Madras High Court
Dated :: 02-12-2 vs A.Lazar on 2 December, 2011
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02-12-2011 CORAM THE HON'BLE MR. JUSTICE V.DHANAPALAN APPLICATION No.2610 OF 2011 in ELECTION PETITION No.2 OF 2009 ORDER
This Application has been filed to strike off the pleadings in Paragraphs 8,9,10,11,12,13,14,15,16 and 17 in the Election Petition 2 of 2009 and consequently to reject the Election Petition as being bereft of material facts and particulars and for want of cause of action and triable issues.
2. The case of the applicant runs thus :
2.1. In para 7 on page 5 of the Election Petition the last few lines mentioned that the election petitioner is putting forth the details of the alleged corrupt practice committed by the applicant with date and place of occurrence with full statements is false, as the election petition does not contain any details regarding the averment. No where, the election petitioner has shown with solid proof that the applicant or his men are involved in election misconduct.
2.2. In para 8 on page 6 of the Election Petition, the election petitioner stated that the applicant was indulging in bribing the electors by distribution of money and he also furnished the names of persons who had given the complaint. The petitioner has given a tabular column in which he has furnished the names of some persons who are alleged to have acted on behalf of the applicant and against whom complaints were lodged and the date of occurrence of misconduct. None of the allegations in Para 8 of the Election Petition that the applicant/first respondent in the Election Petition offered gratification by way of cash to the electors without material particulars will satisfy the requirement of Sections 123 (1) (A) or 123 (1) (B) of the Representation of the People Act,1951, in short, "the Act".
2.3. The averment contained in para 9 of the Election Petition on the basis of Document No.l4, a copy of the complaint given by the District Committee Secretary, Communist Party of India (Marxist) to the Chief Election Commissioner, New Delhi, is nugatory and does not carry any merit.
2.4. Para 10 of the Election Petition contains the names of the party functionaries of the applicant, who had not done anything against the model code of conduct. Their names are unnecessarily dragged in to create a case. The election petitioner has alleged that the applicant's party functionaries distributed various types of slips to the electors to induce them to vote in favour of the applicant, which is absolutely false and baseless. The slips numbered as Document Numbers 15,16 and 17, which the applicant is alleged to have distributed, are ones created by the election petitioner. The Document No.18 referred to in para 10 is nothing but a slip given by the booth agent for easy identification of the names of the voters. This procedure is adopted by all the political parties in all the elections, as it is a routine one and, therefore, this document cannot be taken as a piece of evidence. In the very same para 10, the election petitioner has mentioned that some vehicles with covers having cash have been seized which are nothing to do with the applicant. The newspaper clippings referred to in para 10 and also referred to as Document Numbers 19 and 20 cannot be construed as genuine documents and the news items published by the newspapers are inadmissible in evidence. The para, as a whole, is indistinct and it lacks clarity and clearly reveals that the facts alleged by the election petitioner are only hearsay.
2.5. In para 11 in page 10 the allegation that the applicant's party functionaries distributed tokens to some section of the people when the applicant was campaigning in the Melur Assembly constituency is baseless and there is no proof to establish the same. A slip, which is marked as Document No.21 and which is alleged to have been distributed by the applicant's party functionary is nothing but a bit of plain paper and it does not bear the applicant's name or the party symbol. Further, Document No.22, a complaint given by a CPIM Party functionary (District Secretary), is created for the purpose of this case. Document No.23 is filed without any purpose and it is a xerox copy of the so called notification without any date of issue. Document Nos.24 and 52 have no authenticity and the applicant has nothing to do with the same. The alleged distribution of sarees and dhotis is only imaginary and it is not established that sarees and dhotis seized were meant for distribution to the voters by the applicant or his party men.
2.6. Documents 26,27,28 and 29 referred to in para 12 of the election petition are complaints given by the office bearers of the Communist Party, whose candidate was the petitioner in the Election Petition. The acknowledgement cards are not filed along with the copies. The election petitioner, as a common opposition candidate, has never given any complaint against the applicant.
2.7. In para 13, the election petitioner has accused the Public Relations Officer of the Government of Tamil Nadu. His accusations against the said PRO are baseless and mischievous. The petitioner has accused the PRO for his alleged involvement of misuse of official machinery. In Document No.35, the name of the PRO is not mentioned and it does not in any way ratify the involvement of the applicant.
2.8. Paras 14,15,16 and 17 are all based on the alleged complaints given against the applicant and his party functionaries for the alleged misconduct and breach of model code of conduct. Out of the 11 candidates in the election fray, only one candidate belonging to the main rival camp has given complaints after complaints against the applicant.
2.9. The document No.518 mentioned in para 21 of the Election Petition is not filed along with the Election Petition and the dates mentioned in para 22 viz., 13.05.2006 and 16.05.2006 are wrong dates and no cause of action arose on those dates, as alleged.
2.10. The election petitioner, no where, in the Election Petition has established with material facts and particulars that the result of the election, in so far as it concerns the returned candidate, namely, the applicant has been materially affected. Under Section 83 (1) (c) of the Act, the Election Petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure and where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. The said provision is not complied with in this case even though the petitioner alleges corrupt practice. Therefore, the Election Petition is defective in material aspect and non-compliance of the requirement amounts to rejection of the Election Petition.
2.11. After striking off the above averments and pleadings, the remaining averments and pleadings in the Election Petition do not disclose any cause of action and triable issues and, hence, the Election Petition itself is liable to be rejected.
3. The first respondent/election petitioner has filed detailed a counter affidavit, reproducing the averments in paras 7 to 21 of the Election Petition, and also stating that the application has been filed only to drag on the proceedings; the averments in the election petition give rise to cause of action and triable issues and, hence, the application under Order VII Rule 11 CPC is not maintainable; the application does not attract the provisions of Order VI Rule 16 CPC and that the application is liable to be rejected in limine, as the prayer for striking off pleadings under Order VI Rule 16 CPC and the prayer for rejection of plaint under Order VII Rule 11 CPC in a single application cannot be countenanced.
4. Mr.T.R.Rajagopalan, learned Senior Counsel for the applicant, would contend that the requirements of Section 83 (1) (a) and (b) are not complied with by the election petitioner; the averments in paras 8 to 17 of the Election Petition are totally false and that there are no material facts or material particulars to prove the corrupt practices as defined under Section 123 (1) (A) and (B) and, therefore, the said paras are to be struck off. He would also contend that the Election Petition does not disclose any cause of action and, hence, it is to be rejected. He would rely upon the following authorities :
(i) Samant N. Balkrishna v. George Fernandez, (1969) 3 SCC 238 :
"37. From our examination of all the cases that were cited before us we are satisfied that an election petition must set out a ground or charge. In other words, the kind of corrupt practice which was perpetrated together with material facts on which a charge can be made out must be stated. It is obvious that merely repeating the words of the statute does not amount to a proper statement of facts and the section requires that material facts of corrupt practices must be stated. If the material facts of the corrupt practice are stated more or better particulars of the charge may be given later, but where the material facts themselves are missing it is impossible to think that the charge has been made or can be later amplified. This is tantamount to the making of a fresh petition.
38. Reverting therefore to our own case we find that the allegation in para 2-J was that Mr Fernandez made some statements and the Maratha published them. Extracts from the Maratha were filed as Exhibits. Since publication of a false statement is the gist of an election offence the charge was against the Maratha. If it was intended that Mr Fernandez should be held responsible for what he said then the allegation should have been what statement Mr Fernandez made and how it offended the election law. In 2J itself only three statements were specified and two of them had nothing to do with Mr Fernandez and the third was merely a news item which the Maratha had published. There was no reference to any statement by Mr Fernandez himself throughout the petition as it was originally filed. In fact there was no charge against Mr Fernandez which could have brought the case within Section 101(b) of the Act. The attempt was only to make out the case under Section 101(d) against the Maratha (or Mr Atrey) pleading Mr Atrey as agent of Mr Fernandez. That too was pleaded in the amendments.
39. The result is that the case gets confined to that of a candidate responsible for the acts of his agent. In the argument before us Mr Chari for Mr Fernandez conceded the position that Mr Atrey could be treated as the agent of Mr Fernandez. We are therefore relieved of the trouble of determining whether Mr Atrey could be held to be an agent or not. The trial Judge was also satisfied that Mr Atrey could be held to have acted as the agent of Mr Fernandez. The case as originally pleaded fell within Section 101(d) with the additional burden. Although Mr Daphtary was content to prove that the consent of Mr Fernandez was immaterial as the corrupt practice of his agent was equally fatal to the election and attempted to prove his case under Section 100(1)(d) of the Act. Mr Jethamalani who took over the argument from him contended that the case fell to be governed by Section 101(b) i.e. to say of any person who did the act with the consent of Mr Fernandez. It is therefore necessary to pause here to decide whether Mr Atrey had the consent of Mr Fernandez to the publications in his newspaper."
(ii) Hardwari Lal v. Kanwal Singh, (1972) 1 SCC 214 :
"15. Section 123(7) of the Act is as follows:
The obtaining or procuring or attempting to obtain or procure by a candidate or his agent or by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election from any person in the service of the Government and belonging to any of the following classes, namely:
Clauses (a) to (g) which need not be set out here.
16. It has to be noticed that the different expressions obtaining, procuring, abetting or attempting to obtain or procure are various forms of corrupt practices. It has to be found as to whether the allegation of obtaining assistance amounts to an allegation of fact. It will be well settled that general expressions like fraudulently, negligently or maliciously in pleadings do not amount to any allegation of fact. A fact is after all not a mere word.
