii) The participation of Respondent No.2 in
opposing the application is objected on the ground that the
application has been filed by Respondent No.1 as against
the Election Petitioner and therefore, the lis at this stage is
exclusively between these two parties. Respondent No.2
being in the nature of a co-defendant has no independent
or substantive right to oppose the application. It is further
contended that the provisions of Order VI Rule 16 CPC,
which empower the Court to strike out pleadings, and
Page 5 of 59
Order VII Rule 11 CPC, which provide for rejection ofplaint, are procedural devices to be invoked and contested
only by the parties directly affected thereby. In the absence
of any specific statutory provision conferring upon a
co-respondent the right to object to such an application,
Respondent No.2‟s intervention at this stage is
unwarranted and impermissible in law.
(iii) The Election Petitioner has failed to disclose
complete and specific facts establishing his locus standi to
challenge the election of the returned candidate. It is urged
that the petition does not conform to the mandatory
requirements of Section 81 of the Representation of the
People Act, 1951, inasmuch as the Petitioner has neither
claimed to be a contesting candidate nor disclosed himself
to be an elector of the 47-Chandbali Assembly
Constituency. In particular, it is pointed out that the
Election Petitioner has omitted to furnish essential
electoral particulars such as the voter identity card
number, serial number in the electoral roll, and part
number of the said roll, which are necessary for
demonstrating his entitlement to present an election
Page 6 of 59
petition. The absence of such particulars, according tolearned counsel, renders the petition devoid of any cause of
action and liable to be dismissed at the threshold.
It is further contended that due to
non-compliance with the statutory pleading requirements,
the petition is liable to be rejected under sub-section (1) of
Section 86 of the Representation of the People Act, 1951. In
elaboration, learned counsel points out that: (a) the voter‟s
serial number in the voters‟ list, part number of the
electoral roll of the constituency to which the returned
candidate belongs, and the full address of residence have
not been pleaded; (b) there is no averment that the
Petitioner was entitled to vote at the election to which the
petition relates; (c) the petition does not specifically plead
any of the grounds for declaring an election void as set out
under sub-section (1) of Section 100 or Section 101 of the
Act; and (d) there is no pleading to the effect that the
Petitioner is not disqualified under Section 16 of the
Representation of the People Act, 1951.
Mr. Samal emphasises that the statutory
framework under Section 81(1) of the Representation of the
Page 7 of 59
People Act, 1951 read with Section 16 of theRepresentation of the People Act, 1951 mandates that an
election petitioner must not only disclose his status as an
elector but must also affirmatively plead that he is not
disqualified under the 1950 Act. The absence of these
foundational averments, it is argued, is fatal to the
maintainability of the petition and attracts the
consequence under Section 86(1) of the 1951 Act, namely
dismissal of the petition in limine.
(iv) The copy of the Election Petition served upon
him is not attested under the Petitioner‟s signature as
required under Section 81(3) of the Representation of the
People Act, 1951. According to Mr. Samal, the endorsement
on the served copy does not fulfil the statutory
requirement, inasmuch as it does not bear the attestation
of the Petitioner himself certifying it to be a true copy of the
original petition. It is urged that Section 81(3) mandates
that every copy served upon the respondents must be
attested by the Petitioner under his own signature as a
„true copy‟ of the petition. In the present case, the Election
Petitioner has not so attested the served copy, but the
Page 8 of 59
attestation has been made by his Advocate, and even suchattestation does not contain the necessary endorsement
certifying it as „true copy‟.
Mr. Samal further submits that this defect is not
a mere irregularity but goes to the root of compliance with
Section 81(3) of the Act, and therefore, the petition is liable
to be dismissed under Section 86(1) of the Act. In this
context, Mr. Samal has relied upon the following
judgments-
(a) Shariuddin v. Abdul Gani Lone1
(b) Narendra Bhikahi Darade v. Kalyanrao
Jaywantrao Patil and others2
(c) Satya Narain v. Dhuja Ram3
(d) Rajendra Singh v. Usha Rani4
(e) Mithilesh Kumar Pandey v. Baidyanath Yadav5,
(v) In terms of the proviso to Section 83(1)(c) of the
Act, an election petition alleging corrupt practices must be
accompanied by an affidavit in the prescribed form in
support of such allegations and their particulars. Rule
94-A of the Conduct of Election Rules, 1961 mandates that
1
1980) 1 SCC 403
2
AIR 2000 Bombay 362
3
(1974) 4 SCC 237
4
(1984) 3 SCC 339
5
(1984) 2 SCC 1
Page 9 of 59
such affidavit shall be sworn before a Magistrate of the
First Class, a Notary, or a Commissioner of Oaths, and be
in Form 25. In the present case, although corrupt practices
have been alleged, the petition is not accompanied by the
requisite affidavit in Form 25. Such non-compliance,
according to Mr. Samal, is fatal to the maintainability of
the petition and amounts to contravention of both Sections
81 and 83 of the Act, warranting dismissal under Section
86 thereof. In this context, Mr. Samal has relied upon the
following judgments of Supreme Court:
(b) Ravindra Singh v. Janmeja Singh & Ors.7
(f) V. Narayan Swamy v. C.P Thiruna
Vukkarasu11
(vi) In the absence of a specific pleading that the
result of the election, in so far as it concerns the returned
6
(1969) 3 SCC 238
7
(2000) 8 SCC 191
8
(2000) 1 SCC 481
9
(2009) 9 SCC 310
10
(2009) 10 SCC 541
11
(2000) 2 SCC 294Page 10 of 59
candidate, has been materially affected, the ElectionPetition is not maintainable and is liable to be rejected. It is
submitted that a careful reading of the entire petition
reveals that the Election Petitioner has nowhere averred
how the result of the election, as it concerns the returned
candidate, has been materially affected, which is
mandatorily required under Section 100(1)(d) of the
Representation of the People Act, 1951. This omission,
according to learned counsel, goes to the root of the matter,
as compliance with Section 100(1)(d) is a statutory
precondition for challenging an election on that ground.
Mr. Samal places reliance upon the decision of the
Supreme Court in Ram Sukh (Supra) in this context.
(vii) A combined reading of sub-section (1) of
Section 81, read with Sections 82, 84, and 101 of the
Representation of the People Act, 1951, makes it evident
that the relief of declaring another contesting candidate
ordinarily the one who has secured the second highest
number of votes as duly elected, is available only in a
petition filed by a contesting candidate. But where the
election petition is filed by an elector, as in the present
Page 11 of 59
case, such an additional declaration under Section 101 is
not legally permissible. Mr. Samal argues that the statutory
scheme contemplates that a voter-petitioner may call in
question the election of the returned candidate but cannot
claim the consequential relief of declaring another
candidate elected, which is a relief confined to petitions
presented by candidates themselves.
