Naresh Kumar Patel vs Shri Nand Kumar Patel and Others

Dhirendra Mishra, J.—This order shall dispose of I.A. No. 2564/2006 filed by Respondent No. 1, an application under Order 7 Rule 11 of CPC and I.A. No. 2685/ 2006 filed by Respondent No. 7 under Order 7 Rule 11 of CPC for dismissing the election petition in limine for non-compliance of the mandatory requirements of Representation of People''s Act, 1951 and the rules made thereunder (hereinafter referred to as the Act of 1951 and Rules.)

The Petitioner being registered as Electoral in 18, Kharsia Assembly Constituency has filed this Election Petition u/s 80 and 80-A of the Act of 1951 for declaring the election of Respondent No. 1 as a Member of Legislative Assembly from Constituency No. 18, Kharsia, district Raigarh as illegal and void on the ground that he resorted to the corrupt practices during the election as contemplated in Sub-Section 1, 5 and 7 of Section 123 of the Act of 1951. The detail election programme is given in paragraph 2 of the petition and the Respondent No. 1 was declared elected by a margin of 32,768 votes from the Respondent No. 2 on the election counting which was held on 4-12-2003.

The Respondent No. 1 has filed the above application and has prayed for dismissal of the petition at the threshold on the ground that the material fact and material particulars relating to the alleged corrupt practices averred in para 10(a) to 10(j) of the petition do not disclose cause of action and the allegations and particulars are not pleaded and the petition is bereft of material facts/material particulars. Apart from the above, the Respondent No. 1 has also taken a ground that the verification contained in affidavit does not conform to the Form prescribed under the law.

Similarly, the sum and substance of the application preferred by the Respondent No. 7 is that the election petition do not accompany with as many true copies as per Section 81(3) of the Act of 1951 and copy of the petition supplied to the Respondent was not the true copy of the petition as the copy supplied to the Respondent does not bear the signature of the Petitioner nor it does contain the verification. The verification and affidavit supplied to the Respondent does not contain the signature of the Petitioner and the copies supplied to the Respondent which is accompanied by affidavit does not contain the seal and signature of the oath commissioner and thus there is a total noncompliance of the mandatory provisions of Section 81(3) of the Act of 1951 and for this reason, it deserves to be dismissed. A further objection is that the petition does not include the statement, naming the persons who have committed such corrupt practices, date, place and time of the commission of such corrupt practices and as such lacks in material facts and material particulars about the corrupt practices, as required u/s 83 of the Act of 1951. The verification and affidavit attached with the petition are not in accordance with the provisions of Section 83(1)(c) of the Act of 1951. The affidavit in support of corrupt practices is also not in accordance with law and as such the petition is not supported by affidavit and as such the verification of the pleadings is not in accordance with Order 6 Rules 14 and 15 of the CPC as the Petitioner has also not disclosed the source of information and in the absence of such declaration, the verification cannot be treated as valid verification.

The Petitioner, in reply to the application filed by the Respondent No. 1, denied that the election petition does not disclose any cause of action and the application at this stage under Order 7 Rule 11 is not maintainable on the grounds taken by the Respondent No. 1. It has been submitted by the Petitioner that all the necessary material facts and material particulars have been averred by the Petitioner in paragraph 10 of the petition and the grounds taken by the Respondent No. 1 is baseless. It is submitted by the Petitioner that the pleading on the petition is almost supported by documentary evidence as the facts pleaded in the election petition are specific and the same concise material facts and even material particulars and the objection raised by the Respondent No. 1 relates to evidence and the same shall be proved by the Petitioner by oral evidence.

