Karnataka High Court
Sri D Krishna Kumar vs Dr. H D Ranganath on 21 June, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
ELECTION PETITION NO.11 OF 2023
BETWEEN:
SRI. D. KRISHNA KUMAR
S/O SRI. B. DASEGOWDA
AGED ABOUT 63 YEARS,
R/AT KANNAGUNI,
NADEMAVINAPURA POST,
YEDIYUR HOBLI, KUNIGAL TALUK,
TUMAKURU DISTRICT - 572 142.
... PETITIONER
(BY SMT. NALINA MAYEGOWDA, SENIOR ADVOCATE FOR
SMT. ANUSHA B. REDDY, ADVOCATE)
AND:
1. DR. H.D. RANGANATH
S/O SRI. DODDAIAH H.R.
AGED ABOUT 52 YEARS,
R/AT A. HOSAHALLI, YALLIYUR POST,
HUTHRIDURGA HOBLI, KUNIGAL TALUK,
TUMAKURU DISTRICT - 572 123.
2. SRI. JAYARAMAIAH HITHALAPURA
S/O LATE ALUREGOWDA
AGED ABOUT 56 YEARS,
R/AT HITHALAPURA, UJJANI POST,
HULIYURDURGA HOBLI,
KUNIGAL TALUK,
TUMAKURU DISTRICT- 572 123.
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3. SRI. DR. RAVI NAGARAJAIAH
S/O D. NAGARAJAIAH
AGED ABOUT 51 YEARS,
R/AT KANNAGUNI,
NADEMAVINAPURA POST,
YEDIYUR HOBLI, KUNIGAL TALUK,
TUMAKURU DISTRICT - 572 130.
4. SRI. RAGHU JANAGERE
S/O SRINIVASA J.R.
AGED ABOUT 37 YEARS,
R/AT JANAGERE, KOTHAGERE HOBLI,
KUNIGAL TALUK,
TUMAKURU DISTRICT - 572 130.
5. SRI. RAMESHA S.B.
S/O LATE BUSAIAH
AGED ABOUT 46 YEARS,
R/AT SHETTIBEDU, GUNNAGERE POST,
YEDIYUR HOBLI,
KUNIGAL TALUK,
TUMAKURU DISTIRCT - 572 130.
6. SRI. B.T. TIRUMALE GOWDA
S/O LATE THOPEGOWDA
AGED ABOUT 69 YEARS,
R/AT BIDNAGERE, WARD NO.1,
KUNIGAL TOWN,
TUMAKURU DISTRICT- 572 130.
7. SRI. B.B. RAMASWAMY GOWDA
S/O B. BETTASWAMY GOWDA
AGED ABOUT 67 YEARS,
R/AT BASAVANAMATHIKERE,
GOWDAGERE POST, YEDIYUR HOBLI,
KUNIGAL TALUK,
TUMAKURU DISTRICT - 572 130.
... RESPONDENTS
(BY SRI. SHIVACHARAN R., ADVOCATE FOR R1;
R2 AND R4 TO R7 ARE PLACED EX-PARTE;
NOTICE TO R3 IS HELD SUFFICIENT)
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THIS ELECTION PETITION IS FILED UNDER SECTIONS 80,
81, 100, 101 READ WITH SECTION 123 OF THE REPRESENTATION
OF THE PEOPLE ACT, 1951, PRAYING TO SET-ASIDE THE
ELECTION OF THE RESPONDENT NO.1 TO THE 16TH KARNATAKA
LEGISLATIVE ASSEMBLY FROM 131-KUNIGAL ASSEMBLY
CONSTITUENCY; DECLARE THE PETITIONER AS DULY ELECTED
TO FILL THE SEAT OF KARNATAKA LEGISLATIVE ASSEMBLY FROM
131-KUNIGAL ASSEMBLY CONSTITUENCY; AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT
MADE THE FOLLOWING:
ORDER
In this Election Petition, petitioner is assailing the election of respondent No.1 to the 16th Karnataka Legislative Assembly of 131-Kunigal Assembly Constituency.
2. On service of summons, respondent No.1 entered appearance and filed detailed written statement, denying the averments made in the election petition. The respondent No.1 has filed application IA.1 of 2024 under Order VII Rule 11 of the Code of Civil Procedure, seeking rejection of election petition as devoid of cause of action as well as not complying with the mandatory requirements in terms of Section 81 read with Section 100 or otherwise not maintainable to further prosecute 4 the petition in terms of Section 100 of the Representation of People Act, 1951 (for short, hereinafter referred to as 'ROP Act, 1951').
3. The petitioner filed statement of objections to IA.1 of 2024 filed by the respondent No.1, seeking dismissal of the application on merits. The application was heard on merits and disposed of by this order.
4. In order to decide the application IA.1 of 2024 filed by the respondent No.1 for rejection of election petition, it is relevant to extract the prayer made in the Election Petition, which reads as under:
"a) Set aside the election of respondent No.1 to the 16th Karnataka Legislative Assembly from 131- Kunigal Assembly Constituency;
b) Declare the petitioner as duly elected to fill the seat of Karnataka Legislative Assembly from 131-
Kunigal Assembly Constituency; and
c) Pass such other order/s as this Hon'ble Court deems fit in the facts and circumstances of this case, in the interest of justice."
FACTS OF THE CASE:-
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5. The petitioner has presented the election petition on 26th June, 2023 stating that the election of the respondent No.1, who has been declared as elected from the 131-Kunigal Assembly Constituency under the provisions of Section 66 of the ROP Act, 1951 read with Rule 64 of the Conduct of Elections Rules, 1961 (for short, hereinafter referred to as 'Election Rules'), is bad in law. It is further averred in the petition that the petitioner has contested as a candidate of Bharatiya Janata Party (for short, hereinafter referred to as 'BJP') from 131- Kunigal Assembly Constituency during the year-2008 and has lost the election by a small margin. The petitioner also contested during the year-2013 and 2018 Assembly Elections held for Kunigal Assembly Constituency, but was defeated in both the elections.
6. On perusal of the petition, the same would indicate that the Election Commission of India has issued press note dated 29th March, 2023 (Annexure-A), notifying the General Elections to 16th Legislative Assembly in the State of Karnataka. The Calendar of Events in respect of the General Elections to 16th Legislative Assembly is set out as under:
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Poll Events Schedule Date of issue of Gazette Notification 13.04.2023 (Thu) Last Date of Nominations 20.04.2023 (Thu) Date for scrutiny of Nominations 21.04.2023 (Fri) Last Date for withdrawal of candidature 24.04.2023 (Mon) Date of Poll 10.05.2023 (Wed) Date of Counting 13.05.2023 (Sat) Date before which election shall be 15.05.2023 (Mon) completed
7. It is further averred in the petition that the petitioner has contested the election to 131-Kunigal Assembly Constituency pursuant to issuance of Press Note of Election Commission of India dated 29th March, 2023 (Annexure-A), held on 10th May, 2023, as a candidate of 'BJP' and the respondent No.1, contested the same election as a candidate of Indian National Congress (for short, hereinafter referred to as 'INC'). Respondents 2 to 7 have also contested the said Election along with the petitioner and respondent No.1. Name of the candidates as set out in Form No.7A under Rule 10(1) of Election Rules is produced at Annexure-B. It is further stated in the petition that the respondent No.1 secured 74,724 votes and petitioner secured 48,151 votes in the counting of votes held on 7 13th May, 2023 and the Returning Officer issued Form-21C of the Election Rules, declaring that the respondent No.1 has been duly elected from 131-Kunigal Assembly Constituency of 16th Karnataka Legislative Assembly election as per Annexures 'C' and 'D'.
8. The petitioner further stated in the petition that the respondent No.1 had filed Form No.26-Affidavit along with his nomination papers on 20th April, 2023 as per Annexure-E. The respondent No.1 had appointed one Sri. Chandregowda as his election agent in terms of Rule 12(1) of Election Rules in prescribed Form No.8 (Annexure-F). The respondent No.1 had also appointed 17 counting agents as per Annexure-G series. It is stated in the petition that the petitioner through his election agent, one Sri. Dhanush Gangatkar, vide letter dated 13th June, 2023, addressed to the District Election Officer, requested for issuance of certified copy of the polling agents. In response to the same, the Election Officer has issued endorsement dated 17th June, 2023 (Annexure-H). It is further stated that the name of the respondent No.1 was declared by INC for contesting in 131-Kunigal Assembly Constituency as per Annexure-J. It is the grievance of the petitioner that the respondent No.1 got elected 8 to 131-Kunigal Assembly Constituency on account of corrupt practices under Section 123(1) and (2) of the ROP Act, 1951 and has falsely deposed in Form No.26-Affidavit, which is contrary to Section 127-A of the ROP Act, 1951. The corrupt practices as alleged in the Election Petition against the respondent No.1 are set out at paragraph 14 of the petition, which reads as under:
(1) Distribution of dinner sets and kitchen utensils as an inducement to electors to vote for respondent No.1.
(2) Distribution of prepaid cards as an inducement to electors to vote for respondent No.1.
(3) False declaration about Assets and Liabilities at Serial No.7 and 8 of Form No.26-Affidavit.
9. The averments made in the Election Petition in respect of distribution of dinner sets and kitchen utensils to the electors to vote for respondent No.1 are the practices which amounts to bribery and undue influence as defined under Section 123 (1) and (2) of the ROP Act, 1951. It is alleged by the petitioner that the distribution of dinner sets and kitchen utensils was carried out by the agents of the respondent No.1 with the consent and knowledge of the respondent No.1 and the said distribution was made through the agents to secure the 9 promises from the electors to vote for the respondent No.1 in consideration of the dinner sets and kitchen utensils distributed during the period of March-2023 until the date of polling dated 10th May, 2023. It is further alleged in the Election Petition that the wife of the respondent No.1 is the sister of wife of Sri. D.K. Shivakumar, President of Karnataka Pradesh Congress Committee(KPCC). It is also stated by the petitioner that the respondent No.1, being a sitting Member of Legislative Assembly and close relative of Sri. D.K. Shivakumar, apprehending that the he would be defeated in the said election, had hatched a conspiracy along with his agents to lure the voters to vote for him much before the issuance of Election Notification by the Election Commission of India.
10. It is further stated in the Election Petition that, on 14th March, 2023, Sri. Govindaraju, Deputy Tahsildar, Huthridurga Hobli, Kunigal Taluk, upon receipt of the information from his senior officers, visited a place on Bukkasagara Road wherein, the container vehicle bearing registration No.HR-47-C- 5135 was found loaded with 1068 boxes of dinner sets, and upon verification, the driver of the container Sri. Hasan Khan S/o of Sri. Sumra, was transporting 1068 boxes of dinner sets in 10 178 boxes to handover the same to one Sri. Nanjesh, resident of Alkere, Hosahalli. The value of the dinner sets would be approximately more than Rupees 8,00,000/- (Rupees Eight Lakh only) and the said articles were being transported for the purpose of luring the voters and as such, the said Deputy Tahsildar took the vehicle to jurisdictional Police Station and lodged complaint on the same day. Pursuant to the same, the jurisdictional Police i.e., Kunigal Police Station registered N.C.R. bearing G.S.E.No.111/2023 and permission was sought from the jurisdictional Court to investigate the complaint by registering First Information Report under Section 171E of the Indian Penal Code. Pursuant to the same, the jurisdictional Court, permitted the Kunigal Police Station to register F.I.R. and to investigate the matter for the offence punishable under Section 171E of Indian Penal Code and as such, Crime No.72/2023 was registered on 14th March, 2023 against the driver of the container Sri. Hasan Khan and the election agent Sri. Nanjesh. The Investigating Officer seized the said container vehicle along with 1068 boxes of dinner sets as per P.F. No.67/2023. The dinner set boxes contained the photographs of the respondent No.1 and Sri. D.K. Suresh, the then Member of Parliament of Bengaluru Rural 11 Constituency. It is further stated in the petition that the said Nanjesh, who is a Civil Contractor and close aide of the respondent No.1 was arraigned as accused No.1 in Crime No.72/2023 as per Annexure-K. It is the allegation of the petitioner that the said seized goods, upon release by the jurisdictional Court, was distributed by the agents of the respondent No.1 to the electors between 20th April, 2023 to 10th May, 2023 to vote for the respondent No.1.
11. Further, it is also stated in the petition that, similar incident was reported on 18th March, 2023 and in this regard, Sri. Reddy Shivananda Sidda, Revenue Inspector, Kasaba Hobli, Kunigal Taluk had lodged a complaint dated 18th March, 2023 against the driver of the vehicle bearing registration No.KA-13- C-9397 (Ashoka Leyland goods vehicle)-Sri. Ramesh, S/o Puttaswamaiah and the person who was distributing said dinner sets Sri. Kempanna @ Papanna in Crime No.78/2023 for the offence punishable under Section 171E of Indian Penal Code. Thereafter, one Smt. Padma W/o Sri. Kempanna @ Papanna said to have been the Member of Zilla Panchayat from INC up to 2021, and another Member of Grama Panchayat and INC Party worker Sri. Prakasha B., have filed an application for release of 12 vehicle seized as per P.F. No.75/2023 in Crime No.78/2023 (Annexure-L).
