Lorho S. Pfoze vs Houlim Shokhopao Mater @ Benjamin

This miscellaneous application has been filed by the applicant under Order VII, Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 seeking to dismiss the election petition as it has failed to disclose the cause of action in terms of the relevant provisions of the Representation of the People Act, 1951.

The applicant herein is the first respondent in the election petition and he has filed the present petition stating that he defeated the election petitioner by a huge margin of 73,782 votes. According to the applicant, he is seeking rejection of the election petition in accordance with the provisions of Order VII, Rule 11 CPC, as the election petition failed to disclose the actual cause of action against the respondents in terms of the relevant provisions of the Representation of the People Act, 1951 (hereinafter referred to as "the said Act").

The case of the applicant is that the alleged violation of Section 33 of the said Act stated by the election petitioner is irrelevant for consideration of declaring the election of the applicant as void and therefore, the provision as enunciated by the election petitioner would not in any manner attract for consideration as to whether a cause of action for declaring the election of the applicant as void. Though the election petitioner stated number of Provisions of the said Act, the Conduct of Election Rules as well as other notifications/guidelines/ circulars, he has failed to specifically pleaded any kind of the violation and non-compliance of the aforesaid Acts, Rules and guidelines. Thus, the provision as enunciated by the election petitioner would not in any manner attract for consideration as to whether a cause of action for declaring the election of the applicant as void.

Resisting the application, the election petitioner has filed affidavit-in-opposition stating that he has specifically stated the grounds under which the election of the applicant has been materially affected by improper acceptance of his nomination. It is stated that violation of Section 33 of the said Act by the applicant is very much relevant, as the same establishes that the nomination of the application was invalid and his nomination had been improperly accepted which leads to the ultimate conclusion that the election of the applicant is liable to be declared as void under Section 100(1)(d)(i) of the said Act. It is also stated that the election petitioner has disclosed al| relevant and material facts in the election petition and the details of specific violations of law as well as the commission of corrupt practice have been made. Further, the contents of the election petition have been made in due compliance of the provisions under Section 83 of the said Act and there is no defect in the same. As such the election petitioner has correctly disclosed the cause of action in the election petition and prayed thus for dismissal of the application.

The learned counsel for the applicant submitted that the election petitioner has failed to substantiate his allegations with cogent materials and that the election petitioner alleged that the nomination of the applicant was abruptly and improperly accepted by the Returning Officer and there was no proper scrutiny as envisaged under Section 36(2) of the said Act, which is baseless and frivolous, inasmuch as qua the said allegation, the election petitioner has neither on the particular date i.e., 26.3.2019 nor thereafter, made any complaint to the Returning Officer.

The learned counsel further submitted that the election petitioner has filed the election petition only after being defeated and that on a reading of the averments made in the election petition, it is clear that the election is manifestly vexatious and without any merit and in fact, it does not disclose a cause of action but has tried to mislead the Court by Creating an illusion of a cause of action.

In support of his contentions, the learned counsel for the applicant has relied on the decisions reported in the cases of V.Narayanaswamy v. C.P.Thirunavukkarasu, (2000) 2 SCC 294; Virender Nath Gautam v. Satpal Singh and others, (2007) 3 SCC 617 and Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310.

Per contra, the learned counsel for the first respondent/election petitioner submitted that the election petitioner has specifically sought the ground under Section 100(1)(d)(i) of the said Act for declaring the election of the applicant as void and in fact, there is violation of Section 33 of the said Act by the applicant and that his nomination was improperly accepted by the Returning Officer.

The learned counsel for the election petitioner further submitted that the election of the applicant is sought to be declared void under Section 100(1)(b) and Section 100(1)(d)(i) and (iv) and not under Section 100(1)(d)(iii) of the said Act. He would submit that pleadings have been specifically made in the election petition regarding several violations of the Acts and Rules etc. based on which the election of the applicant is liable to be declared void.

The learned counsel then submitted that the question as to whether the evidences are sufficient or not has to be determined only after settling the issues, Oral and documentary evidences. Therefore, the allegations of the applicant are baseless and only to delay the proceedings of the election petition, the applicant has filed the present petition. He submits that the cause of action for filing the election petition has been sufficiently disclosed in the election petition.

To fortify his submissions, the learned counsel has relied on the following decisions:

Samant N.Balkrishna and another v. V.George Fernandez and others, (1969) 3 SCC 238.

D.Ramachandran v. R.V.Janakiraman and others, (1999) 3 SCC 267.

Virender Nath Gautam v. Satpal Singh and others, (2007) 3 SCC 617.

