Allahabad High Court
Dharmendera Yadav vs Sanghmitra Maurya on 10 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 891
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD In Chamber. Reserved. Election Petition No. 14 of 2019 Dharmendra Yadav vs. Sanghmitra Maurya Hon'ble Ramesh Sinha, J.
Order on Civil Misc. Application Nos. 2 of 2019, 3 of 2019 and 4 of 2019.
1. In the present election petition filed under section 80, 80-A and 81 of the Representatives of Peoples Act, 1951 (hereinafter referred to as 'the Act of 1951') the election petitioner has challenged the election of sole respondent-Dr. Sanghmitra Maurya (hereinafter referred to 'the respondent') to the 17th Lok Sabha from 23 Parliamentary Constituency (Budaun) which was held on 23.4.2019. The petitioner has prayed for a declaration to the effect that the election of the respondent be set aside and be declared null and void.
2. The petition was entertained by this Court and notice was issued to the respondent calling for her reply and in response thereto the respondent entered appearance and has filed written statement and subsequently three applications were filed by her under Order-6 Rule 16 of the Code of Civil Procedure (Application No. 2 of 2019), under Order 7 Rule, 11 C.P.C. (Application No. 3 of 2019) and under section 86 (1) of the Representative of Peoples Act, 1951 (Application No. 4 of 2019) The petitioner filed reply to the said applications by way of objection and further the reply by the respondent to the objection of the petitioner.
3. All the aforesaid three applications filed on behalf of respondent-returned candidate praying for rejecting the election petition filed by the petitioner at this very stage are being heard and decided by this common order.
4. Sri Shashi Nandan, learned Senior Advocate assisted by Sri Chandan Sharma and Udayan Nandan, counsel for the respondent and Sri Ravikant, learned Senior Advocate assisted by Sri Shivam Yadav, counsel for the petitioner were heard at length on the said applications.
5. Brief facts of the case are that the petitioner on 4.4.2019 along with 24 other candidates including the returned candidate Dr. Sanghmitra Maurya filed his nomination as a candidate of 'Samajwadi Party' in the said Parliamentary Election. In view of Section 33, 33A, and 34 of the Act read with the provisions of Conduct of Election Rules, 1961 and as required for valid nomination, he has also appended the affidavit in Form 26 by disclosing all his civil and criminal antecedents for the said Parliamentary Constituency. The returned candidate has also filed her nomination as a candidate of B.J.P. on the last date, i.e., 4.4.2019. The scrutiny of the nomination paper was held on 5.4.2019 between 11 a.m. to 3 p.m. in the Office of Distrit Magistrate, Budaun/Returning Officer. The nomination paper of the election petitioner was found to be valid in all respects, therefore, the Returning Officer accepted his nomination. Out of 24 candidates, who have filed their nomination, only 9 nomination papers including that of the election petitioner and the returned candidate/respondent were accepted and the nomination of 16 other candidates were rejected by the District Magistrate/Returning Officer. On 23.5.2019 which was the date of counting and declaration of result, the returned candidate/respondent had won the Parliamentary Election from the said Parliamentary Constituency and obtained 5,11,352 votes whereas the election petitioner had obtained 1,92,898 votes. The election petitioner has challenged the election of the returned candidate/respondent on 7 grounds alleging that the election of the returned candidate/respondent is illegal and void due to improper acceptance of nomination papers which materially affected the result of the election and further the result of election so far it concerned with the returned candidate/respondent has been materially affected by non compliance of provisions of the Constitution of India, Representation of Peoples Act of 1951 and Conduct of Election Rules, 1961 and orders issued under the Act of 1951 and further the orders issued by the Election Commission of India exercising the power conferred by the Constitution. It has been further assailed on the ground that the result of the returned candidate/respondent is materially affected by counting of more 8,000/- excess votes on 23.5.2019. It has also been taken as a ground for declaring the election of the returned candidate/respondent by declaring illegal and void due to improper rejection of nomination of one Dinesh Kumar by the Returning Officer. The ground which has been taken for improper acceptance of the nomination of the returned candidate/respondent and the concise statement made in para-39 of the election petition is that the returned candidate/respondent in her affidavit dated 2.4.2019 appended with her nomination willfully and deliberately concealed her martial status as she is married with Dr. Naval Kishore and from their wedlock a male child, namely, Samarjaya Maurya has been born and the said non disclosure of the fact is contrary to the decision of the Apex Court and as well as instructions of Election Commission of India in respect of filing of affidavit and disclosing all civil and criminal antecedents and the Returning Officer has illegally accepted her nomination in violation of the provisions of Section 33A of the Act of 1951 as well as the guidelines and instructions contained in hand book for the Returning Officer of 2019. It has been further alleged that the father of the returned candidate/respondent, namely, Swami Prasad Maurya is a Cabinet Minister in the State of U.P. and under his influence, the Returning Officer illegally accepted the nomination of respondent-returned candidate. Thus, the election of the returned candidate/respondent be set aside and be declared as null and void by this Court.