12. It is also stated in the petition that, on 19th March, 2023, one Sri. Yamanura, Village Accountant and in-charge Revenue Inspector of Kasaba Hobli, Kunigal Taluk had lodged a complaint before the Kunigal Police Station relating to distribution of dinner sets as an inducement to the voters, by using TATA Ace vehicle bearing registration No.KA-06-AA-9250 loaded with dinner sets contained in twelve boxes to influence the voters to vote for the respondent No.1. In this regard, the jurisdictional Police have registered N.C.R No.121/2023 and upon obtaining permission from the jurisdictional Magistrate, the Police have registered Crime No.83/2023 and boxes of dinners sets along with TATA Ace vehicle were seized as per P.F. No.76/2023. The said dinners sets contained the photographs of the respondent No.1 and the above said Sri. D.K. Suresh. One B.N. Madan Kumar S/o Naganna filed an application to release the above said TATA ACE vehicle in Crime No.83/2023. The details are produced at Annexure-M. 13
13. It is stated by the petitioner that the incidents of distribution of dinner sets, wherein F.I.Rs were registered are prior to issuance of 16th Karnataka Legislative Assembly Election Notification and further contended that, the respondent No.1 and his agents resorted to distribution of dinner sets to lure the voters.
14. It is also averred in the Election Petition that, on 01st April, 2023, the Election Officer was informed that one Sri. Manja S/o Thimmaiah, and Mailaraiah S/o Gangamallaiah, residents of Naganahalli Village, Kunigal Taluk, were distributing dinner sets to electors of 131-Kunigal Assembly Constituency. The said distribution of dinners sets was carried out in Tractor in Boxes having symbol of INC and photographs of the respondent No.1 and Sri. D.K. Suresh, Former Member of Parliament. It is stated that, immediately after seeing the Election Officer, the above said Sri. Manja ran away from the place and as such, the said Mailaraiah, alone was apprehended and upon enquiry, the said Mailaraiah admitted that they were distributing dinner sets under the instructions of the respondent No.1 to persuade the voters in 131-Kunigal Assembly Constituency. In this regard, the Officer of the Flying Squad Team lodged complaint and based on the 14 complaint, N.C.R. No.264/2023 was registered at Kunigal Police Station. After obtaining permission from jurisdictional Court, Crime No.103/2023 was registered for the offence punishable under Section 171E of the Indian Penal Code. Thereafter, the seized Tractor-cum-Trailer in P.F. No.88/2023 was released by imposing conditions as per Annexure-N. It is the case of the petitioner that the mother of the said Sri. Manja, who has been arraigned as accused in Crime No.103/2023, i.e., Smt. Rajamma is the Member of Jodi Hosahalli Gram Panchayat, and later elected as President to the said Gram Panchayat and so also, the INC party worker. It is also stated by the petitioner that, even after filing nomination papers and Form No.26-Affidavit on 20th April, 2023, the respondent No.1 and his agents were continued to distribute the dinner sets and kitchen utensils to induce the voters.
15. In respect of second limb of the ground that the distribution of prepaid cards, it is averred by the petitioner that the respondent No.1 and his agents, during the period of 20th April, 2023 to 10th May, 2023, as an inducement to vote for the respondent No.1, distributed prepaid cards said to have been redeemable to an extent of amount between Rs.2,000/- to 15 Rs.6,000/-. It is also stated by the petitioner that, such prepaid cards were distributed with an assurance by the agents and relatives of the respondent No.1 that the said prepaid cards are redeemable for purchases at any stores having QR Code/Bar Code scanning facility to lure the voters to vote for the respondent No.1, which amounts to corrupt practice as defined under Section 123(1) and (2) of ROP Act, 1951. The said cards contained QR code and the photograph of the respondent No.1 with INC party symbol and details of the Polling Booth in relation to which the said cards were distributed on one side and the photographs of Sri. D.K. Suresh (Member of Parliament), Sri. D.K. Shivakumar (President of KPCC), Sri. Mallikarjuna Kharge (President of INC), Sri. Siddaramaiah, and Sri. B.Z. Zameer Ahamed Khan on the other side. It is also stated in the petition that two types of such prepaid cards were distributed by the respondent No.1 and his agents resemble like smart card or type of vouchers. It is further stated that, approximately sixty thousand such prepaid cards were distributed in entire 131- Kunigal Assembly constituency. The names of the agents who distributed prepaid cards is set-out at paragraph 44 of the petition. It is averred that, some of the electors, who have 16 received the said prepaid cards, upon realizing that they are not redeemable, have informed the agents of the petitioner. Further, it is stated in the petition that some of the voters have also handed over the cards containing QR code and photographs of the respondent No.1 to the petitioner.
16. In the petition, the petitioner also stated that, after declaring that the respondent No.1 was declared as returned candidate, some of the voters had informed the petitioner about the distribution of prepaid cards. It is the main allegation of the petitioner that the respondent No.1 and his agents were involved in corrupt practices, by inducing the voters to vote in favour of the respondent No.1. It is further stated that on 06th May, 2023, four days prior to the date of polling, two buses, full of people were being taken from Kaggere Village to Kunigal without obtaining the permission of the Election Commission and the said information has reached Flying Squad Team Officer and thereby, the jurisdictional Police upon receipt of the report of the Flying Squad Team Officer, registered N.C.R. No.180/2023 and after obtaining permission from the jurisdictional Magistrate, F.I.R. was registered in Crime No.68/2023 for the offences punishable under Section 171H of the Indian Penal Code, Section 127A of 17 the ROP Act, 1951 and Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988. Thereafter, at the behest of the agent of the respondent No.1, the seized buses was released.
17. The petitioner has also stated that the respondent No.1 has spent huge amount for election contrary to the stipulated expenses to be incurred by the candidates and in this regard, the agent of the petitioner has approached the Election Officer as per letter dated 19th June, 2023 (Annexure-AG). Therefore, it is the contention of the petitioner that, though he lost the election by a margin of 26,573 votes, it is reasonable to expect that, if the respondent No.1 did not carried out the corrupt practices, the petitioner would have succeeded in the election fairly.
18. Nextly, insofar as the third allegation relating to filing of false declaration of Assets and Liabilities disclosed by the respondent No.1 at Sl. No.7 and 8 of Form No.26-Affidavit, the petitioner has stated that the respondent No.1 has made false declaration relating to the loan availed by him from Sri. D.K. Shivakumar, President of KPCC and thereby committed corrupt 18 practice as defined under Section 123(2) of the ROP Act, 1951. The details relating to the availment of loan by the respondent No.1 is setout at paragraph 74 of the petition. Therefore, the petitioner contended that the respondent No.1 has won election of 131-Kunigal Assembly Constituency on account of corrupt practices and by submitting false Affidavit, hence, the petitioner has presented the Election Petition, challenging the election of the returned candidature of respondent No.1.
19. Upon entering appearance, the respondent No.1 filed written statement and also IA.1 of 2024, seeking rejection of the petition on the ground that the specific allegations of corrupt practice as contained in the petition do not meet the basic requirements of law. It is further stated in the said application that, no trial or enquiry is required to be made in the petition as the same does not disclose a triable issue or cause of action and accordingly, sought for dismissal of the petition.
20. It is the contention of the respondent No.1 that the copy of election petition served upon the respondent No.1 has not been attested by the petitioner in his own signature as true copy. It is further contention of the respondent No.1 that the 19 allegation relating to the distribution of prepaid cards by the respondent No.1 and his agents is false and baseless and the source of information relied upon by the petitioner is vague and does not disclose which forms a 'material particular' meets the element of alleged corrupt practice. No particulars are furnished regarding the so called 'consent' by the respondent No.1 in the election petition. It is stated by the respondent No.1 in application IA.1 of 2024 that the petitioner has invoked Section 123 (1) and (2) of the ROP Act, 1951 by making clever drafting of the petition to circumvent the rigor provided under Section 100(1)(d) of the ROP Act, 1951. It is also stated in the application that, it is the duty of the petitioner to plead as to how the result of election of the returned candidate is materially affected, if the corrupt practice is committed by any person other than the respondent No.1 or his election agent. Therefore, it is the contention of the respondent No.1 that the petition does not disclose any cause of action which could be invoked under Section 100(1)(b) and comes within the purview of Section 100(1)(d)(ii) of the ROP Act, 1951. It is also stated in the application IA.1 of 2024 that the petition lacks merits as the circumstance narrated by the petitioner in the Election petition is 20 without his personal knowledge and the source of information is not disclosed in the petition and therefore, the respondent No.1 sought for dismissal of the Election petition.
21. Referring to the grounds urged at paragraph 14 of the Election Petition, the respondent No.1 also stated that the allegation of distribution of dinner sets and kitchen utensils by the respondent No.1 or his agents to induce the voters of the constituency is far from truth and same is without any basis.
22. Insofar as the allegation relating to filing of false declaration about Assets and Liabilities at Sl.No.7 and 8 of Form No.26-Affidavit is concerned, the respondent No.1 has pleaded that the said allegation is without merit and contrary to the material on record and further clarified that the transaction is relating to B.T.L. Educational Institutions and as such, sought for rejection of the petition by filing application IA.1 of 2024.
23. In response to the application IA.1 of 2024, the petitioner has filed statement of objections, contending that the said application has been filed to protract the process of Trial in order to succeed in dragging the proceedings beyond the term for which the respondent No.1 has been elected. It is stated in 21 the statement of objections that the petitioner has produced all relevant facts and particulars mentioned in the election petition, which would disclose the cause of action to set-aside the election of the respondent No.1 on the ground of corrupt practices. It is further stated that the petitioner has pleaded all the material facts and particulars as required under Section 83(1)(a) and (b) of the ROP Act, 1951 in the petition which discloses the cause of action. It is also stated in the statement of objections that the existence of cause of action as narrated in the petition is sufficient for conducting trial of the election petition and whether the cause of action narrated in the petition against the respondent No.1 is weak or strong is a matter of Trial which would be proved during the course of Trial. In addition to this, the petitioner has stated that the petitioner has provided all particulars relating to the corrupt practices indulged by the respondent No.1 or his authorised agents or any other person with express consent of the respondent No.1, as alleged in the election petition and as such, reading the petition comprehensively makes it clear that the material facts narrated are within the ambit of Section 123 of the ROP Act, 1951. 22
24. It is also stated by the petitioner in the statement of objections that application IA.2 of 2023 was filed by the petitioner seeking, issuance of notice through Post Master, G.P.O., Bengaluru and Post Master, Kunigal. The said summons along with the petition were served to the respondent No.1 and therefore, upon the submission made by the respondent No.1 admitting the receipt of summons on 10th October, 2023, the contentions regarding non service of summons and receipt of the copy of petition duly signed by the petitioner as raised by the respondent No.1 cannot be accepted. Therefore, it is contended by the petitioner that the grounds urged by the respondent No.1 for rejection of petition in application IA.1 of 2024 cannot be accepted and as such sought for dismissal of the application.
25. Heard, Smt. Nalina Mayegowda, learned Senior Counsel on behalf of Smt. Anusha B. Reddy, appearing for the petitioner and Sri. Shivacharan R., learned counsel appearing for the respondent No.1.
CONTENTIONS OF THE LEARNED SENIOR COUNSEL APPEARING FOR THE PETITIONER
26. Smt. Nalina Mayegowda, learned Senior Counsel appearing for the petitioner argued that the petitioner has taken 23 three grounds in the election petition to nullify the election of respondent No.1. In this regard, she refers to paragraph 14 of the election petition and contended that the petitioner has produced adequate material to establish that the respondent No.1 and his agents were indulging in illegal practices to distribute the dinner sets and kitchen utensils and in this regard, the electioneering authorities had visited the spot where the dinner sets and kitchen utensils were being distributed to the voters and thereafter, complaint has been lodged before jurisdictional Police and criminal action was launched pursuant to the registration of the F.I.R., which would establish the fact that respondent No.1 was indulging in corrupt practices. In this regard, she refers to provision under Section 81 and 100 of the ROP Act, 1951 and submitted that the allegations made against the respondent No.1 is within the parameters to prove "corrupt practices" under Section 100 of the ROP Act, 1951. That apart, it is contended by the learned Senior Counsel that the petitioner has identified the voters who had been induced by the respondent No.1 and further time and place are specifically stated at paragraphs 47 and 49 of the election petition and therefore, as the entire factual aspects have been narrated in 24 the election petition relating to launching criminal action against the respondent No.1. Accordingly, she pleaded that the contentions raised by the respondent No.1 in application IA.1 of 2024 cannot be a ground to reject the election petition. It is further contended by the learned Senior Counsel that the petitioner has specifically averred in the petition about the distribution of dinner sets and kitchen utensils and further the details of involvement of the respondent No.1 and his supporters has been proved with regard to issuing the prepaid cards and same would establish the corrupt practices indulged by respondent No.1. She also invited the attention of the Court to Section 83(1)(a) and (b) of the ROP Act, 1951 and contended that the entire material has been furnished with regard to the allegations made against the respondent No.1 at paragraph 44 of the Election Petition and therefore, sought for dismissing the application IA.1 of 2024 filed by respondent No.1 for rejection of the Election Petition.
27. It is further submitted by the learned Senior Counsel appearing for the petitioner that the election petition contains pleadings, which are relevant and constitute material facts for the purpose of seeking relief of setting aside the Election of the 25 respondent No.1 on the ground of corrupt practices. She also submits that the cause of action for filing the petition has been averred in detail and the sole purpose of filing application by the respondent No.1, is to protract the proceedings before this Court.
