1
Reserved
Court No. - 27
Case :- ELECTION PETITION No. - 5 of 2004
Petitioner :- Pramod Kumar Tewari
Respondent :- Arun Shourie & 12 Ors.
Petitioner Counsel :- Smt P.L. Nigam,Anupam Mehrotra,Ram Narain
Sahu
Respondent Counsel :- Waseeq Uddin Ahmed,Ashutosh Singh,I.B.
Singh,Jay Narayan Pandey, P. D. Gupta, S.K. Chaudhary, Satish
Chandra Mishra, Ved Prakash Sharma, Vinod K. Singh
In re:
C.M.Application No. 1714 of 2004 application on behalf of
respondent no. 11 under Section 81 and 86 of the R.P. Act, 1951 read
with Order 7 Rule 11 and Section 10 of the C.P.C.
C.M.Application No. 1730 of 2004 application on behalf of
respondent no. 10 under Section 81 and 86 of the R.P. Act, 1951 read
with Order 7 Rule 11.
C.M.Application No. 169 of 2005 application on behalf of respondent
no. 5 under Section 83(1) of the R.P. Act, 1951
C.M.Application No. 226 of 2005 application on behalf of respondent
no. 9 under Section 86(1) of the R.P. Act, 1951
C.M.Application No. 227 of 2005 application on behalf of respondent
no. 9 under Section 83(1) of the R.P. Act, 1951
C.M.Application No. 366 of 2005 application on behalf of respondent
no. 2 under Section 83(1) of the R.P. Act, 1951
C.M.Application No. 1663 of 2005 application on behalf of
respondent no. 3 under Section 83(1) of the R.P. Act, 1951
C.M.Application No. 1664 of 2005 application on behalf of
respondent no. 3 under Section 86(1) of the R.P. Act, 1951
Along with
Case :- ELECTION PETITION No. - 8 of 2004
Petitioner :- Harendra Agarwal
Respondent :- Dr. Lalit Suri And 11 Ors
Petitioner Counsel :- G.S. Mehra, M.C.Gupta, R.K. Misra
Respondent Counsel :- Waseeq Uddin Ahmed, Anupam Mehrotra,
Ranjeet Kumar, Ved Prakash Sharma, Vinod Kumar Singh
In re:
C.M.Application No. 1746 of 2004, application on behalf of
respondent no. 1 under Section 81 and 86 of the R. P. Act, 1951 read
2
with Order 7 Rule 11 and Section 10 of the CPC
C.M.Application No. 1508 of 2005, application on behalf of
respondent no. 10 under Section 86(1) of the R.P. Act, 1951
C.M.Application No. 1509 of 2005 application on behalf of
respondent no. 10 under Section 83(1) of the R.P. Act, 1951
C.M.Application No. 246 of 2005 application on behalf of respondent
no. 02 under Order 6 Rule 16 of the C.P.C.
C.M.Application No. 287 of 2005 application on behalf of respondent
no. 11 under Section 86(1) of the R.P. Act, 1951
C.M.Application No. 288 of 2005 application on behalf of respondent
no. 11 under Section 83(1) of the R.P. Act, 1951
C.M.Application No. 359 of 2005 application on behalf of respondent
no. 06 under Section 86(1) of the R.P. Act, 1951
C.M.Application No. 358 of 2005 application on behalf of respondent
no. 06 under Section 83(1) of the R.P. Act, 1951
Hon'ble Devi Prasad Singh,J.
1. Election Petition No. 5 of 2004 and Election Petition No. 8 of
2004 were connected with Election Petition No. 4 of 2004.
Controversy involved and ground raised in these election petitions are
almost identical, hence, decided by present common judgement.
Factual narration with regard to biennial election of Rajya Sabha/Apar
House has already been made in Election Petition No. 4 of 2004,
hence, it is not necessary to repeat.
2. Election Petition No. 5 of 2004 has been filed by Shri Promod
Kumar Tewari, who is a member of legislative assembly. Election
Petition No. 8 of 2004 has been filed by the petitioner with the
pleading that he has been sponsored by Indian National Congress.
Grounds enumerated in both the election petitions are almost identical
with addition to new facts.
3
3. In election petition no. 5 of 2004 the petitioner in para 9,30,31
and 33 had pleaded the involvement of corrupt practice in election.
Pleading of corrupt practice has also been contained the election
petition no. 8 of 2004. However, in both the election petitions
affidavit in prescribed Form 25 has not been filed, which is fatal in
view of law discussed in Election Petition No. 4 of 2004. Apart from
above in Election Petition No. 5 of 2004 the notices was issued on
5.10.2004 but it appears that the process was not filed within a week,
required in the Rules of the Court. It was filed on 29.10.2004. It also
borne out from the order sheet dated 26.9.2005 that copy of the
election petition was not supplied to a respondents and copy served on
them does not tally with the paper book of the court. Order sheet
dated 26.9.2005 further reveals that on court’s direction the petitioner
had taken steps to supply the copy of election petition on respondent
no. 3. Thus there is flagrant violation of Rules of the Court in
pursuing the election petition.
