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UDHAV SINGH

v.

MADHA V RAO SClNDIA

October 10, 1975

[P. N. BHAGWATI AND R. S. SARKARIA, JJ.]

Represe11tation of the Pedple Act. 1951-Sec. 82(b}, 86-123(2}, 123(i)

& 123 (ii)-No11-joinder of candidate against whom allegation of corru,?t practice •

is made whether fatal-Whether objection must be raised in written statement

or whether can be taken by separate app/icatidn after the appellant's evidence

is over-Whether non.compliance can be waived-C.P.C. Order 8 rule 2-

Distinction between inaterial facts and material particulars. -

Six candidates fiied nomination papers for contesting the election to Lok

Sabha from Guna Parliamentary Constituency in March. 1971. Pratap Sing~

and Gaya Prasad withdrew their candidature after their nomination paper> were

found to

be in order on scrutiny. The respondent herein was declared elected

by a margin of' about

1,41,000 votes over his close rival Jadhav. The appel­

lant an elector of the Constituency filed an election petition challenging the

election of the respond·ent on two grounds (I) The respondent incurred or

authorised expenditure

in excess of the limit prescribed, (2) The workers of

the respondent including Pratap Singh, with his consent had threatened the

electors with bodily injuries and criminal intimidation not to vote for Jadhav.

The respondent

filed his written statement and denied the

charge, made by

the appellant. Issues were framed and evidence of the appellant was recorded.

Thereafter, the respondent submitted an application alleging that the appellant

in his petition alleged the comn1ission

of' a

corn;pt practice within the meaning of

s. 123 (2) of the Act by Shri Pratap Singh one of.th~ candidates but he failed

to show him

as a respondent and as

such the petition was liable to be dismis­

sed under

s. 86 on account of non-compliance with the mandate

of s. 82(b).

The appellant in his reply to the said application denied that any allegation was

made against Shri Pratap Singh and f\!rther stated that the respondent did not

raise this objection in his written statement and that he should not be allowed

to rai~ it at a belated stage. The appellant also contended that since the objec.

tion as to the non-joillder of the necessary party was not taken at the earliest,

it should be deemed to have been waived by the respondent.

The High Court found that the allegation against Shri Pratap Singh consti­

tuted a charge under

s. 123(2) of the Act and that non-joinder of

Shri Pratap

Singh as a respondent was fatal to the petition. On merits also .. the High Court

found against the appellant on both the i"5ues.

On appeal it was contended by the appellant :

1. In view of mandate of Order 8 Rule 2 of C.P.C. it was obligatory for

the respondent to take all pleas of non-joinder in the written statement.

2. In any case, the respondent should be deemed to have waived his rights.

3. No allegations of corrupt practice were, in fact, made against Shri Pratap

Singh,

..

4. Assuming that there is an allegation again>t Shri Pratap Singh, the al-'

legation is so bereft of material facts and material particulars that it does not

constitute a complete charge of corrupt practice under

s. 123(2).

On the either hand, the respondent contended; .

11 1. That it was not obligatory to take this objection in the written statement.

It was a purely legal objection which for its deteminatfon did not require

any fact> to be pleaded. The fatal defect is patentl on the face of the Election

Petition.

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UDHAV SINGH V. M. R. SCINDIA 247

2. Order 8 Rule 2 is not attracted because that provision. as its marginal

heading shows, enjoips the pleading of new facts only .as ~istinguished. ~rom

pure points of' law. In the alternative, the said appllcat10n was add1ti~nal

pleading which was accepted by the High Court. The appellant had sufficient

opportunity to file his reply, to the said application and was not taken by

surprise.

3. Section

86 read withs. 82(b) are in th~ nature of a•mandate to _the C~urt

which is bound to dismiss an election petition whenever it comes to Its notice,

whether on its own motion

or on the motion of the respondent, that there

has been a non-compliance with the imperatiye

of

s. 82 (b).

4. The respondent cannot by consent, express or tacit, waive these provisions.

5. There was a charge of corrupt practice against Shri Pratap Singh.

6. All primary facts. as distinguished from material particulars, are necessary

to constitute a complete charge of corrupt practice under

s. 123(2);

Dismissing the appeal.

HELD: (1) The respondent was not-precluded from raising the objection

as to non-joinder merely because he has done so after the close of the appel­lant's evidence nor was he obliged to raise it in the written statement.

[252-Hl

(2) Rule: 2 of Order 8 of C.P.C. is a rule of practice and convenience and

justice. This procedural rule is to subserve and not to enslave the cause of

justice. It lays down broad guidelines and riot cast iron traps for the defendant

in the matter of drawing up his statement of defence. (253-A]

(3) The plea raised by the respondent arises out

of allegations made in

the petition itself and raise a pure question of law.

