Allahabad High Court
Rangnath Mishra vs Shri Ramesh Chand on 28 January, 2020
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Order reserved on 16.12.2019) (Order delivered on 28.01.2020) Court No. - 05 Case :- ELECTION PETITION No. - 11 of 2019 Petitioner :- Rangnath Mishra Respondent :- Shri Ramesh Chand Counsel for Petitioner :- , ,Man Mohan Mishra,N.K.Pandey,Narendra Kumar Pandey,Rangnath Mishra (In Person) Counsel for Respondent :- Manish Goyal(Senior Adv.),Brajesh Pratap Singh,P.K.Singhal Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Manish Goyal, learned senior advocate along with Sri P.K. Singhal, assisted by Sri Brijesh Pratap Singh, learned counsel for the applicant-respondent and Sri N.K. Pandey, learned counsel for the election petitioner on Applications filed by the respondent being Application A-9 (under Order VI Rule 16, C.P.C.), Application A-10 (under Order VII Rule 11, C.P.C.), and Application A-11 (under Order VIII Rule 1, C.P.C.).
FACTS:-
2. Briefly stated facts of the present case are that election for Member of Parliament, from 78-Bhadohi parliamentary constituency of District Bhadohi was held as per following program:-
6th Phase of election - 16.04.209 to 27.05.2019 Issue of Notification 16.04.2019 Last Date for making Nominations 23.04.2019 (11:00 AM to 03:00 PM) Scrutiny of Nominations 24.04.2019 (11:00 AM to 03:00 PM) Last date for Withdrawal of candidature 26.04.2019 (11:00 AM to 03:00 PM) Date of Poll 12.05.2019 (07:00 AM to 06:00 PM) Date of Counting of Votes 23.05.2019 (08:00 AM to till the end of counting)
3. In the aforesaid election, 32 candidates including the election petitioner and the respondent, filed their nomination. Nomination papers of 20 candidates were rejected by the returning officer. On 24.04.2019 after withdrawal of nomination papers, the returning officer issued list of contesting candidates i.e. 12 candidates in Form 7A dated 26.04.2019 along with symbols allotted to them and other requisite particulars including photographs of candidates etc. As per aforesaid list of contesting candidates, the election petitioner was contesting the election as candidate of Bahujan Samaj Party and the respondent was contesting the election as candidate of Bhartiya Janta Party. Copy of form 7A has been filed as Annexure-18 to the election petition. After counting, the returning officer declared the result. The election petitioner secured 4,66,414 votes while the respondent secured 5,10,029 votes. Thus, the respondent was declared elected.
4. In this election petition, the election petitioner sought the following reliefs:
"(i) The declaration of the election of respondent - Shri Ramesh Chand as a Member of Parliament from 78 - Bhadohi Parliamentary Constituency of District Bhadohi, be set aside and be declared null and void.
(ii) Grant any other and further relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;
(iii) Award the cost of petition in favour of the election petitioner."
5. Grounds for filing the present election petition are stated in para-17 of the election petition, as under:-
"17. That, the election petitioner is challenging the validity of the election of Respondent -Ramesh Chand as a Member Parliament from 78 - Bhadohi Parliamentary Constituency of District Bhadohi on following amongst other grounds:
GROUNDS (A) Because, the election of the returned candidate Shri Ramesh Chand as a Member Parliament from 78 - Bhadohi Parliamentary Constituency of District Bhadohi is illegal and void due to improper acceptance of his nomination paper by the Returning Officer, which materially affect the result of the election.
(B) Because, the election of the returned candidate Shri Ramesh Chand as a Member Parliament from 78 - Bhadohi Parliamentary Constituency of District Bhadohi is illegal and void due to improper rejection of the nomination paper of Shri Shrikant, S/o Lal Bihari, R/o Village - Hariharpur, Post - Sanda Suriyawan, District - Bhadohi, and due to improper rejection of the nomination papers of other candidates.
(C) Because, the result of the election, so far as it concern the returned candidate, is materially affected due to non-compliance of the provisions of the Constitution of India, Representation of People Act, 1951 and the Rules & Orders made therein, as well as due to non-compliance of the statuary orders and instructions & Orders made therein, as well as due non-compliance of the statutory orders and instructions & guidelines issued by the Election Commission of India from time to time by exercising the powers under Article 324 of the Constitution of India."
6. In paragraph-18 of the election petition, the election petitioner has stated as under:
"18. That, the concise statement of the material facts in respect of the Grounds - (A), (B) & (C) are as under:-"
7. Thereafter in paragraphs-19 to 56, the election petitioner has made averments which according to him, as stated in paragraph-18; are the concise statement of the material facts in respect of grounds -(A), (B) and (C).
8. The Application A-9 under Order VI Rule 16, C.P.C. has been filed by the respondent winning candidate praying to strike down paragraphs Nos.8, 9, 10, 14, 16,17, 22, 23, 24, 25, 28, 29, 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 49, 52 and 53. The election petitioner has filed objection A-15 and reply A-17 has been filed by the applicant-respondent.
9. The Application A-10 under Order VII Rule 11, C.P.C., has been filed by the respondent winning candidate praying to dismiss the election petition being barred by law and also for want of disclosure of material facts and disclosure of cause of action. The election petitioner has filed objection A-16 and reply A-18 has been filed by the applicant-respondent.
10. The Application A-11 under Order VIII Rule 1, C.P.C. has been filed by the respondent winning candidate praying to grant three months' time for filing written statement.
11. Since grounds for Application A-9 and Application A-10 filed by the respondent winning candidate are common or related to each other, therefore, with the consent of learned counsels for the parties, all the three applications have been heard together for disposal.
SUBMISSIONS:-
12. Sri Manish Goyal, learned senior counsel for the applicant-respondent/ winning candidate submits, as under:-
(i) Election petition is not a suit in common law or action in equity. Election of returned candidate cannot be lightly interfered with. It has to be seen whether the allegations made in the election petition constitute material facts and in absence thereof, election petition deserves to be dismissed.
(ii) As per own case of the election petitioner, the election petition has been filed on the grounds mentioned in Section 100(1)(c) and Section 100(1)(d)(i)/(iv) but the election petitioner has not stated material facts in the election petition in terms of Section 83 of The Representation of People Act, 1951 (hereinafter referred to as ''The Act 1951') with respect to the grounds (A), (B) and (C) mentioned in paragraph-17 of the election petition.
(iii) Perusal of contents of paragraphs of the election petition (which he read extensively) makes it clear that it completely lacks averments which may constitute material facts to challenge the election on the Grounds (A), (B) and (C). Election petition also does not disclose cause of action. Therefore, the paragraphs as mentioned in prayer clause of the Application A-9 are liable to be struck out and the election petition deserves to be dismissed as barred by law and also for want of disclosure of material facts and cause of action.
(iv) The nomination paper of another candidate namely Shri Shrikant was rejected. It suffered from several defects. Being independent candidate, he required 10 proposers under Section 33 of the Act 1951 but there were only eight proposers. He has also left blank the columns 2 and 3 of his nomination paper and not mentioned even assembly constituency of the proposers. Material facts regarding Shrikant to be independent candidate is lacking.
(v) In paragraphs 20 and 45 of the election petition, vague allegation of dual standard has been made with regard to 20 candidates whose nomination papers were rejected but it has not been disclosed what were the dual standards.
(vi) The election petitioner has also alleged that the nomination form of the respondent suffered from similar and identical defect on which the nomination of 20 candidates were rejected. Copies of the rejection orders have been filed but perusal thereof shows that the nomination form of 20 candidates were rejected on the basis of such defects which are non-existent in the case of applicant-respondent.
(vii) In his objection, the election petitioner has alleged that material facts have been stated in paragraph Nos.1 to 16 but perusal of paras-1 to 16 of the election petition shows that it contains no material facts. Vague averments have been made by the election petitioner in the election petition.
(viii) Paragraph-16 of the election petition is vague. Paragraph Nos.8, 10, 16, 24, 25, 44 and 45 lacks material facts with reference to Ground (B). Therefore, the statutory provisions of Section 100(1)(c) of the Act, 1951, are not satisfied.
(ix) The averments made in election petition with reference to Grounds (A) and (C), do not contain reference of any provisions or circular or guidelines which stood violated. Pleadings in this regard in paragraph-28 of the election petition are vague.
(x) The respondent was a candidate of BJP. He filed four sets of nomination papers, out of which three were not accepted and one was accepted by the returning officer. There is no pleading that nomination paper of the respondent accepted by the returning officer suffers from any illegality. Therefore, the Ground (A) taken by the election-petitioner referable to Section 100(1)(d)(i) of the Act, 1951 to hold the election of the respondent to be void due to alleged improper acceptance of nomination paper by the returning officer, has no factual foundation and completely lacks disclosure of material facts in this regard.
(xi) The averments made by the election petitioner with reference to Grounds (A) and (C) in the election petition are either irrelevant or vague or lack material facts.
