ORDER
V.G. Palshikar, J.
1. Election of Shri Surendra Goyal
respondent No. 1 to the Jaitaran Vidhansabha constituency is challenged by the petitioner Dilip Choudhary who unsuccessfully contested the election. The election is challenged on several grounds mentioned in the petition and in response to the notice of the petition, it is submitted by respondent No. 1 by way of an application under Sections 82 and 83 read with Section 87 of the Representation of the People Act, 1951 (for short ‘the Act’ hereinafter) as also under Order 6, Rule 2, Rule 16 read with Order 7, Rule 11 of the Code of Civil Procedure, 1908. By this application several objections are taken to the maintainability of the petition at the initial stage on the grounds that (i) joinder of respondent No. 7 as party respondent is unnecessary and illegal and, therefore, violative of Section 82 of the Act and hence, the petition is liable to be dismissed on this ground alone; (ii) that the petition is devoid of statement of material facts giving rise to cause of action and is, therefore, liable to be dismissed in limine; (iii) the facts as stated in the petition do not give rise to any cause of action and hence, the petition is liable to be dismissed under Order 7, Rule 11, C.P.C.; (iv) the pleadings are wholly incomplete and lack of material facts and particulars as are required to be given as per Order 6, Rules 2 and 16 of the Civil Procedure Code. The petition is liable to be rejected in limine.
2. The application was opposed by the petitioner and it was pointed out by extensive reference to the pleadings as they stand, that none of the objections as raised by respondent No. 1 can be accepted as sufficient pleadings with adequate statement of material facts and particulars giving rise to a cause of action has been stated. What is required is proof of these facts by leading cogent evidence to support and substantiate the pleadings already made and consequently the petition cannot be dismissed in limine.
3. With the assistance of Mr. J. P. Joshi, the learned counsel for the petitioner and Mr. N. M.
Lodha, the learned counsel for respondent No. 1, I have scrutinised the petition as also the application filed by the respondent No. 1 to examine the contentions raised by the rival parties. An adjudication of these preliminary objections expedi-tiously is one of the requirements of law as laid down by the Supreme Court of India.
4. Since establishment of the Indian Republic, elections to the legislative bodies as created by the Constitution are held under the provisions of the Act for about 50 years. The action is implemented as interpreted from time to time by the Supreme Court of India. It is now a settled position of law pertaining to election that the pleadings in election petition should be extensive and complete and any lack of pleadings would result in dismissal of the petition in limine. By and large, the provisions of the Act have been construed very strictly and strict compliance of all the provisions of this enactment is ordained by the Supreme Court of India by several judgments written by it on different questions raised under the Act. In fact, law in this regard has been crystallised by the Supreme Court of India to a very great extent and all that remains to be done in such cases now is to apply the law as laid down by the Supreme Court of India to me facts of each case.
5. The Supreme Court of India has in its one of the latest judgments dated 11 -3-99 delivered by the Full Bench in D. Ramachandran v. R. V. Janakiraman, (1999) 2 JT (SC) 94 : (AIR 1999 SC 1128) as laid down as under :– (Paras 8, 4 and 7 of AIR)
“In all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such. The Court cannot probe into the facts on the basis of the controversy raised in the counter.
There was no whisper therein that any of the allegations in the petition was vague or made in such a way that the respondent was not in a position to understand and meet the same. Nor was there any averment that any part of the election petition was unnecessary, scandalous.
frivolous or vexatious or would tend to prejudice, embarrass or delay the fair trial of the suit. There was also no averment to the effect that the election petition was otherwise an abuse of process of Court.
The judgment of the learned Judge is obviously based upon a confusion of ideas and failure to appreciate the distinction between the provisions in Sections 81, 83 and 85 of the Representation of the People Act, 1951 (hereinafter referred to as the ‘Act’) on the one hand and Order VI, Rule 16 and Order VII, Rule 11 of the Civil Procedure Code on the other. The learned Judge has chosen to test the veracity and sufficiency of the allegations in the election petition by taking note of the facts pleaded by the first respondent in his counter-affidavit.”