Mr. Samal further submits that the Election
Petitioner, claiming to be an elector and not a contesting
candidate, has nonetheless claimed the relief contemplated
under Section 101 of the Act, thereby acting in
contravention of the statutory framework. Such a prayer,
according to learned counsel, is beyond the scope of
Section 81 and consequently renders the petition liable to
be dismissed. In support of his submission, reliance is
placed by him on the decision of the Rajasthan High Court
in Nag Raj Patodin v. R. Birla and Others12.
(viii) The Election Petition suffers from a
fundamental defect inasmuch as it has been filed without
12
AIR 1969 Raj 245.
Page 12 of 59
annexing a single document in support of the pleadings of
material facts. It is urged that the petitioner has not filed
along with the petition any document to establish his own
identity as an elector of the 47-Chandabali Assembly
Constituency, nor has he produced the requisite
notifications or forms relating to the conduct of the
election, including the notification under Section 30 of the
Representation of the People Act, 1951.
It is submitted by Mr. Samal that the petitioner
has also failed to annex the Form-26 affidavit filed by the
returned candidate before the Returning Officer at the time
of filing nomination papers, or the affidavit of election
expenditure filed by the returned candidate before the
District Election Officer. In the absence of these primary
documents, it is contended, the allegations made in the
petition remain wholly unsubstantiated and incapable of
being tested on merits. In this context, Mr. Samal relies on
following judgments to support his contentions:
(ii) U.S. Sasidharan v. K. Karunakaran and Ors.14
13
(1984) 2 SCC 1
14
(1989) 4 SCC 482Page 13 of 59
(iii) Prashant Kumar Singh v. Hakim Lal15
According to Mr. Samal, these omissionsamount to a clear non-compliance with the mandatory
requirements of Section 83 of the Representation of the
People Act, 1951, which obligates the election petitioner to
set forth full particulars of the alleged corrupt practices,
accompanied by such supporting documents as are in his
possession or power. It is argued that such non-compliance
strikes at the root of the maintainability of the petition and
attracts the consequence of dismissal under Section 86(1)
of the Act.
Mr. Samal submits on the settled proposition
that an election petition is not to be treated lightly, and
strict compliance with the statutory scheme is a condition
precedent for its survival. Where the petition is bereft of
documents which constitute the very foundation of the
allegations, it must necessarily be rejected at the threshold
under Order VII Rule 11 of the Code of Civil Procedure, read
with Section 86(1) of the Act.
15
2023 AHC 243220
Page 14 of 59
8. In response to the above contentions, Mr. N.K
Sahu, learned counsel for the Election Petitioner, makes
the following arguments:
(i) As regards the allegation that Paragraphs 1 to 5,
Paragraphs 6 to 12, and Paragraphs 6-A to 6-G of the
Election Petition are vague, frivolous, or scandalous, Mr.
Sahu submits that a plain and holistic reading of the
petition makes it evident that these paragraphs lay out the
foundational facts, sequence of events, and statutory
context necessary to appreciate the specific allegations of
corrupt practices and statutory non-compliance made
against the returned candidate. The narration of
background facts, including references to statutory
notifications, nomination process, scrutiny, and
declaration of result, is not mere surplus usage but forms
an essential prelude to the specific charges later articulated
with precision in the petition.
It is further submitted that the Election Petition
is required, as a matter of pleading discipline under
Sections 81, 83, and 86 of the Representation of the People
Act, 1951, to set forth material facts and particulars in a
Page 15 of 59
logical sequence, which necessarily includes the factual
background leading to the cause of action. The averments
under challenge cannot be characterized as bald or
vexatious, as they directly link the statutory framework
and election process to the specific acts and omissions of
the returned candidate. The allegations of suppression of
material facts, filing of defective affidavits,
misrepresentation of assets, and concealment of election
expenditure are supported by concrete particulars,
including dates, affidavit numbers, Khata numbers, and
amounts involved.
(ii) As regard the objection regarding the locus
standi of the Petitioner, Mr. Sahu asserts that in Paragraph
5 of the Election Petition the Petitioner has categorically
stated on oath that he is a voter of 47-Chandbali Assembly
Constituency. Once such a sworn statement has been
made, the initial burden, if disputed, can be discharged at
the time of trial by leading appropriate evidence. It is well
settled that at the stage of pleadings, it is not necessary to
plead every minute particular, and a clear averment
regarding voter status suffices to establish his locus standi.
Page 16 of 59
Therefore, the Election Petition cannot be dismissed under
Section 81(1) of the Representation of the People Act, 1951
merely on the alleged ground of non-disclosure of voter
identity card number, serial number, or part number in the
electoral roll.
(iii) With regard to the objection to copy of the
election petition served on the Respondent No.1 Mr. Sahu
submits that the petition was filed with the requisite
number of copies, duly served upon the respondents in
accordance with the orders of this Court, and each page of
the copy served on Respondent No.1 bears the signature of
the Petitioner in a manner clearly indicating the intention
to attest. This satisfies the requirement under Section 81(3)
of the Act. Attention is also drawn to Chapter XXXIII of the
Orissa High Court Rules, 1948, which prescribes a detailed
procedure for the presentation, scrutiny, and admission of
Election Petitions. The instant petition was duly scrutinised
by the Registrar (Judicial), found in order, and admitted by
this Court on 05.08.2024 after the Stamp Reporter found
no defect. The objection raised under Section 81(3) is
devoid of merit, especially in the absence of any prejudice
Page 17 of 59
shown to have been caused to Respondent No.1. It is
further argued that the term “copy” in Section 81(3) merely
requires the served copy to be a true and faithful
reproduction of the original petition, and that the
signatures affixed thereon were clearly made animo
attestandi, thereby fulfilling the statutory requirement.
(iv) On the issue of non-filing of affidavit under
Section 83(1)(c) of the Act in the prescribed Form-25, Mr.
Sahu submits that it is a curable defect, placing reliance
on the case of Thangjam Arunkumar Vs. Yumkham
Erabot Singh16, wherein the Supreme Court has held that
non-filing of the affidavit in Form 25 is a curable defect and
the learned Judge trying the election petition ought to have
granted an opportunity to the election petitioner to file
Form 25 Affidavit in addition to the existing Affidavit filed
with the election petition. It is pointed out that the Election
Petitioner has already filed I.A. No. 163 of 2024 seeking
acceptance of the affidavit in Form-25, which is pending
consideration. Therefore, the objection under Section
83(1)(c) is not sustainable in law.
