REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO......5142............OF 2011
(Arising out of S.L.P.(C)No.14286 of 2010)
Nandiesha Reddy Appellant
Versus
Mrs.Kavitha Mahesh Respondent
With
CIVIL APPEAL NO......5143............OF 2011
(Arising out of S.L.P.(C)No.16337 of 2010)
N.S. Nandish Reddy Appellant
Versus
Mrs. Kavitha Mahesh Respondent
J U D G M E N T
CHANDRMAULI KR.PRASAD,J.
1. Nandiesha Reddy got elected to the Karnataka
Assembly in the general election from K.R.Pura
Assembly Constituency held on 10th of May, 2008.
His election was challenged by Kavitha Mahesh,
inter alia, on the ground that her nomination was
illegally not accepted by the Returning Officer
2
which rendered Nandiesha Reddy’s election void.
Nandiesha Reddy (hereinafter to be referred to as
`the Returned Candidate’) filed two applications;
one under Order VI Rule 16 of the Code of Civil
Procedure for striking out pleading from the
election petition and another under Sections 83
and 86 of the Representation of the People Act,
1951 (hereinafter to be referred to as `the Act’)
read with Order VII Rule 11 of the Code of Civil
Procedure, 1908 for dismissal of the election
petition. The Karnataka High Court by the
impugned orders dated 8th October, 2009 and
12th November, 2009 dismissed the aforesaid
applications.
2. The Returned Candidate assails aforesaid
orders in the present Special Leave Petitions.
3. Leave granted.
4. Short facts giving rise to the present
appeals are that the Election Commission of India
on 16th of April, 2008 notified its intention to
hold General election to the Karnataka State
3
Legislative Assembly and announced the election
schedule. According to the schedule, the last
date for submission of the nomination was 23rd of
April, 2008 whereas the scrutiny of the
nomination papers was to be undertaken on 24th of
April, 2008. The date of election fixed was 10th
of May, 2008. Kavitha Mahesh (hereinafter
referred to as `the Election Petitioner’) was an
electorate in the combined Varthur Assembly
Constituency prior to de-limitation. After de-
limitation the said constituency has been split
into three constituencies, namely (i)
Mahadevapura (ii) C.V.Raman Nagar and (iii)
K.R.Pura. After the de-limitation, the Election
Petitioner’s name appeared in the electoral roll
of C.V.Ramana Nagar Constituency. In order to
contest the election from K.R.Pura Assembly
Constituency, according to the Election
Petitioner, on 19th of April, 2008 she obtained a
set of nomination forms from the Returning
Officer. It is her case that on 23rd of April,
2008 at about 2.00 P.M. she delivered the
4
nomination papers together with all annexures to
the Returning Officer and requested him to
furnish the latest electoral roll of K.R.Pura
Assembly Constituency in order to extract the new
part number and serial number of the proposers
who had signed on the nomination papers for
incorporating the same in the appropriate column
against their respective names. It is alleged
that the Returning Officer instead of furnishing
the latest electoral roll of K.R.Pura Assembly
Constituency, asked the Election Petitioner to
approach the Revenue Office to obtain those
details. It has specifically been averred by the
Election Petitioner that she went to the Revenue
Office but could not get those details from the
Revenue Officer and therefore, she went to file
the nomination papers, presented the same before
the Returning Officer but it was not received. It
is her allegation that, thereafter, she attempted
to give a handwritten representation to the
Returning Officer but the same was also not
accepted. Hence she left the place without
5
filing the nomination. It is also her allegation
that on 28th of April, 2008, she filed a complaint
in this regard before the Chief Election
Commissioner.
5. The election was held on 10th of May, 2008
and its result was published on 27th of May, 2008
in which the Returned Candidate was declared
elected from K.R.Pura Assembly Constituency.
This was challenged by the Election Petitioner in
an election petition before the Karnataka High
Court. The Election of the Returned Candidate
was sought to be declared null and void on the
ground of illegal rejection of nomination paper
at threshold by the Returning Officer.
6. As usual, the Returned Candidate filed
applications for striking out various paragraphs
from the election petition. This was registered
as Misc. Civil No. 15204 of 2009. Another
application for dismissal of the election
petition was filed which was registered as Misc.