28. In respect of arguments with regard to the fact that the agents of the respondent No.1 have indulged in corrupt practices pursuant to the direction issued by respondent No.1, it is contended by the learned Senior Counsel appearing for the petitioner that the respondent No.1 has consented for commission of the offence under corrupt practices as culled out in the petition and same is sufficient to hold that the petitioner has made out a case for accepting the election petition and in this regard, she refers to Section 83 of the ROP Act, 1951 and submitted that the petitioner has provided all particulars as required under law.
29. Insofar as the allegation made with regard to the prepaid cards is concerned, it is submitted by the learned Senior Counsel appearing for the petitioner that, the respondent No.1 and his agents have issued the prepaid cards containing the QR 26 code and photographs of respondent No.1 and other leaders of the INC and the said smart card/type of vouchers would be presented for redeeming at the malls specified by the agents of respondent No.1 and in this regard, many of the voters of the constituency have informed the petitioner about same and as such, she submitted that, the said illegal activities on the part of the respondent No.1 and his agents amounts to corrupt practices.
30. Smt. Nalina Mayegowda, learned Senior Counsel appearing for the petitioner further contended that, the respondent No.1 has filed false declaration of assets and liabilities in Form No.26-Affidavit, wherein the discrepancy is related to furnishing the details of transaction by the respondent No.1 with that of his Co-brother-D.K. Shivakumar and therefore, respondent No.1 has won in the election on account of corrupt practices and accordingly, she sought for dismissing the application filed by respondent No.1, seeking rejection of election petition.
31. In order to buttress her arguments, learned Senior Counsel appearing for the petitioner referring to the judgment of 27 the Hon'ble Supreme Court in the case of PONNALA LAKSHMAIAH Vs. KOMMURI PRATAP REDDY AND OTHERS reported in (2012) 7 SCC 788 argued that as the petitioner has provided the entire details comprehensively, disclosing the cause of action and therefore, the petition cannot be rejected on the ground of lack of cause of action.
32. Nextly, learned Senior Counsel appearing for the petitioner placing reliance on the judgment of the Hon'ble Supreme Court in the case of MADIRAJU VENKATA RAMANA RAJU Vs. PEDDIREDDIGARI RAMACHANDRA REDDY AND OTHERS reported in AIR 2018 SC 3012 and V.S. ACHUTHANANDAN vs. P.J. FRANCIS AND ANOTHER reported in (1999) 3 SCC 737 contended that, whether a particular fact is a material fact or not has to be looked into through the averments made in the petition, which depends on the nature of allegation made against the returned candidate.
33. Smt. Nalina Mayegowda, learned Senior Counsel also places reliance on the judgment of the Hon'ble Supreme Court in the case of HARKIRAT SINGH vs. AMRINDER SINGH reported in (2005) 13 SCC 511 and F.A. SAPA AND OTHERS 28 Vs. SINGORA AND OTHERS reported in (1991) 3 SCC 375 and contended that the averments made at paragraphs 16 and 39 to 75 of the Election Petition constitute particulars relating to corrupt practice and as the material facts are already on record, the hyper-technical approach should not result in defeating the genuine attempt made by the petitioner and accordingly, she sought for dismissal of the application.
CONTENTIONS OF THE LEARNED COUNSEL APPEARING FOR THE RESPONDENT NO.1
34. Sri. Shivacharan, learned counsel appearing for the respondent No.1 argued that the election petition lacks cause of action and barred by law and as such, the petition is liable to be rejected. Learned counsel invited the attention of the Court to paragraph 14 of the petition and submitted that the grievance of the petitioner as alleged in the election petition, challenging the election of the returned candidate is based on 'corrupt practice' under Section 123 of the ROP Act, 1951. In this regard, learned counsel submitted that the corrupt practices as alleged at paragraph 14 of the petition are far from truth, and in this connection, he refers to the criminal cases launched against the 29 respondent No.1 in Crime No.72/2023, Crime No.78/2023, Crime No.83/2023, Crime No.103/2023 and Crime No.68/2023.
35. Learned counsel appearing for the respondent No.1 submits that, insofar as the Crime No.78/2023 is concerned, the respondent No.1 has been arraigned as accused and the Investigating Officer after concluding the investigation filed 'B' report. He further submitted that the cases referred to above are filed before the issuance of the Notification for election and therefore, making allegation against the respondent No.1 that he is indulging in corrupt practices cannot be accepted. He also submitted that the allegations made in the election petition is against the agents of the respondent No.1 and there is no specific allegation against the respondent No.1. In this regard, he refers to the paragraph 30 of the petition and submitted that the petitioner has admitted that the criminal cases launched against the respondent No.1 were much before the issuance of 16th Karnataka Legislative Assembly Notification. Learned counsel appearing for the respondent No.1 further submitted that there is no question of inducing the voters as alleged in the petition and accordingly submitted that the involvement of respondent No.1 does not arise in seizure of dinner sets and 30 kitchen utensils. He also submitted that the petitioner has created the photo and such other material against the respondent No.1 as the petitioner was politically inimically placed against the respondent No.1. In this regard, he further submitted that the petitioner has not produced any document to establish that corrupt practices so alleged were with the consent of the respondent No.1 or his election agent to invoke Section 123 (1) and (2) of the ROP Act, 1951. He also contended that, after F.I.Rs have been registered against the respondent No.1, investigation was conducted by the jurisdictional Police and accordingly, the charges were dropped against the respondent No.1 and same has not been challenged and therefore, it could be borne that the respondent No.1 was not involved in distribution of dinner sets and kitchen utensils. He also refers to the statement rendered before the Investigation Officer by one of the accused in Crime No.72/2003 (Annexure-R2).
36. Nextly, insofar as the allegation relating to distribution of prepaid cards is concerned, Sri. Shivacharan, learned counsel appearing for the respondent No.1 invited the attention of the Court to paragraph 54 of the petition and contended that the allegation that one B.R. Shivakumar, voter of the 131-Kunigal 31 Assembly constituency had received the prepaid card containing the QR code are only to tarnish the image of the respondent No.1. He further contended that the respondent No.1 was elected with a margin of approximately 26,000 votes and therefore, distribution of prepaid cards was made as an inducement of the voters is baseless and vexatious. He also submitted that the respondent No.1 is a Doctor by profession and is a prominent Orthopedic Surgeon at KIMS Hospital and has earned his own goodwill from the public. He also contended that the respondent No.1 has contested for Kunigal Assembly constituency during the year-2018 and was duly elected in the election. Sri. Shivacharan, learned counsel further contended that the respondent No.1 had donated Plasma during COVID-19 pandemic and as such, the allegations made against the respondent No.1 are without any factual material on record and accordingly, sought for rejection of the petition.
37. Thirdly, insofar as the allegation made regarding filing of false declaration about Assets and Liabilities at Sl. No.7 and 8 of Form No.26-Affidavit, Sri. Shivacharan, learned counsel appearing for the respondent No.1 invited the attention of Court to page No.132 of the petition and submitted that the 32 respondent No.1 has availed loan as a Trustee of B.T.L. Educational Trust for Rural Development, a charitable Trust registered for the cause of public in the locality. He further submitted that, the petitioner and Sri. D.K. Shivakumar were the Trustees of the aforementioned Educational Trust and the transaction referred to by the petitioner in the Election Petition has nothing to do with the transaction between the respondent No.1 with that of Sri. D.K. Shivakumar and as such, he contended that the said aspect has been misconstrued by the petitioner and had filed petition stating that the respondent No.1 has not disclosed in the Affidavit. Accordingly, learned counsel appearing for respondent No.1 submitted that the petition lacks merit as the grounds urged at paragraph 14 of the petition, are without any basis and the material facts have not been properly stated by the petitioner with regard to distribution of dinner sets and kitchen utensils and further nothing is stated in the petition about who prepared and distributed the prepaid cards and as such, the respondent No.1 does not indulged in any illegal activities to induce the electors to vote for the respondent No.1. Accordingly, he sought for rejection of the petition on the ground that the petition lacks cause of action. In this regard, learned 33 counsel appearing for the respondent No.1 refers to following Judgments:
1. RAVINDER SINGH vs. JANMEJA SINGH AND OTHERS reported in (2000)8 SCC 191.
2. HARI SHANKAR JAIN vs. SONIA GANDHI reported in (2001)8 SCC P 233.
3. DAHIBEN VS. ARVINDBHAI KALYANJI BHANUSALI (GAJRA) DEAD THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2020) 7 SCC 366
4. KANIMOZHI KARUNANIDHI VS. A. SANTHANA KUMAR AND OTHERS reported in 2023 SCC OnLine SC 573.
38. Referring to the aforementioned judgments, Sri. Shivacharan, learned counsel submitted that, as the petitioner is alleging element of corrupt practices said to have been indulged by the respondent No.1, it is the duty of the petitioner to provide particulars of the charge or allegations precisely and has to be stated in the election petition with full material particulars and in the absence of the same, as the petitioner herein fails to provide adequate material to establish the allegations raised in the election petition, this Court is empowered to reject the election petition as devoid of cause of action. Accordingly, he sought for rejection of election petition.
34FINDINGS
39. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the averments made in the election petition, particularly, referring to three grounds urged by the petitioner at paragraph 14 of the Petition. The respondent No.1 has contended that the petition lacks merit on the ground of lack of cause of action and learned Senior Counsel appearing for the petitioner submits that the essential facts have been narrated and same is required to be proved during the trial. In this backdrop of the matter, the following points have to be answered in this application:
(1) Whether the averments made in the Election Petition lacks material facts and did not disclose the cause of action?
(2) Whether the grounds urged by the respondent No.1 in I.A.1 of 2024 are just and proper?
(3) What order ?
40. Having heard the learned counsel appearing for the parties, it is well established principle of law that, while considering the application under order VII Rule 11 of the Civil 35 Procedure Code, it is the duty of the Court to look into the averments made in the plaint/petition and documents produced along with the plaint/petition. The plaintiff/petitioner must make out a case for conducting trial/enquiry and further the Court should not be misguided with the defence taken in written statement. The petition/plaint can be rejected when the allegation made in the petition/plaint, if held true, does not disclose a cause of action. It is also pertinent to mention here that while considering such application, the Court has to apply its mind whether the grounds urged by the respondent/defendant in the application come within the parameters of Order VII Rule 11 of the Code of Civil Procedure. The entire averments in the plaint/petition has to be read in whole to satisfy the ingredients under Order VII Rule 11 of the Code of Civil Procedure. At this juncture, it is also to be noted that, if the petition averments lacks cause of action or there is a patent error to exercise the jurisdiction by the competent Court, such application has to be accepted to save the judicial time as well as not to allow the petitioner/plaintiff to proceed in the matter as the same will cause hardship/injury to the defendant/respondent. Hence, it is relevant to follow the 36 following law declared by Hon'ble Apex Court in relation to considering the application filed under Order VII Rule 11 of the Civil Procedure Code in Election Petition:
CASE LAW ON ORDER VII RULE 11 OF THE CIVIL PROCEDURE CODE IN RELATION TO REJECTION OF ELECTION PETITION:
41. The Hon'ble Supreme Court in the case of KANIMOZHI KARUNANIDHI vs. A . SANTANA KUMAR AND OTHERS reported in 2023 SCC Online SC 573 at paragraph 11 to 15 and 18 to 28 held that, "11. So far as the R.P Act, 1951, is concerned, its object as is reflected in its short title is to provide for the conduct of elections of the Houses of Parliament and to the House or Houses of the legislature of each State, the qualifications and the disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. Part-VI of the R.P. Act, 1951 deals with the disputes regarding Elections, and Chapter II thereof deals with the presentation of the Election petitions to the High Court. Section 80 thereof states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part-VI. 37
12. Section 80A confers jurisdiction on the High Court to try election petitions. Section 81 deals with the presentation of petitions which reads as under:
"Section 81. Presentation of Petitions- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of Section 100 and Section 101 to the High Court by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates].
Explanation. --In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(2) [***] [(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.]
13. Section 82 mandates as to who shall be the parties to the Election petition. Section 83 pertains to the contents of the petition, which reads as under:--
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 38
(c) shall be signed by the petitioner and verified in the manner laid down in the Civil Procedure Code, 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.]
14. As per Section 86, the High Court is empowered to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. Section 87 deals with the procedure to be followed by the High Court which reads as under:
"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 Civil Procedure Code, 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 1872), shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition."39
15. The grounds on which the High Court could declare the election of the returned candidate to be void are enumerated in Section 100 which reads as under:--
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) --
(b) --
(c) --
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) --
(ii) --
(iii) --
(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."
*** Legal position:
18. The scheme of the Constitutional and statutory provisions contained in the R.P. Act in relation to the nature of the right to elect, the right to be elected and the right to dispute an election have been explained and interpreted by various Constitutional Benches since 1952.
To cite a few are N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, in Jagan Nath v. Jaswant Singh, in Bhikji Keshao Joshi v. Brijlal Nandlal Biyani, in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore etc.
19. What has been gleaned from the said authorities may be summed up by stating that a right to elect, 40 though fundamental it is to democracy, is neither a fundamental right nor a common law right. It is purely a statutory right. Similarly, right to be elected and the right to dispute an election are also statutory rights. Since they are statutory creations, they are subject to statutory limitations. An Election petition is not an action at common law, nor in equity. It is a special jurisdiction to be exercised in accordance with the statute creating it. The concept familiar to common law and equity must remain strangers to election law unless statutorily embodied. Thus, the entire election process commencing from the issuance from the notification calling upon a constituency to elect a member or members right upto the final resolution of the dispute, concerning the election is regulated by the Representation of People Act, 1951. The said R.P. Act therefore has been held to be a complete and self-contained code within which must be found any rights claimed in relation to an election dispute.
