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CASE NO.:

Appeal (civil) 809 of 2005

PETITIONER:

Virender Nath Gautam

RESPONDENT:

Satpal Singh & Ors

DATE OF JUDGMENT: 08/12/2006

BENCH:

C.K. Thakker & R.V. Raveendran

JUDGMENT:

J U D G M E N T

C.K. Thakker, J.

This appeal is filed by the appellant against the

judgment and order dated December 20, 2004 passed by

the High Court of Himachal Pradesh, Shimla in Election

Petition No. 2 of 2003. By the said order, the High Court

upheld the preliminary objection raised by the first

respondent that the Election Petition did not disclose

material facts and was liable to be dismissed.

The case of the appellant is that the Election

Commission of India notified the programme for the

elections to the Legislative Assembly in the State of

Himachal Pradesh scheduled to be held in February,

2003. As per the said notification, the last date of filing

of nomination papers was February 7, 2003, scrutiny -

February 8, 2003, date of withdrawal \026 February 10,

2003, date of polling \026 February 26, 2003 and of counting

of votes \026 March 1, 2003. According to the appellant, he

submitted his nomination paper as a candidate of Indian

National Congress Party on February 26, 2003 from 32

Una Assembly Constituency. Respondent No. 1 was set

up by Bhartiya Janata Party and contested the election

from the said constituency. At the counting, according to

the appellant, he secured 27,600 votes while the first

respondent got 27,651 votes. Thus, by a small margin of

51 votes, the first respondent was declared successful

candidate.

According to the appellant, there were several

irregularities and illegalities as also discrepancies in the

Voters List. Electronic Voting Machines which were

employed were defective; many void votes had been

polled; there were cases of double voting and all those

illegalities vitiated the election and materially affected the

result thereof. The appellant, therefore, filed an Election

Petition on April 10, 2003. In the said petition, he alleged

that one Tek Chand Thakur was the Returning Officer for

the constituency in question. At the time of counting, the

appellant requested the Returning Officer that he had

come to know that many void votes had been cast and

they should be deleted from counting, but the Returning

Officer expressed his inability and helplessness to do so

stating that there was no such mechanism in the

Electronic Voting Machines.

In paragraph 8 of the Election Petition, the appellant

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stated that as many as 188 votes had been wrongly

counted though they were invalid/void votes. In the

Election Petition itself, the appellant had given details of

all such votes. He also stated that since the margin of

votes between the defeated candidate and the returned

candidate was only 51 votes and the wrong counting of

votes amounted to 188 invalid/void votes, it had

materially affected the result of the election.

In para 8(i), he stated that as many as 37 votes of

dead persons have been cast and they should not have

been counted. The appellant had given names of those

dead persons along with numbers in the voters' list.

Death certificates of 36 persons were filed as Annexure

EP-3 to EP-38. He stated that the Gram Panchayat

concerned had not issued death certificate in respect of

one Mukesh Kumar. He, therefore, annexed Death

Report along with a forwarding letter dated April 7, 2003

in respect of deceased Mukesh Kumar issued by the

Senior Medical Officer, Zonal Hospital, Una District, Una.

The appellant also stated that out of 37 votes, 30 votes

had been polled in booth Nos. 48 and 49, in the native

village of the first respondent-returned candidate.

In paragraph 8(ii), the appellant alleged that as

many as 60 double votes had been cast which was in

contravention of the provisions of Section 62(4) of the

Representation of the People Act, 1951 (hereinafter

referred to as "the Act"). Thus, 120 votes had been

counted though voters were only 60. It was in violation

of the statutory provision and those votes were,

therefore, void. The details of those votes had also been

mentioned in the Election Petition itself.

In paragraph 8(iii), the appellant averred that 19

void votes had been polled. Even though all those

persons cast their votes in booth Nos. 76 and 63 of

Kutlehar \026 33 Constituency, in Una 32 Constituency, the

same voters had again cast their votes. The appellant has

given details of those voters in the Election Petition.

According to the appellant, the returned candidate was

the beneficiary of those void votes and since the margin

was small, the result had been materially affected.

