Page 1 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 69-70 OF 2012

Ashraf Kokkur … Appellant (s)

Versus

K.V. Abdul Khader Etc. … Respondent (s)

J U D G M E N T

KURIAN, J.:

1. The simple question arising for consideration in this

case is whether the averments in the election petition disclose

a cause of action as required under Order VII Rule 11(a) of the

Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’).

Incidentally, it may be noted that the election petition has been

dismissed by the impugned judgment dated 16.11.2011, which

reads as follows:

“J U D G M E N T

I.A. 4/11 is allowed. Election petition is dismissed in

limine as it does not disclose a complete cause of

action or a triable issue.”

1

REPORTABLE

Page 2 Of course, detailed reasons are given in the order dated

16.11.2011 in I.A. 4/2011, which is also under challenge in one

of the appeals.

2. The sole ground in the election petition is that the

respondent is disqualified under Article 191(1)(a) of the

Constitution of India, since he was holding the post of

Chairperson of the Kerala State Wakf Board. To the extent

relevant, the Article reads as follows:

“191. Disqualification for membership. -(1) xxx

(a)if he holds office of profit under the Government of

India or the Government of any State specified in the

First Schedule, other than an office declared by the

Legislature of the State by law not to disqualify its

holder;”

(Emphasis supplied)

3. The High Court has taken the view that the election

petition does not clearly contain a pleading that the respondent

holds an office of profit under the State Government. The

pleading is only to the effect that the respondent holds an

office of profit.

4. Therefore, the only inquiry that is required in this case

is to see on reading the election petition as a whole, whether

the petitioner has disclosed a cause of action.

2

Page 3 UNDISPUTED FACTS

5. The respondent was the Chairperson of the Kerala State

Wakf Board when he contested the election to the Kerala

Legislative Assembly. The petitioner in fact objected to his

nomination, as per Annexure P1(d) (Annexure-D). The

objection, to the extent relevant, reads as follows:

“Mr. Abdul Kader is candidate for Guruvayoor

Constituency. He is Chairman of Kerala State Wakf

Board. He is holding an office of profit under

Government of Kerala and hence disqualified.”

(Emphasis supplied)

6. However, as per order dated 29.03.2011, the objection

was overruled holding that the petitioner failed to prove beyond

doubt as to whether the elected office bearers of the Wakf

Board would come under the purview of the office of profit as

stated under Article 191 of the Constitution of India [Annexure-

P1(c)-(Annexure-C)].

PLEADINGS IN THE ELECTION PETITION

7. To see whether the facts pleaded in the election

petition constitute a cause of action, we shall extract the

relevant ones, with emphasis supplied. At Paragraph-3 of the

election petition, it is stated as follows:

3

Page 4 “3.The petitioner respectfully submits that on the

date of election, the first respondent was

disqualified to contest the election as he was

admittedly on that day holding an office of profit,

namely the Chairperson of the Kerala State Wakf

Board. In terms of Section 14(9) of the Wakf Act

(Central Act 43) of 1995, the Chairperson of the

State Wakf Board, which is constituted by the

State Government, namely the first respondent

was appointed as Chairman of the Kerala State

Wakf Board on 29

th

December, 2008. ….”

xxx xxx xxx

“The Chairperson of the State Wakf Board is

performing public duties particularly of statutory

nature under the Wakf Act 1995. He exercises

even Quasi Judicial and supervisory powers. He

receives such remuneration as are provided for

and prescribed by the Government of Kerala. …”

8. Paragraph-4 of the election petition to the extent

relevant, reads as follows:

“4.Article 191 of the Constitution of India to the

extent relevant reads as follows:-

“191. Disqualification of membership.-(1) A person shall

be disqualified for being chosen as, and for being, a

member of the Legislative Assembly or Legislative

Council of a State-

(a)if he holds any office of profit under the

Government of India or the Government of any

State specified in the First Schedule, other than an

office declared by the Legislature of the State by

law not to disqualify its holder;

(b)if he is of unsound mind and stands so declared by

a competent court;

(c)if he is an undischarged insolvent;

4

Page 5 (d)if he is not a citizen of India, or has voluntarily

acquired the citizenship of a foreign State, or is

under any acknowledgement of allegiance or

adherence to a foreign State;

(e)if he is so disqualified by or under any law made

by Parliament.