17. The provisions of the aforesaid section indicate these heads of corrupt practices. First, the obtaining by a candidate or his agent or by any other person any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election from any person in the service of the Government as mentioned in the section. Second, the procuring by a candidate or his agent or by any other person with the consent of the election petitioner any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election. Third, the abetting by a candidate or his agent or by any other person with the consent of the candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election as mentioned. Fourth, the attempting to obtain or procure by a candidate or his agent, or by any other person with the consent of a candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election. Fifth, the assistance that is forbidden or prohibited by the statute is any assistance other than the giving of vote. It is clear that the four different heads of corrupt practices are (a) obtaining, (b) procuring, (c) abetting, and (d) attempting to obtain or procure assistance.
18. Therefore material facts are to be alleged as to whether the candidate obtained or procured or abetted or attempted to obtain or procure any assistance other than the giving of vote. In para 16 of the election petition it is alleged that the appellant committed the corrupt practice of obtaining and procuring or attempting to obtain and procure assistance for the furtherance of the prospects of his election from the persons mentioned there. Reading para 16 of the election petition one will search in vain to find out as to whether the allegations against the appellant are in regard to the assistance under both heads or either head from each of the six persons mentioned there. One will speculate as to whether the appellant obtained and procured or attempted to obtain and procure assistance from each or some of the persons mentioned there. Obtaining or procuring or attempting to obtain or procure assistance are separate and independent forms of corrupt practice. One will guess as to whether the allegations are that the appellant committed all or one or more of the corrupt practices of obtaining, procuring, attempting to obtain or procure assistance from each of the persons mentioned there. One will also conjecture and hazard as to what assistance was obtained or procured or attempted to obtain or procure from each of the persons mentioned there, for the furtherance of the prospects of that candidate's election. The giving of vote is not within the mischief of corrupt practice. It cannot be understood from the petitioner whether the giving of vote is the assistance alleged. It is, therefore, apparent that the appellant who was charged by the election petitioner with corrupt practice should be told in the election petition as to what assistance he sought. The type of assistance, the manner of assistance, the time of assistance, the person from whom assistance is sought are all to be set out in the petition. There is no allegation in the petition about the actual and the specific assistance with which the appellant can be charged in violation of the provisions of the Act. Nor is there any statement in the election petition describing the manner in which the prospects of the election were furthered and the way in which the assistance was rendered. The allegations against the appellant were in relation to six persons. Therefore, it was essential and imperative for the election petitioner to set out with exactitude and precision the type of assistance as also the manner in which assistance was obtained or procured from each person. The time, the date and the place of the assistance were also required to be set out in the particulars. Thus it had to be alleged as the material facts as to what assistance the appellant obtained or procured or abetted or attempted to obtain or procure from which person and how the assistance furthered the prospects of the appellant's election. If all the four variants and ingredients were to be charged against the appellant these had to be set out as statements of material facts in relation to each person.
19. The requirements in an election petition as to material facts and the consequences of lack of such allegation of material facts came up for consideration in this Court in the recent decision in Samant N. Balakrishna, v. George Fernandes, etc.1. In that case reference was made to Sections 81, 83 and 86 of the Act as the procedure provisions of election petition. Section 81 deals with presentation of petitions. Section 83 deals with contents of petitions. Section 86 deals with trial of petitions. Hidayatullah, C.J., speaking for the Court laid down these propositions. First, Section 83 of the Act is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. Second, omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet. Fourth, material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of person with the date, time and place. Fifth, material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. Sixth, in stating the material facts it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Seventh, an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the obtaining or procuring of assistance unless the exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further the prospects of the election are alleged as statements of facts.
20. The importance of material facts and the distinction between the material facts and particulars was also brought out in another recent decision of this Court in Manubhai Nandlal Amersey v. Popatlal Munilal Joshi2. In that case a charge in the petition was that several persons with the consent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the Congress party candidate they would become the objects of divine displeasure and spiritual censure. At a late stage of the trial the High Court gave leave to the election petitioner to amend the petition by adding fresh particulars of the corrupt practice. Bachawat, J., speaking for the Court said that Section 83 of the Act was mandatory and particulars of corrupt practice were to be set out in full. It was said in that case that no amendment in the shape of particulars of corrupt practice was permissible if the corrupt practice was not previously alleged in the petition. The obvious need not be stressed. It is that an election petition has the effect of declaring an election void. It is a serious remedy. It is, therefore, vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to defend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that the assistance obtained or procured was other than the giving of vote. It was said by counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words any assistance were full statement of material fact. The submission is fallacious for the simple reason that the matter of assistance, the mode of assistance, the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer. Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared could the court have given a verdict in favour of the election petitioner. The answer is in the negative because the allegations in the petition did not disclose any cause of action.
21. The necessity of clear and precise allegations to support a plea of corrupt practice was emphasised by this Court in Harish Chandra Bajpai v. Trilok Singh3. Venkatarama Ayyar, J., speaking for the Court in dealing with the powers of the Court to allow amendment in respect of illegal or corrupt practice said that where the allegation in the election petition in regard to the corrupt practice was that the respondents could in furtherance of their election enlist the support of government servants, the words could enlist did not amount to an averment that in fact they enlisted their support. In other words, it was observed that the words could enlist did not allege a fact which happened. Therefore, the happening of a fact as well as the fact itself is material. Judged by that test in the present case there is no allegation which will amount to any averment of any assistance as a fact in the absence of the kind of assistance being set out as a fact.
22. The allegations in para 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen of the charge of corrupt practice within the meaning of Section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.
(iii) Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511 :
"38. The last contention of the learned Counsel for the appellant is that even if the second part of clause (iv) is construed as an allegation that Shri Shiv Pratap Singh and others of Umri threatened not to vote and canvass, then also, this allegation is so bereft of material facts and material particulars, that it does not constitute a complete charge of corrupt practice under Section 123(2). The material facts and material particulars, which, according to Counsel were, in view of the mandate of Section 83 required to be pleaded, but have not been pleaded are: the place where the threat was given, the kind and nature of the injury threatened, or injury, if any, actually caused, the particulars of the parentage, address of Shiv Pratap Singh and others, the fact that this Shiv Pratap Singh of Umri was the same who was one of the candidates at the election and that the person threatened was an elector, and how the threat constituted an interference with the free exercise of his electoral right. It is urged that in ascertaining whether or not the allegations in para 11(iv) constitute a complete cause of action relating to a corrupt practice, the court has to confine itself to this para, and cannot take into consideration even an admission of the petitioner appearing in evidence or in any document extraneous to the election petition. Support for this contention has been sought from the decisions of this Court in Sheodhan Singh v. Mohan Lal Gautam9, Samant N. Balakrishna v. George Fernandez10 and Hardwari Lal v. Kanwal Singh11.
42. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are material facts. In the context of a charge of corrupt practice, material facts would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election-petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are material facts which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).
44. The distinction between material facts and material particulars was pointed out by this Court in several cases, three of which have been cited at the Bar. It is not necessary to refer to all of them. It will be sufficient to close the discussion by extracting what A.N. Ray, J. (as he then was) said on this point in Hardwari Lal case: [SCC p. 220, para 20] It is therefore vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to defend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that the assistance obtained or procured was other than the giving of vote. It was said by Counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words any assistance were full statement of material fact. The submission is fallacious for the simple reason that the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer. Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared, could the court have given a verdict in favour of the election petitioner. The answer is in the negative because the allegations in the petition did not disclose any cause of action.
45. Bearing in mind the criteria for distinguishing material facts from material particulars, let us now see whether the allegations in para 11(iv) of the petition cover all the material facts constituting a complete charge of corrupt practice within the meaning of Section 123(2) against Shri Shiv Pratap Singh who was a candidate at the election."
(iv) Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315 :
"11. In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samant case4 has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh case5 the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.
12. Learned counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matter pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. So long as the sword of Damocles of the election petition remains hanging an elected member of the legislature would not feel sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in campaign to establish that he has in fact been duly elected. Instead of discharging his functions as the elected representative of the people, he will be engaged in a struggle to establish that he is indeed such a representative, notwithstanding the fact that he has in fact won the verdict and the confidence of the electorate at the polls. He will have not only to win the vote of the people but also to win the vote of the court in a long drawn out litigation before he can wholeheartedly engage himself in discharging the trust reposed in him by the electorate. The pendency of the election petition would also act as hindrance if he be entrusted with some public office in his elected capacity. He may even have occasion to deal with the representatives of foreign powers who may wonder whether he will eventually succeed and hesitate to deal with him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom. Even if he is made of stern mettle, the constraint introduced by the pendency of an election petition may have some impact on his subconscious mind without his ever being or becoming aware of it. Under the circumstances, there is greater reason why in a democratic set-up, in regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the nation, the controversy is set at rest at the earliest, if the facts of the case and the law so warrant. Since the court has the power to act at the threshold the power must be exercised at the threshold itself in case the court is satisfied that it is a fit case for the exercise of such power and that exercise of such powers is warranted under the relevant provisions of law. To wind up the dialogue, to contend that the powers to dismiss or reject an election petition or pass appropriate orders should not be exercised except at the stage of final judgment after recording the evidence even if the facts of the case warrant exercise of such powers, at the threshold, is to contend that the legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as non-existent. The court cannot accede to such a proposition. The submission urged by the learned counsel for the petitioner in this behalf must therefore be firmly repelled.
14. Before we deal with these grounds seriatim, we consider it appropriate to restate the settled position of law as it emerges from the numerous decisions of this Court which have been cited before us in regard to the question as to what exactly is the content of the expression material facts and particulars, which the election petitioner shall incorporate in his petition by virtue of Section 83(1) of the Act.