4. In both the election petitions neither the petitioner nor their
counsel were appeared to advance their arguments. Shri S.N.Shukla
learned counsel appeared for petitioner in Election Petition No. 4 of
2004 had proceeded to defend the cause of election petitioners.
5. In election petition no. 5 of 2004 the list of documents has been
filed which indicate six documents but the same is not on record and
an applications was moved for summoning of record which was never
pressed by the petitioner.
6. Apart from above in both these election petitions the petitioner
had defended the nomination of Madan Mohan, who filed election
4
petition no. 4 of 2004. Knowledge has also been derived from the
information communicated by Shri Madan Mohan while filing
affidavit. Election petition filed by Madan Mohan has been dismissed
by separate order. Accordingly, the common ground existing in these
election petitions does not contain the material facts and also does not
furnish the cause of action under the Code of Civil Procedure. The
source of knowledge has not been disclosed. Reliance has been
placed from the information received by Shri Madan Mohan seems to
be here say and not sustainable more so when the election petition
filed by Shri Madan Mohan has been dismissed by separate order.
7. All materials facts with regard to corrupt practices coupled with
source of knowledge are missing and also can not be considered in the
absence of Affidavit in Form 25 read with Rule 94 A of the Rules. In
the written argument filed by Shri S.N.Shukla who appeared on behalf
of petitioners nothing has been brought on record to falsify the
grounds taken by respondents in their applications. In Election
Petition No. 8 of 2004 there is no specific pleading along with
documents to establish that the petitioner Harendra had filed Form 26
in prescribed format. Para 83,84,85 of the election petition no. 8 of
2004 relates to allegation of corrupt practices. In para 60 to 64 the
case of Shri Madan Mohan has been dealt with.
8. It has been stated that election petition was not filed in duplicate
in view of Order 7 Rule 11 (E) of the CPC. But during the course of
arguments attention of the court has not been invited towards any
material on record that the election petition was filed in duplicate.
9. Apart from various judgment referred while deciding and
5
dismissing the election petition no. 4 of 2004 it shall be appropriate to
refer the recent judgment of Hon’ble Supreme Court reported in JT
2009 (10) SC 684, Anil Vasudev Salgaonkar Vs. Naresh Kushali
Shigaonkar where Hon’ble Supreme Court had held that in the
absence of specific pleading with regard to material facts, discloser of
source of information and in the absence of material pleading with
regard to cause of action in terms of Code of Civil Procedure, election
petition may be summarily dismissed. It has further been held by
Hon’ble Supreme Court that omission of single material fact would
lead to an incomplete cause of action. It shall be appropriate to
reproduce relevant paras from the Anil Vasudev Salgaonkar’s case
(supra), which is as under:-
23. According to the appellant, the High Court
had erroneously held that the election petition is
not liable to be dismissed in limine under section
86 of the Act for alleged non-compliance of the
provisions of section 83(1) of the Act.
24. In the impugned judgment, the High Court
erroneously concluded that the election petition
when read as a whole discloses that it has material
facts stated and regarding which triable issues are
also framed and, therefore, it cannot be rejected at
the preliminary stage.
52. 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
6
facts in the election petition are not complied with.
53. This Court in Samant N. Balkrishna’s case
(supra) has expressed itself in no uncertain terms
that the omission of a single material fact would
lead to an incomplete cause of action and that an
election petition without the material facts relating
to a corrupt practice is not an election petition at
all.
62. 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.
63. The election petition must contain a concise
statement of “material facts” on which the
petitioner relies. There is no definition of “material
facts” either in the Representation of Peoples Act,
1951 nor in the Code of Civil Procedure. In a series
of judgments, this court has laid down that all facts
necessary to formulate a complete cause of action
should be termed as “material facts”. All basic
and primary facts which must be proved by a party
to establish the existence of cause of action or
defence are material facts. “Material facts” in other
words mean the entire bundle of facts which would
constitute a complete cause of action.
65. In the context of a charge of corrupt practice,
“material facts” would mean all basic facts
constituting the ingredients of the particular corrupt
practice alleged, which the petitioner (respondent
7
herein) is bound to substantiate before he can
succeed on that charge. It is also well-settled that if
“material facts” are missing they cannot be
supplied after expiry of period of limitation for
filing the election petition and the pleading
becomes deficient.
10. Keeping in view the aforesaid judgment of Hon’ble Supreme
Court and law discussed in Election Petition No. 4 of 2004, the
petitioners seems to have been failed to brought on record the material
facts and cause of action Affidavit has not been filed to verify
corrupt practice in Form 25 in view of law discussed while deciding
the election petition no. 4 of 2004. The applications are liable to be
allowed, hence, allowed in consequence thereof these election
petitions are also dismissed summarily. Cost made easy.
[Justice Devi Prasad Singh]
22nd January, 2010
Madhu