(Explanation.-For the purposes of this clause, a

person shall not be deemed to hold an office of profit

under the Government of India or the Government of

any State specified in the First Schedule by reason only

that he is a Minister either for the Union or for such

State.

(2)A person shall be disqualified for being a member

of the Legislative Assembly or Legislative Council of a

State if he is so disqualified under the Tenth

Schedule).”

9. Paragraph-5 of the election petition refers to the

objection before the Returning Officer and the order passed

thereof, which we have already referred to above.

10. Paragraph-6 of the election petition reads as follows:

“6.The petitioner respectfully submits that in terms of

the principles evolved by the Apex Court, the first

Respondent falls within the expression ‘holder of

an office of profit’ in view of the following admitted

facts, among other tests.

(1)He was appointed by the State of

Kerala, from members of a statutorily

constituted body.

(2)He is removable by the State

Government.

(3)The resignation tendered by him has to

be accepted and a successor appointed and

5

Page 6 said appointment should be duly notified in

the Gazette, which was not done.

(4)The first Respondent has been

admittedly granted honorarium, allowances

and enjoying the facility of a car at State

expenses and drawing other pecuniary

advantages.

(5)The office held by him is a public office.

(6)There is a degree of control by and

dependence on government and

governmental functions are performed.

Besides, paying the remuneration the functions

performed by the first Respondent, the holder of

an office of profit, are carried on by him from the

Government with an effective Governmental

control over his duties and functions. Undoubtedly

from the office that he holds the first Respondent

is deriving pecuniary gains and the office he holds

is that of a permanent nature.”

11. At Paragraph-7 of the election petition, it is pleaded as

follows:

“7.The first Respondent has been granted the facility

of a car driver whose salary and other allowances

are paid also from the funds of the Government of

Kerala. This also goes to point out that the office

that he holds is that of an ‘office of profit’. …”

12. At Paragraph-10 of the election petition, it is averred as

follows:

“10.Since, admittedly on the date of the election, the

first Respondent was holding an office of profit as

6

Page 7 Chairperson of the Kerala State Wakf Board, he was

disqualified to contest the elections. …”

13. Ground-A of the election petition, to the extent relevant,

reads as follows:

“A.Admittedly on the date of the election, the

returned candidate, the first Respondent was

disqualified to contest the elections under Section

100 (1) (a) in that he was holding an office of

profit as contemplated under Article 191 of the

Constitution of India, the Chairperson of the Wakf

Board. Admittedly the first Respondent was

appointed by the State of Kerala. Concededly he

was entitled to and was drawing financial

perquisites and allowances and enjoying pecuniary

benefit from the State as Chairperson of the State

Wakf Board. He therefore, was holding an office of

profit which is a disqualification as contemplated

under Article 191 of the Constitution of India and

even now he is continuing as such in the position.

Thus, the first respondent was wholly disqualified

to contest the elections to the Kerala State

Legislative Assembly. …”

THE REPRESENTATION OF THE PEOPLE ACT, 1951

14. Section 83 of The Representation of the People Act,

1951 (hereinafter referred to as ‘the RP Act’), reads as follows:

“ 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

7

Page 8 parties alleged to have committed such corrupt

practice and the date and place of the commission

of each such practice; and

(c)shall be signed by the petitioner and verified in the

manner laid down in the Code of Civil Procedure,

1908

(5 of 1908) for the verification of pleadings:

[Provided that where the petitioner alleges any corrupt

practice, the petition shall also be accompanied by an

affidavit in the prescribed form in support of the

allegation of such corrupt practice and the particulars

thereof.]

(2) Any schedule or annexure to the petition shall also

be signed by the petitioner and verified in the same

manner as the petition.]”

(Emphasis supplied)

The requirement under Section 83(1)(a) of the RP Act in

contradistinction to Section 83(1)(b) of the RP Act is that the

election petition need contain only a concise statement of the

material facts and not material particulars. ‘Concise’ according

to Oxford Dictionary means, ‘brief and comprehensive’.

Concise Oxford Dictionary has given the meaning to the

expression ‘Concise’ as ‘giving a lot of information clearly and

in few words’. As per Webster Comprehensive Dictionary,

International Edition, expression has been defined as

‘expressing much in brief form’. Having furnished the facts in a

8

Page 9 compendious manner, can it be said that there is no concise

statement of material facts?

15. Holding an office of profit under the Government of

India or Government of any State is the disqualification.