Civil No. 15772 of 2009. In this application it
6
was pointed out that as the Election Petitioner
was not a candidate set up by any recognised
political party, for valid nomination according
to first proviso of Section 33 (1) of the Act the
nomination paper was required to be subscribed by
ten electors of the constituency. It was further
pointed out that the Election Petitioner shall
not be deemed to be duly nominated for election
from the constituency as she had not made any
deposit as required under Section 34 of the Act.
The Returned Candidate further alleged non-
compliance of Section 81(3) of the Act and
contended that he has not been furnished with the
true attested copy of the election petition and
its annexures as presented to the Court. The
Returned Candidate also sought dismissal of the
election petition on the ground that the same did
not contain concise statement of the material
facts on which the Election Petitioner relied and
the material facts averred did not disclose any
cause of action for the relief sought for.
7
7. All these pleas raised by the Returned
candidate were considered and have been overruled
by the High Court by the impugned orders. While
rejecting the application (Civil Misc. No. 15204
of 2009) for striking out the pleading from the
election petition by order dated 8th October,
2009, the High Court observed as follows:
“53. It is for this reason, I am of
the view that the pleadings in the
petition does not warrant striking off
and assuming that some pleadings are
really not necessary, ultimately if
the retaining or permitting the
pleading to exist does not result in
any prejudice or embarrassment to the
respondent and at any rate, if at all
there being certain complaint or
allegation against the returning
officer and his failure to adhere to
the duties in terms of the statutory
provisions and that being a relevant
plea in the context of wrongful
rejection of a nomination paper, I am
of the view that there is no occasion
to strike out the pleadings as is
sought to be made out in the
application.”
8. The High Court rejected Civil Misc. No. 15772
of 2009 by order dated 12th of November, 2009 and
while considering the plea that the averments in
8
the election petition did not disclose any cause
of action for granting the relief in terms of the
prayer the High Court observed as follows:
” 55. Whether the nomination as was
delivered to the returning officer by
the petitioner as a candidate at 1400
hours on 23-4-2088 in fact, did amount
to a valid nomination within the scope
of the provisions of Section 33 or not,
is not a question that surfaces itself
for examination at this stage, but
later and for the purpose of applying
the drastic penal provision of Order
VII Rule 11(a) CPC, we have to
necessarily accept the plea at its face
value and not by seeking for further
elaboration or for the proof for the
same.
56. …………. in my considered opinion, the
petition averments contain sufficient
plea to disclose a cause of action and
for granting relief in terms of the
prayer. It is, therefore, in my
opinion, that the election petition
cannot be dismissed on the application
[filed by the respondent- returned
candidate] applying the test of the
provisions of Order VII Rule 11 (a)
CPC.”
9. As regards the plea of non-deposit as
required under Section 34 of the Act, the High
Court observed as follows:
” 105. Responding to this
contention, petitioner has submitted
that while the deposit is a requirement9
in law, a deposit can be made till the
last moment; that there was still time
for presenting the nomination paper,
that when the petitioner attempted to
present the nomination paper, time for
presentation had not yet come to an
end; that even assuming that there was
no deposit, it was the bounden duty of
the returning officer to point out the
requirement of deposit fee and enable
the candidate to arrange for deposit
and it is only thereafter if the
deposit is not made before the expiry
of time of filing of nomination, then
alone, the provisions of Section 34 of
the Act can be said to come into play;
that the provisions of sub-section (4)
of Section 36 of the Act takes care of
the situation and such a situation will
arise only when the returning Officer
having consciously and deliberately
avoided even scrutinizing the
nomination papers, by not even
receiving the nomination paper, the
argument is only hypothetical and is of
no consequence in determining the
validity of the election petition nor
the validity of the nomination paper.
106. I have bestowed my attention to
the submission made at the bar and I
find that the argument is really
hypothetical, particularly as the
returning officer had not even cared to
look into the nomination paper, as was
presented by the petitioner-candidate
or on her behalf by her supporters.”