No question of prejudice

or surprise

to the appellant arises. There are various decisions where objection

as to non-joinder

of a necessary party in an election petition was allowed to

be raised by a simple application submitted

Jong after presentation

qf the writ-

ten statement. [253-G]

( 4) There was a clear allegation of corrupt practice against Shri Pratap

Singh. [259-EJ

(5)All primary facts which must be proved at the trial by a party to

establish the existence of a cause of action or his defence are material facts.

In the context of a charge of corrupt practice material facts would mean all

the basic facts constituting the ingredients of the particular corrupt .practice

alleged, which the petitioner is bound (o substantiate before he can succeed

on that charge. Whether in an. election petition, a particular fact is material

or not and as such required to be pleaded, is a question which

depends on

the nature of the charge levelled. the grounds relied upon and the special

circumstances of the case. Particulars on the other hand are the details of

the case set up by the party. Particulars serve the purpose of finishing touche>

to the basic contours of a pidure already drawn to make it full, more detaL

Jed and more informative. The gist of the corrupt practice of undue influ­

ence

as defined in s. 123(i) is direct or indirect interference or attempt to interfere on the part of the candidate or his agent. The Election Petition

alleged that Shri Pratap Singh and others threatened the workers of the rival

candidate with bodily injury threatening them not to vote for rival candi­

date.

It is thus clear that all the material facts constituting a complete charge

of corrupt practice under s. 123(ii) against

Shri Pratap Singh were stated in

the petition. The approximate .date

of the threat which was only a material

particular

was also given.

Only the places and the precise time of giving the

threat were not stated but these were, at best. material particulars and not

material facts.

[257C-F, 258-D-E, G, 259-A]

(6) It was

obligawry for the appellant to implead Shri Pratap Singh as a

respondent. The rationale behind

s. 82(b) is a fundamental principle of natu­

ral justice. A charge. of corrupt practice against a respondent

if established,

has the effect of debarring him from being a candidate at an election for

a

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248 SUPREME COURT REPORTS [1976] 2 S.C.R.

considerably long time. Section 82(b) is in clear and peremptory terms. The

respondent cannot by consent express or ta~it, waive these provisions.

[252E, Fl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2651 of 1972.

From the Judgment and Order dated the 27th October, 1972 'Of the

Madhya Pradesh High Court in Election Petition No. 5 of 1971.

G.

N. Dixit,

S. K. Mehta, M. Qamaruddin and P. N. Puri for the •

Appellant.

S. G. Gupte, R. N. Bhalgotra, S. S. Khanduja, Ashok C'hitale, S. R.

Chide and V. P. Gupta for the Respondent.

TI~~ Judgment of the Court was delivered by

SARKARIA, J. This appeal is directed against a judgment, dated

October 27, 1972, of the High Court 'Of Madhya Pradesh dismissing

the election petition filed by the appellant to question the election

of

the respondent, to Lok

Sabha.

Six candidates filed nomination P~"ers for contesting the election

to

Lok

Sabha from Guna Parliamentary Constituency i' ~~arch 1971.

Out of them, Sarvshri Shiv Pratap Singh and Gaya Prasarl withdrew

their candidature after their nomination papers were fouilCI to be in

order after scrutiny, leaving four candidates in the field viz., Sarvshri

Madhavrao Scindia, Deorao Krishnarao Jadhav, Narayan Singh 'Albela'

and Bunde! Singh to contest the electio:1. Shri Madhav Rao Scindia

respondent herein who was spionsored by the Jan Sangh was declared

elected by a margin of 1,41,090 votes over his nearest rival, Shri

Deorao Krishnarao Jadhav, sponsored by the Indian National Congress.

Udhav Singh, an elector of the Constituency, filed an election peti­

tion 'On 26-4-1971, in the High Court challenging the election of the

respondent on two main grounds viz.,

(i) that the respondent and/ or

his election agent had incurred

or authorised expenditure in connection

with the election in excess of the limit of Rs.

35,000 prescribed under

s. 77(3) of the Act read with r. 90 of the Conduct of Election Rules,

1961.

It was alleged that the respondent

made a tour in the Consti­

tuency by helicopters and showed Rs. 5,000 only as au expense towards

the cost of the aviation fuel but did not show the hiring and other

charges in respect thereof.

It was further alleged that the respondent

hired and used

motor vehicles, not less than 18, but did not show the

expenditure incurred in respect thereof in the statement of election

expenses submitted by him to the Election Commission;

(ii) that the workers

of the respondent, with his consent, had

threa­

tened the electors with bodily injuries and criminally intimidated them

not to vote for Shri De'Orao Krishnarao Jadhav, the Congress candidate.

Five instances of such threats and intimidation interfering with the free

exercise of electoral rights, were set out in clauses

(i) to (v)

of the

original Paragraph 1 O(III) of the petition, which, after amendment, was

renumbered

as

Para 1 l(iv). Clause (iv) of Paragraph 11 is as follows :

"That, on or before 22-2-71, Shri Mohan Prasad Ojha, a

Congress Worker of Village Umri (Tehsil Guna) was threaten-

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UDHAV SINGH v. M. R. SCINDIA (Sarkaria, J.) 249

ed at pisrol point by the workers on the respondent with his

consent, Shri Shiv Pratap Singh and others of Umri threatened

not to vote and canvass

in: favour of the Congress candidate, Demao K'rishnarao Jadhav and threatening with dire conse-

quences."