Whether that ground is discernible if the election petition is

read as a whole, is the simple exercise to be undertaken by the

High Court, when called upon to do so under Order VII Rule

11(a) of CPC. At Paragraph-3 of the election petition, it is

contended that the respondent was holding an office of profit,

viz., the Chairperson of the Kerala State Wakf Board. Again, in

the same paragraph, it is stated that the Chairperson of the

State Wakf Board receives such remuneration as are provided

for and prescribed by the Government of Kerala. After quoting

Article 191 of the Constitution, it is pleaded that any person

who holds an office of profit under the State Government, is

debarred from contesting the elections to the Legislative

Assembly. It is again pleaded that the State of Kerala having

not made any legislation on removal of disqualification of the

Chairperson of the Wakf Board, the Chairperson of the Kerala

State Wakf Board is disqualified under Article 191 of the

Constitution. At Paragraph-6, enumerating the particulars, it is

9

Page 10 pleaded that he was holding an office of profit in having been

granted honorarium, allowances and enjoying the facility of a

car at State expenses and drawing other pecuniary advantages.

Again, under Paragraph-7, it is stated that the first respondent

was provided with chauffeur whose salary and allowances are

paid also from the funds of the Government of Kerala. At

Paragraph-10, it is clearly stated that “since admittedly on the

date of the election, the first Respondent was holding an office

of profit as Chairperson of the Kerala State Wakf Board, he was

disqualified to contest the election”. In Ground-A in the election

petition, it is reiterated that the first respondent suffered from

the disqualification under Article 191 of the Constitution of India

since he was holding an office of profit as Chairperson of the

Wakf Board and that he was entitled and drawing financial

perquisites and allowances and pecuniary benefits from the

State of Kerala as Chairperson of the Kerala State Wakf Board

and, hence, he was holding an office of profit which was a

disqualification under Article 191 of the Constitution of India.

Thus, he was disqualified to contest the election to the Kerala

State Legislative Assembly. These averments, to us, clearly

disclose a cause of action, viz., the respondent was holding the

10

Page 11 position as Chairperson of the Kerala State Wakf Board and

deriving financial benefits from the Kerala Government is

disqualified under Article 191(1)(a) of the Constitution of India,

as holding of an office of profit under the State Government of

Kerala. That is the triable issue in the election petition.

16. The question whether a schedule or annexures to the

election petition is an integral part of the election petition was

first discussed by this Court in Sahodrabai Rai v. Ram Singh

Aharwar

1

. It was held that a schedule or an annexure which is

merely an evidence in the case and included only for the sake

of adding strength to the petitioner, does not form an integral

part of the election petition. It was a case where the annexures

were not verified by the election petitioner as required under

Section 83(2) of the RP Act.

17. The question raised in Sahodrabai Rai case (supra)

was:

“Whether the election petition is liable to be dismissed

for contravention of Section 81(3)

2

of The

Representation of the People Act, 1951 as copy of

1

AIR 1968 SC 1079

2

81. Presentation of petitions. — xxx (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.

11

Page 12 Annexure-A to the petition was not given along with the

petition for being served on the respondents.”

18. The issue was again considered by this Court in M.

Kamalam v. Dr. V.A. Syed Mohammed

3

. Paragraph-5 of the

said judgment reads as follows:

“5. Now, the first question which arises is as to what

constitutes an election petition for the purpose of

Section 81 sub-section (3). Is it confined only to election

petition proper or does it also include a schedule or

annexure contemplated in sub-section (2) of Section 83

or a supporting affidavit referred to in the proviso to

Section 83 sub-section (1)? To answer this question, we

must turn to Section 83 which deals with contents of an

election petition. Sub-section (1) of that section sets out

what an election petition shall contain and provides

that it shall be signed by the petitioner and verified in

the manner laid down in the Code of Civil Procedure,

1908 for the verification of pleadings. The proviso

requires that where the petitioner alleges any corrupt

practice, the election 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. The context in which the proviso

occurs clearly suggests that the affidavit is intended to

be regarded as part of the election petition. Otherwise,

it need not have been introduced in a section dealing

with contents of an election petition nor figured as a

proviso to a sub-section which lays down what shall be

the contents of an election petition. Sub-section (2) also

by analogy supports this inference. It provides that any

schedule or annexure to an election petition shall be

signed by the petitioner and verified in the same

manner as an election petition. It is now established by

the decision of this Court in Sahodrabai Rai v. Ram

Singh Aharwar that sub-section (2) applies only to a

schedule or annexure which is an integral part of the

3

(1978)2 SCC 659

12

Page 13 election petition and not to a schedule or annexure

which is merely evidence in the case but which is

annexed to the election petition merely for the sake of

adding strength to it. The scope and ambit of sub-

section (2) was explained in the following words by

Hidayatullah, J., speaking on behalf of the Court in

Sahodrabai case at pp. 19-20:

