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CASE NO.:

Appeal (civil) 8102 of 2003

PETITIONER:

Sardar Harcharan Singh Brar

RESPONDENT:

Sukh Darshan Singh & Ors.

DATE OF JUDGMENT: 27/10/2004

BENCH:

CJI & C.K. Thakker

JUDGMENT:

J U D G M E N T

R.C. Lahoti, CJI

Elections to the Punjab Legislative Assembly were held in

the month of January-February, 2002. We are concerned with

105 Muktsar Assembly Constituency. There were 12 candidates

in the fray. The constituency went to polls and after counting

the result was declared on 24.2.2002. Sukh Darshan Singh,

respondent No. 1, who contested as an independent candidate,

secured 32,465 valid votes while the appellant Sardar Harcharan

Singh Brar, who was fielded by the Congress party, secured

32,265 valid votes. Other candidates secured lesser votes. The

respondent No. 1 was declared elected.

The appellant filed an election petition under sections 80,

80A and 81 of the Representation of the People Act, 1951

(hereinafter 'the Act', for short). The main grounds on which the

election of respondent No. 1 was sought to be set aside were

that the nomination of one on the respondents was improperly

accepted which had resulted in the result of the election being

materially affected and that the respondent No. 1 was guilty of

having committed the corrupt practice of obtaining the

assistance of a police officer within the meaning of Section

123(7) of the Act. Several instances of commission of such

corrupt practice were set out in the election petition.

On the pleadings being completed, the learned Designated

Election Judge of the High Court framed six issues, out of which

the following two have been heard and decided as preliminary

issues by the impugned judgment :-

1. Whether the averments made in the election

petition lack in material facts and do not disclose

any cause of action? If so, its effect? OPR

2. Whether the affidavit filed in support of the

election petition is not valid? If so, its effect?

OPR

Both the issues have been answered against the election

petitioner-appellant with the result the election petition has been

held liable to be dismissed and dismissed accordingly. The

election petitioner has come up in appeal under Section 116 A of

the Act.

The short point which arises for decision in this appeal is

whether the election petition could have been held liable to be

dismissed at the threshold and without being tried and heard on

merits. Under Section 86(1) of the Act, an election petition is

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liable to be dismissed without being set down for trial, if it does

not comply with the provisions of Section 81 or Section 82 or

Section 117. Sections 81, 82 and 117 respectively provide for

presentation of petition, parties to the petition and security for

cost. Obviously the objections raised by the contesting

respondents forming basis of the two preliminary issues are not

covered by Section 86(1) of the Act. The High Court has

proceeded on the premises that inasmuch as the averments

made in the election petition alleging the commission of corrupt

practice do not disclose material facts as required by Section 83

of the Act and the election petition is also not supported by an

affidavit as required by proviso to sub-Section (1) of Section 83

of the Act read with Rule 94A of the Conduct of Elections Rules,

1961 (hereinafter 'the Rules', for short), the election petition

does not disclose any cause of action and therefore does not

raise any triable issue. It is the correctness or otherwise of the

view taken by the High Court which arises for consideration.

Section 83 of the Act and Rule 94A of the Rules provide as

under :

Act

"83. Contents of petition \026 (1) An election petition \026

(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.]

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

signed by the petitioner and verified in the same manner

as the petition.

Rules

94A. Form of affidavit to be filed with election petition \026

The affidavit referred to in the proviso to sub-section (1)

of section 83 shall be sworn before a magistrate of the

first class or a notary or a commissioner of oaths and shall

be in Form 25."

So far as the law centering around the above-said

provisions is concerned, several decided cases of this Court have

covered the field and the law is settled leaving hardly any scope

for further elaboration. We would refer only to a few of the

cases which would suffice for above purpose.

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In Samant N. Balakrishna and another Vs. George

Fernandez and others, (1969) 3 SCC 238, the mandatory

nature of the provisions contained in Section 83 was dealt with

and consequences flowing from any breach of provision were set

out. It was held that Section 83 is mandatory and requires the

election petition to contain first a concise statement of material

facts and then requires the fullest possible particulars. The word

'material' shows that the facts necessary to formulate a

complete cause of action must be stated. Omission of a single

material fact leads to an incomplete cause of action and the

statement of claim becomes bad. The function of particulars 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. There may be some

overlapping between material facts and particulars but the two

are quite distinct. The material facts will show the ground of

corrupt practice and the complete cause of action and the

particulars will give the necessary information to present a full

picture of the cause of action.

