Manipur High Court
Moirangthem Hemanta Singh vs Shri Paonam Brojen Singh on 27 September, 2024
Author: A.Guneshwar Sharma
Bench: A.Guneshwar Sharma
REPORTABLE
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC (El Pet) No.5 of 2022 with
El.Pet No.15 of 2022 with
El Recr Pet No.11 of 2022 with
MC (El Pet) No.100 of 2022 with
MC (El Pet) No.78 of 2022
Moirangthem Hemanta Singh, aged
about 60 years, s/o (late) M.Ningthou
Singh of Tentha Khongbal, PO
Wangjing & PS Khongjom, Thouobal
District, Manipur 795148
... Applicant
-Versus-
1. Shri Paonam Brojen Singh, aged
About 56 years, s/o Paonam Birahari Singh
of Wangjing Wangkhei, PO & PS Thoubal,
Thoubal District, Manipur 795148.
2. Shri Usham Manglem, aged about
26 years, s/o Usham Gopi of Kairembikhok
Awang Leikai, PO Wangjing & PS Thoubal,
Thoubal District, Manipur 795148
... Respondents
BEFORE HON'BLE MR. JUSTICE A.GUNESHWAR SHARMA For the Applicant :: Mr. M. Rendy, Advocate For the Respondents :: Mr. HS Paonam, Sr.Advocate Ms.Malemleima, Advocate Date of hearing :: 13.05.2024 Date of order :: 27.09.2024 MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 1 JUDGMENT & ORDER (C A V) [1] The applicant, who is the petitioner in Election Petition, being EP No.05 of 2022, has filed the present application praying for leave of this Court to file the document annexed herewith in (Annexure R/1), which is a part of the Affidavit[Form- 26] filed along with nomination paper before the Returning Officer, 34-Wangjing Tentha Assembly Constituency for the election of the 12th Manipur Legislative Assembly and also for allowing to insert the same as page 95A between Pages 95 and 96 of the main Election Petition, under order VII Rule 14 of the Civil Procedure Code, 1908 [in short, CPC] and Section 87 of the Representation of the People Act, 1951 [in short, RP Act or RPA].
[2] The applicant/Election Petitioner challenged the election of the respondent No.1 herein for non-disclosure of material information in para 4, 7 and 8 of the affidavit filed along with Nomination paper of the respondent No.1 in the 12th Manipur Legislative Assembly Election.
[3] It is stated that through bona fide/inadvertent mistake of the Junior Counsel of the applicant, the document annexed herewith had been left out at the time of presenting the Election Petition, i.e. Non-Agricultural Land Location(s) Survey number(s). Area/Total measurement in sq.ft), whether inherited property (Yes or No). Date of purchase in case of Self acquired property and cost of land (in case of purchase) at the time of purchase, of the affidavit [Form-26] along with Nomination Paper filed by the respondent No.1, before the Returning Officer, 34-Wangjing Tentha AC of the present election petition in Annexure A/5 which is required to be inserted as page No.95A between the pages 95 and 96 of the present Election Petition No.15 of 2022 in order to avoid further complicacies to the party/respondents and hence, the present application.
MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 2[4] Further, it is stated that unless the humble applicant be allowed to file the proposed document (page 95A) would cause irreparable injury and that the said document is necessary for deciding the matter and shall not cause any prejudice to the respondent No.1.
[5] In the objection filed by respondent No.1, it is stated that filing such document is not permissible after expiry of the 45 days from the date of declaration of election held on 25th April, 2022 and that the present Misc Case is filed only on 7.5.2022 in violation of provisions of Section 81 of the Representation of People's Act, 1951. It is also argued that amendment of Election petition is not permissible in terms of Section 81 of the Representation of People's Act, 1951.
[6] In reply to the objection of respondent No.1, applicant submits that insertion of the left out important document between page No.95 and 96 i.e. 95A is very much necessary to avoid any further unwanted complicacies for not annexing the relevant evidence/particulars in the main Election Petition. Further, it is stated that expiry of 45 days from the date of declaration of election (25.4.2022) is not so relevant since the present application is not an amendment application under Order VI Rule 17 CPC, 1908 and that the present document proposed for insertion is not a new document, nor a document which has no relevance with the main Election Petition and the fact of the said document has already been contended in the above-referred Election petition precisely in para 12(B)(iii).
