Manipur High Court
Ss. Olish vs Mr. Lunkhopao Haokip on 17 October, 2023
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
SHAMURAILATPAM Digitally signed by
SHAMURAILATPAM SUSHIL SHARMA P a g e | 1
SUSHIL SHARMA Date: 2023.10.17 12:43:42 +05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC(El.Pet.) No. 140 of 2022
Ref:- El.Pet. No. 26 of 2022
SS. Olish, aged about 44 years, D/o SS. Mohring,
resident of Mantri Pantha Village, Tehsil-Chandel, P.O. &
P.S. Chandel, Chandel District - 795127.
(BJP Candidate).
.... Applicant/Respondent No. 1
-Versus-
1. Mr. Lunkhopao Haokip, aged about 55 years, S/o (L)
Paokhohang Haokip of M.G. Avenue, Thangal Bazar,
P.O. & P.S. Imphal, District Imphal West, Manipur
(NPP Candidate).
...O.P./Petitioner
2. Mr. Langhu Paulhring Anal, aged about 47 years, S/o
(L) Langhu Benjamin Anal of Chandel Christian
Village, P.O. & P.S. Chandel, District Chandel,
Manipur- 795127 (NPF Candidate).
...O.P./Proforma Respondent
BEFORE
HON'BLE THE ACTING CHIEF JUSTICE M.V. MURALIDARAN
For the Applicant :: Mr. Lenin Hijam, Sr. Adv.
Mr. I. Amri, Adv.
For the Respondents :: Mr. HS Paonam, Sr. Adv.
Mr. S. Gunabanta, Adv.
Date of Hearing and
reserving Judgment & Order :: 29.08.2023
Date of Judgment & Order :: 17.10.2023
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
Page |2
JUDGMENT AND ORDER
(CAV)
This petition has been filed by the petitioner under
Order 7, Rule 11(a) and Order 6, Rule 16 of the Code of Civil
Procedure, 1908 read with Section 86 of the Representation of
People Act, 1951 to reject the election petition, as it has failed to
disclose triable cause of action and for non-compliance of the
mandatory provision of Section 81 of the Representation of
People Act, 1951 (for short, "the RP Act").
2. The petitioner is the first respondent/returned
candidate in the election petition.
3. The election petitioner has filed the election petition
to quash the election of the first respondent as returned
candidate from 41-Chandel (ST) Assembly Constituency to the
12th Manipur Legislative Assembly Election, 2022 as null and
void. Pending election petition, the first respondent has filed the
present petition to reject the election petition on the ground that
the election petitioner has failed to disclose the material facts and
also the actual cause of action and for non-compliance of the
provision of Section 81 of the RP Act.
4. Opposing the petition, the election petitioner has
filed affidavit-in-opposition, inter alia, stating that there is enough
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
Page |3
material facts and material particulars pleaded in the election
petition. The election in respect of 41-Chandel (ST) Assembly
Constituency in the manner and circumstances as narrated in the
election petition can be declared as null and void in terms of the
RP Act. The cause of action for maintaining the election petition
has been clearly stated in the election petition.
5. Mr. Lenin Hijam, learned senior counsel for the first
respondent submitted that the election petitioner has failed to
mention material facts and material particulars which would
constitute the cause of action for filing the election petition. He
would submit that Section 100 of the RP Act has not provided the
grounds which are taken by the election petitioner in his election
petition for challenging the election of the first respondent and,
as such, the election petitioner has no right to challenge the
election of the first respondent.
6. The learned senior counsel for the first respondent
further submitted that no allegations have been made against the
first respondent. As such, the election petition has been filed
without any allegation against the first respondent. The returning
officer, exercising the power conferred by Section 36(2) read with
Section 9A of the RP Act, has rightly rejected the nomination
paper of the election petitioner under order dated 15.2.2022.
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
Page |4
Aggrieved by the said order dated 15.2.2022, the election
petitioner has filed W.P.(C) No.147 of 2022 before this Court.
The election petitioner has no right to challenge the election of
the first respondent. Moreover, the election petition is barred by
doctrine of waiver.
7. The learned senior counsel for the first respondent
urged that the election petitioner has failed to plead the concise
statement of material facts against the first respondent. Finding
that the nomination paper of the election petitioner is barred by
Section 9A of the Act, the returning officer has rightly rejected the
same.
8. The learned senior counsel next submitted that the
grounds taken by the election petitioner that the issue of rejection
of his nomination paper by the returning officer due to
subsistence of the Government contract with him during the time
of filing his nomination and on the date of scrutiny are be
considered at the trial of the election petition, but as per the
decision of the Hon'ble Apex Court in Civil Appeal No.4129 of
2009, dated 13.4.2011, a candidate having subsisting contract
with the Government is disqualified under Section 9A of the RP
Act from filing nomination paper and contesting the election.
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
Page |5
9. The learned senior counsel for the first respondent
then submitted that due to the subsisting Government contracts,
the election petitioner was disqualified by the returning officer, as
he is barred from filing the nomination paper. Such an issue
involved in the election petition cannot be a ground for
challenging the election of the first respondent. There is no cause
of action for filing the election petition. The averments in the
election petition are vague and lacks material particulars and is
in clear violation of Sections 81 and 83 of the RP Act. The
election petitioner has not complied with Sections 83(1)(a) and
(b) of the RP Act and, therefore, the same deserves to be
dismissed under Order 7, Rule 11 CPC. To fortify his
submissions, the learned counsel for the first respondent placed
reliance upon the following decisions:
(i) P.H. Paul Manoj Pandian v. P.Veldurai,
(2011) 5 SCC 214
(ii) Sewaram v. Sobaran Singh, 1993 Supp
(2) SCC 46
(iii) Konappa Rudrappa Nagouda v.
Vishwanath Reddy and another, AIR
1969 SC 447
(iv) Rajeshekar Basavaraj Patil v. Subash
Kallur and others, (2002) 8 SCC 467
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
Page |6
(v) Election Commission of India v. Bajrang
Bahadur Singh and others, (2015) 12
SCC 570
(vi) Jaipal Singh v. Sumitra Mahajan and
others, (2004) 4 SCC 522
10. Per contra, Mr. HS Paonam, the learned senior
counsel for the election petitioner submitted that there is enough
material facts and material particulars pleaded in the election
petition, which would materially affect the sanctity of the electoral
process to conduct a free and fair election and the voters right to
choose their representative, which is the basic structure of the
Constitution in respect of 41-Chandel (ST) Assembly
Constituency. As such, the election of the first respondent in the
manner and circumstances stated in the election petition can be
declared as null and void in terms of the provisions of the RP Act.
11. The learned senior counsel further submitted that
the election petitioner has clearly stated the cause of action
arisen for filing the election petition. The returning officer does
not have the machinery and authority to enquire into the
correctness or incorrectness of Form-26 affidavit.
12. The learned senior counsel then submitted that
Section 9 of the RP Act demands the passing of an order by a
competent civil court under the Indian Contract Act, 1872 so far
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
Page |7
as the decision as to whether the contract executed by the
person is still subsisting on the date of consideration of the
disqualification. As such, the disqualification of the election
petitioner under Section 9 of the RP Act is against the provision
of law which is in complete derogatory to all settled principle of
rule of law and, if the trial is conducted, there is every possibility
of this Court to declare the election of the first respondent as void.
13. Adding further, the learned senior counsel
submitted that the first respondent could not understand that the
grounds which are all relevant with the case of the election
petitioner which are already raised in W.P.(C) No.147 of 2022
could not warrant restrictions for the said grounds to be raised in
the present election petition and the aforesaid two petitions are
altogether different petitions and the election of the first
respondent can only be challenged in an election petition and not
in a writ petition. In fact, W.P.(C) No.147 of 2022 has been filed
for deciding the important question pertaining to the power of the
returning officer to disqualify a candidate from contesting the
election.
14. The learned senior counsel for the election
petitioner urged that the disqualification of the election petitioner
under Section 9 of the RP Act is against the provision of law.
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
Page |8
The improper rejection, without following the due process of law,
of the nomination paper of the election petitioner is purely non-
application of mind of the returning officer, which results the
violation of the sanctity of the electoral process of 41-Chandel
(ST) Assembly Constituency.