In paragraph 8(iv), the appellant had alleged that

material irregularities had been committed by the

Returning Officer while counting Postal Ballot Papers. Six

persons named in the petition had sent double Postal

Ballot Papers. So instead of six votes, twelve votes had

been cast.

According to the appellant, irregularities and

illegalities mentioned in paragraph 8 had materially

affected the result of the election. Had there been proper

voting and counting, the appellant would have secured

more number of votes than the first respondent. On the

above grounds, a prayer was made by the appellant to

call for the record of the Electronic Voting Machines, to

inspect all polled votes of 32 Una Assembly Constituency

and of booth Nos. 76 and 36 of Kutlehar \026 33 Assembly

Constituency, to order re-counting, to set aside and

declare election of the first respondent void and to

declare appellant as duly elected candidate from 32 Una

Constituency. Other reliefs were also prayed for.

A written statement was filed by the respondent

controverting facts stated, allegations leveled and

averments made in the Election Petition. He denied all

the allegations of the appellant. He also raised a

preliminary objection as to maintainability of petition

contending inter alia that as no objection had been taken

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by the appellant at an appropriate stage, it was not open

to him to raise such contentions after the election was

over and result was declared. It was further contended

that the petition had not been properly verified as

required by law and the appellant had not disclosed the

names of persons from whom he had received

information as to averments made in sub-paragraphs (i)

to (iv) of para 8 of the petition. The first respondent also

asserted that the petition lacked material facts and full

particulars as required by law. The allegations in the

petition were vague and did not disclose sufficient

grounds for re-counting for which prayer was made.

According to the first respondent, since the petition did

not disclose cause of action, it was liable to be dismissed

on that ground alone. Apart from that, even on merits,

nothing could be pointed out which would enable him to

claim any of the reliefs sought in the Election Petition and

the petition was liable to be dismissed.

In replication, the appellant submitted that the

objections raised by the first respondent-returned

candidate were ill-founded and reiterated what he had

stated in the main petition. According to him, allegations

were not vague, but self-explanatory and based on

material facts and full particulars.

On the basis of the pleadings, the High Court framed

eight issues. The High Court, however, treated issues

Nos. 5, 6 and 8 as preliminary issues. Since, we are

concerned in the instant case only with regard to

preliminary issues, they may be re-produced.

5. Whether the election petition does not disclose

any cause of action?

6. Whether the petition lacks in material facts and

particulars, as contemplated under Section 83 of

the Representation of People Act?

8. Whether the petitioner is estopped from claiming

recounting of votes?

The High Court then heard the learned counsel for

the parties on the above three issues. The High Court

noted that it was contended by the learned counsel for

the returned candidate that the Election Petition did not

disclose cause of action by placing on record material

facts on which the defeated candidate relied in support of

the challenge made by him and the petition was liable to

be dismissed. The High Court considered the relevant

provisions of the Act as also the leading decisions of this

Court and passed the following order;

"For the reasons recorded above, the election

petition cannot be said to be in accordance with

Section 83(1)(a) of the Act being bereft of

primary facts to complete the cause of action.

The defect cannot be cured even by amendment

of the petition.

To conclude, the petitioner has not disclosed

all material facts and has withheld the same. In

the absence of such facts, a roving inquiry cannot

be permitted. There is no dispute that if para 8

sub-paras (i) to (iv) are deleted, nothing survives

in the election petition for putting the petition for

trial.

For the aforesaid reasons, para 8 sub-paras (i),

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(ii), (iii) and (iv) are struck down being vague,

indefinite and lacking in material particulars.

After striking down of the said paras, nothing

survives in the election petition. The petition is

rejected with costs quantified at Rs. 5000/-.

(emphasis supplied)

Regarding 37 votes of dead persons, the High Court

observed that according to the appellant, 30 such votes

out of 37 votes were cast in booth Nos. 48 and 49 which

was in the native place of the first respondent-returned

candidate. The Court stated that so far as that allegation

was concerned, there was not a word as to how many of

those votes were cast in favour of the returned candidate

and who cast those votes. The Court proceeded to

observe that the defeated candidate did not say that he

raised any objection when electoral rolls were prepared or

revised under Section 21 of the Representation of the

People Act, 1950.