6. The respondent has filed three applications one under Order 6, Rule 16 (a) & (b) of C.P.C. by which the respondent has prayed for striking of paragraphs 35, 36, 37, 38, 41, 43, 83, 84, 85 from the pleadings of the present election petition as the same has no relevance in the present election petition as they related to marital life of the returned candidate/respondent, further striking of paragraphs 44, 45, 46, 47, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, & 69 from the pleadings of the present election petition under Order 6, Rule 16 (a) & (b) of CPC as they relate to rejection of nomination paper of Sri Dinesh Kumar as he is neither a party to the present election petition nor any ground has been taken in the election petition regarding rejection of the nomination paper of Sri Dinesh Kumar. So far as application under section 86 (1) of the Act of 1951 filed by respondent is concerned, it has been prayed that the aforesaid election petition be dismissed for non compliance of the mandatory requirements of Section 81 (1), 81 (3) and 83 (i) (a) of the Act of 1951. The election petitioner has not made concise statement of material facts relating to ground of challenge on which the petitioner relies to challenge the election of the returned candidate/respondent. Moreover, the election petition relating to the rejection of the nomination paper of one Dinesh Kumar of Ambedkar Kranti Dal (unrecognized political party) by the Returning Officer is concerned, his nomination was rejected by the Returning Officer vide order dated 5.4.2019 for a valid reason as he has left several columns in the affidavit in Form 26 and as such the affidavit was found to be incomplete and his nomination was rightly rejected in the view of para-6.10 (X) and 5.1., 6.4 of Returning Officer's Hand book, 2019 issued by the Election Commission of India. It was further argued that the election petition relating to the ground of improper acceptance of nomination paper of returned candidate/respondent regarding the allegation of non disclosure of marital status along with assets and joint liability with her husband and the dependent in the nomination Form by the returned candidate/respondent, the election petitioner has not given all facts relating to its effect on the result of the election by accepting of nomination Form of the returned candidate/respondent. The election petition lacks concise statement of fact regarding material effect on the result of the election by improper acceptance of the nomination Form of the returned candidate/respondent. He further argued that the election relating to the ground of non compliance of the counting 8,000 votes and improper acceptance and counting of 2373 postal ballot papers. He has further argued that the election petitioner has not filed Form 17-C to allege the variation in number of votes polled and counting votes. The counting of votes, segment-wise as recorded in Form 20, Part-I match to the final result, Form-20 Part II and the same has no variation. There is no allegation of manipulation with the EVMs and the votes polled and recorded thereof. The election petitioner has not given the concise statement of facts as to how the result of election materially affected by 8000 excess votes and acceptance and counting of 2373 postal ballot papers while difference of winning margin of votes between the returned candidate and election petitioner is 18454. Thus, it has been argued that the election petition is liable to be dismissed for non compliance of requirements under section 81 (1), 81 (3) and 83 (i) (a) of the Act of 1951, hence the said application under section 86 (1) of the Act of 1951 is liable to be allowed and the election petition be dismissed.