A

Process was issued to the lone respondent impleaded in the election

petition. On 28-5-1971, an advocate put in appearance on his behalf. B

In the· written statement presented on 24-9-1971 the respondent tra­

versed the allegations of corrupt practices made

in the petition. In

answer to clause (iv) of Paragraph 11 of the

petition, the respondent

stated:

"The allegations of the petitioner. that on: or before

22-2-19·71 Shri Mohan Prasad Ojha, a Congress Worker of

the village Umri (Tehsil Guna) was threatened at pistol point

by the workers of the respondent with his consent

is denied.

It is also denied that with the consent of the respondent,

Shri

Shiv Pratap Singh and others of Umri threatened him not to

vote and canvass in favour of the Congress Candidate Shri

Devrao Krishnarao Jadhav and threatened him . with dire

consequences. This para

is

also lacking in material particulars

as to who were the alleged workers, what was their names;

their addresses, castes etc. It cannot therefore, be enquired

into. The allegation is incorrect, baseless and vague.

It is

also vague because particulars as to when, where and

in whose

presence the alleged consent of the respondent was given are

not

mentioned.·•

The main issues framed on 1-10-1971 were as under :

1. "Has the respondent incurred or had authorised expenditur~.

which was more than: the prescribed limit laid down under

the Representation of the People Act, 1951 or the Rules

made thereunder, as detailed in Para 10(1) and lO(II) of

the petition ?

2. (a) Did the worker of the resP'ondent with his consent

threaten the voters with injury, and criminally intimi­

dated them in case they ¥oted for D.K. Jadhav as

detailed in Paragraph

11 of the petition, and if so,

what is its effect

?" ·

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Thereafter, the petitioner examined twelve witnesses on various G

dates, fixed in the case, from 16-12-1971 to 24-7-1972.

On 3-8-1972, an: application (No. 58/72) was submitted by the

responden~ _alleging that the election-petitioner has in paragraph 11 (iv)

of the petit10n alleged the commissi'on of a corrupt practice within the

meanin,g of s. 123(2) of the Act, by, Shri Shiv Pratap Singh, on:e of

the candidates, 'but has failed to join him as a respondent and as such

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his petition is liable to be dismissed under s. 86 on

acco~nt of non~

compliance with the mandate of s. 82(b). In this application, the res­

pondent reproduced clause (iv) of

Para 11 of the petition

as follows :

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250 SUPREME COURT REPORTS (1976] 2 S.C.R.

,.

"That on or before 22-2-71, Shri Mohan Prasad Ojha a

Congress worker of village Umri (Tehsil Guna) was threatened

at pistol point by the workers

of the respondent with his con­

sent,

Shri Shiv Pratap Singh and others of Unrri and threaten­

ed hf m not to vote an~ canvass in favour of the Congress

candidate. Deorao Knshnarao Jadav and threatening him

with dire consequences."

Notice of this application was given to the election petitioner who

after taking several adjoummen1s, ultimately filed a reply on 28-S-i972.

In his reply, the petitioner stated that Paragraph ll(iv) as repro­

duced in

.the respondent's application was not a correct reproduction.

It was further stated :

'

"It is denied that there has been any allegation of corrupt

practice against Shri Shiv Pratap Singh who ·was a candidate

at the aforesaid election.

The respondent also understood the

same thing, that is why he did not raise any objection for a

long period of

11 months since the respondent filed his writ­

ten statement.

"However, though there is absolutely no doubt about the

identity

of the said

Shri Shiv Pratap Singh, but the basic

question giving rise ~o this application that an allegation of

corrupt practice has been made against him in

para ll(iv) of

the petition is wholly incorrect and based on absolutely wrong

interpretation of the statement of allegation made in the afore­

said

paragraph."

The petitioner further stated that the objection as to non-joinder of

necessary party not having been taken at the earliest, should be deemed

to have been waived by the respondent. ·

In his rejoinder (I.A. 76/72, dated 7-9-1972), the respondent

maintained that

Para 11 (iv) had been correctly extracted by him in his

application dated 3-8-72, from the copy

of the election-petition which

was served upon

him, certified to be true copy under the seal and

signature of Shri R. K. Tankha, Advocate, the then Counsel for the

petitioner.

On 5-9-72, at about

4.30 p.m. the Counsel for the respon­

dent

on inspecting

tlie original election petition discovered to their

amazement that the three words (now underlined by us) had been

erased and the erasures initialled. It was alleged that this tampe«ing

with the petition had been done to wriggle out of the fatal defect in the

petition. The respondent prayed that the petitioner be recalled and

allowed

to be cross-examined on this point.