The Court then stated;

"The defeated candidate does not say that he

was not aware of the entries of the dead persons in

the Electoral Roll which, in my view, is a material

fact and ought to have been pleaded".

The High Court also observed that there was not a

word, a whisper that the polling agents challenged the

identity of the persons who allegedly voted for dead

electors. No reason was put forward as to why it was not

challenged. In the opinion of the High Court, it was a

material fact which ought to have been pleaded to enable

elected candidate to meet the challenge. According to

the High Court, when the appellant had given particulars

of dead persons for whom the voting right was exercised

by impersonation, he must have known at the time of

polling that those electors were dead. If he was not

aware, he ought to have stated as to when and how he

came to know about 37 voters whose names appeared in

the electoral rolls and how by personation votes were

polled. There was no allegation that the votes cast due to

impersonation of the dead persons were managed by the

returned candidate or his supporters or election agent.

The said allegation thus lacked material facts. Omission

to mention those material facts rendered the cause of

action incomplete, observed the High Court. According

to the High Court, merely because the returned candidate

had won by a narrow margin, it could not be a reason for

inspection of ballot papers or re-counting of votes.

Regarding 60 persons alleged to have exercised

right to vote twice in the same constituency in booth Nos.

48 and 49, thereby resulting in 120 void votes in Una 32

Constituency, the High Court observed that the Election

Petition was silent as to when and how the appellant

came to know about the persons having cast their votes

in different booths in the same constituency. He did not

state who impersonated for those persons in the other

booth. The appellant also did not say precisely as to

when he came to know that 60 persons had voted twice.

As to 19 persons alleged to have voted in two

different constituencies, the High Court observed that the

allegations were not supported by material facts. Even

though the pleading indicated that the defeated candidate

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was aware of the persons who voted twice at the same

constituency and in different constituencies, neither he

nor any person on his behalf raised any objection at the

relevant time. He also did not disclose the source of

information regarding casting of void votes which was a

material fact. Only a bald assertion had been made

which was not sufficient.

Regarding double voting in para 8(iv) while counting

postal ballot papers, it was the case of the appellant that

instead of six votes, twelve votes were cast because of

double Postal ballots. The High Court observed that the

appellant had given details of those persons including the

vote number, yet it held the allegation on the face of it

was "bereft of material facts" and presumptuous. The

High Court observed that the allegation would not lead to

the conclusion that in fact those six persons cast their

votes twice and it materially affected the result of

returned candidate. It was also not stated in the petition

that those six persons had been issued double postal

ballot papers and that all the twelve ballot papers were

counted in favour of the returned candidate. According to

the High Court, it was a material fact and since it was not

stated, the cause of action was not complete.

The High Court, therefore, concluded;

"The allegations made by the defeated

candidate are vague, indefinite, bereft of material

facts. It is not precisely stated as to how many void

votes were cast in favour of the returned candidate

and if such void votes were not counted in his

favour, the defeated candidates would have been

elected."

On the basis of the said reasons, the High Court held

that the Election Petition could not be said to be in

accordance with Section 83(1)(a) of the Act and the

defect could not be cured by amendment of the petition.

Since the appellant had not disclosed all material facts,

no roving inquiry could be permitted. The High Court,

therefore, ordered striking down sub-paras (i), (ii), (iii)

and (iv) of para 8 which resulted in rejection of the

Election Petition without entering into merits of the case.

On February 14, 2005, notice was issued by this

Court. Interim order was also passed to the effect that

Electronic Voting Machines used in two polling booths of

32- Una Assembly Constituency and Booth Nos. 63 and

76 of 33 \026 Kutlehar Assembly Constituency be preserved

until further orders. The appeal was thereafter ordered

to be placed for final hearing.

We have heard the learned counsel for the parties.

