REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2009

(Arising out of SLP (Civil) No.18893 of 2008)

Anil Vasudev Salgaonkar .. Appellant

Versus

Naresh Kushali Shigaonkar .. Respondent

J U D G M E N T

Dalveer Bhandari, J.

1.Leave granted.

2.This appeal is directed against the judgment and order

of the High Court of Bombay Bench at Goa passed in

Election Application No.5 of 2007 in Election Petition No.1 of

2007 on 4

th

July, 2008.

3.The respondent herein has filed an election petition in

the High Court of Bombay at Goa challenging the election of

the appellant (respondent no.1 in the election petition) to

Goa Legislative Assembly from 35 Sanvordem Assembly

Constituency. In the assembly elections held on 2

nd

June,

2007, the appellant secured overwhelming mandate from the

electorates securing 10705 votes out of total 19657 votes

polled whereas, his nearest rival (respondent no.2 in the

election petition) set up by the Bharatiya Janata Party

secured only 3782 votes and the respondent (election

petitioner) polled only 275 votes and forfeited his deposits.

In the election petition before the High Court, a prayer has

been made to declare the election of the appellant herein as

null and void on ground of corrupt practices in which the

appellant indulged during the elections. The allegations in

the petition are as under:

i) The returned candidate with an

intent to secure the votes of the

voters of his constituency got 13

bore wells constructed at his own

cost in the seven villages of the

said constituency;

ii) The returned candidate had also

provided ambulances to the

villages namely Collem,

Sanvordem, Mollem, Dharbandora

and Khirpal Dabhal as a part of

his action in luring voters to vote

in his favour.

4.It has also been alleged that the appellant indulged in

the abovementioned corrupt practices and incurred election

expenditure in contravention of section 77 of the

Representation of the People Act, 1951 (hereinafter referred

to as “the Act”) thereby crossing the limit of Rs.5,00,000/-

prescribed under the Act and the Rules framed thereunder.

5.The written statement to the election petition was filed

by the appellant in the High Court. The allegations

mentioned in the election petition were specifically refuted

and denied in the written statement. Apart from number of

preliminary objections, it was stated by the appellant that

the election petition does not comply with the provisions of

Chapter II of the Act and is, therefore, required to be

dismissed at the threshold.

6.The appellant also stated in the written statement that

the election petition does not contain a concise statement of

the material facts on which the respondent relies and,

therefore, the petition does not comply with clause (a) of

sub-section (1) of section 83 of the Act. It was also

incorporated in the written statement that the election

petition does not set forth the material facts of the alleged

corrupt practice. The respondent herein has also failed to

disclose the names of the parties alleged to have committed

the corrupt practice. In the election petition, the date and

place of the commission of such alleged corrupt practice has

not been mentioned and, therefore, the election petition

deserved to be dismissed as not maintainable.

7.In the written statement it was also stated that the

appellant secured 10705 votes whereas the respondent

(election petitioner) got only 275 votes. The margin is too

huge to state that the candidate has been returned on

account of some alleged corrupt practice. The respondent in

the election petition is required to show that the candidate

has been elected and that the result of the election has been

materially affected by any alleged corrupt practice committed

as such.

8.The allegations of alleged corrupt practices pleaded by

respondent (election petitioner) are limited to digging of 13

bore wells in villages falling under the constituency in

question after issuance of the election notification. The

basis for this allegation is that the machinery allegedly used

to dig bore holes in the ground as mentioned in paragraph

16 of the election petition was the same machinery owned by

a third party which was hired in the past to work for the

Salgaoncar Mining Industries at Vagus valley. The

respondent in paragraph 16 of the election petition has also

averred that the owner of the Salgaoncar Mining Industries

is the appellant herein and on this sole basis the conclusion

is sought to be drawn and averment made to the effect that

it is obvious that the cost of the said wells and the other

wells were borne by the returned candidate through his

business concern, namely, Salgaoncar Mining Industries.