7. The last application under Order 7, Rule 11 CPC which has been filed by the respondent on the ground for non disclosure of cause of action in view of Order 7, Rule 11 (a) (d) of CPC. In support of the said application, learned counsel for the respondent has argued that the Returning Officer has rightly rejected the nomination form of Sri Dinesh Kumar on 5.4.2019 on the ground of leaving blank columns in the fresh affidavit filed again by him which is apparently clear and established from the perusal of the fresh affidavit of Dinesh Kumar annexed as Schedule-13, therefore, there is no cause of action to try the election petition. It is further argued that so far as ground regarding improper acceptance of nomination form of respondent-returned candidate is concerned, the election petitioner has not disclosed in the election petition as to how the result of the election has been materially affected by the acceptance of nomination form of returned candidate-respondent and, therefore, there is no cause of action for trial of election petition and the same is also barred by Section 81 (1) read with Section 83 of Representation of Peoples Act, 1951. Lastly it was argued by learned counsel for the respondent in support of the said application that the election petitioner has also not disclosed how the cast votes including of 8000 votes and reception of 2373 postal ballot papers materially affect the result of the election when margin of votes is 18454, hence also there is no cause of action to try the election petition and the same is barred by Section 81 (1) and 83 of the Act of 1951. In support of his arguments he has placed reliance on several judgments of the Apex Court as well as this Court. In support of his submissions, he has placed reliance upon several judgments of the Apex Court. Learned counsel for the respondent-returned candidate has drawn the attention of the Court towards para-63 of the judgment of the Apex Court in the case of Lok Prahari vs. Union of India, AIR 2018 SC 1041 which is as under;
"63. We shall now deal with prayer no.2 57 which seeks a declaration that non-disclosure of assets and sources of income would amount to ''undue influence' - a corrupt practice under Section 123(2) of the RP Act of 1951. In this behalf, heavy reliance is placed by the petitioner on a judgment of this Court in Krishnamoorthy v. Sivakumar & Others, (2015) 3 SCC 467. It was a case arising under the Tamil Nadu Panchayats Act, 1994. A notification was issued by the State Election Commission stipulating that every candidate at an election to any Panchayat is required to disclose information inter alia whether the candidate was accused in any pending criminal case of any offence punishable with imprisonment for two years or more and in which charges have been framed or cognizance has been taken by a court of law. In an election petition, it was alleged that there were certain criminal cases pending falling in the abovementioned categories but the said information was not disclosed by the returned candidate at the time of filing his nomination. One of the questions before this Court was whether such non-disclosure amounted to ''undue influence' - a corrupt practice under the Panchayats Act. It Prayer No.2 - "declare that non disclosure of assets and sources of income of self, spouse and dependents by a candidate would amount to undue influence and thereby, corruption and as such election of such a candidate can be declared null and void under Section 100(1)(b) of the RP Act of 1951 in terms of the judgment reported in AIR 2015 SC 1921."
8. He has also drawn the attention of the Court towards para-29 of the judgment of the Apex Court in the case of Samant N. Balakrishna and others vs. George Fernandez and others, AIR 1969 SC 1201 regarding what is the 'material fact' and further the distinction between the 'material fact' and 'particulars of material fact'. The aforesaid paragraph is quoted hereinbelow:-
"Having dealt with the substantive law on the subject of election petitions we may now turn to the procedural provisions in the Representation of the People Act. Here we have to consider sections 81, 83 and 86 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or more of the grounds specified in sub- section (1) of S. 100 and S. 101. That as we have shown above creates the substantive right. Section 83* then provides that election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also setforth fun particulars of any corrupt practice that the Petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars 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. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a schedule. It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts,. the particulars being the further information to complete the picture. This distinction is brought out by the provisions of section 86 although the penalty of dismissal is taken away. Sub- section (5) of that section provides:
... Such a cause of action must be Alleged in the material facts before particulars may be given. One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice. They constitute different causes of action. "
9. He has further placed reliance on the judgment of the Apex Court reported in (2011) 7 SC 721 Nandiesha Reddy vs. Kavitha Mahesh and drawn the attention of the Court towards para-35 of the said judgment which is quoted hereinbelow:-
"35. We have considered the submission and the submission advanced by Mrs. Mahesh commend us. It is trite that if an Election Petitioner wants to put forth a plea that a nomination was improperly rejected to declare an election to be void it is necessary to set out the averments for making out the said ground. The reason given by the Returning Officer for refusal to accept the nomination and the facts necessary to show that the refusal was improper is required to be set out in the election petition. In the absence of the necessary averments it cannot be said that the election petition contains the material facts to make out a cause of action. "