(xii) Paragraph-14 is irrelevant and not related to Grounds (A), (B) and (C).
(xiii) Paragraph-16 is vague and vexatious. Paragraphs 22 and 23 are not relevant for acceptance of nomination papers. Paragraph-24 and 25 lacks material facts relating to Ground (B).
(xiv) It has not been stated that Shrikant was contesting election as independent candidate. Since he was independent candidate and there were not ten proposers. Hence his nomination paper was not a nomination in the eyes of law.
(xv) Contents of paragraph-28 are vague inasmuch as it has not been stated that which affidavit filed by the respondent was not proper.
(xvi) The alleged defect mentioned in para-29 is not of substantial nature because the BJP has itself given certificate that respondent is the official candidate of BJP and thereafter list was published by the returning officer showing respondent as candidate of BJP.
(xvii) Paragraphs 30 and 46 of the election petition impute motive of corrupt practice, i.e. undue influence upon voters but it is not a ground to challenge the election of the respondent in the election petition. Therefore, it has no material facts with reference to the grounds of the election petition.
(xviii) There is no pleading in the election petition that the newspaper containing news item dated 26.04.2019 has circulation in the constituency and that the loyal voters of BSP read it. Therefore, pleadings are vague and do not constitute material facts.
(xix) Form C-1 is for publication by candidate, From C-2 is publication by political property, Form C-3 is the reminder by the returning officer to a candidate for publication. Therefore, these averments are not part of nomination paper.
(xx) Paragraphs-44 and 45 of the election petition are vague. No material facts have been stated.
(xxi) Para-47 are irrelevant to the Grounds (A), (B) and (C) of the election petition. Para-48 refers to Form 26 of a candidate of a different constituency therefore, which is not relevant. Hence, pleading is irrelevant. Para-49 is vague and lack material facts. Paras 52 and 53 refers to the provisions of Section 33 and 33A of the Act, 1951 but there is no disclosure of fact that how these provisions have been violated by the respondent.
(xxii) Para-53 states contravention of provisions of Act, 1951, provision of the Conduct of Elections Rules, 1961 and contravention of orders, guidelines and instructions of the Election Commission of India issued from time to time in filing affidavit in Form 26 but it has not been disclosed which provision, order or guideline has been violated and how it has been violated.
(xxiii) Pleadings can be struck down in part under Order VI Rule 16, C.P.C. The distinct ground must have distinct material fact.
(xxiv) If paragraphs as mentioned in Application A-9 are struck down, then remaining paragraphs shall not constitute material facts to give a cause of action to challenge the election of the respondent returned candidate. Therefore, the election petition is liable to be dismissed under Order VII Rule 11(a), C.P.C.
(xxv) Mentioning of BSP in clause (4) of part-kha of From 26 stood rectified in view of Section 38 of the Act, 1951 on allotment of symbol of BJP and on issuance of list of candidates under Rule 10(4) of The Conduct of Election Rules, 1961 in Form-7A. That apart there was no error in Form-26 and it was merely a typographical error which is not of substantial nature which will result in substantial defect.
IN REJOINDER:-
(xxvi) In paragraph 8 of the election petition, the election petitioner has not disclosed material facts with regard to allegation of pre-planned mechanism.
(xxvii) In paragraph 9 of the election petition, the election petitioner has not disclosed any material facts for the allegation of improper acceptance of nomination paper of Sri Ramesh Chandra (the respondent returned candidate). The objection in this regard has been raised by the applicant returned candidate in paragraph 7 of the Application A-9.
(xxviii) Pleadings in paragraph-10 of the election petition are vague. In paragraph 6, it has been stated that election petitioner and 31 other candidates, total 32 candidates have filed nomination papers. In paragraph 8, it has been stated that nomination papers of 20 candidates were rejected. It has not been disclosed who withdrawn his nomination.
(xxix) In Paragraph 10, it has been stated that after withdrawal of nomination papers, the Returning Officer prepared list of contesting candidates containing 12 names. Therefore, the pleadings are quite vague with regard to the rejection of nomination papers and withdrawal of nomination papers. The applicant - respondent has made averments in this regard in paragraph 8 of the application A-9.
(xxx) In paragraph-14 of the election petition, the pleadings are incomplete as it does not disclose at which polling booth, polling was done through ballot paper votes.
(xxxi) Contents of paragraph-16 of the election petition are absolutely vague inasmuch as it does not contain any specific pleading as to which provision of Act, 1951 was violated by the Returning Officer by accepting nomination of the respondent winning candidate and how it materially affected the result of the election. Averments in this regard have been made in paragraph-10 of the Application A-9.
(xxxii) The nomination papers of 20 candidates whose nomination was rejected by the Returning Officer, have not been filed except one candidate, namely, Sri Shrikant as referred in Ground-B under paragraph-17 of the election petition. Thus, with respect to the remaining 19 candidates, there is no material facts have been stated in relation to their nomination paper. With regard to nomination of Sri Shrikant, there is complete absence of material facts in the election petition that the said Sri Shrikant was an independent candidate and that his nomination paper was supported by ten proposals, who were electors of the constituency. Thus, there is absence of material facts in the election petition.
(xxxiii) Averments of paragraphs-22 and 23 of the election petition are not relevant for any of the ground of the election petition inasmuch as these paragraphs only disclose the nomination paper filed by the election petitioner which was accepted by the Returning Officer. Objection in this regard has been taken in paragraphs 12 and 13 of the Application A-9.
(xxxiv) Paragraph 28 of the election petition is wholly vague, irrelevant and frivolous inasmuch this paragraph does not disclose at all that which conditions as prescribed under the Act or the Rules or under any instructions, have not been followed. Merely vague allegations have been made. Objection in this regard has been taken in paragraph 15 of the Application A-9 .
(xxxv) The averments in paragraph-29 of the election petition are wholly irrelevant inasmuch as it refers to affidavit of the respondent filed by him while contesting election for member of U.P. Legislative Assembly from Majhwa constituency District Mirzapur in the year 2017 as a candidate of Bahujan Samaj Party. The controversy involved in the election petition is with respect to the election of the applicant-respondent for member of Lok Sabha.
(xxxvi) Pleadings in para-30 of the election petition are vague and irrelevant as has also been stated in para-17 of the Application A-9.
(xxxvii) In Part-A, Clause-23 in the affidavit in Form-26 as well as in nomination paper, the applicant-respondent has clearly mentioned and declared that he is a candidate of Bhartiya Janta Party. He was set up by the Bhartiya Janta Party and proof in this regard in the form of symbols etc. as given by the National President and the State President were also filed before the Returning Officer. Therefore, mention of the words 'Bahujan Samaj Party' in Part-B, Clause 11(4) of the affidavit in Form-26, is by inadvertence and has no consequence.
(xxxviii) Averments in paragraphs-32 and 33 of the election petition are the allegation of corrupt practice which is not a ground in the present election petition. The pleading so made are vague and frivolous. Objection in this regard has been taken in paragraph-18 of the Application A-9.
(xxxix) Clause (6A) in Form-26 (Affidavit) was inserted by amendment dated 10.10.2018 (Pages-115 to 121) of the election petition which requires a candidate to give full and upto date information to his political party about all pending criminal cases against him and all cases of conviction as given in paragraphs-5 and 6 in Form-26 of affidavit. This clause (6A) is referable to Forms-C1, C2 and C3, which are not part of affidavit and which are supplied to a candidate along with nomination paper for submission to his political party. The words 'Not Applicable' as per instructions printed just below the said clause requires merely a candidate to whom this was not applicable. The candidate to whom it is applicable, need not to write any thing in Clause (6A) inasmuch as he had to make a declaration in the form C1, C2 and C3 to his political party.
(xl) Pleadings in paragraphs-35 to 41, 43 to 49, 52 to 53 are vague and do not disclose material facts. Objection in this regard has been taken in the relevant paragraphs of the Application A-9.
(xli) Clauses left blank in Part-3A of the nomination papers were not required to be filled inasmuch as in the preceding clause, the applicant-respondent has mentioned 'No'. The further clauses were required to be filled only if the answer was in 'Yes'. Therefore, the averments made in paragraph-41 of the election petition are wholly vague and do not disclose any material facts.
(xlii) For the purposes of Application A-9 under Order VI Rule 16, C.P.C., only the pleadings are to be seen and not the arguments. On bare reading of the pleadings made in the election petition, it is evident that it does not disclose material facts or cause of action.
13. Sri N.K. Pandey, learned counsel for the election-petitioner submits as under:-
(i) In none of the paragraphs of the Application A-9 and A-10, the applicant-respondent has pointed out or stated that which paragraphs of the election petition are unnecessary or vexatious and how they are unnecessary or vexatious.
(ii) The applicant respondent has not mentioned in his application that which material facts are lacking in the election petition.