9.The pleadings of the said allegations of corrupt practice

are limited to digging of bore wells only and there is no

pleading on the material facts whether any water drawing

equipment was installed in the said bore holes so dug and

that such bore holes became water bore wells and that the

water could be drawn from them. Neither any facts have

been pleaded nor particulars given to the effect of how and

in what manner the voters were influenced in favour of the

appellant so as to cast votes in his favour. No particulars of

such voters have been given in the election petition. As such

there is total absence of material pleadings so as to prove

that due to the alleged corrupt practice the election has been

vitiated in a manner that but for such bore holes not being

dug the appellant would not have been returned as a

winning candidate and either respondent herein or

respondent no.2 of the election petition could have been

returned as a winning candidate.

10.There are no averments to the effect whether such bore

holes were dug with the consent and/or active knowledge of

the appellant. The estimates of cost involved supplied in the

election petition are also limited to the cost of drilling the

bore holes and not of installing the water drawing plant and

machinery in them to draw water from the bore holes. As

such, the said pleading is totally general and vague in

nature and is entirely incapable of passing the muster of the

test as laid in the Azhar Hussain v. Rajiv Gandhi 1986

(Supp) SCC 315 or such facts as are pleaded in the petition

are capable of being later on amplified in view of the test laid

down in H.D. Revanna v. G. Puttaswamy Gowda &

Others (1999) 2 SCC 217 so as to arrive at a conclusion that

a triable case is made out.

11.The second allegation of the alleged corrupt practice is

to the effect that the appellant herein has, in the name of his

mining company viz. M/s Salgaoncar Mining Industries Pvt.

Ltd. Vagus, Palem, Bicholim, Goa, bought 5 Maruti

Ambulances from M/s Sai Service Station Ltd., Verna,

Salcete, Goa by incurring a cost of Rs.2,50,000/- for each of

the ambulances and the cost of the 5 ambulances

approximately would be a sum of Rs.12,50,000/- and once

the said elections were declared and he filed his nomination

for the said election, caused the said company to put the

said ambulances at the disposal of the villagers of the said

villages.

12.There are absolutely no averments with regard to which

villagers or electors had used such ambulances and for

whose benefit such ambulances were deployed so as to

constitute ‘bribe’ to the voters and that to an extent that

would have influenced the outcome of the election. It is

stated that any company operating mines on large scale with

heavy machinery is under a statutory duty to maintain

safety at the mines and is, as such, statutorily required to

provide required facilities including deployment of

ambulances in adequate numbers at various mines to

ensure safety of the persons working at these mines. The

various mines of Salgaoncar Mining Industries are spread

over large areas falling in the constituency.

13.The petition is absolutely devoid of any averment with

regard to such ambulances being specifically deployed for

the benefit of any elector in the constituency much less a

number of electors who would have benefited from such

service even if not admitted but proved to be true that could

have influenced the election so as to change its outcome.

14.There are absolutely no averments to the effect that

these ambulances were deployed at which specific place, at

which specific time and for the benefit of whom and whether

at the instance or with knowledge of the appellant. As such,

the said pleading is incapable of passing the test as laid in

the Azhar Hussain’s case (supra) or such facts as are

pleaded in the petition are capable of being later on

amplified in view of the test laid down in H.D. Revanna’s

case (supra) so as to arrive at a conclusion that a triable

case is made out.

15.The third allegation pertains to the election expenses

incurred by the appellant on the basis that amount spent on

digging of bores holes as well as the cost of 5 ambulances

deployed for discharge of statutory requirements for carrying

out mining operations by a company ought to be calculated

towards the election expenses incurred by the appellant and,

as such, devoid of any merit in view of the insufficiency of

pleadings in terms of ‘material facts’ with respect to the two

main allegations of corrupt practices relating to digging of

borewells and 5 ambulances.

16.The High Court has totally misdirected itself by

misconstruing the ratio laid down in a catena of decision

pronounced by this Court including the law laid down in

Azhar Hussain’s case (supra) and H.D. Revanna’s case

(supra) which if properly applied to the facts and

circumstances of the present case would lead to rejection of

the election petition in limine.

17.The other important questions of law of general

importance involved in the present petition require

adjudication by this Court are whether amenities or facilities

provided in general and not in particular to a candidate or

his agent or by any other person with the consent of the

candidate, is a corrupt practice or a bribery or a gratification

within the meaning of section 100(1)(b) read with section

123(1) of the Act. Whether the absence of the prescribed

affidavit in Form 25 as required under Rule 94A of the

Conduct of Election Rules, 1961 and in terms of proviso to

section 83 of the Act is fatal to the maintainability of an

election petition on the ground of corrupt practices?