The learned trial judge postponsed consideration of these applica­

tions and

of the objection as to non-joinder of

Shri Shiv Pratap Singh

till the conclusion of the trial. Thereafter the respondent examined his

witnesses.

He also examined his Advocate

Shri Baghel, who produced

Ex. R-33, a copy

of the petition, he had received

from the

office of

the High Court. The respondent closed his evidence on

9-7-72.

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UDHAV SINGH v. M. R. SCINDIA (Sarkaria, J.) 251

The learned trial judge, heard these objections arising out of the

non-joinder of Shri

'Shiv

Pratap Singh, along with the final arguments

in this case.

Shri Baghel, Counsel for the respondent, while appearing in the

witness-stand

was unable to say definitely whether Ex. R-33, was a true

copy of the copy he had received from the High Court office.

In view

of this the learned Judge held that

it had not been proved that these

erasures in para

11 (iv) under initials were made

subsequently to the

filing of the petition.

He therefore, considered clause (rv) of para 11

sans the words erased. There, as here, it was contended that the

second

part of clause (iv) of para 11 if properly construed would mean that

Shri Shiv Pratap Singh and others of Umri were threatened-and not that

they

threatened-not to

·v?te and canvass ~n favour. of t?e Congress

candidate". The learned iudge repelled thrs contention with the obser­

vations that "in no circumstances of the case (it) is possible to read"

para 11 (iv) in the manner suggested by the petitioner. According to

him the allegations in this paragraph constituted a charge under sec.

123(2) of the Act against

Shri Shiv Pratap Singh and his non-joinder

as a respondent

wa:s fatal to the petition which was liable to be dis­

missed on that score alone under

s. 86.

On merits he found Issues 1 and 2 against the petitioner.

In the

result, he dismissed the election petition with costs. Hence this appeal

by the petitioner.

We have heard arguments of the learned Counsel on both sides

with regard to the non-joinder of

Shri Shiv Pratap Singh.

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It is common ground that Shri Shiv Pratap Singh was one of the E

candidates who had withdrawn his nomination papers for election from

this Constituency, after the same had been found in order by the Return-

ing Officer. There was thus no doubt that he was a "candidate" for the

purpose of the relevant provisions of the Act.

If therefore the allega­

tions made in

cl. (iv) of para 11 of the P.etition relate to him and amount ·

to a charge of corrupt practice against him, his non-joinder as a respon-

dent would be fatal, to the election-petition. F

Mr. Dixit, the learned Counsel for the appellant, contends that this

objection as to non-joinder was not taken in the written statement, that

it

was raised for the first time-about 14 months after the service of

the notice of the election petition

on the respondent-after the petitioner

had examined all his witnesses in the case.

It is submitted that this

amounted to wavier. According

to the learned Counsel, in view of the

mandate of Order

8, rule 2, Code of Civil

Procedure, it was obligatory

for the respondent to take all such pleas showing the petition to be non­

maintainable, in his written statement. Since this was not done, the

responden' should not have been allowed to raise this plea, namely, by

an application when the case was in an advanced stage, and

an amend­

ment of the written statement

was liable to be refused on the ground of

latches. -

On the other hand, Mr. Gupte, learned Counsel for the respondent,

submits that it was not obligatory to take this objection in the written

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SUPREME COURT REPORTS [1976] 2 S.C.R.

statement. It was a purely legal objection which for its determination did

not require any facts to be pleaded and proved by the respondent. The

fatal defect, it

is submitted, is patent on the face of the election petition.

Mr. Gupte submits that

0. 8, r. 2, is not attracted because that provision,

as its marginal heading shows, enjoins the pleading of new facts, only

as distinguished from pare points of law. In the alternative, it is

:,ub­

mitted that the application, dated 3-8-72, whereby this objection was

raised was in nature and substance additional pleading of the respon­

dent which

was accepted as such by the Court. The petitioner also

submitted his reply thereto and he could not complain that he

was

taken by surprise. It is further urged that the provisions of sec. 86,

read with

s. 82 (b), are in the nature of a mandate to the Court, which

is bound to dismiss an election petition wherever it comes to its notice,

whether on its own motion, or on the motion of the respondent, that

there has been a non-compliance with the imperative of

s. 82(b).

The material part of s. 82 reads thus :

Parties to the petition-A petitioner shall join as respon­

dent to his

petition-

( a)

(b) any other candidate against whom allegations of any cor­

rupt practice are made in the

petition."

Behind this provision is a fundamental principle of natural justice

viz., that nobody should be condemned unheard. A charge of corrupt

practice against a candidate, if established, entails serious penal conse­

quences.

It has the effect of debarring him from being a candidate at

an election for a considerably long period. That is why, s. 82(b) in

clear, peremptory terms, obligates an election-petitioner to join

as res­

pondent to his petition, a candidate against whom allegations

of any

corrupt practice are made in the petition. Disobedience of this man­

date, inexorably attracts

s. 86 which commands the High Court, in

equally imperative language,

to-

"dismiss an election petition which does not comply with

the provisions

of section

82."