[7] Mr. M. Rendy, learned counsel for the applicant/ election petitioner submits that as mandated by the provisions of Section 83(1)(a) of RP Act, the petitioner has pleaded all the averments which are materials for deciding the disputes involved in the election petition. It is pointed out that the election of the returned candidate has been challenged by way of the election MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 3 petition being EP No. 15 of 2022 on various grounds such as non- disclosure of materials facts in the affidavit Form-26 filed at the time of submission of nomination paper and corrupt practices. The petitioner has already pleaded in the election petition all the instances of suppression/concealment of material information in the affidavit and every minute details of the factum of corrupt practices. However, due to inadvertence and oversight at the time of the filing of the election petition, one page of the affidavit, ie, Form-26 submitted by the returned candidate [between pages 95 to 96] has been missed out. By the present application under Order 7 Rule 14 CPC, the applicant/election petitioner seeks leave of this Court to file the missing page of the affidavit as Page 95A and to be inserted between pages 95 to 96 of the election petition. It is urged that by inserting page 95A in the election petition, the same will not amount to amendment of election petition within the meaning of Order 6 Rule 17 CPC. It is highlighted that necessary particulars about the concealment of vital information regarding immovable property of the returned candidate/respondent No.1 have already been mentioned in the petition as contemplated by the provisions of Section 83(1)(a) of RP Act and no new fact is proposed to be added by the present application. It is just a prayer for furnishing a missing page from Form-26 of the returned candidate and is proposed to supply material particular of a material fact that has already be included in the petition. Since the application is not in the nature of an amendment, there is no impediment for supplying such document after expiry of 45 days stipulation. It is also urged the provisions of CPC is applicable in an election petition as nearly as possible as postulated in Section 87 of RP Act. [8] Mr. M. Rendy, learned counsel for the applicant relies on the following case laws in support of his submission:
(i) Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar: (2009) 9 SCC 310: All 'material facts' must be MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 4 pleaded by the party in support of the case set up by him.
Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.
(ii) Ram Sukh v. Dinesh Aggarwal: (2009) 10 SCC 541, Hon'ble Supreme Court held that averments of all material facts have to pleaded in the petition and failure to plead even a single material fact will be fatal. Material particulars are not required to be pleaded in the petition.
(iii) Jitu Patnaik v. Sanatan Mohakud: (2012) 4 SCC 194: Material facts are those bundle of facts upon which the claim or defence of the party are based whereas material particulars amplify the material facts during the trial. [9] Learned counsel for the applicant submits that the application may be allowed and the document at Annexure R-1 be permitted to be placed as Page 95A between Pages 95 and 96 in the election petition and in doing so, no new case will be made out. [10] On the other hand, Mr. HS Paonam, learned counsel for respondent No.1/returned candidate draws the attention of this Court the provisions of Section 81 of RP Act which mandates the filing of election petition within 45 days of the from the date of the election of the returned candidate. As per Section 83(1)(a) of the Act, all the material facts have to be pleaded in the election petition and such facts have to be supported by material particulars. In short, material particulars have to be filed along with the election petition within the stipulated 45 days, otherwise the same will be in violation of the condition laid down in Section 81. Learned senior counsel emphasises the fact that supplying additional page for MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 5 incorporating in the affidavit Form-26 will amount to amendment of the election petition in disguise after the stipulated period of 45 days. It is pointed out that election result was declared on 10.03.2022 and the present application was filed on 07-05-2022, ie, after lapse of 58 days and document at Annexure R-1 proposed to be inserted as Page 95A cannot be accepted.
[11] Mr. HS Paonam, learned counsel for returned candidate refers to a decision of this Court in the case of Shri Jyotin Waikhom v. Shri Khumukcham Joykishan [ MC(EP) No. 24 of 2017 in EP No. 8 of 2017]. Relying on various case laws laid down by the Hon'ble Apex Court, it has been held that the replication introducing new facts cannot be entertained as the same would amount to amendment of the petition and that too after lapse of the stipulated period of 45 days. It would be in violation of the provisions of Section 81 of RP Act. It is prayed that the present application be dismissed with heavy cost.
[12] This has perused the materials on record including the election petition and considered the submissions made at bar and relevant law in this regard.
[13] Avoiding full quotation of the provisions of the law, this Court intends to summarise the settle propositions of law in this regard. The substantial points for determination involved in the present application are (I) Whether supplying of a missing page of the Form-26 of the returned candidate is a material fact or material particular?
(II) If the document is a material particular, shall the same be submitted within 45 days?
(III) Whether supplying of a missing page will amount to amendment of election petition?