18.In the election petition the respondent has mentioned

that there was scarcity of water supply in certain villages.

However, the respondent has failed to mention the numbers

of houses which face such alleged water scarcity. In the

written statement, the appellant also alleged that the

respondent in the election petition has also failed to mention

about water availability of these villages; the respondent has

further failed to mention as to since when has there been

water scarcity?

19.The appellant in the written statement further alleged

that the respondent has also not mentioned as to how many

houses are there in these villages; how many persons are

living in each of the houses; and how many persons are

voters in these villages. The respondent has also not

mentioned as to how many villages have water connections;

and when and where the water scarcity had been noticed in

these villages. He has also not mentioned as to when this

complete breakdown or insufficient water supply had

occasioned to these villages nor has he mentioned the date,

time, place or any other details of such breakdown and has

generally failed to give the details as required under section

83 of the Act.

20.In the written statement it was also stated that the

drilling machines allegedly owned by Tejaswini Bore Wells

which were being operated at Ambeudok. There is,

therefore, no concrete evidence that the boreholes drilled

were bore wells to establish the flow of water from the

ground table to surface ground. Similarly, the respondent

has miserably failed to give particulars as to which villages

did not have ambulances and what was the number of

voters in the said villages. The respondent has failed to give

particulars regarding parking of the ambulances i.e. where

these ambulances were parked; in which villages they were

parked; whether there was any driver to drive the said

ambulances and as to where they were parked. Similarly,

the respondent failed to give particulars regarding the bore

wells whose cost as alleged amounts to Rs.6,38,557/-.

Similarly, expenditure of Rs.12,50,000/- has been alleged to

have been made for the purchase of ambulances. The

particulars have not been provided. It is not clear as to how

the respondent has come to the figure of Rs.5,00,000/-

which according to him has been spent by the appellant. He

did not give any particulars regarding either of the bore wells

or the ambulances.

21.`The appellant denied crossing the limit of

Rs.5,00,000/- as prescribed under the Act and the Rules

framed thereunder. It is also alleged that the appellant did

not construct any bore wells nor did he provide any

ambulances to the villagers and, therefore, the question of

showing the same in the election expenses did not arise at

all. The appellant denied that an amount of Rs.6,38,557/-

and an amount of Rs.12,50,000/- as alleged has been the

expenditure factually incurred by the appellant and denied

having committed any corrupt practice. The question of the

election results being materially affected does not arise at all

and, therefore, the election petition is liable to be dismissed.

22.It was specifically argued that the election petition is

liable to be dismissed because there has been non

compliance of section 83(1) of the Act because there was no

sufficiency and adequacy of pleadings in the election

petition. Section 83(1) 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.”

23.According to the appellant, the High Court had

erroneously held that the election petition is not liable to be

dismissed in limine under section 86 of the Act for alleged

non-compliance of the provisions of section 83(1) of the Act.

24.In the impugned judgment, the High Court erroneously

concluded that the election petition when read as a whole

discloses that it has material facts stated and regarding

which triable issues are also framed and, therefore, it cannot

be rejected at the preliminary stage.

25.The High Court in the impugned judgment has

discussed the decision of this Court in Dhartipakar Madan

Lal Agarwal v. Rajiv Gandhi (1987) Supp. SCC 93.

According to the appellant, the High Court erroneously

distinguished this case. The impugned judgment of the High

Court is neither in consonance with the provisions of the Act

nor according to the settled legal position as has been

crystallized in a number of cases by this court.

26.Being aggrieved by the impugned judgment, the

appellant has preferred this appeal.

27.In this election petition, respondent no.1 has

challenged appellant’s election primarily on the ground of

corrupt practices, alleging that the appellant dug bore wells

in the constituency and provided ambulances after the

election notification was issued in order to lure the voters

from the constituency or induce them to vote for the

appellant. According to the appellant, the aforesaid

allegations do not even on their face value constitute corrupt

practices within the meaning of Section 100 or section 123

of the Act. The Act postulates or contemplates bribery to

mean any gift, offer or promise by a candidate of any

gratification with the object, directly or indirectly of inducing

any elector in order to make him vote for him.