15. The learned senior counsel finally submitted that it
could be understood that the ill-conceived intention of the first
respondent for filing the present petition is nothing but for wasting
the valuable time of this Court. The election petitioner never got
a choice to contest in the election as the nomination paper of the
election petitioner was improperly rejected by the returning
officer. Therefore, there is every possibility of this Court to
declare the election of the first respondent as void and the
election petitioner clearly stated the cause of action in the
election petition and that the trial of the election petition needs to
be conducted. In support of his submissions, the learned senior
counsel placed reliance upon the following decisions:
(i) D.Ramachandran v. R.V.Janakiraman and
others, (1999) 3 SCC 267
(ii) P.V. Guru Raj Reddy v. P.Neeradha Reddy,
(2015) 8 SCC 331
(iii) Srihari Numandas Totala v. Hemant Vithal
Kamat, (2021) 9 SCC 99
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
Page |9
(iv) R.K.Imo Singh v. Dr. Khwairakpam Loken
Singh, 2017 SCC OnLine Mani 127
(v) Order dated 4.1.2018 passed in MC (EP)
No.6 of 2017 (Th. Shyamkumar v.
Dr.Nimaichand Luwang).
(vi) Order dated 23.5.2023 passed in MC (EP
No.25 of 2022 (Lorho S. Pfoze and Houlim
Shokhopao Mate @ Benjamin)
16. This Court considered the rival submissions and
also perused the materials available on record.
17. The first respondent seeks to reject the election
petition on the grounds - (i) no cause of action; (ii) no valid ground
taken in the election petition for challenging the election of the
first respondent; (iii) no allegations have been made against the
first respondent; exercising power conferred under Section 36(2)
read with Section 9A of the RP Act, the returning officer rejected
the nomination papers of the election petitioner vide order dated
15.2.2022; (iv) Section 100(1)(c) of the RP Act is not applicable
to the case of the election petitioner; (v) due to subsisting
Government contracts, the election petitioner was disqualified by
the returning officer, as he is barred from filing the nomination
paper as per the settled law of the Hon'ble Supreme Court.
18. On the other hand, the election petitioner contends
that the election petitioner never got a chance to contest in the
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 10
election as his nomination was improperly rejected by the
returning officer. There are enough facts and material particulars
pleaded in the election petitioner which would materially affected
the sanctity of the electoral process to conduct a free and fair
election.
19. The election petitioner filed election petition mainly
on the ground that his nomination paper has been improperly
rejected by the returning officer and that the election of the first
respondent materially affected on the ground of improper
rejection of the nomination paper as set out in Section
100(1)(c)(d)(iv) of the RP Act. In the election petition, the
petitioner stated that consequent to the declaration of the first
respondent as null and void, appropriate orders may be passed
for process of conducting by-election in 41-Chandel (ST)
Assembly Constituency. The election petitioner stated in
paragraph 28 of the election petition that the cause of action for
filing the present election petition arose on 15.2.2022 when the
election petitioner's nomination paper was improperly rejected by
the returning officer and further on 10.3.2022 when the result of
the election was declared by the returning officer.
20. Per contra, the first respondent pleaded that the
returning officer has given reasonable opportunity to the election
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 11
petitioner and the candidature of the election petitioner was not
rejected instantly and he was given date to prove his case,
however, he has failed to prove his case and, hence, his
candidature was rejected.
21. The election petitioner is the candidate set up by
National People's Party (NPP) and the first respondent is the
candidate set up by the Bharathia Janata Party (BJP).
22. According to the election petitioner, the returning
officer without any authority and without following the due
process of law disqualified the election petitioner under Section
9A of the RP Act and has rejected the nomination papers
improperly and also in violation of the provisions of the RP Act.
23. Under press note dated 8.1.2022, the schedule for
12th General Elections to the Manipur Legislative Assembly was
notified as under:
Sl. Poll Event First Phase Second
No. Phase
1 Issue of 01.02.2022 04.02.2022
Notification (Tuesday) (Friday)
2 Last date of 08.02.2022 11.02.2022
making (Tuesday) (Friday)
Nominations
3 Scrutiny of 09.02.2022 14.02.2022
Nominations (Wednesday) (Monday)
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 12
4 Last date for 11.02.2022 16.02.2022
withdrawal of (Friday) (Wednesday)
Candidature
5 Date of Poll 27.02.2022 03.03.2022
(Sunday) (Thursday)
6 Counting of 10.03.2022 (Thursday)
Votes
7 Date before 12.03.2022
which the (Saturday)
election process
shall be
completed
24. The 41-Chandel (ST) Assembly Constituency is
included in the second phase. Under press note dated
10.02.2022, the Election Commission of India, changed the poll
date for the first phase as 28.02.2022 (Monday) and the second
phase as 05.03.2022 (Saturday). The election petitioner
submitted his nomination papers along with Form 26 affidavit on
09.02.2022. The first respondent filed his nomination papers
along with Form-26 affidavit on 09.02.2022.
25. On the date of scrutiny i.e. on 14.02.2022, the
election agent of the first respondent has submitted an objection
dated 14.02.2022 against the nomination filed by the election
petitioner, inter alia, on the ground that Form-26 affidavit filed by
the election petitioner is defective. One of the objections raised
by the first respondent is that the election petitioner has given
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 13
details of subsisting contracts with the Government which would
render him disqualified under Section 9A of the RP Act. The
objection of the first respondent was forwarded to the election
petitioner on the same day calling upon him to respond to the
objection by 9.30 a.m. of 15.2.2022.
26. The contention of the election petitioner is that the
date fixed for scrutiny i.e. 15.2.2022 is a general holiday in the
State of Manipur on the occasion of Lui-Ngai-Ni. Despite clear
provision in the guidelines for taking up scrutiny on a working day
and in spite of the request made by the election petitioner for
taking up on the next working day, the returning officer for
reasons best known to him has insisted to complete the scrutiny
on the holiday i.e. on 15.2.2022. As an aspiring candidate, the
election petitioner has submitted his reply on 15.2.2022 to the
objection raised by the first respondent through his agent. In the
reply dated 15.2.2022, the election petitioner stated as under:
(i) Once the nomination papers are
substantially complied, the nomination
papers cannot be rejected.
(ii) Defects of disclosure/non-disclosure in
Form-26 affidavit is not a matter which is
required to be enquired into by the
returning officer at the time of scrutiny as
the returning officer do not have the
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 14
machinery and authority to enquire into
the correctness of Form-26 affidavit of a
candidate.
(iii) Once the prescribed affidavit has been
filed, but are found or considered to be
defecting or containing false information,
the nomination should not be rejected on
this ground.
(iv) Any allegation or violation of Section 8(A)
or 9(A) of the RP Act must be decided in
an election petition filed by the aggrieved
party.
(v) The returning officer has no jurisdiction
and authority to decide whether a
candidate is liable to be disqualified
under the RP Act.
27. The returning officer, by the order dated 15.2.2022,
rejected the nomination papers of the election petitioner
LunkhopaiHaokip @ Apao as per Section 36(2) read with Section
9A of the RP Act and as per para 6.10 of the Handbook of the
Returning Officer. The rejection order dated 15.2.2022 of the
returning officer of 41-Chandel (ST) Assembly reads thus:
NO.RO/41/8/SCRU/SAE-2022
GOVERNMENT OF MANIPUR
OFFICE OF THE RETURNING OFFICER,
41-CHANDEL (ST) ASSEMBLY
CONSTITUENCY, CHANDEL
ORDERS
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 15
Chandel, the 15th February, 2022
Whereas, in connection with the 12th Manipur
Legislative Assembly Elections, 2022, the
Scrutiny of 12 (twelve) nomination papers of
4 (four) Nominated Candidates filed for 41-
Chandel (ST) Assembly Constituency were
taken up at 11.00 am. on 14th February 2022;
2. Whereas, 8 (eight) nomination papers of 3
(three) Nominated Candidates were
accepted/rejected in the scrutiny on 14th
February 2022 as below:
3. Whereas, 4 (four) nomination papers of
Shri Lunkhopao Haokip @ Apao (nominated
NPP Candidate) were objected upon and also
a written complaint was filed by the
complainant Shri Ts. John Molarshing,
Election Agent of SS. Olish, Nominated
Candidate of 41- Chandel (ST) AC. Out of the
various points highlighted in the written
complaint, Point No.12 pertains to a
complaint for rejection of nomination papers
on grounds of disqualification under Section
9A of the Representation of People Act, 1951.
4. Whereas, as per the information provided
by the complainant and when asked to the
concerned Candidate as to whether he is
subsisting any contract(s) with the State
Government, the Candidate replied in
affirmative. Therefore, the complaint has a
prima facie satisfaction of the Returning
Officer.