In reply to the objection of the Respondent No. 7, the Petitioner has submitted that the Petitioner has complied with the requirement u/s 81(3) of the Act of 1951 as the Respondent No. 7 has accepted the true copies of the election petition. Whether compliance of Section 81, 82 and 117 has been made by the Petitioner at the time of filing of the petition is to be ascertained by the ministerial staff of the Court and the petition has been found to be in order and therefore, there is no further scope of enquiry for the purpose of Section 86. However, the non-compliance of requirement of Section 83 of the Act is a judicial function and the same has not been specified as a ground for dismissal of the election petition u/s 86 of the Act of 1951. In view of the fact that the Registry of the High Court has certified that there was no defect in the petition, a presumption is attached that the petition was in order. The objection that allegation of corrupt practices is not supported by the affidavit of the Petitioner has been denied and it is submitted that the source of information has been well pleaded and the affidavit to that effect has been filed along with the election petition. The verification is strictly in accordance with law and mandatory provision of proper verification has been complied with.

The objections of the Respondents No. 1 and 7 may be categorized as such:

A. That, the petition is bereft of material facts and material particulars relating to the alleged corrupt practices;

B. That, the verification and affidavit to be filed by the election Petitioner with the petition based on ground of corrupt practices do not conform to Rule 94(A) in Form 25;

C. the copies of the petition supplied to the Respondents are not the true copies of the petition and there is a violation of Section 81(3) of the Act of 1951.

Shri B.R Sharma, learned Counsel for the Respondent No. 1 citing various judgments of the Hon''ble Supreme Court submits that to unseat a returned candidate on the ground of corrupt practices, the same must be specifically alleged and strictly proved to have been committed by the returned candidate himself or by his election agent or by a person concerned with consent of the returned candidate or of his election agent. The pleading plays important role in an election petition and the same should be strictly in accordance with Section 83 of the Act of 1951 which provides that the petition contains a concise statement of the material facts on which the Petitioner relies and should also set forth full particulars of the corrupt practice that he alleges with full details of the persons involved in such corrupt practices along with the date and place of the commission of each of such corrupt practice. It is further requirement of law that the charge of corrupt practice should be supported by an affidavit and the Petitioner is also obliged to disclose the source of information in respect of the information of the corrupt practice, so that the Petitioner can be bound for the charges leveled by him.

Dealing each and every instance of the alleged corrupt practice mentioned in the paragraph 10 of the petition, learned Counsel for the Respondent No. 1 submits that all the allegations of the corrupt practices are bereft of material facts and the same may be struck off from the pleadings and thus the Petitioner has no cause of action to file the instant petition and the petition deserves to be dismissed in limine. He further submits that the copies of the election petition supplied to the Respondents are not the true copies of the election petition as the affidavit in accordance with Rule 94 in Form 25 does not bear the notarial endorsement. He further submits that in paragraph 10(h) of the petition, handwritten interpolation has been made by the Petitioner, however, in the copies supplied to the Respondents, handwritten interpolation in para 10(h) is missing, and therefore, the Respondent No. 1 has not taken this pleading (interpolation) as a ground in his application for summary dismissal of the election petition.

Advancing similar arguments, Shri B.R Gupta, learned Counsel appearing for Respondent No. 7 submits that the Respondents have not been supplied with the true copies of the election petition filed by the election Petitioner in the Court as the copy supplied to the Respondent No. 1 does not contain the affidavit in Form No. 25 bearing notarial endorsement. He further submits that even the check report given by the ministerial authority of the High Court which is available on record, Sr. No. 6 demonstrates that the petition is accompanied by necessary copies of the petition and process fee but it does not show that the election petition was accompanied by the necessary true copies of the petition. He further points out that the affidavit filed by the Petitioner in Form 25 does not conform to the requirement of Section Section 83(1)(c) as from a bare perusal of the affidavit sworn by the Petitioner as per the requirement of Section 83(1)(c) of the Act of 1951, would go to show that in para (a) of the affidavit, the deponent has sworn that paragraphs 10(a, b, c, e, h, i, j) of the accompanying election petition about the commission of the corrupt practice of distributing wine and money and particulars of such corrupt practice mentioned in paragraphs 10(a, b, c, e, h, i, j) of the same are true to my knowledge; wherein in paragraph ''d'' of the affidavit, the deponent has further stated that the contents of para 10(a, b, c, e, h, i, j) and 11, 12 are true to my information. He further submits that the true copies supplied to the Respondents do not bear the endorsement of the true copy. The affidavit in Form 25 does not bear the notarial endorsement and the handwritten part, of para 10(h) of the petition is missing in toto from the copies supplied to the Respondents and as such there is a complete noncompliance of Section 81(3) of the Act of 1951.