Some of the principles elaborated in Raj Narain Vs. Smt.

Indira Nehru Gandhi and another (1972) 3 SCC 850 are

relevant for our purpose. Dealing with the corrupt practice, the

Court held that :

(i) While a corrupt practice has got to be strictly

proved, it does not follow that a pleading in an

election proceeding should receive a strict

construction. Even a defective charge does not

vitiate a criminal trial unless it is proved that the

same has prejudiced the accused. If a pleading

on a reasonable construction could sustain the

action, the court should accept that construction.

The courts are reluctant to frustrate an action on

technical grounds.

(ii) The charge of corrupt practice in an election

petition is a very serious charge and has to be

proved. It may or may not be proved. The

allegations may be ultimately proved or not

proved. But the question for the courts is

whether a petitioner should be refused an

opportunity to prove those allegations merely

because the petition was drafted clumsily.

Opportunity to prove should not be refused.

(iii) If the allegations made in an election petition

regarding a corrupt practice do not disclose the

constituent parts of the corrupt practice alleged,

the same will not be allowed to be proved and

those allegations cannot be amended after the

period of limitation for filing an election petition,

but the court may allow particulars of any corrupt

practice alleged in the petition to be amended or

amplified.

"Material facts" in Section 83 of the

Representation of People Act, 1951 shows that

the ground of corrupt practice and the facts

necessary to formulate a complete cause of action

must be stated. The function of the particulars is

to present a full picture of the cause of action so

as to make the opposite party understand the

case he has to meet. Under Section 86(5) of the

Representation of People Act if the corrupt

practice is alleged in the petition the particulars of

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such corrupt practice may be amended or

amplified.

(iv) An election petition is not liable to be dismissed in

limine because full particulars of corrupt practice

alleged were not set out. If an objection was

taken and the Tribunal was of the view that full

particulars have not been set out, the petitioner

has to be given an opportunity to amend or

amplify the particulars. It is only in the event of

non-compliance with such order to supply the

particulars, that the charge which remained

vague could be struck down.

The Court sounded a note of caution : "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 with 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

speaking there lies a juristic principle. It is the duty of the court

to ascertain that principle and implement it."

The principles have been reiterated recently in H.D.

Revanna Vs. G. Puttaswamy Gowda and ors. (1999) 2 SCC

217, V.S. Achuthanandan Vs. P.J. Francis and anr. (1999) 3

SCC 737 and Mahendra Pal Vs. Ram Dass Malander and ors.

(2000) 1 SCC 261. We are tempted to quote the following

passage from the three-Judge Bench decision in Mahendra

Pal's case (supra) wherein the learned Chief Justice has

summed up the statement of law in the following words:

"Section 83(1)(a) of the Act mandates that in

order to constitute a cause of action, all material

facts, that is, the basic and preliminary facts which

the petitioner is bound under the law to

substantiate in order to succeed, have to be

pleaded in an election petition. Whether in an

election petition, a particular fact is material or not

and as such required to be pleaded is a question

which depends upon the nature of the charge

levelled and the facts and circumstances of each

case. The distinction between "material facts" and

"particulars" has been explained by this Court in a

large number of cases and we need not refer to all

those decided cases. Facts which are essential to

disclose a complete cause of action are material

facts and are essentially required to be pleaded. On

the other hand "particulars" are details of the case

set up by the party and are such pleas which are

necessary to amplify, refine or explain material

facts. The function of particulars is, thus, to

present a full picture of the cause of action to make

the opposite party understand the case that has

been set up against him and which he is required to

meet. The distinction between "material facts" and

"material particulars" is indeed important because

different consequences follow from a deficiency of

such facts or particulars in the pleadings. 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 struck

off under Order 6 Rule 16 of the Code of Civil

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Procedure. In the case of a petition suffering from

a deficiency of material particulars the court has the

discretion to allow the petitioner to supply the

required particulars even after the expiry of

limitation. Thus, whereas it may be permissible for

a party to furnish particulars even after the period

of limitation for filing an election petition has

expired, with the permission of the court, no

material fact unless already pleaded, can be

permitted to be introduced, after the expiry of the

period of limitation."