28.For reference, section 100 and section 123 of the 1951

Act read as under:-

“Section 100 - Grounds for declaring election

to be void -- (1) Subject to the provisions of sub-

section (2) if

the High court is of opinion-

(a) that on the date of his election a returned

candidate was not qualified, or was disqualified,

to be chosen to fill the seat under the Constitution

or this Act or the Government of Union Territories

Act, 1963 (20 of 1963); or

(b) that any corrupt practice has been committed

by a returned candidate or his election agent or by

any other person with the consent of returned

candidate or his election agent; or

(c) that any nomination has been improperly

rejected; or

(d) that the result of the election, in so far as it

concerns a returned candidate, has been

materially affected-

(i) by the improper acceptance or any nomination,

or

(ii) by any corrupt practice committed in the

interests of the returned candidate by an agent

other than his election agent, or

(iii) by the improper reception, refusal or rejection

of any vote or the reception of any vote which is

void, or

(iv) by any non-compliance with the provisions of

the Constitution or of this Act or of any rules or

orders made under this Act,

the High Court shall declare the election of the

returned candidate to be void.

(2) If in the opinion of

[the High Court, a

returned candidate has been guilty by an agent

other than his election agent, of any corrupt

practice but

the High Court is satisfied-

(a) that no such corrupt practice was committed

at the election by the candidate or his election

agent, and every such corrupt practice was

committed contrary to the orders, and [without

the consent], of the candidate or his election

agent;

(b) omitted

(c) that the candidate and his election agent took

all reasonable means for preventing the

commission of corrupt

practices at the election;

and

(d) that in all other respects the election was free

from any corrupt practice on the part of the

candidate or any of his agents,

then

the High Court may decide that the election

of the returned candidate is not void”.

“Section 123 - Corrupt practices -- The

following shall be deemed to be corrupt practices

for the purposes of this Act:--

(1) "Bribery" that is to say--

(A) any gift offer or promise by a candidate or his

agent or by any other person with the consent of a

candidate or his election agent of any

gratification, to any person whomsoever, with the

objects, directly or indirectly of inducing--

(a) a person to stand or not to stand as, or to

withdraw or not to withdraw from being a

candidate at an election, or

(b) an elector to vote or refrain from voting at an

election, or as a reward to-

(i) a person for having so stood or not stood, or for

having withdrawn or not having withdrawn his

candidature; or

(ii) an elector for having voted or refrained from

voting;

(B) the receipt of, or agreement to receive, any

gratification, whether as a motive or a reward--

(a) by a person for standing or not standing as, or

for [withdrawing or not withdrawing] from being, a

candidate; or

(b) by any person whomsoever for himself or any

other person for voting or refraining from voting,

or inducing or attempting to induce any elector to

vote or refrain from voting, or any candidate to

withdraw or not to withdraw his candidature.”

29.The appellant submitted that corrupt practices pleaded

by respondent no.1 are limited to digging of 13 bore wells in

villages falling under the constituency in question after

notification of holding of election was issued. The basis for

this allegation that the machinery allegedly used to dig bore

holes in the ground as provided in paragraph 16 of the

election petition and the same machinery owned by a third

party which was hired in the past to work for the Salgaoncar

Mining Industries at Vagus Valley.

30.Respondent no.1 in paragraph 16 of the election

petition has alleged that owner of the Salgaoncar Mining

Industries is the appellant herein and on this basis the

conclusion is sought to be drawn and the averments made to

the effect that “it is obvious that the cost of the said wells

and the other wells were borne by the returned candidate

through his business concern, namely Salgaoncar Mining

Industries”.

31.According to the appellant, the pleadings in the election

petition regarding corrupt practice are limited to digging of

bore wells only and there is no pleading on the material facts

whether and in what manner the voters of the constituency

were influenced to vote in favour of the appellant. There is

no pleadings on the material facts whether any water

drawing equipment was installed in the said bore holes so

dug and that such bore holes became water bore wells and

that the water could be drawn from them.