[14] Section 81 of RP Act provides that an election petition has to be filed within 45 days from the date of the declaration of the MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 6 result of the returned candidate. In view of provisions of Section 83(1)(a) of the Act, the material facts for relying the claim in the petition have to be pleaded and failure to plead a single material fact constituting the cause of action will be fatal. Section 87 of the Act makes the provisions of CPC to be application in an election trial as far as practicable thereby meaning that amendment of petition, etc. from CPC are applicable in election proceeding. Any amendment has to be made within 45 days as stipulated in Section 81. [15] In the case of Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar: (2009) 9 SCC 310, Hon'ble Supreme Court discussed the difference between material facts and material particulars as contained in Section 83 of RP Act and held as below:
52. In V. Narayanaswamy v. C.P. Thirunavukkarasu10 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. Chandrashekar11 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 case9 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 MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 7 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." (emphasis in original)
54. In H.D. Revanna case2 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 Talwandi12 this Court observed thus: (SCC p. 51, para 14) "14. Necessary averment of facts constituting an appeal on the ground of 'his religion' to vote or to refrain from voting would be material facts within the meaning of clause (a) of sub-section (1) of Section 83 of the Act. If such material facts are missing, they cannot be supplied later on, after the expiry of period of limitation for filing the election petition and the plea being deficient, can be directed to be struck down under Order 6 Rule 16 of the Code of Civil Procedure, 1908 and if such plea be the sole ground of filing an election petition, the petition itself can be rejected as not disclosing a cause of action under clause (a) of Rule 11, Order 7 of the Code."
55. In Harkirat Singh v. Amrinder Singh13 this Court again reiterated the distinction between "material facts" and "material particulars" and observed as under: (SCC p. 527, paras 51-52) MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 8 "51. A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise.
52. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."
56. In Sudarsha Avasthi v. Shiv Pal Singh14 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 MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 9 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 case13 tried to give various meanings of "material facts". The relevant para 48 of the said judgment is reproduced as under: (SCC pp. 526-27) "48. The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', 'indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus (3rd Edn.), p.
349.] The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for its claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party."
59. In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (the respondent herein) is bound to substantiate before he can succeed on that charge. It is also well settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient.
60. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention such an important averment in the petition is fatal for the election petitioner (the respondent herein) and the MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 10 election petition is liable to be summarily dismissed on that ground.
61. The legal position has been crystallised by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts" which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act.
2 (1999) 2 SCC 217 12 (2005) 5 SCC 46 13 (2005) 13 SCC 511 14 (2008) 7 SCC 604 [16] In the case of Ram Sukh v. Dinesh Aggarwal:
(2009) 10 SCC 541, Hon'ble Supreme Court held that averments of all material facts have to pleaded in the petition and failure to plead even a single material fact will be fatal. Material particulars are not required to be pleaded in the petition. Relevant para are reproduced for clarity.
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 Fernandez4. Speaking for the three-Judge Bench, M. Hidayatullah, C.J., inter alia, laid down that:
(i) Section 83 of the Act is mandatory and requires first a concise statement of material facts and then the fullest possible particulars;
(ii) omission of even a single material fact leads to an incomplete cause of action and statement of claim becomes bad;
(iii) the function of particulars is to present in full a picture of the cause of action and to make the opposite party understand the case he will have to meet;
(iv) material facts and particulars are distinct matters--material facts will mention statements of fact MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 11 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 Singh5 wherein C.K. Thakker, J., stated thus: (SCC pp. 631-32, para 50) "50. There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue."
MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 1217. 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. 4 (1969) 3 SCC 238 5 (2007) 3 SCC 617 [17] In the case of Jitu Patnaik v. Sanatan Mohakud:
(2012) 4 SCC 194, Hon'ble Apex Court distinguished between material facts and material particulars or evidences as below:MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 13
43. Order 6 Rule 2 CPC, to the extent it is relevant, reads as under:
"2. Pleading to state material facts and not evidence.--(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. (2)-(3) * * *"
44. Section 83(1)(a) of the 1951 Act is as follows:
"83. Contents of petition.--(1) An election petition--
(a) shall contain a concise statement of the material facts on which the petitioner relies;"
45. A bare perusal of the above provisions would show that the first part of Order 6 Rule 2 CPC is similar to sub-section (1)(a) of Section 83 of the 1951 Act. It is imperative for an election petition to contain a concise statement of the material facts on which the election petitioner relies. What are the material facts? All basic and primary facts which must be proved at the trial by a party to establish the existence of a cause of action or defence are material facts. The bare allegations are never treated as material facts. The material facts are such facts which afford a basis for the allegations made in the election petition. The meaning of "material facts" has been explained by this Court on more than one occasion. Without multiplying the authorities, reference to one of the later decisions of this Court in Virender Nath Gautam v. Satpal Singh8 shall suffice.