(iii) The requirements of valid nomination paper are given in Section 33 of the Act, 1951, which were not complied with by the respondent winning candidate. The affidavit was filed in old formate and not in the revised prescribed formate as circulated by the Election Commission of India, vide circular dated 28.02.2019 (Annexure-6 to the election petition).
(iv) The affidavit in Form-26 filed by the applicant-respondent suffered from the following defects:-
(a) Newly added clause (6A) is missing
(b) In clause 10 of Part-A of the affidavit, description of the educational qualification has not been given and although it has been mentioned in Part-B Clause 11 of the affidavit.
(c) In part-B clause 11, the name of constituency and number has been wrongly mentioned as 397 Majhawa Uttar Pradesh instead of 78 Parliamentary Constituency, Bhadohi.
(d) In Part-B clause 11(4), the name of political party has been mentioned as Bahujan Samaj Party.
(e) In Part-B Clause 11(7)(ga) regarding last income tax return of dependants has been left blank.
(v) The Election Commission of India has issued orders, instructions and circulars in exercise of powers conferred under Article 324 of the Constitution of India. But para 5.2 of the said circular contained in the handbook for returning officer, has not been followed.
(vi) The election petitioner has filed this election petition on the grounds as provided under Section 100(1)(c) and Section 100 (1)(d)(i) and (iv), which are existing in the present election petition on the basis of material facts stated therein. Therefore, the pleadings cannot be struck off as prayed in Application A-9 and the election petition cannot be dismissed under Order VII Rule 11(a), C.P.C. as prayed in Application A-10. Both the applications deserve to be rejected.
(vii) Since the election petitioner has complied with the provisions of Sections 81 and 82 of the Act, 1951, therefore, the election petition cannot be dismissed in view of provisions of Section 86 of the Act.
(viii) The concise statement of facts relating to Grounds (A), (B) and (C) have been given in different paragraphs of the election petition, as under:
Relevant Paragraphs of election petition Ground (A) under Section 100(1)(d)(i) Ground (B) under Section 100(1)(c) Ground (C) under Section 100(1)(d)(iv) Paras-19 to 21, 26 to 43 and 46 to 52 Paras-24, 25, 44, and 45 Para-53
(ix) Paras 1 to 16 are relevant as it contain general information relating to the Parliamentary Election, 2019.
(x) While rejecting the nomination of paper, another candidate Shrikant, no opportunity was afforded to him under the proviso to Section 36(5) of the Act, 1951 so as to rectify the errors whereas opportunity was afforded to the respondent winning candidate. This shows that the returning officer adopted dual standard.
(xi) While considering primary objection as raised in Applications A-9 and A-10, only pleadings are to be seen as per provisions of Order VI Rule 2 and Order VII Rule 14, C.P.C.
(xii) In Part 3-ka of nomination paper in Form 2A, the clauses- 3, 4, 8 and 9, have been left blank. Therefore, the said nomination paper of the applicant-respondent winning candidate was incomplete and was improperly accepted by the returning officer.
(xiii) Forms C-1, C-2 and C-3, were left blank by the respondent winning candidate.
(xiv) The District Election Officer made a communication to the Chief Electoral Officer, Uttar Pradesh Lucknow dated 25.04.2019 that in Part-kha at serial No.4 of the affidavit, the applicant respondent/ winning candidate has mentioned Bahujan Samaj Party whereas in Part ka at Serial No.1 of the said affidavit. Along with the nomination paper he filed Form-A issued by Sri Amit Anil Chandra Shah, the National President of Bhartiya Janta Party and Form-'B' issued by Dr. Mahendra Nath Pandey, State President of the Bhartiya Janta Party mentioning the applicant-respondent to be the candidate of the Bhartiya Janta Party. None objected to the aforesaid news at the time of scrutiny of the nomination paper. Therefore, the nomination paper of the applicant respondent was valid. The news item with regard to mentioning of Bahujan Samaj Party by the applicant respondent in Clause 4 Part-kha of From 26, was published in the newspaper 'Amar Ujala' Varanasi Edition on 26.04.2019 in which it was mentioned that the election petitioner is the candidate set up by the Bahujan Samaj Party. The electors of the constituency read the newspaper Amar Ujala which created doubts and confusion amongst weaker, down-trodden and illiterate people of constituency, specially of Scheduled Caste community, who voted in favour of the applicant-respondent in all five assembly of 78 Parliamentary Constituency, Bhadohi, that the returned candidate, i.e. the applicant-respondent is set up by Bahujan Samaj Party. Therefore, the communication made by the District Election Officer, Bhadohi to the Chief Electoral Officer, U.P. Lucknow dated 25.04.2019 that the matter came to his notice through media, was incorrect inasmuch as the election petitioner has sent a letter dated 24.04.2019 to the District Election Officer, Bhodohi, Observer, 78 Parliamentary Constituency, Bhadohi, the Chief Electoral Officer, U.P. Lucknow and the Chief Election Commission of India, New Delhi by registered post on 25.04.2019 at 17:17 hours from Allahabad. This objection was also submitted before the Returning Officer at the time of scrutiny but no acknowledgement was taken.
(xv) In paragraph-53 of the election petition, the election petitioner has mentioned the provisions of the R.P. Act, 1951, the Conduct of Elections Rules, 1961 and the orders, guidelines and instructions issued by the Election Commission of India from time to time, to have been violated by the applicant-respondent, which resulted in improper acceptance of nomination paper by the returning officer.
(xvi) Although clause (b) of sub-Section (2) of Section 36 of the Act, 1951 provides for rejection of nomination paper on failure to comply with any of the provisions of Sections 33 or 34 of the Act, yet for deficiency in the affidavit in Form-26 under Section 33A read with Rule 4A, the nomination paper was liable to be rejected as also held by Hon'ble Supreme Court in Resurgence India vs. E.C.I. And another, AIR 2014 SC 344 (Paras-13, 14, 18, 19, 20 and 27).
(xvii) Once it has been established that the nomination paper of the applicant-respondent/ winning candidate was improperly accepted by the returning officer, there is no requirement to prove that the result of the election of the returned candidate is materially affected. Reliance is placed upon the judgment of Hon'ble Supreme Court in Sri Mairembam Prithviraj alias Prithviraj Singh vs. Sri Pukhrem Sharat Chandra Singh, AIR 2016 SC 5087 (Paras-8, 20, 19, 22 and 23).
(xviii) Pleadings has to be read as a whole and not in isolation. Reliance is placed upon the judgment of Hon'ble Supreme in Udhav Singh vs. Madhav Rao Scindia, (AIR 1976 SC 744) (para 30).
(xix) An election petition or a suit cannot be dismissed on the ground that the pleadings are weak. The submission of learned counsel for the applicant-respondent/ winning candidate merely illustrates that allegedly the pleadings are weak. Therefore, the election petition cannot be dismissed on this ground. Learned counsel for the applicant has contradicted to it and said that it is not the argument of the applicant-respondent that the pleadings are weak rather it was submitted that it does not contain material facts relatable to Grounds (A), (B) and (C).
(xx) Cause of action is a bundle of facts which are required to be proved for obtaining relief and for which the material facts are required to be stated but not the evidences. Reliance is placed on the judgment of Hon'ble Supreme court in Mayar (H.K.) Ltd. Vs. Owners & Parties Vessels M.V Fortune Express & others, 2006 (3) SCC 100 (Paras-11, 12 and 18), Sopan Sukhdeo Sable vs. Assistant Charity Commissioner & others, 2004 (3) SCC 137 (Paras-17, 18 and 19), D. Ramachandran vs. P.V. Jankiraman and others, JT 1999 (2) SC 94 (Paras-8, 9 and 10) and Sri H.D. Revanna vs. Sri G. Putta Swami Gowda and others, JT 1999 (1) SC 126 (para-27).
(xxi) Pleadings of election petition are not required to be deleted under Order VI Rule 16, C.P.C. The reliance is placed upon the judgment of Hon'ble Supreme Court in Madiraju Venkata Ramana Raju vs. Peddireddigari Ramachandra Reddy and others, AIR 2018 SC 3012 (Paras-10, 11, 14, 22, 24, 25, 29, 30 and 33).
DISCUSSION AND FINDINGS:
14. I have carefully considered the submissions of learned counsels for the parties.
15. Before I proceed to examine rival submissions, it would be appropriate to reproduce relevant provisions of the Act, 1951 and the Conduct of Elections Rules, 1961 (hereinafter referred to ''The Rules, 1961') and settled legal position on the point of material facts, striking out pleadings and rejection of election petition under Order VII Rule 1, C.P.C. The relevant provisions of the Act, 1951, the Rules 1961 and C.P.C. are reproduced below:
"(A)- The Representation of People Act, 1951 "Section 33. Presentation of nomination paper and requirements for a valid nomination. --(1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O'clock in the forenoon and three O'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer :
Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election form a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:
Provided also that in the case of a local authorities' constituency, graduates' constituency or teachers' constituency, the reference to "an elector of the constituency as proposer" shall be construed as a reference to ten per cent of the electors of the constituency or ten such electors, whichever is less, as proposers.