As regards the plea of the Returned Candidate
that the Election Petitioner did not furnish the
copy of the election petition and its annexures
10
as was presented to the Court and that the copies
were not duly attested, the High Court answered
the same in the following words:
“. . . What had been filed as
election petition and annexures with
the registry at the time of initial
presentation have all been, without
dispute, furnished to the respondent.
Even a discrepancy with regard to the
so-called index, which has to be
construed as a list of documents, in
my considered opinion, does not make
any difference for the understanding
of the contents of the petition and
the manner in which the election
petitioner has sought for relief in
the election petition and the grounds
and materials relied upon by the
petitioner, as copies of all original
documents are provided to the
respondent and even on a comparative
perusal of the papers in the court,
with the copies as received by the
respondent-returned candidate made
available by the learned counsel for
the respondent, I do not find any
additional papers having been filed by
the petitioner copies of which are not
made available to the respondent in
the sense, which can make a material
difference to the respondent to
understand the precise case of the
petitioner, which is not given by the
election petitioner and therefore I am
of the view that this is not a
situation warranting dismissal of the
election petition under Section 86 of
the Act, on the premise of non-
compliance with the requirement of the
provisions of Section 81 of the Act.”
11
The Returned Candidate’s pleas that the
election petition does not contain concise
statement of material facts as contemplated under
Section 83 (1) of the Act and has not been
verified in the manner as laid down under Order
VI Rule 15 (1) of the Act have also been rejected
by the High Court. The High Court reproduced the
verification in its impugned judgment and found
the same to be in three parts and observed as
follows:
“……… part-I is within the
knowledge of the petitioner, para-II
based on the information and belief
and part-III on the information that
the petitioner believes to be true
etc. In my considered view, the
verification even as it stands as of
now, and with reference to the
manner of presentation of the
petition and having trifurcated or
separated the petition to parts,
sufficiently and in substantial
manner complies with the requirement
of verification, In terms of clause
-c of sub-section (1) of Section 83
of the Act and therefore this
argument cannot be one to reject the
election petition at the threshold,
on the premise that certain
requirements in law are not
fulfilled.”
12
10. Mr. Dushyant Dave, learned Senior Counsel
appearing on behalf of the appellant points out
that from the averments in the election petition
it is apparent that Election Petitioner was not a
candidate set up by a recognised political party
and her nomination was not subscribed by 10
electors.Accordingly he submits that the Election
Petitioner cannot be considered to be a candidate
so as to maintain the election petition. He
draws our attention to the first proviso of
Section 33 of the Act and points out that for a
valid nomination it has to be subscribed by 10
electors. In support of the submission learned
counsel for the appellant relies on a
Constitution Bench judgment of this Court in the
case of Mithilesh K. Sinha v. Returning Officer
for Presidential Election 1993 Supp. (4) SCC 386
and our attention is drawn to paragraphs 30 and
31 of the judgment which read as under:
” 30. To be entitled to present an
election petition calling in question
an election, the petitioner should have
been a `candidate’ at such election
within the meaning of Section 13(a) for13
which he should have been “duly
nominated as a candidate” and this he
cannot claim unless the mandatory
requirements of Section 5-B(1)(a) and
Section 5-C were complied by him. Where
on undisputed facts there was non-
compliance of any of these mandatory
requirements for a valid nomination,
the petitioner was not a `candidate’
within the meaning of Section 13(a)
and, therefore, not competent according
to Section 14-A to present the
petition.
31. It is also settled by the decisions
of this Court that in order to have the
requisite locus standi as a `candidate’
within the meaning of Section 13(a) for
being entitled to present such an
election petition in accordance with
Section 14-A of the Act the petitioner
must be duly nominated as a candidate
in accordance with Section 5-B(1)(a)
and Section 5-C. Unless it is so the
petitioner cannot even claim to have
been duly nominated as a candidate at
the election as required by Section
13(a). The above conclusion in respect
of the nomination paper of the
petitioner, Mithilesh Kumar Sinha, from
the facts set out by him in the
petition, stated by him at the hearing
and evident from the documents filed by
him makes it clear that the petitioner,
Mithilesh Kumar Sinha, has no locus
standi to challenge the election of the
returned candidate, Dr Shanker Dayal
Sharma as he is not competent to
present the election petition in
accordance with Section 14-A of the Act
read with Order 39 Rule 7 of Supreme
Court Rules. Even otherwise the ground
under Section 18(1)(c) of the Act of
14
wrongful rejection of his nomination
paper urged in the election petition
does not give rise to a triable issue
on the above facts and the irresistible
conclusion therefrom. The material
facts to make out a prima facie case of
existence of that ground are lacking in
the pleadings and squarely negatived by
petitioner’s own statement.”