16
(2023) 11 SCR 392
Page 18 of 59
(v) As to the contention that it has not been pleaded
as to how the result of the election of the returned
candidate has been materially affected, Mr. Sahu submits
that Paragraphs 5-B and 5-G of the election petition
contain specific averments in such regard. Likewise, in
Paragraph 6-A(vi), there is a clear and specific pleading
that the election of the returned candidate stood materially
affected by the improper acceptance of his nomination. It is
further contended that the legal position is well settled
that, while challenging the election of a returned candidate,
it is not necessary for the petitioner to set out in
meticulous detail the precise manner in which the result
was materially affected; it is sufficient if the material facts
indicating such effect are pleaded. In such view of the
matter, the contention of Respondent No.1 that the election
petition is liable to be rejected for want of a specific
pleading as to “the manner in which the result of the
election of the returned candidate has been materially
affected” is wholly unsustainable and non-est in the eye of
law. In this context, Mr. Sahu relies on the following
judgments –
Page 19 of 59
a) Madiraju Venkata Raman Raju v.
Peddireddigari Ramachandra Reddy & Ors.,17
b) Jumuna Prasad Mukhariya & Ors v. Lachhi
Ram & Ors., 18
vi) As regards the contention that an elector cannot
seek the same relief as a contesting candidate, Mr. Sahu
submits that no principle of statutory construction can
support the proposition that only a person who has
contested the election may seek a declaration under
Section 101 of the Representation of the People Act, 1951.
He submits that a plain reading of Section 101 makes it
clear that „any person‟ who has filed an election petition,
and who has in addition to questioning the election of the
returned candidate, sought a further declaration that he
himself or any other candidate has been duly elected, is
entitled to maintain such a prayer. When Section 101 is
read conjointly with Section 84 of the Act, and in the light
of the binding principles laid down by the Supreme Court it
becomes abundantly clear that an elector, as an election
petitioner, has a statutory right to claim a further
declaration that any other candidate has been duly elected,
17
(2018) 14 SCC 1
18
(1954) 2 SCC 306
Page 20 of 59
even though the petitioner was not a contesting candidate
in the election. In this context, Mr. Sahu relies on the
following judgments –
a) Ajay Maken v. Adesh Kumar Gupta & Anr19. b) Jumuna Prasad Mukhariya (supra) (vii) Regarding non-filing copy of affidavit in Form 26,
Mr. Sahu submits that the election petition sets out, in
clear and elaborate terms, the substance and contents of
the documents relied upon particularly, Form-26 affidavit
filed by Respondent No.1 at the time of nomination and the
affidavit bearing No.1250 dated 29.06.2024 filed before the
District Election Officer disclosing election expenditure.
Paragraphs 6-A(i) to (vi) and Paragraph 6-B of the election
petition refers to the contents of these documents that have
been specifically pleaded and explained in detail. Further,
in Paragraph 6-A(i), it is clearly averred that the affidavit in
Form-26 is available in the public domain through the
Election Commission of India‟s official web portal
https://affidavit.eci.gov.in, thus negating any prejudice to
the respondent.
19
(2013) 3 SCC 489
Page 21 of 59
He further submits that it is well-settled that
non-supply of documents relied upon, when their contents
are fully set out in the pleadings and the documents are
otherwise accessible in the public domain, does not vitiate
the maintainability of the petition. Mr. Sahu submits that
this Court, while dealing with an identical objection in I.A.
Nos. 83 and 84 of 2024 (arising out of ELPET No. 08 of
2024), by order dated 16.05.2025, has categorically held
that:
“Mere non-production of the document by itself,
according to the considered view of this Court,
cannot be fatal to the Election Petition.”
On such proposition he also relies on Mohan Rawale v.
Damodar Tatyaba & Ors.20.
Additionally, he submits that under Rule 10 of
Chapter XXXIII of the Orissa High Court Rules, 1948, once
the pleadings are complete, the Judge hearing the election
petition may fix a date for the production of documents.
The scheme of the Rules thus contemplates that
production of documents is to be regulated during the
course of proceedings and not necessarily at the time of
20
(1994) 2 SCC 392
Page 22 of 59
presentation of the petition. Consequently, non-production
or non-supply of documents at the initial stage cannot be
treated as a fatal defect warranting dismissal under Section
86 of the Representation of the People Act, 1951. The
objection of Respondent No.1 is therefore devoid of merit
and liable to be rejected.
9. Learned Senior counsel, Mr. Bidyadhar Mishra,
appearing for Respondent No.2 submits the following-
(i) Respondent No.2 fully adopts and supports the
submissions and contentions advanced on behalf of the
Election Petitioner. It is submitted that the allegations
made in the Election Petition, are well-founded and borne
out by the materials placed on record. According to him,
the defects, discrepancies, and non-disclosures in the
nomination papers, affidavit in Form-26, and election
expenditure statements of Respondent No.1 are of a
substantial and incurable nature, going to the root of the
matter and thereby vitiating the election process. Mr.
Mishra further submits that these lapses amount to
non-compliance of the mandatory provisions of the
Representation of the People Act, 1951, and the Conduct of
Page 23 of 59
Election Rules, 1961, and also constitute corrupt practices
as defined under the Act.
(ii) Mr. Mishra further contends that Respondent
No.2, being a co-respondent duly impleaded in the Election
Petition, is vested with a legal right to participate in and
contest all interlocutory applications which may have a
direct bearing on the maintainability and eventual
adjudication of the petition.
(iii) With regard to the issue of locus standi, Mr.
Mishra adopts and supports the stand taken by the
Election Petitioner.
(iv) With regard to the allegation that the copy of the
Election Petition served on Respondent No.1 is not attested
by the Petitioner, Mr. Mishra emphatically submits that the
objection regarding the absence of animo attestandi is
wholly unfounded. It is pointed out that the petition was
filed with the requisite number of copies, duly served upon
the respondents in accordance with the orders of this
Court, and each page of the copy served on Respondent
No.1 bears the signature of the Petitioner in a manner
clearly indicating the intention to attest. It is argued that
Page 24 of 59
this satisfies the requirement under Section 81(3) of the
Act. Attention is also drawn to Chapter XXXIII of the Orissa
High Court Rules, 1948, which prescribes a detailed
procedure for the presentation, scrutiny, and admission of
Election Petitions. The instant petition was duly scrutinised
by the Registrar (Judicial), found in order, and admitted by
this Court on 05.08.2024 after the Stamp Reporter found
no defect. Learned counsel contends that the objection
raised under Section 81(3) is devoid of merit, especially in
the absence of any prejudice shown to have been caused to
Respondent No.1. It is further argued that the term “copy”
in Section 81(3) merely requires the served copy to be a
true and faithful reproduction of the original petition, and
that the signatures affixed thereon were clearly made
animo attestandi, thereby fulfilling the statutory
requirement.
(v) Mr. Mishra, also places reliance on the decision
of the Supreme Court in Thangjam Arunkumar (supra)
wherein, it was held that non-filing of the affidavit in Form
25 is a curable defect, and the Judge trying the election
petition ought to grant an opportunity to the election
Page 25 of 59
petitioner to file the requisite Form 25 affidavit in addition
to the affidavit already filed with the election petition.