20. In a very interesting and important decision in case of Union of India v. Association for Democratic Reform, a three-judge Bench of this Court raising a question - in a nation wedded to republican and democratic form of government, whether before casting votes, the voters have a right to know relevant particulars of their candidates contesting election to the Parliament or to the legislature of States, deliberated on the powers of the Election Commission under Article 324 of the Constitution, and observed as under:--
41
"46. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be stated that:
1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word "elections" is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
2. The limitation on plenary character of power is when Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, the Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar case [(1985) 4 SCC 628] the Court construed the expression "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which many may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the Election Commission to issue such orders.
3. ....
4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to 42 represent him in Parliament where laws to bind his liberty and property may be enacted."
21. It is also pertinent to note that the insertion of Rule-4A and Form-26 appended to the said Rules is also culmination of the said observations made this Court in the aforesaid case, which require the candidate to disclose the information and particulars in the form of affidavit to be submitted along with the nomination paper.
22. The respondent-Election petitioner in this case has challenged election of the appellant-returned candidate under Section 100(1)(d)(iv) on the ground of non- compliance of the said Rule-4A and the Form-26. However, the appellant had filed the applications seeking dismissal of the Election petition in limine, for the non- compliance of the provisions of Section 83(1)(a) of the said Act, read with Order VII, Rule 11 of CPC.
23. The law so far developed and settled by this Court with regard to the non-compliance of the requirement of Section 83(1)(a) of the EP Act, namely - "an Election petition must contain a concise statement of material facts on which the petitioner relies", is that such non- compliance of Section 83(1)(a) read with Order VII, Rule 11, CPC, may entail dismissal of the Election Petition right at the threshold. "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 43 appeared to oppose the Election petition on the basis of the facts pleaded in the petition. They must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure 1908. Material facts would include positive statement of facts as also positive statement of a negative fact.
24. A Three-Judge Bench in Hari Shanker Jain v. Sonia Gandhi (supra) had an occasion to deal with Section 83(1)(a) of the RP Act and the Court dismissed the Election petition holding that the bald and vague averments made in the election petitions do not satisfy the requirements of pleading "material facts" within the meaning of Section 83(1)(a) of the RP Act read with the requirements of Order VII Rule 11 CPC. It was observed in para 23 and 24 as under:--
"23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Civil Procedure Code, 1908. The expression "cause of action" has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Fernandez [(1969) 3 SCC 238 : (1969) 3 SCR 603], Jitendra 44 Bahadur Singh v. Krishna Behari [(1969) 2 SCC 433].) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis [(1999) 3 SCC 737] this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.
24. It is the duty of the court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a court 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."
25. In case of Mahadeorao Sukaji Shivankar v. Ramaratan Bapu, a Three-Judge Bench of this Court again had an occasion to deal with the issues as to what would constitute "material facts" and what would be the consequences of not stating the "material facts" in the Election petition, as contemplated in Section 83(1)(a) of the RP Act, and the Court observed 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 7 of the Code. The question, however, is as to whether the petitioner had set out material facts in the election petition. The expression "material facts" has neither been defined in the Act nor in the Code. It may be stated that the material facts are those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the plaintiff's cause 45 of action or the defendant's defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish existence of cause of action or defence are material facts and must be stated in the pleading of the party.
7. But, it is equally well settled that there is distinction between "material facts" and "particulars".
Material facts are primary or basic facts which must be pleaded by the petitioner in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars ensure conduct of fair trial and would not take the opposite party by surprise."
26. In Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, this Court has discussed number of earlier decisions on the issue as to when the Election petition could be dismissed summarily if it does not furnish the cause of action in exercise of powers under the Code of Civil Procedure read with Section 83 of the R.P. Act.
"50. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with.
51. This Court in Samant N. Balkrishna case [(1969) 3 SCC 238] has expressed itself in no uncertain terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election 46 petition at all. In Udhav Singh v. Madhav Rao Scindia [(1977) 1 SCC 511] the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.
52. In V. Narayanaswamy v. C.P. Thirunavukkarasu [(2000) 2 SCC 294] this Court reiterated the legal position that an election petition is liable to be dismissed if it lacks in material facts. In L.R. Shivaramagowda v. T.M. Chandrashekar [(1999) 1 SCC 666] this Court again considered the importance of pleadings in an election petition alleging corrupt practice falling within the scope of Section 123 of the Act and observed as under : (SCC p. 677, para 11) "11. This Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between 'material facts' and 'material particulars'. While the failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment."
53. In Udhav Singh case [(1977) 1 SCC 511] this Court observed as under : (SCC pp. 522-23, para 41) "41. Like the Code of Civil Procedure, this section also envisages a distinction between 'material facts' 47 and 'material particulars'. Clause (a) of sub-section (1) corresponds to Order 6 Rule 2, while clause (b) is analogous to Order 6 Rules 4 and 6 of the Code. The distinction between 'material facts' and 'material particulars' is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6 Rule 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation."
54. In H.D. Revanna case [(1999) 2 SCC 217] the appeal was filed by the candidate who had succeeded in the election and whose application for dismissal of the election petition in limine was rejected by the High Court. This Court noticed that it has been laid down by this Court that non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. In Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi [(2005) 5 SCC 46] this Court observed thus : (SCC p. 51, para 14) "14. Necessary averment of facts constituting an appeal on the ground of 'his religion' to vote or to refrain from voting would be material facts within the meaning of clause (a) of sub-section (1) of Section 83 of the Act. If such material facts are missing, they cannot be supplied later on, after the expiry of period of limitation for filing the election petition and the plea being deficient, can be directed to be struck down under Order 6 Rule 16 of the Civil Procedure Code, 1908 and if such plea be the sole ground of filing an election petition, the petition itself can be rejected as not disclosing a cause of action under clause (a) of Rule 11, Order 7 of the Code."
55. In Harkirat Singh v. Amrinder Singh [(2005) 13 SCC 511] this Court again reiterated the distinction between "material facts" and "material 48 particulars" and observed as under : (SCC p. 527, paras 51-52) "51. A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise.
52. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."
56. In Sudarsha Avasthi v. Shiv Pal Singh [(2008) 7 SCC 604] this Court observed as under : (SCC p. 612, para 20) "20. The election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses this as a handle for vexatious purpose."
57. It is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. The election petition must contain a concise statement of "material facts" on which the petitioner relies.
58. There is no definition of "material facts" either in the Representation of the People Act, 1951 nor in 49 the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts" in other words mean the entire bundle of facts which would constitute a complete cause of action. This Court in Harkirat Singh case [(2005) 13 SCC 511] tried to give various meanings of "material facts". The relevant para 48 of the said judgment is reproduced as under : (SCC pp. 526-27) "48. The expression 'material facts' has neither been defined in the Act nor in the Code.
According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', 'indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus (3rd Edn.), p. 349.] The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for its claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party."
27. In Ram Sukh v. Dinesh Aggarwal (supra), this Court again while examining the maintainability of Election petition filed under Section 100(1)(d)(iv) of the RP Act, elaborately considered the earlier decisions and observed that it was necessary for the election petitioner to aver specifically in what manner the result of the election in so far as it concerned the returned candidate was materially affected due to omission on the part of the Returning Officer. The Court in the said case having found 50 that such averments being missing in the Election petition, upheld the judgment of the High Court/Election Tribunal rejecting the Election petition at the threshold. The Court observed in para 14 to 21 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 v. George Fernandez [(1969) 3 SCC 238]. 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.
15. At this juncture, in order to appreciate the real object and purport of the phrase "material facts", particularly with reference to election law, it would be appropriate to notice the distinction between the phrases "material facts" as appearing in clause (a) and "particulars" as appearing in clause (b) of sub- section (1) of Section 83. As stated above, "material facts" are primary or basic facts which have to be pleaded by the petitioner to prove his cause of action 51 and by the defendant to prove his defence.
"Particulars", on the other hand, are details in support of the material facts, pleaded by the parties. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Unlike "material facts" which provide the basic foundation on which the entire edifice of the election petition is built, "particulars"
are to be stated to ensure that the opposite party is not taken by surprise.
16. The distinction between "material facts" and "particulars" and their requirement in an election petition was succinctly brought out by this Court in Virender Nath Gautam v. Satpal Singh [(2007) 3 SCC 617] wherein C.K. Thakker, J., stated thus : (SCC pp. 631-32, para 50) "50. There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue."
17. Now, before examining the rival submissions in the light of the aforestated legal position, it would be expedient to deal with another submission of the learned counsel for the appellant that the High Court should not have exercised its power either under Order 6 Rule 16 or Order 7 Rule 11 of the Code to reject the election petition at the threshold. The argument is twofold viz.:
(i) that even if the election petition was liable to be dismissed ultimately, it should have been dismissed only after affording an opportunity to the election 52 petitioner to adduce evidence in support of his allegation in the petition, and
(ii) since Section 83 does not find a place in Section 86 of the Act, rejection of the petition at the threshold would amount to reading into sub-section (1) of Section 86 an additional ground.
In our opinion, both the contentions are misconceived and untenable.
18. Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order 6 Rule 16 and Order 7 Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the electorate have reposed confidence in him. The submission, therefore, must fail.
19. Coming to the second limb of the argument viz. absence of Section 83 in Section 86 of the Act, which specifically provides for dismissal of an election petition which does not comply with certain provisions of the Act, in our view, the issue is no longer res integra. A similar plea was negatived by a three-Judge Bench of this Court in Hardwari Lal v. Kanwal Singh [(1972) 1 SCC 214], wherein speaking for the Bench, A.N. Ray, J. (as His Lordship then was) said : (SCC p. 221, para 23) "23. Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of Section 81, or Section 82 or Section 117 of the Act. It was emphasised that Section 83 did not find place in Section 86. Under Section 87 of the Act every 53 election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code, 1908, to the trial of suits. A suit which does not furnish cause of action can be dismissed."
20. The issue was again dealt with by this Court in Azhar Hussain v. Rajiv Gandhi [1986 Supp SCC 315]. Referring to earlier pronouncements of this Court in Samant N. Balkrishna [(1969) 3 SCC 238] and Udhav Singh v. Madhav Rao Scindia [(1977) 1 SCC 511] wherein it was observed that the omission of a single material fact would lead to incomplete cause of action and that an election petition without the material facts is not an election petition at all, the Bench in Azhar Hussain case [1986 Supp SCC 315] held that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act and an election petition can be and must be dismissed if it suffers from any such vice.
21. We may now advert to the facts at hand to examine whether the election petition suffered from the vice of non-disclosure of material facts as stipulated in Section 83(1)(a) of the Act. As already stated the case of the election petitioner is confined to the alleged violation of Section 100(1)(d)(iv). For the sake of ready reference, the said provision is extracted below:
"100. Grounds for declaring election to be void.--
(1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
***
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected--
***
(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." It is plain that in order to get an election declared as void under the said provision, the election petitioner must aver that on account of non-compliance with 54 the provisions of the Constitution or of this Act or of any rules or orders made under the Act, the result of the election, insofar as it concerned the returned candidate, was materially affected."
28. The legal position enunciated in afore-stated cases may be summed up as under:--
i. Section 83(1)(a) of RP Act, 1951 mandates that an Election petition shall contain a concise statement of material facts on which the petitioner relies. If material facts are not stated in an Election petition, the same is liable to be dismissed on that ground alone, as the case would be covered by Clause (a) of Rule 11 of Order 7 of the Code.
ii. The material facts must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action, that is every fact which it would be necessary for the plaintiff/petitioner to prove, if traversed in order to support his right to the judgment of court. Omission of a single material fact would lead to an incomplete cause of action and the statement of plaint would become bad.
iii. Material facts mean the entire bundle of facts which would constitute a complete cause of action. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary.
iv. In order to get an election declared as void under Section 100(1)(d)(iv) of the RP Act, the Election petitioner must aver that on account of non- compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the result of the election, in so far as it concerned the returned candidate, was materially affected.
v. The Election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses it as a handle for vexatious purpose.
vi. An Election petition can be summarily dismissed on the omission of a single material fact leading to an 55 incomplete cause of action, or omission to contain a concise statement of material facts on which the petitioner relies for establishing a cause of action, in exercise of the powers under Clause (a) of Rule 11 of Order VII CPC read with the mandatory requirements enjoined by Section 83 of the RP Act."
42. It is also relevant to cite the judgment of the Hon'ble Supreme Court in another case KARIM UDDIN BARBHUIYA vs. AMINUL HAQUE LASKAR AND OTHERS reported in 2023 SCC Online SC 509 at paragraph 12 to 16 and 19 to 24 held that, "12. At the outset, it may be noted that as per the well settled legal position, right to contest election or to question the election by means of an Election Petition is neither common law nor fundamental right. It is a statutory right governed by the statutory provisions of the RP Act. Outside the statutory provisions, there is no right to dispute an election. The RP 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. The provisions of Civil Procedure Code are applicable to the extent as permissible under Section 87 of the RP Act.
13. It hardly needs to be reiterated that in an Election Petition, pleadings have to be precise, specific and unambiguous, and if the Election Petition does not disclose a cause of action, it is liable to be dismissed in limine. It may also be noted that the cause of action in 56 questioning the validity of election must relate to the grounds specified in Section 100 of the RP Act. As held in Bhagwati Prasad Dixit 'Ghorewala' v. Rajeev Gandhi and in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, if the allegations contained in the petition do not set out the grounds as contemplated by Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, the pleadings are liable to be struck off and the Election Petition is liable to be rejected under Order VII, Rule 11 CPC.