The learned counsel for the appellant contended that

the High Court has committed an error of law in

dismissing the Election Petition at the threshold without

entering into merits of the matter on the ground that it

did not set out material facts in the Election Petition and

failed to disclose cause of action and as such it was liable

to be dismissed. According to the learned counsel, not

only material facts had been set out in the Election

Petition, but full particulars had also been mentioned.

The High Court was, therefore, not right in dismissing the

petition without entering into the correctness or otherwise

of the allegations and averments in the petition. The

counsel, therefore, submitted that the appeal deserves to

be allowed by setting aside the order of the High Court

and by remitting the Election Petition to be decided on

merits.

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The learned counsel for the respondents, on the

other hand, supported the order passed by the High

Court. He submitted that the law requires that material

facts and full particulars ought to have been stated in the

petition. Failure to do so would result in dismissal of the

petition and since material facts and full particulars had

not been mentioned in the Election Petition, the High

Court was right in upholding the preliminary objection of

maintainability of petition raised by the returned

candidate and in dismissing the petition. He also

submitted that the High Court was right in observing that

at the relevant stage, no objection was taken either by

the defeated candidate or by his election agent and only

after the appellant had lost the election that he came

forward by raising all technical objections. He, therefore,

prayed for dismissal of the appeal by affirming the order

of the High Court.

Before we deal with the contentions of the parties, it

would be appropriate if we refer to the relevant provisions

of the Act. The Preamble of the Act declares that the Act

has been enacted "to provide for the conduct of elections

of the Houses of Parliament and to the House or Houses

of the Legislature of each State, the qualifications and

disqualifications for membership of those Houses, the

corrupt practices and other offences at or in connection

with such elections and the decision of doubts and

disputes arising out of or in connection with such

elections".

Part I is Preliminary. Part II deals with qualifications

and disqualifications for membership of Parliament and of

State Legislatures. While Part III provides for issuance of

notifications for elections, Part IV relates to

administrative machinery for the conduct of elections.

Sections 59 and 60 lay down manner and procedure of

voting. Section 61 prescribes special procedure for

preventing personation of electors. Section 62 relates to

right to vote. It is a material provision and may be

quoted in extenso;

62. Right to vote.\027(1) No person who is not, and

except as expressly provided by this Act, every

person who is, for the time being entered in

the electoral roll of any constituency shall be

entitled to vote in that constituency.

(2) No person shall vote at an election in any

constituency if he is subject to any of the

disqualifications referred to in section 16 of the

Representation of the People Act, 1950 (43 of

1950).

(3) No person shall vote at a general election in

more than one constituency of the same class,

and if a person votes in more than one such

constituency, his votes in all such

constituencies shall be void.

(4) No person shall at any election vote in the

same constituency more than once,

notwithstanding that his name may have been

registered in the electoral roll for the

constituency more than once, and if he does so

vote, all his votes in that constituency shall be

void.

(5) No person shall vote at any election if he is

confined in a prison, whether under a sentence

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of imprisonment or transportation or otherwise,

or is in the lawful custody of the police;

Provided that nothing in this sub-section shall

apply to a person subjected to preventive

detention under any law for the time being in

force.

(6) Nothing contained in sub-sections (3) and (4)

shall apply to a person who has been

authorized to vote as proxy for an elector

under this Act in so far as he votes as a proxy

for such elector.

Conduct of elections has been dealt with in Part V.

Part VI relates to 'Disputes regarding elections'. Section

80 requires any election to be questioned only by way of

Election Petition. Under Section 80A, it is the High Court

which can try election petitions. Section 81 provides for

presentation of election petition and prescribes the period

of limitation. Section 82 declares as to who shall be

joined as respondents to such Election Petition. Section

83 deals with contents of petition and reads thus-

83. Contents of petition.\027(1) An Election

petition\027

(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.

Section 100 enumerates grounds for declaring

election to be void which inter alia includes improper

reception, refusal or ejection of any vote or the reception

of any vote which is void or there is non-compliance with

the provisions of the Constitution or of the Act or Rules or

orders made under the Act. Section 101 empowers the

High Court to declare a candidate other than the returned

candidate to have been elected. Section 123 declares

certain practices as "deemed to be corrupt practices".