46. In Virender Nath Gautam8 this Court referred to the leading case of Philipps v. Philipps9 and the subsequent decision in Bruce v. Odhams Press Ltd.10 that referred to Philipps9 and observed in paras 34 and 35 of the Report as follows: (Virender Nath case8, SCC p. 629) "34. A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 14 hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise.
35. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."
47. Whether the averments in the election petition constitute material facts or not would depend upon the facts of each case. As stated by this Court in Virender Nath Gautam8, no rule of universal application can be applied in finding out whether the statements of fact made in the election petition amount to material facts or not. It is, therefore, necessary to consider the pleadings with regard to suppression of 319 votes in Para 7(D) of the election petition.
8 (2007) 3 SCC 617 9 (1878) 4 QBD 127 (CA) 10 (1936) 1 KB 697 : (1936) 1 All ER 287 (CA) [18] From the above cited decisions, it is clear that the election petition is to be filed within 45 days as stipulated under Section 81 of RP Act and concise material facts have to pleaded and failure to do shall be liable for its outright rejection at threshold under Order 7 Rule 11 CPC. Any amendment has to be made within 45 days as laid down by Section 81. Material particulars are facts required for proving the material facts as evidence and hence not parts of the pleadings.
MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 15[19] On perusal of the election petition, specially, the contents of para 10, 11 and 12, it is found that the applicant/ election petitioner has pleaded all instances of concealment of material information in the affidavit Form-26 by the returned candidate. However, one page of the affidavit with respect to non- movable property has been missing and the same is said due to inadvertence. By the present application, the election petitioner seeks leave of this Court for inserting this particular (Annexure R-1 to the application) as page 95A in between pages 95 and 96. This Court is of the firmed opinion that missing document from the affidavit Form-26 (Annexure R-1) is a material document only and the fact relating to this document has already been pleaded in the election petition. Accordingly, first point is answered in favour of the applicant.
[20] It is the settled position of law that only material facts are to be pleaded in an election petition as stipulated under Section 83(1)(a) of RP Act and such a petition has to be filed within 45 days of the declaration of the election result in terms of Section 81 of the Act. However, material particulars which are explanatory facts/documents of the material facts pleaded in the election petition are in the nature of evidence and are not required to be pleaded in the petition. It is held in para 18 above that missing document from the affidavit Form-26 [Annexure R-1] is only a material particular and as such the same is not required to be filed within 45 days in terms of Section 81 of the Act. Second point is also decided in favour of the applicant.
[21] The principle of amendment as embodied in Order 6 Rule 17 CPC provides for amendment of the pleadings of the parties generally prior to the commencement of trial for determining the true dispute between the parties. However, no new case can be introduced by such amendment. Section 87 of RP Act permits the application of the rules of CPC in an election petition as far as MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 16 practicable and in case of inconsistency, the provisions of RP Act shall prevail. Reading together the provisions of Order 6 Rule 17 CPC with Section 81 of RP Act, any amendment to election petition has to be made within the stipulated 45 days.
[22] In the present case, the election petitioner prays for introducing a missing page of the affidavit Form-26 of the returned candidate. The issue is whether such an endeavour amounts to amendment of the election petition. If the answer is YES, such an amendment after 58 days will be barred by Section 81 of RP Act. As already observed above, the missing document, ie, Annexure R-1 is only a material document and inserting the same as page 95A will not amount to amendment of election petition, as the necessary material facts have already been averred in para 10, 11 and 12 of the election petition. Accordingly, third point is also decided in favour of the applicant.
[23] In view of the findings of all points for determination in favour of the applicant/election petitioner, the application is allowed and missing document marked as Annexure R-1 is permitted to be inserted as Page 95A in between Pages 95 and 96 of the election petition, subject to the payment of cost of Rs. 10,000/- (Rupees ten thousand) only in favour of High Court Bar Association, Manipur for relief purpose.
[24] MC(EP) No. 5 of 2022 is allowed and disposed. List election petition with the pending applications on 09.10.2024 for further proceedings. Applicant is directed to submit proof of payment of the cost before the next date.
JUDGE FR/NFR Priyojit MC(EP) NO. 5 OF 2022 IN EP NO. 15 OF 2022: 17 RAJKUMAR Digitally signed by RAJKUMAR PRIYOJIT PRIYOJIT SINGH Date: 2024.09.27 SINGH 13:12:56 +05'30'