(1A) Notwithstanding anything contained in sub-section (1) for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted under the Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed :
Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and--
(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;
(b) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;
(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.
(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.
(3) Where the candidate is a person who, having held any office referred to in section 9 has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.
(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls : 3 Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.
(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny.
(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper:
Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency.
(7) Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,--
(a) in the case of a general election to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;
(b) in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State;
(c) in the case of a biennial election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;
(d) in the case of a biennial election to the Council of States for filling two or more seats allotted to a State, for filling more than two such seats;
(e) in the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously, from more than two such Parliamentary constituencies;
(f) in the case of bye-elections to the Legislative Assembly of a State from two or more Assembly constituencies which are held simultaneously, from more than two such Assembly constituencies;
(g) in the case of bye-elections to the Council of States for filling two or more seats allotted to a State, which are held simultaneously, for filling more than two such seats;
(h) in the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies which are held simultaneously, from more than two such Council constituencies.
Explanation.-- For the purposes of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under section 147, 149, 150 or, as the case may be, 151 on the same date.
Section 33-A. Right to information.--(1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of section 33, also furnish the information as to whether -
(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction;
(ii) he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of section 8 and sentenced to imprisonment for one year or more.
(2) The candidate of his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1).
(3) The returning officer shall, as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered.
Section 34. Deposits.--(1) A candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited,--
(a) in the case of an election from a Parliamentary constituency, [a sum of twenty-five thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of twelve thousand five hundred rupees ; and
(b) in the case of an election from an Assembly or Council constituency, a sum of ten thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of five thousand rupees :
Provided that where a candidate has been nominated by more than one nomination paper for election in the same constituency, not more than one deposit shall be required of him under this sub-section.
(2) Any sum required to be deposited under sub-section (1) shall not be deemed to have been deposited under that sub-section unless at the time of delivery of the nomination paper under sub-section (1) or, as the case may be, sub-section (1-A) of section 33 the candidate has either deposited or caused to be deposited that sum with the returning officer in cash or enclosed with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or in a Government Treasury.
Section 36. Scrutiny of nominations.--(1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:--
(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:--
Articles 84, 102, 173 and 191, Part II of this Act and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963)]; or
(b) that there has been a failure to comply with any of the provisions of section 33 or section 34 ; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(3) Nothing contained in clause (b) or clause (c) of sub-section (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:
Provided that in case an objection is raised by the returning officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.
(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.
Section 38. Publication of list of contesting candidates.-- (1) Immediately after the expiry of the period within which candidatures may be withdrawn under sub-section (1) of section 37, the returning officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates, that is to say, candidates who were included in the list of validily nominated candidates and who have not withdrawn their candidature within the said period.
(2) For the purpose of listing the names under sub-section (1), the candidates shall be classified as follows, namely:--
(i) candidates of recognised political parties;
(ii) candidates of registered political parties other than those mentioned in clause (i);
(iii) other candidates.
(3) The categories mentioned in sub-section (2) shall be arranged in the order specified therein and the names of candidates in each category shall be arranged in alphabetical order and the addresses of the contesting candidates as given in the nomination papers together with such other particulars as may be prescribed.
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.
Section 86. Trial of election petitions.--(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.
Explanation.--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80-A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation.--For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
Section 87. Procedure before the High Court.--(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1972), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.
Section 100. Grounds for declaring election to be void.--(1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non--compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied--
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and 5 without the consent, of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.
(B) The Conduct of Elections Rules, 1961 Rule 4. Nomination paper.--Every nomination paper presented under sub-section (1) of section 33 shall be completed in such one of the Forms 2-A to 2-E as may be appropriate:
Provided that a failure to complete or defect in completing, the declaration as to symbols in a nomination paper in Form 2-A or Form 2-B shall not be deemed to be a defect of a substantial character within the meaning of sub-section (4) of section 36.
Rule 4A. Form of affidavit to be filed at the time of delivering nomination paper.--The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form 26.
Rule 10. Preparation of list of contesting candidates.----(1) The list of contesting candidates referred to in sub-section (1) of section 38 shall be in Form 7-A or Form 7-B as may be appropriate and shall contain the particulars set out therein and shall be prepared in such language or languages as the Election Commission may direct.
(3) If the list is prepared in more languages than one, the names of candidates therein shall be arranged alphabetically according to the script of such one of those languages as the Election Commission may direct.
(4) At an election in a parliamentary or assembly constituency, where a poll becomes necessary, the returning officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission,--
(a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and
(b) if more contesting candidates than one have indicated their preference for the same symbol decide by lot to which of such candidates the symbol will be allotted.
(5) The allotment by the returning officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit.
(6) Every candidate or his election agent shall forthwith be informed of the symbol allotted to the candidate and be supplied with a specimen thereof by the returning officer.
(C) Code of Civil Procedure ORDER VI Rule 1. Pleading.-"Pleading" shall mean plaint or written statement.
ORDER VI Rule 2. Pleading to state material facts and not evidence.-(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
ORDER VI Rule 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.
Order VII Rule 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.
Order VIII Rule 1. Written statement.- (1) The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
PLEADINGS:
16. ''Pleading' means plaint or written statement. As per Order VI Rule 2, C.P.C. every pleading shall contain, and contain only a statement in concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be but not the evidence by which they are to be proved. Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
17. The object of Order VI Rule 2(1) is twofold. First is to afford the other side intimation regarding the particular of facts of the case so that it may be met by the other side. Second is to enable the court to determine what is really the issues between the parties. The words in the sub-rule "a statement in a concise form" do suggest that brevity should not be at the cost of setting out necessary facts but it does not mean niggling in the pleadings, vide Surendra Kashinath Rawat vs. Vinayak N. Joshi, AIR 1999 SC 162.
18. In Raj Narain vs. Smt. Indira Nehru Gandhi and another, (1972) 3 SCC 850 (para-19); Hon'ble Supreme Court held as under:-
"19. Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulaes to be observed as rituals. Beneath the words of a provision of law generally speaking, there lies a juristic principle. It is the duty ' of the court to ascertain that principle and implement it. ................."
19. In Udhav Singh vs. Madhav Rao Scindia, (AIR 1976 SC 744) (para 30), Hon'ble Supreme Court held that a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole.
20. In Bharat Singh and others vs. State of Haryana and others, (1988) 4 SCC 534 (para-13), Hon'ble Supreme Court held as under:
"13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."
21. Thus pleadings in a plaint or a written statement are statement in concise form of the material facts on which the party relies for his claim or defence. In a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands, without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily, from the tenor and terms of his pleading taken as a whole. Similar principles shall apply to pleadings in an Election Petition in view of Section 83 of the Act, 1951.
WHAT CONSTITUTE MATERIAL FACTS:-
22. The expression 'material facts' used in Rule 2(1) of Order VI C.P.C., has not been defined in the Code. Section 83(1)(a) requires that an election petition shall contain a concise statement of material facts on which the petitioner relies. In the Act, 1951 also, the expression 'material facts' has not been defined. Clause (b) of sub-section (1) of Section 83 mandates that an election petition 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. The expression 'material facts' and the expression 'full particulars' have not been defined in the Act, 1952. These two expressions have been judicially interpreted by Hon'ble Supreme Court in various judgments.
23. In Raj Narain vs. Smt. Indira Nehru Gandhi and another, (supra); Hon'ble Supreme Court held as under:
18. ........... 'Material facts' and 'particulars' may overlap but the word 'material' shows that the ground of corrupt practice and the facts necessary to formulate a complete cause, of action must be stated. ............ If the facts stated fail to satisfy the hat requirement then they do not give rise, to a triable issue. ............ In other words the facts must bring out all the ingredients of the corrupt practice alleged. If the facts stated fail to satisfy the that requirement then they do not give rise, to a triable issue. Such a defect cannot be cured by any amendment after the period of limitation for filing the election petition. But even if all the material facts are stated in the election petition. For a proper trial better particulars may still be required. If those particulars are not set out in the election petition, they may be incorporated into the election petition with the permission of the court even after the period of limitation.
19. Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulaes to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it..................................... "
24. In Udhav Singh vs. Madhav Rao Scindia, (supra) (paras-38, 39 and 40), Hon'ble Supreme Court held that all those 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". All 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 sec. 83(1) (a). "Particulars" are the details of the case set up by the party. "Material particulars" are the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). 'Particulars' serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative.
25. In Azhar Hussain vs. Rajiv Gandhi, AIR 1986 SC 1253 (1) (paras-11 and 14), Hon'ble Supreme Court held that 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. If an election petition does not furnish cause of action, then it can be summarily dismissed. Omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts is not an election petition at all.
