ORDER
N.D.V.Bhat, J.
1. Respondent-11 in the Election Petition No. 1/1990 has filed this application at I.A.No. III praying for striking off the pleadings contained in paras-6 to 13 of the Election Petition. The application filed by respondent-11 is purported to be one under Section 86 of the Representation of the People Act (for short the Act) read with Section 151 CPC.
2. In the Election Petition, the petitioner has challenged the election of respondent-11 as M.I.A. from Bagewadi Assembly Constituency in Belgaum District on several grounds. After the written statement was filed and issues were raised and matter was posted for evidence, respondent-11, on an earlier occasion, had filed an application at I.A.No. II praying for striking off paras-3 to 9 about corrupt practices on the ground that they lack the material facts and particulars. Subsequently, respondent-11 confined his application to paras-3 to 5, The said application at I.A.II was contested by the petitioner. Sri Murlidher Rao, J, (as he then was) after hearing the Advocates on either side and for the reasons reflected in his order dated 2.4.1991 was pleased to allow I.A.No. II by directing that the allegations of “corrupt practices” pleaded in paras-3 to 5 of the Election Petition be struck off. However, the matter was posted for evidence since there were other grounds, regarding which issues were framed and parties were required to adduce evidence. It is necessary to mention here that consequent to the retirement of the learned Judge, Sri Murlidher Rao, J., the matter is assigned to the undersigned.
3. When the matter was posted for evidence respondent-11 has again filed one more application at I.A.III praying for the reliefs referred to hereinabove. In the affidavit accompanying the application at I.A.III, it is stated by respondent-11 that the contents of paras-9 to 13 relating to counting and with a prayer in para-15(ii) for an order of re-count the votes polled in the Bagewadi Constituency and on such re-count declare the petitioner as duly elected candidate of the said Assembly Constituency. It is pointed out that the petitioner has produced Annexure-A addressed to the Returning Officer, Bagewadi, District Belgaum on 27.11.1989 expressing doubt in counting and requesting to re-count all the votes, for which, an order at Annexure-B has been passed by the Returning Officer giving detailed reasons and rejecting the request for recount. It is stated that the contents of para-11 of the Election Petition are completely vague and lacking material facts and also material particulars. It is also pointed out that the contents of para-12 are also equally vague without material facts and particulars. In the same way, the same omissions are attributed with reference to para-13 of the Election Petition. It is further asserted that the averments made in paras-6 to 8 do not give any material facts and material particulars and that being so, the case of the petitioner for recounting of votes of Bagewadi Assembly Constituency cannot be taken to trial to fish out evidence during the course of trial. It is stated that even in respect of cases, relating to Section 100(1)(d)(iii) of the Act, the petitioner is required to comply with the provisions of Section 83 of the Act before going to trial. It is stated that the petitioner went on taking adjournments after the pleadings in paras-3 to 5 were struck off by a detailed order of this Court more than 8 to 9 months before I.A.III was filed. On these grounds, in substance, respondent-11, the elected candidate has prayed for striking off paras-6 to 13 of the Election Petition.
4. I.A.III is resisted by the petitioner to the Election Petition. The petitioner has pointed out that the present application at I.A.III filed by respondent-11 is not maintainable. It is stated that Section 86 of the Act deals with trial of Election Petition and once the trial has started, the Court has the power to dismiss the petition only on three counts namely, non-compliance with Sections 81, 82 and 117 of the Act. It is also pointed out by the petitioner that respondent-11 had on the earlier occasion filed an application for striking down the pleadings for not furnishing full particulars of corrupt practice alleged in the petition. This Court by an order dated 2.4.1991 directed that paras-3 to 5 of the Election Petition be struck off. It is also stated in the objection that Section 83 of the Act provides for furnishing concise statement of material facts on which the petitioner relies and that the said Section also provides for full particulars of corrupt practices alleged and that the allegations set out in paras-6 to 13 of the petition do not pertain to corrupt practices within the meaning of Section 123 of the Act. It is further pointed out by the petitioner that respondent-11 in his affidavit has averred that the petitioner had complained about the procedure adopted at the time of counting and in that context respondent-11 expects the petitioner to furnish details of irregularity in counting. It is stated that the same is a matter for evidence and petitioner cannot be accused of a sin of omission. It is asserted that the law does not require the petitioner to furnish the particulars of all the facts alleged in the petition. It is pointed out that it is for this reason that the Legislature has made a distinction between the irregularities and illegalities in the matter of voting, counting and declaration of results and that of corrupt practices falling under Section 123 of the Act It is stated that respondent-11 has sought to equate the allegations relating to corrupt practices with other allegations falling under Section 100(i)(A)(C)(d) d, (iii) & (iv) of the Act. It is contended that respondent-11 cannot be permitted to file applications for striking down the pleadings one after another. On these grounds, the petitioner has prayed for the dismissal of the application at I.A.III filed by respondent-11.
5. I have heard the arguments of Sri R.U.Goulay, learned Counsel for respondent-11 in the Election Petition and Sri Mohandas N.Hegde, learned Counsel for the petitioner in the Election Petition.
6. The gist of the submissions made by Sri Goulay, the learned Counsel for respondent-11 is that paras-6 to 13 of the Election Petition suffer from infirmity in that, they do not reflect the material facts which the petitioner relied; that the petition is not complete in all respects and also that the petition does not satisfy the mandatory statutory requirement reflected in Section 83(1)(c) of the Act. It is the further submission of Sri Goulay that Section 83(1)(a) is applicable not only when the election is challenged on the grounds of corrupt practice but also when the same is challenged on other grounds. It is also the contention of Sri Goulay that ‘material facts’, which expression being understood in legal parlance are those facts which constitute the cause of action and that they should be averred in the Election Petition and any omission in that behalf cannot be supplied by way of evidence.
On the other hand, the gist of the submission made by Sri Mohandas Hegde, the learned Counsel for the election petitioner is that Section 83 of the Act would operate only when the election is challenged on the grounds of corrupt practice and whenever the election is challenged on other grounds it is Section 100 of the Act which would hold the field. It is also the submission of Sri Mohandas Hegde that in the context of the language reflected in Section 86 of the Act an election petition can be dismissed only when it does not comply with the provisions of Section 81 or Section 82 or Section 117 and that even if the mandatory requirement of Section 83(1) (a) of the Act is not complied with in full, an Election Petition cannot be dismissed and the pleadings also cannot be struck off. The further submission of Sri Mohandas Hegde is that paras-6 to 13 do contain all material facts and that they are required to be proved by way of evidence in the course of the trial of the Petition. Another contention raised by Sri Hegde is that respondent-11 had, on the earlier occasion, filed the application at I.A.II praying for striking off the pleadings at paras-3 to 9 and later did not press his -application with reference to paras-6 to 9 and that therefore he cannot turn round over and again by seeking to get them struck off. Further it is submitted that if at all respondent-11 wanted to get the pleadings struck off on any grounds legally available to him the same ought to have been done when he filed his application at I.A.II.
7. Before adverting to the submissions made by the learned Counsels having a bearing on factual aspects, it is necessary to see as to whether a prayer seeking to strike off the pleadings can be made on the ground that the pleadings in question do not comply with the mandatory requirements of Section 83 of the Act. At this juncture, it would be indeed convenient to make a reference to the provisions of Section 86 and Section 83 of the Act in the first instance. Section 86 of the Act reads as under:
“86. Trial of election petitions –
(1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.
Explanation – An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under Clause (a) of Section 98,”
(Rest of the provisions of Section 86 is npt culled out since they are not relevant for consideration at this stage.)
Section 83 of the Act 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
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings;
(Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.)
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition”.