Applying the said principle to the present case, learned
counsel points out that the Election Petitioner has, even
prior to the filing of the present I.A. No. 6 of 2025, already
moved I.A. No. 163 of 2024 along with the requisite
affidavit in Form 25, praying for acceptance of the same.
Thus, according to Mr. Mishra, the defect now pointed out
by Respondent No.1 stands duly rectified, and
consequently, the election petition cannot be dismissed on
the ground of non-filing of the affidavit in Form 25.
(vi) As regards inapplicability of Section 101 of the
Representation of the People Act, 1951 to the
elector-petitioner, Mr. Mishra submits that the contention
so raised is misconceived and unsustainable in law. He
points out that Section 84 of the Act expressly provides
that an election petitioner may, in addition to seeking a
declaration that the election of all or any of the returned
candidates is void, claim a further declaration that he
himself or any other candidate has been duly elected. The
section refers to „a petitioner‟ without any qualification as
Page 26 of 59
to whether such petitioner is an elector or a contesting
candidate.
Similarly, Section 101 of the Act provides that
where „any person‟ who has lodged an election petition has,
in addition to questioning the election of the returned
candidate, sought a declaration that he himself or any
other candidate has been duly elected, and if the High
Court is of the opinion (a) that such petitioner or such
other candidate received a majority of valid votes, or (b)
that but for the votes obtained by the returned candidate
by corrupt practices, such petitioner or such other
candidate would have received a majority of valid votes the
Court shall, after declaring the election of the returned
candidate void, declare the petitioner or such other
candidate duly elected. The section thus refers to “any
person” and is not restricted to contesting candidates. Mr.
Mishra also places reliance on the decision of Ajay Maken
(Supra) in this regard.
10. This Court has carefully considered the rival
submissions of the parties as well as the various judgments
cited in support of their respective contentions, which have
Page 27 of 59
been duly taken note of. The primary objections raised by
on behalf of the Respondent No.1, relate apparently to
seven principal grounds: (i) lack of locus standi of the
Election Petitioner; (ii) alleged defects in service of copy of
the Election Petition without proper attestation; (iii) non-
filing of the affidavit in Form-25 despite allegations of
corrupt practices; (iv) Non-stating of the manner in which
election is materially affected; (v) Permissibility of election
petitioner as an elector to claim relief under section 101 of
R P Act ;(vi) Non supply of documents relied by the
petitioner and (vii) Competence of Respondent No.2 to
oppose the present application. Insofar as the issue of
non-filing of Form-25 is concerned, this Court proposes to
deal with it in a subsequent paragraph.
(i) As regards the objection concerning locus standi
of the Election Petitioner, it is manifest from the pleadings,
particularly Paragraph 5 of the Election Petition, that the
Election Petitioner has categorically stated on oath that he
is a voter of the 47-Chandabali Assembly Constituency. Sec
81 (1), being relevant is reproduced below:
“Sec-81-Presentation of petitions.–(1) An election
petition calling in question any election may bePage 28 of 59
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 the 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”
[Emphasis added]
It is thus evident that in law an elector of the constituency,
irrespective of whether he has voted at the election or not,
is competent to challenge the election. Mere omission to
mention the voter identity card number, serial number, or
part number does not defeat the Election Petition,
particularly on the face of a sworn statement asserting the
Petitioner‟s status as an elector. Of course, he has to
establish such status by adducing evidence during trial
but, it is not necessary that pleadings must set out every
minute detail at the threshold. Accordingly, this Court
finds no merit in the contention raised by Mr. Samal on the
ground of lack of locus standi.
(ii) With regard to the contention as to the alleged
defect in the attestation of the Election Petition served on
the Respondent, this Court is of the view that the argument
Page 29 of 59
lacks substance in view of the settled principle of law that
the purpose of serving a true copy of the Election
Petition and affidavit is to enable the respondent to
understand the charges and prepare an effective
defence. In the case of T.M.Jacob v. C. Poulose and
others,21 the Supreme Court held as follows;
“35. The object of serving a “true copy” of an election
petition and the affidavit filed in support of the
allegations of corrupt practice on the respondent
in the election petition is to enable the respondent
to understand the charge against him so that he
can effectively meet the same in the written
statement and prepare his defence. The
requirement is, thus, of substance and not of form.
36. The expression “copy” in Section 81(3) of the
Act, in our opinion, means a copy which is
substantially so and which does not contain any
material or substantial variation of a vital nature
as could possibly mislead a reasonable person to
understand and meet the charges/allegations
made against him in the election petition. Indeed
a copy which differs in material particulars from
the original cannot be treated as a true copy of the
original within the meaning of Section 81(3) of the
Act and the vital defect cannot be permitted to be
cured after the expiry of the period of limitation.”
It has not been demonstrated as to how the Respondent
No. 1 was misled in any manner by the copy served on him
or that the copy so served was at material variance from
the one filed in the Court.
21
(1999) 4 SCC 274
Page 30 of 59
(iii) As regard the contention regarding non-
mentioning in the Election Petition as to how the result of
the election was materially affected, this Court notes that
under Section 100(1)(d) of the Representation of the People
Act, 1951, the election of a returned candidate can be
declared void if the result of the election, in so far as it
concerns the returned candidate, has been materially
affected by any of the grounds enumerated in sub-clauses
(i) to (iv).
It is well-settled that the expression „materially
affected‟ is a question of fact to be determined on the basis
of evidence led during trial, and its existence cannot
ordinarily be presumed at the stage of considering
maintainability, unless the pleadings are entirely silent or
devoid of any assertion touching upon the issue.
In the present case, the election petitioner has,
inter alia, alleged that the nomination of the returned
candidate was improperly accepted due to non-compliance
of statutory requirements in Form-26 and suppression of
material particulars. Such allegations, if ultimately proved,
are capable of establishing that the election result was
Page 31 of 59
materially affected within the meaning of Section 100(1)(d).
Whether such conclusion can ultimately be drawn or not is
a matter of trial based on evidence and not for summary
rejection at the threshold.
Accordingly, this Court is of the considered view
that the plea of non-maintainability on the ground of
absence of specific pleading or proof of the result of the
election being „materially affected‟ is untenable at this
stage. The sufficiency of such pleading and the evidentiary
burden thereon shall be tested at the trial on merits.
(iv) This Court has carefully considered the rival
submissions on the question whether the relief sought by
the election petitioner namely, a declaration that the
returned candidate‟s election is void coupled with a further
declaration that another candidate has been duly elected is
legally sustainable or not when the petitioner is an elector
and not a contesting candidate.
Section 84 of the Representation of the People
Act, 1951 expressly provides that an election petitioner
may, in addition to claiming a declaration that the election
of all or any of the returned candidates is void, claim a
Page 32 of 59
further declaration that he himself or any other candidate
has been duly elected. The statute makes no distinction
between an elector and a contesting candidate; it extends
the right to seek such relief to „an election petitioner‟, a
term which is defined to include both categories. In this
instant case, while the petitioner may not claim the relief
indicated in the first part of the quoted expression i.e. „he
himself‟, there is nothing to preclude him from claiming the
relief covered by the second part i.e., „any other candidate‟.