(1) What are material facts and particulars? Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the court could have given a direct verdict in .favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition.
(2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a government servant, the following facts are essential to clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded3:
(a) mode of assistance;
(b) measure of assistance; and
(c) all various forms of facts pertaining to the assistance.
(3) In the context of an allegation as regards procuring, obtaining, abetting or attempting to obtain or procure the assistance of government servants in election it is absolutely essential to plead the following:
(a) kind or form of assistance obtained or procured;
(b) in what manner the assistance was obtained or procured or attempted to be obtained or procured by the election candidate for promoting the prospects of his election.
(4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance, the time of assistance, the persons from whom the actual and specific assistance was procured.
(5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered3.
(6) The election petitioner must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same, all these will have to be set out in the particulars.
16. Alleged corrupt practice as incorporated in ground I reads thus:
The election of the respondent is liable to be set declared void because the respondent was guilty of the following corrupt practice as defined under Section 123(7) of the Representation of the People Act, 1951, read with Sections 100(1)(b) and 100(d)(ii) of the said Act, the said corrupt practice was committed with the consent of the respondent returned candidate and of other workers of his with his consent. In any event, it was committed by the respondent's agents in the interests of the returned candidate and the said corrupt practice has materially affected the result of the election in so far as it concerns the returned candidate. One M.H. Beg who at one time was the Chief Justice of the Supreme Court of India and is a close friend of the Nehru family and is personally known to and friendly with the respondent, appeared on the government controlled news media and made a speech praising the respondent and comparing his entry into politics as the birth of new Arjuna, the insinuation being that the opposition were kauravas. His appearance on the television was relayed day after day on the government controlled media. Television sets had been installed in practically every election office of the respondent in Amethi constituency and throughout the election campaign thousands and thousands of voters were exposed to the television appearance and speech of the said Mr Beg. Mr Beg is a gazetted officer, being the Chairman of the Minorities Commission. His services were procured and obtained by the respondent, his agents and other persons with the consent of the respondent with a view to assist the furtherance of the prospects of the respondent's election. Mr Beg was seen and heard on the television as late as 21-12-1984. Propaganda about Mr Beg's was done particularly amongst the members of the Muslim community. Apart from being gross misuse of the office of Chairman of the Minorities Commission, the same constitutes a gross corrupt practice under the election law.
18. The averments contained in para 4 pertaining to Ground I do not satisfy the test prescribed in Manubhai Amorsey v. Popatlal Manilal Joshi and Hardwari Lal v. Kanwal Singh3. The most important test which remained unsatisfied is as regards the omission to satisfy in what manner the assistance was obtained and procured by the election candidate for promoting the prospects of his election. All that has been stated is:
His services were procured and obtained by the respondent, his agents and other persons with the consent of the respondent with a view to assist the furtherance of the prospects of the respondent's election.... It is not mentioned as to who procured or obtained the services of Shri Beg, in what manner he obtained the services and what were the facts which went to show that it was with the consent of the respondent. Unless these essential facts which would clothe the petition with a cause of action and which will call for an answer from the returned candidate are pleaded as per the law laid down in Manubhai Nandlal Amorsey v. Popatlal Manilal Joshi6 it cannot be said that the petition discloses a cause of action in regard to this charge. In the absence of these material facts and particulars court could not have rendered a verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition. It is not sufficient to show that a government servant had appeared on the public media to praise one of the candidates. It must also be shown that the assistance of the government servant was obtained either by the respondent or his agent or by any other person with the consent of the election candidate or his election agent. The averments made in the petition do not show (i) who had obtained or procured the assistance of Shri Beg; (ii) how he had obtained or procured the assistance of Shri Beg; and (iii) how it was said that it was with the consent of the respondent or his election agent. Nor is it shown which, if any, facts went to show that it was in furtherance of the prospects of the respondent's election. In the absence of material facts and particulars in regard to these aspects, the petition would not disclose the cause of action. The High Court was therefore, perfectly justified in reaching this conclusion. The petition also does not disclose the exact words used in the speech; or the time and date of making such a speech. Now, unless the relevant or offending passage from the speech is quoted, it cannot be said what exactly Shri Beg had said, and in what context, and whether it was calculated to promote the election prospects of the respondent. Be that as it may, inasmuch as these material facts and particulars to show that the services of Shri Beg were procured by someone with the consent of the respondent or his election agent are not there, the averments pertaining to the charge do not disclose a cause of action. Unless the nexus between the appearance of Shri Beg on the media and the prior consent of the respondent or his election agent in regard to what he was going to say and the purposes for which he was going to say is set out in the material particulars it cannot be said that it disclosed a cause of action and the test laid down in Manubhai Nandlal case3 as also Hardwari Lal case3 is satisfied. The High Court was therefore justified in taking the view that it has taken. We may, in passing, mention a point made by learned counsel for the respondent. It was submitted that the averment must also mention whether the interview was a live one telecast after the date of filing of the nomination. If it was one recorded prior to the said date it may not be of any consequence. This argument also requires consideration but we do not propose to rest our conclusion on this aspect as it is not necessary to do so."
(v) V. Narayanaswamy v. C.P. Thirunavukkarasu, (2000) 2 SCC 294 :
"23. It will be thus seen that an election petition is based on the rights, which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the rules and Form 25 are to be read conjointly as an integral scheme. When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between material facts and material particulars. While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. Material facts mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of sub-section (1) of Section 83. Then under clause (b) of sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation could have no legal existence and the court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case the petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of the duty of the court suo motu even to direct furnishing of better particulars when objection is raised by the other side. Where the petition does not disclose any cause of action it has to be rejected. The court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. The petition has to be considered as a whole. There cannot be a partial rejection of the petition.
24. We may also note Rule 2 of the rules of the Madras High Court, 1967, which is as under:
2. Every election petition shall be in the form of original petition, in the English language and shall be verified in the manner provided for under the Code of Civil Procedure, 1908. Clause (d) of Section 79 of the Act defines electoral right to mean the right of a person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate, or to vote or refrain from voting at an election. Under Section 123 corrupt practice insofar it is relevant in the present case means bribery, that is to say the receipt of, or agreement to receive, any gratification, whether as a motive or a reward (by any person whomsoever for himself or any other person) (a) for voting or refrain from voting, or (b) inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature. The term gratification has been explained and it includes all forms of entertainment.
25. Exercise of undue influence is also deemed to be a corrupt practice. Under sub-section (2) of Section 123 undue influence means any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right.
26. Material facts and material particulars certainly connote two different things. Material facts are those facts which constitute the cause of action. In a petition on the allegation of corrupt practices the cause of action cannot be equated with the cause of action as is normally understood because of the consequences that follow in a petition based on the allegations of corrupt practices. An election petition seeking a challenge to the election of a candidate on the allegation of corrupt practices is a serious matter; if proved, not only does the candidate suffer ignominy, he also suffers disqualification from standing for election for a period that may extend to six years. Reference in this connection may be made to Section 8-A25 of the Act. It was for this purpose that the proviso to sub-section (1) of Section 83 was inserted by Act 40 of 1961 (w.e.f. 20-9-1961) requiring filing of the affidavit in the prescribed form where there are allegations of corrupt practice in the election petition. Filing of the affidavit as required is not a mere formality. By naming a document as an affidavit it does not become an affidavit. To be an affidavit it has to conform not only to the form prescribed in substance but has also to contain particulars as required by the rules.
27. It is contended by Mr Bhandare that all the material facts have been stated in the election petition and that for lack of material particulars, the petition could not have been thrown out at the threshold. He said opportunity should have been given to the appellant to supply the material particulars. It is really a strange proposition to advance. Till the date of the impugned judgment, the appellant had persisted that the petition did not lack material particulars and that the verification was in accordance with the Code and the affidavit in support of the corrupt practice in the form prescribed. Admittedly, the petition lacked material particulars, the verification to the petition was not in accordance with the Code and the affidavit did not conform to the form prescribed. At the first opportunity, the respondent raised objection that the petition lacked both material facts and the material particulars and that the verification to the petition and the affidavit were not in accordance with law. This was repeated in the miscellaneous application (Original Application No. 298 of 1998). In the counter-affidavit and in the reply to the miscellaneous application, the appellant persisted in his stand and termed the objections raised by the respondent as irrelevant. It is not that the appellant did not have the opportunity to correct his mistake which he could have easily done in the rejoinder filed by him to the counter-affidavit of the respondent or even his reply to the miscellaneous application (OA No. 298 of 1998). He had every opportunity even at that stage to supply the material particulars which admittedly were lacking and also to amend the verification and to file the affidavit in the form prescribed but for reasons best known to him, he failed to do so. The existence of material facts, material particulars, correct verification and the affidavit are relevant and important when the petition is based on the allegation of corrupt practice and in the absence of those, the court has jurisdiction to dismiss the petition. The High Court has undoubtedly the power to permit amendment of the petition for supply of better material particulars and also to require amendment of the verification and filing of the required affidavit but there is no duty cast on the High Court to direct suo motu the furnishing of better particulars and requiring amendment of the petition for the purpose of verification and filing of proper affidavit. In a matter of this kind the primary responsibility for furnishing full particulars of the alleged corrupt practices and to file a petition in full compliance with the provisions of law is on the petitioner. (See in this connection the Constitution Bench decision in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani26 SCR at p. 144.)"
(vi) Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617:
"29. From the relevant provisions of the Act reproduced hereinabove, it is clear that an election petition must contain a concise statement of material facts on which the petitioner relies. It should also contain full particulars of any corrupt practice that the petitioner alleges including a full statement of names of the parties alleged to have committed such corrupt practice and the date and place of commission of such practice. Such election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) for the verification of pleadings. It should be accompanied by an affidavit in the prescribed form in support of allegation of such practice and particulars thereof.