A perusal of Section 86 of the Act, the relevant portion of which is culled out hereinabove if read in isolation would indeed go to show that the Election Petition can be dismissed if and if only it does not comply with the provisions of Section 81 or Section 82 or Section 117. It is relevant to note here that Section 83 is not one of the Sections referred to in Section 86 of the Act. In this view of the matter, it is necessary to examine as to whether an application praying for striking off the pleadings can be filed on the ground that the Election Petition does not contain the material facts relevant to the grounds urged in the Petition. This aspect is considered by the Supreme Court in the Decision in DHARTIPAKAR MADANLAL AGARWAL v. RAJIV GANDHI, . In para-8 therein, the Supreme Court has observed as follows:
“The first question which falls for our determination is whether the High Court had jurisdiction to strike out pleadings under Order VI, Rule 16 CPC 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 name 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 Code of Civil Procedure, 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 paras of a petition which do not disclose any cause of action, are liable to be struck off under Order VII 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 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 triable 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 VI Rule 11”.
8. Then again, in a subsequent Decision viz., in the Decision in SAMAR SINGH v. KEDAR NATH, the Supreme Court in substance, dealt with a similar question in paras-4, 5 and 7 of the Judgment. The Supreme Court has observed as under:
“The question whether the High Court while trying an election petition has power to reject an election petition summarily under Order 7 Rule 11 of CPC is no longer res integra as this controversy has been set at rest by this Court in Azhar Hussain v. Rajiv Gandhi , Bhagwati Prasad v. Rajiv Gandhi and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi . In these cases, this Court after detailed consideration held that an election petition is liable to be rejected summarily at the threshold under Order 7 Rule 11 of the CPC. However, the appellant contended that once written statement was filed and after the Court applied its mind to the pleadings, raised by the parties and framed issues, it should be presumed that triable issues had been raised in the election petition and therefore the Court could not thereafter summarily reject the petition under Order 7 Rule 11 of the CPC. In substance the argument is that once issues are framed the Court must proceed with the trial, record evidence and only thereafter it should deal with the preliminary objection raised by the returned candidate that the election petition does not disclose any cause of action. Similar argument was considered and repelled by this Court in Azhar Hussain case in the following words:
‘In substance, the argument is that the Court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned Counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and exercise the mind of the respondent.
Proceeding further the Court observed:
‘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 and resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matters pertaining to Ordinary Civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections’.
“The above view was reiterated by this Court in Bhagwati Prasad v. Rajiv Gandhi (supra) and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, (supra). If an election petition does not disclose cause of action, it can be dismissed summarily at the threshold of the proceeding under Order 7 Rule 11 of the Code of Civil Procedure. If an election petition can be summarily rejected at the threshold of the proceeding we do not see any reason as to why the same cannot be rejected at any stage of subsequent proceeding. If after framing of issues basic defect in the election petition persists (absence of cause of action) it is always open to the contesting respondent to insist that the petition be rejected under Order 7 Rule 11 and the Court would acting within its jurisdiction, in considering the objection. Order 7 Rule 11 does not place any restriction or limitation on the exercise of Court’s power; it does not either’expressly or by necessary implication provide that power under Order 7 Rule 11 CPC should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provisions, it is open to the Court to exercise that power at any stage. While it is true that ordinarily preliminary objection to the maintainability of the petition on the ground of absence of cause of action should be raised by the respondent as early as possible but if a party raises objections after filing written statement the preliminary objection cannot be ignored. If the election petition does not disclose any cause of action, the respondent’s right to raise the objection is not affected adversely merely because the objection is raised after filing of written statement or framing of issues. The Court would be acting within its jurisdiction in exercise of its power under Order 7 Rule 11 in rejecting the same even after settlement of issues.
…..
In Devnarayan Ramasumar Tewari v. State of Bombay (now Gujarat) (supra) a learned single Judge held that an order rejecting the plaint after the issues had been framed was clearly wrong. In coming to that conclusion the learned Judge placed reliance on Order 5 Rule 5 and Order 14 of Rule 1, sub-rule (5) and Order 9 Rule 1 CPC. The learned Judge observed that under Order 5 Rule 1 when a suit is instituted and the summons are issued to the defendant to appear and answer the claim on a day to be stated therein, the Court may indicate if the summons are issued for the settlement of issues or for the final disposal of the suit and the summons shall contain a direction accordingfy. The learned Judge placing reliance on Order 9 Rule 1 held that the plaint cannot be rejected after the issues are framed; after summons are served on the defendant, the suit can be dismissed but the plaint cannot be rejected. The view taken by the learned Single Judge is not sustainable in law. Normally, when a suit is instituted the Court is to satisfy itself that the suit is maintainable and if disclosed cause of action and only thereafter the Court may issue summons to the defendants but merely because the summons are issued, the defendant’s right to raise preliminary objection for rejection of the plaint on the ground that it disclosed no cause of action is not affected. If a plaint or an election petition does not disclose any cause of action, it does not stand to reason as to why the defendant or the respondent should incur costs and waste public time in producing evidence when the proceedings can be disposed of on the preliminary objection. There is basic difference between a suit and an election petition. A suit is initiated by a plaint, by a party, against the defendant and generally the dispute is confined to the parties whereas an election petition raised dispute relating to election which affects and involves the entire constituency; the dispute is not confined between the parties to the petition. The provisions of the Civil Procedure Code as applicable to trial of suits have been made applicable under Section 92 to the trial of election petition as nearly as possible. It is well settled that the provisions of the CPC do not apply in their entirety to the trial of the election petition but the provisions of Order 7 Rule 11 apply to an election petition and the High Court has jurisdiction to reject a plaint which does not disclose any cause of action. It would be in the interest of the parties to the petition and to the constituency and in public interest to dispose preliminary objection and to reject an election petition if it does not disclose any cause of action. In our opinion, the High Court acted with jurisdiction in entertaining the preliminary objection and rejecting the election petition”.
9. In fact, Bopanna, J., (as he then was) in Election Petition No. 1/1988 (C.KANNAN v. RETURNING OFFICER), had an occasion to consider a similar question. Summing up the law relating to the powers of this Court to deal with the Election Petition either at the preliminary stage or at a later stage, His Lordship has observed as under:
“But the enunciation by the Supreme Court as regards the power of this Court to dispose of the preliminary objection at any stage of the trial even after the framing of the issues is a point for this Court to consider whether the application made by respondent-2 was made bona fide with a view to put an end to the litigation as early as possible. In this case, this Court has gone a step further after the framing of the issues and that is it has posted the case for evidence. But before the trial could commence, respondent-2 has filed this application, In substance, filing of the application before the commencement of the trial or after the framing of the issues would not make any difference to the power of this Court to go into the question whether the election petition was maintainable in view of the defects in the petition regard being had to the provisions of Section 83(1)(2) and (3) of the Act”.
10. Sri Mohandas Hegde, learned Counsel for the petitioner in the Election Petition submitted that the views expressed by one Judge hearing an Election Petition are not binding on the another Judge who is hearing another Election Petition. It is not necessary for me to go into this aspect since I find that the views expressed by His Lordship Justice Bopanna are supported by the observations made by the Supreme Court in the several Decisions referred to therein including the Decisions, the portions of which are culled out hereinabove. Under these circumstances, I have no hesitation whatsoever in holding that, notwithstanding the fact that Section 86 of the Act, does, not refer to the provision of Section 83 of the Act as one of the grounds for dismissing an Election Petition, the Court has the power to strike the pleadings if the Court is satisfied that the Election Petition does not disclose a cause of action and that the trial would prejudice, and delay the proceedings and if after striking out the pleadings the Court finds that no material issues remain to be considered, it has the power to reject the Election Petition under Order VI Rule 11 CPC. The fact that Section 83 of the Act does not find a place in Section 86 would not make any difference to this aspect as pointed out by the Supreme Court in AZHAR HUSSAIN v. RAJIV GANDHI, . In this view of the matter, I reject the contention raised by Sri Mohandas Hegde, learned Counsel for the election petitioner that failure to comply with the mandatory requirement of Section 83(1) of the Act will not entail the striking of the pleadings or the dismissal of the election petition. Further I agree with Sri Goulay, learned Counsel for respondent-11 I that Section 83(1) (a) of the Act requiring an Election Petition to contain a concise statement of material facts on which the petitioner relies, would apply not only to those cases where the election is sought to be challenged on the ground of corrupt practices, but also on other grounds like those which are pressed into service in this Election Petition.