6. In this judgment, the Supreme Court has taken pains to observe that the distinction between material facts and material particulars should be well maintained and accepted while deciding the election petition. In para 8 the Supreme Court observed thus :–
For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such.”
Then all the material case law on the point was noted by the Supreme Court in para 12 and it was observed that all these decisions have no application to the case before the Supreme Court of India as they were all rendered in election petitions disposed of after trial. Then in para 13. the decisions in cases of Ram Chand Bhatia v. Hardyal,(1)86) 2 SCC l21 : (AIR 1986 SC 716) and Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315: (AIR 1986 SC 1253) were considered and distinguished. All these cases have been relied upon by the learned counsel for respondent No. 1 in this case also in support of his plea that for lack of material facts and particulars and nondisclosure of cause of action, the election petition is liable to be dismissed in limine. The challenge, therefore, will have to be examined in the light of the observations made by the Supreme Court as quoted above in its recent decision. In yet another decision rendered by the Supreme Court of India on 22-3-99 reported in V. S. Achuthanandan v. P. J. Francis, (1999) JT 2 (SC) 347 : (AIR 1999 SC 2044), the same Hon’ble Bench of the Supreme
Court of India has again stated the distinction between grounds, material facts and material particulars. The Supreme Court of India has observed inthis case as under(para 11 of AIR):–
“It would, thus appear, that the election petition was rejected mainly on the ground that it did not disclose the cause of action as according to the learned trial Judge the allegations regarding corrupt practice were vague and did not disclose “material facts and full particulars” of the corrupt practice alleged. It is evident that the learned trial Judge-did not distinguish between the material facts’ and ‘material particulars’ of allegations regarding corrupt practices as defined under Section 123 of the Act. The law on the point is well; settled which appears to have not been taken note of or appreciated bv the learned trial Judge. After referring to various pronouncements of this Court including cases in Balwan Singh v. Lakshmi Narain, (1960) 3 SCR 91 : (AIR 1960 SC 770), Samant N. Balakrishna v. George Fernandez, (1969) 3 SCC 238), Virendera Kumar Saklecha v. Jagjiwan, (1972) 1 SCC 826 : (AIR 1974 SC 1957), Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511 : (AIR 1976 SC 744), F. A. Sapa v. Singora (sic) And Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, (1995) 5 JT (SC) 410 : (AIR 1995 SC 2284) and host of other authorities, this Court in L.R. Shivaramagowda v. T. M. Chandrashekar, (1998) 8 JT (SC) 278 : (AIR 1999 SC 252) held that while failure to plead ‘material facts’ is fatal to the election petition and no amendment of the pleading is permissible to introduce such material facts after the time limit prescribed for filing the election petition, the absence of ‘material particulars’ can be cured at a later stage by an appropriate amendment. An election petition was not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out. It is, therefore, evident that material facts are such primary facts which must be proved at the trial by a party to establish existence of a cause of action. Whether in an election petition a particular fact is material fact or not, and as such, required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon, and in the light of the special circumstances of the case. In Udhav Singh case (AIR 1976 SC 744) (supra). the Court held :–
“In short all those facts which are essential to clothe the petitioner with a complete cause of action are “material facts” which must bepleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).
“Particulars” on the other hand are “the details of the case set up by the party”. “Material particulars” within contemplation of Clause (b) of Section 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish. The material facts already pleaded in the petition in compliance with the requirements of Clause (a). ‘Particulars’ serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative.”
It will be seen here that while making this statement of law, the Supreme Court of India has considered all previous decisions of the Court starting with the case of Balwan Singh and ending with the case of L.R. Shivaramagowda and has then observed that while failure to plea material facts is fatal to an election petition, absence of material particulars can be cured at a later stage by appropriate amendment and has elaborated what is ‘material facts’ and what is ‘material particulars’. It is in light of these observations that we have to approach the preliminary objections raised in the present petition.
7. As I understand the various rulings of the Supreme Court cited above, the petition is liable to be dismissed for want of material facts. It cannot be dismissed for want of further material and better particulars in relation to those facts and the judgment of this Court in Navrang Singh v. Bhanwar Singh and others, Election Petition No. 16 of 1980 decided on 21-4-1981 is accordingly liable to be read in the light of the Supreme Court judgments, which were subsequent and have been noted above.