“We are quite clear that sub-section (2) of

Section 83 has reference not to a document

which is produced as evidence of the averments

of the election petition but to averments of the

election petition which are put, not in the

election petition but in the accompanying

schedules or annexures. We can give quite a

number of examples from which it would be

apparent that many of the averments of the

election petition are capable of being put as

schedules or annexures. For example, the

details of the corrupt practice there in the

former days used to be set out separately in the

schedules and which may, in some cases, be so

done even after the amendment of the present

law. Similarly, details of the averments too

compendious for being included in the election

petition may be set out in the schedules or

annexures to the election petition. The law then

requires that even though they are outside the

election petition, they must be signed and

verified, but such annexures or schedules are

then treated as integrated with the election

petition and copies of them must be served on

the respondent if the requirement regarding

service of the election petition is to be wholly

complied with. But what we have said here

does not apply to documents which are merely

evidence in the case but which for reasons of

clarity and to lend force to the petition are not

kept back but produced or filed with the

election petitions. They are in no sense an

integral part of the averments of the petition

13

Page 14 but are only evidence of those averments and

in proof thereof.”

It would, therefore, be seen that if a schedule or

annexure is an integral part of the election petition, it

must be signed by the petitioner and verified, since it

forms part of the election petition. The subject-matter

of sub-section (2) is thus a schedule or annexure

forming part of the election petition and hence it is

placed in Section 83 which deals with contents of an

election petition. …”

(Emphasis supplied)

19. All the annexures attached to the election petition in

the present case have been signed and verified by the election

petitioner as per the requirement under Section 83(2) of the RP

Act, as can be seen from Annexure-P1(Colly). Therefore,

Annexure-P1(d) to the election petition (Annexure-D herein)

forms an integral part of the election petition. There is a clear

and unambiguous plea that the respondent was holding the

post of Kerala State Wakf Board, holding an office of profit

under the Government of Kerala and, hence, he was

disqualified.

20. Annexure-D is referred at Paragraph-5 of the election

petition, which reads as follows:

“5.Even so, the first Respondent submitted his

nomination before the Returning Officer in the said

Constituency. Objection was taken that the first

Respondent was disqualified to be chosen to fill the

14

Page 15 seat under the Constitution of India. But the same was

rejected by the Returning Officer without any

application of Mind. A copy of the order is produced

herewith and marked as Annexure C, the date shown

therein has been corrected as 29.3.2011, while its

English translation is produced herewith and marked as

Annexure C1 and the objection submitted by the

petitioner with the forwarding letter is produced and

marked as Annexure D.”

21. Recently, a three-Judge Bench of this Court in G.M.

Siddeshwar v. Prasanna Kumar

4

(Judgment is authored by

one of us, Lokur, J.), had an occasion to refer to this issue.

Referring to Sahodrabai Rai case (supra), it was held at

Paragraphs-54 to 56 as follows:

“54. In Sahodrabai Rai v. Ram Singh Aharwar

5

the

question raised was as follows: (AIR p. 1080, para 3)

“3. … ‘Whether the election petition is liable to be

dismissed for contravention of Section 81(3) of the

Representation of the People Act, 1951 as copy of

Annexure A to the petition was not given along with

the petition for being served on the respondents.’”

55. It was noted that the contents of the pamphlet,

in translation, were incorporated in the election

petition. It was also noted that the trial of an election

petition has to follow, as far as may be, the provisions

of CPC. Therefore, this Court approached the problem

by looking at CPC to ascertain what would have been

the case if what was under consideration was a suit and

not the trial of an election petition.