The respondent cannot by consent, express or tacit, waive these

provisions or

condone-a non-compliance with the imperative of s.

~2

(b). Even inaction, latches or delay on the part of the respondent m

pointing out the lethal defect of non-joinder cannot relieve the Court of

the statutory obligation cast on it by s. 86. As soon. as the non­

compliance with

s. 82(b) comes or is brought to the notice of the court,

no matter

in what manner and at what stage, during the pendency of the

petition, it

is bound to dismiss the petition in unstintcd obedience to the

command of

s. 86.

Considered in the light

of the above enunciation

th~ ~espondent was

not precluded from raising the objection as to . non-iomder, merely

because he had done so after the close of the petitioner's evidence, and

not

at the earliest opportunity.

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UDHAV SINGH v. M. R. SCINDIA (Sarkaria, J.) 253

Nor was the respondent obligated to raise this objection only by his

written statement and in

no other mode. Rule 2 of

Order 8 of the

Code

of Civil

Pr~cedure is a rule of practice and convenience and

Justice. This procedural Rule

is to subserve and not

en~lave the cause

of justice. It lays down broad gui~elines a!ld not cast-lrol). traps for

the defendant in the matter

of drawmg up

h~s statement of defence. It

says :

''The defendant must raise by

his pleading all matters which

show the suit not to be maintainable, or that the transaction

is either void or voidable in point of law, and all such grounds

of defence as, if not raised, would be likely to take the opposite

party by surprise

or would raise issues of fact not arising out

of the plaint, as for instance fraud, limitation, release, pay­

ment, performance, or

fact.s showing illegality."

The key-words are those that have been underlined. These words

indicate the broad test for determining whether a particular defence

plea of fact

is required to be incorporated in the written statement. If

the plea or ground of defence 'raises issues

of fact not arising out of the

plaint', such plea or ground

is likely to take the plaintiff by surprise,

and

is therefore required to be pleaded. If the plea or ground of

defence raises an issue arising out of what is alleged or

admitted

in the plaint, or is otherwise apparent from the plaint, itself, no

question

of prejudice or surprise to the plaintiff arises. Nothing in the

Rule compels the defendant to plead such a ground, nor debars him

from setting it up at a later stage

of the

case; particularly when it does

not depend on evidence but raises a pure question of law turning on a

construction of the plaint. Thus, a plea

of limitation that can be sub­

stantiated without any evidence and

is. apparent on the face of the

plaint itself, may be allowed to

be taken at any stage of the suit.

An objection on the ground

of non-compliance with the requirement

of

s. 82(b) is a plea of this category. It arises out of allegations made

in the petition itself.

Such a plea raises a pure question of law depend­

ing on a construction

of the allegations in the petition, and does not

require evidence for its determination.

Such a plea therefore, can be

raised at any time even without formal amendment of the written state­

ment.

_In the instant case, it was raised by an application, dated 3.8.72,

which was accepted by the court as a supplementary pleading of the

respondent, and the petitioner had also pleaded in reply to the same.

There are several decisions wherin an objection

as to non-joinder of a

necessary party in an election petition

was allowed to be raised by

means of a simple application submitted long after the presentation of

the written statement by the respondent.

. In Rao Abhe

Singh v. Rao Nihal Singh,(1) A Division Bench (con­

stituted b):7 Dua an~ Grover JJ.) allowed an objection as to non-joinder

of a candidate, agamst whom a corrupt practice was alleged, to be

raised by

way of an application which was filed after practically the

whole evidence

in the case had been recorded.

(r) 25,

E, L. R. 113 (Punjab).

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SUPREME COURT REPORTS (1976] 2 S.C.R.

Other instances wherein such an objection was allowed to be raised

by a separate application without incorporating the same in the written

statement

by an amendment, are furnished by these cases: Hari Gopal

Dabe

v.

Smt. Vijaya Raje Scindia(1

1

); Jagan Nath v. Jaswant Singh and

ors. (2) K. Kamaraja Nadar v. Kunju Thevar and ors. (3), Mallappa

Basuppa

v. Basavaraj Ayyappa(

4

)

S. B. Adityan v. Kundaswami and

ors.(

5

), Mohan

Singh v. Bhanwar Lal and ors(

0

) Amin Lal v. Huma

Mal(7).

Having rejected the first contention of the appellant, we now pass on

to the pivotal point in the case.

What should be the fair construction of the allegations in Para

11 (iv) of the petition ? Is it possible to read-as Shri Dixit wants

us to read-this paragraph as contaiqing a charge that Shri Shiv

Pratap Singh and others of Urnri were threatened by the workers of

the respondent, not

to canvass and vote for the Congress candidate ? Or, does it mean that Shri Mohan Prasad Ojha, an elector and a

Congress worker

was threatened by Shri Shiv

Pratap Singh and others

of Umri not to canvass and vote for the Congress candidate, Shri

Deorao Krishnarao, Jadhav?