8. The election petitioner has challenged the election basically on the ground of several illegalities and irregularities committed during the course of election. The petitioner has first challenged in para No. 12 that the Returning Officer has shown definite interest in respondent No. I during the course of counting by his various acts and omissions, to the benefit of respondent No. 1. It is, therefore, clearly pleaded that by various acts and omissions committed by respondent No. 7, the Returning Officer wrongly show cause given to the returned candidate respondent No. 1. Then in para No. 13, it is observed that not only various invalid votes were counted in favour of the respondent No. 1 but various valid votes polled in favour of the petitioner were illegally rejected. The petitioner was also informed by his counting agents that while preparing the bundles of ballots, large number of ballots which were in the petitioner’s favour, were included in the bundles counted in favour of respondent No. I. The counting agents and the election agents of the petitioner then raised objection before the Returning Officer who was supervising the counting from central table but for the reasons best known to the Returning Officer, he paid no heed to these objections. The allegation is that not only the votes were counted in favour of the returned candidate and valid votes of the petitioner were counted in favour of respondent No. 1. The basic facts giving rise to this allegation are stated in para No. 13.
9. Then in para No. 14, the petitioner has
stated in his petition as under :–
“(14) That various mistakes in the roundwise counting prepared by the Returning Officer, are apparent on the face of record, which are detailed herein below :–
(a) That it will appear from the table prepared for the second round that at Table No. 10 at one place the petitioner has been shown to have secured 380 voles and at the same place it has been shown that the petitioner has secured 302 votes. This mistake is apparent on the face of the record. Similarly in 2nd round votes of Ram Niwas were initially shown as 11 but were later reduced to 01 and were added in the votes of respondent No. I which is apparent on face of record as initially his total was shown as 2983 but later it was increased to 2993.
(b) Similar mistake appears in the Table prepared in round No. 3 at table No. 18 where various cuttings have been made without properly authenticating it by the initials of the Returning Officer.
(c) Similar over-writings appear at Round No. 4 at Table No. 6. Again in Round No. 5 at Table No. 13 and Table No. 16 there is definite overwriting and the same has not been authenticated by the Returning Officer.
(d) Similarly in Round No. 6 at Table No. 22 the petitioner was initially shown to have secured 479, which was reduced to 469 by over-writing.
(e) Similarly regarding postal ballots in Round No. 10 at Table No. 9 there were various cuttings and over-writings.
Thus from the perusal of all the table of roundwise counting, it will appear that various irregularities and discrepancies have been committed by the Returning Officer and various over-writings and cuttings have not been authenticated and such irregularities have resulted into reduction in the total number of votes polled in favour of the petitioner and has thus facilitated the victory of respondent No. 1 at the election.”
10. The contention of Mr. N. M. Lodha, learned counsel for respondent No. 1 that the petition is liable to be dismissed for lack of material particulars, lack of serial numbers of ballot papers, which according to the petitioner, were wrongly rejected or accepted and other details in such relation is not acceptable for the reason that all these cases are material particulars or better particulars which may be necessary to prove the allegations made by the facts already urged in the petition and quoted above. The election petition cannot be dismissed on these grounds in the light of the judgments of the Supreme Court as noted above.
11. Relying on these pleadings as quoted above, it was submitted by the learned counsel for the petitioner that the same are adequate pleadings of material facts necessary for the purpose of explaining out the cause of action as contemplated by the various decisions of the Supreme Court of India. It will be grave injustice to throw the election petition on such flimsy ground of non-supply of serial number of votes wrongly calculated by the Returning Officer with malice. The averments as are made in the election petition are sufficient to give complete notice to the respondent elected candidate of the cause he has to meet during trial. These pleadings definitely raise a triable issue.
12. It is nowhere pleaded in the application that the returned candidate is unable to meet the cause of the action against him. No written statement, reply has been filed. The allegations made in paras Nos. 12to 14 in the petition will give rise to a triable issue and the other particulars of all the details certainly are matters of evidence. The
objection that the petition is liable to be rejected as it does not give complete material statement of facts, is devoid of any substance and is rejected.