Significantly, the Election Petitioner has impleaded another
candidate as a respondent (Respondent No.2) in the
Election petition.
Section 101 of the Act prescribes the
circumstances in which such a further declaration may be
granted, namely, where the Court is satisfied that the
petitioner or such other candidate received a majority of
valid votes, or that but for the corrupt practice committed
by the returned candidate, the petitioner or such other
candidate would have received a majority of valid votes.
The provision uses the phrase „any person who has lodged
Page 33 of 59
a petition‟, without qualifying it by the petitioner‟s status in
the election.
Further, it has been consistently held that the
framing of the relief in an election petition is a matter of the
petitioner‟s choice, and that the provisions of Sections 84
and 101 cannot be read narrowly to deprive an elector from
seeking a further declaration, provided he otherwise
satisfies the statutory conditions at the conclusion of trial.
In the present case, the prayer for a further
declaration has been made in terms of the statutory
framework. Whether the conditions under Section 101 are
ultimately satisfied is a matter for determination at the
stage of final adjudication, after evidence has been led. At
this preliminary stage, this Court finds no legal bar to the
maintainability of such a prayer merely because the
petitioner is an elector and not a contesting candidate.
(v) As to the objection raised by Respondent No.1
that the election petition is liable to be dismissed under
Section 86 of the Representation of the People Act, 1951,
since the documents relied upon by the petitioner were not
supplied along with the petition, this Court finds no merit
Page 34 of 59
therein for the reason that neither Section 81 nor
Section 83 of the R.P. Act mandates that copies of all
documents relied upon must invariably accompany the
election petition, failing which it should be dismissed at the
threshold. The statutory requirement is that the petition
must contain a concise statement of the material facts, set
forth the full particulars of any corrupt practice alleged,
and be accompanied by the requisite copies duly attested
in accordance with Section 81(3).
In the present case, the election petitioner has
pleaded the material contents of the documents including
the Form-26 affidavit filed by the returned candidate and
the expenditure affidavit before the District Election Officer
in sufficient detail in paragraphs 6(A)(i) to (vi) and 6(B) of
the petition. Moreover, as regards Form-26, the petitioner
has specifically pleaded about its availability in the public
domain (web portal of the Election Commission of India).
When the document is a matter of public record and its
contents have been set out in the pleadings, the omission
to supply a copy along with the petition does not prejudice
the Respondent No.1 in preparing his defence.
Page 35 of 59
(vi) As to the contention of Respondent No.1
regarding the right of Respondent No.2 to oppose the
present application, this Court is of the considered view
that it is a well-settled principle that in an election petition,
all respondents, once duly impleaded, acquire the status of
necessary or proper parties for the purpose of defending
their interest in the proceedings. Section 82 reads as
follows:
“82. Parties to the petition.–A petitioner shall join
as respondents to his petition– (a) where the
petitioner, in addition to claiming a declaration that
the election of all or any of the returned candidates
is void, claims a further declaration that he himself
or any other candidate has been duly elected, all
the contesting candidates other than the petitioner,
and where no such further declaration is claimed,
all the returned candidates; and (b) any other
candidate against whom allegations of any corrupt
practice are made in the petition.”
There is no dispute that Respondent No.2 was also a
contesting candidate in the election in question and the
Election Petitioner, in the Election Petition has inter-alia
claimed the following relief.
“5A. Be it declared that the nomination of the
Respondent No.l is null and void as the
Respondent No. 1 failed to file proper affidavit as
prescribed under Rule 4-A of Conduct of Election
Rules at the time of delivering the nomination
paper and had substantially suppressed/falsely
stated the material information in Form 26. Further
it be declared that the Respondent No.l has notPage 36 of 59
filed his nomination form along with affidavit as
per law and in accordance with the Ministry of
Law & Justice Notification No. HI 109(4)/2018-
Leg.II, dt.lOth October, 2018 and notification No.
HJ 1109/13/2016-Leg.II dt. 26th February, 2019
and such affidavit filed by Respondent No.l in
Form-26 is incomplete, invalid in the eye of law
and suffer substantial defect and hence the
delivery of nomination papers by the Respondent
No.l on 10.05.2024 for election to the Chandbali
Assembly Constituency bad in the eye of law and
accordingly his election return candidate be declare
as void.
5E. Be it declared that the so-called affidavit/Form
26 Submitted by the Respondent No. 1 is defective
and nomination papers presented by him before
the Returning Officer to 47- Chandbali Assembly
Constituency is invalid and unsustainable in the
eye of law in as much as the candidate has filed
the affidavit without proper identification. From a
bare perusal of the affidavit it is clearly visible that
the identification done by the concerned Notary is
not a valid identification m the eye of law.”
Thus, in view of the quoted provision, Respondent No.2 and
for that matter, all the other contesting candidates become
proper parties. In fact, all such candidates have been
impleaded as Respondent nos. 3 to 5. Once impleaded,
each respondent has the right to present his case on any
particular issue before the Court. It is immaterial whether
he supports the Election Petitioner or a co-respondent on
any issue. The point is, no party can be precluded from
putting forth his contentions before the Court.
Page 37 of 59
11. Having considered the initial submissions of
both parties, this Court deems it appropriate to address the
grounds raised by the Respondent No.1 in relation to the
specific paragraphs of the Election Petition individually.
12. Paragraphs 1 to 3 of the Election Petition are
formal in nature, as they contain general pleadings
regarding the subject matter of the election petition,
namely, 47- Chandbali Assembly Constituency, the
schedule of the General Election, 2024, the names of the
contestants from the 47-Chandabali Constituency, their
symbols, and party affiliations, which by themselves do not
give rise to a cause of action. These averments are formal
in nature and, though they do not independently constitute
a cause of action, they cannot be read in isolation but must
be considered in conjunction with the other paragraphs. In
fact, the Election Petition is required to be read as a whole.
13. The averments made in Paragraph 4 of the
Election Petition pertain to the total number of votes polled
in favour of each candidate and the outcome of the election
as reflected in Form-20, whereby the Respondent No. 1 has
been declared as the returned candidate. The averments
Page 38 of 59
are purely formal in nature, being a reproduction of official
election data, and therefore, do not warrant any
interpretative exercise or judicial scrutiny at this stage.
14. Paragraph 5 of the Election Petition deals with
the reliefs sought by the election petitioner. Such
averments, being formal and mandatory in nature as
required under Section 84 of the Representation of the
People Act, 1951, do not warrant being struck out under
the provisions of the Code of Civil Procedure, 1908. The
relief clause is an essential component of an election
petition, and its inclusion is a statutory requirement.