5. Whereas, to give opportunity to rebut the
claims, vide Order No.RO/41/8/SCRU/SAE-
2022 dated 14th February, 2022 issued by the
undersigned in pursuance of Returning
Officer Handbook Chapter 6.11.1, the
Scrutiny of nomination papers of Shri
Lunkhopao Haokip @ Apao (nominated NPP
Candidate) was adjourned till 9:30 am. on 15th
February, 2022. Accordingly, vide letter
No.RO/41/8/SCRU/SAE-2022 dated 14th
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 16
February, 2022, the undersigned informed
Shri Lunkhopao Haokip @ Apao (nominated
NPP Candidate)/His Election Agent to reply
the said objections latest by 9:30 a. of 15th
February, 2022.
6. Whereas, based on the merit of the
complaint and as decided by the Returning
Officer to ascertain the veracity of the
subsistence of contract by the Candidate with
the State Government, there needs a
confirmation on the following points;
a. Whether a contract be entered into
by the Candidate or in the course of
his trade or business with the State
Government.
b. Whether the contract subsists.
c. Whether the contract relate to the
works undertaking by the State
Government.
d. Whether the contract should be for
execution of such works.
7. Whereas, the contract pertains to 11
(eleven) works of 3 (three) Departments of
State Government and to take a judicious and
right decision, the departments concerned
were officially intimated to give status of the
11 (election) works on the above points.
8. Whereas, Shri Lunkhopao Haokip @
Apao (nominated NPP Candidate) has
submitted a written reply to the undersigned
at 9:20 am of 15th February, 2022, and at 9:30
am of 15th February, 2022, the adjourned
scrutiny was resumed.
9. Whereas, all the
objections/replies/documents received by the
Returning Officer are thoroughly examined
and taking into account of all the points at
para No.6 mentioned above, it is confirmed
that the Candidate is having subsisting
contract with the State Government and as
per Section 3692) read with Section 9A of the
Representation of the People Act, 1951, it has
been decided that all the nomination papers
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 17
of Shri Lunkhopao Haokip @ Apao
(nominated NPP Candidate) be rejected.
10. Now, therefore, I, Shri Mayanglambam
Rajkumar, Returning Officer of 41- Chandel
(ST) Assembly Constituency hereby rejects
all the nomination papers of Shri Lunkhopao
Haokip @ Apao (nominated NPP Candidate)
as per Section 36(2) read with Section 9A of
the Representation of People Act, 1951 and
as per Handbook of Returning Officer
(February 2019, Document 23-Edition1)'s
Para No.6.10.
Place :Chandel
Date : 15th February, 2022
(Mayanglambam Rajkumar)
Returning Officer
41-Chandel (ST) Assembly
Constituency"
28. On a perusal of the reply of the election petitioner to
the objection filed by the first respondent, the election petitioner
has not raised the plea that the scrutiny should be taken on
working day and the returning officer ought not to have
conducted the scrutiny on 15.2.2022 being a general holiday in
the State of Manipur. In the absence of any plea in the reply to
the objection filed by the first respondent and having participated
in the scrutiny of nomination, the election petitioner is estopped
from raising the plea that the scrutiny ought not to have taken
place on 15.2.2022.
29. According to the election petitioner, a deed of
retirement dated 10.2.2022 filed along with the election petition
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 18
would indicate that no contract is subsisting with the election
petitioner on the date of the scrutiny and despite submitting the
said deed of retirement before the returning officer, the same has
not been considered by the returning officer.
30. On a perusal of the reply dated 15.2.2022 to the
objection filed by the election petitioner, it is seen that there is no
whisper about the deed of retirement dated 10.2.2022. Having
not disclosed the deed of retirement dated 10.2.2022 in the reply,
there is doubt about the execution of deed of retirement dated
10.2.2022 between the partners in good faith. Assuming that the
deed of retirement was executed on 10.2.2022, on the date of
filing nomination dated 9.2.2022, the election petitioner was a
partner of M/s.Lunkhopao Haokip Construction.
31. Upon receipt of the complaint, on 14.2.2022, the
returning officer addressed a letter to the Chief Engineer, PWD,
Manipur; the Chief Engineer, Rural Engineering Department,
Manipur and the Managing Director, Manipur Police Housing
Corporation, Manipur for furnishing status of contracts on or
before 5.00 pm on 14.2.2022. The respective Departments have
furnished the subsisting works as under:
(i) RURAL ENGINEERING DEPARTMENT
Construction of road from L033 - Lamjang to
Takvom under Churachandpur Block
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 19
Construction of road from L032 0 Ngaronchingjin to
Salampatong under Saikul Block
Construction of road from L027 - Laikoiching to
South Lonsing under Saikul Block
Construction of road from CbassadKamjong to
Molvailup-II/Kuluk under Kamjong Block.
Construction of road from Singngat to Tonglon T
under Singhat Block.
Construction of road from new Keithelmanbi to S.
Bongjam under Saikul Block
Construction of road from NH-39 (Moreh) to Maipi
under Tengnoupal Block
(ii) PUBLIC WORKS DEPARTMENT
Improvement of road from Joupi to Sehao.
Improvement of road: Black topping with line drain
in and around Sugnu Town covering Zouveng,
Hospital Road, Khumjang, Kotsophai, Greenland
Hospital.
(iii) MANIPUR POLICE HOUSING CORPORATION
Construction of Ima Market at Khamnu Bazar,
Moirang, Bishnupur District under Special
Assistance to States for capital expenditure 2020-
21 (Work Order No.EE-II/05/2020-
21/MPHC/BPR/05).
Construction of Ima Market at Khamnu Bazar,
Moirang, Bishnupur District under Special to States
for capital expenditure 2020-21 (Work Order
No.ED/12/2044-05/MPHC(W)/107)
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 20
32. Thus, it is clear that on the date of filing of the
nomination papers and contest in the election, the election
petitioner was having subsisting contract works with the
Government. The returning officer rejected the nomination
papers of the election petitioner under Section 36(2) read with
Section 9A of the RP Act. It would be appropriate to quote the
said provisions for ready reference.
33. Section 36(2) of the RP Act provides:
"Section 36. Scrutiny of nomination. -
(1) ...
(2) The returning officer shall then
examine the nomination papers
and shall decide all objections
which may be made to any
nomination and may, either on
such objection or on his own
motion, after such summary
inquiry, if any, as he things
necessary, reject any
nomination on any of the
following grounds:-
(a) that on the date fixed for
the scrutiny of
nominations the
candidate either is not
qualified or is disqualified
for being chosen to fill the
sea under any of the
following provisions that
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 21
maybe applicable,
namely:- Articles 84, 102,
173 and 191 Part II of this
Act and sections 4 and 14
of the Government of
Union Territories Act,
1963 (20 of 1963); or
(b) that there has been a
failure to comply with any
of the provisions of
section 33 or section 34;
or
(c) that the signature of the
candidate or the proposer
on the nominate paper is
not genuine."
34. Section 9A of the RP Act provides:
"9A. Disqualification for Government
contracts, etc.-
A person shall be disqualified if, and for
so long as, there subsists a contract
entered into by him in the course of his
trade or business with the appropriate
Government for the supply of goods to,
or for the execution of any works
undertaken by, that Government.
Explanation.- For the purposes of this
section, where a contract has been
fully performed by the person by whom
it has been entered into with the
appropriate Government, the contract
shall be deemed not to subsist by
reason only of the fact that the
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 22
Government has not performed its part
of the contract either wholly or in part."
35. At this juncture, Mr. HS Paonam, the learned senior
counsel for the election petitioner submitted that Section 9A of
the RP Act demands passing of an order by a competent civil
court under the Indian Contract Act, 1872 so far as the decision
as to whether the contract executed by the person is still
subsisting on the date of consideration of the disqualification
under Section 9A of the RP Act. Thus, the specific argument of
the learned counsel for the election petitioner is that the returning
officer without any authority of law and without following the due
process of law has assumed that the election petitioner is
disqualified under Section 9A of the RP Act and accordingly the
returning officer has rejected the nomination paper of the election
petitioner improperly and also in violation of the provisions of the
RP Act.
