Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4080 OF 2014

KULDEEP SINGH PATHANIA … APPELLANTS (S)

VERSUS

BIKRAM SINGH JARYAL … RESPONDENT(S)

J U D G M E N T

KURIAN, J.:

1. Chapter III of Part VI of The Representation of the People

Act, 1951 (hereinafter referred to as “the Act”) deals with trial of

election petitions. Under Section 86(1) of the Act, “the High Court

shall dismiss an election petition which does not comply with the

provisions of Section 81 or Section 82 or Section 117”. Section

100 of the Act provides for grounds for declaring election to be

void. Section 100(1)(d)(iii) of the Act provides that an election of a

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Page 2 returned candidate can be declared to be void if the High Court is

of the opinion that the result of the election, in so far as it

concerns a returned candidate, has been materially affected by

the improper reception, refusal or rejection of any vote or the

reception of any vote which is void. Section 81 provides for

institutional requirements including limitation and Section 117

provides for deposit of security for costs. Section 83, under

Chapter II, deals with contents of an election petition. Under

Section 83(1)(a) of the Act, “an election petition shall contain a

concise statement of material facts on which the petitioner

relies”. Under Order VII Rule 11(a) of the Code of Civil Procedure,

1908 (hereinafter referred to as “the Code”), a plaint shall be

rejected where it does not disclose a cause of action and under

Order XIV Rule 2(2), the court may deal with the preliminary issue

on jurisdiction of the court and bar to the suit created by any law

in force. These are the provisions relevant for consideration of the

present case.

2. The appellant lost election from Bhattiyat Assembly

Constituency of Himachal Pradesh Legislative Assembly held in

2012 by a margin of 111 votes. He filed an election petition

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Page 3 mainly on the grounds under Section 100(1)(d)(iii) of the Act. Of

the six issues settled, issues 2 to 5 were treated as preliminary

issues, of which, issues 2 and 3 related to cause of action:

“2)Whether the election petition is liable to

be dismissed in limine for lack of material

facts and particulars, as alleged?

3)Whether the election petition is not

maintainable for want of any cause of

action, as alleged?”

3. Appellant is aggrieved since his petition has been

dismissed, based on the findings on the preliminary issues that

the election petition lacked in material facts as required under

Section 83(1)(a) of the 1951 Act and as such, did not disclose any

cause of action.

4. As far as the averments in the election petition are

concerned, it is not necessary for us to refer to the same in

extenso since they have been summarized in paragraph-27 of the

impugned judgment, which reads as follows:

“27.The “violations” alleged by the petitioner

during poling and counting of votes can be

grouped in the following three categories,

which shall be dealt with one by one:-

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Page 4 I.Exercise of dual right of

franchise by a voter and

discrepancy between the EVM

record and the record

maintained in Form 17-A at

polling station No.92-Kamla;

II.Improper reception of 30 postal

ballot papers; and

III.Discrepancy regarding 100

postal ballot papers-whether

597 or 697?”

5. The High Court dealt with the violations referred to above

extensively so as to find out whether a cause of action is made

out, but committed a grave error by considering the explanations

offered in the replies filed by the respondents. All the three

violations have been discussed meticulously by the High Court

with reference to the replies furnished by the respondents and the

court came to the conclusion that the petition did not disclose any

cause of action since it lacked material facts. The High Court

ventured into such an elaborate enquiry in the light of the

pleadings in the replies, to see whether the result of the election

has been materially affected, apparently or rather mistakenly,

under Order XIV Rule 2.

6. Order XIV deals with settlement of issues and

determination of suit on issues of law or on issues agreed upon.