The next point having a bearing on law which is required to be considered is the one relating to the submission made by Sri Goulay that the Election Petition should be complete in all respects. As pointed out earlier, Sri Goulay placing his finger on Section 83(1)(c) of the Act submitted that an Election Petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. In this connection, he has also placed reliance on the Election Petitions Procedure Rules, Karnataka (hereinafter referred to as the Rules). In particular, reliance is placed on Rule 7 of the Rules to contend that the Election Petition should be complete in all respects. In fact, Bopanna, J., in C. KANNAN’s case, had an occasion to consider this aspect. In para-26 of the Judgment, His Lordship has observed as under:
“So what is an election petition? It is a petition which should be complete in all respects, i.e., the election petition that should satisfy the requirement of Section 83(1) (a) and (b) which relates to the contents of election petition, Section 83(1)(c) which relates to the verification of the pleadings in the election petition, the proviso to Section 83(1)(c) which relates to the filing of the affidavit along with the petition in case allegation of corrupt practice is made in petition, as in this case, and also the requirement of Section 83(2) of the Act which provides for the verification of the contents of the annexures filed by the petitioner along with the election petition. None of these requirements are satisfied by the petitioner as noticed earlier, and therefore it cannot be said that the election petition is complete in all respects as required under Rule 7 of the High Court Rules. Since the requirements of Section 83 are mandatory and Mr. Subbaiah is not able to cite any decision which has taken a contrary view, this Court perforce must come to the conclusion that the election petition filed by the petitioner was not an election petition complete in all respects as provided for under Rule 7 of the Rules. If the same is not complete in all respects, then the provisions of Section 81 of the Act as also the provisions of Section 83 of the Act are not complied with on the facts of this case, with the result it is open to this Court in exertion of power under Section 86(1) of the Act to dismiss the petition on the ground that the petitioner had not complied with the mandatory requirement of Sections 81 and 83 of the Act”.
11. Sri Goulay, submitted that in the instant case, the Election Petition apart from failing to disclose the cause of action also suffers from a fatal infirmity in that, the verification which is mandatory as provided for under Section 83(1)(c) of the Act is not in consonance with the relevant provisions of the Code of Civil Procedure, to wit, the provisions of Order VI Rule 15(2) of CPC. Order VI Rule 15 CPC provides for verification of pleadings. It reads as under:
“Rule 15. Verification of pleadings:
(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed”.
Pointing his finger to Rule 15(2) of the aforesaid Rule, the learned Counsel submitted that the person verifying should specify, with reference to the numbered paras of the pleading as regards as to which of the paras are true to his knowledge and which of the paras are true to the information received and believed to be true. The learned Counsel also submitted that the Election Petition’in question does not meet the requirement of the aforesaid Rule and that therefore, the Election Petition cannot be said to be complete in all respects and on this count alone, the Election Petition is liable to be dismissed. At this juncture, it will suffice if it is observed that Sri Goulay is right in contending that if the election petition is not complete in all respects the same can be dismissed. However, the question as to whether the Election Petition in this case cannot be said to be complete in all respects on account of the infirmity pointed out by Sri Goulay, learned Counsel for respondent-11 will be considered at a later stage while dealing with the factual aspects of the case. At this stage, it will suffice if it is observed that if it is to be held without any exception that the Election Petition is not complete in all respects there does not appear to be any legal impediment to dismiss the Election Petition on that count.
12. From what is stated hereinabove, it is clear that if the pleadings do not contain the material facts constituting the cause of action including the mandatory requirements reflected in Section 83(1) (a) of the Act, the Election Petition is liable to be dismissed. It is also clear that if the Election Petition is not complete in all respects as provided for under the relevant Rule in the Rules, it is also permissible to dismiss the Election Petition on that count. If that be so, the next point for consideration is as to whether the different paras containing the pleadings which are sought to be struck off namely, paras-6 to 13 do not contain the material facts. At this juncture, it is necessary to state as to what are material facts and particulars. In fact, the Supreme Court had occasion to explain this ‘concept’ in the Decision in SAMANT N. BALAKRISHNA v. GEORGE FERNANDEZ, . The Supreme Court in para-29 of the said Judgment has observed as under:
“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 Section 100 and Section 101. That as we have shown above creates the substantive right. Section 83 then provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The Section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between materials 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 characters 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 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”.
Then again, in the Decision in Azhar Hussain v. Rajiv Gandhi, the Supreme Court had occasion to consider this aspect and with reference to the same, it has observed in para-14 as under:
“Materials facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. –(Manubhai Nandlal Amarsey v. Popatlal Manilal Joshi)“.
Having considered the legal aspects on the questions in controversy, it is required to be seen as to whether the pleadings which are sought to be struck out to failure to fulfil the requirements, the said expression, being understood in the light of the Decision referred to hereinabove.
13. The Election petitioner in para-6 of his Petition has averred that several persons whose names had been included in the voters list had died long before the election and that their votes were cast by the followers of the 11th respondent by impersonating the voters. It is alleged that in Polling Booth Nos. 76, 77, 78 and 79 such votes were cast in large numbers and that the voters at SI.Nos. 409, 397, 354, 657, 760, 764, 563, 374, 178 in Booth No. 76, SI.No. 861 in Booth No. 77, SI.No. 299 and 257 in Both No. 78 and SI.Nos. 577 and 563 in Booth No. 79 were cast by impersonation.
Sri Goulay, learned Counsel for respondent-11 submitted that even if all those votes referable to serials given alleged to have been cast by impersonation are deducted from out of the total number of votes polled by respondent-11 still the same would not upset the declared result, having regard to the fact that the 11th respondent has polled 22,212 and the election petitioner has polled 22,049. It is further pointed out by Sri Goulay that the allegation that “several persons whose names had been included in the voters list had died long before the election, and their votes were cast by the followers of the 11th respondent by impersonating the voters” is vague. It is pointed out by the learned Counsel that it is not as if it is not possible for the election petitioner to state in the Election Petition as to which are those serials relating to those dead persons in the voters list in respect of which there was impersonation. It is further argued by the learned Counsel that the petitioner cannot afford to elicit the materials in that behalf by trying to fish out the evidence. Under these circumstances, it is argued by the learned Counsel that para-6 of the Petition is vague and the serials given in para-6 are so few that the same would not enable the petitioner to upset the result. Under these circumstances, the learned Counsel contended that the said para is liable to be struck off for want of material facts and complete in all respects. I find that there is some force in the submission made by Sri Goulay, learned Counsel for respondent-11. The question as to whether for want of complete materials facts, relevant to para-6, the said para is liable to be struck off, having regard to the fact that the voters referable to the serials disclosed even if accepted would not upset the result of the election is a question which I will consider little later.
14. In so far as para-7 of the Election Petition is concerned, it is alleged that during the election, it was found that large number of voters hailing from Sambra, Balekundri, Vannihal and Modaga villages have been enrolled as voters in their respective villages and once again they are enrolled as voters at Pant Balekundri, where Pant Balekundri Co-operative Spinning Mill Ltd., is situate and where they are employed as workers. It is further alleged that the voters had cast their votes in their respective villages, but their votes were cast by persons impersonating them at Pant Balekundri Polling Station 84, which was situated in the Spinning Mill premises. It is also pointed out that the 10th respondent is the Chairman of Balekundri Cooperative Spinning Mill.