36. Drawing the attention of this Court to Section 100 of
the RP Act, Mr. Lenin Hijam, the learned senior counsel for the
first respondent argued that Section 100 of the RP Act has not
provide the aforesaid two grounds, namely (i) the returning officer
without any authority of law and without following the due process
of law has assumed that the election petitioner is disqualified
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 23
under Section 9A of the RP Act and (ii) the returning officer has
rejected the nomination paper of the election petitioner
improperly and also in violation of the provisions of the RP Act,
for challenging the election of the first respondent, and, as such,
the election petitioner has no right to challenge the election of the
first respondent.
37. Section 100 of the RP Act provides:
"100. Grounds for declaring election to be
void.--
(1) Subject to the provisions of sub-section (2)
if the High Court is of opinion--
(a) that on the date of his election a returned
candidate was not qualified, or was disqualified,
to be chosen to fill the seat under the
Constitution or this Act or the Government of
Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been
committed by a returned candidate or his
election agent or by any other person with the
consent of a returned candidate or his election
agent; or
(c) that any nomination has been improperly
rejected; or
(d) that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected--
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 24
(i) by the improper acceptance or any
nomination, or
(ii) by any corrupt practice committed in
the interests of the returned candidate by
an agent other than his election agent, or
(iii) by the improper reception, refusal or
rejection of any vote or the reception of
any vote which is void, or
(iv) by any non--compliance with the
provisions of the Constitution or of this Act
or of any rules or orders made under this
Act, the High Court shall declare the
election of the returned candidate to be
void.
........"
38. Admittedly, Section 100 of the RP Act has not
provided the aforesaid two grounds that have been raised by the
election petitioner. In fact, no allegation has been made by the
election petitioner against the first respondent. Without any
allegation against the first respondent, no election petition would
lie against the first respondent.
39. It is pertinent to note that the election petitioner
himself admitted the existence of 11 subsisting Government
contract works being executed by him at Para 7 of Part IIIA of
Form 2B and also at Para 9B of Form-26 affidavit. Thus, the
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 25
case of the election petitioner is barred by the settled law of the
Hon'ble Supreme Court.
40. In Ph. Paul Manoj Pandian, supra, the Hon'ble
Supreme Court held as under:
"58.The next result of the above
discussion is that on the date of
submission of nomination papers by
the respondent as well as on the date
of scrutiny of the nomination papers,
the contracts entered into by the
respondent with the Government were
subsisting and, therefore, the
respondent was disqualified from filing
the nomination papers and contesting
the election. The respondent having
incurred disqualified under the
provisions of Section 9-A of the Act, his
election will have to be declared to be
illegal. Accordingly, it is declared that
the respondent had incurred
disqualification under Section 9-A of
the Act, and, therefore, his election
from the constituency in question is
declared to be illegal, null and void."
(emphasis supplied)
41. In Sewaram, supra, the Hon'ble Supreme Court
held thus:
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 26
"15. We have given our thoughtful
consideration to the arguments advanced by
learned counsel for both the parties and also
the case-law cited at the Bar. The question of
subsistence of a contract with the appropriate
Government making it a disqualification under
Section 9-A of the Act is a question of fact
depending on the facts and circumstances of
each case. In Abdul Rahiman
Khan v. Sadasiva Tripathi [(1969) 1 SCR
351 : AIR 1969 SC 302 : 39 ELR 92] the
respondent was declared elected to the
Legislative Assembly of Orissa from the
Nowrangpur General Constituency. The
appellant filed an election petition before the
High Court of Orissa for an order setting aside
the election of the respondent, on the ground
that the appellant's nomination paper was
improperly rejected and he was illegally
deprived of his right to contest the election. It
was a common ground that the appellant was
carrying on the business of a building
contractor and that in pursuance of a
notification issued by the Government of
Orissa he had submitted tenders for
construction of buildings of the Rental
Housing Scheme at the rates specified
therein. The tenders were accepted and the
appellant had carried out a part of the
construction work, but had thereafter stopped
the work because he suffered serious injuries
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 27
which necessitated his detention in a public
hospital. The appellant claimed that at his
request the contract was cancelled, and on
that account at the date of filing of his
nomination there was, between him and the
State of Orissa no subsisting contract for
execution of works undertaken by him, and
that in any event there was in law no contract
between him and the State relating to the
execution of works which disqualified him
from standing for the election as a candidate
for a seat in the State Legislative Assembly.
16. In the facts and circumstances of the
above case, it was held that the appellant had
commenced execution of the work, but had
not completed it. Payment for the work done
was not made to the appellant. The contract
was not determined by mutual agreement nor
was it abandoned.
17. In Konappa Rudrappa
Nadgouda v. Vishwanath Reddy [(1969) 1
SCR 395 : AIR 1969 SC 447 : 39 ELR 182]
the appellant and the first respondent were
candidates for election in February 1967 from
the Yadagiri constituency which was won by
the first respondent. The appellant challenged
his election by a petition on the ground that
he was a partner in a firm which had two
contracts with the State Government, one for
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 28
the construction of a road and the other for
the construction of a dispensary building,
which were subsisting on the day when
nominations were filed; he was therefore
disqualified from being a candidate under
Section 9-A of the Representation of the
People Act, 1951 and his election was void.
The High Court dismissed the election
petition. This Court allowed the appeal and
held that the High Court was in error in
holding that the contracts had been fully
performed and Section 9-A did not apply. It
was held that the law requires that a
candidate should not have any interest in any
contract with Government and therefore even
a partner in a firm has an interest sufficient to
attract the provisions of Section 9-A. The first
respondent could not by a private dissolution
of the partnership escape his liability under
the contract to the Government, and there
was here no novation, because notice of the
dissolution was not given to Government and
the Government had not accepted the person
to whom the business was transferred in
place of the respondent's firm.
.........
21. Now we shall consider the main plank of
the contention on which the entire edifice has
been built by Sewaram that he had submitted
a letter dated January 30, 1990 whereby he
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 29
had severed all his connections with the
contract in question and after this date there
was no subsisting contract so as to incur any
disqualification under Section 9-A of the Act.
Admittedly, this letter dated January 30, 1990
is addressed to the Executive Engineer, but
in fact, it was delivered not in the office of
Executive Engineer Mr Mandloi, but had been
delivered in the office of the Sub-Divisional
Officer Mr Srivastava. It is important to note
that all correspondence in respect of the
contract in question has been done by
Sewaram with the office of the Executive
Engineer except the letter dated January 30,
1990 in question which alone according to the
appellant had been submitted to Shri V.P.
Srivastava, the Sub-Divisional Officer sitting
in a different office and far away from the
office of the Executive Engineer. According to
Sewaram, one Rajesh Verma accompanied
him while delivering this letter to Srivastava,
but according to Srivastava, Patiram had
accompanied Sewaram and not Rajesh
Verma. It cannot be believed that when all
correspondence relating to the contract was
dealt with by the office of the Executive
Engineer, why such an important letter dated
January 30, 1990 was not submitted in the
office of the Executive Engineer and is
alleged to have been submitted to a lower
authority of the rank of Assistant Engineer.
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 30
We see force in the submission of the learned
counsel for the respondent in this regard that
Shri Mandloi, the Executive Engineer was not
willing to oblige the appellant by taking a false
stand and as such the appellant took a false
plea that he had given such letter dated
January 30, 1990 to Mr Srivastava. It is
important to note that Mr Mandloi in his
statement has clearly stated that he never
saw nor had any knowledge of the letter dated
January 30, 1990 prior to July 23, 1990. Even
if, for arguments sake it may be considered
that the appellant had submitted the letter
dated January 30, 1990 bonafidely for some
reasons on the same day in the office of the
Assistant Engineer Mr Srivastava, it was
incumbent upon the appellant to see that the
letter should have reached immediately in the
office of the Executive Engineer who alone
was competent to deal with such important
matter. Admittedly, the letter was addressed
to the Executive Engineer and it came to his
notice on July 23, 1990 after the service of the
notice of the election petition on the appellant.
The contract can come to an end by any of
the following modes:
(1) By performance;
(2) By express agreement;
(3) Under the doctrine of frustration; and
(4) By breach."