4

(2013) 4 SCC 776

5

AIR 1968 SC 1079

15

Page 16 56. It was held that where the averments are too

compendious for being included in an election petition,

they may be set out in the schedules or annexures to

the election petition. In such an event, these schedules

or annexures would be an integral part of the election

petition and must, therefore, be served on the

respondents. This is quite distinct from documents

which may be annexed to the election petition by way

of evidence and so do not form an integral part of the

averments of the election petition and may not,

therefore, be served on the respondents.”

22. Further, at Paragraph-57, there is also reference to

M. Kamalam case (supra) and it is held as follows:

“57. In M. Kamalam v. V.A. Syed Mohammed this

Court followed Sahodrabai Rai and held that a schedule

or an annexure which is an integral part of an election

petition must comply with the provisions of Section

83(2) of the Act. Similarly, the affidavit referred to in

the proviso to Section 83(1) of the Act where the

election petition alleges corrupt practices by the

returned candidate also forms a part of the election

petition. If the affidavit, at the end of the election

petition is attested as a true copy, then there is

sufficient compliance with the requirement of Section

81(3) of the Act and would tantamount to attesting the

election petition itself.”

23. The pleadings, if taken as a whole, would clearly show

that they constitute the material facts so as to pose a triable

issue as to whether the first respondent is disqualified to

contest election to the Kerala State Legislative Assembly while

16

Page 17 holding an office of profit under the State government as

Chairperson of the Kerala State Wakf Board.

24. The question is not whether the Chairperson of the

Kerala State Wakf Board is an office of profit or not. That is the

issue to be tried. Question is whether the petitioner has raised

such a question in the election petition. The disqualification

under the Constitution of India being, holding an office of profit

under the State Government. Petitioner has furnished all the

material particulars in that regard. Therefore, the petition

discloses a cause of action.

25. After all, the inquiry under Order VII Rule 11(a) of CPC is

only as to whether the facts as pleaded disclose a cause of

action and not complete cause of action. The limited inquiry is

only to see whether the petition should be thrown out at the

threshold. In an election petition, the requirement under

Section 83 of the RP Act is to provide a precise and concise

statement of material facts. The expression ‘material facts’

plainly means facts pertaining to the subject matter and which

are relied on by the election petitioner. If the party does not

prove those facts, he fails at the trial (see Philipps v. Philipps

17

Page 18 and others

6

; Mohan Rawale v. Damodar Tatyaba alias

Dadasaheb and others

7

).

26. This Court in Azhar Hussain v. Rajiv Gandhi

8

, at

Paragraph-11, has held that:

“11. … 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. …”

The charge levelled is that the respondent holds an

office of profit as the Chairperson of the Kerala State Wakf

Board and in that capacity he enjoys the profits attached to

that office from the Government of Kerala.

27. In V.S. Achuthanandan v. P.J. Francis and

another

9

, a three-Judge Bench of this Court has

taken the view that only because full particulars are not given,

an election petitioner is not to be thrown out at the threshold.

To quote Paragraph-15:

“15. … 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

6

(1878) 4 QBD 127, 133

7

(1994) 2 SCC 392, 399

8

1986 Supp SCC 315

9

(1999) 3 SCC 737

18

Page 19 establish existence of a cause of action. Whether in an

election petition a particular fact is a 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. ..”

28. Again at Paragraph-16 of V.S. Achuthanandan case

(supra), it was held that:

“16.… So long as the claim discloses some cause of

action or raises some questions fit to be decided by a

Judge, the mere fact that the case is weak and not

likely to succeed is no ground for striking it out. The

implications of the liability of the pleadings to be struck

out on the ground that it discloses no reasonable cause

of action are generally more known than clearly

understood. …”

xxx xxx xxx

“… the failure of the pleadings to disclose a reasonable

cause of action is distinct from the absence of full

particulars. …”

(Emphasis supplied)

29. In Hari Shanker Jain v. Sonia Gandhi

10

, a three-

Judge Bench of this Court held that the expression ‘cause of

action’ would mean facts to be proved, if traversed, in order to

support his right to the judgment of the court and that the

function of the party is to present a full picture of the cause of

action with such further information so as to make opposite

10

(2001) 8 SCC 233

19

Page 20 party understand the case he will have to meet. To quote

Paragraph-23:

“23. … The expression “cause of action” has been

compendiously defined to mean every fact which it

would be necessary for the plaintiff to prove, if

traversed, in order to support his right to the judgment

of court. Omission of a single material fact leads to an

incomplete cause of action and the statement of claim

becomes bad. The function of the party is to present as

full a picture of the cause of action with such further

information in detail as to make the opposite party

understand the case he will have to meet. (See Samant

N. Balkrishna v. George Fernandez, Jitendra Bahadur

Singh v. Krishna Behari.) Merely quoting the words of

the section like chanting of a mantra does not amount

to stating material facts. Material facts would include

positive statement of facts as also positive averment of

a negative fact, if necessary. In V.S. Achuthanandan v.