15. Paragraphs 6(A) to 6(D) of the Election Petition
collectively set out allegations asserting that the
nomination and subsequent election of Respondent No.1
are vitiated by multiple legal infirmities and material
irregularities. The Election Petitioner contends that the
Respondent filed his nomination accompanied by affidavit
which was not in the prescribed Form-26 format, as
mandated under Section 33-A of the Representation of the
People Act, 1951, read with Rule 4-A of the Conduct of
Election Rules, 1961. In particular, the affidavit dated
Page 39 of 59
09.05.2024 is alleged to be defective, lacking proper
verification and identification, having been attested by a
notary without compliance of the requisite legal formalities.
Furthermore, said affidavit is stated to suffer
from substantial non-disclosures and false declarations,
especially concerning the Respondent‟s movable and
immovable assets. It is alleged that the Respondent failed
to disclose essential particulars of bank deposits,
misrepresented the ownership of joint family agricultural
properties by falsely showing them as self-acquired, and
made incorrect statements relating to non-agricultural
immovable properties.
In addition to the above, the Election Petitioner
has pointed out material discrepancies in the election
expenditure affidavit (No.1250 dated 29.06.2024), filed
under Section 78 of the Act. It is alleged that this affidavit
deliberately omits critical transactional details, including
cheque/DD numbers, drawee bank information, and
source particulars of substantial financial inflows,
particularly a sum of ₹30,00,000/- received from the
political party. These omissions are claimed to be in
Page 40 of 59
violation of the provisions of Section 77 of the Act and
amount to corrupt practice within the meaning of Section
123(6) thereof. The Election Petitioner further avers that
although the Respondent filed multiple affidavits on
various dates, he failed to submit valid nomination in
Form-2B and a properly verified affidavit in Form-26, as
required by the Election Commission‟s binding instructions
and statutory notifications.
The Election Petitioner asserts that such
misrepresentations, concealments, and procedural lapses
constitute serious legal violations, undermining the
integrity, transparency, and fairness of the electoral
process. Relying on several decisions of the Supreme Court,
it is submitted that the electorate has a fundamental right
under Article 19(1)(a) of the Constitution to be informed of
all relevant particulars of contesting candidates, and that
the Returning Officer was under a statutory duty to
scrutinize the nomination and reject the same under
Section 36 of the Act if found defective.
16. Learned Counsel for Respondent No.1, Mr. U.K.
Samal, submits that the Election Petition fails to disclose
Page 41 of 59
any cause of action and is bereft of essential material facts
as required under Section 83(1)(a) of the Representation of
the People Act, 1951. He submits that no explanation has
been offered as to how the affidavit in Form-26 is not in the
prescribed format; no particulars have been given
regarding the alleged false statements or concealments; no
details are provided concerning the alleged sum of
₹30,00,000/- or its omission constituting a corrupt
practice under Section 123(6); no record of any objection
before the Returning Officer is produced; and no affidavit in
Form-25 has been filed to support allegations of corrupt
practice. He further contends that the Petitioner, being
merely an elector, has not established his locus standi and
that the relief sought under Section 101 is not
maintainable at his instance.
In view of the above, he submits that the petition
is frivolous, vexatious, and an abuse of the process of
court. The pleadings in Paragraphs 6(A) to 6(D) are liable to
be struck out under Order VI Rule 16 CPC, and the petition
is liable to be rejected under Order VII Rule 11 CPC for
Page 42 of 59
non-disclosure of cause of action. Mr. Samal has relied on
the following judgments to buttress his contentions:
(i) Samant N. Balkrishna (Supra)
(ii) Hardwari Lal v. Kanwal Singh22,
(iii) Azhar Hussain v. Rajiv Gandhi,23
(iv) R.P. Moidutty (Supra)
(v) V. Narayan Swamy (Supra)
(vi) Hari Shankar jain v. Sonia Gandhi24,
(vii) Santosh Yadav v. Narendra Singh25,
(viii) Kamalnath v. Sudesh Verma26,
(ix) Ram Sukh (Supra)
(x) Anil Vasudev Salgaonkar (Supra)
(xi) Jitu Patnaik v. Sanatan Mahakud27,
(xii) Lalit Kishore Chaturvedi v. Jagdish Prasad
Thada & Ors28,
17. Learned Counsel for the Election Petitioner, Mr.
N.K Sahu, contends that the prayer for rejection of the
petition is misconceived. Non-filing of documents at
presentation does not amount to non-compliance with
Section 81(3) of the Representation of the People Act, 1951,
as long as their material contents are pleaded. In the
present case, the affidavits in question are specifically
22
1972) 1 SCC 214
23
1986) Supp. SCC 315
24
(2001) 8 SCC 233
25
(2002) 1 SCC 160
26
2002) 2 SCC 410
27
(2012) 4 SCC 194
28
(1990) Supp. SCC 248
Page 43 of 59
referred to in Paragraphs 6(A) to 6(D) of the petition. As per
Para 10, Chapter XXXIII of the High Court Rules,
documents are to be produced at the appropriate stage
after pleadings. The verification clause sufficiently affirms
the truth of the statements based on records and belief,
and no defect warranting dismissal exists. Paragraphs 6(A)
to 6(D) set out material facts and particulars on procedural
irregularities, suppression of information, corrupt
practices, and improper acceptance of nomination, thereby
disclosing a clear cause of action. The contention that
material effect on the election result is not pleaded is
untenable, as the petition read as a whole alleges that such
acts materially compromised the fairness of the process. At
the stage of Order VII Rule 11 CPC, averments in the
petition are to be assumed true, and since substantial
triable issues arise, summary rejection is unwarranted. Mr.
Sahu also cites following judgments in leading his
contentions :
(i) Mayar (H.K) Ltd. & Ors. v. Owners & Parties, Vessel
M.V Fortune Express & Ors.,29
(ii) S. Rukmini Madegowda v. State Elction Commission
& Ors30.,
29
(2006) 3 SCC 100
30
(2022) 18 SCC 1Page 44 of 59
(iii) Ponnala Lakhshmaiah v. Kommuri Pratap Reddy &
Ors., 31
18. Mr. B Mishra, learned Senior counsel for
Respondent No.2, adopts and reiterates the submissions
advanced by learned counsel for the Election Petitioner in
their entirety and makes analogous arguments in support
thereof. He submits that the Paragraph 6(A) to 6(D) of the
election petition discloses clear triable issues warranting
adjudication on merits.