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 31
42. In Konappa Rudrappa Nadgouda, supra, the
Hon'ble Supreme Court held:
"12. In both the contracts, there was a
condition that for a period of three months in
one and for a period of one year in the other,
the contractor would make due repairs to all
the defective parts in the execution of the
contract. The question is whether the contract
can be said to be subsisting in view of this
clause. Both sides referred us to Hudson's
Building and Engineering Contracts. In one
passage, Hudson regarded such a clause as
in the nature of a "repair clause". But Hudson
was not dealing with the law of election when
he was discussing a clause such as we have
in this case. We have to interpret this clause
in the context of election law. Now the
contract must be said to subsist if a portion of
it is required to be performed at any time,
because so long as the contract has not been
discharged, by full performance, it must be
taken to subsist. Mr Narasaraju contends that
the phrase "contract for the execution of the
work" shows that it is the execution of the
original work which is contemplated and not
any condition of guarantee for repair. In our
opinion, this argument, however, ingenious, is
not acceptable because a similar point arose
in the case to which we referred earlier.
In Chatturbhuj Vithaldas Jasani case [(1954)
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 32
SCR 817] Bose, J. dealt with a similar point in
the following words:
"It was argued that assuming that to be the
case, then there were no longer any
contracts for the 'supply of goods' in
existence but only an obligation arising
under 'the guarantee clause'. We are
unable to accept such a narrow
construction. This term of the contract,
whatever the parties may have chosen to
call it, was a term in a contract for the
supply of goods. When a contract consists
of a number of terms and conditions each
condition does not form a separate contract
but is an item in the one contract of which
it is a part. The consideration for each
condition in a case like this is the
consideration for the contract taken as a
whole. It is not split up into several
considerations apportioned between each
term separately. But quite apart from that,
the obligation, even under this term, was to
supply fresh stocks for these three depots
in exchange for the stocks which were
returned and so even when regarded from
that narrow angle it would be a contract for
the supply of goods. It is true they are
replacements but a contract to replace
goods is still one for the supply of the
goods which are sent as replacements."
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 33
Applying these observations in the context of
construction of buildings and roads, it is
obvious that if some part is found defective
and has to be done again, the contract of
execution as such is still to be fully performed.
It is possible to describe the action taken as
one to repair the defect, but in essence, it is a
part of the contract of execution, because no
execution can be said to be proper or
complete till it is properly executed. Taking
the fact that some portion of the original
contracts remained to be performed with the
fact that under the contracts the contractor
was required not only to complete the original
work but to repair defects or redo something
which he had not properly done, we think this
matter must fall within Section 9-A of the
Representation of the People Act. This is not
a case like the supply of a refrigerator which
after giving service for some time goes out of
order and something has to be done to
replace a part which is defective. The analogy
is not quite apposite. Here the building was
completed very recently and the flooring had
to be redone and various other things were
left unfinished and these had to be completed
by the contractor. Similarly in relation to the
road, although the surface was prepared and
the road was in actual use, under the
contract, mile and hectometer stones had to
be fixed and certain other stones fixed at
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 34
curves and boundaries. This was not done.
The two contracts therefore were not fully
performed and under clause 20 of the
agreement, it was incumbent upon the
contractor to complete this part of his
obligation. In our opinion, the High Court was
in error in holding that the contracts had been
fully performed and therefore Section 9-A did
not apply.
13. Mr Narasaraju raises three legal points.
The first is that under Article 299, the contract
had to be signed by the Secretary to the
Government whereas the contract was
signed by the Executive Engineer. This point
was also considered in Jasani case and it
was held that it did not go to save the bar of
the election law to the candidature. Next it is
argued that the section is applicable to a
person whereas the contract was with a firm
and therefore the first respondent was not
barred from standing for the election. In our
opinion, the High Court has taken the right
view of the matter. The law requires that a
candidate should not have any interest in any
contract with Government and even a partner
has an interest sufficient to attract the
provisions of Section 9-A. Lastly it is argued
that the partnership itself had been dissolved.
That would have no effect upon the relations
between the first respondent and the
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 35
Government. The first respondent could not
by a private dissolution of the partnership
escape his liability under the contract to the
Government, and there was here no novation,
because notice of the dissolution was not
given to Government and the Government
had not accepted Hampanna to whom the
business was transferred in place of the firm.
We view the transfer of the entire contracts to
Hampanna with some suspicion. It appears
that on the eve of the election, the first
respondent who wished to contest the seat
from Yadagiri, hurried through his contracts,
managed to get a completion certificate which
was not quite accurate, dissolved the
partnership with a view to clear himself from
all connections with the contracts so that he
could stand for the election. In this effort, he
has distinctly failed."
43. In Rajeshekar Basavaraj Patil, supra, the Hon'ble
Supreme Court observed as under:
"40. Thus, we find that there is neither
unilateral nor mutual termination of subsisting
contract by Respondent 1. In the affidavit
dated 13-8-1999, it was stated that his
application or request for termination of
contract was "under consideration" of the
Department. Unless there was acceptance of
the said request by the Department, it could
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 36
not be said that the contract stood terminated
by mutual consent. The Department accepted
the request made by the respondent only in
September 2000. To support the case of
unilateral termination of the contract, as
advanced by the learned counsel on behalf of
the returned candidate before us, there is
nothing on record except the pleas developed
step by step which varied from the stage of
filing written statement to oral evidence and
thereafter at this appellate stage."
44. In Bajrang Bahadur Singh, supra, the Hon'ble
Supreme Court held as under:
"35. We have already noticed that there are
two classes of disqualification contemplated
under Article 191, (i) disqualifications which
last only for a limited period, that is, during the
currency of certain events specified under
Article 191, (ii) statutory disqualifications
prescribed under Sections 8, 8-A, 9 and 10-A
which render a person ineligible for a period
specified under each of the abovementioned
provisions. The disqualifications under
Sections 9-A and 10 of the Act are akin to the
disqualifications contemplated under clauses
(a) to (d) of Article 191(1) where the period of
disqualification is coterminous with the
currency of the event which renders a person
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 37
ineligible both for being chosen as or for being
a Member of the legislature. Nonetheless, on
the acquisition of the disqualification by a
legislator, he ceases to be a legislator
forthwith by operation of law. However, the
cessation of the disqualifying factor cannot
put such a person back in the legislature
without his being elected once again, of
course such person is entitled to contest any
election under the RP Act, the moment the
disqualifying factor ceases to exist as the
disqualification is coterminous with the
disqualifying EVENT.
.......
40. The language of Section 9-A which
declares that a person shall be disqualified "if
and for so long as there subsists a contract",
must be understood in the background of the
scheme of Chapter III of the RP Act. All other
provisions except Sections 9-A and 10 of the
Chapter prescribe a fixed tenure of
disqualification. That tenure has nothing to do
with the duration of the currency of the event
which brings about the legal consequence of
disqualification. Only Section 9-A and Section
10 limit the tenure of disqualification and
make it coterminous with the currency of
the EVENT which creates a disqualification.
Therefore, the clause "if and for so long as" in
our view, in these two provisions must be
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 38
understood only to convey (in the context of a
legislator who incurs a disqualification) that
he is not debarred from contesting any
election under the Act including a by-election
arising as a direct consequence of his
vacating the seat in the legislature if
the EVENT (the subsistence of which brought
about the consequence of disqualification)
ceases to subsist by the relevant date. The
interpretation such as the one sought to be
placed by the petitioner would amount to
Parliament nullifying the constitutional
declaration contained in Article 190(3) read
with Article 191.
....
47. To test the soundness of the submission,
we must examine the rationale behind
Section 9-A. This Court in Konappa
Rudrappa Nadgouda v. Vishwanath
Reddy [Konappa Rudrappa
Nadgouda v. Vishwanath Reddy, AIR 1969
SC 447] dealt with the rationale behind the
disqualification prescribed under Section 9-A
of the RP Act and observed as follows: (AIR
p. 451, para 11)
"11. ... But if the contract subsists in such
manner that it cannot be said to have been
substantially completed, the law must take
its own course. It is of the essence of the
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 39
law of elections that candidates must be
free to perform their duties without any
personal motives being attributed to them.
A contractor who is still holding a contract
with government is considered disqualified,
because he is in a position after successful
election to get concession for himself in the
performance of his contract. That he may
not do so is not relevant. The possibility
being there, the law regards it necessary to
keep him out of the elections altogether."