Ponnala Lakshmaiah v. Kommuri Pratap Reddy and others, (2012) 7 SCC 788.

Kisan Shankar Kathore v. Arun Dattatray Sawant and others, (2014) 14 SCC 162.

Ashraf Kokkur v. K.V. Abdul Khader, (2015) 1 SCC 129.

Order in MC (EP) No.6 of 2017 in Election Petition No.4 of 2017, decided on 4.1.2018 on the file of the Manipur High Court.

Order in MC (EP) No.12 of 2018 in Election Petition No.12 of 2017, decided on 22.1.2019.

This Court considered the submissions raised by the learned counsel appearing on either side and also perused the materials available on record.

The grievance of the applicant is that the election petition is liable to be rejected on the ground that it does not disclose the cause of action in terms of the relevant provisions of the said Act.

On the other hand, the election petitioner contends that the cause of action for filing the election petition has been substantially disclosed in the election petition and whether any objection was made before the Returning Officer or not is irrelevant and the point for consideration is whether the nomination of the applicant ought to have been rejected by the Returning Officer at the time of scrutiny for reasons of non-fulfilment of mandatory provisions of the law.

The applicant has filed the present application under Order VII, Rule 11 of CPC praying for rejection of the Election Petition No.1 of 2019. The election petitioner assails the election of the applicant to be the returned candidate of 2-Outer Manipur (ST) Parliamentary Constituency in the General Election to 17% Lok Sabha, 2019 on the ground of improper acceptance of nomination paper of the applicant and also for commission of corrupt practices coupled with a prayer for declaring the election petitioner to be the duly elected member from the aforesaid constituency.

Admittedly, no written statement yet filed in the election petition by the applicant.

Placing reliance upon the decisions cited supra, the learned counsel for the applicant argued 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 and 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; that all material facts, therefore, in accordance with the provisions of the said 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 Section 83(1)(a) of the said Act read with Order VII, Rule 11(a) of CPC; and that the election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the CPC.

In V. Narayanaswamy (supra), the Hon'ble Supreme Court 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 or 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 the 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 within 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 of 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 Virender Nath Gautam (supra), the Hon'ble Supreme Court 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, (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.2, Scott, L.J. referring to Philipps v. Philipps1 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.

.....

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 7 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 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"."

In Anil Vasudev Salgoankar (supra), 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."

It has been stated by the applicant that the applicant defeated the election petitioner by a huge margin of 73,782 votes i.e., the applicant got 3,63,527 votes and the election petitioner got 2,89,745 votes and as such the election petition has been filed out of sheer desperation and without disclosing the cause of action.

It has been submitted on the behalf of the election petitioner that the election petitioner has specifically pleaded in paragraph 13 that on 26.3.2019, during the scrutiny, the Returning Officer, 2-Outer Manipur (ST) Parliamentary Constituency, abruptly and improperly accepted the nomination paper of the first respondent in the election petition (applicant herein) and there was no proper scrutiny as envisaged under Section 36(2) of the said Act. The election petitioner stated that the affidavit filed by the applicant (first respondent in the election) suffers from the following defects:

(i) The respondent No.1 kept the column 5 of para 4 of the affidavit as blank as nothing is filled up in the relevant column.

(ii) The gross total value disclosed by the respondent No.1 at para 7-A(ix) showing Rs.52,23,704/- for self and Rs.2,35,648/- for spouse are not correct and misleading. Hence, he filed a false affidavit.

(iii) The first respondent failed to disclose vital material information in his affidavit pertaining to his non-agricultural lands and other interest in immovable properties at para 7-B(ii) and (v) despite having owning immovable properties at Kayinu village, Mao, Senapati District, Manipur, thereby rendering his nomination as invalid and void.

(iv) The first respondent failed to disclose the relevant details for showing a sum of Rs.1,12,50,000/- at para 7-B(vi) of his affidavit and as such, he filed a false affidavit. (v) The first respondent also furnished misleading and false particulars/information at para 9B(f) of his affidavit. He failed to disclose the details of contracts entered into by private companies in which candidate or spouse or dependents have share.

(vi) The particulars disclosed in the affidavit at para B, para 11 (8)(A) for the candidate and his spouse are falsely shown to be only Rs.3,24,704/and Rs.2,20,648/respectively. These are contradictory to the particulars entered at part A of the same affidavit.

(vii) The particulars shown at para (11) 8B(iii)(b) of part B of the affidavit is also false as he disclosed only a sum of Rs.80,00,000/- being the value of inherited immovable property at part A, para 7B(iv) of the affidavit.