On the other hand, Mrs. Hameeda Siddiqui, learned Counsel for the Petitioner protesting the above objections contended that the compliance of Sections 81, 82 and 117 is to be seen at the time of presentation of the petition as the same is a ministerial act. Once the petition is accepted after verification by the ministerial staff of the High Court, no scope remains for further enquiry for the purposes of Section 86 of the Act of 1951 to ascertain the deficiency in the election petition. She further submits that whether the petition is in accordance with Section 83 of the Act is a judicial function of the election tribunal and any deficiency in this regard does not render the petition to be dismissed in limine and the petition cannot be dismissed u/s 86(1) of the Act as the High Court can dismiss an election petition under this provision where the Petitioner does not comply with the provisions of Section 81, 82 and 117 of the Act. She further submits that the material facts and material particulars have been given in detail in para 10 of the petition. The allegations are supported by documents and, therefore, the contention of the Respondents that the petition does not disclose the cause of action for want of material facts and particulars with respect to the corrupt practices is without substance. The above application is filed by the Respondents with a view to delay the proceedings, the affidavit is in conformity with Rule 94(A) of the Act of 1951 and the same is in Form 25. It is in accordance with Section 83(1)(c) of the Act, therefore, the applications preferred by the Respondents deserve to be dismissed being devoid of substance and the same have been filed with an ulterior motive to delay the proceedings.

I have heard the learned Counsel for the parties. I have perused the petition and its annexures.

The first objection of the Respondents is that the petition is bereft of material facts and material particulars of the alleged corrupt practices adopted by the Respondent No. 1 and the pleading is not in accordance with Section 83 of the Act of 1951.

The specific instances of the corrupt practices adopted by the Respondent No. 1 have been detailed in para 10 of the petition.

In para 10(a), the allegation is that the Respondent No. 2 received information from party workers of Bhartiya Janta Party of village Bordi and Ganda Bordi on 22-11-2003 to the effect that posters and banners were torn and destroyed by the police officials whereupon he lodged a report of Annexure P-2 with the Chief Election Officer. The document of Annexure P-2 or averments in the petition are against, the police personnel and the same does not even remotely refer the Respondent No. 1 and there is no allegation against the Respondent No. 1.

In Para 10(b) of the petition, it is alleged that the Respondent No. 1 was the Home Minister. It is further alleged that several criminal persons naming few of them against whom warrants were issued from different Courts have constituted an assembly of criminal elements and they were being used by the Respondent No. 1 for canvassing and for threatening the other candidates of the election 2003. Further allegation is that when the Respondent No. 2 was in a public meeting on 24-11-2003, he saw these criminals attacking his party workers upon which he lodged a report with the State Election Officer vide Ex. P-3. The document of Ex. P-3 being a complaint by Respondent No. 2 contains allegations against couple of individuals that they have formed gang of 70-80 persons from various other parts of the State against whom warrants of arrest have been issued by the Courts and they armed with weapons are canvassing in favour of the Respondent No. 1 by terrorizing the voters. They were also seen with canvassing party of the Congress candidate. Allegation against the Respondent No. 1 is that he was patronizing the unsocial elements and permitting them to canvass in his constituency. Except in this paragraph and the document of Ex. P-3, except making general allegations against a couple of individuals that they are terrorizing the electorates and these unsocial elements are attacking the Bhartiya Janta Party workers and they have the patronage of Respondent No. 1, no material fact has been given in this paragraph with respect to the persons/workers who were allegedly terrorized by the above persons.