The learned Designated Election Judge has been

undoubtedly at pains in dealing with the several averments

made in the election petition and closely examining and

analysing the same in order to find out whether the

requirements of Section 83 (1) were satisfied. The learned

Judge then formed an opinion that the averments made were

lacking in material facts. During the course of hearing, the

learned counsel for both the parties have carried us through the

averments made in the election petition, parawise and almost

word by word, in an attempt at substantiating the submissions

made by them respectively. According to the learned counsel for

the writ petitioner-appellant, the averments made in the election

petition contained not only the material facts but also the

particulars and it is not necessary to plead the evidence or the

matters of minute details. On the contrary, the learned counsel

for the respondent No. 1, while supporting the judgment of the

High Court, has submitted that the averments made in the

election petition fall short of disclosing all material facts and

therefore, cannot be tried.

Having gone through the contents of the election petition,

we are satisfied that the High Court has not been right in

directing the petition to be dismissed at the threshold by forming

an opinion that the averments made in the election petition were

deficient in material facts. It is not necessary to burden this

judgment with reproduction of the several averments made in

the election petition. The High Court has already done it. The

test laid down in the several authorities referred to hereinabove

and in particular in the case of Raj Narain (supra) is fully

satisfied. The grounds of corrupt practice and the facts

necessary to formulate a complete cause of action have been

stated. Even the particulars have been given. However, if the

Court feels that the particulars as given in the petition are

deficient in any manner the petitioner can be directed to supply

the particulars and make the deficiency good. In any case,

deficiency in particulars could not have been a ground for

dismissing the petition at the threshold. It is only the non-

supply of particulars though ordered by the Court which could

have led to either striking off of the pleadings or refusal to try

the related instances of alleged corrupt practice. We cannot

countenance the view taken by the High Court.

So is the case with the defect pointed out by the High

Court in the affidavit filed in support of the election petition

alleging corrupt practice by the winning candidate. The proviso

enacted to sub-Section (1) of Section 83 of the Act is couched in

a mandatory form inasmuch as it provides that a petition

alleging corrupt practice shall be accompanied by an affidavit in

the prescribed form in support of the allegations of such corrupt

practice and the particulars thereof. The form is prescribed by

Rule 94A. But at the same time, it cannot be lost sight of that

failure to comply with the requirement as to filing of an affidavit

cannot be a ground for dismissal of an election petition in limine

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under sub-Section (1) of Section 86 of the Act. The point is no

more res integra and is covered by several decisions of this

Court. Suffice it to refer to two recent decisions namely G.

Mallikarjunappa and anr. Vs. Shamanur Shivashankarappa

and ors. (2001) 4 SCC 428 and Dr. Vijay Laxmi Sadho Vs.

Jagdish (2001) 2 SCC 247, both three-Judges Bench decisions,

wherein the learned Chief Justice has spoken for the Benches. It

has been held that an election petition is liable to be dismissed in

limine under Section 86(1) of the Act if the election petition does

not comply with either the provisions of "Section 81 or Section

82 or Section 117 of the RP Act". The requirement of filing an

affidavit along with an election petition, in the prescribed form,

in support of allegations of corrupt practice is contained in

Section 83(1) of the Act. Non-compliance with the provisions of

Section 83 of the Act, however, does not attract the

consequences envisaged by Section 86(1) of the Act. Therefore,

an election petition is not liable to be dismissed in limine under

Section 86 of the Act, for alleged non-compliance with provisions

of Section 83(1) or (2) of the Act or of its proviso. The defect in

the verification and the affidavit is a curable defect. What other

consequences, if any, may follow from an allegedly "defective"

affidavit, is required to be judged at the trial of an election

petition but Section 86(1) of the Act in terms cannot be attracted

to such a case.

Having formed an opinion that there was any defect in the

affidavit, the election petitioner should have been allowed an

opportunity of removing the defect by filing a proper affidavit.

Else the effect of such failure should have been left to be

determined and adjudicated upon at the trial, as held in G.

Mallikarjunappa and anr.'s case (supra).

For the foregoing reasons, the appeal is allowed with costs.

The judgment of the High Court is set aside. The election

petition shall stand restored on the file of the High Court for

hearing and decision consistently with what has been stated

hereinabove.