26. In Dhartipakar Madan Lal Agarwal vs. Shri Rajiv Gandhi, AIR 1987 SC 1577 (para-14), Hon'ble Supreme Court held that the Representation People Act is a complete and self contained code within which any rights claimed in relation to an election or an election dispute must be found. Right to contest election or to question the election by means of an election petition is neither common law nor fundamental right, instead it is a statutory right regulated by the statutory provisions of the Representation of the People Act, 1951. There is no fundamental or common law right in these matters as settled vide N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 14; Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 and Joyti Basu v. Debi Ghosal, AIR 1982 SC 983. These decisions have settled the legal position that outside the statutory provisions that there is no right to dispute an election. The provisions of the Civil Procedure Code are applicable to the extent as permissible by Section 87 of the Act, 1951. Section 83 is a mandatory provision which regulate the pleadings. If the election petitioner fails to make out a ground under Section 100 of the Act, it must fail at the threshold. If the allegations in the election petition are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action.
27. In Mahendra Pal vs Ram Dass Malanger And Ors, (2000) 1 SCC 261 (para-7), Hon'ble Supreme Court explained the provisions of Section 83(1)(a) of the Act, 1951 and held as under:
"Section 83(1) (a) of the Act mandates that in order to constitute a cause of action, all material facts, that is, the basic and preliminary facts which the petitioner is bound under the law to substantiate in order to succeed, have to be pleaded in an election petition. Whether in an election petition, a particular fact is material or not and as such required to be pleaded is a question which depends upon the nature of the charge levelled and the facts and circumstances of each case. The distinction between `material facts' and `particulars' has been explained by this Court in a large number of cases and we need not refer to all those decided cases. Facts which are essential to disclose a complete cause of action are material facts and are essentially required to be pleaded. On the other hand "particulars" are details of the case set up by the party and are such pleas which are necessary to amplify, refine or explain material facts. The function of particulars is, thus, to present a full picture of the cause of action to make the opposite party understand the case that has been set up against him and which he is required to meet. The distinction between `material facts' and `material particulars' is indeed important because different consequences follow from a deficiency of such facts or particulars in the pleadings. 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. In the case of a petition suffering from deficiency of material particulars the Court has the discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. Thus, whereas it may be permissible for a party to furnish particulars even after the period of limitation for filling an election petition has expired, with permission of the Court, no material fact unless already pleaded, can be permitted to be introduced, after the expiry of the period of limitation."
28. In Hari Shankar Jain vs. Sonia Gandhi, (2001) 8 SCC 233 (para-23), Hon'ble Supreme Court held as under:
"23. ..............Merely quoting the words of the Section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan Vs. P.J. Francis & Anr., (1999) 3 SCC 737, this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead material facts is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.
24. It is the duty of the Court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings.
32. In both the election petitions there are averments made touching the contents of respondents application filed for grant of certificate of citizenship so as to point out alleged infirmities in the application and the proceedings taken thereon but without disclosing any basis for making such averments. None of the petitioners states to have inspected or seen the file nor discloses the source of knowledge for making such averments. Clearly such allegations are bald, vague and baseless and cannot be put to trial. "
29. In Mahadeorao Sukaji Shivankar vs. Ramaratan Bapu and others, (2004) 7 SCC 181 (paras-6 and 7), Hon'ble Supreme Court held as under:
"6. Now, it is no doubt true that all material facts have to be set out in an election petition. If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by clause (a) of Rule 11 of Order VII 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 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 party 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."
30. In Pothula Rama Rao vs. Pendyala Venakata Krishna Rao and others, (2007) 11 SCC 1 (paras 8 and 9), Hon'ble Supreme Court held that the plea of election petitioner that nomination was improperly rejected, is a ground for declaring an election to be void with reference to provisions of Section Section 33(1) and Section 100 of the Act, 1951 and lack of material facts to make out a cause of action and held as under:
"8. If an election petitioner wants to put forth a plea that a nomination was improperly rejected, as a ground for declaring an election to be void, it is necessary to set out the averments necessary for making out the said ground. The reason given by the Returning Officer for rejection and the facts necessary to show that the rejection was improper, should be set out. If the nomination had been rejected for non-compliance with the first proviso to sub-section (1) of section 33, that is, the candidate's nomination not being subscribed by ten voters as proposers, the election petition should contain averments to the effect that the nomination was subscribed by ten proposers who were electors of the Constituency and therefore, the nomination was valid. Alternatively, the election petition should aver that the candidate was set up by a recognized political party by issue of a valid 'B' Form and that his nomination was signed by an elector of the Constituency as a proposer, and that the rejection was improper as there was no need for ten proposers. In the absence of such averments, it cannot be said that the election petition contains the material facts to make out a cause of action.
9. In this case the election petition contained an averment that the nomination of Atchuta Ramaiah was rejected on the untenable ground that he was a dummy or substitute candidate set up by TDP. But there is no averment that he was 'set up' as a candidate by TDP in the manner contemplated in para 13 of the Symbols Order, that is, by issuing a valid B-Form in his favour. Nor did the election petition aver that his nomination paper was subscribed by ten proposers. Therefore, the petition was lacking in material facts necessary to make out a cause of action under section 100(1)(c) of the Act. The High Court, therefore, rightly struck off the said ground of challenge contained in para 8 of the election petition."
31. In Anil Vasudeo Salgaonkar vs. Naresh Shigaonkar, (2009) 9 SCC 310 (Paras-42, 50, 51, 52, 61 and 62), Hon'ble Supreme Court considered the question "Whether the election petition is liable to be dismissed because of lack of material facts" and after referring to various judgements, held that 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. 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. All those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts" which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of section 83(1)(a) of the Act. Tn election petition can be summarily dismissed if it does not furnish the cause of action if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. The election petition which lacks material facts, is liable to be dismissed.
32. In Ram Sukh vs. Dinesh Aggarwal, (2009) 10 SCC 541 (Paras-14, 23 and 24), Hon'ble Supreme Court considered the provisions of Section 81, 83, 86 and 100 of the Act, 1951 and discussed material facts and vague pleadings and held, as under:
"14. The requirement in an election petition as to the statement of material facts and the consequences of lack of such disclosure with reference to Sections 81, 83 and 86 of the Act came up for consideration before a three-Judge Bench of this Court in Samant N. Balkrishna & Anr. Vs. George Fernandez & Ors4. Speaking for the three-Judge Bench, M. Hidayatullah, C.J., inter-alia, laid down that: (i) Section 83 of the Act is mandatory and requires first a concise statement of material facts and then the fullest possible particulars; (ii) omission of even a single material fact leads to an incomplete cause of action and statement of claim becomes bad; (iii) the function of particulars is to present in full a picture of the cause of action and to make the opposite party understand the case he will have to meet; (iv) material facts and particulars are distinct matters - material facts will mention statements of fact 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.
23. There is no quarrel with the proposition that the instructions contained in the Handbook for the Returning Officers are issued by the Election Commission in exercise of its statutory functions and are, therefore, binding on the Returning Officers. They are obliged to follow them in letter and spirit. But the question for consideration is whether the afore-extracted paragraphs of the election petition disclose material facts so as to constitute a complete cause of action. In other words, the question is whether the alleged omission on the part of the Returning Officer ipso facto "materially affected" the election result. It goes without saying that the averments in the said two paragraphs are to be read in conjunction with the preceding paragraphs in the election petition. What is stated in the preceding paragraphs, as can be noticed from grounds (i) and (ii) reproduced above, is that by the time specimen signature of the polling agent were circulated 80% of the polling was over and because of the absence of the polling agent the voters got confused and voted in favour of the first respondent. In our opinion, to say the least, the pleading is vague and does not spell out as to how the election results were materially affected because of these two factors. These facts fall short of being "material facts" as contemplated in Section 83(1)(a) of the Act to constitute a complete cause of action in relation to the allegation under Section 100(1)(d)(iv) of the Act. It is not the case of the election petitioner that in the absence of his election agent there was some malpractice at the polling stations during the polling.
24. It needs little reiteration that for purpose of Section 100(1)(d)(iv), it was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first respondent, was materially affected due to the said omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition."
33. In Jitu Patnaik vs. Santan Mohakud and others, 2012 (4) SCC 194 (paras 45, 51, 52, 53, 54 and 57), Hon'ble Supreme Court held has under:
"45.A bare perusal of the above provisions would show that the first part of Order VI Rule 2, CPC is similar to clause (1)(a) of Section 83 of the 1951 Act. It is imperative for an election petition to contain a concise statement of the material facts on which the election petitioner relies. What are material facts? All basic and primary facts which must be proved at the trial by a party to establish the existence of cause of action or defence are material facts. The bare allegations are never treated as material facts. The material facts are such facts which afford a basis for the allegations made in the election petition. The meaning of 'material facts' has been explained by this Court on more than one occasion. Without multiplying the authorities, reference to one of the later decisions of this Court in Virender Nath Gautam v. Satpal Singh and others (2007) 3 SCC 617 shall suffice.