Sri Goulay, learned Counsel for respondent-11 submitted that the said para, the contents of which are culled out hereinabove, do not disclose the material facts, in that, it is not stated as to what is the number of voters and what are those serials and how many amongst them have participated and the like. The learned Counsel submitted that these allegations are vague and do not constitute material facts. At this stage it will suffice if it is stated that this aspect which is highlighted by Sri Goulay deserves a serious consideration. However, the question as to whether on this Count the said para is liable to be struck off is a question which I will consider little later.
15. In so far as para-8 of the Petition is concerned it is alleged therein that in Polling Booths 74, 75, 19, 46, 51, 52, 53, 5, 72 and 73 the polling was 92.9%, 89.2%, 95%, 93%, 85%, 85% and 86% respectively. It is stated that this is most unusual as there were large number of dead persons. (underlining mine). It is also stated that the Returning Officer ought to have sought the permission of the Chief Election Officer to declare the result of the election and that he failed to seek the permission of the Chief Election Officer even though he was satisfied that the polling was most abnormal. It is further stated that the Returning Officer ought not to have proceeded with the declaration of the results without the permission of the Chief Election Officer. In so far as this aspect is concerned it is pointed out by Sri Goulay that the allegations are totally vague. It is pointed out by Sri Goulay that though it may be possible to say technically that if investigation is made it is possible to say as to in which village the Booths pertain, the Court cannot be made to investigate into that matter at all without giving the material particulars. As observed with reference to the earlier paras, this aspect also is one of the aspects which deserves to be considered and the same will be considered little later.
16. In so far as para-9 of the Petition is concerned, it is alleged therein that the polling was held in accordance with the calendar of events at the respective polling stations and the counting of votes polled, took place on 26.11.1989 and 27.11.1989 at Maratha Mandal Polytechnic, Belgaum, and that the counting started 11.00 a.m. and concluded on 27.11.1989 at 1.30 a.m. It is further alleged that there was keen competition between the petitioner and the 11th respondent, as is evident from the final result sheet. It is stated that at 1.30 a.m. the Returning Officer prepared final result sheet of votes polled by each of the candidates and the Returning Officer gave two minutes to the candidates for filing any application under Rule 63 of the Election Rules. It is also stated that the petitioner who was not present in the Counting Hall came to the Counting Hall at about 1.15 a.m. as the petitioner was informed that the counting was coming to a close and that he was leading. It is further stated that the petitioner submitted an application for recount of the votes as he had serious doubts about the correctness of the counting of ballot papers, more particularly regarding the large number of rejected votes. The copy of the application is produced at Annexure-A.
At para-10 of the Petition it is stated that the Returning Officer made an order at about 2.30 a.m. rejecting the application, the copy of which order is produced at Annexure-B. It is further stated in paras-10 that thereafter, the Returning Officer proceeded to declare the election results declaring the 11th respondent as duly elected candidate, and according to Form 21E, the petitioner has secured 22,049 votes as against 22,212 votes secured by the 11th respondent.
In para-11 it is stated that the counting of ballot papers started at 11.00 a.m. on 25.11.1989 at Maratha Mandal Polytechnic building, Belgaum, and the counting was going on at sixteen tables. It is further stated that the petitioner’s election agent Sri Jayapal Patil of Chandana Hosur was present throughout and at table No. 4 while handling of the ballot papers of 50 each, a mischief was done by placing the ballot papers cast in favour of the petitioner in the bundle of the Janatha Dal candidate, thereby tilting the balance in favour of respondent-11.
With reference to the aforesaid paras, that is to say, paras-9 to 11, the contents of which are briefly stated hereinabove, Sri Goulay submitted that there was absolutely no ground for re-count. Sri Goulay highlighted the application at Annexure-A and the order passed by the Returning Officer at Annexure-B. It is also pointed out by Sri Goulay particularly with reference to para-11 that there is absolutely no averment in the Petition that any objection was raised by the agent of the petitioner, with reference to the mischief said to have been committed by placing the ballot papers cast in favour of the petitioner in the bundle of the Janatha Dal candidate. It is submitted by Sri Goulay that if at all, the material facts would have been to state as to what was the relevant time at which the said mischief took place and the number of bundles if at all involved in the alleged mischief whether any objection was raised in that behalf and if so, who raised the objection and further it should also have been averred as to how many ballot papers were so involved. It is submitted by Sri Goulay that in the absence of these material facts, the entire allegations covered by paras-9 to 11 are absolutely vague and as such they are liable to be struck off. The learned Counsel has placed reliance in this behalf particularly in the Decision in RAM SEWAK YADAV v. HUSSAIN KAMIL KIDWAI AND ORS.. SC 1964 SC 1249Reliance is also placed by the learned Counsel on the Decision in DR. JAGJIT SINGH v. GIANI KARTAR SINGH AND ORS., and the Decision in JITENDRA BAHADUR SINGH v. KRISHNA BEHARI AND ORS.,
17. Before considering the Decisions referred to hereinabove, it could be convenient to refer to two other paras in the Election Petition viz., paras – 12 and 13 which are also sought to be struck off. In para-12 of the Petition it is pointed out that a large number of votes amounting to 4,390 have been declared as invalid, and that the rejection of these votes is highly illegal in that while issuing the ballot papers, the Presiding Officer had put his seal on the back side of the ballot papers and he had affixed his signature and in over 1000 ballot papers the ink of the seal of the Presiding Officer was visible from the front side, and the voter had affixed the seal in accordance with their preference but the Returning Officer rejected the ballot papers on the ground that the seal put on the back side was visible on the front side on the symbol of one of the candidates. It is further stated that by no stretch of imagination those ballot papers could have been rejected and petitioner’s election agent Sri Jaypal Patil objected to the rejection of the Ballot papers on the ground that the imprint of the seal of the Returning Officer put on the rear side of the Ballot paper was visible on the front side. It is also stated that the objections were overruled by the Returning Officer without assigning any reason.
Sri Goulay, learned Counsel for respondent-11 submitted that merely giving the figures of 4390 as having been wrongly declared as invalid, will not meet the requirement of Section 83(1) of the Act. It is pointed out by Sri Goulay that the petitioner ought to have given the serials of those votes which were rejected. This is also one of the aspects which deserves consideration and which will be considered little later.
18. In so far as para-13 is concerned, it is stated that the illiterate voters had to put their thumb impressions to the counterfoils of the ballot papers and while issuing the ballot paper, no precaution was taken by the officials to wipe the thumbs of the voters to erase the ink and the ballot papers were handed over to the voters by folding it and while doing so, some ballot papers had the impression. It is further stated that the ballot papers were rejected on the ground that some identification had been left in the ballot papers and that the rejection of these ballot papers is contrary to law as the voter had not left any identification mark on the ballot papers intentionally, and that the rejection of the ballot papers on the ground that the ballot papers had carried some impression cannot be sustained. It is further stated that that the said impressions were not intended to be an identification. The mistake on the part of the Polling Officer cannot be visited upon the candidates. It is asserted that the rejection of those ballot papers is illegal.
Sri Goulay, learned Counsel for respondent-11 submitted that the allegations in para-13 is vague inasmuch as it does not contain any information as regards as to which ballot papers were rejected on the ground reflected in para-13. He, therefore, submitted that the petitioner cannot afford to collect the material by attempting to fish out for the same.