13. This takes me to the second contention that joinder of respondent No. 7 Returning Officer is bad and if so, should it result in dismissal of the petition? It is obvious that the Returning Officer is not a necessary party. All the decisions pointed out in this regard have held that persons not necessary parties to the petition need not be joined. The best authority in mis regard is the judgment of the Supreme Court in Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983 wherein the Supreme Court of India has laid down that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Act. The Supreme Court, therefore, ordered that such unnecessarily added respondent should be discharged. It has been observed by the Supreme Court as under (para 9):–
“We think that the concept of ‘proper parties’ is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4) and no others. However, desirable and expedient it may appear to be, none else shall be joined as respondents.”
It is, therefore, obvious that joinder of respondent No. 7 the Returning Officer was unnecessary. The question is whether joinder of such unnecessary respondent must result in dismissal of the petition. It has been laid down by the Supreme Court in catena of cases that non-compliance of Section 82 must result in dismissal of the petition. Section 82 states who shall be party to the petition even though persons who are required to be made parties under Section 82 are not made parties then such joinder must result in dismissal of the petition. But if person other than as laid down in Section 82 of the Act are joined, it is a case of mere joinder of unnecessary parties. None of the judgments of the Supreme Court cited above require anywhere that such election petition itself must be dismissed. To held so would be a travesty in law. Merely because the petitioner has joined a Returning Officer against whom he has made sufficient allegation of the bias and favouritism, the party respondent the petition cannot be thrown out on the ground that it contains respondents in addition to those contemplated by
Section 82. It is true that strict compliance of the provisions of the Act is required and the Supreme Court of India is always strictly construing the provisions of the Act but careful reading of the judgments of the Supreme Court of India on this point does not even show directly or indirectly, advertently or inadvertently, consciously or unconsciously that where the unnecessary person has been added, the petition must be dismissed. In the case of Jyoti Basu cited above, what has been done by the Supreme Court is direction of deletion of the names of unnecessary respondents. The facts of the present case are very similar to those in Jyoti Basu’s case, (AIR 1982 SC 983) and it would be worthwhile to note the facts of that case. Election to the House of the People from the 19-Barrackpore Parliamentary Constituency in the mid-term Parliamentary election held in January, 1980 was challenged and the petitioner has joined the Chief Minister and two other Ministers of the West Bengal Govt. as party respondents. An application was, therefore, filed by the Chief Minister and two Ministers before the High Court of Calcutta requesting the High Court to strike out that names from the array of respondents in the election petition. The application was dismissed by the Calcutta High Court on the ground that the applicants namely, the Chief Minister and two other Ministers were proper parties to the election petition and, therefore, their names should not be struck out. In an appeal against this order before the Supreme Court, the Supreme Court held in the above cited judgment that the concept of ‘proper parties’ must remain alien to an election dispute, passage as quoted above. The Supreme Court then proceeded to strike out the names of these persons, In view of this authoritative pronouncement of the Supreme Court, it cannot be urged on the basis of this judgment that where such addition is made, the petition itself must be dismissed. The second contention raised by the applicant of addition of respondent No. 7 Returning Officer, Jaitaran as a party respondent being not necessary in view of provisions of Section 82 of the Act, the petition is liable to be dismissed, is devoid of any substance and is rejected. The respondent No. 7 is, therefore, at liberty to claim discharge in view of the law laid down in Jyoti Basu’s case (AIR 1982 SC 983).
14. This takes me to the last contention that no
cause of action is disclosed as mentioned in the application under Order 7 Rule 11 CPC, the same is liable to be dismissed. While discussing the pleadings in extenso in regard to the contention with regard to statement of facts already quoted above, the pleadings and the conclusion to the objection with regard to illegalities and irregularities committed by the Returning Officer in the manner of counting of votes and concise statement of material facts, which do give rise to a cause of action against the respondents. This contention is, therefore, also devoid of any substance and is consequently dismissed.
15. In the result, the application fails and is dismissed. The respondents are directed to file their written statement, if they so desire, by 18-5-99. List the case on 18-5-99 for further hearing.