Reliance has also been placed on a decision
of this Court in the case of Pothula Rama Rao v.
Pendyala Venakata Krishna Rao (2007) 11 SCC 1 and
reference has been made to paragraphs 7 and 8 of
the judgment which read as follows:
“7. The first respondent was the
official candidate of TDP, as he was
issued the B-Form by TDP. Atchuta
Ramaiah’s nomination was not
subscribed by 10 proposers but by only
one proposer. The nomination of
Atchuta Ramaiah was rejected by the
Returning Officer, not on the ground
that he was a “dummy candidate” but
because his nomination was not
subscribed by ten voters of the
constituency, and thus there was non-
compliance with the first proviso to
Section 33(1). The rejection is under
sub-section (2)(b) of Section 36 which
provides for rejection of any
nomination on the ground that there
has been a failure to comply with
provision of Section 33 or Section 34.
8. If an election petitioner wants to
put forth a plea that a nomination was
improperly rejected, as a ground for15
declaring an election to be void, it
is necessary to set out the averments
necessary for making out the said
ground. The reason given by the
Returning Officer for rejection and
the facts necessary to show that the
rejection was improper, should be set
out. If the nomination had been
rejected for non-compliance with the
first proviso to sub-section (1) of
Section 33, that is, the candidate’s
nomination not being subscribed by ten
voters as proposers, the election
petition should contain averments to
the effect that the nomination was
subscribed by ten proposers who were
electors of the constituency and
therefore, the nomination was valid.
Alternatively, the election petition
should aver that the candidate was set
up by a recognised political party by
issue of a valid B-Form and that his
nomination was signed by an elector of
the constituency as a proposer, and
that the rejection was improper as
there was no need for ten proposers.
In the absence of such averments, it
cannot be said that the election
petition contains the material facts
to make out a cause of action.”
11. Election Petitioner appears in person. She
submits that her nomination paper was subscribed
by ten electors of the Constituency and presented
before the Returning Officer but the same was not
accepted. We have bestowed our consideration to
the rival submissions. The Election Petitioner,
16
in the election petition, has stated that she had
“obtained TEN PROPOSERS signatures in Part II of
Annexure `A’ together with their true copies of
their Elector Photo Identity Cards”. Her further
plea in the election petition is that “as per the
given new part number, when we checked for the
names of the proposers in the concerned Electoral
Roll, their names were not found”. The relevant
pleadings in this regard are at paragraphs 9, 10
and 11 of the election petition and we deem it
expedient to reproduce the same as under:
“9. It is most respectfully submitted
that the petitioner on realizing the
time factor to submit the nomination
before the 4th respondent by 1500 hours
and since the day being the last day
for filing nomination papers, has
presented her nomination papers
together with all necessary enclosures
before the 4th Respondent with sole
intention to comply the requirements of
new part number and serial number in
respect of the proposers at the time of
scrutiny of nomination paper, which is
scheduled for next day the 24th April,
2008 wherein a clear 24 hours time
would be available before the
Petitioner to make good the
requirements in her nomination paper.
The petitioner also explained the
reason and the actual position
prevailing in the revenue office and
also requested the 4th respondent to
17
receive her nomination paper and allow
time till scrutiny to comply the
requirement whatsoever.
10. It is most respectfully submitted
that to the petitioners surprise the 4th
respondent spontaneously reacted and
commented “I do not want to listen to
all your stories and I will not receive
your nomination paper without complying
with the requirement of new part number
and serial number against the proposers
in Part-II of Annexure `A’ and if you
compel me to receive now and tomorrow I
will reject it”. At that point of time
the petitioner on realizing the
language of the 4th respondent, his
uncalled for, unwarranted comments,
which clearly indicated pre-determined
ulterior motive, has decided to submit
the nomination paper together with a
written representation addressed to
Respondent No. 4, requesting him to
receive the petitioners nomination
papers, since true copies of Elector
Photo Identity Cards issued prior to
delimitation duly self attested by the
respective proposers and true copy of
enumeration details are being enclosed
to prove the identity, address and
authenticity of the proposers beyond
any doubt. The Representation
handwritten by the Petitioner and typed
copy is marked as Annexure-`P’, and
requested him for time till scrutiny
for complying with the requirements
whatsoever as per law.