45. The aforesaid judgments relied are squarely
applicable to the case of the first respondent, wherein the
language of Section 9A of the RP Act, which declares that a
person shall be disqualified "if and for so long as there subsists
a contract" must be understood in the background of the scheme
of Chapter III of the RP Act. The Hon'ble Supreme Court also
held that the law requires that a candidate should not have any
interest in any contract with Government and, therefore, even a
partner in a firm has an interest sufficient to attract the provisions
of Section 9A of the RP Act. Having considered all these aspects
in proper perspective, the returning officer has rightly rejected the
nomination papers of the election petitioner. As against the order
of rejection dated 15.2.2022, the election petitioner has filed
W.P.(C) No.147 of 2022 and the said writ petition is stated to be
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 40
pending till date. Admittedly, in the said writ petition, the election
petitioner has raised an issue pertaining to the power of the
returning officer to disqualify a candidate from contesting the
election. The fact remains that the election petitioner has not
challenged the rejection of the nomination dated 15.02.2022.
46. As stated supra, the two grounds raised by the
election petitioner cannot be the grounds provided under Section
100 of the RP Act for challenging the election of the first
respondent by praying for declaration of the election of the first
respondent as null and void. Moreover, the returning officer,
after properly considering the documentary evidence produced
by the election petitioner and the first respondent and after
affording reasonable opportunity to the parties, more particularly,
the election petitioner, rejected the nomination of the election
petitioner. In other words, the rejection of the nomination paper
of the election petitioner was made after it was found that he has
many subsisting Government contracts, which is completely
prohibited under Section 9A of the RP Act. In this regard, the
statement of the second respondent is that as per the RP Act,
due opportunity was afforded to the election petitioner by the
returning officer and after examination of the objection of the
election petitioner, the returning officer vide order dated
15.2.2022 rejected the nomination of the election petitioner by
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 41
giving reasons. In view of the above, as rightly argued by the
learned counsel for the first respondent, the allegation made in
the election petition is quite baseless and irrelevant. Since the
election petitioner himself admitted the existence of 11
Government contracts at Para 7 of Part IIIA of Form 2B as also
at Para 9B of Form-26 affidavit, there is no question of trial to
prove the subsisting Government contracts, as these subsisting
contracts were already on record before the returning officer and
in this regard, the returning officers has already called for records
from the concerned Departments during the scrutiny of
nomination papers on 15.2.2022 and decided the matter.
47. The learned senior counsel for the first respondent
argued that the averments made in the election petition are
completely vague and lacks material particulars and in clear
violation of Sections 81 and 83 of the RP Act and, thus, no trial
or enquiry is permissible on the basis of such vague, indefinite
and imprecise averments. The learned counsel also submitted
that the election petition does not contain a concise statement of
material fact on which the election petitioner relied and does not
disclose a triable issue or cause of action. That apart, the
allegations contained in the election petition do not meet out the
basic requirement, which could constitute cause of action as
required by law. In support, the learned senior counsel for the
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 42
first respondent placed reliance upon the decision of the Hon'ble
Supreme Court in the case of Jaipal Singh, supra.
48. In Jaipal Singh, supra, the Hon'ble Supreme Court
held:
"2. The appellant was a member of the Indian
Administrative Service having 40 years'
service to his credit and who was 59 1/2 years
old. By letter dated 13-3-2002, he sought
voluntary retirement under Rule 16(2) of the
All India Services (Death-cum-Retirement
Benefits) Rules, 1958 (hereinafter referred to
as "the 1958 Rules") with immediate effect.
The appellant was registered as an elector at
535, Halqa No. 62, Mujeggar Plot No. 9-A,
Sector 6, Faridabad in the State of Haryana
and eligible to contest election to the Rajya
Sabha, in which two vacancies had occurred
which were to be filled from the State of
Haryana. A notification was issued to fill up
the two vacancies under which the last date
of filing the nomination papers was 14-3-
2002, the date of scrutiny was 15-3-2002, last
date of withdrawal was 18-3-2002 and the
date of polling was 27-3-2002. The appellant
sought voluntary retirement from service as
he wanted to contest the election to the Rajya
Sabha. On 15-3-2002, the Returning Officer
rejected the nomination papers of the
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 43
appellant on the ground that Rule 16 of the
1958 Rules warranted giving three months'
previous notice to the appointing authority
and since the said period had not elapsed on
the date of scrutiny the appellant was holding
the office of profit on that day and, therefore,
stood disqualified under Article 102(1)(c) of
the Constitution. On 18-3-2002, election
results were announced, since there was no
contest after rejection of the nomination
papers submitted by the appellant.
Aggrieved, the appellant filed Election
Petition No. 27 of 2002 in the High Court on
the ground that his nomination papers had
been wrongly rejected by the Returning
Officer. In the election petition, he stated that
on completion of 40 years of service and on
attaining the age of 59 1/2 years, he was
eligible to seek voluntary retirement under the
1958 Rules; that he had applied for the same
through proper channel on 13-3-2002; that he
had also made a request to the appointing
authority to waive notice period of three
months for seeking voluntary retirement; that
he had relinquished the charge on 13-3-2002;
and consequently, he was not holding office
of profit with the Government on that day and,
therefore, he was eligible to seek election to
the Rajya Sabha. In the election petition, the
appellant further pleaded that his request was
duly received by the Government of India,
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 44
Ministry of Personnel, appointing authority
and also by the Government of Haryana at
Chandigarh. He further averred that he
sought voluntary retirement on account of
illness of his wife and after resigning
voluntarily from his post, he had filed
nomination papers. He further averred that on
the date of the scrutiny, he was present when
he brought to the notice of the Returning
Officer the factum of his voluntary retirement
but the Returning Officer disregarded the
provisions of the 1958 Rules as also the
provisions of the All India Services
(Conditions of Service -- Residuary Matters)
Rules, 1960 (hereinafter referred to as "the
1960 Rules") as also the Fundamental Rules,
1922. In the election petition, the appellant
had alleged that the action of the Returning
Officer in rejecting his nomination papers was
not justified as the appointing authority has
the power under the 1960 Rules to relax the
condition and to waive the notice period of
three months in the case of an employee who
seeks voluntary retirement. He further stated
that since his nomination papers were
rejected, there was no contest and results
were declared on 18-3-2002 when the
respondents were declared as members of
the Rajya Sabha from the State of Haryana.
In the light of the above allegations, the
appellant challenged the elections of the
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 45
respondents on the ground of improper
rejection of his nomination papers. The
election petition was scrutinized by the
Registry of the High Court, which was found
to have been filed within the period of
limitation, and accordingly it was numbered
and notices were issued to the respondents
who appeared before the High Court on 31-7-
2002 through their counsel. A joint written
statement was filed by the respondents
controverting the averments made by the
appellant. A preliminary objection was raised
to the effect that the averments contained in
the election petition were vague and lacked
material facts and particulars, as such, the
said petition was liable to be dismissed. In the
written statement, the respondent submitted
that the petition was liable to be dismissed as
the appellant had not disclosed a material fact
as to on which date he had received
communication regarding acceptance of his
application for voluntary retirement. On merits
also, the respondents denied various
averments made by the appellant.
3. On the above pleadings, a preliminary
issue was framed by the High Court -- as to
whether the petition lacked in material facts
and did not disclose cause of action. By the
impugned judgment, the High Court held that
Section 83(1)(a) of the said Act mandates that
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 46
an election petition shall contain a concise
statement of material facts on which the
petitioner relies; that in the present case, the
appellant had failed to aver and plead two
material facts viz. that his application for
voluntary retirement was accepted by the
appointing authority before the date of
scrutiny and that his request for waiver of the
notice period of three months was actually
accepted. In the absence of disclosure of the
above facts, the High Court dismissed the
election petition.
....
7. Section 83 deals with contents of petition.
It states that an election petition shall contain
a concise statement of material facts, on
which the petitioner relies and shall state full
particulars of any corrupt practices which the
petitioner alleges and which shall be signed
by him and verified in the manner laid down
in the Code of Civil Procedure. In the case
of Sopan Sukhdeo Sable v. Asstt. Charity
Commr. [(2004) 3 SCC 137 : (2004) 2 Scale
82] it has been held that Order 6 Rule 2(1)
CPC deals with basic rule of pleadings and
declares that the pleading has to state
material facts and not the evidence; that there
is a distinction between "material facts" and
"particulars" and the words "material facts"
show that the facts necessary to formulate a
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 47
complete cause of action must be stated.
Omission of single material fact leads to an
incomplete cause of action and consequently,
the plaint becomes bad. The distinction
between "material facts" and "particulars" was
brought by Scott, L.J. in Bruce v. Odhams
Press Ltd. [(1936) 1 KB 697 : (1936) 1 All ER
287 (CA)] in the following passage: (All ER p.