In para 10(c) of the petition, the allegation is that the Tehsil office and Block office are distributing the amount of compensation from Rs. 300 to 3,000 to the villagers of villages due to heavy rains. Receiving this information, the party workers lodge Ex. P-4 to the Chief Election Officer. Ex. P-4 mentions that amount of compensation is being disbursed by the employees of Block Office Kharsia and the same is being disbursed by giving an impression that the amount has been sent by Respondent No. 1 and thus the electorates are being influenced in favour of the Respondent No. 1 for furtherance of the prospect of the Respondent No. 1. There is no allegation that the above act is being done with the consent of Respondent No. 1 or his election agent or any other persons concerned with them and there is no material fact which constitutes corrupt practice as contemplated u/s 123(7) of the Act.

In the paragraphs 10(d, e and f), the Petitioner has made an allegation that the Respondent No. 1 distributed the pamphlets of Annexure P-5 and made an appeal for voting in the name of caste. The language of the pamphlets and the object behind publishing and distributing the libelous pamphlets amongst the electorates was to tarnish the image of Respondent No. 6 in the eyes of voters who himself was a candidate in the election and who belongs to Kalar community. It is further averred that the Respondent No. 6 has made a complaint of Annexure P-6. English translation of pamphlets Annexure P-5 is that-"Kalar society of the Assembly Constituency Kharasia Assembly appeals all the caste persons that some mischievous persons in the name of society, are spreading this information that our society has set up independent candidate and support him, though Kalar society has decided to elect the Respondent No. 1 by a thumping majoring for overall development of Kharsia. The candidate using the name of the society'' is fraud and mischievous and all of you caste brothers very well recognize him.

Respondent No. 1 who is committed to make all the villages of Kharsia Constituent Assembly as ideal villages, vote him in his election symbol, get him elected by historical votes." In the foot of this appeal, name of numerous persons have been mentioned. This appeal also bears the photograph of Respondent No. 1 and his election symbol. The Assistant Returning Officer, Kharasia has submitted a report to the District Returning Officer, Raigarh on 11-12-2003 wherein it is mentioned that the Respondent No. 6 has filed a complaint to this effect to observers of Election Commission that some mischievous persons of his community under the banners of Respondent No. 1 have distributed pamphlets in which without naming the independent candidate, he has been depicted as fraud and mischievous and the same has been distributed with a view to tarnish the image of Respondent No. 6. The Assistant Returning Officer has further stated that the above act is in violation of Ideal Code of Conduct as asking for voting in the name of caste or religion is prohibited and the pamphlets points towards the Respondent No. 6 and the same may be taken as violation of Clause 3 of the Ideal Code of Conduct.

At this juncture, it would be appropriate to mention that an election petition filed at the behest of Respondent No. 6 Shant Kumar Jaiswal on the same ground has been dismissed vide judgment dated 29-4-2005 and the same has been reported in AIR 2005 CG. 18. Learned Counsel for the Respondent No. 1 submits that from a bare perusal of the above cited judgment, it is evident that in paragraph 8 of the petition, allegation is made that the Petitioner under the corrupt practice printed number of pamphlets and distributed the same. The pamphlets in question was libelous as the image of the Petitioner of that case was tarnished in the eyes of voters as the allegations were per se defamatory besides being false to the knowledge of Respondent No. 1. In para 11 of that petition, an allegation was made that on 1-12-2002, the agents of Respondents No. 1 namely Sukhdeo S/o. Tarachand Dansena engaged vehicles TATA SUMO CG 04-A-4899 and CG 04 ZP 1056 for bringing the voters for voting in favour of the Respondent No. 1. The matter was reported to the police and thereafter complaint was filed before the Chief Election Officer against the above corrupt practice. However no action was taken place. This Court dealing with the allegations in that petition in its judgment, has not accepted the pleadings of that petition on the ground that material facts of the alleged corrupt practice and the source of information of the Petitioner has not been pleaded as per the mandatory provisions of Section 83 of the Act and accordingly the petition was dismissed at the threshold by allowing the application of the returned candidate- Respondent No. 1 for dismissal of the petition under Order 7 Rule 11 of the Code of Civil Procedure