32.The appellant submitted that there is total absence of

material pleadings so as to prove that due to the alleged

corrupt practice the election has been vitiated in a manner

that such bore holes not being dug by the appellant who has

been returned as a winning candidate and either respondent

no.2 or respondent no.1 could have been returned as a

winning candidate.

33.The material fact whether such bore holes were dug

with the consent and/or active knowledge of the appellant is

totally missing.

34.The material fact regarding the estimates of costs

involved is missing and is limited to the costs of drilling the

bore holes and not of installing the water drawing plant and

machinery in them to draw water from the bore holes.

According to the appellant, the said pleading is totally

general and vague in nature.

35.The second allegation is regarding the alleged corrupt

practice by purchasing 5 Maruti Ambulances in the name of

his mining company viz. M/s Salgaoncar Mining Industries

Pvt.Ltd.

36.According to the appellant, there are no material facts

in the pleading of the election petition that for whose benefit

such ambulances were deployed so as to constitute a ‘bribe’

to the voters and that to an extent that would have

influenced the outcome of the election.

37.The appellant also submitted that there are no

averments with regard to such ambulances being specifically

deployed for the benefit of any elector in the constituency.

38.The appellant submitted that any company operating

mines on large scale with heavy machinery is under an

obligatory duty to maintain safety of the mines and is, as

such, statutorily required to provide required facilities

including deployment of ambulances in adequate numbers

at various mines to ensure safety of the persons working in

the mines. The various mines of Salgaoncar Mining

Industries are spread over large areas falling in the

constituency.

39.According to the appellant there is no material fact in

the pleading of the election petition to the effect regarding

the deployment of such ambulances at which specific places

at which specific time and for the benefit of whom and

whether that was done at the behest and influence of the

appellant.

40.According to the appellant, the third allegation pertains

to the election expenses incurred by the appellant on the

basis of that amount spent on digging of bore holes as well

as the cost of 5 ambulances deployed for discharge for

statutory requirement for carrying out mining operations by

a company ought to be calculated towards the election

expenses incurred by the appellant is devoid of any merit in

view of the insufficiency of pleadings in terms of ‘material

facts’ with respect to the two main allegations of corrupt

practices relating to digging of bore holes and purchase of 5

ambulances.

41.According to the appellant, the High Court in the

impugned judgment has totally misdirected itself by

misconstruing the ratio laid down in a catena of cases

pronounced by this Court. The other material questions of

general importance arising in the petition for determination

by this court are whether amenities or facilities provided in

general and not in particular by a candidate or his agent or

by any other person with the consent of the candidate, is a

corrupt practice or a bribery or a gratification within the

meaning of section 100 (1)(b) read with section 123 (1) of the

1951 Act. According to the appellant, the respondent did

not furnish affidavit in Form 25 as required under Rule 94A

of the Conduct of Election Rules, 1961 and in terms of

proviso to Section 83 of the Act, is fatal to the

maintainability of an election petition on the ground of

corrupt practices.

42.According to the appellant, the respondent failed to

plead the fact which constitutes an offence under section

100 of the Act and the appeal deserves to be allowed and the

election petition deserves to be dismissed.

43.The short question which falls for adjudication in this

case is whether the election petition is liable to be dismissed

because of lack of material facts. This controversy is no long

res integra. More than a century ago, in Phillips v.

Phillips, (1878) 4 QBD 127: 48 LJ QB 135, Cotton, L.J.

stated:

"What particulars are to be stated must depend

on the facts of each case. But in my opinion it is

absolutely essential that the pleading, not to be

embarrassing to the defendants, should state

those facts which will put the defendants on their

guard and tell them what they have to meet when

the case comes on for trial."

44.In Bruce v. Odhams Press Ltd. (1936) 1 KB 697:

(1936) 1 All ER 287 (CA), Scott, L.J. referring to Phillips’

case (supra) observed:

"The cardinal provision in Rule 4 is that the

statement of claim must state the material facts.

The word 'material' means necessary for the

purpose of formulating a complete cause of action;

and if any one 'material' statement is omitted, the

statement of claim is bad; it is 'demurrable' in the

old phraseology, and in the new is liable to be

'struck out' under R.S.C. Order 25 Rule 4 (see

Phillips v. Phillips); or 'a further and better

statement of claim' may be ordered under Rule 7."