11. It is most respectfully submitted
that the Respondent No. 4 once again
reacted in the same manner and bluntly
refused to receive petitioner’s
nomination papers and further adding
insult to injury, he has commented “I
18
will not receive your nomination paper
or your representation or acknowledge
any receipt and continued to say “for
your negligence you cannot blame other
people”. The petitioner on observing
4th respondents illegal and improper
rejection in violation of statutory law
and election commission’s guidelines,
was left with no option but to presume
the existence of prejudice and
predetermined ulterior motive behind
the fourth respondents illegal attitude
and misuse of power. As such the
petitioner left the premises
humiliated, insulted by the illegal and
improper rejection of her nomination
paper by none other than a responsible
neutral official like Returning
Officer.”
12. From a plain reading of these averments it is
evident that the Election Petitioner has averred
that nomination paper was signed by 10 electors.
It was delivered to the Returning Officer with a
request to make available latest electoral roll
of K.R. Pura Constituency for filling up the new
part number and serial number of the proposers in
the respective columns. However, the Returning
Officer stated that he is not in possession
thereof and asked the Election Petitioner to
approach the revenue office located at the ground
floor for verifying and extracting the part
19
number and serial number of the proposers.
Attempts made on behalf of the Election
Petitioner to get those details from the revenue
office were rendered futile. Thereafter, the
Election Petitioner approached the Returning
Officer again for delivering the nomination paper
with the explanation. It did not yield any result
and the Returning Officer stated that he “will
not receive your nomination paper without
complying the requirement of new part number and
serial number against the proposers in Part-II of
Annexure `A’ and if you compel me to receive now,
tomorrow I will reject it”. These averments at
this stage have to be accepted as true and,
therefore, the question is as to whether Election
Petitioner can be said to be a candidate so as to
maintain the election petition and further the
Returning Officer was right in refusing to accept
the nomination paper on the purported ground that
it did not contain the serial number and part
number of the proposers. Section 81 of the Act
inter alia provides for presentation of election
20
petition. It reads as follows:
“81. Presentation of petitions.–(1) An
election petition calling in question
any election may be presented on one or
more of the grounds specified in sub-
section (1) of section 100 and section
101 to the High Court by any candidate
at such election or any elector within
forty-five days from, but not earlier
than the date of election of the
returned candidate, or if there are more
than one returned candidate at the
election and the dates of their election
are different, the later of those two
dates.
Explanation.–In this sub-section,
“elector” means a person who was
entitled to vote at the election to
which the election petition relates,
whether he has voted at such election or
not.
1. * * * * *
[(3) Every election petition shall be
accompanied by as many copies thereof as
there are respondents mentioned in the
petition [***], and every such copy
shall be attested by the petitioner
under his own signature to be a true
copy of the petition.]”
13. From a plain reading of the aforesaid
provision it is evident that an election petition
calling in question any election can be presented
by any candidate at such election. Candidate, in
our opinion, would not be only such person whose
nomination form has been accepted for scrutiny or
21
whose name appears in the list of validly
nominated candidate, that is to say, candidates
whose nominations have been found valid. Here,
in the present case, the Election Petitioner’s
plea is that the Returning Officer declined to
accept the nomination paper. We are of the
opinion that when a nomination paper is presented
it is the bounden duty of the Returning Officer
to receive the nomination, peruse it, point out
the defects, if any, and allow the candidate to
rectify the defects and when the defects are not
removed then alone the question of rejection of
nomination would arise. Any other view, in our
opinion, will lead to grave consequences and the
Returning Officers may start refusing to accept
the nomination at the threshold which may ensure
victory to a particular candidate at the
election. This is fraught with danger, difficult
to fathom. Section 33(4) of the Act casts duty
on a Returning Officers to satisfy himself that
the names and the electoral roll numbers of the
candidates and their proposers as entered in the
22
nomination paper are the same as in the electoral
rolls and, therefore, in our opinion, the
Election Petitioner for the purpose of
maintaining an election petition shall be deemed
to be a candidate.