In the instant petition, in paragraph 10(g), the Petitioner has made allegation that the Respondent No. 1 was distributing wine in village Dhanagar on 28-11-2003 and which was distributed amongst the voters on 1-12-2003 and the Respondent No. 1 has also taken assurance of casting vote in favour of Panja Symbol in the night of 28-11-2003. The Respondent No. 1 was giving to villagers for giving votes to him.

In paragraph 10(h) of the petition, it is alleged that on 30-11-2003 Respondent No. 2 has given liquor and Rs. 5000/- to one Mr. Digambar @ Chhotu to be distributed amongst the voters of village Khokhra. The Respondent No. 1 has also given an iron pot for common use of villagers of the same village. Since the Respondent No. 1 was Home Minister of the State, no general person was even daring to lodge any complaint against him. With respect to this paragraph, the Respondent has brought to the notice of this Court that, true copies supplied to the Respondents do not. contain the handwritten part which finds place in line 4 after the word - the Respondent No. 1 has also "given an iron pot for " common use of villagers of the same village. Learned Counsel for the Petitioner while arguing this ground did not mention above insertion as the same was not available with her at that time.

In para 10(i), it is alleged that on 1-12-2003 early in the morning Nootam patel, who is Asstt. Co-ordinator of B.J.P. Kamal Vahini was taken to police station Pusour and was kept there, so that he could not work for B.J.P. candidate. He was accompanied by an active party worker of B.J.P. namely Suresh Kumar Sahu, who was also detained in the police station and this incident was reported vide Annexure P-7. However, on perusal of Annexure P-7, it is found that the contents of Annexure P-7 do not. correspond to the allegations made in this paragraph and the same is not directed against the Respondent No. 1.

In paragraph 10(j) of the petition, it is alleged that the Respondent No. 1 has used jeep No. C.G. 15 ZE-1228 on polling dated 1-12-2003 for transporting the voters of the constituency and report to the effect was lodged on 1-12-2003 by one Mr. Vinod Kumar as per Annexure P-8. From a perusal of Annexure P-8, it would be evident that a complaint has been lodged with the Presiding Officer, Kharasia alleging that jeep in question is being used for the purposes of transporting voters of Booth No. 52 and 53 in violation of Ideal Code of Conduct. No allegation is made against any person. Subsequently, it has been pleaded that the Respondent No. 1 has incurred expenditure in contravention of Section 77 of the Act along with other contravention, which amounts to corrupt practices as contained in Section 123 Sub-Section 7 of the Act. Report was lodge by one Shrichand Ravlani vide Annexure P-9 and Annexure P-10. From a perusal of this written report of Annexure P-9 and P-10, it is found that various allegations of violation of Election Code of Conduct have been made like the Congress candidate used the Government building for campaigning, vehicles bearing loudspeakers are being plied without permission, officers posted at Kharasia have been named who are posted at Kharaaia for more than 4 years who are engaged in election campaigning of the Home Minister directly and indirectly and their prayer to transfer them was not headed on the ground that they have not been deployed in the election duty.

First, we consider whether the pleading contained in paragraph 10 of the petition constitutes sufficient pleadings of the material facts as contained in Section 83(1) of the Act of 1951 and thus gives cause of action to the Petitioner to file the instant petition and whether even if the material fact in accordance with Section 83(1) of the Act is not given, the petition could be dismissed in limine without trial.

