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Judgment
Kh. Nobin Singh, J
[1] Heard Shri N. Ibotombi, learned Senior Advocate appearing for the applicant/ respondent No.1 and Shri M. Gunedhor, learned Advocate appearing for the respondent No.1/petitioner.
[2] This is an application filed by the applicant/ respondent No.1 (hereinafter referred to as "the applicant") praying for dismissal of the election petition filed by the respondent No.1/ petitioner (hereinafter referred to as "the respondent No.1") on the ground that there is no triable cause of action as against the applicant/respondent No.1.
[3] According to the respondent No.1, in the Manipur General Assembly Election, 2017, the result of which was prepared by him on the basis of the reports submitted by his counting agents, he secured 13,270 votes in total from all polling stations, while the applicant secured 13,133 votes. But the result prepared by the competent authority, i.e. by the Returning Officer, it was shown that the respondent No.1 secured 13,149 votes, while the applicant secured 13,224 votes. In respect of the postal ballots, the respondent No.1 secured 172 postal votes, while the applicant secured only 151 postal votes but as per the election result prepared by the Returning Officer, the respondent No.1 secured 142 postal votes, while the applicant secured 181 postal votes. It is because of the fact that the Returning Officer illegally counted 12 invalid postal votes in favour of the applicant despite objection raised by him, while he rejected 25 postal votes in favour of the respondent No.1 and that on the instruction of the assistant of the Returning Officer, the election agents of the respondent No.1 dropped 17 postal ballot votes in the box earmarked for 18-Konthoujam Assembly Constituency instead of dropping them in the box earmarked for 19-Patsoi Assembly Constituency.
[4] While denying the averments made in the election petition, it has been stated by the applicant in his written statement that the counting of votes for the 19-Patsoi Assembly Constituency was done in 5 rounds on 10 (ten) counting tables. In all the counting tables, the counting agents of all the candidates were present and the counting was done in their presence. After the completion of the counting of votes at one table, the Counting Supervisor recorded the number of valid votes obtained/ secured by each candidate in Form 17/C Part-II-result of counting, in the presence of counting agents and the Returning Officer. The counting supervisor, the counting agents and the Returning Officer signed in that Form No.17(C) Part-II-result of counting. On top of that, a Micro Observer (Central Government Official) was present at the time of counting in all the tables and the web telecast was also done for all the tables. An Observer from outside the State of Manipur was also present at the time of counting. As per Chapter XV the Handbook for Returning Officers published by the ECI dealing with the counting of votes and in particular, para 15.15.5 of the said Handbook which deals with the mandatory recount of postal vote in certain cases, all the postal ballot votes including the rejected ones, were re-verified in the presence of the counting agents. The Observer and the Returning Officer found them to be tallied with the earlier count. The Observer and the Returning Officer recorded their findings of satisfaction with the re-verification. All the election agents/counting agents, the Observer and the Returning Officer put their signatures in the said re-verification report. However, no written complaint was lodged either by the respondent No.1 or his election agent to the competent authority in this regard.
[5] An objection was filed by the respondent No.1 to the present application stating that because of the erroneous entry recorded in the Form No.17(C) Part-II-result of counting sheet, the respondent No.1 had challenged the election of the returned candidates. The allegation that all the postal ballot papers were re-verified, was denied and according to him, no re-verification was done. Since the terms of the Manipur Legislative Assembly is 5 years, the intention of the applicant is only to make the matter lingered till the expiry of 5 years.