From the relevant provisions of the Act reproduced

hereinabove, it is clear that an election petition must contain

a concise statement of 'material facts' on which the petitioner

relies. It should also contain 'full particulars' of any corrupt

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practice that the petitioner alleges including a full statement

of names of the parties alleged to have committed such

corrupt practice and the date and place of commission of such

practice. Such election petition shall be signed by the

petitioner and verified in the manner laid down in the Code of

Civil Procedure, 1908 (hereinafter referred to as "the Code")

for the verification of pleadings. It should be accompanied by

an affidavit in the prescribed form in support of allegation of

such practice and particulars thereof.

All material facts, therefore, in accordance with the

provisions of the Act, have to be set out in the election

petition. If the material facts are not stated in a petition, it is

liable to be dismissed on that ground as the case would be

covered by clause (a) of sub-section (1) of Section 83 of the

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

The expression 'material facts' has neither been defined

in the Act nor in the Code. According to the dictionary

meaning, 'material' means 'fundamental', 'vital', 'basic',

'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal',

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

Thesaurus, (Third edn.); p.349]. The phrase 'material facts',

therefore, may be said to be those facts upon which a party

relies for his claim or defence. In other words, 'material

facts' are facts upon which the plaintiff's cause of action or

the defendant's defence depends. What particulars could be

said to be 'material facts' would depend upon the facts of

each case and no rule of universal application can be laid

down. It is, however, absolutely essential that all basic and

primary facts which must be proved at the trial by the party

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

material facts and must be stated in the pleading by the

party.

In the leading case of Phillips v. Phillips, (1878) 4 QBD

127 : 48 LJ QB 135, Cotton, L.J. stated:

"What particulars are to be stated must

depend on the facts of each case. But in my

opinion it is absolutely essential that the pleading,

not to be embarrassing to the defendants, should

state those facts which will put the defendants on

their guard and tell them what they have to meet

when the case comes on for trial."

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

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

observed:

"The cardinal provision in Rule 4 is that the

statement of claim must state the material facts.

The word 'material' means necessary for the

purpose of formulating a complete cause of

action; and if any one 'material' statement is

omitted, the statement of claim is bad; it is

'demurrable' in the old phraseology, and in the

new is liable to be 'struck out' under R.S.C. Order

25 Rule 4 (see Phillips v. Phillips); or 'a further

and better statement of claim' may be ordered

under Rule 7."

A distinction between 'material facts' and 'particulars',

however, must not be overlooked. 'Material facts' are primary

or basic facts which must be pleaded by the plaintiff or by the

defendant in support of the case set up by him either to

prove his cause of action or defence. 'Particulars', on the

other hand, are details in support of material facts pleaded by

the party. They amplify, refine and embellish material facts

by giving distinctive touch to the basic contours of a picture

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already drawn so as to make it full, more clear and more

informative. 'Particulars' thus ensure conduct of fair trial and

would not take the opposite party by surprise.

All 'material facts' must be pleaded by the party in

support of the case set up by him. Since the object and

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

has to meet with, in the absence of pleading, a party cannot

be allowed to lead evidence. Failure to state even a single

material fact, hence, will entail dismissal of the suit or

petition. Particulars, on the other hand, are the details of the

case which is in the nature of evidence a party would be

leading at the time of trial.

In Halsbury's Laws of England, (4th edn.); Vol.36; para

38, it has been stated;

"The function of particulars is to carry into

operation the overriding principle that the

litigation between the parties, and particularly the

trial, should be conducted fairly, openly and

without surprises, and incidentally to reduce

costs. This function has been variously stated,

namely either to limit the generality of the

allegations in the pleadings, or to define the

issues which have to be tried and for which

discovery is required. Each party is entitled to

know the case that is intended to be made

against him at the trial, and to have such

particulars of his opponent's case as will prevent

him from being taken by surprise. Particulars

enable the other party to decide what evidence he

ought to be prepared with and to prepare for the

trial. A party is bound by the facts included in the

particulars, and he may not rely on any other

facts at the trial without obtaining the leave of the

court."