14. As regards failure to subscribe the
nomination papers by 10 electors as required
under the first proviso to Section 33 of the Act,
the plea of the Election Petitioner is that it
was so subscribed. Whether in fact was done or
not is a matter of trial and at this stage we
have to proceed on an assumption that the
averments made in the election petition are true.
There is clear averment in the election petition
that nomination paper was subscribed by 10
electors. In the face of aforesaid there is no
escape from the conclusion that the Election
Petitioner shall be deemed to be a candidate and
entitled to challenge the election of the
Returned Candidate.
15. Now we revert to the authority of this Court
in the case of Mithilesh K. Sinha (supra). In
23
the said case election of the President was
challenged and it was found that the subsequently
delivered nomination paper filed by the
petitioner of the said case was not subscribed by
at least ten electors as proposers and at least
ten electors as seconders as required by Section
5(B)(1)(a) of the Presidential and Vice-
Presidential Elections Act, 1952 and in that
background it was held that he was not a
candidate competent to present the petition.
Here, in the present case, as stated earlier, the
Election Petitioner has averred that her
nomination was subscribed by ten electors and
that averment at this stage has to be treated as
correct and, therefore, this distinguishes the
case in hand from the case of Mithilesh K.
Sinha (supra).
16. In the case of Pothula Rama Rao (supra) the
Election Petitioner’s averment was that his
nomination was rejected on the untenable ground
that he was a dummy or substitute candidate set
up by the TDP. However, there was no averment
24
that he was set up as a candidate by TDP in the
manner contemplated in paragraph 13 of the
Symbols Order, that is, by issuing a valid B-Form
in his favour. Nor did the election petition
aver that his nomination paper was subscribed by
ten electors. In the face of it this Court came
to the conclusion that the election petition was
lacking in material facts necessary to make out a
cause of action. Here, in the present case, as
stated earlier, the Election Petitioner has
clearly averred that his nomination was
subscribed by ten electors and presented before
the Returning Officer but the same was not
received and rejected. Thus one of the grounds
for declaring the election to be void as provided
under Section 100(1)(c) of the Act was
specifically pleaded. Thus, the decision of this
Court in the case of Pothula Rama Rao (supra) in
no way supports the plea of the appellants.
17. Mr. Dushyant Dave, then contends that the
Election Petitioner has nowhere averred that he
had made the deposit as required under Section 34
25
of the Act. According to him Election Petitioner
shall not be deemed to be duly nominated for
election unless he deposits the amount provided
therein. In answer thereto Election Petitioner
submits that the deposit as contemplated under
Section 34 of the Act can be made till the time
of scrutiny of the nomination. According to her
after accepting the nomination it was the bounden
duty of the Returning Officer to point out the
requirement of deposit and enable the candidate
to arrange for deposit and it is only thereafter
if the deposit is not made, the nomination can be
rejected.
18. We have considered the rival submissions and
we find substance in the submission of Mrs.
Mahesh. We are of the opinion that there was
still time left for presenting the nomination
paper and in case the same would have been
accepted for scrutiny, the Election Petitioner
could had made deposit within the time. It is
only after expiry of the time had the Election
26
Petitioner not made the deposit, the nomination
was liable to be rejected.
19. Mr. Dushyant Dave, lastly submits that the
election petition does not contain material facts
and on this ground alone the election petition
deserves to be rejected at the threshold.
Reliance has been placed on a decision of this
Court in the case of Anil Vasudev Salgaonkar v.
Naresh Kushali Shigaonkar, (2009) 9 SCC 310 and
our attention has been drawn to paragraph 50 of
the judgment which reads as follows:
“50. The position is well settled
that an election petition can be
summarily dismissed if it does not
furnish the cause of action in
exercise of the power under the Code
of Civil Procedure. Appropriate
orders in exercise of powers under
the Code can be passed if the
mandatory requirements enjoined by
Section 83 of the Act to incorporate
the material facts in the election
petition are not complied with.”