[6] What does the expression "cause of action"mean, can be understood with reference to the various decisions, rendered by the Hon‟ble Supreme Court, which this Court had the occasion to peruse them in some of the similar cases like R.K. Imo Singh Vs. Dr. Kh. Loken Singh, MC(EP) No.9 of 2017. In D. Ramachandra Vs. R.V. Janakiraman, (1993) 3 SCC 267 wherein one of the issues was as to whether preliminary objections taken as to the maintainability of the election petition, is sustainable in law on the facts and circumstances of the case, the Hon"ble Supreme Court held that it is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if averments made in the petition are proved to be true. For the purpose of considering such a preliminary objection, the averments made in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or a triable issue as such. Order 7 Rule 11 enjoins the court to reject the plaint where it does not disclose a cause of action. It is elementary that under Order 7 Rule 11 (a) CPC, the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. In Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy & ors., (2012) 7 SCC 788 wherein the question was as to whether the election petition filed by the respondent No.1 therein disclosed a cause of action. The Hon"ble Supreme Court examined the expression "cause of action"and its earlier decisions wherein it has been held that while determining the question whether the plaint discloses a cause of action, the court must take into consideration the plaint as a whole and if no cause of action is found discernible, the court can exercise its power under Order 7 Rule 11 of CPC.
In Ashraf Kokkur Vs. K.V. Abdul Khader & ors., (2015) 1 SCC 129, the question was as to whether the averments in the election petition disclose a cause of action as required under Order 7 Rule 11(a) of the CPC, 1908. The Hon"ble Supreme Court held:
"12. The requirement under Section 83(1)(a) of the RP Act in contradistinction to Section 83(1)(b) of the RP Act is that the election petition need contain only a concise statement of the material facts and not material particulars. "Concise"according to Oxford Dictionary means, "brief and comprehensive". Concise Oxford Dictionary has given the meaning to the expression "concise"as "giving a lot of information clearly and in few words". As per Webster‟s Comprehensive Dictionary, International Edition, expression has been defined as "expressing much in brief form".
After all, the inquiry under Order 7 Rule 11(a) CPC is only as to whether the facts as pleaded disclose a cause of action and not complete cause of action. The limited inquiry is only to see whether the petition should be thrown out at the threshold. In an election petition, the requirement under Section 83 of the RP Act is to provide a precise and concise statement of material facts. The expression "material facts"plainly means facts pertaining to the subject-matter and which are relied on by the election petitioner. If the party does not prove those facts, he fails at the trial [see Philipps v. Philipps (QBD p. 133); Mohan Rawale v. Damodar Tatyaba (SCC p. 399, para 16)].
In Hari Shanker Jain v. Sonia Gandhi, a three-Judge Bench of this Court held that the expression "cause of action"would mean facts to be proved, if traversed, in order to support his right to the judgment of the court and that the function of the party is to present a full picture of the cause of action with such further information so as to make opposite party understand the case he will have to meet. To quote para 23: (SCC p. 251)
"23. ..The expression "cause of action" has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Fernandez and Jitendra Bahadur Singh v. Kirshna Behari.) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition."
[7] Section 83(1)(a) provides that an election petition shall contain a concise statement of material facts and non-compliance thereof will render the petition liable to be dismissed. The mere statement of material facts is not enough and the material facts, so stated in the petition, must disclose the cause of action, failing which the election petition can be dismissed by the court in exercise of power conferred under the provisions of Order 7 Rule 11 of the CPC. In Azhar Hussain Vs. Rajiv Gandhi, 1986 Suppl. SCC 315 the Hon"ble Supreme Court has held that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the C.P.C. Appropriate orders in exercise of power under the C.P.C can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition, are not complied with. In Samant N. Balkrishna & anr. Vs. George Fernandez & ors., (1969) 3 SCC 238 wherein the election was challenged on the grounds that it was invalid for non-compliance with the provisions of Section 62 of the Act, Article 326 and 327 of the Constitution of India as well as the allegations of corrupt practices, the Hon"ble Supreme Court held made and mere repetition of the words of the statute does not amount to proper statement of facts. The material facts must be stated in the petition and if they are missing, it is impossible to think that the charge has been made or can be later amplified. In Virender Nath Gautam Vs. Satpal Singh & ors., (2007) 3 SCC 617 an election petition was dismissed by the High Court by upholding the preliminary objection raised by the first respondent that the election did not disclose material facts and was liable to be dismissed. The Hon"ble Supreme Court, while allowing the appeal, held:
"29. 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 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 7 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 (3rd 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 Philipps v. Philipps, 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., Scott, L.J. referring to Philipps v. Philipps observed: (All ER p. 294)
"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 RSC Order 25 Rule 4 (see Philipps v. Philipps); 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 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.