In para 8, the election-petitioner has asserted that

as many as 188 votes have been wrongly counted in spite

of the fact that all those votes were invalid/void votes.

He had also stated that since the margin of votes

between the defeated candidate and the successful

candidate was only 51, wrong counting of 188

invalid/void votes 'materially affected' the result of the

election. The High Court had not dealt with at all

paragraph 8 in the impugned judgment. Only on this

short ground, in our opinion, the impugned order

deserves to be set aside.

But even otherwise, the reasoning adopted and

conclusions arrived at by the High Court on sub-paras (i)

to (iv) of para 8 are equally ill-conceived. In para 8(i),

the election-petitioner has stated that 37 votes of dead

persons had been cast and they were thus void votes and

could not have been counted. Not only the election-

petitioner had given the names of all 37 persons, but had

also annexed death certificates of 36 persons along with

the Election Petition in the form of Annexures EP 3 to EP

38. Regarding the remaining one, he had stated that the

Gram Panchayat had not issued death certificate, but

Death Report issued by the Senior Medical Officer, Zonal

Hospital, Una had been annexed at Annexure EP 39.

The High Court, dealing with the allegation in para

8(i) has observed that there was nothing to show and not

a word as to how many of those 37 votes were cast in

favour of the returned candidate and who cast those

votes. It was also observed that the defeated candidate

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never raised any objection at the time of polling and at

the stage of filing Election Petition, it was not open to

raise an objection. It was further observed that it was

not the case of the election-petitioner that he was not

aware of death of those persons at the time of polling and

it was a case of personation of electors within the

meaning of Section 61 of the Act. There was also not a

whisper, observed the High Court that the polling agent

had challenged the identity of the persons who allegedly

voted for the dead electors. The High Court also stated

that it was not stated in the Election Petition that the

returned candidate or his supporters or election agent

managed to have votes cast by impersonation. All these

facts, according to the High Court, were material facts

and since they were not stated in the Election Petition,

the petition was defective.

We are unable to agree with the High Court. In our

opinion, the considerations which weighed with the High

Court were in the nature of 'evidence' which is a matter

to be considered and proved at the time of trial. The

High Court was also not right in virtually invoking the

doctrine of estoppel and in dismissing the petition on that

ground.

Regarding allegations in para 8(ii) of the Election

Petition, the election-petitioner has alleged that there was

double voting by 60 voters which was in violation of

section 62(4) of the Act. The details of those voters have

been mentioned in the petition. It was also stated that

out of 120 votes (instead of 60) 104 votes were cast at

booth Nos. 48 and 49 which were in the native village of

the first respondent.

The High Court almost for the same reasons on

which it ordered deletion of para 8(i), has also ordered to

delete para 8(ii). It observed that the petition was

significantly silent as to when and how the election-

petitioner came to know about the persons having cast

their votes twice in two different booths in the same

constituency. He also did not say who impersonated for

those persons in the other booth. Nothing was stated as

to when the petitioner precisely came to know about the

fact that 60 persons had cast their votes twice in different

booths and no reasons was put forward as to why no

objection was raised at the relevant time. All these facts,

according to the High Court, were material facts and

since they were not stated, the petition was defective.

With respect, the High Court is not right. When the

law prevents a person from exercising right of vote more

than once and it is alleged that there was double voting in

respect of certain persons, the 'allegation' can be said to

be complete. Whether or not the election-petitioner is

able to prove the said allegation is a matter of evidence

which can be considered only at the stage of trial. By no

stretch of imagination, however, it can be said that the

material fact, that is, allegation regarding double voting

had not been stated in the Election Petition which

required Election Petition to be dismissed on that ground.

As to para 8(iii), the case of the election-petitioner

was that 19 void votes had been cast. The said votes

being void since 19 persons had exercised their right to

vote in two constituencies, i.e. in Una 32 Constituency as

also in booth No 76 and 63 of Kutlehar 33 Constituency.

The details of those voters have been mentioned in the

Election Petition.

The High Court held that material facts had not been

stated and observed that it was not shown as to how the

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petitioner came to know about the persons listed having

voted in two different constituencies and who

impersonated them.