10. Per contra, learned counsel for the petitioner has vehemently opposed the argument of learned counsel for the respondent and has submitted that the three applications which have been filed by the returned candidate/respondent are wholly misconceived and are liable to be rejected by this Court out rightly as the election petition discloses material facts and further a concise statement relied upon by the petitioner regarding the material fact as has been alleged in the election petition regarding improper acceptance of nomination of the respondent-returned candidate by the Returning Officer in spite of the fact that she concealed the material fact regarding her marital status which was necessary for her to disclose in the affidavit in Form 26. The non disclosure about the marital status in affidavit in Form 26 entail the rejection of a nomination paper but the Returning Officer illegally accepted the same. He pointed out that the election petitioner has supplied all the material facts relating to ground of improper acceptance of nomination paper of returned candidate in paras-1 to 24 and paras-26 to 69 of the election petition which includes allegation relating to status of marital life of the returned candidate-respondent and further improper rejection of nomination paper of one Dinesh Kumar. The applications which have been moved under Order 6 Rule 16 of CPC for striking of the paragraphs mentioned in the said application being frivolous, unnecessary and vexatious is not at all frivolous as none of the paragraphs of the election petition is unnecessary, frivolous and vexatious. The petitioner has supplied all material facts relating to Ground A-G which discloses complete cause of action and on the basis of the pleadings of paragraphs 1 to 91 issue can be framed against the respondent and she can be put to trial. It is further submitted that the pleadings of paragraph nos. 35, 36, 37, 38, 41, 43, 83, 84 and 85 relating to marital status of the returned candidate comes under ground nos. A and B which is covered by Section 33 (A) read with Section 100 (1) (d) (i) of the Act of 1951 and direction and orders issued by the Election Commission of India relating to filing of affidavit in Form 26 disclosing all criminal and civil antecedents mentioned in the said paragraphs are not liable to be struck off from the election petition under Order 6, Rule 16 (a) (b) of CPC. He further submitted that paragraph nos. 44, 46, 47, 55 to 69 of the election petition are related to improper rejection of nomination paper of one Dinesh Kumar wherein the election petitioner has supplied all material facts which constitutes complete cause of action and comes under the Purview of 100 (C) of Ac of 1951, therefore, these paragraphs are not irrelevant, unnecessary and frivolous, hence they are also not liable to be struck off under Order 6, Rule 16 (a) (b) of CPC. It was further asserted on behalf of the election petitioner that the election petitioner has complied with the provisions of Section 81, 82 and 117 of the Act of 1951 along with the provisions 83 (1) (a) of Act, 1951 supplying all the material facts relating to allegations and grounds mentioned in the election petition which are contained in paragraph nos. 1 to 91 of the election petition and prayed that the said application under section 81 (1) is liable to be rejected. Lastly, so far as application under Order 7 Rule 11 of CPC is concerned, it has been argued on behalf of the election petitioner that the material facts and particulars regarding the ground and counting of excess 8,000 votes and improper acceptance and counting of 2373 postal ballet papers, has been mentioned in paras-27, 70 to 85 apart from other paragraphs of the election petition, is not disputed. However, the pleadings regarding how the result of election is materially affected is also provided in paragraphs, 70 to 88 along with the pleadings of paragraphs 21, 22, 23 and 27 of the election petition, therefore, it cannot be said that no cause of action arises to try the election petition and the election petition is barred by Section 81 (1) and 83 of the Act of 1951. In support of his arguments, he has placed reliance several judgments of the Apex Court.
11. In support of his arguments, he has placed reliance on several judgments of the Apex Court. He has drawn the attention of the Court towards paras-14, 24, 45 and 27 of the judgment passed by the Apex Court in the case of H.D. Revanna vs. G. Puttaswamy Gowda, 1999 (2) SCC 217 which are reproduced hereunder:-
"14. The argument is no doubt attractive. But, the relevant provisions in the Act are very specific. Section 86 provides for dismissal of election petition in limine for non-compliance of Sections 81, 82 and 117. Section 81 relates to presentation of election petition. It is not the case of the appellant before us that the requirements of Section 81 were not complied with though in the High Court as contention was urged that a true copy of the election petition was not served on the appellant and thus the provisions of Section. 81 were not complied. Section 82 and 117 are not relevant in this case. Significantly Section 86 does not refer to Section 83 and non-compliance of Section 83 does not lead to dismissal under Section 86. This Court has laid down that non-compliance of Section 83 may lead to dismissal of the petition if the matter falls within the scope of O.6, R. 16 or O.7., R,11 C.P.C. Defect in verification of the election petition or the affidavit accompanying election petition has been held to be curable and not fatal.
24. In Raj Narain v. Smt. Indira Nehru Gandhi & Anr., [1972] 3 S.C.C. 850 the question was discussed in detail and it was held that pleadings need not be construed strictly, It is advantageous to extract the following passage :
"While a corrupt practice has got to be strictly proved but from that it does not follow that a pleading in an election proceeding should receive a strict construction. This Court has held that even a defective charge does not vitiate a criminal trial unless it is proved that the same has prejudiced the accused. If a pleading on a reasonable construction could sustain the action, the court should accept that construction. The courts are reluctant to frustrate an action on technical grounds. The charge of corrupt practice is a very serious charge. Purity of election is very essence of real democracy. The charge in question has been denied by the respon-dent. It has yet to be proved. It may or may not be proved. The allegations made by the appellant may ultimately be proved to be wholly devoid of truth. But the question is whether the appellant should be refused an opportunity to prove his allegations? Should the court refuse to enquire into those allegations merely because the appellant or someone who prepared his brief did not know the language of the law. We have no hesitation in answering those questions in the negative. The implications of the rule of law are manifold." (Para 16) .............................................