30. All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by clause (a) of sub-section (1) of Section 83 of the Act read with clause (a) of Rule 11 of Order 7 of the Code.
31. The expression material facts has neither been defined in the Act nor in the Code. According to the dictionary meaning, material means fundamental, vital, basic, cardinal, central, crucial, decisive, essential, pivotal, indispensable, elementary or primary. [Burton's Legal Thesaurus (3rd Edn.), p. 349]. The phrase material facts, therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
32. In the leading case of Philipps v. Philipps1, Cotton, L.J. stated:
What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial.
33. In Bruce v. Odhams Press Ltd.2, Scott, L.J. referring to Philipps v. Philipps1 observed: (All ER p. 294) The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word material means necessary for the purpose of formulating a complete cause of action; and if any one material statement is omitted, the statement of claim is bad; it is demurrable in the old phraseology, and in the new is liable to be struck out under RSC Order 25 Rule 4 (see Philipps v. Philipps1); or a further and better statement of claim may be ordered under Rule 7.
34. A distinction between material facts and particulars, however, must not be overlooked. Material facts are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars thus ensure conduct of fair trial and would not take the opposite party by surprise.
35. All material facts must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.
36. In Halsbury's Laws of England (4th Edn.), Vol. 36, para 38, it has been stated:
38. The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, namely, either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. Each party is entitled to know the case that is intended to be made against him at the trial, and to have such particulars of his opponent's case as will prevent him from being taken by surprise. Particulars enable the other party to decide what evidence he ought to be prepared with and to prepare for the trial. A party is bound by the facts included in the particulars, and he may not rely on any other facts at the trial without obtaining the leave of the court.
50. There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue."
(vii) Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 :
"10. The pleadings of the said allegations of corrupt practice are limited to digging of bore wells only and there is no pleading on the material facts whether any water drawing equipment was installed in the said boreholes so dug and that such boreholes became water bore wells and that the water could be drawn from them. Neither have any facts been pleaded nor particulars given to the effect of how and in what manner the voters were influenced in favour of the appellant so as to cast votes in his favour. No particulars of such voters have been given in the election petition. As such there is total absence of material pleadings so as to prove that due to the alleged corrupt practice the election has been vitiated in a manner that but for such boreholes not being dug the appellant would not have been returned as a winning candidate and either the respondent herein or Respondent 2 of the election petition could have been returned as a winning candidate.
40. The short question which falls for adjudication in this case is whether the election petition is liable to be dismissed because of lack of material facts.
49. In this view of the matter, the court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a) of the Code. These provisions are set out as under:
16. Striking out pleadings.The court may at any stage of the proceedings order to be struck out or amended any matter in any pleading
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the court.
* * *
11. Rejection of plaint.The plaint shall be rejected in the following cases
(a) where it does not disclose a cause of action;
50. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with.
51. This Court in Samant N. Balkrishna case7 has expressed itself in no uncertain terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. In Udhav Singh v. Madhav Rao Scindia9 the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.
52. In V. Narayanaswamy v. C.P. Thirunavukkarasu10 this Court reiterated the legal position that an election petition is liable to be dismissed if it lacks in material facts. In L.R. Shivaramagowda v. T.M. Chandrashekar11 this Court again considered the importance of pleadings in an election petition alleging corrupt practice falling within the scope of Section 123 of the Act and observed as under: (SCC p. 677, para 11) 11. This Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between material facts and material particulars. While the failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment.
53. In Udhav Singh case9 this Court observed as under: (SCC pp. 522-23, para 41) 41. Like the Code of Civil Procedure, this section also envisages a distinction between material facts and material particulars. Clause (a) of sub-section (1) corresponds to Order 6 Rule 2, while clause (b) is analogous to Order 6 Rules 4 and 6 of the Code. The distinction between material facts and material particulars is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6 Rule 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.
54. In H.D. Revanna case2 the appeal was filed by the candidate who had succeeded in the election and whose application for dismissal of the election petition in limine was rejected by the High Court. This Court noticed that it has been laid down by this Court that non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. In Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi12 this Court observed thus: (SCC p. 51, para 14) 14. Necessary averment of facts constituting an appeal on the ground of his religion to vote or to refrain from voting would be material facts within the meaning of clause (a) of sub-section (1) of Section 83 of the Act. If such material facts are missing, they cannot be supplied later on, after the expiry of period of limitation for filing the election petition and the plea being deficient, can be directed to be struck down under Order 6 Rule 16 of the Code of Civil Procedure, 1908 and if such plea be the sole ground of filing an election petition, the petition itself can be rejected as not disclosing a cause of action under clause (a) of Rule 11, Order 7 of the Code.
55. In Harkirat Singh v. Amrinder Singh13 this Court again reiterated the distinction between material facts and material particulars and observed as under: (SCC p. 527, paras 51-52) 51. A distinction between material facts and particulars, however, must not be overlooked. Material facts are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars thus ensure conduct of fair trial and would not take the opposite party by surprise.
52. All material facts must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.
56. In Sudarsha Avasthi v. Shiv Pal Singh14 this Court observed as under: (SCC p. 612, para 20) 20. The election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses this as a handle for vexatious purpose.
57. It is settled legal position that all material facts must be pleaded by the party in support of the case set up by him within the period of limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. The election petition must contain a concise statement of material facts on which the petitioner relies.
58. There is no definition of material facts either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as material facts. All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. Material facts in other words mean the entire bundle of facts which would constitute a complete cause of action. This Court in Harkirat Singh case13 tried to give various meanings of material facts. The relevant para 48 of the said judgment is reproduced as under: (SCC pp. 526-27) 48. The expression material facts has neither been defined in the Act nor in the Code. According to the dictionary meaning, material means fundamental, vital, basic, cardinal, central, crucial, decisive, essential, pivotal, indispensable, elementary or primary. [Burton's Legal Thesaurus (3rd Edn.), p. 349.] The phrase material facts, therefore, may be said to be those facts upon which a party relies for its claim or defence. In other words, material facts are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
59. In the context of a charge of corrupt practice, material facts would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (the respondent herein) is bound to substantiate before he can succeed on that charge. It is also well settled that if material facts are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient."
(viii) Ram Sukh v. Dinesh Aggarwal, (2009) 10 SCC 541 :
"13. The phrase material facts has neither been defined in the Act nor in the Code and, therefore, it has been understood by the courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. In other words, material facts are facts upon which the plaintiff's cause of action or the defendant's defence depends. (See Mahadeorao Sukaji Shivankar v. Ramaratan Bapu3.) Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are material facts. Material facts are facts which, if established, would give the petitioner the relief asked for. But again, what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down.
14. The requirement in an election petition as to the statement of material facts and the consequences of lack of such disclosure with reference to Sections 81, 83 and 86 of the Act came up for consideration before a three-Judge Bench of this Court in Samant N. Balkrishna v. George Fernandez4. Speaking for the three-Judge Bench, M. Hidayatullah, C.J., inter alia, laid down that:
(i) Section 83 of the Act is mandatory and requires first a concise statement of material facts and then the fullest possible particulars;
(ii) omission of even a single material fact leads to an incomplete cause of action and statement of claim becomes bad;
(iii) the function of particulars is to present in full a picture of the cause of action and to make the opposite party understand the case he will have to meet;
(iv) material facts and particulars are distinct mattersmaterial facts will mention statements of fact and particulars will set out the names of persons with date, time and place; and
(v) in stating the material facts it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost."
(ix) M.J. Jacob v. A. Narayanan, (2009) 14 SCC 318 :
"13. It is well settled that in an election petition for proving an allegation of corrupt practice the standard of proof is like that in a criminal case. In other words, the allegation must be proved beyond reasonable doubt, and if two views are possible then the benefit of doubt should go to the elected candidate vide Manmohan Kalia v. Yash1, vide SCC p. 502, para 7 in which it is stated:
7. It is now well settled by several authorities of this Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process.
14. In Razik Ram v. Jaswant Singh Chouhan2, vide SCC p. 776, paras 15 and 16 it was observed:
15. Before considering as to whether the charges of corrupt practice were established, it is important to remember the standard of proof required in such cases. It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore, rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt. It is true that there is no difference between the general rules of evidence in civil and criminal cases, and the definition of proved in Section 3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainty amounting to demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring proof prescribed by the definition, is that of a person of prudence and practical good sense. Proof means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law, the probative effect of evidence in civil and criminal proceedings is markedly different. The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction. The same is largely true about proof of a charge of corrupt practice, which cannot be established by mere balance of probabilities, and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubtnot being the doubt of a timid, fickle or vacillating mindas to the veracity of the charge, it must hold the same as not proved.
16. We have reiterated the above principles not as a ceremonial refrain of what has been said by this Court again and again but to emphasise their importance as a guide in the matter. A court embarking upon an appreciation of evidence, without this rudder and compass, is apt to find itself at sea, mistaking every flotsam for shore, suspicion for proof and illusion for reality. Since these principles were not constantly kept in mind, the approach of the High Court in this case to the issues involved, and the treatment of evidence, appears to have gone awry. It is therefore, necessary to reappraise the evidence from the standpoint indicated above.