P.J. Francis this Court has held, on a conspectus of a

series of decisions of this Court, that material facts are

such preliminary facts which must be proved at the trial

by a party to establish existence of a cause of action.

Failure to plead “material facts” is fatal to the election

petition and no amendment of the pleadings is

permissible to introduce such material facts after the

time-limit prescribed for filing the election petition.”

30. In Syed Dastagir v. T.R. Gopalakrishna Setty

11

,

while referring to the pleadings, it has been held at Paragraph-

9 that:

“9. … In construing a plea in any pleading, courts

must keep in mind that a plea is not an expression of

art and science but an expression through words to

11

(1999) 6 SCC 337

20

Page 21 place fact and law of one’s case for a relief. Such an

expression may be pointed, precise, sometimes vague

but still it could be gathered what he wants to convey

through only by reading the whole pleading, depending

on the person drafting a plea. …”

“ … So to insist for a mechanical production of the

exact words of a statute is to insist for the form rather

than the essence. So the absence of form cannot

dissolve an essence if already pleaded.”

31. In Mayar (H.K.) Ltd. v. Owners & Parties, Vessel

M.V. Fortune Express

12

, this Court at Paragraph-12 held that:

“12. … The court has to read the entire plaint as a

whole to find out whether it discloses a cause of action

and if it does, then the plaint cannot be rejected by the

court exercising the powers under Order 7 Rule 11 of

the Code. Essentially, whether the plaint discloses a

cause of action, is a question of fact which has to be

gathered on the basis of the averments made in the

plaint in its entirety taking those averments to be

correct. A cause of action is a bundle of facts which are

required to be proved for obtaining relief and for the

said purpose, the material facts are required to be

stated but not the evidence except in certain cases

where the pleadings relied on are in regard to

misrepresentation, fraud, wilful default, undue influence

or of the same nature. So long as the plaint discloses

some cause of action which requires determination by

the court, the mere fact that in the opinion of the Judge

the plaintiff may not succeed cannot be a ground for

rejection of the plaint.”

12

(2006) 3 SCC 100

21

Page 22 32. In a recent decision in Ponnala Lakshmaiah v.

Kommuri Pratap Reddy and others

13

, this Court had held at

Paragraphs-17 and 29 that:

“17. … The courts need to be cautious in dealing

with requests for dismissal of the petitions at the

threshold and exercise their powers of dismissal only in

cases where even on a plain reading of the petition no

cause of action is disclosed.”

(Emphasis supplied)

xxx xxx xxx

“29. … An election which is vitiated by reason of

corrupt practices, illegalities and irregularities

enumerated in Sections 100 and 123 of the Act cannot

obviously be recognised and respected as the decision

of the majority of the electorate. The courts are,

therefore, duty-bound to examine the allegations

whenever the same are raised within the framework of

the statute without being unduly hypertechnical in their

approach and without being oblivious of the ground

realities.”

33. Finally, as cautioned by this Court in Raj Narain v.

Indira Nehru Gandhi and another

14

, it was held that:

“19. Rules of pleadings are intended as aids for a fair

trial and for reaching a just decision. An action at law

should not be equated to a game of chess. Provisions of

law are not mere formulae to be observed as rituals.

Beneath the words of a provision of law, generally

13

(2012) 7 SCC 788

14

(1972) 3 SCC 850

22

Page 23 speaking, there lies a juristic principle. It is the duty of

the court to ascertain that principle and implement it.

…”

(Emphasis supplied)

34. Guided by the settled principles of law referred to

above, we are of the view that the election petition having

disclosed a cause of action, it should not have been thrown out

at the threshold. The impugned order and judgment are hence

set aside. The appeals are allowed. The election petition is

remitted to the High Court for trial in accordance with law.

35. There is no order as to costs.

....………………….....…J.

(MADAN B. LOKUR)

…......……………………J.

(KURIAN JOSEPH)

New Delhi;

August 29, 2014.

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