14. A beneficial reference of the decision in case of Laxmi Narayan Nayak v. Ramratan Chaturvedi be also made, wherein this Court upon review of the earlier decisions, laid down following principles applicable to election cases involving corrupt practices:--
"5. This Court in a catena of decisions has laid down the principles as to the nature of pleadings in election cases, the sum and substance of which being:
(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law vide Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi [1987 Supp SCC 93] and Kona Prabhakara Rao v.
M. Seshagiri Rao [(1982) 1 SCC 442].
(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue vide Manphul Singh v. Surinder Singh [(1973) 2 SCC 599 : (1974) 1 SCR 52], Kona Prabhakara Rao v. M. Seshagiri Rao [(1982) 1 SCC 442] and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi [1987 Supp SCC 93].
57(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100 vide Jumuna Prasad Mukhariya v. Lachhi Ram [(1954) 2 SCC 306 : (1955) 1 SCR 608 : AIR 1954 SC 686] and Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660].
(4) The evidence produced before the court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny vide Ram Sharan Yadav v. Thakur Muneshwar Nath Singh [(1984) 4 SCC 649].
(5) It is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances or unimpeachable documents vide Rahim Khan v.
Khurshid Ahmed [(1974) 2 SCC 660], M. Narayana Rao v. G. Venkata Reddy [(1977) 1 SCC 771 :
(1977) 1 SCR 490], Lakshmi Raman Acharya v.
Chandan Singh [(1977) 1 SCC 423 : (1977) 2 SCR 412] and Ramji Prasad Singh v. Ram Bilas Jha [(1977) 1 SCC 260]."
(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded vide Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660], Mohan Singh v. Bhanwarlal [(1964) 5 SCR 12 : AIR 1964 SC 1366] and Ramji Prasad Singh v.
Ram Bilas Jha [(1977) 1 SCC 260]."
15. The legal position with regard to the non-compliance of the requirement of Section 83(1)(a) of the RP Act and the rejection of Election Petition under Order VII Rule 11, CPC has also been regurgitated recently by this Court in case of Kanimozhi Karunanidhi v. A. Santhana Kumar (supra):--
"28. The legal position enunciated in afore-stated cases may be summed up as under:--
i. Section 83(1)(a) of RP Act, 1951 mandates that an Election petition shall contain a concise statement of material facts on which the petitioner relies. If material facts are not stated in an Election petition, 58 the same is liable to be dismissed on that ground alone, as the case would be covered by Clause (a) of Rule 11 of Order 7 of the Code.
ii.The material facts must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action, that is every fact which it would be necessary for the plaintiff/petitioner to prove, if traversed in order to support his right to the judgment of court. Omission of a single material fact would lead to an incomplete cause of action and the statement of plaint would become bad.
iii. Material facts mean the entire bundle of facts which would constitute a complete cause of action. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary.
iv. In order to get an election declared as void under Section 100(1)(d)(iv) of the RP Act, the Election petitioner must aver that on account of non- compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the result of the election, in so far as it concerned the returned candidate, was materially affected.
v. The Election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses it as a handle for vexatious purpose.
vi. An Election petition can be summarily dismissed on the omission of a single material fact leading to an incomplete cause of action, or omission to contain a concise statement of material facts on which the petitioner relies for establishing a cause of action, in exercise of the powers under Clause (a) of Rule 11 of Order VII CPC read with the mandatory requirements enjoined by Section 83 of the RP Act."
16. Bearing in mind the aforestated legal position, let us consider the averments and allegations made by the respondent no. 1 in the Election Petition in which the election of the Appellant is sought to be challenged 59 basically on two grounds : (1) that the appellant has committed corrupt practice and (2) the result of the election in so far as it concerned the appellant, was materially affected by the improper acceptance of his nomination. In short, the respondent no. 1 has invoked Section 100(1)(b) and Section 100(1)(d)(i) of the Act, for declaring the election of the Appellant as void.
***
19. Now, from the bare reading of the Election petition, it emerges that the respondent no. 1 has made only bald and vague allegations in the Election Petition without stating the material facts in support thereof as required to be stated under Section 83(1)(a) of the RP Act. Apart from the fact that none of the allegations with regard to the false statements, and suppression and misrepresentation of facts allegedly made by the respondent no. 1 with regard to his educational qualification or with regard to his liability in respect of the loan availed by him for his partnership firm or with regard to his default in depositing the employer's contribution to provident fund, would fall within the definition of "Corrupt practice" of "undue influence" as envisaged in Section 123(2) of the RP Act, the Election petition also lacks concise statement of "material facts" as contemplated in Section 83(a), and lacks "full particulars" of the alleged Corrupt practice as contemplated in Section 83(b) of the RP Act.
20. So far as the allegations of "Corrupt practice" are concerned, the respondent no. 1 was required to make 60 concise statement of material facts as to how the appellant had indulged into "Corrupt practice" of undue influence by directly or indirectly interfering or attempted to interfere with the free exercise of any electoral right. Mere bald and vague allegations without any basis would not be sufficient compliance of the requirement of making a concise statement of the "material facts" in the Election Petition. The material facts which are primary and basic facts have to be pleaded in support of the case set up by the Election petitioner to show his cause of action. Any omission of a single material fact would lead to an incomplete cause of action entitling the returned candidate to pray for dismissal of Election petition under Order VII Rule 11(a) of CPC read with Section 83(1)(a) of the RP Act. The said legal position has been well settled by this Court in Azhar Hussain v. Rajiv Gandhi, wherein this Court after referring to the earlier pronouncements in Samant N. Balkrishna v. George Fernandez and Shri Udhav Singh v. Madhav Rao Scindia, observed that the omission of a single material fact would lead to incomplete cause of action, and that an Election petition without the material facts is not an Election petition at all. It was further held that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act and an Election petition can be and must be dismissed, if it suffers from any such vice.
21. It is also pertinent to note at this juncture that a charge of "Corrupt practice" is easy to level but difficult to 61 prove because it is in the nature of criminal charge and has got to be proved beyond doubt. The standard of proof required for establishing a charge of "Corrupt practice" is the same as is applicable to a criminal charge. Therefore, Section 83(1)(b) mandates that when the allegation of "Corrupt practice" is made, the Election Petition shall set forth full particulars of the corrupt practice that the Election Petitioner alleges, including as full a statement as possible of the names of parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The pleadings with regard to the allegation of corrupt practice have to be precise, specific and unambiguous whether it is bribery or undue influence or other corrupt practices as stated in Section 123 of the Act. If it is corrupt practice in the nature of undue influence, the pleadings must state the full particulars with regard to the direct or indirect interference or attempt to interfere by the candidate, with the free exercise of any electoral right as stated in Section 123(2) of the Act. We are afraid, Mr. Gupta has failed to point out from the pleadings of the Election petition as to how the appellant had interfered or attempted to interfere with the free exercise of any electoral right so as to constitute "undue influence" under Section 123(2) of the Act.
22. So far as the ground contained in clause (d) of Section 100(1) of the Act, with regard to improper acceptance of the nomination of the Appellant is concerned, there is not a single averment made in the Election Petition as to how the result of the election, in so 62 far as the appellant was concerned, was materially affected by improper acceptance of his nomination, so as to constitute a cause of action under Section 100(1)(d)(i) of the Act. Though it is true that the Election Petitioner is not required to state as to how corrupt practice had materially affected the result of the election, nonetheless it is mandatory to state when the clause (d)(i) of Section 100(1) is invoked as to how the result of election was materially affected by improper acceptance of the nomination form of the Appellant.
23. As transpiring from the Election Petition, the respondent no. 1 himself had not raised any objection in writing against the nomination filed by the Appellant, at the time of scrutiny made by the Returning Officer under Section 36 of the Act. According to him, he had raised oral objection with regard to the education qualification stated by the Appellant in the Affidavit in Form-26. If he could make oral objection, he could as well, have made objection in writing against the acceptance of nomination of the Appellant, and in that case the Returning Officer would have decided his objection under sub-section (2) of Section 36, after holding a summary inquiry. Even if it is accepted that he had raised an oral objection with regard to the educational qualification of the Appellant before the Returning Officer at the time of scrutiny, the respondent no. 1 has failed to make averment in the Election Petition as to how Appellant's nomination was liable to be rejected by the Returning Officer on the grounds mentioned in Section 36(2) of the Act, so as to make his case fall under clause (d)(i) of Section 100(1) that there was improper 63 acceptance of the nomination of the Appellant. The non- mentioning of the particulars as to how such improper acceptance of nomination had materially affected the result of the election, is apparent on the face of the Election Petition.
24. As stated earlier, in Election Petition, the pleadings have to be precise, specific and unambiguous. If the allegations contained in Election Petition do not set out grounds as contemplated in Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, the Election Petition is liable to be rejected under Order VII, Rule 11 of CPC. An omission of a single material fact leading to an incomplete cause of action or omission to contain a concise statement of material facts on which the Election petitioner relies for establishing a cause of action, would entail rejection of Election Petition under Order VII Rule 11 read with Section 83 and 87 of the RP Act."
43. Recently, the High Court of Manipur in the case of LIEISHIYO KEISHING vs AWUNG SHIMRAY HOPINGSON AND OTHERS reported in 2023 SCC Online Mani 287 at Paragraphs 24 to 37, 39,40,43,45 and 46 held that, "24. On a combined reading of Sections 81, 83, 86 and 87 of the Act, it is apparent that those paragraphs of a petition which do not disclose any cause of action, are liable to be struck off under Order VI Rule 16, as the 64 Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. 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 on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI Rule 16 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for the filing of the written statement, instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the Court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII Rule
11.
25. Section 100 of the RP Act provides:
"100. Grounds for declaring election to be void.--
(1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat 65 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 or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
..........."
26. In Udhav Singh, supra, the Apex Court held:
"41. Like the Code of Civil Procedure, this section also envisages a distinction between "material facts"
and "material particulars". Clause (a) of sub-section (1) corresponds to Order 6 Rule 2, while clause (b) is analogous to Order 6 Rules 4 and 6 of the Code. The distinction between "material facts" and "material particulars" is important because different consequences may flow from a deficiency of such 66 facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6 Rule 16 of the Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.
42. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In the context of a charge of corrupt practice, "material facts" would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election-petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are "material facts" which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).
43. "Particulars", on the other hand, are "the details of the case set up by the party". "Material particulars" within the contemplation of clause (b) of Section 83(1) would therefore mean all 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.
27. In Charan Lal Sahu, supra, the Apex Court held:67
"30. It is contended by Shri Shujatullah Khan who appears on behalf of the petitioners, that connivance and consent are one and the same thing and that, there is no legal distinction between the two concepts. In support of this contention, learned counsel relies upon the meaning of the word 'connivance' as given in Webster's Dictionary (Third Edition, Volume 1, p. 481); Random House Dictionary (p. 311); Black's Law Dictionary (p. 274); Words and Phrases (Permanent Edition, Volume 8-A, p.
173); and Corpus Juris Secundum (Volume 15-A, p.
567). The reliance on these dictionaries and texts cannot carry the point at issue any further. The relevant question for consideration for the decision of the issue is whether there is any pleading in the petition to the effect that the offence of undue influence was committed with the consent of the returned candidate. Admittedly, there is no pleading of consent. It is then no answer to say that the petitioners have pleaded connivance and, according to dictionaries, connivance means consent. The plea of consent is one thing : the fact that connivance means consent (assuming that it does) is quite another.
It is not open to a petitioner in an election petition to plead in terms of synonyms. In these petitions, pleadings have to be precise, specific and unambiguous so as to put the respondent on notice. The rule of pleadings that facts constituting the cause of action must be specifically pleaded is as fundamental as it is elementary. 'Connivance' may in certain situations amount to consent, which explains why the dictionaries give 'consent' as one of the meanings of the word 'connivance'. But it is not true to say that 'connivance' invariably and necessarily means or amounts to consent, that is to say, irrespective of the context of the given situation. The two cannot, therefore, be equated. Consent implies that parties are ad idem. Connivance does not necessarily imply that parties are of one mind. They may or may not be, depending upon the facts of the situation. That is why, in the absence of a pleading that the offence of undue influence was committed with the consent of the returned candidate, one of the main ingredients of Section 18(1)(a) remains unsatisfied."
28. In Azhar Hussain, supra, the Apex Court held:
"8. The argument is that inasmuch as Section 83(1) is not adverted to in Section 86 in the context of the provisions, non-compliance with which entails dismissal 68 of the election petition, it follows that non-compliance with the requirements of Section 83(1), even though mandatory, do not have lethal consequence of dismissal. Now it is not disputed that the Code of Civil Procedure (CPC) applies to the trial of an election petition by virtue of Section 87 of the Act [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 Civil Procedure Code, 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 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.]. Since CPC is applicable, the court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a) which read thus:
"Order 6, Rule 16 : Striking out pleadings.-The court may at any stage of the proceedings order to be struck out or amend 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 7, Rule 11 : Rejection of plaint.-The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;...."
9. The fact that Section 83 does not find a place in Section 86 of the Act does not mean that powers under the CPC cannot be exercised.