45.In Halsbury’s Laws of England (4th Edn.), Vol. 36,

para 38, it has been stated:

“38. The function of particulars is to carry

into operation the overriding principle that the

litigation between the parties, and particularly the

trial, should be conducted fairly, openly and

without surprises, and incidentally to reduce

costs. This function has been variously stated,

namely, either to limit the generality of the

allegations in the pleadings, or to define the

issues which have to be tried and for which

discovery is required. Each party is entitled to

know the case that is intended to be made against

him at the trial, and to have such particulars of

his opponent’s case as will prevent him from being

taken by surprise. Particulars enable the other

party to decide what evidence he ought to be

prepared with and to prepare for the trial. A party

is bound by the facts included in the particulars,

and he may not rely on any other facts at the trial

without obtaining the leave of the court.”

46.When we revert to the Indian cases, we find that our

courts have accepted the principle laid down by the English

cases. We would like to refer to some of them.

47.In Manubhai Nandlal Amorsey v. Popatlal Manilal

Joshi & Others (1969) 1 SCC 372, this Court observed as

under:

“5. The first question is whether the trial

judge should have allowed the amendment.

Section 83(1)(b) provides that "An election petition

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 commit such corrupt

practice and the date and place of the commission

of each such practice". The section is mandatory…

…………..”

48.In Samant N. Balkrishna & Another v. George

Fernandez & Others (1969) 3 SCC 238, this Court

observed as under:

“37. From our examination of all the cases

that were cited before us we are satisfied that an

election petition must set out a ground or charge.

In other words, the kind of corrupt practice which

was perpetrated together with material facts on

which a charge can be made out must be stated.

It is obvious that merely repeating the words of

the statute does not amount to a proper

statement of facts and the section requires that

material facts of corrupt practices must be stated.

If the material facts of the corrupt practice are

stated more or better particulars of the charge

may be given later, but where the material facts

them-selves are missing it is impossible to think

that the charge has been made or can be later

amplified. This is tantamount to the making of a

fresh petition.”

49.In Hardwari Lal v. Kanwal Singh (1972)1 SCC 214, a

three judge Bench of this Court observed as under:

“22. ………… The gravamen of the charge of

corrupt practice within the meaning of Section

123(7) of the Act is obtaining or procuring or

abetting or attempting to obtain or procure any

assistance other than the giving of vote. In the

absence of any suggestion as to what that

assistance was the election petition is lacking in

the most vital and essential material fact to

furnish a cause of action.”

50.The question of materials facts in the election petition

was comprehensively dealt with by this Court in Azhar

Hussain’s case (supra). The court observed that it is not

disputed that the Code of Civil Procedure applies to the trial

of an election petition by virtue of section 87 of the

Representation of the People Act, 1950. Section 87(1) and

section 87(2) of the Act apply to the election petition.

Section 87(1) of the Act reads as under:

“87. Procedure before the High Court - (1)

Subject to the provisions of this 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

under the Code of Civil Procedure, 1908 (5 of

1908) to the trial of the suits ;

Provided that the High Court shall have the

discretion to refuse, for reasons to be recorded in

writing, to examine any witness or witnesses if it

is of the opinion that the evidence of such witness

or witnesses is not material for the decision of the

petition or that the party tendering such witness

or witnesses is doing so on frivolous grounds or

with a view to delay the proceedings.

(2) xxxxxxxxx”

51.In this view of the matter, the court trying the election

petition can act in exercise of the powers of the Code

including Order 6 Rule 16 and Order 7 Rule 11(a) of the

Code. These provisions are set out as under:

“Order 6, Rule 16: Striking out

pleadings.— The court may at any stage of the

proceedings order to be struck out or amend any

matter in any pleading—

a) which may be unnecessary, scandalous,

frivolous or vexatious; or

(b) which may tend to prejudice, embarrass

or delay the fair trial of the suit; or

(c) which is otherwise an abuse of the

process of the court.

Order 7, Rule 11(a): Rejection of plaint.—

The plaint shall be rejected in the following cases

—

a)where it does not disclose a cause of

action;

xxx xxx xxx

xxx xxx xxx”

42.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.