Mr. Dixit submits that Clause (iv) of Para 11 falls in two parts,

separated

by a comma, and the allegations in each part are distinct

from the other. The first part comprising the allegations,

"That, on or before 22-2-71, Shri Mohan Prasad Ojha,

a Congress Worker of Village Union (Tehsil Guna) was

threatened at pistol point by the workers"

according to Counsel, stands alone, and should not be read conjointly

with the second part which speaks

of Shri Shiv

Pratap Singh and

others of Umri. However, not very consistently

with this argument,

it

is urged further that

sin,ce the allegations in the first part are set

out in passive voice, the content~ of the second part should also be

deemed to have been expressed in passive voice. If this methodology

is adopted, the second part of Para 11 (iv) according to Mr. Dixit.

would read like this :

Shri Shiv Pratap Singh and others of Umri (were)

threatened not to vote and canvass in favour

of the

Cong­

ress candidate, Deorao Krishnarao Jadhav .... "

We are afraid, this ingenious method of construction after com­

partmentalisation, dissection, segregation and inversion of the langu­

age of the paragraph, suggested by Counsel, runs counter to the cardinal

canon of interpretation, according to which, a pleading has to be read

as a whole to

ascertai~ its true import. It is not permissible to call

out a sentence or a passage and to read it out of the context, in iso­

lation. Although it

is the substance and not merely the form that

(1) (1971) 33, E. L. R. 119.

(3) A. I. R. 1958

S. C. 687.

(5) A. I. R. 1958 S. C. 857.

(7) A. I. R. 1965 S. C. 1243.

(2) A. I. R. 1954, S. C. 210.

(4) A. I. R. 1958 S. C. 698.

(6) A. I. R. 1964 S. C. 1366.

•

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UDHAV SINGH v. M. R. SCINDIA (Sarkaria, J.) 255

has to be looked into, tbe pleading has to be construed as it stands ,' A

without addition or substraction of words, or change of its apparent I

gra=atical sense. The intention of the party concerned is to be /

gathered, primarily, from the tenor and terms of his pleading taken ; V

as a whole.· . . l

The construction of Para 1 l(iv) suggested by Mr. Dixit is not

possible without a radical change

in its sense and tense. by

unwar­

ranted addition and excision of words. It would necessitate a mate-

rial change in the tense by reading the verb "threatened" as "were

threatened" so that what was clearly expressed by its author in active

voice gets converted into a passive voice with consequent inversion

and subversion of the original sense. Even tbe addition and attach­

ment of the word "were" to tbe pre-existing verb "threatened" would

not completely transform Shri Shiv Pratap Singh and others of Umri

from "threateners'' into the "threatened'' unless the contra-indicative

phrase "and threatening with <lire. consequences" was also amputated.

B

c

Jn our opinion, tbe correct way of construing Para 11 (iv) is to

take

it as it stands, and read it not in

pa!rts but as a whole together

with its preamble and tbe rest of the pleading. Thus read, tbe rele­

vant allegation in clause (iv) of

Para 11 would fairly and clearly D

admit of only tbis construction : "That· on or before 22-2-71, Shri Mohan Prasad Ojha,

a Congress Worker and elector of village Umri (Tehsil

. Guna) was threatened at pistol point witb dire consequences

by Shri Shiv Partap Singh and others of Umti, the workers of

'the respondent with his consent, not

to vote and canvass in E

favour of the Congress Candidate, Dcorao KrishnaraoJadhav."

In our opinion, this is the pnly reasonable construction that the

language of

Para 11 (iv) without undue stretching, straining and twist-

-ing, can 'bear. Indeed, from tbe relevant portions of tbe pleadings

. extracted earlier

in tbis judgment, it is evident that both the parties,

including the petitioner,

had understood the allegations in Para 11 (iv)

in the serise in which we have construed them

.. It

·was only after

·the presentation of tbe application, dated 3-8-72, raising the objection,

the petitioner

in an

attempt-as the High Court rightly put it-"to

wriggle out' from the unforturlate position he was placed in not mak-

ing Shiv Pratap Singh a party'', has started claiming the antic inter­

pretation quite different from the one flowing from the plain language

and tenor of

Para 11 (iv).

We· have therefore no hesitation in repelling the second conten-

tion also, canvassed on behalf of the appellant. ·

· The last contention of the learned Counsel for the appellant is

that even if the second part of clause (iv) is construed as an allega­

tion that Shri Shiv Pratap Singh and others of Umri threatened not

F

G

to vote and canvass, then also, this allegation is so bereft of material H

. facts and material particulars, that it does not constitute a complete

charge of corrupt practice under sec.