19. This Court has carefully examined the pleadings
contained in Paragraphs 6(A) to 6(D) of the Election Petition
and has taken note of the settled legal principles governing
the purpose and significance of the disclosure
requirements under Form-26, as mandated by the
Representation of the People Act, 1951. The Supreme
Court, in Resurgence India v. Election Commission of
India,34 categorically emphasized the fundamental right of
citizens under Article 19(1)(a) and has held as follows-
31
(2012) 7 SCC 788
32
(2018) 17 SCC 336
33
(2015) 3 SCC 467
34
(2013) AIR SCW 5320
Page 45 of 59
“24.At this juncture, it is vital to refer to Section
125A of the RP Act. As an outcome, the act of
failure on the part of the candidate to furnish
relevant information, as mandated by Section 33A
of the RP Act, will result in prosecution of the
candidate. Hence, filing of affidavit with blank
space will be directly hit by Section 125A(i) of the
RP Act. However, as the nomination paper itself is
rejected by the Returning officer, we find no reason
why the candidate must again be penalized for the
same act by prosecuting him/her.
25.If we accept the contention raised by Union of
India, viz., the candidate who has filed an affidavit
with false information as well as the candidate
who has filed an affidavit with particulars left
blank should be treated at par, it will result in
breach of fundamental right guaranteed under
Article 19(1)(a) of the Constitution, viz., ‘right to
know’, which is inclusive of freedom of speech and
expression as interpreted in Association for
Democratic Reforms (AIR 2002 SC 2112 : 2002 AIR
SCW 2186) (supra).
26. In succinct, if the Election Commission accepts
the nomination papers in spite of blank particulars
in the affidavits, it will directly violate the
fundamental right of the citizen to know the
criminal antecedents, assets and liabilities and
educational qualification of the candidate.
Therefore, accepting affidavit with blank
particulars from the candidate will rescind the
verdict in Association for Democratic Reforms
(supra). Further, the subsequent act of prosecuting
the candidate under Section 125A (i) will bear no
significance as far as the breach of fundamental
right of the citizen is concerned. For the aforesaid
reasons, we are unable to accept the contention of
the Union of India.
27.What emerges from the above discussion can be
summarized in the form of following directions:(i)
The voter has the elementary right to know full
particulars of a candidate who is to represent him
in the Parliament/Assemblies and such right to get
information is universally recognized. Thus, it is
held that right to know about the candidate is a
natural right flowing from the concept of democracy
Page 46 of 59
and is an integral part of Article 19(1) (a) of the
Constitution.(ii) The ultimate purpose of filing of
affidavit along with the nomination paper is to
effectuate the fundamental right of the citizens
under Article 19(1)(a) of the Constitution of India.
The citizens are supposed to have the necessary
information at the time of filing of nomination paper
and for that purpose, the Returning Officer can
very well compel a candidate to furnish the
relevant information.(iii) Filing of affidavit with
blank particulars will render the affidavit
nugatory.(iv) It is the duty of the Returning Officer
to check whether the information required is fully
furnished at the time of filing of affidavit with the
nomination paper since such information is very
vital for giving effect to the ‘right to know’ of the
citizens. If a candidate fails to fill the blanks even
after the reminder by the Returning Officer, the
nomination paper is fit to be rejected. We do
comprehend that the power of Returning Officer to
reject the nomination paper must be exercised very
sparingly but the bar should not be laid so high
that the justice itself is prejudiced.(v) We clarify to
the extent that Para 73 of People’s Union for Civil
Liberties case (supra) will not come in the way of
the Returning Officer to reject the nomination paper
when affidavit is filed with blank particulars.(vi)
The candidate must take the minimum effort to
explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not
known’ in the columns and not to leave the
particulars blank.(vii) Filing of affidavit with blanks
will be directly hit by Section 125A(i) of the RP Act.
However, as the nomination paper itself is rejected
by the Returning Officer, we find no reason why
the candidate must be again penalized for the
same act by prosecuting him/her.”
[Emphasis Added]
In light of the above authoritative
pronouncement, this Court is of the considered view that
the allegations made by the Election Petitioner regarding
improper and incomplete filing of affidavit in Form-26, non-
Page 47 of 59
disclosure of movable and immovable assets, false
declaration of property particulars, and omission to
disclose substantial election expenditure, specifically the
receipt of a significant financial contribution, raise triable
issues. The petitioner, claiming to be an elector of the 47-
Chandabali Assembly Constituency, has pleaded specific
material facts, including the nature and details of
disclosures that were allegedly omitted or misrepresented
by the Respondent. These allegations, if established, go to
the very foundation of the electoral process and merit a full
and fair adjudication on the basis of evidence. This Court,
therefore, finds it inappropriate to summarily reject the
petition at this stage and is inclined to hold that the matter
warrants a full-fledged trial on merits.
In relation to the allegations concerning non-
disclosure and false declaration of movable and immovable
assets, this Court finds it relevant to refer to the judgment
of the Supreme Court in Lok Prahari (Supra). In the said
judgment, the Supreme Court underscored the
constitutional and statutory imperative of full and truthful
disclosure of assets and sources of income of a candidate,
Page 48 of 59
as well as of his spouse and dependents. Notably, in
Paragraphs 79 to 81 of the judgment, the Supreme Court,
while applying the ratio laid down in Krishnamoorthy
(Supra), held that such non-disclosure of assets amounts to
“undue influence” and falls squarely within the ambit of
corrupt practice as defined under Section 123(2) of the
Representation of the People Act, 1951. The Court reasoned
that suppression of material financial information misleads
the electorate and impairs the free and informed exercise of
franchise, thereby striking at the heart of electoral
democracy.
In the present case, the Election Petitioner has
alleged identical misconduct by the Respondent No.1
namely, failure to disclose correct particulars of movable
and immovable assets, and making false declarations
regarding the same. This Court is of the considered view
that such allegations, if established, would clearly fall
within the scope of corrupt practice under Section 123(2) of
the Act. However, it is also noted that the Respondent has
raised an objection on the ground that the Election
Petitioner has not filed a separate affidavit in Form-25, as
Page 49 of 59
required under the proviso to Section 83(1)(c) of the Act,
and hence, the petition is liable to be dismissed.
On the legal question as to whether the absence
of an affidavit in Form-25, as mandated under the proviso
to Section 83(1)(c) for allegations relating to corrupt
practice, ipso facto warrants dismissal of the election
petition, this Court draws guidance from the judgment of
the Supreme Court in Thangjam Arun (Supra). In the said
case, after referring to A. Manju v. Prajwal Revanna35, the
Court held that the requirement to file an affidavit in Form-
25 is directory and not mandatory. It was further held that
where there is substantial compliance such as an affidavit
and verification within the petition itself, affirming the
truthfulness of the allegations relating to corrupt practices,
the petition cannot be dismissed solely on the technical
ground of absence of a separate Form-25 affidavit.
Applying the aforesaid principle to the present
case, this Court finds that the Election Petition contains
both a sworn affidavit and a verification clause, wherein
the Petitioner has affirmed the truth of the allegations
35
(2022) 3 SCC 269
Page 50 of 59
made, including those relating to corrupt practice. In view
of this substantial compliance, and following the settled
legal position, this Court is of the considered view that the
technical omission of filing a separate Form-25 affidavit is
not fatal to the maintainability of the petition. The
Petitioner can always be permitted to cure the defect by
filing the requisite affidavit at a later stage. Accordingly, the
petition cannot be dismissed on this ground alone.