53.This Court in Samant N. Balkrishna’s case (supra)

has expressed itself in no uncertain terms that the omission

of a single material fact would lead to an incomplete cause of

action and that an election petition without the material

facts relating to a corrupt practice is not an election petition

at all.

54.In Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC

511, the law has been enunciated that all the primary facts

which must be proved by a party to establish a cause of

action or his defence are material facts. In the context of a

charge of corrupt practice it would mean that the basic facts

which constitute the ingredients of the particular corrupt

practice alleged by the petitioner must be specified in order

to succeed on the charge. Whether in an election petition a

particular fact is material or not and as such required to be

pleaded is dependent on the nature of the charge levelled

and the circumstances of the case. 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 amount to disobedience of the mandate of Section

83(l)(a). An election petition therefore can be and must be

dismissed if it suffers from any such vice. The first ground of

challenge must therefore fail.

55.In V. Narayanaswamy v. C.P. Thirunavukkarasu

(2000) 2 SCC 294, this Court reiterated the legal position

that an election petition is liable to be dismissed if it lacks in

material facts.

56.In L.R. Shivaramagowda & Others v. T.M.

Chandrashekar (dead) by LRs & Others (1999) 1 SCC

666, this Court again considered the importance of

pleadings in an election petition alleging corrupt practice

falling within the scope of Section 123 of the Act and

observed as under:

“11.This Court has repeatedly stressed the

importance of pleadings in an election petition

and pointed out the difference between "material

facts" and "material particulars". While the failure

to plead material facts is fatal to the election

petition and no amendment of the pleading could

be allowed 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……”

57.In Udhav Singh’s case (supra), this Court observed as

under:

“41.Like the Code of Civil Procedure, this

section also envisages a distinction between

“material facts” and “material particulars”. Clause

(a) of sub-section (1) corresponds to Order 6, Rule

2, while clause (b) is analogous to Order 6, Rules

4 and 6 of the Code. The distinction between

“material facts” and “material particulars” is

important because different consequences may

flow from a deficiency of such facts or particulars

in the pleading. Failure to plead even a single

material fact leads to an incomplete cause of

action and incomplete allegations of such a charge

are liable to be stuck off under Order 6, Rule 16,

Code of Civil Procedure. If the petition is based

solely on those allegations which suffer from lack

of material facts, the petition is liable to be

summarily rejected for want of cause of action. In

the case of a petition suffering from a deficiency of

material particulars the court has a discretion to

allow the petitioner to supply the required

particulars even after the expiry of limitation.”

58.In H.D. Revanna’s case (supra), the appeal was filed

by the candidate who had succeeded in the election and

whose application for dismissal of the election petition in

limine was rejected by the High Court. This Court noticed

that it has been laid down by this Court that non-

compliance with the provisions of Section 83 may lead to

dismissal of the petition if the matter falls within the scope

of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil

Procedure.

59.In Harmohinder Singh Pradhan v. Ranjeet Singh

Talwandi & Others (2005) 5 SCC 46, this Court observed

thus:

“14. Necessary averment of facts

constituting an appeal on the ground of “his

religion” to vote or to refrain from voting would be

material facts within the meaning of clause (a) of

sub-section (1) of Section 83 of the Act. If such

material facts are missing, they cannot be

supplied later on, after the expiry of period of

limitation for filing the election petition and the

plea being deficient, can be directed to be struck

down under Order 6 Rule 16 of the Code of Civil

Procedure, 1908 and if such plea be the sole

ground of filing an election petition, the petition

itself can be rejected as not disclosing a cause of

action under clause (a) of Rule 11 Order 7 of the

Code.”

60.In Harkirat Singh v. Amrinder Singh (2005) 13 SCC

511, this Court again reiterated the distinction between

‘material facts’ and ‘material particulars’ and observed as

under:

“51. A distinction between “material facts”

and “particulars”, however, must not be

overlooked. “Material facts” are primary or basic

facts which must be pleaded by the plaintiff or by

the defendant in support of the case set up by

him either to prove his cause of action or defence.

“Particulars”, on the other hand, are details in

support of material facts pleaded by the party.