294)
"The cardinal provision in Rule 4 is that
the statement of claim must state the
material facts. The word 'material' means
necessary for the purpose of formulating
a complete cause of action; and if any
one 'material' statement is omitted, the
statement of claim is bad; it is
'demurrable' in the old phraseology and
in the new is liable to be 'struck out'
under RSC Order 25 Rule 4
(see Philipps v. Philipps [(1878) 4 QBD
127 : 48 LJQB 135 : 39 LT 556 (CA)] );
or 'a further and better statement of
claim' may be ordered under Rule 7.
The function of 'particulars' under Rule 6
is quite different. They are not to be used
in order to fill material gaps in a
demurrable statement of claim -- gaps
which ought to have been filled by
appropriate statements of the various
material facts which together constitute
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 48
the plaintiff's cause of action. The use of
particulars is intended to meet a further
and quite separate requirement of
pleading, imposed in fairness and justice
to the defendant. Their function is to fill in
the picture of the plaintiff's cause of
action with information sufficiently
detailed to put the defendant on his
guard as to the case he had to meet and
to enable him to prepare for trial."
.......
9. As to what is the material fact has to be
decided in the present case, in the context of
the election petition under the said Act. An
election petition is a matter of statutory right.
In the petition, the key issue was whether the
appellant held an office of profit on the date of
scrutiny. For that purpose, the appellant
ought to have stated that on 13-3-2002 he
had requested for waiver of the notice period;
that the appointing authority had received the
notice on the specified date and that his
request for waiver stood granted on the date
of scrutiny and he ceased to be a government
servant. These were the material facts which
the appellant should have pleaded so that the
returned candidates would not be taken by
surprise. They were material facts within his
knowledge and ought to have been pleaded
in the election petition. Lastly, even the letter
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 49
of the appellant seeking the waiver of the
notice period did not form part of the election
petition. Hence, the High Court was right in
dismissing the election petition for want of
material facts."
49. By relying upon the decision in the case of
Dr.Ramachandran, supra, the learned senior counsel for the
election petitioner submitted that the election petition cannot be
rejected without trial. In D.Ramachandran, supra, the Hon'ble
Supreme Court held:
"8. We do not consider it necessary to refer in
detail to any part of the reasoning in the
judgment; instead, we proceed to consider
the arguments advanced before us on the
basis of the pleadings contained in the
election petition. It is well settled that in all
cases of preliminary objection, the test is to
see whether any of the reliefs prayed for
could be granted to the appellant if the
averments made in the petition are proved to
be true. For the purpose of considering a
preliminary objection, the averments in the
petition should be assumed to be true and the
court has to find out whether those averments
disclose a cause of action or a triable issue as
such. The court cannot probe into the facts on
the basis of the controversy raised in the
counter.
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 50
......
10. On the other hand, Rule 11 of Order 7
enjoins the court to reject the plaint where it
does not disclose a cause of action. There is
no question of striking out any portion of the
pleading under this Rule. The application filed
by the first respondent in OA No. 36 of 1997
is on the footing that the averments in the
election petition did not contain the material
facts giving rise to a triable issue or disclosing
a cause of action. Laying stress upon the
provisions of Order 7 Rule 11(a), learned
Senior Counsel for the first respondent took
us through the entire election petition and
submitted that the averments therein do not
disclose a cause of action. On a reading of
the petition, we do not find it possible to agree
with him. The election petition as such does
disclose a cause of action which if unrebutted
could void the election and the provisions of
Order 7 Rule 11(a) CPC cannot therefore be
invoked in this case. There is no merit in the
contention that some of the allegations are
bereft of material facts and as such do not
disclose a cause of action. It is elementary
that under Order 7 Rule 11(a) CPC, the court
cannot dissect the pleading into several parts
and consider whether each one of them
discloses a cause of action. Under the Rule,
there cannot be a partial rejection of the plaint
or petition. See Roop Lal Sathi v. Nachhattar
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 51
Singh Gill [(1982) 3 SCC 487]. We are
satisfied that the election petition in this case
could not have been rejected in limine without
a trial."
50. Further, by relying upon the decision in the case of
P.V.Guru Raj Reddy, supra, Mr. HS Paonam, the learned senior
counsel for the election petitioner contends that election petition
cannot be rejected if it discloses a cause of action. In P.V.Guru
Raj Reddy, supra, the Hon'ble Supreme Court held:
"5. Rejection of the plaint under Order 7 Rule
11 of CPC is a drastic power conferred in the
court to terminate a civil action at the
threshold. The conditions precedent to the
exercise of power under Order 7 Rule 11,
therefore, are stringent and have been
consistently held to be so by the Court. It is
the averments in the plaint that have to be
read as a whole to find out whether it
discloses a cause of action or whether the suit
is barred under any law. At the stage of
exercise of power under Order 7 Rule 11, the
stand of the defendants in the written
statement or in the application for rejection of
the plaint is wholly immaterial. It is only if the
averments in the plaint ex facie do not
disclose a cause of action or on a reading
thereof the suit appears to be barred under
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 52
any law the plaint can be rejected. In all other
situations, the claims will have to be
adjudicated in the course of the trial.
6. In the present case, reading the plaint as a
whole and proceeding on the basis that the
averments made therein are correct, which is
what the Court is required to do, it cannot be
said that the said pleadings ex facie disclose
that the suit is barred by limitation or is barred
under any other provision of law. The claim of
the plaintiffs with regard to the knowledge of
the essential facts giving rise to the cause of
action as pleaded will have to be accepted as
correct. At the stage of consideration of the
application under Order 7 Rule 11 the stand
of the defendants in the written statement
would be altogether irrelevant."
51. Placing reliance upon the decision in the case of
Srihari Numandas Totala, supra, the learned senior counsel for
the election petitioner submits that application under Order 7,
Rule 11 CPC must be considered within the four corners of the
plaint. In Srihari Numandas Totala, the Hon'ble Supreme Court
held:
"19. At this stage, it would be necessary to
refer to the decisions that particularly deal
with the question whether res judicata can be
the basis or ground for rejection of the plaint.
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]
P a g e | 53
In Kamala v. K.T.EshwaraSa [Kamala v. K.T.
Eshwara Sa, (2008) 12 SCC 661] , the trial
Judge had allowed an application for rejection
of the plaint in a suit for partition and this was
affirmed by the High Court. S.B. Sinha, J.
speaking for the two-Judge Bench examined the ambit of Order 7 Rule 11(d) CPC and observed : (SCC 668-69, paras 21-22) "21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up.
Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 54
22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision."
(emphasis supplied)
20. The Court further held : (Kamala case [Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661] , SCC p. 669, paras 23-25) "23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.
24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 55
25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject- matter thereof, the application for rejection of plaint should be entertained."
(emphasis supplied)
21. The above view has been consistently followed in a line of decisions of this Court. In Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust [Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612] , P. Sathasivam, J. (as the learned Chief Justice then was), speaking for a two-Judge Bench, observed that : (SCC pp. 713-14, paras 10-11) "10. ... It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 56 undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557] , in which, while considering Order 7 Rule 11 of the Code, it was held as under :
(SCC p. 560, para 9) '9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit -- before registering the plaint MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 57 or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.'' It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 58 have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [Raptakos Brett & Co.
Ltd. v. Ganesh Property, (1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100] ."
22. Similarly, in Soumitra Kumar Sen [Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644 : (2018) 3 SCC (Civ) 329] , an application was moved under Order 7 Rule 11 CPC claiming rejection of the plaint on the ground that the suit was barred by res judicata. The trial Judge dismissed the application and the judgment of the trial court was affirmed in revision by the High Court. A.K. Sikri, J., while affirming the judgment of the High Court held : (Soumitra Kumar Sen case [Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644 : (2018) 3 SCC (Civ) 329] , SCC p. 649, para 9) "9. In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. If the MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 59 averments made by the appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the appellant it has already been decided in the previous two suits that Respondent 1- plaintiff retired from the partnership firm much earlier, after taking his share and it is the appellant (or appellant and Respondent 2) who are entitled to manage the affairs of M/s Sen Industries. However, at this stage, as rightly pointed out by the High Court, the defence in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application under Order 7 Rule 11 CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about Suit No. 268 of 2008 which has been decided against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff- Respondent 1 may be guilty of suppression and concealment, if the averments made by the appellant are ultimately found to be correct. However, as per the established principles of law, such a defence MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 60 projected in the written statement cannot be looked into while deciding application under Order 7 Rule 11 CPC."