51. The averment that in Form 17-C, certified copy, it has been deliberately shown as 772 making a deliberate suppression of 319 votes hardly improves the pleading in the election petition. There is no averment that the election petitioner or his agents challenged part II of Form 17-C before authorities. At least, there are no facts pleaded concerning that.
52. There is no pleading that there was any challenge by the election petitioner or his agents in respect of the counting figure in Form 20. The only pleading is that the illegality has been deliberately committed by the counting personnels while recording the counting figure in Form 20 with respect to Booth No. 179. There is, thus, no disclosure of material facts in respect of the challenge to the correctness of Form 20 and Form 17-C.
53. The pleading of material facts with regard to suppression of 319 votes in paragraph 7(D) is also incomplete as it has not been disclosed as to who suppressed 319 votes; who was the counting agent present on behalf of the election petitioner at the time of counting; how 319 votes were suppressed and why recounting was not demanded. Moreover, there is no express pleading as to how the result of the election has been materially affected by less counting of 319 votes.
54. In Samant N. Balkrishna and Another v. George Fernandez and Others, (1969) 3 SCC 238 while dealing with the requirement in an election petition as to the statement of material facts and the consequences of lack of such disclosure, this Court, inter alia, exposited the legal position that omission of even a single material fact leads to an incomplete cause of action and statement of claim 11 1969 (3) SCC 238 becomes bad.
57. The High Court has already struck out paragraphs 7(B), 7(C), 7(E), 7(F) and 7(G). The remaining two paragraphs 7(A) and 7(D), as noted above, do not disclose any cause of action and are liable to be struck out. After striking out paragraphs 7(A) and 7(D), we find that nothing remains in the election petition for trial and, therefore, election petition is liable to be rejected in its entirety."
34. In Neelam Sonkar vs. Dr. Bali Ram, 2011 (11) ADJ 341 (Para-26), a coordinate bench of this court followed the law laid down by Hon'ble Supreme Court in Dhartipakar Madan Lal Agarwal (supra) and held, as under:
"26. It is in this context that in Dhartipakar Madan Lal Agarwal (Supra) the Court said that if an election petition does not disclose cause of action, i.e., the pleadings in various paragraphs are so vague and general and lack material facts and particulars so as to disclose the cause of action under 1951 Act, such paragraphs of the petition are liable to be struck off under Order 6 Rule 16 C.P.C. at any stage of the proceedings. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court is satisfied that the election petition does not make out any cause of action and the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement but can proceed. If after striking out the pleadings it finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII Rule 11 CPC."
CAUSE OF ACTION:-
35. Cause of action implies a right to sue. Cause of action is not defined in any statute. It has been judicially interpreted by Hon'ble Supreme Court in several decisions laying down the law that cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove, constitute cause of action. It means that every fact which would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the court. Negatively put, it would mean that every thing which if not proved, gives the defendant a right to judgment, would be part of cause of action. In every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily. Those facts, which have nothing to do with the prayer made therein, cannot be said to give rise to a cause of action which would confer jurisdiction on the court.
36. Thus, settled legal position with regard to Section 83(1)(a) of the Act, 1951, Order VI Rules 2 and 16 and Order VIII Rule 11 of the Civil Procedure Code, may be summarised, as under:-
PLEADINGS:-
(i) ''Pleading' means plaint or written statement. As per Order VI Rule 2, C.P.C. every pleading shall contain, and contain only a statement in concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be but not the evidence by which they are to be proved. Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
(ii) All those 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". All facts which are essential to clothe the petitioner with a complete cause of action are "material facts" which must be pleaded. 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. If an election petition does not furnish cause of action, then it can be summarily dismissed. Omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts is not an election petition at all.
(iii) "Particulars" are the details of the case set up by the party. "Material particulars" are the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). 'Particulars' serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative.
Consequences of lack of pleadings in Election Petition:
(iv) Section 83 is a mandatory provision which regulate the pleadings. If the election petitioner fails to make out a ground under Section 100 of the Act, it must fail at the threshold. If the allegations in the election petition are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action.
(v) Section 83(1) (a) of the Act mandates that in order to constitute a cause of action, all material facts, that is, the basic and preliminary facts which the petitioner is bound under the law to substantiate in order to succeed, have to be pleaded in an election petition.
(vi) 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 VI, Rule 16, Code of Civil Procedure.
(vii) Failure to plead material facts is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.
(viii) It is the duty of the Court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action.
(ix) 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 VII of the Code.
(x) If an election petitioner wants to put forth a plea that a nomination was improperly rejected, as a ground for declaring an election to be void, it is necessary to set out the averments necessary for making out the said ground.
(xi) The bare allegations are never treated as material facts. The material facts are such facts which afford a basis for the allegations made in the election petition.
(xii) If the pleadings in various paragraphs are so vague and general and lack material facts and particulars so as to disclose the cause of action under 1951 Act, such paragraphs of the petition are liable to be struck off under Order VI Rule 16 C.P.C. at any stage of the proceedings. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court is satisfied that the election petition does not make out any cause of action and the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement but can proceed. If after striking out the pleadings it finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII Rule 11 CPC.
WHEN PLEADINGS CAN BE STRUCK OUT UNDER ORDER VI RULE 16:-
37. Bare perusal of Order VI Rule 16, C.P.C., shows that court may at any stage of the proceedings strike out any pleading:- (a) which may be (i) unnecessary, (ii) scandalous, (iii) frivolous (iv) vexatious, or, (b) which may tend to prejudice, embarrass or delay the fair trail of the suit, or (c) which is otherwise an abuse of the process of the Court.
38. As per Ramanatha Aiyar's Law Lexicon, The Encyclopaedic Law Dictionary (2nd Edition Reprint 2007) published by Wadhwa and Company Nagpur, the word 'unnecessary' means:
"Unnecessary: Not required under certain circumstances. Not necessary."
39. Henry Campbell Black's Law Dictionary, Fifth Edition by St. Paul Minn. West Publishing Co. 1979 it defines the word 'unnecessary', as under:
"Not required by the circumstances of the case."
40. As per P. Ramanatha Aiyar's Law Lexicon, The Encyclopaedic Law Dictionary (2nd Edition Reprint 2007) published by Wadhwa and Company Nagpur, the word 'scandalous' means:
"Scandalous. A pleading is said to be "Scandalous', if it alleges anything unbecoming the dignity of the Court to hear, or is contrary to good manners, or which charges a crime immaterial to the issue. But the statement of a scandalous fact that is material to the issue is not a scandalous pleading. (Millington v. Loring, 50 LJ QB 214 ; 6 QBD 190).
Of the nature of a scandal, containing defamatory information [S. 151, Indian Evidence Act].
Facts not material to the decision are impertinent, and, if reproachful, are scandalous.
The term "scandalous", as applied to the pleading of scandalous matter, cannot be applied to any matter which is not also impertinent and unnecessary."
41. In Concise Oxford English Dictionary 11th Edition (Revised) 2008 the words 'frivolous' and 'vexatious' have been defined as under:
"frivolous: adj. not having any serious purpose or value. (of a person) carefree and superficial."
"Vexatious. Adj. 1. Causing annoyance or worry. 2. Law (of an action) brought without sufficient grounds for winning, purely to cause annoyance to the defendant. "
42. In the Law Lexicon (The Encyclopaedia Law Dictionary) by P. Ramanatha Aiyar IInd Edition 1997 the words 'frivolous' and 'vexatious' have been defined as under:
"Frivolous. Of little weight or importance. A pleading is "frivolous" when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent. A claim or defense is frivolous if a proponent can present no rational argument based upon the evidence or law in support of that claim or defense. Liebowitz v. Aimexco incident. Colo, App. 701 p. 2d 140, 142. Frivolous pleadings may be amended to proper form, or ordered stricken, under federal and state Rules of Civil Procedure.
Of little or no weight or importance; not with serious attentions; manifestly futile"
"Vexatious. Includes false. 1904 AWN 116=1 ALJ 450=25 All 512) An accusation cannot be said to be vexatious unless the main intention of the complainant was to cause annoyance to the person accused, and not merely to further the ends of justice. (11 SLR 55 Appr. ; 94IC, 271=27 Cr LJ 607=AIR 1926 lah. 365.) ."
43. In Black's Law Dictionary, Fifth Edition 1979, the words 'frivolous' and 'vexatious' have been defined as under:
"Frivolous. Of little weight or importance. A pleading is "frivolous" when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent. Frivolous pleading may be amended to proper form, or ordered stricken under federal and state Rules of Civil Procedure."
"Vexatious. Without reasonable or probable cause or excuse. Gardener v. Queen Ins. Co. of America 232 Mo. App. 1101, 115 S.W.2d 4, 7."
44. In The New Lexicon Webster's Dictionary (Deluxe Encyclopedic Edition), the words 'frivolous' and 'vexatious' have been defined as under:
"Frivolous. Adj. gay and lighthearted in pursuit of trivial or futile pleasures; lacking in proper seriousness; empty, without importance."