123(2). The material facts

and material particulars, which according

to Counsel were, in

view

A

B

c

D

E

.F

G

H

256 SUPREME

COURT REPORTS [1976] 2 S.C.R.

of the mandate of s. 83 required to be pleaded, but have not oeen

, pleaded are : the place where the threat was given, the kind and nature

of the injury threatened, or injury, if any, actually caused, the parti­

culars of the parentage, address of Shiv Pratap Singh and others, the

fact that this Shiv Pratap Singh of Umri was the same who was one

of the candidates

at the election and that the person threatened was

an

elector, an:d how the threat constituted an interference with the

free exercise of his electoral right.

It is urged that in ascertaining

whether

or not the allegations in

Para 11 (iv) constitute a complete

caus~ of action relating to a corrupt practice, the Court has to con-­

fine itself to this Para, and cannot take into consideration even an

admission of the petitioner appearing in evidence

or in any document

extraneous to the election petition. Support for this contention has

been sought from the decisions of this Court in

Sheodhan Singh v.

Mahal

Lal Gautam,(') Samant N. Balakrishna etc. v. George Fer­

nandez and ors.(

2

) and Hardwari Lal v. Kanwal

Si11gh(

3

).

As against this, Mr. Gupte, has pointed out that all the materia[

facts,

as distinct from material particulars, necessary to constitute

a complete charge of corrupt practice under

s. 123(2) against

Shri

Shiv Pratap Singh, a candidate can be found in the petition if the

same

is read as a whole. In any case, the identity of this

Shiv Pratap

Singh as a candidate was admitted by the petitioner in the particulars

supplied by him pursuant

to an order of the Court on 8-8-1972.

Those particulars, according

to the Counsel are to be treated as a

part of the Petitioner's pleading. It is further submitted that if there

is any deficiency of particulars, as distinguishable from material facts,

in

Para 11 (iv), then also they could be supplied, even after the expiry

of limitation for the petition, pursuant to an order of the Court, made

at the instance of the respondent. The petitioner cannot, it is stressed,

take advantage of his own

default, in not setting forth full particulars

of basic facts set out in the petition.

Section 83 lays down, :

" ( 1) An election petition-

( a) shall contain a concise statement of the materiai

facts

on which the petitioner relies;

(b) shall set forth full

particu1ars of any corrupt practice

that the petitioner alleges, including

as full a state­

ment

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)

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 0.6, R.2, while clause (b)

(1) [1969] 3

S. C.R. 417. (2) [1969] 3 S. C.R. 603.

(3) [1972) 2 S. C.R. 742.

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UDHAV SINGH v. M. R. SCINDIA (Sarkaria, J.)

•

257

is analogous to Order 6, Rules 4 and 6. of the. Code.,, .Th.e distinc­

tion between "material facts" and "matenal 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

materipl fact leads to an incomplete cause of action and incomplete

allegations of such a charge are liable to be struck <;>ff under Order 6,

Rule

16, Code of Civil Procedure. If the petition is based

solel¥ _on

those allegations which suffer from lack of material facts, the pettt10n

is liable to be summarily rejected for want of a 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 re­

quried particulars even after the expiry of limitation.

All the primary facts which must be proved at the trial

by a party

to establish the existence of a cause of action or his defence, are

"material facts". In the context of a charge of corrupt practice,

"material facts" would mean all the basiC facts constituting the in­

gredients of the particular corrupt practice alleged, which the peti­

tioner

is bound to substantiate before he can succeed on that charge.

Whether in an election-petition,

a particular fact is material 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 .the

special circumstances of the case. In short, all those facts which are

essential to clothe the petitioner with a complete cause of action, are

"material facts" which must be pleaded, and failure to plead even a

single material fact amounts to disobedience of the mandate of sec.

83(1)

(a).

"Particulars'', on the other hand, are ."the details of the case set

up by the party". "Material particulars" within the contemplation

of clause (

b) of s. 83

(i) would therefore mean all the details which

are necessary to amplify, refine and embellish the material facts al­

ready pleaded

in the petition in compliance with the requirements of

clause

(a). 'Particulars' serve the purpose of finishing touches to

the basic

conltours of a picture already drawn, to make it full, more

detailed and more informative .

The distinction between 'material facts' and 'material

particulars"

was pointed out by this Court in several cases, three of which have

been cited at the bar.

It is not necessary to refer to all of them. It

will be sufficient to

cl<;>se the c;Jiscu~sio_n by extracting what A. N. Ray

· J. (as he then was) said on this pomt m Hardwari Lal's case (supra)

. "It is therefore vital that the corrupt practice charged

agamst the respondent should be a full a111d complete state­

ment

of

material facts to clothe the petitioner with a com­

plete cause of action and to

give an equal and full opportu­

nity to

the respondent to meet the case and to defend the

charges. Merely, alleging that the respondent obtained

or procur~d or attempted to obtain or procure assistance are

extractmg words from the statute which will have no mean­

ing unless and until facts are stated to show what that

A

B

c

E

A

B

.c

D

258 SUPREME COURT REPORTS [1976] 2 S.C.R.

assistance is and how the prospect of election is furthered

by such assistance.