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".
In Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 wherein the respondent filed an election petition for declaring the election of the appellant as null and void on the ground of corrupt practice. Apart from raising number of preliminary objections, it was contended by the appellant that the election does not contain a concise statement of the material facts on the respondent relies and therefore, the petition does not comply with clause (a) of sub-section (1) of Section 83 of the Act. The question which was adjudicated upon by the Hon"ble Supreme Court therein was as to whether the election petition was liable to be dismissed because of lack material facts. While allowing the appeal, the Hon"ble Supreme Court directed that the election petition stood dismissed and observed as under:
"58. There is no definition of "material facts"either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts"in other words mean the entire bundle of facts which would constitute a complete cause of action. This Court in Harkirat Singh case tried to give various meanings of "material facts". The relevant para 48 of the said judgment is reproduced as under: (SCC pp. 526-27)
"48. 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 (3rd Edn.), p. 349.] The phrase "material facts", therefore, may be said to be those facts upon which a party relies for its 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 context of a charge of corrupt practice, "material facts"would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (the respondent herein) is bound to substantiate before he can succeed on that charge. It is also well settled that if "material facts"are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient.
The legal position has been crystalised by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts"which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act." In V.S. Achuthanandan Vs. V.J. Francis & anr., (1999) 3 SCC 737 wherein the appellant filed an election petition on the ground of corrupt practices and illegalities in the counting of ballot papers, many issues were framed of which only two issues which are relevant, are: (a) whether the petition has been presented in compliance with the provisions of the Act and (b) whether the allegations made out a cause of action at all warranting trial of the election petition? The said issues were decided by the High Court against the appellant holding that the allegation made in the petition lacked material facts and particulars and being vague and ambiguous, required no trial. An appeal was preferred contending inter-alia that the Hon"ble High Court has adopted a hyper technical approach in the matter and that the election petition has been dismissed finally on merits without affording the appellant an opportunity to prove his case. The Hon"ble Supreme Court referred to its various decisions and in particular, L.R. Shivramagowda & ors. Vs. T.M Chandrashekar & ors., (1999) 1 SCC 666 wherein, it has been held that -
"13. In Udhav Singh v. Madhav Rao Scindia a Division Bench of this Court explained the distinction between material facts and material particulars as follows: (SCC p. 523, paras 42-43)
"42. 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 ingredients of the particular corrupt practice alleged, which the petitioner 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 Section 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 Section 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). 'Particulars" serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative."
The Bench held that if a petition suffers from lack of material facts, it is liable to be summarily rejected for want of cause of action and if the deficiency is only of material particulars, the Court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation."
In V. Narayanaswamy Vs. C.P. Thirunavukkarasu, reported in (2000) 2 SCC 294, the election petition was filed by the appellant on the ground that the election was vitiated due to corrupt practices. An application filed by the respondent under Order 6 Rule 6 and Order 7 Rule 11 of the CPC was allowed and consequently, the election petition was dismissed under Section 83(1) of the Act. The question was- what is the effect of lack of material facts, material particulars, proper verification to the election petition and the defective affidavit required to be filed in the form prescribed? The Hon"ble Supreme Court, after examining its earlier decisions, held:
"23. It will be thus seen that an election petition is based on the rights, which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the rules and Form 25 are to be read conjointly as an integral scheme. When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between "material facts"and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. "Material facts"mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of sub-section (1) of Section 83. Then under clause (b) of sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance of conjecture for the court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation could have no legal existence and the court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is in violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls with the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form prescribed does not suffer from any defect the allegations or corrupt practices cannot be inquired and tried at all. In such a case the petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of the duty of the court suo motu even to direct furnishing of better particulars when objection is raised by the other side. Where the petition does not disclose any cause of action it has to be rejected. The court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. The petition has to be considered as a whole. There cannot be a partial rejection of the petition."
In Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, (2009) 9 SCC 310, the Hon"ble Supreme Court held:
"50. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with."
[8] The election petitions filed under the provisions of Section 80 of the Act can be broadly categorised into two - one, an election petition filed on the ground of corrupt practice and two, an election petition filed on the ground that the result of the election has been martially affected by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under the Act. Section 83(1)(a) which mandates that an election petition shall contain a concise statement of material facts, is common for both the categories of election petitions. So far as the first category is concerned, Section 83(1)(b) provides that the election petition shall set out full particulars of corrupt practice. Many of the cases in which election petitions have been filed, fall under the first category and the allegations are mainly against the returned candidate. That is the reason as to why the concise statement of material facts has become inevitable so that the returned candidate can understand the charge levelled against him and meet the same in his/ her defence. The requirement of setting out full particulars of corrupt practice is not there in respect of the second category for the simple reason that the corrupt practice is not the ground on which the election petition has been filed. As regards the second category, there are two aspects which need to be taken into consideration by the court while deciding the election petition. The first aspect relates to a situation where the allegations are not made against the returned candidate but against the officials who are involved in the conduct of election. It may be noted that Section 82 talks about the persons to be joined as respondents but neither the officials who are involved in the conduct of election nor the ECI can be made as parties in the petition, as is evident from the decisions of the Hon"ble Supreme Court referred to hereinabove. The point that may arise for consideration by the court, relates to how the returned candidate will defend himself in respect of the allegations made against the officials. The second aspect relates to a situation where the officials or for that matter, the ECI are alleged to have not complied with the provisions of the Constitution or of this Act or of any rules or orders made under the Act while conducting the election but no one had raised any objection thereto, during the course of the election, with the result that the result of the election had been declared. This aspect is very important from a different perspective because the election can be declared as void for no fault of the returned candidate but of the officials of the ECI and in that event, it may tantamount to penalizing the returned candidate with no remedy.
[9] From the above decisions rendered by the Hon"ble Supreme Court, it is absolutely clear that the result of an election can be questioned under the provisions of the Act only and that too, on the grounds enumerated in Section 100 of the Act. The election petition must set out the material facts on the basis of which the charge can be made and in the event of the material facts not being stated in the petition, the same is liable to be dismissed. Admittedly, the expression "material facts"is not defined in the Act. However, the Hon"ble Supreme Court has, time and again, laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". In the context of a charge of corrupt practice, the expression "material facts"would mean all the basic facts constituting the ingredients of the particular corrupt practice which the petitioner is bound to substantiate before he can succeed on that charge. Whether in a 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 other words, 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 Section 83(1)(a). The expression "material facts"is different from the expression "material particulars"which as contemplated under clause (b) of Section 83(1) would mean all the details which are necessary to amplify, refine, and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). 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. However, 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. The object and purpose of pleading "material facts"is to enable the opposite party to know the case he has to meet and in the absence of such a pleading, a party cannot be allowed to lead evidence. The requirement under Section 83(1)(a) of the Act in contradiction to Section 83(1)(b) of the Act is that the election petition needs to contain only a concise statement of the material facts and not material particulars. For purpose of considering a preliminary objection as to the maintainability of the election petition, the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. However, the court cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. The petition has to be considered as a whole and there cannot be a partial rejection of the petition. In all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if averments made in the petition are prove.