19. The contents of the different paras ranging from paras-6 to 13 and the submissions with reference to the same particularly by Sri Goulay are referred to hereinabove with a view to see as to whether those paras suffer from fatal infirmity for want of material facts and/or for any other valid reasons. As pointed out earlier, Sri Goulay in support of his submissions with reference to paras-6 to 13 has placed reliance on the three Decisions viz., the Decision in Ram Sewak Yadav; the Decision in Dr. Jagjit Singh7; and the Decision in Jitendra Bahadur Singh. The Supreme Court in Ram Sevak Yadav v. Hussain Kamil Kidwai has in paras-8, 9 & 1 of its Judgment observed as under:
“It must be remembered that the rules framed under the Representation of the people Act, 1951, set up an elaborate machinery relating to the stage of counting of votes by the Returning Officer, and provide ample opportunity to the candidate who has contested the election or his agents to remain present and to keep an eye on any improper action which may be taken by the returning officer. Rule 53 provides for the admission of only certain classes of persons to the place fixed for counting and amongst such persons are expressly included candidates, their election agents and counting agents, who may watch the counting subject to the directions which the returning officer may give. Rule 55 deals with the procedure for scrutiny and opening of ballot boxes. The returning officer has to satisfy himseff that “none of the ballot boxes has in fact been tampered with” and before any ballot box is opened at the counting table, the counting agents present at that table are allowed to inspect the seal affixed thereon and to satisfy themselves that it is intact. If the returning officer is satisfied that any ballot box has in fact been tampered with, he is prohibited from counting the ballot papers contained in that box and he has to follow the procedure prescribed in that behalf in Section 58. Clause (1) of Rule 56 provides for the scrutiny and rejection of ballot papers. Clause (2) sets out detailed provisions relating to cases in which the returning officer shall reject a ballot paper. By Clause (3) it is provided that before rejecting any ballot paper under sub-rule 2, the returning officer shall allow each counting agent present a reasonable opportunity to inspect such ballot papers. The returning officer has then to record on every ballot paper which he rejects the grounds of rejection. All the rejected ballot papers are required to be put in one bundle. Rule 57, deals with the counting of votes. Each ballot paper which is not rejected is counted as one valid vote. The returning officer has to make the entries in a result sheet in Form 20 after counting of the ballot papers contained in all the ballot boxes used at the polling stations. Clause 3 of Rule 57 enacts an elaborate set of rules about the entries to be made in respect of the counting and scrutiny of the ballot papers. By Rule 60 counting has to be continuous and Rule 63(1) provides that after the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the result. By Clause (2) of Rule 63 it is provided that after such announcement is made a candidate or his election agent may apply in writing to the returning officer for a re-count of all or any of the ballot papers already counted stating the grounds on which he demands such re-count. The returning officer must decide the application and record his reasons in -support of his decision and he may allow the application in whole or in part or may reject it if it appears to him to be frivolous or unreasonable. After the total number of votes polled by each candidate has been announced, the returning officer must complete and sign the result sheet in Form 20 and after such form is completed no application for re-count may be entertained. Under Rule 64 the declaration of the result of the election is made by declaring elected a candidate who has secured the largest number of valid votes, and the returning officer is required to complete and certify the return of election.
There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes and to demand a re-count. Therefore, a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers and of demanding a recount. It is in the light of the provisions of Section 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting of watching and of claiming a re-count that the application for inspection must be considered.
In the petition filed by Kidwai the material allegations in support of the claim that there had been improper reception, refusal of rejection of votes were contained in paragraphs 6(H), 6(K) and 12. In paragraph 6(H) it was averred that numerous ballot papers cast in favour of the petitioner were wrongly included in the ‘bundles of the respondents”. In paragraph 6(K) it was averred that due to “a deficiency in the supply of sealing ink, marks on ballot papers, though not quite clear, yet the marks clearly indicating the intention of the voters, were wrongly rejected as invalid by the returning officer”. In para-12 it was averred that “the petitioner is confident that if the votes actually cast in favour of the petitioner are counted as votes of the petitioner and if the improperly accepted votes which have been counted in favour of other respondents are taken out, and if the ballot papers are correctly sorted, counted and bundled, the respondent No. 1 will be found to have polled less votes as compared to xx petitioner. The petitioner further submits that the result of the Election has been materially affected by the improper acceptance and refusal of votes and by the incorrect sorting, counting and bundling of ballot papers”.
The averments in the petition for setting aside the election on the ground of improper acceptance or rejection of votes were vague, and did not comply with the statutory requirements of Section 83(1)(a). Paragraph-12 is deficient in the recital of material facts which must be deemed to be within the knowledge of the petitioner and merely asserts that if the votes actually cast in favour of the petitioner are counted, the total number of valid votes found in his favour would exceed the number of votes received by Yadav. Having regard to this infirmity the Tribunal was justified in declining to make an order for inspection of the ballot papers unless a prima facie case made out in support of the claim. The Tribunal has undoubtedly to exercise its discretion if it appears to be in the interests of justice, but the discretion has manifestly to be exercised having regard to the nature of the allegations made. The Tribunal would be justified in refusing an order where inspection is claimed with a view to fish out material in support of a vague plea in the case set out in the petition. The Tribunal was conscious of the true principle, it stated in its order dated August 25, 1962, that nothing was brought to its notice which would justify granting an order for inspection prayed for by the petitioner at that stage. The Tribunal further observed:
‘If in future from facts that may be brought to the notice of the Tribunal, it appears that in the interests of justice inspection should be allowed, necessary orders allowing an inspection could always be passed’.
Relying upon these observations another application was submitted by Kidwai asking for inspection but no additional materials were placed before the Tribunal. As we have already observed Kidwai led no oral evidence at the trial. In his second application for inspection he merely averred that “the petitioner was almost sure” that on inspection and scrutiny of ballot papers, the allegations contained in the various paragraphs would be proved. The allegation of Kidwai that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception, refusal or rejection of votes was wholly insufficient to justify a claim for inspection. He had to place before the Tribunal evidence prima facie indicating that an order for inspection was necessary in the interest of justice, which he failed to do”.
Then again in the Decision in Dr. Jagjit Singh v. Giani Kartar Singh and Ors., the Supreme Court in para-31 and 32 therein has observed as under:
“The true legal position in this mater is no longer in doubt. Section 92 of the Act which defines the powers of the Tribunal, in terms., confers on it, by Clause(a), the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election, but in considering the requirements of justice care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate’s election is void. We do not propose to lay down any hard and fast rule in this matter, indeed, to attempt to lay down such a rule would be inexpedient and unreasonable.
Whenever an Election Tribunal is called upon to consider this question, it should not ignore the safeguards which have been prescribed in Part V of the Conduct of Elections Rules, 1961. Let us briefly indicate the broad features of these Rules, Under Rule 53, candidates, their election agents or counting agents are admitted to the place fixed for counting of votes. Rule 54 emphasises the importance of the maintenance of secrecy of voting. Rule 55 deals with the scrutiny and opening of ballot boxes; before a ballot box is opened at a counting table, the counting agents present at that table shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it is intact. The Returning Officer has himself to take care to see that no ballot box has been tampered with. In case any tampering of the ballot boxes is disclosed, the Returning Officer has to take action under Rule 58. Rule 56 provides for the scrutiny and rejection of ballot papers. Rule 56(1) lays down that the ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised. Then objections are raised as specified by Sub-rule (2) and are dealt with in accordance with the provisions of other sub-clauses of Rule 56(2). It is thus clear that the scheme of Rule 56 is that every ballot paper can be examined by the counting agent and objections can be raised in respect of it if the election agent feels that a valid objection can be raised. It is after these objections are examined and dealt with according to Rule 56 that the stage of counting votes arrives. Even after the completion of the counting, it is open to a candidate or his election agent to apply in writing to the Returning Officer for a re-count of all or any of the ballot papers already counted stating the grounds on which he demands such recount. That is the effect of Rule 63(2). After all this procedure has been gone through, the Returning Officer completes the result sheet in Form 20, signs it. Once that is done, no application for a re-count shall be entertained. We have referred broadly to the scheme of these Rules to emphasise the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly overruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be applied to the petitioners made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts”.
Further in the decision in Jitendra Bahadur singh v. Krishna Behari and Ors. the Supreme Court at para-7, 8 and 9 has observed as under:
“The importance of maintaining the secrecy of ballot papers and the circumstances under which that secrecy can be violated has been considered by this Court in several cases. In particular we may refer to the decisions of this Court in Ram Sewak Yadav v. Hussain Kamil Kidwai, and Dr. Jagjit Singh v. Giani Kartar Singh, . These and other decisions of this Court and of the High Court have laid down certain basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers. They are: (1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case and (2) the tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.