In the present case, it was not even

alleged that the assistance obtained

or procured was other

than the giving of vote.

It was said by counsel for

the respondent that because the statute did not render the

giving of vote a corrupt practice the words

"any assistance"

were full statement of material fact. The submission is

fallacious for the simple reason that the manner of assis­

tance, the measure of assistan;ce are all various aspects of

fact to clothe the petition with a cause of action which will

call for an answer. Material facts are facts which if estab­

lished would give the petitioner the relief asked for. If the

respondent had not appeared, could the court have given

a verdict in favour of the election petitioner. The answer

is in the negative because the allegations in the petition did

not disclose any cause of

action."

Bearing in mind the criteria for distinguishing material facts from

material particulars, let us now see whether the allegations in Para

ll(iv) of the petition cover a]] the material facts constituting a com­

plete charge of corrupt practice within the meaning of sec. 123(2)

against Shri Shiv Pratap Singh who was a candidate at the election.

The gist of the corrupt practice of "undue influence" as defined

in sub-section (i) of sec. 123

is

"direct or indirect interference or

•.

attempt to interfere on the part of the candidate or his agen,t, or of '-

any other person with the consent of the candidate or his election

agent with the free exercise of any electoral right".

1E By way of illustration sub-clause (1) of clause (a) of the Pro-

:F

viso lays down that if a person who threatens any canrlidate or any

-::lector, or any person in whom a candidate or an elector is interested,

with injury of any kind shall be deemed to interfere with the free

exercise of the electoral right of such candidate or elector within the

meaning of sub-section

(2).

In

Para 11 (iv) the particular corrupt practice alleged is of the

kind indicated in the aforesaid sub-clause (i) of the Proviso. Reading

Para 11 as a whole, it is clear that it is pleaded that Shri Shiv Pratap

Singh and . others of Umri had administered a threat to Shri Mohan

Prasad Ojha who was a Congress Worker and an elector of Umri;

that the threat was not to vote for the Congress candidate, Shri Jadhav,

the threat was of causing bodily injury to the said elector, that the

threatener Shri Shiv Pratap Singh, was an election worker of the res­

pondent and had administered the threat to the said elector, with the

consent of the respondent. Reading Para 11 (iv) together with the

co111tents of Para 10 of the petition, the import is clear that this

threatner was none else but "Shri Shiv Pratap Singh MLA, s/o Shri

Birjendra Singh r/o Umri House Guna", who "during the election of

the respondent acted

as his

agent."

JI It will thus be seen that all the "material facts" constituting a

complete charge of corrupt practice under

s. 123(2) against

Shri

Shiv Pratap Singh were stated in the petition. The approximate date

I

UDHAV SINGH v. M. R. SCINDIA (Sarkaria, J.) 259

of administering the threat-which was only a material particular as

distinguished from a material

fact-was also given.

Only the plactl

and the precise time of giving the threat were not stated. But these

were, at best, only material particulars, and not "material facts.". The

occasion for furnishing such particulars would have arisen only if

the res,pondent had asked

for them. Similarly, further and better

particulars of the address etc.

of

Shri Shiv Pratap Siu_gh would fall

within the category

of particulars. By an application

datt<d. 1-8-1972,

the respondent, obviously as a matter of abundant caution,. :;i.sked for

fuller particulars of Shiv Pratap Singh referred to in para 11 (iv) .

The petitioner submitted

his reply, dated 8-8-72, through his Counsel in which he furnished these particulars of the said Shri Shiv Pratap

Singh:

"Shiv Pratap Singh s/o Brijendra Singh, aged about 35

years, occupation cultivation (at present

M.L.A Guna)

resident

of

Umri House, Guna, Distt. Guna."

These particulars supplied by the election-petitioner were in the

nature of

his supplemental pleading. They could not be treated as

something extraneous to his pleading. They could be legitimately

looked into

for construing Paragraph 11 (iv) of the petition. Tiiese

particulars supplied

by the petitioner were substantially the same as

given in

Para 10 of the petition. These particulars doubly confirmed

the identity of Shiv Pratap Sirigh mentioned in Para 11 (iv) as the

same person

who was one of the candidates.

A

B.

e:

In sum, Para 11 (iv) of the petition contained allegations of a

complete charge of corrupt practice against a candidate, Shri Shiv

Pratap

Singh

and consequently in view of sec. 82(b) it was obliga-K

~r_Y for the petitioner t~ implead him, as also, as a respondent,

J:< ailure to do so, would mexorably lead to the dismissal of his peti-

tion under sec. 86.

Accordingly on this short ground, and for all the reasons afore­

said,

we uphold the dismissal of the election petition and disallow

this appeal with costs.

p.-

P.H.P. Appeal dismissed._