69
10. There is thus no substance in this point which is already concluded against the appellant in Hardwari Lal v. Kanwal Singh [(1972) 1 SCC 214 : AIR 1972 SC 515 :
(1972) 2 SCR 742] wherein this Court has in terms negatived this very plea in the context of the situation that material facts and particulars relating to the corrupt practice alleged by the election petitioner were not incorporated in the election petition as will be evident from the following passage extracted from the judgment of A.N. Ray, J. who spoke for the three-judge Bench :
(SCC p. 221, paras 22 and 23) "The allegations in para 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen of the charge of corrupt practice within the meaning of Section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.
Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of Section 81, or Section 82 or Section 117 of the Act. It was emphasized that Section 83 did not find place in Section 86. Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code, 1908 to the trial of the suits. A suit which does not furnish cause of action can be dismissed."
11.........
12. Learned counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In 70 substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matter pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. So long as the sword of Damocles of the election petition remains hanging an elected member of the legislature would not feel sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected 71 representative of the concerned constituency. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in campaign to establish that he has in fact been duly elected. Instead of discharging his functions as the elected representative of the people, he will be engaged in a struggle to establish that he is indeed such a representative, notwithstanding the fact that he has in fact won the verdict and the confidence of the electorate at the polls. He will have not only to win the vote of the people but also to win the vote of the court in a long drawn out litigation before he can wholeheartedly engage himself in discharging the trust reposed in him by the electorate. The pendency of the election petition would also act as hindrance if he be entrusted with some public office in his elected capacity. He may even have occasion to deal with the representatives of foreign powers who may wonder whether he will eventually succeed and hesitate to deal with him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom. Even if he is made of stern mettle, the constraint introduced by the pendency of an election petition may have some impact on his subconscious mind without his ever being or becoming aware of it. Under the circumstances, there is greater reason why in a democratic set-up, in regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the nation, the controversy is set at rest at the earliest, if the facts of the case and the law so warrant. Since the court has the power to act at the threshold the power must be exercised at the threshold itself in case the court is satisfied that it is a fit case for the exercise of such power and that exercise of such powers is warranted under the relevant provisions of law. To wind up the dialogue, to contend that the powers to dismiss or reject an election petition or pass appropriate orders should not be exercised except at the stage of final judgment after recording the evidence even if the facts of the case warrant exercise of such powers, at the threshold, is to contend that the legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as nonexistent. The court cannot accede to such a proposition. The submission urged by the learned counsel for the petitioner in this behalf must therefore be firmly repelled."
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29. In Dhartipakar Madan Lal Agarwal, supra, the Apex Court held:
"8. The first question which falls for our determination is whether the High Court had jurisdiction to strike out pleadings under Order VI Rule 16 of the Code of Civil Procedure and to reject the election petition under Order VII Rule 11 of the Code at the preliminary stage even though no written statement had been filed by the respondent. Section 80 provides that no election is to be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act before the High Court. Section 81 provides that an election petition may be presented on one or more of the grounds specified in Section 100 by an elector or by a candidate questioning the election of a returned candidate. Section 83 provides that an election petition shall contain a concise statement of material facts on which the petitioner relies and he shall set forth full particulars of any corrupt practice that he may allege including full statement 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. Section 86 confers power on the High Court to dismiss an election petition which does not comply with the provisions of Sections 81 and 82 or Section 117. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the 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 to the trial of suits under the Civil Procedure Code, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, Order VI Rule 16 and Order VI Rule 17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. On a combined reading of Sections 81, 83, 86 and 87 of the Act, it is apparent that those paragraphs of a petition which do not disclose any cause of action, are liable to be struck off under Order VI Rule 16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. 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 on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI Rule 16 73 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for the filing of the written statement, instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the Court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII Rule 11."
30. In V.S. Achuthanandan, supra, the Apex Court held 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.
31. The learned counsel for the first respondent argued that the averments made in the election petition are completely vague and lacks material particulars and in clear violation of Sections 81 and 83 of the RP Act and, thus, no trial or enquiry is permissible on the basis of such vague, indefinite and imprecise averments. The learned counsel also submitted that the election petition does not contain a concise statement of material fact on which the election petitioner relied and does not disclose a triable issue or cause of action. That apart, the allegations contained in the election petition do not meet out the basic requirement, which could constitute cause of action as required by law.
74
32. In Jaipal Singh v. Sumitra Mahajan, (2004) 4 SCC 522, the Hon'ble Supreme Court held:
"2. The appellant was a member of the Indian Administrative Service having 40 years' service to his credit and who was 59 1/2 years old. By letter dated 13-3-2002, he sought voluntary retirement under Rule 16(2) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as "the 1958 Rules") with immediate effect. The appellant was registered as an elector at 535, Halqa No. 62, Mujeggar Plot No. 9-A, Sector 6, Faridabad in the State of Haryana and eligible to contest election to the Rajya Sabha, in which two vacancies had occurred which were to be filled from the State of Haryana. A notification was issued to fill up the two vacancies under which the last date of filing the nomination papers was 14-3-2002, the date of scrutiny was 15-3- 2002, last date of withdrawal was 18-3-2002 and the date of polling was 27-3-2002. The appellant sought voluntary retirement from service as he wanted to contest the election to the Rajya Sabha. On 15-3- 2002, the Returning Officer rejected the nomination papers of the appellant on the ground that Rule 16 of the 1958 Rules warranted giving three months' previous notice to the appointing authority and since the said period had not elapsed on the date of scrutiny the appellant was holding the office of profit on that day and, therefore, stood disqualified under Article 102(1)(c) of the Constitution. On 18-3-2002, election results were announced, since there was no contest after rejection of the nomination papers submitted by the appellant. Aggrieved, the appellant filed Election Petition No. 27 of 2002 in the High Court on the ground that his nomination papers had been wrongly rejected by the Returning Officer. In the election petition, he stated that on completion of 40 years of service and on attaining the age of 59 1/2 years, he was eligible to seek voluntary retirement under the 1958 Rules; that he had applied for the same through proper channel on 13-3-2002; that he had also made a request to the appointing authority to waive notice period of three months for seeking voluntary retirement; that he had relinquished the charge on 13- 3-2002; and consequently, he was not holding office of profit with the Government on that day and, therefore, 75 he was eligible to seek election to the Rajya Sabha. In the election petition, the appellant further pleaded that his request was duly received by the Government of India, Ministry of Personnel, appointing authority and also by the Government of Haryana at Chandigarh. He further averred that he sought voluntary retirement on account of illness of his wife and after resigning voluntarily from his post, he had filed nomination papers. He further averred that on the date of the scrutiny, he was present when he brought to the notice of the Returning Officer the factum of his voluntary retirement but the Returning Officer disregarded the provisions of the 1958 Rules as also the provisions of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960 (hereinafter referred to as "the 1960 Rules") as also the Fundamental Rules, 1922. In the election petition, the appellant had alleged that the action of the Returning Officer in rejecting his nomination papers was not justified as the appointing authority has the power under the 1960 Rules to relax the condition and to waive the notice period of three months in the case of an employee who seeks voluntary retirement. He further stated that since his nomination papers were rejected, there was no contest and results were declared on 18-3-2002 when the respondents were declared as members of the Rajya Sabha from the State of Haryana. In the light of the above allegations, the appellant challenged the elections of the respondents on the ground of improper rejection of his nomination papers. The election petition was scrutinized by the Registry of the High Court, which was found to have been filed within the period of limitation, and accordingly it was numbered and notices were issued to the respondents who appeared before the High Court on 31-7-2002 through their counsel. A joint written statement was filed by the respondents controverting the averments made by the appellant. A preliminary objection was raised to the effect that the averments contained in the election petition were vague and lacked material facts and particulars, as such, the said petition was liable to be dismissed. In the written statement, the respondent submitted that the petition was liable to be dismissed as the appellant had not disclosed a material fact as to on which date he had received communication regarding acceptance of his application for voluntary 76 retirement. On merits also, the respondents denied various averments made by the appellant.
3. On the above pleadings, a preliminary issue was framed by the High Court - as to whether the petition lacked in material facts and did not disclose cause of action. By the impugned judgment, the High Court held that Section 83(1)(a) of the said Act mandates that an election petition shall contain a concise statement of material facts on which the petitioner relies; that in the present case, the appellant had failed to aver and plead two material facts viz. that his application for voluntary retirement was accepted by the appointing authority before the date of scrutiny and that his request for waiver of the notice period of three months was actually accepted. In the absence of disclosure of the above facts, the High Court dismissed the election petition.
4....
5....
6....
7. Section 83 deals with contents of petition. It states that an election petition shall contain a concise statement of material facts, on which the petitioner relies and shall state full particulars of any corrupt practices which the petitioner alleges and which shall be signed by him and verified in the manner laid down in the Code of Civil Procedure. In the case of Sopan Sukhdeo Sable v. Asstt. Charity Commr. [(2004) 3 SCC 137 : (2004) 2 Scale 82] it has been held that Order 6 Rule 2(1) CPC deals with basic rule of pleadings and declares that the pleading has to state material facts and not the evidence; that there is a distinction between "material facts" and "particulars" and the words "material facts" show that the facts necessary to formulate a complete cause of action must be stated. Omission of single material 77 fact leads to an incomplete cause of action and consequently, the plaint becomes bad. The distinction between "material facts" and "particulars" was brought by Scott, L.J. in Bruce v. Odhams Press Ltd. [[1936] 1 K.B. 697 : [1936] 1 All ER 287 (CA)] in the following passage : (All ER p. 294) "The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology and in the new is liable to be 'struck out' under RSC Order 25 Rule 4 (see Philipps v. Philipps [[L.R.] 4 Q.B.D. 127 : 48 LJQB 135 : 39 LT 556 (CA)]); or 'a further and better statement of claim' may be ordered under Rule 7.
The function of 'particulars' under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial."
8....
9. As to what is the material fact has to be decided in the present case, in the context of the election petition under the said Act. An election petition is a matter of statutory right. In the petition, the key issue was whether the appellant held an office of profit on the date of scrutiny. For that purpose, the appellant ought to have stated that on 13-3-2002 he had requested for waiver of the notice period; that the appointing authority had received the notice on the specified date and that his request for waiver stood 78 granted on the date of scrutiny and he ceased to be a government servant. These were the material facts which the appellant should have pleaded so that the returned candidates would not be taken by surprise. They were material facts within his knowledge and ought to have been pleaded in the election petition. Lastly, even the letter of the appellant seeking the waiver of the notice period did not form part of the election petition. Hence, the High Court was right in dismissing the election petition for want of material facts."
33. The learned counsel for the election petitioner submitted that election petition cannot be rejected without trial. The learned counsel for the election petitioner contends that election petition cannot be rejected if it disclose a cause of action. The further submission of the learned counsel for the election petitioner is that petition under Order 7, Rule 11 CPC must be considered within the four corners of the election petition. In support, the learned counsel placed reliance upon the order of this Court dated 5.7.2023 passed in MC (El. Pet.) No. 66 of 2022 in El. Pet. No. 34 of 2022.
34. There is no dispute that the application under Order 7, Rule 11 CPC must be considered within the four corners of the election petition.
35. In Swami Atmananda v. Sri. Ramakrishna Tapovanam, (2005) 10 SCC 51, the Hon'ble Supreme Court held:
"24. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the 79 actual infringement of the right sued on but includes all the material facts on which it is founded."
36. In Hari Shankar Jain v. Sonia Gandhi, (2001) 8 SCC 233, the Hon'ble Supreme Court held:
"23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Civil Procedure Code, 1908. The expression "cause of action" has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Fernandez [(1969) 3 SCC 238 :
(1969) 3 SCR 603], JitendraBahadur Singh v. Krishna Behari [(1969) 2 SCC 433].) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis [(1999) 3 SCC 737] this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.
24. It is the duty of the court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a court to reject a plaint on the ground that it 80 does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings. ...... ....
33. Without further burdening this judgment by dealing with each and every other averment made in the two election petitions, it would suffice to say that we have carefully read each of the two election petitions and heard each of the two election petitioners (appellants) in very many details especially on the aspect of the election petitions suffering from the vice of not satisfying the mandatory requirement of pleading material facts as required by Section 82(1)(a) of RPA, 1951 and we are satisfied that the two election petitions do not satisfy the requirement statutorily enacted and judicially explained in umpteen number of decisions. The petitions are hopelessly vague and completely bald in the allegations made, most of which could not possibly be within the personal knowledge of the petitioners but still verified as "true" to their knowledge, without indicating the source. Such pleadings cannot amount to disclosing any cause of action and are required to be rejected/dismissed under Order 7 Rule 11 CPC.
34. To sum up, we are of the opinion that a plea that a returned candidate is not a citizen of India and hence not qualified, or is disqualified for being a candidate in the election can be raised in an election petition before the High Court in spite of the returned candidate holding a certificate of citizenship by registration under Section 5(1)(c) of the Citizenship Act. A plea as to constitutional validity of any law can, in appropriate cases, as dealt with hereinabove, also be raised and heard in an election petition where it is necessary to decide the election dispute. The view of the law, stated by the learned designated Election Judge of the High Court of Allahabad cannot be sustained. To say the least, the proposition has been very widely stated in the impugned order of the High Court. However, in spite of answering these questions in favour of the appellants yet the election petitions filed by them cannot be directed to be heard and tried on merits as the bald and vague averments made in the election petitions do not satisfy the requirement of pleading material facts within the meaning of Section 82(1)(a) of RPA, 1951 read with the requirements of Order 7 Rule 11 81 CPC. The decision of the High Court dismissing the two election petitions at the preliminary stage, is sustained though for reasons somewhat different from those assigned by the High Court. The appeals are dismissed but without any order as to the costs."