Learned Counsel for the Petitioner relying upon the decision in Manohar Joshi Vs. Nitin Bhaurao Patil and Another, submits that the ground taken by the Respondents that the petition is bereft of material facts constituting the corrupt practices as per Section 83 of the Act, though the necessary facts and particulars of the corrupt practices have been given by the Petitioner nevertheless the ground that the Petitioner has not pleaded material facts as per Section 83(1) cannot be a ground to dismiss the petition u/s 86 of the Act. since Section 86 makes deficiency in compliance of Sections 81, 82 and 117 as a ground of dismissal of the petition and Section 83 is not specified as a ground for dismissal u/s 86.

In para 46 of the above judgment, it has been held as under:

The High Court jailed to appreciate that the only allegation of corrupt practice in this election petition which raised a triable issue is as indicated above and rest of the general averments deficient in requisite pleadings of all the constituent parts of the corrupt practice did not constitute a pleading of the full cause of action and, therefore, had to be ignored and struck out in accordance with Order 6, Rule 16, CPC However, there being, a specific allegation in para 30 of the election petition relating to the returned candidate himself based on his speech made on 24-2-1990, to that extent a triable issue had been raised and had to be decided.

In Hardwari Lal Vs. Kanwal Singh, , it has been held that the election petition if does not set out material facts and particulars of the corrupt practices so as to furnish a cause of action, can be dismissed by virtue of Section 87 though not u/s 86 of the Act.

In the matters of Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, it has been held that first, Section 83 of the Act is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. Second, omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet. Fourth, material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of persons with the date, time and place. Fifth, material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. Sixth, in stating the material facts it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Seventh, an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the obtaining or procuring of assistance unless the exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further the prospects of the election are alleged as statements of facts.

Relying upon the above judgment, the Hon''ble Supreme Court in the matter of Azhar Hussain Vs. Rajiv Gandhi, has held that the petition can be dismissed for failure to incorporate in the petition the material facts and particulars relating to alleged corrupt practices and this power can be exercised at the threshold under Order 7 Rule 11 of CPC Referring to Order 6 Rule 16 it has been held that the Court may at any stage of the proceedings, order to struck out or amend any pleading on the grounds mentioned in this rule.

In para 14, while dealing with the material facts it has been held that the material facts are the facts which if established would give the Petitioner the relief asked for. The test required to be answered is whether the Court could have given a direct verdict in favour of the election Petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition.

Similar is the view expressed in L.R. Shivaramagowda, Etc. Vs. T.M. Chandrashekar Etc., wherein it has been held that failure to plead material fact is fatal to the election petition and no amendment of the pleading can be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, however, the absence of material particulars can be cured at a later stage by an appropriate amendment.

The Hon''ble Supreme Court in the matter of Mr. V. Narayanaswamy Vs. Mr. C.P. Thirunavukkarasu, , while elaborating the distinction between the material facts and material particulars has held that the petition has to be rejected at the outset in the absence of material facts but in case of defect in material particulars, it can be cured subsequently. It has been further held that where in spite of having sufficient opportunity to cure the defect in material particulars, Petitioner fails to cure the defect, petition has to be rejected. It is not the duty of the High Court to suo motu direct the Petitioner to furnish better particulars and the petition was dismissed at the threshold on the ground of lacking in material facts and material particulars, verification and affidavit.

In the matter of Jaipal Singh Vs. Smt. Sumitra Mahajan and Another, , referring Order 6 Rule 2(1) of the Code of Civil Procedure, it is declared that the pleading has to state material facts and not evidence. It explained the distinction between the material facts and material particulars. The material facts are the facts which are necessary to formulate a complete cause of action. Omission of a single material fact leads to an incomplete cause of action and subsequently the plaint becomes bad. In this judgment, to elaborate the distinction between the two, judgments in the matters of Bruce v. Odhams Press Ltd. (1936) 1 All ER 287 (CA) has been referred, in which it has been observed that:

The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word "material" means necessary for 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; or ''a further and better statement of claim'' may be ordered under Rule 7. The function of ''particulars'' under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim- gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the Plaintiffs cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the Defendant, Their function is to fill the picture of the Plaintiff''s cause of action with information sufficiently detailed to put the Defendant on his guard as to the case he had to meet, and to enable him to prepare for trial.