5. On the other hand, Mr.T.V.Ramanujam, learned Senior Counsel for the first respondent/election petitioner, would contend that the requirements of Section 83 (1) (a) and (b) are complied with by the first respondent; the averments in paras 8 to 17 of the Election Petition are full of material facts and particulars to prove the corrupt practices as defined under Section 123 of the Act and, therefore, the said paras are not to be struck off. He would further contend that a reading of the election petition per se indicates the cause of action and, hence, the Election Petition is in order and it is not liable to be rejected. The bottom line of the learned Senior Counsel is that the prayer for striking off the pleadings under Order VI Rule 16 CPC and the prayer for rejection of election petition under Order VII Rule 11 CPC in a single application are not maintainable, as the same cannot go together. He would cite the following authorities :
(i) D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267 :
"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.
9. Under Order 6 Rule 16, the court is enabled to strike out a pleading (a) which may be unnecessary, scandalous, frivolous or vexatious; or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or (c) which is otherwise an abuse of the process of the court. We have already pointed out that it is not the case of the first respondent that the pleading in the election petition is vitiated by all or any one of the aforesaid defects mentioned in the Rule. Hence striking out parts of the pleading in this case was not at all justified.
10. On the other hand, Rule 11 of Order 7 enjoins the court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this Rule. The application filed by the first respondent in OA No. 36 of 1997 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order 7 Rule 11(a), learned Senior Counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of Order 7 Rule 11(a) CPC cannot therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under Order 7 Rule 11(a) CPC, the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the Rule, there cannot be a partial rejection of the plaint or petition. See Roop Lal Sathi v. Nachhattar Singh Gill1. We are satisfied that the election petition in this case could not have been rejected in limine without a trial.
11. Designedly, we are refraining from adverting to the arguments pertaining to each allegation of corrupt practice, lest any observation by us might affect the views of the trial Judge. Suffice it to point out that this Court has repeatedly clarified the difference between material facts and full particulars and the different consequences of failure to set out either of them. In L.R. Shivaramagowda v. T.M. Chandrashekar2 cited by counsel on both sides, the case-law has been traced and the propositions are reiterated.
13. The decision in Ram Chand Bhatia v. Hardyal7 making a distinction between statements assailing personal character and those assailing public or political character of a candidate is not relevant at this stage. As pointed out by the Bench in that case, the question would depend on the facts of each case. Such facts can be determined only at the trial. The decision in Azhar Hussain v. Rajiv Gandhi8 relied on by learned Senior Counsel turned on the facts of the case and has no relevance in this case."
(ii) Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617 :
"27. Conduct of elections has been dealt with in Part V. Part VI relates to Disputes regarding elections. Section 80 requires any election to be questioned only by way of election petition. Under Section 80-A, it is the High Court which can try the election petitions. Section 81 provides for presentation of election petition and prescribes the period of limitation. Section 82 declares as to who shall be joined as respondents to such election petition. Section 83 deals with contents of the petition and reads thus:
83. Contents of petition.(1) An election petition
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
28. Section 100 enumerates grounds for declaring election to be void which inter alia includes improper reception, refusal or ejection of any vote or the reception of any vote which is void or there is non-compliance with the provisions of the Constitution or with the Act or rules or orders made under the Act. Section 101 empowers the High Court to declare a candidate other than the returned candidate to have been elected. Section 123 declares certain practices as deemed to be corrupt practices.
29. From the relevant provisions of the Act reproduced hereinabove, it is clear that an election petition must contain a concise statement of material facts on which the petitioner relies. It should also contain full particulars of any corrupt practice that the petitioner alleges including a full statement of names of the parties alleged to have committed such corrupt practice and the date and place of commission of such practice. Such election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) for the verification of pleadings. It should be accompanied by an affidavit in the prescribed form in support of allegation of such practice and particulars thereof.
30. All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by clause (a) of sub-section (1) of Section 83 of the Act read with clause (a) of Rule 11 of Order 7 of the Code.
31. The expression material facts has neither been defined in the Act nor in the Code. According to the dictionary meaning, material means fundamental, vital, basic, cardinal, central, crucial, decisive, essential, pivotal, indispensable, elementary or primary. [Burton's Legal Thesaurus (3rd Edn.), p. 349]. The phrase material facts, therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
32. In the leading case of Philipps v. Philipps1, Cotton, L.J. stated:
What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial.
33. In Bruce v. Odhams Press Ltd.2, Scott, L.J. referring to Philipps v. Philipps1 observed: (All ER p. 294) The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word material means necessary for the purpose of formulating a complete cause of action; and if any one material statement is omitted, the statement of claim is bad; it is demurrable in the old phraseology, and in the new is liable to be struck out under RSC Order 25 Rule 4 (see Philipps v. Philipps1); or a further and better statement of claim may be ordered under Rule 7.
34. A distinction between material facts and particulars, however, must not be overlooked. Material facts are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars thus ensure conduct of fair trial and would not take the opposite party by surprise.
35. All material facts must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.
36. In Halsbury's Laws of England (4th Edn.), Vol. 36, para 38, it has been stated:
38. The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, namely, either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. Each party is entitled to know the case that is intended to be made against him at the trial, and to have such particulars of his opponent's case as will prevent him from being taken by surprise. Particulars enable the other party to decide what evidence he ought to be prepared with and to prepare for the trial. A party is bound by the facts included in the particulars, and he may not rely on any other facts at the trial without obtaining the leave of the court.
40. We are unable to agree with the High Court. In our opinion, the considerations which weighed with the High Court were in the nature of evidence which is a matter to be considered and proved at the time of trial. The High Court was also not right in virtually invoking the doctrine of estoppel and in dismissing the petition on that ground.
50. There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.
51. In our considered opinion, material facts which are required to be pleaded in the election petition as required by Section 83(1) of the Act read with Order 7 Rule 11(a) of the Code have been pleaded by the election petitioner, cause of action has been disclosed in the election petition and, hence, the petition could not have been dismissed by the High Court. The impugned order of the High Court suffers from infirmity and cannot be sustained.
52. The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support of averments by entering into the merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside."
(iii) Ram Prasad Sarma v. Mani Kumar Subba, (2003) 1 SCC 289 :
"17. The purpose of the provision to furnish a true copy of the petition is not to frustrate the cause of the petitioner approaching the Court by adhering strictly to technicalities of little consequence. On the other hand the anxiety is that the respondent must have a correct idea of the allegations of corrupt practices made against him with some responsibility and that he may not be misled in any material respect by furnishing of a copy of the affidavit which may not be a correct copy having vital variation from the original. It is true that in the matters relating to elections and election petitions, strict compliance with the legal provisions is necessary and full care is to be taken to see that rights of an elected representative are not lightly disturbed and rightly so. But an election petition is not to be thrown at the threshold on the slightest pretext of one kind or the other which may or may not have any material bearing on the factors to be strictly adhered to in such matters. It is substance not form which would matter. If it is permitted otherwise, the returned candidate would only be on the lookout microscopically for any kind of technical lacuna or defect to abort the endeavour of the petitioner to bring to trial the issues relating to corrupt practices in the elections. The purpose of the law on the point cannot be to allow the returned candidate to avoid the trial of the issues of corrupt practices raised against him on the basis of any little defect which may not result in any vital variation between the original and the true copy so as to have the effect of misleading the returned candidate. As it is, the prevailing situation of elections and practices often said to be adopted now and then and here and there does not always give a very happy picture. Free, fair and fearless elections is an ideal to be achieved and not to be defeated for the sake of pretentious and frivolous technicalities."
(iv) Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196 :
"13. Having gone through the contents of the election petition, we are satisfied that the High Court has not been right in directing the petition to be dismissed at the threshold by forming an opinion that the averments made in the election petition were deficient in material facts. It is not necessary to burden this judgment with reproduction of the several averments made in the election petition. The High Court has already done it. The test laid down in the several authorities referred to hereinabove and in particular in the case of Raj Narain2 is fully satisfied. The grounds of corrupt practice and the facts necessary to formulate a complete cause of action have been stated. Even the particulars have been given. However, if the Court feels that the particulars as given in the petition are deficient in any manner the petitioner can be directed to supply the particulars and make the deficiency good. In any case, deficiency in particulars could not have been a ground for dismissing the petition at the threshold. It is only the non-supply of particulars though ordered by the Court which could have led to either striking off of the pleadings or refusal to try the related instances of alleged corrupt practice. We cannot countenance the view taken by the High Court.
14. So is the case with the defect pointed out by the High Court in the affidavit filed in support of the election petition alleging corrupt practice by the winning candidate. The proviso enacted to sub-section (1) of Section 83 of the Act is couched in a mandatory form inasmuch as it provides that a petition alleging corrupt practice shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. The form is prescribed by Rule 94-A. But at the same time, it cannot be lost sight of that failure to comply with the requirement as to filing of an affidavit cannot be a ground for dismissal of an election petition in limine under sub-section (1) of Section 86 of the Act. The point is no more res integra and is covered by several decisions of this Court. Suffice it to refer to two recent decisions namely G. Mallikarjunappa v. Shamanur Shivashankarappa6 and Vijay Laxmi Sadho (Dr.) v. Jagdish7, both three-Judge Bench decisions, wherein the learned Chief Justice has spoken for the Benches. It has been held that an election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election petition does not comply with either the provisions of Section 81 or Section 82 or Section 117 of the RP Act. The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Non-compliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly defective affidavit, is required to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case.
15. Having formed an opinion that there was any defect in the affidavit, the election petitioner should have been allowed an opportunity of removing the defect by filing a proper affidavit. Else the effect of such failure should have been left to be determined and adjudicated upon at the trial, as held in G. Mallikarjunappa case.
16. For the foregoing reasons, the appeal is allowed with costs. The judgment of the High Court is set aside. The election petition shall stand restored on the file of the High Court for hearing and decision consistently with what has been stated hereinabove."