In Samant (supra), the Hon'ble Supreme Court held that the election petition must set out the material facts on which a charge can be 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 D.Ramachandran (supra), the Hon'ble Supreme Court held that distinction is to be made between the terms "full particulars" and "material facts", however Court cannot dissect the pleadings and struck out portion of it. The Hon'ble Supreme Court further held that it was otherwise found that the facts and cause of action disclosed in the petition were sufficient regarding the averments of the case and were sufficient to void the election in case, it is adjudicated upon and therefore, it could not be said that full particulars were not mentioned in the petition.

In Ponnala Lakshmaiah, the Hon'ble Supreme Court observed that there is no denying the fact that Courts are competent to dismiss petitions not only on the ground that the same do not comply with Provisions of Sections 81, 82 and 117 of the Representation of the People Act, 1941 but also on the ground that the same do not disclose any cause of action. The expression "cause of action" has not been defined either in the CPC or elsewhere and is more easily understood than precisely defined.

In Kishan Shankar Kathore (supra), the Hon'ble Supreme Court held that even the non-disclosure of the outstanding dues due to the electricity department in the nomination amounted to substantive defect.

In Kishan Shankar Kathore (supra), the Hon'ble Supreme Court relied upon the decision in the case of Union of India v. Association for Democratic Reforms and another (2002) 5 SCC 294, wherein it has been held that it was incumbent upon every candidate, who is contesting the election, to give information about his assets and other affairs, which requirement is not only essential part of fair and free elections, inasmuch as, every voter has a right to know about these details of the candidates, such a requirement is also covered by freedom of speech granted under Article 19(1)(a) of the Constitution of India.

In Ashraf Kokkur (supra), the Hon'ble Supreme Court held that the election petition having disclosed a cause of action, it should not have been thrown out at the threshold.

In MC(EP) No.6 of 2017 in Election Petition No.4 of 2017, decided on 4.1.2018, this Court held that whether the allegations of the election petitioner are correct or not has to be proved by the petitioner and further, as to whether, filing of the affidavit by the returned candidate was false or not and whether the alleged false affidavit would amount to violation of the provisions of Section 33 of the RP Act, 1951 so as to render the election of the respondent no.1 void, are to be considered by this Court in course of the election trial.

In MC(EP) No.12 of 2018 in Election Petition No.12 of 2017, decided on 22.1.2019, this Court held that 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. It was further held that 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 state of trial, as has been held by the Hon'ble Supreme Court.

It is submitted on behalf of the election petitioner that Section 78 of the said Act provides that every Candidate has to lodge a true account of his election expenses maintained under Section 77 of the said Act with the District Election Officer within 30 days from the date of declaration of the result of the election. Further, Section 123(6) of the said Act provides that incurring or authorizing of expenditure in contravention of Section 77 of the said Act is a corrupt practice committed by the candidate or his authorized election agent in the election. According to the election petitioner, the applicant has failed to open the bank account to be used exclusively for the purpose of election expenditure before the date of his nomination as would be evident from the affidavit under Form 26 filed along with his nomination, wherein no such bank account was disclosed. Stating so, the learned counsel for the election petitioner submitted that since the applicant failed to maintain true and correct account of all expenditures in connection with the election in violation of Section 77 of the said Act and has committed corrupt practice as defined under Section 123(6) of the said Act, the election of the applicant is liable to be declared as void under Section 100(1)(b) and Section 100(1)(d)(i) and (iv) of the said Act. Thus, the election petitioner contends that he had clearly mentioned the facts which constitute the Cause of action and prayed for dismissal of the miscellaneous application filed by the applicant.

In fact, the applicant has failed to produce any materials to thrown out the arguments of the learned counsel for the election petitioner. The applicant simply stated that the election petition has failed to disclose the actual cause of action against the respondents in terms of the provisions of the said Act.

On thorough reading of the election petition, the election petitioner averred that on 26.3.2019 during the scrutiny, the Returning Officer, improperly accepted the nomination paper of the applicant and there was no proper scrutiny as per Section 36(2) of the said Act. On further reading of the election petition, the election petitioner in paragraph 38 stated as under:

"38. That the cause of action for filing the present Election Petition arose on 23.05.2019 when the result of the Election was declared by the Returning Officer, 2 - Outer Manipur (ST) Parliamentary Constituency and the same is continuing within the jurisdiction of the Hon'ble Court,"

When this Court read over the averments set out in the election petition wholly, it is clear that the election petitioner has stated full and material particulars following the cause of action for filing the election petition. Prima facie, the election petitioner has narrated in the election petition regarding the non-disclosure of election expenditure incurred by the applicant.