Yet another decision on which reliance is
placed is the decision of this Court in the case
of Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541
27
and our attention has been drawn to paragraphs 24
and 25 of the judgment which read as follows:
“24. It needs little reiteration that
for the purpose of Section
100(1)(d)(iv), it was necessary for the
election petitioner to aver specifically
in what manner the result of the
election insofar as it concerned the
first respondent was materially affected
due to the said omission on the part of
the Returning Officer. Unfortunately,
such averment is missing in the election
petition.
25. In our judgment, therefore, the
Election Tribunal/High Court was
justified in coming to the conclusion
that statement of material facts in the
election petition was completely lacking
and the petition was liable to be
rejected at the threshold on that
ground. We have, therefore, no
hesitation in upholding the view taken
by the High Court. Consequently, this
appeal, being devoid of any merit, fails
and is dismissed accordingly. Since the
first respondent remained unrepresented,
there will be no order as to costs.”
20. Mrs. Mahesh has taken us through the
averments made in the election petition including
the paragraphs which we have reproduced in the
preceding paragraphs of this judgment and
contends that the election petition does contain
a concise statement of material facts on which
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she had relied seeking the relief of declaration
of the election of the Returned Candidate to be
void.
21. We have considered the submission and the
submission advanced by Mrs. Mahesh commend us.
It is trite that if an Election Petitioner wants
to put forth a plea that a nomination was
improperly rejected to declare an election to be
void it is necessary to set out the averments for
making out the said ground. The reason given by
the Returning Officer for refusal to accept the
nomination and the facts necessary to show that
the refusal was improper is required to be set
out in the election petition. In the absence of
the necessary averments it cannot be said that
the election petition contains the material facts
to make out a cause of action. Section 83(1)(a)
inter alia provides that an election petition
shall contain a concise statement of the material
facts. Further, Section 87 of the Act provides
that subject to the provisions of the Act and the
Rules framed thereunder every election petition
29
shall be tried in accordance with the procedure
applicable under the Code of Civil Procedure to
the trial of suits. Order VI of the Code of
Civil Procedure is devoted to the pleadings
generally and Rule 2(i) thereof, inter alia,
provides that every pleading shall contain
statement in a concise form all the material
facts on which the party pleading relies for
claim. In an election petition, which does not
contain material facts, no relief can be granted.
The phrase `material fact’ as used in Section
83(1)(a) of the Act or Order VI Rule 2 of the
Code of Civil Procedure has not been defined in
the Act or the Code of Civil Procedure. In our
opinion all specific and primary facts which are
required to be proved by a party for the relief
claimed are material facts. It is settled legal
position that all material facts must be pleaded
by the party on which the relief is founded. Its
object and purpose is to enable the contesting
party to know the case which it has to meet. An
election petition can be summarily dismissed if
30
it does not furnish the material facts to give
rise to a cause of action. However, what are the
material facts always depend upon the facts of
each case and no rule of universal application is
possible to be laid down in this regard.
22. Bearing in mind the aforesaid legal position
when we proceed to consider the facts of the
present case we are of the opinion that the
Election Petitioner had disclosed material facts
and the matter is fit to go for trial. Whether
those material facts are true or false is a
matter of trial. As regards authorities of this
Court in the case of Anil Vasudev Salgaonkar
(supra) and Ram Sukh (supra) we are of the
opinion that the same do not lend support to the
contention of the appellant. In both the cases
this Court on fact came to the conclusion that
the election petition did not contain statement
of material facts and accordingly the election
petitions were dismissed at the threshold.
However, in the present case, on facts we have
found that the election petition does contain
31
material facts and it is not liable to be
dismissed at the threshold.
23. Any observation made by us in this judgment
is for the purpose of disposal of these appeals
and shall have no bearing at the final decision
of the election petition.
24. Accordingly, we dismiss both the appeals with
costs of Rs.25,000/- to be paid by the appellant
to the respondent.
………………J
(HARJIT SINGH BEDI)
………………….J
(CHANDRAMAULI KR. PRASAD)
New Delhi,
July 8, 2011.