"19. Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of Chess. Provision of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it".
25. Applying the aforesaid rules in the present case the High Court has rightly observed in the judgment under appeal as follows : `Therefore, in my view, the averments made in Paragraphs 2 and 3 of the election petition read as a whole and in its entirety would clearly satisfy the requirement of Section 83(1) of the Act, in as much as the material facts, on which reliance was placed, for alleging the corrupt practice and other illegalities invalidating the election, to enable the respondent No. 1 meet the allegations made against him. In fact, having clearly understood the scope and ambit of the allegations made against him in the election petition, the respondent No. 11 has been able to file a recrimination petition filed along with the notice of recrimination submitted to the Court. Thus, there is no deficiency in the pleading of the corrupt practice under Section 123 of the Act and the other illegalities invalidating the election."
27. The test in all cases of preliminary objection is to see whether any of the reliefs prayed for could be granted to the petitioner if the averments made in the petition are proved to be true. If the answer to the question is in the affirmative, the maintainability of the petition has to be upheld. In the present case we have no doubt that if the allegations contained in the election petition are proved to be true by the petitioner therein, he will be entitled to get the relief set out in the prayer portion. Hence, we do not find any merit in the appeals and they are hereby dismissed with costs. Counsel's fee Rs. 5,000. (one set)
12. He has further drawn the attention of the Court towards paras-22, 23, and 24 of the judgment passed by the Apex Court in the case of Ashraf Kokkur vs. K.V. Abdul Kader & others, 2015 (1) SCC 129 which are reproduced hereunder:-
"22. After all, the inquiry under Order VII Rule 11(a) of CPC is only as to whether the facts as pleaded disclose a cause of action and not complete cause of action. The limited inquiry is only to see whether the petition should be thrown out at the threshold. In an election petition, the requirement under Section 83 of the RP Act is to provide a precise and concise statement of material facts. The expression ''material facts' plainly means facts pertaining to the subject matter and which are relied on by the election petitioner. If the party does not prove those facts, he fails at the trial (see Philipps v. Philipps and others[6] ; Mohan Rawale v. Damodar Tatyaba alias Dadasaheb and others[7]).
23. This Court in Azhar Hussain v. Rajiv Gandhi[8], at Paragraph-11, has held that:
"11. ... 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. ..." The charge levelled is that the respondent holds an office of profit as the Chairperson of the Kerala State Wakf Board and in that capacity he enjoys the profits attached to that office from the Government of Kerala.
24. In V.S. Achuthanandan v. P.J. Francis and another[9] , a three-Judge Bench of this Court has taken the view that only because full particulars are not given, an election petitioner is not to be thrown out at the threshold. To quote Paragraph-15:
"15. ... An election petition was not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out. It is, therefore, evident that material facts are such primary facts which must be proved at the trial by a party to establish existence of a cause of action. Whether in an election petition a particular fact is a material fact 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 in the light of the special circumstances of the case. .." Again at Paragraph-16 of V.S. Achuthanandan case (supra), it was held that:
"16. ... So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are generally more known than clearly understood. ..." "... the failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. ..." (Emphasis supplied)"
13. He has also drawn the attention of the Court towards para-7 of the judgment passed by the Apex Court in the case of G. Mallikarjunappa and another vs. Shamanur Shiva Shankarappa & others, 2001 (4) SC 428 which is reproduced hereunder:-
"7. An election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election petition does not comply with either the provisions of 'Section 81 or Section 82 or Section 117 of the R.P. Act'. The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Non-compliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly 'defective' affidavit, is required to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case."
14. He has placed before the Court paras-4, 5, 6 and 7 of the judgment passed by the Apex Court in the case of Ponnalal Lakshmaiah vs. Kmmuri Pratap Reddy and others 2012 (7) SCC 788 which are reproduced hereunder:-
"4. This Court has in Om Prakash Srivastava v. Union of India & Anr. (2006) 6 SCC 207 attempted an explanation of the expression in the following words:
"The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary, to prove each fact. comprises in "cause of action"."