"Vexatious. Adj. Causing vexation; (law, of actions) instituted without real grounds and meant to cause trouble or annoyance."
45. Thus, if the pleadings are unnecessary, scandalous, frivolous or vexatious, it may be struck out by the court under Order VI Rule 16. If the pleadings are such as may tend to prejudice the fair trial of the suit, embarrass the trial of the suit or delay the fair trial of the suit or if it constitute an abuse of process of court, then also the pleadings may be struck out by the court.
46. In Sathi Vijay Kumar Vs. Tota Singh and others (2006) 13 SCC 353, (Para-13) Hon'ble Supreme Court held, as under:
"Since the general principles as to pleadings in civil suits apply to election petitions as well, the pleadings which are required to be struck off under Rule 16 of order 6 in a suit can also be ordered to be struck off in an election petition. In appropriate causes, therefore, an election Tribunal (High Court) may invoke the power under Order 6 Rule 16 of the Code."
47. In Abdul Razak (D) Through L.Rs and others Vs. Mangesh Rajaram Wagle and others JT 2010(1)SC 508 after referring to Boven, L.J.'s observation in Knowles Vs. Roberts (supra) the Court said that power to strike down pleadings is extraordinary in nature. It must be exercised sparingly and with extreme care, caution and circumspection. The above observations were made following earlier decisions in Roop Lal Sathi Vs. Nachhattar Singh Gill 1982(3)SCC 487; K.K. Modi Vs. K.N. Modi JT 1998(1)SC 407=(1998) 3 SCC 573 and Union Bank of India Vs. Naresh Kumar (1996) 6 SCC 660.
DEFECT OF SUBSTANTIAL CHARACTER WARRANTING REJECTION OF NOMINATION PAPER UNDER SECTION 36 OF 1951
48. Defect of substantial character are grounds for rejection of nomination paper which have been provided in sub-section (2) of Section 36 of the Act, 1951, namely, (a) that on the date fixed for scrutiny of nominations, the candidate either is not qualified or is disqualified for being chosen to fill the seat any of the applicable provisions of Articles 84, 102, 173 and 191 of the Constitution of India or Part-II of the Act and Sections 4 and 14 of the Government of Union Territories Act, 1963 or; (b) there has been failure to comply with any of the provisions of Section 33 or 34; or (c) the signature of the candidate or proposer on the nomination paper is not genuine. Section 33 provides for presentation of nomination paper and requirements for a valid nomination. It contains complete requirements of a valid nomination which has to be complied with. In case of a candidate for election of a parliamentary constituency nomination paper is to be filed in Form 2A as per Rule 4 of the Rules 1961. Affidavit in Form-26 is required to be filed under Rule 4A. Instances of defects which are not of substantial character, are provided in the proviso to sub-Section (4) of Section 33; the proviso to Rule 4 of the Rules, 1961, or any minor mistake. Therefore, generally all such defects which do not constitute grounds of rejection of nomination paper under sub-Section (2) of Section 36 of the Act, 1951, may be said to be the defects not of substantial character.
49. In the present set of facts, the election petitioner has not mentioned in any of the paragraphs of the election petition that which provision of Section 33 or Section 34 of the Act has not been complied with by the respondents or that mention of name of another political party in clause (4) under Part-B of the affidavit in Form-26 falls under any of the grounds of rejection provided in sub-Section (2) of Section 36 of the Act, with reference to specific provision of Section 33 of the Act.
50. Instances of defect of substantial character requiring rejection of nomination paper and defects of non-substantial character which do not constitute grounds for rejection of nomination paper, as held by Hon'ble Supreme Court; are summarised as under:
SUBSTANTIAL DEFECT NON-SUBSTANTIAL DEFECT
(i) Name of constituency not stated in a nomination paper, therefore, such a nomination form cannot be treated as having been completed in the prescribed form as required by Section 33(1). Therefore, defect was essentially of a substantial character which would result in rejection of nomination paper, vide Prahalad Das Kandelwal vs. Narendra Kumar, (1973) 3 SCC 104 (Para-12)
(i) Defects covered by the proviso to Section 33(4) of the Act, 1951 could easily be resolved if people authorised under Section 36(1) is present at the the time of scrutiny. If, however, the co-relation has not been made and the returning officer has no assistance to fix up the identification, it cannot be said to be a defect not of substantial character. Moreover, it could not be statutory obligation of the Returning Officer to scrutinize the electoral roll for finding out the identity of the proposer when the serial number turns out to be wrong. But if interested and competent persons point out to the Returning Officer that it is a mistake, it would certainly be his obligation to look into the matter to find out whether the mistake, is inconsequential and has, therefore, either to be permitted to be corrected or to be overlooked, vide Lila Krishna vs. Mani Ram Godara, 1985 (Sup.) SCC 179 (Paras-13 to 16)
(ii) In case of non-compliance with the requirement of Section 33(5) of the Act, 1951, nomination paper is liable to be rejected, vide Viradmal Singhwi vs. Anand Purohit, 1988 (Sup.) SCC 604
(ii) It is well known that in Indian society the name of a person consists of the first name, the second name and the surname or the family name. While first name and surname or family name of the returned candidate mentioned in the nomination paper is tallied with the voters list, the second name mentioned there in the nomination paper but is not found to be mentioned in the voters' list and the candidate already moved application for rectification of the defect in the voter list and no objection was raised by anybody at the time of scrutiny of nomination paper and the Returning Officer on suo motu enquiry, satisfied himself about the identity of the candidate, then such a defect was not of substantial character vide Hari Kishan Lal vs. Babulal Marandi, (2003) 8 SCC 613
(iii) Candidate's serial number in electoral roll not mentioned. Opportunity given to candidate or his representative and yet defect was not removed, then rejection of nomination is justified, vide Mathura Prasad vs. Azim Khan, (1990) 3 SCC 659 and Bhogendra Jha vs. Manoj Kumar Jha, (1997) 2 SCC 236
(iii) Absence of seal of party in nomination paper is inconsequential. Defect is not of substantial character and shall fall within Section 36(4) of the Act, 1951, vide Ramphal Kundu vs. Kamal Sharma, (2004) 2 SCC 759
(iv) Candidate failing to furnish the requisite information on the proforma and also failing to present personally or through representative. On such omission, rejection of nomination is valid, vide Saligram Shrivastava vs. Naresh Singh Patel, (2003) 2 SCC 176
(iv) Failure to complete a defect or not completing, the declaration as to symbols in a nomination paper in Form-2A or Form-2B by a candidate set by a recognised political party or a candidate set up by a registered unrecognised political party or a candidate seeks to contest the election as an independent candidate is not a defect of substantial nature. To illustrate, few examples: description of symbols, omission to fill blank spaces and in proforma in respect of choice of symbols or selecting a symbol which is reserved etc. fall in category of defects not of substantial character, vide Krishna Mohini vs. Mohindra Nath Sofat, (2000) 1 SCC 145 and Ramesh Rout vs. Rabindra Nath Rout, (2012) 1 SCC 762 (Paras-36 and 37)
(v) Candidate filing affidavit with blank particulars is a ground on which nomination paper can be rejected by returning officer. Candidate failing to fill blanks even after reminder by returning officer, shall invite consequence of rejection of his nomination papers. Particulars in affidavit should not be left blank. Candidate must take minimum effort to explicit remark as 'NIL' OR 'NOT APPLICABLE' OR 'NOT KNOWN' in columns vide Resurgence vs. Election Commission of India (2014) 14 SCC 189
(v) Non-disclosure of government dues by the candidate in his affidavit filed along with his nomination form was not a material lapse when there was a pending dispute about those dues at the time of filing nomination paper. But non-disclosure of assets of spouse is a material and substantial lapse, vide Kisan Shankar Kathore vs. Arun Dattatray, (2014) 14 SCC 162
(vi) False declaration of educational qualification by a candidate in his nomination paper is a defect of substantial character vide Pukhrem Sharatchandra Singh vs Mairembam Prithviraj, (2017) 2 SCC 487
51. Having summarised/ settled the legal position on the legal issues, now I proceed to examine whether the election petition contains material facts and discloses cause of action for the grounds of challenge and whether various paragraphs of the election petition as mentioned in the Application A-9 can be struck out under Order VI Rule 16, C.P.C. and the Application A-10 under Order VII Rule 11(a), C.P.C. deserves to be allowed or both the applications deserve to be rejected.