37. In Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310, the Hon'ble Supreme Court held:
"61. The legal position has been crystallized by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts" which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act.
62. When we apply the aforementioned test to the election petition in this case, then the conclusion becomes irresistible that the election petition lacks the materials facts. The election petition read as a whole does not disclose any cause of action.
63. Considering the facts and circumstances of this case and principles applicable to the election petition, this appeal deserves to be allowed and we accordingly allow this appeal. Consequently, the election petition stands dismissed. In the facts and circumstances of this case, we direct the parties to bear their own costs."
***
39. The Apex Court in the case of T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467, held that while considering an application under Order 7, Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words:
"5. ..... The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it 82 is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing. ...."
40. On overall reading of the election petition, this Court is of the view that the election petition lacks material fact constituting the cause of action required under the RP Act and does not fulfill the mandatory requirement of law. Further, the election petition does not contain a concise statement of material fact and also does not disclose a triable issue or cause of action. As held by the Hon'ble Supreme Court, a cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded.
43. Prima facie, the contention and the allegation of the election petitioner is based on assumption and imagination and the same cannot be the basis of challenging the election of the first respondent. Mere alleging without any material facts which the election petitioner relies his allegation is the abuse of the process of law and wasting the valuable time of this Court.
83
45. In the light of the aforesaid pronouncement, there is no escape from the conclusion that the election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the CPC. So also it emerges from the aforesaid pronouncement that appropriate orders in exercise of powers under the CPC can be passed if the mandatory requirements enjoined by Section 83 of the RP Act to incorporate the material facts in the election petition are not complied with.
46. Since the election petitioner has not complied with the provisions of the RP Act, the election petition deserves to be dismissed by invoking the provisions of Order 7, Rule 11 CPC on the ground of nondisclosure of cause of action."
44. Applying the aforementioned principles to the case on hand, there are three grounds urged by the petitioner to set- aside the election of the respondent No.1. The grounds are narrated at paragraph 14 of the petition, which reads as under:
(1) Distribution of dinner sets and kitchen utensils as an inducement to electors to vote for respondent No.1.
(2) Distribution of prepaid cards as an inducement to electors to vote for respondent No.1.
(3) False declaration about Assets and Liabilities at Serial No.7 and 8 of Form No.26-Affidavit.84
45. In order to substantiate the ground relating to the distribution of dinner sets and kitchen utensils as an inducement to electors to vote for the respondent No.1, the petitioner has referred to paragraphs 17 to 38 particularly, mentioning about the registration of Crime No.68/2023, Crime No.72/2023, Crime No.78/2023, Crime No.83/2023 and Crime No.103/2023. It is the case of the petitioner that the respondent No.1 has consented for distribution of dinner sets and kitchen utensils to lure the voters and on the other hand, it is the case of the respondent No.1 that the said criminal case was filed against some of the accused persons and same are not related to involvement of the respondent No.1 and that apart, the F.I.Rs were registered prior to issuance of the Notification dated 13th April, 2023 by the Election Commission of India.
46. In Crime No.68/2023, complaint dated 06th May, 2023 was lodged by one Kempaiah T.K., Flying Squad Team Officer alleging that some of the voters were carried in two buses bearing registration No.KA-51-AA-3777 and NL-07-B-0925 at Tontada Siddalingeshwara Temple, Kaggere. In the said proceedings, Police have filed charge-sheet against accused No.4-Harsha B.G., accused No.5-Shivaprasad, accused No.8- 85 Harsha Prasad S., accused No.9-Mahesh N., accused No.10- Ningaraju, accused No.11-Devaraju however, the final report would indicate that the proceedings were dropped against the respondent No.1 (accused No.1), Rajesh (accused No.2), Pradeep (accused No.3) and Kempiregowda (accused No.6) and as such, it is evident that, there is no allegation against the respondent No.1.
47. In Crime No.72/2023, the complaint dated 14th March, 2023 is filed by one Govindaraju-Deputy Tahsildar before the Kunigal Police Station. In the said criminal proceedings, 'B' report is filed by the jurisdictional Police after conducting investigation. Respondent No.1 is not accused in the said proceedings. The relevant portion of report of the investigation made by the Investigating Officer reads as under:
"¢£ÁAPÀ:05-07-2023 gÀAzÀÄ ¥ÀæPÀgÀtzÀ vÀ¤SÉAiÀÄ£ÀÄß ªÀÄÄAzÀĪÀgɹ ¸ÀzÀj ¥ÀæPÀgÀtzÀ°è ¦AiÀiÁðzÀ gÀªÀgÀÄ zÀÆgÀÄ ¤ÃqÀĪÀ ¸ÀAzsÀ¨ÀsðzÀ°è 1) 2023 £Éà ¸À°£À ¸ÁªÀðwæPÀ «zsÀ£À ¸À¨sÁ ZÀÄ£ÁªÀuÉAiÀÄ ¤Ãw ¸ÀA»vÉ eÁjAiÀÄ°ègÀĪÀÅ¢®è ªÀÄvÀÄÛ ¸ÀzÀj ¸ÀªÀÄAiÀÄzÀ°è PÀÄtÂUÀ¯ï «zsÁ£À ¸À¨Ás PÉëÃvÀæzÀ C¨sÀåxÀðUÀ¼ÀÄ AiÀiÁgÉA§ÄzÀÄ RavÀªÁVgÀĪÀÅ¢®è. 2) ¸ÀzÀj ¥ÀæPÀgÀtzÀ°è DgÉÆæ £ÀAeÉñï gÀªÀgÀÄ vÀªÀÄä ¸Àé EZÁÑ ºÉýPÀAiÀÄ°è PÀÄtÂUÀ¯ï «zsÁ£À ¸À¨Ás PÉëÃvÀæzÀ PÁAUÉæÃ¸ï ±Á¸ÀPÀgÁzÀ qÁ|| ºÉZï.r. gÀAUÀ£Áxï gÀªÀgÀ C©üªÀiÁ¤AiÀiÁVgÀÄvÉÛãÉ. EzÉà wAUÀ¼ÀÄ AiÀÄÄUÁ¢ ºÀ§â EzÀÄÝzÀÝjAzÀ £Á£ÀÄ ¢£ÁAPÀ: 14-03-2023 gÀAzÀÄ gÁd¸ÁÜ£ÀzÀ ¥sÁåPÀÖj¬ÄAzÀ £ÉÃgÀªÁV r£Àßgï ¸ÉmïUÀ¼À£ÀÄß vÀj¹ PÀÄtÂUÀ¯ï «zsÁ£À ¸À¨Ás PÉëÃvÀæzÀ d£ÀjUÉ qÁ|| ºÉZï.r. gÀAUÀ£Áxï 86 gÀªÀgÀ ºÉ¸Àj£À°è ºÀAZÀ¨ÉÃPÉA§ GzÉÝñÀ¢AzÀ 1068 qÀ£Àßgï ¸ÉmïUÀ¼À£ÀÄß HR-47-C-
5135 £Éà PÀAmÉãÀgï ¯ÁjAiÀÄ°è vÀj¹gÀÄvÉÛãÉAiÉÄà «£ÀB AiÀĪÀÅzÉà ZÀÄ£ÁªÀuÁ »£É߯ÉAiÀÄ°è vÀj¹gÀĪÀÅ¢®èªÉAzÀÄ w½¹gÀÄvÁÛgÉ."
48. In Crime No.78/2023, 'B' report is filed by the jurisdictional Police after investigation, holding that the respondent No.1 has not involved in the allegation made by the complainant in the complaint. The report of the investigation reveals that the respondent No.1 has not involved in the said allegation and that apart, the said complaint was lodged by one Reddy Shivananda Sidda (Government Official - Non-Gazetted) on 18th March, 2023. The Criminal case was launched against the accused was prior to issuance of Notification dated 13th April, 2023.
49. In Crime No.83/2023 also 'B' report is filed by the jurisdictional Police after investigation, holding that the respondent No.1 has not involved in the allegation made by the complainant in the complaint. The report of the investigation reveals that the respondent No.1 has not involved in the said allegation and that apart, the said complaint was lodged by one Yamanura-Village Accountant on 19th March, 2023. The Criminal case was launched against the accused was prior to issuance of 87 Notification dated 13th April, 2023. The report of the Investigating Officer reads as under:
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50. In Crime No.103/2023, the complaint was registered on 01st April, 2023 by one Mudukaiah Vastrada - Election Flying Squad Team Officer. The complaint would indicate that the Police have identified two persons, who are distributing the dinners sets at Naganahalli Village, Kunigal Taluk and Police 88 have arrested Mylaraiah and Manja. The respondent No.1 stated that these two persons were strangers and are not known to the respondent No.1. The perusal of the complaint would indicate that, only the aforementioned two persons were indulging in distributing the dinners sets, however, the respondent No.1 at the relevant point of time is not present at the spot, so also, the accused persons have not mentioned the name of the respondent No.1 during the investigation that the said distribution of dinners sets was made at the instance of the respondent No.1.
51. In the aforementioned criminal cases, final report is filed and it is evident that the respondent No.1 has not indulged in corrupt practices to distribute the dinner sets and kitchen utensils and therefore, these materials are not basis to arrive at a conclusion that the respondent No.1 had indulged in corrupt practices as alleged by the petitioner and that apart, except Crime No.68/2023 before the Amruthur Police Station, other cases mentioned above, were registered much before the issuance of the election Notification dated 13th April, 2023. It is also forthcoming that, at paragraph 30 of the Election Petition, the petitioner admits the incidents of distribution of dinners sets 89 and kitchen utensils as per paragraph 14 are prior to the issuance of Notification of Election for 16th Karnataka Legislative Assembly and therefore, the allegation made against the respondent No.1 is devoid of merits.
52. Nextly, the allegation made by the petitioner against the respondent No.1 that the respondent No.1 and his agents have induced the electors by distributing prepaid cards and as such, the petitioner has narrated the circumstances at paragraph 42 to 72 stating that the respondent No.1 and his agents had distributed the prepaid cards containing QR code on the corner of the card and the photographs of leaders of INC namely, Sri. Mallikarjuna Karge, president of INC; Sri. Siddaramaiah, Chief Minster of Karnataka; Sri. D.K. Shivakumar, president of KPCC; and B.Z. Zameer Ahamed Khan. It is also pleaded that there are two types of cards appeared like smart card as well as a voucher. Perusal of the averments made at paragraph 47 to 55, though allegation is made that the respondent No.1 and his agents have distributed the said cards, except naming few voters who have alleged to have informed the petitioner, there is no particulars regarding whether the respondent No.1 has consented for distribution of prepaid cards and the involvement 90 of his agents in distribution of the same. Moreover, paragraphs 53 and 54 would indicate that the persons named therein, had informed that the said prepaid cards were not redeemed in the super market referred to in the petition and the petitioner himself has stated at paragraph 54 that the said card does not contain any money and it is a 'dummy' card with just a sign of QR code and same cannot be used. The said aspect would makes it clear that no transfer of money through this cards nor said cards were induced for securing votes and therefore the entire allegation relating to distribution of prepaid cards is baseless, vexatious and same cannot be a ground to nullify the election of the respondent No.1. It is also to be noted that, as stated at paragraph 51 of the petition, these aspects have been made known to the petitioner after the polling date i.e., on 11th May, 2023 and therefore allegation made in this regard cannot be accepted.
53. Insofar as third limb of the arguments advanced by learned counsel appearing for the parties with regard to filing of false declaration about Assets and Liabilities at Sl. No.7 and 8 of Form No.26-Affidavit, it is contended by the learned counsel appearing for the respondent No.1 by referring to the page 91 No.132 of the petition, wherein, Rs.6,61,275/- was availed as loan from Sri. D.K. Shivakumar by the petitioner. It is also stated by Sri. Shivacharan, learned counsel appearing for the respondent No.1 that the respondent No.1 and the D.K. Shivakumar were the Board of Trustees of B.T.L. Education Trust for Rural Development, wherein, Rs.25,00,000/- was given to the said Trust by Sri. D.K. Shivakumar into the account of the Trust and same is reflected in the Bank statement of said Sri. D.K. Shivakumar. He also contended that, Sl. No.7 and 8 in Form No.26-Affidavit with regard to the amount received from Sri. D.K. Shivakumar and as such, submitted that the contentions raised by the petitioner with regard to filing of the declaration in Form No.26-Affidavit is incorrect. In this regard, learned Senior Counsel appearing for the petitioner contended that, as the said Sri. D.K. Shivakumar has contested for the Assembly Election from Kanakapura Constituency and in his Affidavit, it was stated that Rs.31,61,275/- has been paid to the respondent No.1 and not Rs.6,61,275/- as declared by the respondent No.1. In the backdrop of this aspect, I have perused the Affidavit in Form No.26 at Annexure-E and transactions referred to above, wherein, it is declared that the respondent 92 No.1 has received of Rs.6,61,275/-. In this regard, nothing is averred in the petition nor forthcoming from the documents produced by the petitioner as to whether any money that was paid by Sri. D.K. Shivakumar had in fact reflected in the account of the respondent No.1 as loan apart from transactions relating to aforementioned Trust. It is to be noted that the respondent No.1 has produced the Bank Statement of B.T.L. Education Trust for Rural Development, in which, Rs.25,00,000/- was credited to the account of the said Trust on 26th August, 2013 as per Annexure-R7, and therefore, the contention raised by the petitioner cannot be accepted. Hence, the respondent No.1 was justified in contending that the petition is devoid of cause of action. It is also to be noted that, aforementioned three grounds urged by the petitioner at paragraph 14 of the petition has been answered by the respondent No.1 to prove that the basic/essential facts have not been averred to prove during the Trial and therefore, arguments advanced by the learned Senior Counsel appearing for the petitioner cannot be accepted. It is also submitted by the learned counsel appearing for the respondent No.1 that the petitioner had contested the election for three times and on all the three elections, the petitioner lost 93 by considerable margin. Though the said contention was not countered by the learned Senior Counsel appearing for the petitioner, the same cannot be a basis to dismiss the petition as this Court has to look into averments made in the petition above and as such, on going through the entire averments made in the election petition, the factual aspects raised in the petition lacks merits as devoid of cause of action, since the petitioner fails to substantiate the facts through relevant essential material and as such, the contentions raised by the respondent No.1 is to be accepted.