As already observed earlier, the approach of the

High Court was not in consonance with law and the High

Court entered into prohibited area of considering the

correctness of the allegation which is to be considered

and adjudicated at the time of trial.

Finally, in para 8(iv), the election-petitioner has

alleged that there was material irregularity in counting

postal ballot papers by the Returning Officer. According

to the election-petitioner, six persons whose names have

been mentioned in the Election Petition had voted twice

thereby 12 votes had been polled. All those 12 votes,

therefore, should be treated as void.

The High Court observed that the allegation, on the

face of it, was 'bereft of material particulars' and the

allegation presumptuous. It observed that nothing was

stated as to how and when the defeated candidate came

to know about the six persons having been issued double

ballot papers. The said fact was material to enable the

returned candidate to meet with the allegation of the

defeated candidate. It was also not the case of the

election-petitioner that all those 12 ballot papers were

counted in favour of the returned candidate and that if

those votes have been counted in favour of the petitioner,

the result could have been materially affected.

On the basis of our conclusions and reasoning in

respect of para 8(i) to (iii), the finding of the High Court

on para 8(iv) also cannot be said to be in consonance

with law. Whether or not six persons had been issued

voting papers twice and whether or not those voters had

polled in favour of returned candidate cannot be said to

be a material fact to be stated in the Election Petition.

What are required to be stated in the petition are

material facts to maintain the petition.

There is distinction between facta probanda (the

facts required to be proved, i.e. material facts) and facta

probantia (the facts by means of which they are proved,

i.e. particulars or evidence). It is settled law that

pleadings must contain only facta probanda and not facta

probantia. The material facts on which the party relies for

his claim are called facta probanda and they must be

stated in the pleadings. But the facts or facts by means

of which facta probanda (material facts) are proved and

which are in the nature of facta probantia (particulars or

evidence) need not be set out in the pleadings. They are

not facts in issue, but only relevant facts required to be

proved at the trial in order to establish the fact in issue.

In our considered opinion, material facts which are

required to be pleaded in the Election Petition as required

by Section 83 (1) of the Act read with Order VII, Rule

11(a) of the Code have been pleaded by the election-

petitioner, cause of action has been disclosed in the

Election Petition and, hence, the petition could not have

been dismissed by the High Court. The impugned order

of the High Court suffers from infirmity and cannot be

sustained.

The High Court, in our considered opinion, stepped

into prohibited area of considering correctness of

allegations and evidence in support of averments by

entering 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

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petition. The said action, therefore, cannot be upheld

and the order deserves to be set aside.

On an additional ground also, the order of the High

Court is liable to be set aside. All allegations in Para 8 of

the Election Petition, as also sub-paras (i) to (iv) of para

8 relate to improper and illegal reception and acceptance

of votes and the election-petitioner has challenged the

election of the returned candidate on that ground and not

on the ground of 'corrupt practice'. He was, therefore,

required to state material facts in the Election Petition

under Section 83(1)(a) of the Act. It was, however, not

necessary to 'set forth full particulars', which is the

requirement of Section 83(1)(b) of 'any corrupt practice'.

The High Court dismissed the petition inter alia on

the ground that paras 8(i) to (iv) lacked in material

particulars. Apart from the fact that the law does not

require material particulars even in respect of

allegations of corrupt practice but only full particulars

and if they are lacking, the petition can be permitted to

be amended or amplified under Section 86 of the act, in

the instant case, Clause (b) of Section 83(1) had no

application and the petition has been dismissed by the

High Court by applying wrong test. On that ground also,

the order passed by the High Court is unsustainable [Vide

Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511].

For the foregoing reasons, the appeal deserves to

be allowed and is, accordingly, allowed with costs. The

order passed by the High Court is set aside. The Election

Petition No. 2 of 2003 is restored to file, and is remitted

to the High Court to decide the same on merits. Since

the election took place in February, 2003 and the petition

was dismissed on preliminary ground as not maintainable

and is required to be decided on merits, the High Court is

requested to give priority and dispose it of expeditiously.