Analysis of facts of Application A-9 under Order VI Rule 16, C.P.C. (Striking out pleadings)
52. In paragraph-8 of the election petition, the election petitioner has alleged that "the returning officer illegally and arbitrarily rejected the nomination papers of 20 candidates in a pre-planed mechanism which vitiates all election of 78-Bhadohi Parliamentary Constituency." In this paragraph, the election petitioner has neither disclosed the names of the alleged 20 candidates nor disclosed as to whether the said alleged candidates were set up by any political party or were independent candidates nor disclosed ground of alleged rejection of their nomination papers nor disclosed the alleged "Pre-Planned Mechanism". Thus, this paragraph lacks disclosure of primary facts so as to establish the existence of a cause of action. Failure to plead even a single material fact amounts to disobedience of the mandate by Section 83(1)(a) of the Act, 1951. Therefore, this paragraph is struck out.
53. In paragraph-9 of the election petition, the election petitioner has stated that "The returning officer also improperly accepted the nomination paper of Ramesh Chand, which materially affected the result of the election of 78-Bhadohi Parliamentary Constituency." The averments so made are the reproduction of Section 100(1)(d)(i) of the Act, 1951 with the only difference that in place of the word "Returned Candidate", the name of the respondent and name of constituency have been mentioned. That apart, the election petitioner has himself stated in paragraph-18 of the election petition that "the concise statement of the material facts in respect of the grounds- (A), (B) and (C) from are as under. (from paragraph-19 onwards.)" No facts have been disclosed for alleged improper acceptance of the nomination paper of the respondent winning candidate. These averments in paragraph-9, do not constitute pleadings within the meaning of Order VI Rules (1)/(2), C.P.C. read with Section 83(1) of the Act, 1951.
54. In paragraph-10 of the election petition, the election petitioner has alleged that "after withdrawal of nomination papers, the returning officer issued the list of contesting candidates containing 12 names." In paragraph-6 of the election petition, the petitioner has shown that 32 candidates including him have filed nomination papers. In paragraph-8, he stated that nomination papers of 20 candidates were rejected. Thus, after rejection of nomination papers as alleged, 12 candidates remained but the election petitioner has alleged that list of 12 contesting candidates was issued by the returning officer after withdrawal of nomination papers. There is no disclosure of facts that who withdrew nomination papers. Therefore, the pleadings made in paragraph-10 are frivolous and vexatious and deserve to be struck out.
55. Paragraph-14 of the election petition is irrelevant. It has no relevance to the grounds of challenge stated in para-17. Therefore, para-14 deserves to be struck out.
56. In paragraph-16, the election petitioner has alleged that the returning officer committed error in accepting the nomination paper of the returned candidate Sri Ramesh Chand by overlooking the provisions of the Act, 1951 and the Rules and acted contrary to the instructions, guidelines and adopted dual standard while scrutinizing the nomination papers and improperly rejected the nomination of Shri Shrikant and 19 other candidates but improperly accepted the nomination paper of the respondent, which materially affected the result of election. This paragraph completely lacks material facts as to what error was committed by the returning officer, which provisions, guidelines or instructions were overlooked by him and what dual standard was adopted by the retuning officer in accepting the nomination paper of the respondent and rejecting the nomination paper of others, which materially affected the result of election. Thus, pleadings of paragraph-16 are frivolous and vexatious and deserve to be struck out.
57. In paragraph-17 of the election petition, the election petitioner has mentioned Grounds (A), (B) and (C), which have been reproduced in paragraph (8) above. In Ground (B), the petitioner has sated that the election of the returned candidate is illegal and void due to improper rejection of nomination paper of Shri Shrikant. The election petitioner has completely concealed the fact that the aforesaid Shri Shirkant was an independent candidate as evident from a copy of his nomination paper filed as Annexure-4 to the election petition. The copy of the order of rejection of nomination paper of the independent candidate Shri Shrikant has also been filed along with Annexure-4 to the election petition which shows that the returning officer confronted him with the material defects found in his nomination paper and in Form-26 but he had not turned up to remove the defects. The Ground (C) does not disclose which provision of the Constitution of India or the Act, 1951 or Rules and Orders or Instructions/ Guidelines, have not been complied with. Thus, these sub-paras being frivolous and vexatious, deserves to be struck out.
58. In paragraph-22, the election petitioner has sated that he filed his nomination paper which was duly proposed by recorded elector of the parliamentary constituency. The election petitioner has not disclosed the names of the proposers. Thus, the pleadings in paragraph-22 are incomplete.
59. In paragraphs-24 and 25 of the election petition, the election petitioner has stated that the candidate Shri Shrikant being duly qualified and eligible to contest the election for the post of Member of Parliament from the parliamentary constituency in question, filed his nomination paper which was improperly rejected by the returning officer vide order dated 24.04.2019 on the ground of defect in affidavit in Form-26 though the said defects are not substantial in nature and can be cured by providing opportunity to the candidate. The election petitioner has very conveniently concealed the fact that the aforesaid candidate Shri Shrikant was an independent candidate as evident from Annexure-4 to the election petition. The election petitioner has made false and misleading averments that the defects found by the returning officer in nomination paper of the candidate Shri Shrikant, could be cured by providing opportunity to the candidate, whereas in the order of the returning officer dated 24.04.2019 filed as Annexure-4 to the election petition, it is recorded that the candidate Shri Shrikant was confronted with the defects in the nomination paper on 18.04.2019 and was requested to remove the defects upto 3 P.M. on 23.04.2019 but despite intimation he has not removed the defects in the nomination paper and consequently the nomination paper is rejected. Thus, the pleadings in paragraph-25 of the election petition are frivolous and vexatious and also not relevant for the purpose of acceptance of nomination paper of the returned candidate. The averments in these two paragraphs are relatable to Ground (B) of Para-17. Therefore, paragraphs-24 and 25 deserve to be struck out.
60. Paragraphs-28, 29, 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41 and 43, disclose material facts relatable to grounds mentioned in Para-17(A) and, therefore, these paragraphs cannot be struck out. The question whether the nomination paper of the respondent was improperly accepted by the returning officer or whether the nomination paper suffered from any substantial or non-substantial defect, are the questions, which can be properly answered after adjudication of ground of challenge being Ground (A) as mentioned in para-17 of the election petition. The above mentioned referred paragraphs of the election petition, disclose a cause of action with reference to Ground (A) mentioned in para-17 of the election petition. Therefore, these paragraphs cannot be struck out under Order VI Rule 16, C.P.C. Consequently, to this extent, the Application A-9 deserves to be rejected.
61. Paragraphs-44, 45, 52 and 53 of the election petition are more or less repetition of earlier paragraphs 8, 16, 24 and 25 of the election petition, which have been found by me to be liable to be struck out. It is further relevant to mention that the orders of rejection of 19 candidates collectively filed as Annexure-16 and rejection order of nomination of the independent candidate Shri Shrikant filed as Annexure-4 to the election petition, contain different grounds of rejection. Despite required by the returning officer such 20 candidates could not remove defects as pointed out by the returning officer and consequently, their nomination papers were rejected. Election petitioner has not mentioned at all in the aforesaid paragraphs that which provisions of the Act, 1951 or the Rules 1961 or guidelines or instructions of the Election Commission of India, have not been acted upon by the returning officer which materially affected the result of the election. In view of this, averments made in paragraph-44, 45, 52 and 53 of the election petition deserves to be struck out.
62. Paragraphs-46, 47, 48 and 49 are unnecessary, frivolous and vexatious and do not constitute material facts with regard to the grounds stated by the petitioner in paragraph-17 of the election petition. Whether the election petitioner is popular or not or some persons other than the respondent winning candidate has filed nomination papers from some other parliamentary constituency are wholly irrelevant for the purposes of grounds of challenge of the election of the respondent in the present election petition.
63. For all the reasons afore-stated, paragraphs-8, 9, 10, 14, 16, 24, 25, 44, 45, 46, 47, 48, 49, 52, 53 and para-17(B) and Para 17(C) of the election petition, are struck out under Order VI Rule 16, C.P.C. The Application A-9 filed by the respondent returned candidate under Order VI Rule 16, C.P.C., is partly allowed.
64. The rest of the paragraphs of the election petition disclose material facts and cause of action relatable to Ground 17(A), which needs to be adjudicated. Therefore, the Application A-10 under Order VII Rule 11, C.P.C. filed by the respondent returned candidate, is rejected.
65. Service of election petition upon the respondent was made sufficient by this court by order dated 23.09.2019 on which date the respondent winning candidate has filed Application A-9 under Order VI Rule 16, C.P.C., Application A-10 under Order VII Rule 11, C.P.C. and Application A-11 under Order VIII Rule 1, C.P.C., all dated 23.09.2019. After exchange of affidavits, the parties argued on the Application A-9 and A-10, which have been decided by this order. Therefore, considering the entire facts and circumstances of the case, the Application A-11 under Order VIII Rule 1, C.P.C. filed by the respondent winning candidate praying for grant of time for filing written statement, is allowed. The respondent winning candidate may file written statement within 30 days.
66. In result, the Application A-9 is partly allowed, the Application A-10 is rejected and the Application A-11 is allowed, as discussed above.
67. List on 05.03.2020 at 2 P.M. for framing of issues.
Order Date :- 28.01.2020 NLY