54. It is also to be noted that, the petitioner has stated that the allegations made at paragraph 14 of the petition are with the consent of the respondent No.1 or his agents. On careful examination of averments made in the petition, though it is averred that there is consent of the respondent No.1 or his agents, nothing has been shown in the averments with regard to time, place and circumstances under which the consent of respondent No.1 or his agent was given to induce the voters to cast their vote in favour of the respondent No.1. The F.I.Rs are registered prior to the issuance of Election Notification for 16th Karnataka Legislative Assembly. There is no material that the 94 prepaid cards were used by the beneficiaries/voters and the petitioner himself at paragraph 54 admitted that the prepaid cards which the voters had received are 'dummy cards' with QR code and nothing is produced before this Court to establish that these cards were prepared at the instance of the respondent No.1 or his agents. Therefore, on this score alone the petitioner fails to establish a case of Trial. Accordingly, the grounds urged by the petitioner are of devoid of requirement under Section 123 of the ROP Act, 1951. It is pertinent to mention here that the petitioner has averred the particular facts only and not essential material facts which are primary or basic facts madatorily required to prove in the trial. It is also to be concluded that the averments made in the petition do not form cause of action to decide the lis between the parties and further, the facts narrated are not fully informative to conduct a full-fledged trial in the proceedings. Perusal of the petition goes to show that the pleadings with respect to the allegations at paragraph 14 of the election petition and subsequent paragraphs are casual and do not substantiate the grounds and as such, as the averments does not disclose the required details and same is not sufficient to bring home the allegation of corrupt practice in the present 95 case. Therefore, I am of the opinion that the petition is required to be rejected.
55. It is to be noted that, unless there is a specific averments and material evidence in support of the contention that such material of distribution of dinner sets, kitchen utensils and prepaid cards has been made by the respondent No.1 or his agents, it cannot be presumed that, such corrupt practice was adopted by the respondent No.1. It is well established principle of law that, in order to establish the corrupt practice in the election petition, it is the duty of the petitioner or anyone who challenges the election of the returned candidate must required to plead essential material statement of facts with full particulars of any corrupt practice with a full settlement of possible name of the parties who have committed such corrupt practice along with a date and place of commission of such practice. In the present case, the petitioner himself admits that the prepaid cards were dummy cards with sign of QR code and the said aspect itself is sufficient to hold that, no voter has been lured to make unjust gain by the respondent No.1 or his agents. It is evident from reading of the averments made in the petition that, a clever drafting has been made to create a illusion of cause of action 96 and same cannot be entertained within the purview of Order VII Rule 11 of the Code of Civil Procedure. On a combined reading of Sections 81, 83, 86 and 87 of the ROP Act 1951, it is apparent that those paragraphs of the petition particularly the grounds urged at paragraph 14 do not disclose any cause of action. Section 123 of the ROP Act, 1951 reads as under:
"Corrupt practices.--The following shall be deemed to be corrupt practices for the purposes of this Act:--
(1) "Bribery" that is to say--
(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing--
(a) a person to stand or not to stand as, or 4[to withdraw or not to withdraw] from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election, or as a reward to--
(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward--
(a) by a person for standing or not standing as, or for withdrawing or not withdrawing From being, a candidate; or
(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate 3[to withdraw or not to withdraw] his candidature.97
Explanation.--For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person 7 [with the consent of the candidate or his election agent], with the free exercise of any electoral right:
Provided that--
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause. (3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:98
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause. (3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.] (3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
Explanation.--For the purposes of this clause, "sati" and "glorification" in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987 (3 of 1988).
(4) The publication by a candidate or his agent or by any other person 4[with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, 5*** of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.
(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessle by a candidate or his agent or by any other person 4[with the consent of a candidate or his election agent] 6[or the use of such vehicle or vessel for the free conveyance] of any elector (other than the candidate himself the members of his family or his agent) to or from any polling station provided under section 25 or a place fixed under sub-section (1) of section 29 for the poll:
Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be 99 deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:
Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.
Explanation.--In this clause, the expression "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise. (6) The incurring or authorising of expenditure in contravention of section 77.
(7) The obtaining or procuring or a betting or attempting to obtain or procure by a candidate or his agent or, by any other person 1[with the consent of a candidate or his election agent], any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, 2[from any person whether or not in the service of the Government] and belonging to any of the following classes, namely:--
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officers other than village revenue officers known as lambardars malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and
(g) such other class of persons in the service of the Government as may be prescribed:
Provided that where any person, in the service of the Government and belonging to any of the classes 100 aforesaid, in the discharge or puported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election;]
(h) class of persons in the service of a local authority, university, government company or institution or concern or undertaking appointed or deputed by the Election Commission in connection with the conduct of elections.] (8) Booth capturing by a candidate or his agent or other person.
Explanation.--
(1) In this section the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. (2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate's election if he acts as an election agent 7*** of that candidate.
(3) For the proposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (including a person serving in connection with the administration of a Union territory) or of a State Government shall be conclusive proof--
(i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal 101 from service such person ceased to be in such service with effect from the said date.
(4) For the purposes of clause (8), "booth capturing"
shall have the same meaning as in section 135A."
56. Perusal of the language employed under Section 123 of the ROP Act 1951, discloses the type of a practice which shall be considered as a corrupt practice when the same is done by a candidate or his agent or any other person with the consent of the candidate or his agent.
57. I am also well conscious of the fact that the Election Petition can not be summarily rejected, if the averments in the petition are sufficient to conduct trial in the matter. However, Hon'ble Supreme Court in the case of SAMANT N. BALKRISHNA vs. GEORGE FERNANDIS reported in (1969) 3 SCC 338 held that the omission of single material fact would lead to an incomplete cause of action and that in Election Petition, in the absence of material fact relating to a corrupt practice, is not a Election petition. The said aspect was also considered by the Hon'ble Supreme Court in the case of UDHAV SINGH vs. MADAVARAO SINDIYA reported in (1977)1 SCC 511 that all the primary facts has to be reflected in the pleadings which must be proved by a party to establish a cause of action or his defence 102 or material facts. The basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be stated in the petition in order to succeed in the petition.
58. It is also pertinent to mention here that a particular fact is material or not is depend upon the nature of the allegation made in the petition under the circumstance of each case on merits Therefore, it is required for the petitioner in the present case to narrate the essential facts with complete cause of action to be pleaded and failure to plead even a single material fact is contrary to the requirement of Section 83(1)(a) of the ROP Act, 1951. It is also to be considered that the allegations of corrupt practice as narrated in the election petition are in the nature of criminal charges against the respondents and therefore, there should not be vagueness in making allegation so that, the respondents may know the case that they have to meet the allegations in the petition. The charge of corrupt practice being quasi-criminal in nature and as such, the Court has to insist on strict compliance with the provisions of law. Therefore, it is equally essential that the particulars of a charge of allegations are clearly and precisely stated in the 103 petition. The burden, is on the petitioner who challenges the election which has been concluded. It is also to be noted that the provision under Section 83(1)(a) of the ROP Act, 1951 requires that, while challenging the election of the returned candidate, the election petitioner should take extra care, leave no room for doubt while making any allegation of corrupt practice indulged in by the successful candidate [See (2014)10 SCC 547]. It is also pertinent to mention here that the respondent No.1 had succeeded in the election by a margin of nearly 26,000 votes, has got the support of majority of the voters who cast their vote in his favour. The success gained by the respondent No.1 in a General Assembly Election cannot be allowed to be called in question by unsuccessful candidate by making frivolous or baseless allegations and thereby, no room for unnecessarily drag the respondent No.1 to the Court proceeding.
59. Having taken note of the submission made by learned counsel appearing for the parties and on careful examination of the averments made in the petition, in the present case, there is no cogent material except a bald allegation, as stated in three grounds urged in paragraph 14 of the petition are with the 104 consent of the respondent No.1 or his agents cannot be considered to come within the ambit of corrupt practice as enshrined in Section 123 of the ROP Act, 1951. Therefore, the application under Order VII Rule 11 of the Code of Civil Procedure as urged by the respondent No.1 makes it clear that the petitioner does not disclose any cause of action. The allegations are vague and general and the particulars of the corrupt practice are not specific and clear as stated in the pleadings, and therefore, the Trial of the election petition cannot proceed for want of cause of action. The scope of Order VII Rule 11 of the Code of Civil Procedure is to avoid roving enquiry and therefore, it is duty of the Court to scrutinize the pleadings in election petition relating to corrupt practice in a strict manner. It is settled principle by the Hon'ble Supreme Court in the aforementioned cases that the election petition must contain a concise statement of material facts in which the relief sought for by the petitioner and failure to state even a single material fact will entail the dismissal of the Election Petition.
60. At this juncture, it is relevant to cite the judgment of Honb'le Supreme Court in the case of RAMSEVAK YADAV vs. HUSSAIN KAMIL KIDWAI reported in (1964)6 SCR 238, 105 wherein it is held that the relief not founded in the pleadings should not be granted to the petitioner. It is also observed by the Hon'ble Supreme Court that, no party should be permitted to travel beyond the pleadings and the parties are bound to disclose all material facts in support of their case in the petition. On the other hand, it is to be stated that, pleadings ensure that each of the parties to the proceedings are aware about the issues that are likely to be raised as well as there must have an opportunity of placing the relevant evidence before the Court for its consideration. If the pleadings are short of material proposition of fact, then it is not permissible for a Court to frame an issue not arising on the pleadings urged by the parties as no evidence can be let in and in the absence of material facts in the petition on a particular issue [See (1994) Supp.2 SCC 46]. Applying the principles laid down by Hon'ble Supreme Court in the case of KANIMOZHI KARUNANIDI (supra), wherein Hon'ble Supreme Court has laid down the guidelines after discussing the entire gamet of case law relating to the application of Order VII Rule 11 of the Code of Civil Procedure in relation to election petition, I am of the view that the judgments referred to by the learned Senior Counsel appearing for the 106 petitioner are not applicable to the case on hand since the averments made in each of the election Petition have to be looked into based on allegations made thereunder coupled with the circumstances and the essential facts narrated to prove such allegations in a manner known to law. It is also to be noted that the cases referred to by the learned Senior Counsel appearing for the petitioner are considered in the light of the factual aspects and the material enclosed along with the election petition to establish the corrupt practices alleged against the returned candidate and further the cases referred to by the leaned Senior Counsel appearing for the petitioner are perused in the light of judgment in the case of KANIMOZHI KARUNANIDI (supra) . The Hon'ble Supreme Court has arrived at a conclusion that the unsuccessful candidate in the election must made out a case for trial and the entire gamet of law was discussed till the judgment of Hon'ble Supreme Court in the case of A. MANJU vs. PRAJWAL REVANNA @ PRAJAWAL R. AND OTHERS reported in (2022)3 SCC 269 and applying those principles to the facts narrated in the present petition and further taking into consideration the entire factual aspects on record as averred in the petition as well as the narration of the 107 essential facts in the averments thereunder, do not constitute a cause of action to conduct a trial in the case as the petition is devoid of cause of action. Therefore, the judgments referred to by the learned counsel appearing for the respondent No.1 are applicable to case on hand as the pleadings in the election petition is devoid of cause of action in terms of law declared by Hon'ble Supreme Court in the case of KARIM UDDIN BARBHUIYA vs. AMINUL HAQUE LASKER AND OTHERS reported in 2024 SSC OnLine SC 509 and as such, the points for determination referred to at paragraph 32 favours the respondent No.1 as the petitioner fails to fulfill the mandatory requirement under law.
61. On overall reading of the election petition, this Court is of the opinion that the petition lacks material fact constituting the cause of action as required under the provisions ROP Act, 1951 and does not fulfill the mandatory requirement of law. That apart, the election petition does not contained a concise statement of material fact and also does not disclose a triable issue or cause of action. The contentions and allegations of the petitioner is based on assumption and imagination and same cannot be a basis for challenging the election of the respondent 108 No.1. In the light of the aforesaid judgments rendered by the Hon'ble Supreme Court, there is no escape from the conclusion that the election petition can be summarily rejected as the election petition do not conform to Section 83 of the ROP Act, 1951. In the result, I pass the following:
ORDER Application IA.1 of 2024 filed under Order VII Rule 11 of the Civil Procedure Code by the respondent No.1 for rejection of the petition is allowed. Consequently, Election Petition is rejected.
No order as to costs.
Pending applications, if any, stands disposed of.
SD/-
JUDGE ARK