(v) Mahadeorao Sukaji Shivankar v. Ramaratan Bapu, (2004) 7 SCC 181 :
"6. Now, it is no doubt true that all material facts have to be set out in an election petition. If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by clause (a) of Rule 11 of Order 7 of the Code. The question, however, is as to whether the petitioner had set out material facts in the election petition. The expression material facts has neither been defined in the Act nor in the Code. It may be stated that the material facts are those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish existence of cause of action or defence are material facts and must be stated in the pleading of the party.
7. But, it is equally well settled that there is distinction between material facts and particulars. Material facts are primary or basic facts which must be pleaded by the petitioner in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars ensure conduct of fair trial and would not take the opposite party by surprise.
8. Now, in the election petition, the petitioner has stated the details in paragraphs 9 to 13 as to corrupt practices adopted by the returned candidate. It was averred that the returned candidate used money power for purchasing votes by distributing cash to voters. He had distributed a large number of darris (carpets), each approximately worth Rs 600 in Villages Kotjambhara, Keshoroi, Raju Mispiri. In Village Raju Mispiri, an amount of Rs 600 was paid to the voters. It was also alleged that many villages were given aluminium utensils by the returned candidate, one of such villages was Vasni, Tehsil Deori. At Village Lendijob, Jashasa, blankets were distributed by the returned candidate. Wine was freely distributed and consignments of wine were escorted by PSI Yadav. It was asserted that 14 boxes each containing 12 bottles were seized after a fax was sent to the Election Commissioner. The consignment was seized from a vehicle by the Election Commissioner. Wine was distributed by the returned candidate all over the constituency and Police Station House Officer, Deori and Lambat. The returned candidate himself was escorting all vehicles transporting wine. The same process was adopted in Salekasa and Amgaon Police Stations. Wine was also distributed in Deori and Chichgad for two days before the polling. What was done by application, Ext. 32 by the election petitioner was to supply particulars in support of the facts stated and allegations made in the election petition. It, therefore, cannot be said that material facts have been set out for the first time in the application, Ext. 32 by the petitioner. Material facts as to the nature of corrupt practice had been set out by the petitioner in the election petition and what was done by him by instituting application, Ext. 32 was to furnish particulars in support of the allegations levelled in the election petition. In our opinion, therefore, it cannot be said that the petition was liable to be dismissed on the ground of absence of setting out material facts in the election petition."
(vi) Sathi Vijay Kumar v. Tota Singh, (2006) 13 SCC 353 :
"27. The above provision empowers a court to strike out any pleading if it is unnecessary, scandalous, frivolous or vexatious or tends to prejudice, embarrass or delay fair trial of the suit or is otherwise an abuse of the process of the court. The underlying object of the Rule is to ensure that every party to a suit should present his pleading in an intelligible form without causing embarrassment to his adversary (vide Davy v. Garrett1).
28. Bare reading of Rule 16 of Order 6 makes it clear that the court may order striking off of pleadings in the following circumstances:
(a) where such pleading is unnecessary, scandalous, frivolous or vexatious; or
(b) where such pleading tends to prejudice, embarrass or delay fair trial of the suit; or
(c) where such pleading is otherwise an abuse of the process of the court.
50. With respect, the High Court was wrong in interpreting and applying the ambit and scope of sub-section (7) of Section 123 of the Act. The provision has been reproduced in the earlier part of the judgment. It enacts that it would be deemed to be a corrupt practice if assistance is sought from a gazetted officer in certain cases. Such assistance may be sought either by (i) a candidate; or (ii) his agent; or (iii) any person with the consent of a candidate or his election agent for the furtherance of the prospects of the candidate's election. Thus, consent of the candidate is required only in those cases where such assistance is sought by any other person i.e. other than the candidate himself (or his election agent). And it is obvious because where the candidate himself (or his election agent) is seeking assistance of a gazetted officer, the question of consent does not arise. In the case on hand, the allegation of the election petitioner is that the first respondent himself has obtained assistance of a gazetted officer (Mr Jassi) for furtherance of prospects of his election. The High Court was, therefore, legally wrong in ordering deletion of Para 13(a) on the basis of construction of Section 123(7) of the Act."
(vii) Mohan Rawale v. Damodar Tatyaba, (1994) 2 SCC 392 :
"16. The distinction between material facts and particulars which together constitute the facts to be proved or the facta probanda on the one hand and the evidence by which those facts are to be proved facta probantia on the other must be kept clearly distinguished. In Philipps v. Philipps3, Brett, L.J. said:
I will not say that it is easy to express in words what are the facts which must be stated and what matters need not be stated. ... The distinction is taken in the very rule itself, between the facts on which the party relies and the evidence to prove those facts. Erle C.J. expressed it in this way. He said that there were facts that might be called the allegata probanda, the facts which ought to be proved, and they were different from the evidence which was adduced to prove those facts. And it was upon the expression of opinion of Erle C.J. that Rule 4 [now Rule 7(1)] was drawn. The facts which ought to be stated are the material facts on which the party pleading relies.
17. Lord Denman, C.J. in Willians v. Wilcox4 said:
It is an elementary rule in pleading that, when a state of facts is relied it is enough to allege it simply, without setting out the subordinate facts which are the means of proving it, or the evidence sustaining the allegations.
19. We have considered the submissions of the learned counsel on both sides. We are not persuaded to the view that the order of the High Court on this aspect of the controversy calls for interference. The High Court was right in its view that there was a triable issue arising out of the pleadings. The second contention, in our opinion, is insubstantial.
24. We have examined this contention of Shri Sanghi in the context of the actual pleadings. In our opinion, they are clearly covered by the latter part of the enunciation in Sasidharan case6 excerpted above. The purport and contents of the documents were set out in the election petition. Shri Sanghi however, sought to rely upon this Court's pronouncement in the case of M. Karunanidhi v. H.V. Hande7 as to what was held in that case held to be the consequence of the non-supply of the photograph of the banner. In that case, the photograph was to be an integral part of the pleadings."
(viii) K.K. Ramachandran Master v. M.V. Sreyamakumar, (2010) 7 SCC 428 :
"33. We do not consider it necessary to refer in further details to the specific averments made by the appellant in support of the charge that Respondent 1 had committed corrupt practices within the meaning of Section 123(4) of the Representation of the People Act. All that we need to say is that the averments made in the election petition sufficiently disclose a cause of action. The averments set out the material facts and give sufficient particulars that would justify the grant of an opportunity to the appellant to prove his allegations. Inasmuch as the High Court found otherwise, it in our opinion, committed a mistake. At any rate if there was any deficiency in the particulars required to be furnished in terms of Section 83(1)(b) of the Act the High Court could and indeed ought to have directed the petitioner to disclose and provide the same with a view to preventing any miscarriage of justice on account of non-disclosure of the same. So long the material facts had been stated, which were stated in the present case, the absence of particulars, if any, could not justify dismissal of the petition by the High Court."
(ix) Govind Singh v. Harchand Kaur, (2011) 2 SCC 621 = JT 2010 (12) SC 613 :
"44. Dealing with this preliminary question as to whether the election petition filed by the respondent was fit to be dismissed on the ground of the lack of material facts with material particulars, we are fully conscious of the well-settled legal position to the effect that if the election petition fails to disclose any cause of action and there is non-compliance with the mandatory requirements of Section 83 of the Representation of the People Act, 1951 which requires that the election petition should contain material facts on which the petitioner relies, it should set forth full particulars of any corrupt practice including full statement of the names of the parties which is alleged to have been committed along with the specific date and place of the commission of such corrupt practice. But it would also be equally appropriate to bear in mind that although the expression material facts has neither been defined in the 1951 Act nor in the Code of Civil Procedure, it has been understood by the courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. Their Lordships of the Supreme Court in Ram Sukh2 at SCC p. 548 have observed thus: (SCC para 13) 13. material facts are facts upon which the plaintiff's cause of action or the defendant's defence depends. Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are material facts. Material facts are facts which, if established, would give the petitioner the relief prayed for. But again, what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down.' This authority has also taken note of the ratio of the decision in Samant N. Balkrishna v. George Fernandez13 wherein the three-Judge Bench headed by the then Chief Justice M. Hidayatullah laid down five criteria which are mandatory under Section 83 of the Act for determination as to whether the election petition discloses that it does not lack in material facts and particulars. It was laid down therein that it is mandatory to first of all record a concise statement of material facts and then the fullest possible particulars. Any omission of even a single material fact leads to an incomplete cause of action and statement of claim would be treated as bad. The function of particulars is to present in full, a picture of the cause of action and to make the opposite party understand the case he will have to meet. The learned Judges further held therein that the material facts and material particulars are distinct matters and while the material facts will mention statements of fact, the particulars will set out the names of persons with date, time and place while stating the material facts as it will not be sufficient merely to quote the words of the section since the efficacy of the material facts in that event would be lost.
47. We have, therefore, carefully considered the correctness of the assertion of the counsel for the appellant whether the election petition in the case at hand was fit to be rejected for want of material facts and material particulars and we have noticed that the respondent has categorically stated the date, time and place of occurrence of the alleged corrupt practice at the instance of the appellant and has also given out the names of the witnesses who were to support the election petition filed by the respondent. But what exactly would be the worth of the evidence of witnesses relied upon by the counsel was a matter to be considered at the appropriate stage during trial, but to contend that the election petition lacked in material facts and material particulars due to which the election petition filed by the respondent was fit to be rejected on the ground of lack of material facts and material particulars, would not be legally correct and justified. In fact, we have noticed that the High Court in the impugned judgment and order has not even addressed this issue as to whether the petition was fit to be rejected on this ground or not, but the counsel for the appellant seems to have acquiesced with the same. However, since the counsel for the parties have addressed this Court on this issue which is clearly in the nature of a preliminary objection, we considered it just and appropriate to deal with this issue but for the reasons stated hereinbefore, we do not accept the contention of the counsel for the appellant that the election petition was fit to be rejected for lack of material facts and material particulars."