(emphasis supplied)
23. Referring to Kamala [Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661] , the Court further observed that : (Soumitra Kumar Sen case [Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644 : (2018) 3 SCC (Civ) 329] , SCC p. 650, para 12) "12. ... The appellant has mentioned about the earlier two cases which were filed by Respondent 1 and wherein he failed. These are judicial records. The appellant can easily demonstrate the correctness of his averments by filing certified copies of the pleadings in the earlier two suits as well as copies of the judgments passed by the courts in those proceedings. In fact, copies of the orders passed in judgment and decree dated 31-3-1997 passed by the Civil Judge (Junior Division), copy of the judgment dated 31-3-1998 passed by the Civil Judge (Senior Division) upholding the decree passed by the Civil Judge (Junior Division) as well as copy of the judgment and decree dated 31-7-2014 passed by the Civil Judge, MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 61 Junior Division in Suit No. 268 of 2008 are placed on record by the appellant. While deciding the first suit, the trial court gave a categorical finding that as per MoU signed between the parties, Respondent 1 had accepted a sum of Rs 2,00,000 and, therefore, the said suit was barred by principles of estoppel, waiver and acquiescence. In a case like this, though recourse to Order 7 Rule 11 CPC by the appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the appellant is ultimately found to be correct in his submissions."
(emphasis supplied) While holding that "recourse to Order 7 Rule 11" by the appellant was not appropriate, this Court observed that the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide them in the first instance. The Court held that this course of action would help the appellant avoid lengthy proceedings.
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 62
24. In a more recent decision of this Court in Shakti Bhog Food Industries Ltd. v. Central Bank of India [Shakti Bhog Food Industries Ltd. v. Central Bank of India, (2020) 17 SCC 260] , a three-Judge Bench of this Court, speaking though A.M. Khanwilkar, J., was dealing with the rejection of a plaint under Order 7 Rule 11 by the trial court, on the ground that it was barred by limitation. The Court referred to the earlier decisions including in Saleem Bhai v. Stateof Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557] , Church of Christ Charitable Trust [Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612] , and observed that : (Church of Christ Charitable Trust case [Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612] , SCC p. 714, para 11) "11. ... It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 63 and it is the duty of the court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averment. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100] ."
25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarised as follows:
25.1. To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to.
25.2. The defence made by the defendant in the suit must not be considered while deciding the merits of the application.
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 64 25.3. To determine whether a suit is barred by res judicata, it is necessary that (i) the "previous suit" is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit.
25.4. Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the "previous suit", such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused.
.......
27. Be that as it may, on a reading of the plaint, it is evident that the first respondent has not made an attempt to conceal the fact that a suit regarding the property was pending before the civil court at the time. It is also relevant to note that at the time of institution of the suit (OS No. 138 of 2008) by the first respondent, no decree had been passed by the civil court in OS No. 103 of 2007. Thus, the issues raised in OS No. 103 of 2007, at the time, had not been adjudicated upon.
MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 65 Therefore, the plaint, on the face of it, does not disclose any fact that may lead us to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata. The High Court and the trial court were correct in their approach in holding, that to decide on the arguments raised by the appellant, the court would have to go beyond the averments in the plaint, and peruse the pleadings, and judgment and decree in OS No. 103 of 2007. An application under Order 7 Rule 11 must be decided within the four corners of the plaint. The trial court and the High Court were correct in rejecting the application under Order 7 Rule 11(d)."
52. There is no dispute that the application under Order 7, Rule 11 CPC must be considered within the four corners of the plaint.
53. In Swami Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51, the Hon'ble Supreme Court held:
"24. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 66 right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded."
54. In Hari Shankar Jain v. Sonia Gandhi, (2001) 8 SCC 233, the Hon'ble Supreme Court held:
"23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the 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 MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 67 incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Fernandez [(1969) 3 SCC 238 : (1969) 3 SCR 603], JitendraBahadur Singh v. Krishna Behari [(1969) 2 SCC 433] .) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis [(1999) 3 SCC 737] this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time- limit prescribed for filing the election petition.
24. It is the duty of the court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a court MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 68 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.
....
33. Without further burdening this judgment by dealing with each and every other averment made in the two election petitions, it would suffice to say that we have carefully read each of the two election petitions and heard each of the two election petitioners (appellants) in very many details especially on the aspect of the election petitions suffering from the vice of not satisfying the mandatory requirement of pleading material facts as required by Section 82(1)(a) of RPA, 1951 and we are satisfied that the two election petitions do not satisfy the requirement statutorily enacted and judicially explained in umpteen number of decisions. The petitions are hopelessly vague and completely bald in the allegations made, most of which could not possibly be within the personal knowledge of the petitioners but still verified as "true" to their knowledge, without indicating the source. Such pleadings cannot amount to disclosing any cause of action and MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 69 are required to be rejected/dismissed under Order 7 Rule 11 CPC.
34. To sum up, we are of the opinion that a plea that a returned candidate is not a citizen of India and hence not qualified, or is disqualified for being a candidate in the election can be raised in an election petition before the High Court in spite of the returned candidate holding a certificate of citizenship by registration under Section 5(1)(c) of the Citizenship Act. A plea as to constitutional validity of any law can, in appropriate cases, as dealt with hereinabove, also be raised and heard in an election petition where it is necessary to decide the election dispute. The view of the law, stated by the learned designated Election Judge of the High Court of Allahabad cannot be sustained. To say the least, the proposition has been very widely stated in the impugned order of the High Court. However, in spite of answering these questions in favour of the appellants yet the election petitions filed by them cannot be directed to be heard and tried on merits as the bald and vague averments made in the election petitions do not satisfy the requirement of pleading material facts within the meaning of Section 82(1)(a) of RPA, 1951 read with the requirements of Order 7 Rule 11 CPC. The decision of the High Court MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 70 dismissing the two election petitions at the preliminary stage, is sustained though for reasons somewhat different from those assigned by the High Court. The appeals are dismissed but without any order as to the costs."
55. In Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310, the Hon'ble Supreme Court held:
"61. The legal position has been crystallised by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts" which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act.
62. When we apply the aforementioned test to the election petition in this case, then the conclusion becomes irresistible that the election petition lacks the materials facts. The election petition read as a whole does not disclose any cause of action.
63. Considering the facts and circumstances of this case and principles applicable to the election petition, this appeal deserves to be allowed and we accordingly allow this appeal. Consequently, the election petition MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 71 stands dismissed. In the facts and circumstances of this case, we direct the parties to bear their own costs."
56. On overall reading of the election petition, this Court is of the view that the election petition lacks material fact constituting the cause of action required under the RP Act and does not fulfill the mandatory requirement of law. Further, the election petition does not contain a concise statement of material fact and also does not disclose a triable issue or cause of action.
As held by the Hon'ble Supreme Court, a cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded.
57. In the case on hand, admittedly, the election petitioner has not pleaded the concise statement of material facts and material particulars against the first respondent. More importantly, no allegations have been made against the first MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 72 respondent in the election petition. The election petition field without any allegation against the first respondent is unsustainable in law and it is not the case of the election petitioner that by playing a fraud, the first respondent won the election. The present election petition is filed without any material facts and material particulars. That apart, being aggrieved by the order dated 15.2.2022, the election petitioner has filed W.P.(C) No.147 of 2022 and, as such, he has no right to challenge the election of the first respondent by filing the present election petition. As rightly argued by Mr. Lenin Hijam, the learned senior counsel for the first respondent, the election petition is barred by the doctrine of waiver.
58. The materials produced before this Court would clearly indicate that due to the subsisting Government contracts, the election petitioner was rightly disqualified by the returning officer, as he is barred from filing the nomination papers. The averments made in the election petition are completely vague and lacks material facts constituting the cause of action required under the RP Act and, therefore, no trial is warranted on the basis of such vague and imprecise averments. Since the election petitioner has not complied with Sections 83(1)(a) and (b) of the RP Act, the election petition deserves to be dismissed by MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022] P a g e | 73 invoking the provisions of Order 7, Rule 11 CPC on the ground of non-disclosure of cause of action.
59. In the result,
(i) M.C. (El.P.) No.140 of 2022 in Election Petition No.26 of 2022 is allowed.
Consequently, Election Petition No.26 of 2022 is dismissed.
(ii) There will be no order as to costs.
ACTING CHIEF JUSTICE FR/NFR Sushil MC(El.Pet.) No. 140 of 2022 [Ref:- El.Pet. No. 26 of 2022]