They amplify, refine and embellish material facts

by giving distinctive touch to the basic contours of

a picture already drawn so as to make it full, more

clear and more informative. “Particulars” thus

ensure conduct of fair trial and would not take the

opposite party by surprise.

52. All “material facts” must be pleaded by

the party in support of the case set up by him.

Since the object and purpose is to enable the

opposite party to know the case he has to meet

with, in the absence of pleading, a party cannot be

allowed to lead evidence. Failure to state even a

single material fact, hence, will entail dismissal of

the suit or petition. Particulars, on the other

hand, are the details of the case which is in the

nature of evidence a party would be leading at the

time of trial.”

61.In Sudarsha Avasthi v. Shiv Pal Singh (2008) 7 SCC

604, this Court observed as under:

“20. The election petition is a serious matter

and it cannot be treated lightly or in a fanciful

manner nor is it given to a person who uses this

as a handle for vexatious purpose……………”

62.It is settled legal position that all “material facts” must

be pleaded by the party in support of the case set up by him

within the period of limitation. Since the object and purpose

is to enable the opposite party to know the case he has to

meet with, in the absence of pleading, a party cannot be

allowed to lead evidence. Failure to state even a single

material fact will entail dismissal of the election petition.

63.The election petition must contain a concise statement

of “material facts” on which the petitioner relies. There is no

definition of “material facts” either in the Representation of

Peoples Act, 1951 nor in the Code of Civil Procedure. In a

series of judgments, this court has laid down that all facts

necessary to formulate a complete cause of action should be

termed as “material facts”. All basic and primary facts

which must be proved by a party to establish the existence

of cause of action or defence are material facts. “Material

facts” in other words mean the entire bundle of facts which

would constitute a complete cause of action.

64.This court in Harkirat Singh’s case (supra) tried to

give various meanings of “material facts”. The relevant

paragraph 48 of the said judgment is reproduced as under:-

“The expression 'material facts' has neither been

defined in the Act nor in the Code. According to

the dictionary meaning, 'material' means

'fundamental', 'vital', 'basic', 'cardinal', 'central',

'crucial', 'decisive', 'essential', 'pivotal',

indispensable', 'elementary' or 'primary'. [Burton's

Legal Thesaurus, (Third Edn.); p.349]. The phrase

'material facts', therefore, may be said to be those

facts upon which a party relies for his claim or

defence. In other words, 'material facts' are facts

upon which the plaintiff's cause of action or the

defendant's defence depends. What particulars

could be said to be 'material facts' would depend

upon the facts of each case and no rule of

universal application can be laid down. It is,

however, absolutely essential that all basic and

primary facts which must be proved at the trial by

the party to establish the existence of a cause of

action or defence are material facts and must be

stated in the pleading by the party.”

65.In the context of a charge of corrupt practice, “material

facts” would mean all basic facts constituting the ingredients

of the particular corrupt practice alleged, which the

petitioner (respondent herein) is bound to substantiate

before he can succeed on that charge. It is also well-settled

that if “material facts” are missing they cannot be supplied

after expiry of period of limitation for filing the election

petition and the pleading becomes deficient.

66.According to the appellant, in the election petition,

there was no averment whether the bore wells were dug with

the consent and/or active knowledge of the appellant. This

averment was absolutely imperative and the failure to

mention such an important averment in the petition is fatal

for the election-petitioner (respondent herein) and the

election petition is liable to be summarily dismissed on that

ground.

67.The legal position has been crystallized by a series of

the judgments of this Court that all those facts which are

essential to clothe the election petitioner with a complete

cause of action are “material facts” which must be pleaded,

and the failure to place even a single material fact amounts

to disobedience of the mandate of section 83(1)(a) of the Act.

68.When we apply the aforementioned test to the election

petition in this case, then the conclusion becomes

irresistible that the election petition lacks the materials

facts. The election petition read as a whole does not disclose

any cause of action. Considering the facts and

circumstances of this case and principles applicable to the

election petition, this appeal deserves to be allowed and we

accordingly allow this appeal. Consequently, the election

petition stands dismissed.

69.In the facts and circumstances of this case, we direct

the parties to bear their own costs.

…….…………………….. J.

(Dalveer Bhandari)

…….…………………….. J.

(Harjit Singh Bedi)

New Delhi,

August 20, 2009.