[10] As has been held by the Hon"ble Supreme Court, 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. Therefore, the nature and content of material facts would differ from one case to another and in other words, the material facts to be stated in respect of an election petition filed on the ground of corrupt practice, would be different from that of the election petition filed on any other grounds. In the present case, since the election petition has been filed under the provisions of Order VII Rule 11 CPC read with Section 81(1), 86 and 100(1) of the Act, it does require to state material facts. In terms of the law laid down by the Hon"ble Supreme Court, the election petition as a whole is to be read to find out if it contains a concise statement of material facts disclosing a cause of action. In order to decide the issue involved herein, it become necessary for this Court to examine the averments made in the election petition and the written statement filed by the parties. According to the respondent No.1, the material facts have been stated in the petition to the effect that on the instruction of the assistant of the Returning Officer, his election agents dropped 17 postal ballot votes in the box earmarked for 18-Konthoujam Assembly Constituency instead of dropping them in the box earmarked for 19-Patsoi Assembly Constituency. While counting votes, the Returning Officer illegally counted 12 invalid postal votes in favour of the applicant despite objection raised by him, while he rejected 25 postal votes in favour of the respondent No.1. As per the result of which was prepared by him on the basis of the reports submitted by his counting agents, he secured 13,270 votes in total from all polling stations, while the applicant secured 13,133 votes. But the result prepared by the competent authority, i.e. by the Returning Officer, he secured 13,149 votes, while the applicant secured 13,224 votes. Similar is the case with the postal ballots. he secured 172 postal votes, while the applicant secured only 151 postal votes but as per the election result prepared by the Returning Officer, he secured 142 postal votes, while the applicant secured 181 postal votes. Thus, after going through the averments made in the election petition as a whole, it cannot be said that the petition does not contain a concise statement of material facts. In fact, it does disclose a cause of action.
[11] It has been vehemently contended by the counsel appearing for the applicant that before the result of the election being declared, the respondent No.1 had the ample opportunity to lodge a complaint before the Returning Officer but he failed to do that and therefore, he cannot be permitted to raise the objection in the election petition which is not maintainable and is liable to be dismissed by this Court. Combating his submission, the learned counsel appearing for the respondent No.1/ petitioner has relied upon the decision rendered by the Ho‟ble Supreme Court in Mahant Ram Prakash Dass Vs. Ramesh Chandra & ors., (1999) 9 SCC 420 to contend that there are two stages in which a candidate has an opportunity to ask for re-count and that even though the objection was not raised at the time of counting votes, the same can be raised by way of an election petition. The relevant para of which reads as under:
"13. A candidate or his agent has an opportunity to ask for re-count at two stages: the first, before election result is finally declared, and the second, by way of election petition before the High Court. An application under Rule 63(2) of the Conduct of Election Rules is to be given immediately after the votes secured by each of the candidates is announced under Rule 63(1), but such an application cannot be given after the candidate is declared elected under Rule 64. If an application is made under Rule 63(2) the Returning Officer shall decide the matter either by allowing the application in whole or in part or may reject it in its entirety, if it appears to him to be frivolous or unreasonable. The decision shall be in writing containing reasons therefor. The application for re-count should contain valid precise grounds on which the re-count is asked for. When the rules provide for enough opportunity to a candidate of his agent to watch the counting process before the result is declared and if an objection is raised as to the validity of any ballot paper and is such objection is rejected improperly, it would afford a basis for re-count in an election petition. The secrecy of the vote has to be maintained and demand for re-count should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to error in counting of such magnitude that the result of the election of the returned candidate may be affected. Smallness of the victory margin by itself may not be a sufficient ground for re-count. However, if a prima facie case is made out as to error in counting, a small margin by which the returned candidate succeeded in the election assumes significance, inviting re-count."
On perusal of the said decision, it is seen that the facts of that case are not exactly the same with that of the present case but are identical.
The contention of the learned counsel appearing for the applicant has no substance and merit. So long as the petition discloses some cause of action or raises some questions fit to be decided by the court, the mere fact that the case is weak and not likely to succeed, is no ground for dismissing it. Therefore, the trial can continue on merits and it is a different matter if the material facts as stated in the petition, are not sufficient to prove the allegations. Whether or not the respondent No.1 is able to prove the allegations, is a matter of evidence which can be considered only at the stage of trial, as has been held by the Hon"ble Supreme Court. In view of the above, this court is of the view that there had been substantial compliance with the provisions of Section 83(1)(a) of the Act and since the application is devoid of any merit, the same is liable to be rejected by this court.
[12] For the reasons stated hereinabove, the application being MC(EP) No.36 of 2017 is dismissed.