5. It is equally well settled that while examining whether a plaint or an election petition discloses a cause of action, the Court has a full and comprehensive view of the pleading. Averments made in the plaint or petition cannot be read out of context or in isolation. They must be taken in totality for a true and proper understanding of the case set up by the plaintiff.
6. This Court has in Shri Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC 511 given a timely reminder of the principle in the following words:
"We are afraid, this ingenious method of construction after compartmentalisation, dissection, segregation and inversion of the language of the paragraph, suggested by Counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole."
7. Reference may also be made to the decision of this Court in Church of North India v. Lavajibhai Ratanjibhai and Ors. (2005) 10 SCC 760, wherein this Court reiterated that for purposes of determining whether the plaint discloses a cause of action, the Court must take into consideration the plaint as a whole. It is only if even after the plaint is read as a whole, that no cause of action is found discernible that the Court can exercise its power under Order VII Rule 11 of the CPC."
15. He has next drawn the attention of the Court towards paras-11, 12 and 13 of the judgment passed by the Apex Court in the case of Madiraju Venkata Ramana Raju vs. Peddireddigari Ramchandra Reddy & others, 2018 (14) SCC 1 which are reproduced hereunder:-
"11. Ordinarily, an application for rejection of election petition in limine, purportedly under Order VII Rule 11 for non-disclosure of cause of action, ought to proceed at the threshold. For, it has to be considered only on the basis of institutional defects in the election petition in reference to the grounds specified in clauses (a) to (f) of Rule 11. Indeed, non-disclosure of cause of action is covered by clause (a) therein. Concededly, Order VII of the CPC generally deals with the institution of a plaint. It delineates the requirements regarding the particulars to be contained in the plaint, relief to be specifically stated, for relief to be founded on separate grounds, procedure on admitting plaint, and includes return of plaint. The rejection of plaint follows the procedure on admitting plaint or even before admitting the same, if the court on presentation of the plaint is of the view that the same does not fulfill the statutory and institutional requirements referred to in clauses (a) to (f) of Rule 11. The power bestowed in the court in terms of Rule 11 may also be exercised by the court on a formal application moved by the defendant after being served with the summons to appear before the Court. Be that as it may, the application under Order VII Rule 11 deserves consideration at the threshold.
12. On the other hand, the application for striking out pleadings in terms of Order VI Rule 16 may be resorted to by the defendant(s)/respondent(s) at any stage of the proceedings, as is predicated in the said provision. The pleading(s) can be struck off by the Court on grounds specified in clauses (a) to (c) of Rule 16.
13. Indeed, if the defendant moves two separate applications at the same time, as in this case, it would be open to the court in a given case to consider both the applications together or independent of each other. If the court decides to hear the application under Order VII Rule 11 in the first instance, the court would be obliged to consider the plaint as filed as a whole. But if the court decides to proceed with the application under Order VI Rule 16 for striking out the pleadings before consideration of the application under Order VII Rule 11 for rejection of the plaint, on allowing the former application after striking out the relevant pleadings then the court must consider the remainder pleadings of the plaint in reference to the postulates of Order VII Rule 11, for determining whether the plaint (after striking out pleadings) deserves to be rejected in limine.
16. He has further drawn the attention of the Court towards paras-18, 19 and 20 of the judgment passed by the Apex Court in the case of Mairembam Prithviraj @ Prithviraj Singh vs. Pukhrem Sharatchandra Singh, 2017 (2) SCC 487 which are reproduced hereunder:-
"18. The contention of the Appellant that the declaration relating to his educational qualification in the affidavit is a clerical error cannot be accepted. It is not an error committed once. Since 2008, the Appellant was making the statement that he has an MBA degree. The information provided by him in the affidavit filed in Form 26 would amount to a false declaration. The said false declaration cannot be said to be a defect which is not substantial. He was given an opportunity by the Returning Officer to produce the relevant document in support of his declaration. At least at that point of time he should have informed the Returning Officer that an error crept into the declaration. He did not do so. The false declaration relating to his educational qualification cannot be stated to be not of a substantial character. It is no more res integra that every candidate has to disclose his educational qualification to subserve the right to information of the voter. Having made a false declaration relating to his educational qualification, the Appellant cannot be permitted to contend that the declaration is not of a substantial character. For the reasons stated supra, we uphold the findings recorded by the High Court that the false declaration relating to the educational qualification made by the Appellant is substantial in nature.