The trial Court was of the opinion that if an election petitioner, in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts. In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His baid assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information. It is not his case that they maintained any notes or that he examined their notes, if there were any. 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 to afford a basis for the allegations made in the petition. The facts stated in paragraphs 13 and 14 of the election petition and in Schedule ‘E’ are mere allegations and are not material facts supporting those allegations. This Court in insisting that the electron petitioner should state in the petition the material facts was referring to a point of substance and not of mere form. Unfortunately the trial Court has mistaken the form for the substance. The material facts disclosed by the petitioner must afford an adequate basis for the allegations made.
The learned trial Judge while deciding the point in issue overlooked certain important circumstances. The election petition is silent as regards certain important aspects. This omission has bearing on the point to be decided. The allegation that the returning officer did not permit the appellant more than one counting agent for each counting table is an extremely vague allegation. It is not the election petitioner’s case that the congress nominee had appointed more than one counting agent for any counting table but the returning officer did not accept their appointment. Under Section 47 of the Representation of the People Act, 1951, a contesting candidate or his election agent may appoint in the prescribed manner one or more persons but not exceeding such number as may be prescribed by the rules, to be present as his counting agent or agents at the counting of votes and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer. Rules framed under that Act prescribe the number of counting agents that a candidate may appoint. The form of the notice required to be given under Section 47 of the Act is given in the rules. The appointment of the counting agents is to be made in the prescribed form in duplicate, one copy of which is to be forwarded to the returning officer white the other copy should be made over to the counting agent. Rules also provide that no counting agent shall be admitted into the place fixed for counting unless he has delivered to the returning officer the second copy of the instrument of his appointment after duly completing and signing the declaration contained therein. The petitioner did not state in the election petition that any of the counting agents appointed by the congress candidate or his election agent in accordance with the rules had been refused admission to the place of counting. Hence the allegation that the returning officer did not permit enough number of counting agents to be appointed is not supported by any statement of facts necessary to be stated. In other words the material facts relating to the allegations made have not been stated”.
After having observed as above, the Supreme Court in para-10 has stated as below:
“Now coming to the rejection of the votes polled in favour of the congress nominee, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore it was quite easy for them to note down the serial number of the concerned bailot papers. The election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections. These again are the material facts required to be stated”.
20. A careful perusal of the three Decisions, the relevant portions of which are culled out in extenso will give a lucid idea as regards as to what all are the material facts in a given case. In Ram Sewak Yadav’s case, xxxxx the election petitioner viz., one Sri Kidwai had in the election petition, among other others, averred that numerous ballot papers cast in favour of petitioner were wrongly included in the ‘bundles of respondents’ and the petitioner had stated that he was confident that if the votes actually cast in favour of the petitioner are counted as votes of petitioner, and if the ballot papers are correctly sorted, counted and bundled, respondent-1 will be found to have polled less number of votes as compared to petitioner. It was also alleged that the result of the election was materially affected by the improper acceptance and the refusal of votes and by the incorrect sorting and bundling of ballot papers. With reference to these allegations, the Supreme Court has unequivocally stated at para-7 of its Judgment that the para containing the aforesaid allegations is deficient in the recital of material facts, which would be deemed to be within the knowledge of the petitioner. That is so because, at every stage in the process of scrutiny and counting of votes the candidates or their agents have an opportunity of remaining present, at the counting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes and to demand a re-count. He has the opportunity of inspecting the rejected ballot papers. The Supreme Court has pointed out that it is in the context of the same that Section 83(1)(a) of the Act is enacted in making it obligatory on the part of the petitioner to state material facts. Then again in Jitendra Bahadur Singh’s case , as pointed out earlier, the Supreme Court has, with reference to the allegations made in the election petition, pointed out that the election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers from the ballot papers, or whether those agents raised any objection relating to the validity of those ballot papers and if so who those agents are, the serial numbers of the ballot papers, to which each one of them advanced their objections. With reference to the same, the Supreme Court has observed that these are the material facts which are required to be stated.
21. At paras-13 to 18 (both inclusive) hereinabove, I have pointed out as to what the contents of paras-6 to 13 of the election petition art, as also the gist of the submission made at the Bar with reference to the said paragraphs. It will have to be seen as to whether if the said allegations are tested by the touch stone of the observation made by the Supreme Court in Ramasewak Yadav’s case and Jitendra Bahadur Singh’s case, the said paras can be said to be lacking in material facts. Para-6 of the Election Petition in this behalf is dealt with in para-13 of this order hereinabove. As pointed out therein, the allegations relating to alleged impersonation touch upon only 14 serials, the rest of the allegations contained therein is only too vague to say the least. The rest of the allegation is that several persons whose names had been included in the voters list had died long before the election and their votes were cast by the followers of the 11th respondent by impersonating the voters. As pointed out therein if all the voters relating to the serials mentioned therein are deducted from out of the total votes polled by respondent-11 and added to those polled by the petitioner or distributed among other candidates by adopting any permutation and combination the same would not upset the election of respondent-11. It is necessary to remember at this juncture, the provisions reflected in Section 100(1)(d) of the Act. The different grounds referred to therein, viz., the improper acceptance of any nomination, any corrupt practice, or the improper reception, refusal or rejection of any votes or the reception of any votes which is void or by non-compliance with the provisions of the Constitution of this Act would be available only if it had materially affected the result of the election and only to avoid the election of the returned candidate. Where the difference between votes secured by the returned candidate and the one next to him exceeds the total number of votes alleged to have been wrongly counted in his favour, the election is not avoided. As already pointed out, in so far as the rest of the allegations therein are concerned, I have no hesitation whatsoever in holding that the said allegation is vague. As pointed out by the Supreme Court in Ram Sewak Yadav’s case, these facts are deemed to be within the knowledge of the petitioner. If he does not give out the details in that behalf alleging therein as to what are the different serials, in respect of which impersonation was practised, it is obvious that the said omission would amount to failure to state the material facts. Hence, t have no hesitation to hold that para-6 of the Petition is vague and does not contain all the materials facts and does not stand the test laid down by the Supreme Court.
21. The contents of para-7 of the Election Petition and the gist of the submission made in that behalf are referred to in para-14 of this Judgment (order). In so far as this para is concerned what is said with reference to para-6 will hold good with mere rigour to this para. The details necessary in this behalf are conspicuous by their absence. I have no hesitation whatsoever in holding that para-7 also lacks the concise statement of material facts as required by Section 83(1)(a) of the Act.
22. In so far as the contents of para-8 of the Election Petition are concerned the same is dealt with in para-15 of this order. The gist of the allegation is that large number of dead persons are in polling booths 74, 75, 19, 46, 51, 52, 53, 5, 72, and 73 and the polling was 92.9%, 89.2%, 95%, 93%, 85%, 85% and 86% respectively. It is asserted that it is most unusual as there was large number of dead persons. It is necessary to mention that it is not stated as to how many persons were dead and to which of the serials referred to them. Further it is not as if the petitioner is not in a position to state as to how many persons are dead and what are those serials which pertain to them. As pointed out by the Supreme Court in Jitendra Bahadur Singh’s case these are all material facts and failure to give the details will amount to violation of Section 83(1) (a) of the Act. On a careful consideration of the allegations reflected in para-8 of the Election Petition, I have no hesitation whatsoever in holding that tested by the touch stone of the observation of the Supreme Court particularly in Jitendra Bahadur Singh’s case, the said para cannot be said to contain the material facts at all.