In response to the remaining contentions and
submissions advanced by the learned counsel for the
respective parties, this Court has already dealt with the
same in the foregoing paragraphs, and therefore finds no
necessity for any reiteration.
Therefore, this Court, in the backdrop of the
settled legal position as elucidated above, is not inclined to
summarily reject the pleadings in Paragraphs 6 (A) to 6 (D).
20. In Paragraph 6(E) of the Election Petition, the
Election Petitioner has alleged that Respondent No.1 failed
to disclose essential information in his affidavit filed in
Form-26, including critical particulars relating to the
source of income, movable and immovable assets,
Page 51 of 59
outstanding government dues, and educational
qualifications.
21. Learned counsel for the Respondent No.1, Mr.
Samal, has argued that the averments contained in
Paragraph 6(E) of the Election Petition are devoid of
material facts, requisite particulars, and supporting
documents necessary to sustain the allegations made
therein. According to him, the assertions against
Respondent No.1 are vague, bald, and frivolous, and hence,
liable to be struck out. He contends that the Petition
discloses no cause of action and is, therefore, liable to be
dismissed. The Election Petitioner has also not specified
precise particulars relating to income, assets, government
dues, or educational qualifications which were allegedly
concealed or misrepresented, nor has he indicated whether
any records were verified before instituting the present
petition. According to Mr. Samal, these significant
omissions render the pleadings insufficient in law,
amounting to an abuse of the process of the Court
warranting rejection under the applicable provisions.
Page 52 of 59
22. Per contra, learned counsel for the Election
Petitioner, Mr. Sahu, submits that the Petition contains
adequate pleadings with respect to non-disclosure and mis-
statement of material particulars, including those relating
to the source of income, movable and immovable assets,
government liabilities, and educational qualifications. He
contends that the allegations have been clearly framed with
sufficient clarity to raise triable issues and that the
absence of supporting documents at the preliminary stage
does not render the petition defective, especially when the
material facts have been adequately set out in the
pleadings.
23. Upon careful consideration of the averments
made in Paragraph 6(E) of the Election Petition, this Court
finds that, unlike the pleadings under Paragraphs 6(A) and
6(D), the assertions concerning the alleged non-disclosure
and mis-statement of material particulars namely, the
source of income, movable and immovable assets,
government liabilities, and educational qualifications are
wholly lacking in material particulars and fail to disclose
any valid cause of action. The Election Petitioner has
Page 53 of 59
merely made a sweeping and general allegation that
Respondent No.1 failed to disclose vital information in his
affidavit filed in Form-26 and that he suppressed material
facts while providing misleading information. However,
such broad and un-particularized assertions,
unaccompanied by specific foundational facts such as,
what precise information was allegedly suppressed or mis-
stated, the source of such knowledge, or how these
omissions materially impacted the election, render the
pleadings vague, unsubstantiated, and legally untenable.
It is the settled principle of election law that an
Election Petition must comply strictly with the requirement
of stating material facts, as mandated under Section
83(1)(a) of the Representation of People Act, 1951. The
Supreme Court in C.P. John v. Babu M. Palissery36, has
categorically held that:
“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 defend36
(2014) 10 SCC 547Page 54 of 59
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 94-A of
the Rules in turn stipulates that the affidavit should
be in the prescribed Form 25 and should be sworn
before the Magistrate of the First 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 Form 25 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 statements 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.”
[Emphasis added]
Moreover, in Harishankar Jain (supra), the Supreme
Court held that:
“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 Code of Civil Procedure,
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 ofPage 55 of 59
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 ν. George
Fernandez 18, Jitendra Bahadur Singh v. Krishna
Behari¹9.) 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 this Court has held, on a conspectus of a
series of decisions of this Court, that material facts
are such preliminary facts which must be proved at
the trial by a party to establish existence of a cause of
action. Failure to plead “material facts” is fatal to the
election petition and no amendment of the pleadings
is permissible to introduce such material facts after
the time-limit prescribed for filing the election petition.
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 the 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.”
[Emphasis added]
It has been consistently held that election petitions are to
be strictly scrutinized, and any vague, bald, or generalized
averments, particularly in respect of corrupt practices or
statutory violations, are liable to be summarily rejected. In
the instant case, the Election Petitioner, in Paragraph 6(E)
fails to specify any factual basis to sustain the allegation of
non-disclosure of source of income, movable and
immovable assets, government dues, educational
Page 56 of 59
qualification and how the result was materially affected on
such score. This Court is accordingly of the considered view
that the pleadings under Paragraph 6(E), being bereft of
material facts and particulars, fail to constitute a legally
sustainable cause of action and do not warrant further
adjudication at trial and therefore, deserve to be struck out.
24. Upon a careful consideration of the pleadings
under Paragraphs 6(F), 6(G), 7, 8 and 9 and after hearing
the rival submissions advanced by both parties, this Court
finds that the averments made in Paragraphs 6(F), 6(G), 7,
8 and 9 are essentially a reiteration and summation of the
allegations already pleaded under the Paragraphs 6(A) to
6(D). No independent or distinct allegations have been set
forth in these paragraphs, and they merely encapsulate the
earlier assertions without introducing any fresh grounds of
challenge. Accordingly, this Court is of the considered view
that the pleadings under Paragraphs 6(F), 6(G), 7, 8 and 9
cannot be regarded as vague or bald in respect of the
allegations that are directly relatable to, and derive support
Page 57 of 59
from, the specific allegations made in Paragraphs 6(A) to
6(D).
25. Paragraphs 10 to 12 of the Election Petition
contain averments relating to the point in time when the
cause of action arose, the period of limitation, the deposit
of the requisite challan amount towards security for costs,
and other procedural prerequisites. Upon perusal, it is
evident that these averments are formal and procedural in
nature, aimed at demonstrating compliance with statutory
requirements, and do not contain any substantive
allegations warranting adjudication on merits.
26. Thus, from a conspectus of the analysis of facts,
the position of law and the contentions advanced by the
parties, this Court is of the view that no ground is made
out by the Respondent for this Court to exercise
jurisdiction under Order VI Rule 16 of C.P.C.to strike out
the pleadings, except those under paragraph 6(E), or under
Order VII Rule 11 of C.P.C. to reject the petition at the
threshold or to dismiss the Election Petition under Section
83 of the Act. On the contrary, it is held that the Election
Page 58 of 59
Petition, as laid, does disclose a valid cause of action and
involves triable issues for which it would not be proper to
throw away the same at the threshold without taking it to
trial.
27. For the foregoing reasons therefore, the
application is allowed in part. The pleadings under
Paragraph 6(E) of the election petition are struck out.
…………………………..
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 8th August, 2025/A.K. Rana, P.A.
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Aug-2025 11:34:33 Page 59 of 59