6. I have heard the learned Senior Counsel for the parties at length and also gone through the records as well as the authorities.
7. Before deciding the application on merits, let me first deal with the preliminary point of the learned Senior Counsel for the first respondent/election petitioner, whether the application is liable to be dismissed in limine ? as, according to him, the prayer for striking off the pleadings under Order VI Rule 16 CPC and the prayer for rejection of the election petition under Order VII Rule 11 CPC are independent and cannot be maintained together in a single application.
8. This application is filed by the returned candidate praying for two reliefs viz., (i) striking off the pleadings in paras 8 to 17 in the Election Petition No.2 of 2009 and (ii) rejecting the Election Petition as bereft of material facts and particulars and for want of cause of action and triable issues.
9. On this point, I am of the considered opinion that the application is maintainable, the reason being that if the first prayer i.e., the pleadings in paras 8 to 17 are struck out by this Court, the second prayer, namely, rejection of the Election Petition automatically follows suit for want of material facts and particulars, coupled with cause of action and triable issues. Hence, it can be construed that the provisions of Order VI Rule 16 and Order VII Rule 11 CPC are interconnected. The application is also maintainable for more reason viz., to avoid multiplicity of proceedings. Therefore, this application is in order and maintainable.
10. Let me now come to the merits of the application. The provisions that are relevant for deciding this application are : Order VI Rule 16 CPC, Order VII Rule 11 CPC, Sections 83 (1) (a) and (b); 86 (1) and 123 (1) (A), (B) and (7) of The Representation of the People Act,1951.
11. Order VI Rule 16 CPC reads thus :
"16. Striking out pleadings.The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the Court.
Under the above provision, the court is enabled to strike out a pleading (a) which may be unnecessary, scandalous, frivolous or vexatious; or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or (c) which is otherwise an abuse of the process of the court."
12. Order VII Rule 11 goes thus :
"11. Rejection of plaint. The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9;
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
13. The above provision viz., Order VII Rule 11 (a) enjoins the Court to reject the plaint where it does not disclose a cause of action. As stated above, since the provisions of Order VI Rule 16 and Order VII Rule 11 CPC are interconnected, I deal with these two provisions in this application together.
14. This application filed by the applicant is on the footing that the pleadings in paras 8 to 17 in the election petition do not contain the material facts giving rise to triable issues or disclosing a cause of action. Laying stress upon the provisions of Order 7 Rule 11(a), learned Senior Counsel for the applicant took me through the entire election petition and submitted that the averments therein do not disclose a cause of action.
15. It is no doubt true that all material facts have to be set out in an election petition. If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by clause (a) of Rule 11 of Order 7 of the Code. The question, however, is as to whether the petitioner has set out material facts in the election petition.
16. The expression material facts has neither been defined in the Act nor in the Code. According to the dictionary meaning, material means fundamental, vital, basic, cardinal, central, crucial, decisive, essential, pivotal, indispensable, elementary or primary. [Burton's Legal Thesaurus (3rd Edn.), p. 349]. The phrase material facts, therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
17. A distinction between material facts and particulars, however, must not be overlooked. Material facts are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars thus ensure conduct of fair trial and would not take the opposite party by surprise.
18. All material facts must be pleaded by the party in support of the case set up by him. Since the object is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.
19. I have gone through the Election Petition in toto. On a reading of the same, I do not find it possible to agree with the learned Senior Counsel for the applicant with regard to his contention that the averments in the Election Petition do not disclose any cause of action.
20. In the election petition, the petitioner has stated the details in paragraphs 8 to 19 as to corrupt practices adopted by the applicant/returned candidate. It is averred that the applicant used money power for purchasing votes by distributing cash to voters. It is also alleged that he has distributed a large number of sarees and dhotis to the electors through his agents apart from distributing a sum of Rs.500/- each to the electors to woo the voters. It is asserted that the Special Election Observers for Madurai Lok Sabha Constituency seized sarees in six bundles from two houses in Jaihind Puram. It is further alleged that the women folk who gave aarthi to the applicant were given tokens with a cash of Rs.100/- each to induce the electors to exercise their franchise in favour of the applicant. It is also averred that the applicant has influenced the State Government and made the transport corporation to ply buses from April 15 onwards in different routes to induce the electors from the villages to cast their votes in his favour. Further, it is seen from the election petition that the applicant has also influenced the then Commissioner of Police, Madurai, to abuse his official position to procure votes in favour of the applicant, which, according to the election petitioner, has materially affected the result of the election.
21. When the above averments in the Election Petition constitute material facts coupled with full particulars, in my opinion, it cannot be said that the Election Petition is liable to be dismissed on the ground of absence of setting out material facts. In fact, the Election Petition does disclose a cause of action, which, if unrebutted, could void the election and, therefore, the provisions of Order 7 Rule 11(a) CPC cannot be invoked in this case. There is also 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. Therefore, I am satisfied that the Election Petition in this case cannot be rejected in limine without a trial.
22. Conduct of elections has been dealt with in Part V. Part VI relates to Disputes regarding elections. Section 80 requires any election to be questioned only by way of election petition. Under Section 80-A, it is the High Court which can try the election petitions. Section 81 provides for presentation of election petition and prescribes the period of limitation. Section 82 declares as to who shall be joined as respondents to such election petition. Section 83 deals with contents of the petition and reads thus:
83. Contents of petition.(1) An election petition
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
23. The proviso to sub-section (1) of Section 83 of the Act is couched in a mandatory form inasmuch as it provides that a petition alleging corrupt practice shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. The form is prescribed by Rule 94-A. But, at the same time, it cannot be lost sight of that failure to comply with the requirement as to filing of an affidavit cannot be a ground for dismissal of an election petition in limine under sub-section (1) of Section 86 of the Act. The point is no more res integra and is covered by several decisions of the Supreme Court. It is sufficient to refer to two decisions of the Apex Court, namely, (i) G. Mallikarjunappa v. Shamanur Shivashankarappa, (2001) 4 SCC 428 and Vijay Laxmi Sadho (Dr.) v. Jagdish, (2001) 2 SCC 247, both three-Judge Bench decisions, wherein the then Chief Justice has spoken for the Benches. It has been held that an election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election petition does not comply with either the provisions of Section 81 or Section 82 or Section 117 of the RP Act. The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Non-compliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly defective affidavit, are required to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case. The same principle has been reiterated by the Supreme Court in Sardar Harcharan Singh Brar's case, cited above.
24. In the instant case, even assuming that there is any defect in the affidavit, the election petitioner shall be allowed an opportunity of removing the defect by filing a proper affidavit. Else, the effect of such failure shall be left to be determined and adjudicated upon at the trial, as held by the Apex Court in G. Mallikarjunappa's case, referred to supra.
25. Section 100 enumerates grounds for declaring election to be void which inter alia includes improper reception, refusal or ejection of any vote or the reception of any vote which is void or there is non-compliance with the provisions of the Constitution or with the Act or rules or orders made under the Act. Section 101 empowers the High Court to declare a candidate other than the returned candidate to have been elected. Section 123 declares certain practices as deemed to be corrupt practices.
26. From the relevant provisions of the Act reproduced hereinabove, it is clear that an election petition must contain a concise statement of material facts on which the petitioner relies. It should also contain full particulars of any corrupt practice that the petitioner alleges including a full statement of names of the parties alleged to have committed such corrupt practice and the date and place of commission of such practice. Such election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) for the verification of pleadings. It should be accompanied by an affidavit in the prescribed form in support of allegation of such practice and particulars thereof. All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by clause (a) of sub-section (1) of Section 83 of the Act read with clause (a) of Rule 11 of Order 7 of the Code.
27. In the present case, the material facts which are required to be pleaded in the election petition as required by Section 83(1) of the Act read with Order 7 Rule 11(a) of the Code have been pleaded by the election petitioner; cause of action has been disclosed in the election petition and, hence, the Election Petition cannot be rejected. In my opinion, the considerations which weighed with this Court in this application are in the nature of evidence which is a matter to be considered and proved at the time of trial.
28. This Court cannot step into the prohibited area of considering the correctness of allegations and evidence in support of averments by entering into the merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition is to be rejected.
29. Let me now come to Section 123, which reads as follows :
"123. Corrupt practices.The following shall be deemed to be corrupt practices for the purposes of this Act: (1) Bribery, that is to say (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing
(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election, or as a reward to
(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward
(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or
(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.
(2) (6) ******* (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, 2a[from any person whether or not in the service of the Government] and belonging to any of the following classes, namely:
(a) gazetted officers;
(b) - (h) *******"
30. Under this Section, the test shall be, whether the grounds of corrupt practice and the facts necessary to formulate a complete cause of action have been stated. In this case, I say, it is done. Even the particulars have been given. However, even if the Court feels that the particulars as given in the petition are deficient in any manner the petitioner can be directed to supply the particulars and make the deficiency good. In any case, deficiency in particulars cannot be a ground for dismissing the petition at the threshold. It is only the non-supply of particulars though ordered by the Court which could have led to either striking off of the pleadings or refusal to try the related instances of alleged corrupt practice, as held by the Supreme Court in Sardar Harcharan Singh Brar's case, cited above.