23. The contents of paras-9, 10 and 11 of the Election Petition are dealt with in para-16 of this Judgment (Order). As pointed out therein the gist of the allegations is that counting of the votes took place on 26.11.1989 and 27.11.1989 and there was keen competition between the petitioner and respondent-11 and at 1.30 p.m. on 27.11.1989 the Returning Officer prepared the final result sheet of votes polled by each of the candidates and the returning officer gave two minutes to the candidates for filing any application under Rule 63 of the Election Rules and it is stated that the petitioner who was not present in the counting hall came to the counting hall at about 1.15 p.m. and he was told that the counting was coming to a close and he was leading and that the petitioner submitted an application for recount of the votes as he had serious doubts about the correctness of the counting of ballot papers more particularly regarding the large number of rejected votes. The copy of the application given by the petitioner is at Annexure-A and the order passed thereon is at Annexure-B. The Returning Officer rejected the application. In para-11 of the Petition it is stated that the petitioner’s election agent Sri Jayapal Patil of Chandana Hosur was present throughout and at Table No. 4 while bundling of the ballot papers of 50 each, a mischief was done by placing the ballot papers cast in favour of the petitioner in the bundle of the Janatha Dal candidate, thereby tilting the balance in favour of respondent-11 At this juncture, it is necessary to make a detailed reference to the application at Annexure-A and the order thereon at Annexure-B. Annexure-A reads as under:
“I am the candidate contesting for the Rajya Rait Sangh Bagewadi.
I got some doubt in counting, Hence please recount the same all the votes, Result should not be declared”.
The order passed thereon by the Returning Officer is at Annexure- B. It reads as under:
“I, K.R. Narayan, the Returning Officer for 199 Assembly Constituency after completion in Result sheet in Form No. 29, I paused for a minute at two then the above cited applicant Sri K.S. Yellurkar candidate for 199 Bagewadi Assembly Constituency filed an application for recount on the ground that he got some doubt in counting hence recount the same all the votes, result should not be declared.
I commenced the counting of votes at 11 a.m. on 26.11.1989 on 16 tables with the assistance of 3 counting Assistants and one Supervisor per Table. Sri Yellurkar the contesting candidate had appointed his counting Agents for each table. In all ten rounds at counting took place from 11 a.m. on 26.11.89 to 1.30 a.m. on 27.11.89.
Now as the Rule 63 (clause 2) states that the right of a candidate to demand a recount does not mean that recount can be granted for mere asking, the candidates demanding recount has to make out a prima facie case that return was not accurate and recount is necessary in the interest of justice nor the candidate is losing deposit where the number of votes polled by him is close to the minimum required to save his deposit. I have given reasonable opportunity and sufficient time for the counting agents to make out prima facie case while the counting Supervisor comes to Returning Officer or Assistant Returning Officer’s table for consideration of doubtful votes and giving returns of the polled votes candidates wise. The application filed by the candidate does not appear reasonable to consider recount as he has just would have made out a prima facie case at the beginning of during counting or at the closure of counting.
Hence going through carefully, the application of the applicant for recount and taking sufficient consideration as per Rule 63(2), I find no reason to allow his application for recounting for simple reasons as he has stated that he has some doubt in counting which does not attract any consideration of the undersigned and hence I justify in rejecting his application. Hence rejected, besides I find no reason to withhold the pronouncement of result and hence I pronounced the result”,
As pointed out earlier, the allegation with reference to the above is that while bundling of the ballot papers of 50 each, a mischief was done by placing the ballot papers cast in favour of the petitioner in the bundle of the Janatha Dal candidate, thereby tilting the balance in favour of respondent-11. At this juncture, it is necessary to notice here that a similar allegation was reflected in the case dealt with by the Supreme Court in Ram Sevak Yadav’s case and the Supreme Court has found that the said allegations are vague and the same did not comply with the statutory requirements of Section 83(1)(a) of the Act. This observation with reference to the facts in the said case which are identical to the allegations made in para-11 of the Election Petition in this case, can be seen in para-10 of the judgment in Ram Sevak Yadav’s case. The said para is culled out in full earlier and it is not necessary for me to cull out the same here again. It will suffice if it is stated that the said observation would hold good with reference to the allegations made in para-11 of the Election Petition. I may also point out here that the observations made by the Supreme Court in Jitendra Bahadur Singh’s case in para-10 also would apply to the facts of this case with reference to para-11 of the Election Petition. Para-10 in Jitendra Bahadur Singh’s case is already culled out earlier in full and it is therefore, not necessary to cull out the same here again. The Supreme Court has, among other things, observed therein that the election petition is silent as to the inspection of ballot papers or whether the counting agents had noted down the serial numbers of these ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; and if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections and that these again are the material facts required to be stated. It is significant to notice here that these details are conspicuous by their absence either under para-11 or in para-9 of the Election Petition. Para-10 of the Election Petition only refers to the application filed by the petitioner to the Returning Officer and the order passed on the said application by the Returning Officer. In para-9 as pointed out earlier, the allegation is that the petitioner, among other things, submitted the application for recount of the votes as he had serious doubts about the correctness of the counting of the ballot papers, more particularly regarding the large number of rejected votes. It is therefore clear that what is stated in para-10 of the Judgment in Jitendra Bahadur Singh’s case would apply on all fours to the allegations made in para-9 of the Election Petition also aS rightly pointed out by the Returning Officer in his order at Annexure-B which is culled out earlier, when no prima facie case was made out for recount the application for recount was rightly rejected. Further, the application at Annexure-A does not disclose any material facts. All that is stated is that the petitioner got “some doubt” in counting. What is that doubt and what is the basis of that doubt and what are the details with reference to that doubt are not mentioned in Annexure-A. Those are also not mentioned in para-9 of the Election Petition. Under these circumstances, I have no hesitation whatsoever, in holding that paras-9 to 11 also do not contain the material facts enjoined by the statutory provisions reflected in Section 83(1) (a) of the Act.
24. The allegations made in paras-12 and 13 of the Election Petition and the gist of the submission made with reference to the same are stated in paras-17 and 18 respectively of this order hereinabove. It is therefore, not necessary to cull out the said allegations in extenso here again. The sum and substance of para-12 of the petition is that large number of votes amounting to 4,390 have been declared as invalid and that the rejection of those votes is highly illegal in that while issuing the ballot papers, the presiding officer had put his seal on the back side of the ballot papers and he had affixed his signature and in over 1000 ballot papers the ink of the seal of the Presiding Officer was visible from the front side, and the voters had affixed the seal in accordance with their preference but the Returning Officer rejected the ballot papers on the ground that the seal put on the back side was visible on the front side on the symbol of one of the candidates. In so far as this aspect is- concerned, I am of the view that the observations made by the Supreme Court in para-10 of the judgment in Ram Sevak Yadav’s case and the observations made by the Supreme Court in para-10 of the Judgment in Jitendra Bahadur Singh’s case would hold good on all fours. Even at the risk of repetition, it would be indeed refreshing to recall the observations made in para-10 of the judgment in Ram Sevak Yadav’s case. Among other things, it is observed therein that in para-6(K) of the Election Petition in that case, it was averred that due to a deficiency in the supply of sealing ink, marks on ballot papers, though not quite clear, yet the marks clearly indicating the intention of the voters, were wrongly rejected as invalid by the returning officer and in para-12 of the Election Petition in that case, it was averred that the petitioner is confident that if the votes actually cast in favour of the petitioner are counted as votes of the petitioner and if the improperly accepted votes which have been counted in favour of other respondents are taken out and if the ballot papers are correctly sorted, counted and bundled, respondent-1 will be found to have polled less votes as compared to the petitioner and that it was also averred that the result of the election has been materially affected by the improper acceptance and refusal of votes and by the incorrect sorting, counting and bundling of the ballot papers. With reference to the same, the Supreme Court has observed that the averments in the petition for setting aside the election on the ground of improper acceptance or rejection of votes were vague and did not comply with the statutory requirements of Section 83(1)(a) of the Act. Then again in para-10 of the Judgment of the Supreme Court in Jitendra Bahadur Singh’s case it is pointed out that the election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objections relating to the validity of those ballot papers, and if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections and that these again are the material facts required to be stated. The allegations in para-12 do not stand the said test. Under these circumstances, I have no hesitation in holding that the said para also does not comply with the statutory requirements reflected in Section 83(1)(a) of the Act.