The Hon''ble Supreme Court in the matters of Harmohinder Singh Pradhan Vs. Ranjeet Singh Talwandi and Others, had an occasion to consider the corrupt practices u/s 123(3) of the Act wherein it has been held that in order to constitute corrupt practice within the meaning of the above section, necessary ingredient is appeal on the ground of religion. Appeal to vote or refrain from voting on the ground of religion would be a material fact within the meaning of Clause (a) of Sub-section (1) of Section 83 of the Act.

In the light of the principles and the law laid down in the aforesaid judgments, we propose to scrutinize the averments contained in paragraph 10 of the petition.

So far as the averments contained in para 10 (a, b and c) are concerned, there is not an iota of averments against Respondent No. 1 to directly connect him with the offence alleged in the aforesaid paragraph. Para 10(a) pertains torning out the posters and banners by police officials whereas para 10(b) refers that certain named criminal persons against whom warrants were issued from different courts were being used by Respondent No. 1 for the purposes of canvassing. Whereas para 10(c) refers to disbursement of compensation by employees of Tehsil Office and Block office on the pretext that the same are being distributed from Respondent No. 1. The pleadings in these paragraphs or documents of Annexure P-2, 3 and 4 at the most "amount to electoral offences and the same cannot be termed corrupt practices as contemplated u/s 123 of the Act. Even otherwise the averments in petition and the contents of the documents are bereft of material fact which in no way connects the Respondent No. 1 with the alleged offences. So far as the allegations in para 10(d, e and f) are concerned, they refer to the distribution of pamphlets of Annexure P-5 by the Respondent No. 1 which contains appeal for voting in the name of caste. Document of Annexure P-6 is a memo of Assistant Returning Officer, Kharasia addressed to District Returning Officer, Raigarh wherein it has been mentioned that Shant Kumar Jaiswal has lodged a report against some mischievous elements of the society under the banner of candidate of Congress in which without naming independent candidate he has been described as fraud and mischievous person and distribution of this pamphlets may tarnish his image and cause irreparable loss. From the pleading in these paragraphs, it is observed that there is no allegation against the Respondent No. 1 that he was responsible for printing and publication of the pamphlets or that with his consent or with the consent of his election agent or any person concerned with them, the pamphlet was printed or published. The allegation is that the Respondent No. 1 distributed the above pamphlets. The pamphlet of Annexure P-5 in paragraph 1 mentions that Kalar society has decided to elect the Respondent No. 1 with thumping majority for overall development of the area and in paragraph 2, there is an appeal for voting in favour of Respondent No. 1 and the said appeal in this paragraph does not. appeal in the name of caste. This appeal also does not refer the caste of Respondent No. 1. In these paragraphs, the only allegation against the Respondent No. 1 is that he was distributing the pamphlet however, no particulars regarding time, date, place or persons to whom the said pamphlet was distributed, have been given.

Similarly, in para 10(g) of the petition, the Petitioner claims that he saw the Respondent No. 1 giving wine at village Dhanagar on 28-11-2003 which was distributed amongst the villagers on 18-12-2003. Who were the persons to whom the Respondent No. 1 gave liquor for distribution has not been mentioned nor it has been mentioned that who in fact distributed the liquor amongst the villagers on 1-12-2003. In para 10(h) also, the Petitioner has incorporated a factum of corrupt practice by inserting that the Respondent No. 1 has given an iron pot for common use of villagers of the same village i.e. Khokhra. Here also name of the recipient of the iron pot has not been mentioned.