19. Having answered the first question against the Appellant, we proceed now to deal with the next point. Section 100 (1) (a) to (c) deals with disqualification, corrupt practices and improper rejection of nominations respectively which are grounds for setting aside the election. The sine qua non for setting aside an election under Section 100 (1) (d) is that the result of the election, in so far as it concerns a returned candidate, has been materially affected. The contention of Mr. Giri, learned Senior Counsel for the Appellant is that even if it is held that the nomination of the appellant was improperly accepted, his election cannot be set aside in the absence of any pleading or proof that the result was materially affected by the improper acceptance of the nomination. He relied upon Magani Lal Mandal v. Bishnu Deo Bhandari, reported in 2012 (3) SCC page 314 to contend that every defect cannot be a ground for setting aside an election under Section 100 (1) (d) without further proof that it had materially affected the result of the returned candidate. He also referred to Shambhu Prasad Sharma v. Charandas Mahant and Ors. reported in 2012 (11) SCC page 390 in which it was held as follows:
"20. Coming to the allegation that other candidates had also not submitted affidavits in proper format, rendering the acceptance of their nomination papers improper, we need to point out that the appellant was required to not only allege material facts relevant to such improper acceptance, but further assert that the election of the returned candidate had been materially affected by such acceptance. There is no such assertion in the election petition. Mere improper acceptance assuming that any such improper acceptance was supported by assertion of material facts by the appellant- petitioner, would not disclose a cause of action to call for trial of the election petition on merit unless the same is alleged to have materially affected the result of the returned candidate."
20. There is no dispute that an election cannot be set aside on the ground of improper acceptance of any nomination without a pleading and proof that the result of the returned candidate was materially affected. The point to be considered is whether the law as laid down by this Court relating to the pleading and proof of the fact of the result of the returned candidate being materially affected applies to a case where the nomination of the returned candidate is declared to have been improperly accepted. A situation similar to the facts of this case arose for consideration of this Court in Durai Muthuswami's case. It is necessary to deal with this case in detail as the Counsel for the Appellant submitted that the said judgment is not applicable to the facts of the present case and that finding in the said case have to be treated as obiter."
17. He has pressed before the Court strongly para-91 of the judgment passed by the Apex Court in the case of Krishnamoorthy vs. Shivakumar & others, 2015 (3) SCC 467 which is reproduced hereunder:-
"91. The purpose of referring to the instructions of the Election Commission is that the affidavit sworn by the candidate has to be put in public domain so that the electorate can know. If they know the half truth, as submits Mr. Salve, it is more dangerous, for the electorate are denied of the information which is within the special knowledge of the candidate. When something within special knowledge is not disclosed, it tantamounts to fraud, as has been held in S.P. Chengalvaraya Naidu (Dead) By LRs V. Jagannath (Dead) By LRs & Others[60]. While filing the nomination form, if the requisite information, as has been highlighted by us, relating to criminal antecedents, are not given, indubitably, there is an attempt to suppress, effort to misguide and keep the people in dark. This attempt undeniably and undisputedly is undue influence and, therefore, amounts to corrupt practice. It is necessary to clarify here that if a candidate gives all the particulars and despite that he secures the votes that will be an informed, advised and free exercise of right by the electorate. That is why there is a distinction between a disqualification and the corrupt practice. In an election petition, the election petitioner is required to assert about the cases in which the successful candidate is involved as per the rules and how there has been non- disclosure in the affidavit. Once that is established, it would amount to corrupt practice. We repeat at the cost of repetition, it has to be determined in an election petition by the Election Tribunal."
18. He has referred before the Court para-133 of the judgment passed by the Apex Court in the case of People's Union for Civil Liberties (PUCL) and ors. vs. Union of India (UOI) and ors. (2003) 4 SCC 399 which is reads as under:-
"133. Finally, the summary of my conclusions:
1. Securing information on the basic details concerning the candidates contesting for elections to the Parliament or State Legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1)(a). This right to information is, however, qualitatively different from the right to get information about public affairs or the right to receive information through the Press and electronic media, though, to a certain extent, there may be overlapping.
2. The right to vote at the elections to the House of people or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.
3. The directives given by this Court in Union of India Vs. Association for Democratic Reforms [(2002) 5 SCC 294] were intended to operate only till the law was made by the Legislature and in that sense 'pro tempore' in nature. Once legislation is made, the Court has to make an independent assessment in order to evaluate whether the items of information statutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced.
4. The Court has to take a holistic view and adopt a balanced approach in examining the legislation providing for right to information and laying down the parameters of that right.
5. Section 33B inserted by the Representation of People (3rd Amendment) Act, 2002 does not pass the test of constitutionality firstly for the reason that it imposes blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate.