31. Section 123 (1) (A) enacts that it would be deemed to be corrupt practices if any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or an elector to vote or refrain from voting at an election, or as a reward to a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or an elector for having voted or refrained from voting. Sub-section (B) thereof says that the receipt of, or agreement to receive, any gratification, whether as a motive or a reward by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature, would be a corrupt practice. Similarly, Sub-section (7) of Section 123 enacts that it would be deemed to be a corrupt practice if assistance is sought from a gazetted officer in certain cases. Such assistance may be sought either by (i) a candidate; or (ii) his agent; or (iii) any person with the consent of a candidate or his election agent for the furtherance of the prospects of the candidate's election.
32. I have considered the assertion of the learned Senior Counsel for the applicant as to whether the Election Petition in the case on hand is fit to be rejected for want of material facts and material particulars and noticed that the election petitioner has categorically stated the dates and places of occurrence of the alleged corrupt practices at the instance of the applicant and has also given out the names of the witnesses who were to support the election petition filed by the election petitioner. But what exactly would be the worth of the evidence of witnesses relied upon by the parties is a matter to be considered at the appropriate stage during trial. Since the learned Senior Counsel for the parties have addressed this Court on this issue which is clearly in the nature of a preliminary objection, I considered it just and appropriate to deal with the same, but for the reasons stated hereinbefore, I do not accept the contention of the learned Senior Counsel for the applicant that the election petition is fit to be rejected for lack of material facts and material particulars.
33. The material facts coupled with particulars mentioned by me in para 20 would prima facie satisfy the ingredients of Section 123 and Sub-sections (1) (A) , (B) and (7). Whether these material facts are true or false is a matter of trial. All that I say is that the averments made in the election petition sufficiently disclose a cause of action. Also, the averments in the election petition set out the material facts and give sufficient particulars that would justify the grant of an opportunity to the election petitioner to prove his allegations.
34. It is true, in matters relating to elections and election petitions, strict compliance with the legal provisions is necessary and full care is to be taken to see that rights of an elected representative are not lightly disturbed. But, an election petition is not to be thrown at the threshold on the slightest pretext of one kind or the other which may or may not have any material bearing on the factors to be strictly adhered to in such matters. It is substance, not form, which would matter. If it is permitted otherwise, the returned candidate would only be on the lookout microscopically for any kind of technical lacuna or defect to abort the endeavour of the petitioner to bring to trial the issues relating to corrupt practices in the elections. The purpose of the law on the point cannot be to allow the returned candidate to avoid the trial of the issues of corrupt practices raised against him on the basis of any little defect. Free, fair and fearless elections is an ideal to be achieved and not to be defeated for the sake of pretentious and frivolous technicalities. This is the law laid down by the Supreme Court in Ram Prasad Sarma's case, cited above.
35. More importantly, in this case, this Court has already framed the issues for trial in the Election Petition, finding cause of action and triable issues, and, a date is also given for trial. The issues, which are framed, are as under :
1. Whether the Election Petition is maintainable and can be taken up for disposal when the substituted petitioner was not a contestant in the election and does not have any direct knowledge about the alleged facts raised by the deceased original petitioner when all the documents filed in support of the petition are attested to be true by the substituted petitioner ?
2. Whether the Election Petition is maintainable when the petitioner has not complied with the procedure laid down u/s.83 (1) (c) of the Representation of the Peoples Act,1951, and, if so, whether the Election Petition is defective ?
3. Whether the first respondent, through his agents, has indulged in bribing the electors of Madurai Parliamentary Constituency, by distributing money to the electors and also to women folk, who gave "Aarthy" to the first respondent during his election campaigning, coupled with supplying sarees and dhotis, to exercise their franchise in his favour, and, if so, whether such act amounted to a "corrupt practice" under Section 123 of the Representation of the Peoples Act,1951.
4. Whether the first respondent, in furtherance of prospects of his election, obtained and procured the assistance of the Public Relations Officer of the Government of Tamil Nadu, who was in service and had canvassed for the first respondent by sending communications through e-mail to newspapers with photographs, and, if so, whether that amounted to a corrupt practice under Section 123 (7) of the Representation of the Peoples Act,1951 ?
5. Whether the first respondent, with his influence, obtained and procured the assistance of the Government of Tamil Nadu, in furtherance of prospects of his election and made the State Transport Corporation to ply its buses in the routes covering villages within the Madurai Parliamentary Constituency, to induce the electors from those villages to cast their votes in his favour ?
6. Whether the first respondent obtained and procured the assistance of the Madurai Police Commissioner Mr.Nandabalan, in furtherance of prospects of his election, to abuse his official position to woo the voters ?
7. Whether the first respondent has canvassed the electors of Madurai Parliamentary Constituency to vote in his favour for "Rising Sun" symbol in local private TV Channels viz., Media TV and Krishna TV, at the Meenakshi Amman Temple Kumbabhishekam on 08.04.2009, after the code of conduct for the election has come into force, and, if so, whether it amounted to non-compliance of the code of conduct of election ?
8. Whether the documents filed along with the Election Petition are sufficient to prove the alleged involvement of the first respondent in the election misconduct and corrupt practice ?
9. Whether the election of the first respondent as returned candidate from No.32, Madurai Parliamentary Constituency, for the election held on 13.05.2009, is liable to be declared as null and void on the grounds of corrupt practice committed by him and his men and also for non-compliance of the code of conduct of election ?
36. The above issues are to be decided only after trial and based on evidence. Considering the aforesaid circumstances, this application has been filed with an ulterior motive of avoiding the regular proceedings of the Election Petition, especially when no substantial grounds are available to the applicant to strike off the pleadings and reject the Election Petition, as the paras 8 to 17 in the Election Petition do not disclose any pleadings to be struck out, which are unnecessary, scandalous, frivolous or vexatious, or which may tend to prejudice, embarrass or delay the fair trial of the suit, or which are otherwise an abuse of the process of the Court, as alleged. Instead, the said paras are the material facts coupled with full particulars, as stated above, which are to be tested during the course of trial. The decisions relied upon by the learned Senior Counsel for the applicant are not relevant for consideration in view of my findings as above.
37. The Supreme Court, in a very recent decision in Nandiesha Reddy v. Kavitha Mahesh, (2011) 7 SCC 721, which is directly on the point in hand, has held that when the election petition contains material facts, it is not liable to be dismissed at the threshold. The relevant portions of the said decision are as under :
"36. Section 83(1)(a) inter alia provides that an election petition shall contain a concise statement of the material facts. Further, Section 87 of the Act provides that subject to the provisions of the Act and the Rules framed thereunder every election petition shall be tried in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Order 6 of the Code of Civil Procedure is devoted to the pleadings generally and Rule 2(1) thereof, inter alia, provides that every pleading shall contain a statement in a concise form of all the material facts on which the party pleading relies for claim. In an election petition, which does not contain material facts, no relief can be granted.
37. The phrase material facts as used in Section 83(1)(a) of the Act or Order 6 Rule 2 of the Code of Civil Procedure has not been defined in the Act or the Code of Civil Procedure. In our opinion all specific and primary facts which are required to be proved by a party for the relief claimed are material facts. It is settled legal position that all material facts must be pleaded by the party on which the relief is founded. Its object and purpose is to enable the contesting party to know the case which it has to meet. An election petition can be summarily dismissed if it does not furnish the material facts to give rise to a cause of action. However, what are the material facts always depend upon the facts of each case and no rule of universal application is possible to be laid down in this regard.
38. Bearing in mind the aforesaid legal position when we proceed to consider the facts of the present case we are of the opinion that the election petitioner had disclosed material facts and the matter is fit to go for trial. Whether those material facts are true or false is a matter of trial.
39. As regards authorities of this Court in Anil Vasudev Salgaonkar and Ram Sukh we are of the opinion that the same do not lend support to the contention of the appellant. In both the cases this Court on facts came to the conclusion that the election petition did not contain a statement of material facts and accordingly the election petitions were dismissed at the threshold. However, in the present case, on facts we have found that the election petition does contain material facts and it is not liable to be dismissed at the threshold.
In the said case, the Apex Court also imposed costs of Rs.25,000/- on the appellant/returned candidate to be paid to the respondent/election petitioner therein.
38. Under the circumstances, particularly when the issues are already framed in the Election Petition and the trial is about to commence, in my standpoint, the question of entertaining this application for the reliefs stated above does not arise at all. Accordingly, it is dismissed with costs of Rs.5,000/- (Rupees Five Thousand only), to be payable to the election petitioner. Any observation made by me in this order is only for the purpose of disposal of the application and shall have no bearing on the final decision of the Election Petition.
dixit Application No.2610 of 2011 in Election Petition No.2 of 2009 Dated :: 02-12-2011 V.DHANAPALAN,J.
M.K.Azhagiri ... Applicant vs. 1. A.Lazar 2. N.Dharbar Raja 3. C.Kaviyarasu 4. K.Anand 5. R.Gopal 6. V.Sivakumar 7. K.Thangapandi 8. M.A.Nagamalai 9. M.Palpandi 10. T.R.Mothilal 11. S.Veeradurai 12. The Returning Officer District Collector, Madurai. ... Respondents
Application to strike off the pleadings in paragraphs 8,9,10,11,13,14,15,16 and 17 in the Election Petition 2 of 2009 consequently to REJECT the Election Petition No.2 of 2009 as being bereft of material facts and particulars, vague, vexatious and for want of cause of action and triable issue.
For Applicant : Mr.T.R.Rajagopalan, Senior Counsel for Mr.K.Azhagu Raman For Respondents : Mr.T.V.Ramanujam, Senior Counsel for Mr.T.V.Krishnamachari Mr.M.R.Raghavan, Standing Counsel for Election Cases