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Page 5 Order XIV Rule 2 provides for disposal of a suit on a preliminary

issue and under sub-Rule (2) of Rule 2, if the court is of opinion

that a case or part thereof can be disposed of on an issue of law

only, it may try that issue first, in case it relates to jurisdiction of

the court or bar to entertaining the suit. After the 1976

amendment, the scope of a preliminary issue under Order XIV

Rule 2(2) is limited only to two areas, one is jurisdiction of the

court, and the other, bar to the suit as created by any law for the

time being in force. The whole purpose of trial on preliminary

issue is to save time and money. Though it is not a mini trial, the

court can and has to look into the entire pleadings and the

materials available on record, to the extent not in dispute. But

that is not the situation as far as the enquiry under Order VII Rule

11 is concerned. That is only on institutional defects. The court

can only see whether the plaint, or rather the pleadings of the

plaintiff, constitute a cause of action. Pleadings in the sense

where, even after the stage of written statement, if there is a

replication filed, in a given situation the same also can be looked

into to see whether there is any admission on the part of the

plaintiff. In other words, under Order VII Rule 11, the court has to

take a decision looking at the pleadings of the plaintiff only and

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Page 6 not on the rebuttal made by the defendant or any other materials

produced by the defendant.

7. It appears, the High Court committed a mistake in the

present case, since four out of the six issues settled were taken as

the preliminary issues. Two such issues actually are relatable only

to Order VII Rule 11 of the Code, in the sense those issues

pertained to the rejection at the institution stage for lack of

material facts and for not disclosing a cause of action. Merely

because it is a trial on preliminary issues at the stage of Order

XIV, the scope does not change or expand. The stage at which

such an enquiry is undertaken by the court makes no difference

since an enquiry under Order VII Rule 11(a) of the Code can be

taken up at any stage.

8. Thus, for an enquiry under Order VII Rule 11 (a), only the

pleadings of the plaintiff-petitioner can be looked into even if it is

at the stage of trial of preliminary issues under Order XIV Rule

2(2). But the entire pleadings on both sides can be looked into

under Order XIV Rule 2(2) to see whether the court has

jurisdiction and whether there is a bar for entertaining the suit.

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Page 7 9. In the present case, the issue relates to an enquiry under

Order VII Rule 11(a) of the Code, and hence, there is no question

of a preliminary issue being tried under Order XIV Rule 2(2) of the

Code. The court exercised its jurisdiction only under Section 83(1)

(a) of the Act read with Order VII Rule 11(a) of the Code. Since the

scope of the enquiry at that stage has to be limited only to the

pleadings of the plaintiff, neither the written statement nor the

averments, if any, filed by the opposite party for rejection under

Order VII Rule 11(a) of the Code or any other pleadings of the

respondents can be considered for that purpose.

10. In Mayar (H.K.) Ltd. and others v. Owners & Parties,

Vessel M.V. Fortune Express and others

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, this Court has dealt

with a similar issue. To the extent relevant, paragraph-12 reads as

follows:

“12. From the aforesaid, it is apparent that

the plaint cannot be rejected on the basis of

the allegations made by the defendant in his

written statement or in an application for re-

jection of the plaint. 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 ex-

ercising the powers under Order 7 Rule 11 of

the Code. Essentially, whether the plaint dis-

closes a cause of action, is a question of fact

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(2006) 3 SCC 100

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Page 8 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 determi-

nation by the court, the mere fact that in the

opinion of the Judge the plaintiff may not suc-

ceed cannot be a ground for rejection of the

plaint. …”

11. It is not necessary to load this judgment with other

judgments dealing with this first principle of Order VII Rule 11(a)

of the Code. As held by this Court in Virender Nath Gautam v.

Satpal Singh and others

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, at paragraph-52:

“52. The High Court, in our considered

opinion, stepped into prohibited area of

considering correctness of allegations and

evidence in support of averments by enter-

ing into the merits of the case which would

be permissible only at the stage of trial of

the election petition and not at the stage of

consideration whether the election petition

was maintainable and dismissed the peti -

tion. The said action, therefore, cannot be

upheld and the order deserves to be set

aside.”

2

(2007) 3 SCC 617

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Page 9

12. As we have been taken through the averments in the

election petition and we are satisfied that the petition has

disclosed a cause of action, it is not necessary to remit the

petition for a fresh enquiry in that regard.

13. The appeal is however allowed, the impugned order is set

aside and the election petition is remitted to the High Court to try

it on merits expeditiously, and being one filed in the year 2013,

preferably within a period of four months. We make it clear that

we have not expressed any opinion on the merits of the case.

14. There shall be no order as to costs.

..……………………….J.

(KURIAN JOSEPH)

.……………………….J.

(A.M. KHANWILKAR)

NEW DELHI;

JANUARY 24, 2017.

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