The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of Order VII, Rule 11 CPC cannot therefore be invoked in this case. There is no substance in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under Order VII, Rule 11(a) CPC, the Court cannot dissect the pleading into several parts and consider whether each of them discloses a cause of action.

It is apposite to note at this juncture that as per the instructions of the Election Commission, all bills and vouchers for expenditures incurred by the candidate during the entire poll period should be disclosed by the candidate and submitted along with the account registers maintained by the candidate.

Further, the specific case of the election petitioner is that the Returning Officer ought to have rejected the nomination paper of the applicant under Section 36(2) of the said Act, as the applicant withheld important informations, including his non- agricultural land and contract details entered by the private company in which the applicant has shares. Thus, the election petitioner says that furnishing false informations amounts to defects of substantive character in filing the nomination.

It is settled that so long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are generally more known than clearly understood. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars.

In Harishankar Jain v. Sonia Gandhi, (2001) 8 SCC 233, the Hon'ble Supreme 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. In paragraph 23, the Hon'ble Supreme Court held as under:

"23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. 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, Jitendra Bahadur Singh v. Krishna 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.

It is the duty of the court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings."

(Underlying added)

In Mayar (H.K.) Ltd. and others v. Owners and Parties, Vessel M.V. Fortune Express and others, (2006) 6 SCC 100, the Hon'ble Supreme Court held as under :-

"12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants. Similarly, the Court could not have taken the aid of Section 10 of the Code for stay of the suit as there is no previously instituted suit pending in a competent court between the parties raising directly and substantially the same issues as raised in the present suit."

In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea.

When this Court carefully gone through the decisions cited supra, it is clear that the Courts need to be cautious in dealing with requests for dismissal of the petitions at the threshold and exercise their powers of dismissal only in cases where even on a plain reading of the petition no cause of action is disclosed.

An election which is vitiated by reason of corrupt practices, illegalities and irregularities enumerated in Sections 100 and 123 of the said Act cannot obviously be recognized and respected as the decision of the majority of the electorate. The Courts are, therefore, duty bound to examine the allegations whenever the same are raised within the framework of the statute without being unduly hyper technical in their approach and without being oblivious of the ground realities.

The result of the election can be questioned on the grounds enumerated in Section 100 of the said Act. Section 100(1)(b) and 100(1)(d)(i), (ii) and (iv) of the said Act, provides :

"100. Grounds for declaring election to be void.-

(1) Subject to the provisions of sub-section (2) if the High Court is of opinion-

(a) ........

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) ........

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) ........

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act."

Admittedly, 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. The expression material facts would mean all the basic facts constituting the ingredients of the particular corrupt practice which the election 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 leveled, the ground relied upon and the special circumstances of the case. 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 failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the said Act.

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 said 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 the purpose of considering a Preliminary objection as to the maintainability of the election petition, the averments in the election 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.

As stated supra, the election petitioner assails the election of the applicant under Section 100(1)(b) and 100(1)(d)(i),

(ii) and (iv) of the said Act. After going through the averments made in the election petition as a whole, it cannot be said that the election petition does not contain a concise statement of material facts. In fact, prima facie, it does disclose a cause of action. The argument of the learned counsel for the applicant that the election petition has no cause of action has no merit. As stated supra, this Court is of the view that the election petition having disclosed a cause of action, it should not have been thrown out at the threshold. That apart, when allegation of corrupt practice alleged in the election petition, the Court is duty bound to examine the said allegation.

It is fairly well settled that our election law being statutory in character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character it is essential that it must conform to the requirements of our election law. But at the same time the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation. If the returned candidate is shown to have secured his success at the election by corrupt means he must suffer for his misdeeds.

At this stage, this Court is not considering the issues whether the applicant filed false affidavit at the time of filing his nomination and failed to disclose the true and correct expenditures incurred by him in the entire election, thereby violated the provisions of Section 100(1)(d)(ii) of the said Act and also whether the Returning Officer has correctly or wrongly accepted the nomination of the applicant and there was violation of Section 33 of the said Act or not and these are all matter of trial. Thus, this Court is of the view that there had been substantial compliance with the provisions of Section 83(1)(a) of the said Act. Moreover, the Question as to whether the pleadings made by the election petitioner in the election petition are sufficient or not can only be determined at the time of final hearing of the election petition. Since the election petition discloses cause of action and the election petition needs to be tried, the instant application is devoid of any merit and the same is liable to be dismissed.

For the foregoing discussions, MC (EP) No.25 of 2020 in Election Petition No.1 of 2019 is dismissed. No costs.

Registry is directed to issue copy of this order to both the parties.