6. The right to information provided for by the Parliament under Section 33A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, there is no good reason for excluding the pending cases in which cognizance has been taken by Court from the ambit of disclosure.
7. The provision made in Section 75A regarding declaration of assets and liabilities of the elected candidates to the Speaker or the Chairman of the House has failed to effectuate the right to information and the freedom of expression of the voters/citizens. Having accepted the need to insist on disclosure of assets and liabilities of the elected candidate together with those of spouse or dependent children, the Parliament ought to have made a provision for furnishing this information at the time of filing the nomination. Failure to do so has resulted in the violation of guarantee under Article 19(1)(a).
8. The failure to provide for disclosure of educational qualification does not, in practical terms, infringe the freedom of expression.
9. The Election Commission has to issue revised instructions to ensure implementation of Section 33A subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. The Election Commission's orders related to disclosure of assets and liabilities will still hold good and continue to be operative. However, direction No.4 of para 14 insofar as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information should not be enforced."
19. Lastly he has invited the attention of the Court towards para-38 of the judgment passed by the Apex Court in the case of Kisan Shankar Kathore vs. Arun Dattatray Sawant & ors. decided on May 9, 2014 which is reproduced hereunder:-
"38. When the information is given by a candidate in the affidavit filed along with the nomination paper and objections are raised thereto questioning the correctness of the information or alleging that there is non-disclosure of certain important information, it may not be possible for the returning officer at that time to conduct a detailed examination. Summary enquiry may not suffice. Present case is itself an example which loudly demonstrates this. At the same time, it would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the objector. In such a case, when ultimately it is proved that it was a case of non-disclosure and either the affidavit was false or it did not contain complete information leading to suppression, it can be held at that stage that the nomination was improperly accepted. Ms. Meenakshi Arora, learned senior counsel appearing for the Election Commission, right argued that such an enquiry can be only at a later stage and the appropriate stage would be in an election petition as in the instant case, when the election is challenged. The grounds stated in Section 36(2) are those which can be examined there and then and on that basis the Returning Officer would be in a position to reject the nomination. Likewise, where the blanks are left in an affidavit, nomination can be rejected there and then. In other cases where detailed enquiry is needed, it would depend upon the outcome thereof, in an election petition, as to whether the nomination was properly accepted or it was a case of improper acceptance. Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void. Otherwise, it would be an anomalous situation that even when criminal proceedings under Section 125A of the Act can be initiated and the selected candidate is criminally prosecuted and convicted, but the result of his election cannot be questioned. This cannot be countenanced."
20. Considered the rival submissions advanced by learned counsel for the parties and perused the three applications filed by learned counsel for the respondents and the material brought on record.
21. From the pleadings as have been made in the present election petition, it appears that the election petitioner has challenged the election of the returned candidate-respondent on the ground that it is a case of improper acceptance of nomination of the returned candidate-respondent. The concise statement regarding material fact on which the petitioner relies as a ground under section 100 (1) (d) (i) of the Act of 1951 setting aside the election of the respondent-returned candidate and deciding it null and void as has also been stated in the election petition. It further appears from the affidavit filed in Form 26 of the nomination form regarding non disclosure of marital status of the returned candidate-respondent and other facts regarding non disclosure of the assets of the spouse etc. is a ground for challenging of the election of the respondent along with other grounds which are necessary to be established during the course of trial by the election petitioner for the election of the respondent be declared as null and void.
22. Thus, in my considered opinion, the contention advanced of learned counsel for the respondent made in support of the application under section 86 (1) of the Act of 1951 and under Order 7 Rule 11 that the petitioner has not disclosed the material fact or the concise statement relied upon by petitioner in the election petition raises no cause of action, is wholly unfounded. It is well settled law that if the election petition speaks about the material facts and concise statement on which the election petitioner relies upon are stated in the election petition, the same should not be thrown at the threshold. Considering the judgments of the Apex Court in the case of Ashraf Kokkur vs. K.V. Abdul Kader & others and Ponnalal Lakshmaiah vs. Kmmuri Pratap Reddy and others (Supra) and the pleadings as have been set out in the present election petition, the aforesaid applications under Order 7 Rule 11 and Section 86 (1) of the Act of 1951 and under Order 6, Rule-16 C.P.C. respectively, are hereby rejected.
23. Let the petition be fixed on 6th of May, 2020 at 3:00 p.m. for framing of issues.
Dated:-10.04.2020 Shiraz.