25. The allegations made in para-13 of the Election Petition are dealt with in para-18 of this order. It is, therefore, not necessary to cull out the said allegations. It will suffice if it is observed that whatever is the observation with reference to para-12 of the Election Petition immediately hereinabove will hold good with reference to this para also. It is not stated by the petitioner as to how many ballot papers were rejected and what are those serial numbers of those ballot papers which were rejected. Under these circumstances, it is clear that the said para also does not comply with the statutory requirement of Section 83(1)(a) oftheAct.
26. I have pointed out hereinabove as to how the different paras ranging from paras-6 to 13 in Election Petition do not contain the ‘material facts’, the said expression being understood in the way and manner as explained by the Supreme Court in the various Decisions referred to earlier. What consequence should follow from the above deficiency is a matter for the consideration of this Court. That aspect will be considered little later after dealing with another aspect which is highlighted by Sri Goulay, learned Counsel for respondent-11.
27. Sri Mohandas Hegde, learned Counsel for the Election Petitioner submitted that the different points pressed into service by the learned Counsel for respondent-11 relate to the area of evidence and do not pertain to the area of pleadings. The learned Counsel submitted that the allegations reflected in the different paras, viz., paras-6 to 13 do contain the necessary statements and the further elucidation in that behalf can be had only in the course of evidence. The learned Counsel submitted that if the contention of Sri Goulay is accepted, it may not be possible for any Election Petitioner to file an Election Petition. The learned Counsel also submitted that the different Decisions pressed into service by the learned Counsel for respondent-11 have no application to the question in controversy in this case at this stage and that therefore, the submissions made by the other side are liable to be rejected. The learned Counsel has also submitted that in the facts and circumstances of this case, it is not at all possible to expect the petitioner to give more facts than what he has already given with reference to the grounds made out with reference to the grounds made out in paras-6 to 13. I have already pointed out with reference to the facts of the different cases dealt with by the Supreme Court and pointed out earlier hereinabove as to how the ratio laid down in the said cases has an application to the facts of this case also. I have culled out the gist of the allegations made in paras-6 to 13 and I have also pointed out the submissions made in this behalf and thereafter I have pointed out as to how those submissions made by the learned Counsel for resppndent-11 would apply to the respective paras. It is not necessary to risk a repetition here again by adverting to the same and it will suffice if it is observed that the submissions made by Sri Hegde stand answered hereinabove. The observations made by the Supreme Court in para-10 of the Judgment in Ram Sevak Yadav’s case and the observations made by the Supreme Court in para-8. 9 and 10 of the Judgment in Jitendra Bahadur Singh’s case, with reference to the identical facts clearly answer the points raised by Sri Hegde.
28. I have considered hereinabove, the first ground passed into service by the learned Counsel for respondent-11. The second ground urged by Sri Goulay is that the Election Petition is not complete in all respects, in that the verification which is mandatory as provided for under Section 83(1)(c) of the Act is not in consonance with the relevant provisions of CPC viz., the provisions contained in Order VI Rule 15 CPC. This aspect is referred to in para-11 of this Order hereinabove. The gist of the submissions made by Sri Goulay in that behalf is that the person verifying the Election Petition with reference to the numbered paras of the pleadings, should specify as regards as to which of the paras are true to his knowledge and which of the paras are true to the information received and believed to be true, but in the instant case, the Election Petitioner has verified the pleadings as under;
“I, Yallurkar Kisan Sidray, Advocate, aged 49 years, Chawat Galli, Belgaum, the petitioner herein, declare that the statement set out in paras-1 to 14 are based on my personal knowledge and information, which I believe to be true”.
It is pointed out by the learned Counsel for respondent-11 that the same is not in consonance with the requirements of Order VI Rule 15(2) CPC in particular. As pointed out earlier, he has relied on paras-26 and 27 of the Judgment of Bopanna, J., in Kannan’s case referred to hereinabove. This aspect is dealt with in para-11 of this order hereinabove and that therefore, it is not necessary to refer to the same here again. It will suffice if it is observed that the verification to the Election Petition is not strictly in conformity with Section 83(1)(c) of the Act.
29. From what is stated hereinabove, it is clear that Section 83(1)(a) of the Representation of the People Act is mandatory, whatever may be the ground on which the election is challenged. Under the said provision, the concise statement of material facts on which the petitioner relies is a must. The 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 has not appeared to oppose the election petition, on the basis of the facts pleaded in the petition (Azar Hussain v. Rajiv Gandhi vide Supra). Further, omission of a single material fact leads to an incomplete cause of action (Samant N. Balakrishna v. George Fernandez – ). It is also clear that the Election Petition can be summarily dismissed if it does not furnish the cause of action. Further, the power under Section 86 of the Act can be exercised where there is non-compliance to the mandatory requirement of Section 83(1) & (2) of the Act. (C. Kannan v. Returning Officer – ILR 1989 KAR 1085). If an election petition can be summarily rejected at the threshold (under Order 7 Rule 11) there is no reason as to why the same cannot be rejected at any stage of subsequent proceeding. If after framing of issues basic defect in the election petition persists (absence of cause of action) it is always open to the contesting respondent to insist that the petition should be rejected under Order VII Rule 11 (Samar Singh v. Kedarnath and Ors). Further the statutory requirements of an election law must be strictly observed and concepts familiar to common law and equity must remain strangers to election law (JYOTHI BASU v. DELHI GHOSAL, ). In the instant case, the different paras viz., paras-6 to 13 do not contain the material facts. They do not stand the test laid down by the Decision of the Supreme Court and referred to earlier. As such they are liable to be struck off. As pointed out in Azar Hussain’s case by the Supreme Court, the powers to strike out the pleadings 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 pursuit and if such is the position in regard to the matters pertaining to ordinary civil litigation, there is greater reason for taking the same view with regard to the matters pertaining to elections.
It is well settled that the provisions of the C.P.C. do not apply in their entirety to the trial of the election petition but the provisions of Order VII Rule 11 apply to an election petition and the High Court has jurisdiction to reject an election petition which does not disclose any cause of action. It would be in the interest of the parties to the petition and to the constituency and in public interest to dispose of preliminary objections and to reject an election petition if it does not disclose any cause of action (Samar Singh v. Kedarnath and Ors.). The question of leading evidence on a material fact which is not pleaded is not permissiblp If therefore all the material facts constituting the cause of action with reference to the ground or grounds under Section 100 of the Act are not pleaded the question of leading evidence in support of the facts not pleaded does not arise because material facts cannot be supplied in evidence. If therefore, the election petition is liable to be dismissed for failure to state the material facts it cannot be said that the same can be dismissed only after recording evidence. 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 also 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. (Azhar Hussain v. Rajiv Gandhi).
30. In the light of what is stated hereinabove, it would follow that the preliminary objections raised in application at I.A.No. III deserve to be allowed. It is further seen that this Court (Murlidher Rao, J) by its order dated 2.4.1991 on I.A.No. II has struck off the allegations of ‘corrupt practice’ pleaded in paras-3 to 5 of the election petition. Having regard to the same and having regard to the order now passed on I.A.No. III as above, it would follow that there will be no triable issues, since all the grounds set out in the petition are covered by paras-3 to 13. Under these circumstances, none of the issues survive and recrimination petition also does not survive.
31. In the result, I.A.No. III is allowed; As a consequence of the same and the order dated 2.4.1991 on I.A.No. II, the Election Petition is dismissed under Section 86 of the Representation of People Act. In the facts and circumstances of the case, I make no order as to costs.