In the matters of R.P. Moidutty Vs. P.T. Kunju Mohammad and Another, , the Hon''ble Supreme Court while dealing the requirement of pleadings with respect to the material fact in election petition u/s 83 of the Act was seized with the matter wherein allegation of corrupt practices was to the effect that the elected candidate made an appeal on the ground of promotion of enmity or hatred on ground of religion, caste or community, and it was further alleged that the elected candidate prepared a script, directed and produced a video cassette (Vicharana) depicting demolition of Babri masque, the riots which broke out thereafter and extreme miseries of Muslims population affected by the riots and fixing responsibility for all the incidents on the then Prime Minister and President of the Congress Party which was supporting the election Petitioner, it. was held in para 18 of the judgment that the petition was bereft of material facts and material particulars as the same does not set out the names of even a few persons who viewed the film and/or in whose presence it was exhibited, though it was not necessary for the Petitioner to have alleged names of each and every'' person who have viewed the video film, however names of few persons who had viewed the film and in whose presence it was exhibited were expected to have been alleged in the petition so as to put the Respondent on notice that these were the persons who were proposed to be examined by the Petitioner in support of his averments. And, thus it was held that the Petitioner''s pleading in this regards fails to satisfy the requirement of Sub-section (1) of Section 83 of the Act as explained in Azhar Hussain Vs. Rajiv Gandhi, . In the instant case also the only allegation against the Petitioner in paragraphs 10(g) and (h) is that he distributed pamphlets, distributed liquor and gave iron pot to the unspecified persons. The name of not a single voter, who received the above article has been mentioned in the petition, therefore, this Court is of the considered opinion that the petition is bereft of material particulars and pleadings in this regard fail to satisfy requirement of Section 83(1) of the Act.

So far as the allegations contained in para 10(i) and 10(j) are concerned, the allegations in this paragraphs are not directed against the Respondent No. 1; more over, the document of Annexure P-7 and P-8 which are mentioned in this paragraph and which are res-integra of the petition do not correspond to the allegations contained in the paragraphs. The above documents do not make any allegation against Respondent No. 1 and to that extent the averments in this paragraph wherein it is mentioned that Suresh Kumar Sahu made a report against the Respondent No. 1 and Respondent No. 1 used the jeep on polling on 1-12-2003 is factually incorrect in the light of the above document.

Thus if the averments made in paragraph 10 are held to be bereft of material particulars of corrupt practices as described in Section 123 of the Act and accordingly the same are struck off as per Order 6 Rule 16 of the CPC in that case, no material facts constituting corrupt practice u/s 123 of the Act remains in the petition. The Respondent No. 1 and Respondent No. 7 have filed these applications objecting that the petition does not contain the material facts constituting corrupt practices.

The Petitioner has vehemently opposed the applications in its reply and stuck to the position that the petition does contain the material facts as prescribed u/s 83(1) of the Act and she does not propose any amendment in the petition.

In the light of the above, the petition discloses no cause of action after the pleadings contained in para 10 are struck off and it deserves to be dismissed on the ground that it lacks material facts and particulars and accordingly it has to be dismissed under Order 7 Rule 11 Code of Civil Procedure

Apart, from the above, the further objection taken is that the affidavit is not in accordance with Rule 94(A) and the same is not in Form 25. There is no dispute that the instant petition has been filed solely on the ground of corrupt practices and, therefore according to Section 83(1)(c), the petition was to be accompanied by an affidavit in Form 25 as per Rule 94(A) of the Rules. If we go through the affidavit filed by the Petitioner in compliance of the above provision, in paragraph (a) of the affidavit, which has been sworn before the Oath Commissioner shows that the statement contained in paragraph 10(a, b, c, e, h, i, j) of the accompanying election petition about the commission of the corrupt practice of distributing wine and money and particulars of such corrupt practice mentioned in paragraphs l0(a, b, c, e, h, i, j) of the same petition are true to my knowledge. Whereas in para (d) it has been mentioned that the contents of para 10 (a, b, c, e, h, i, j) and 11 and 12 are true to my information. In para (c) the Petitioner has stated that contents of para 1, 2, 3, 4, 5, 6, 7, 8, 9, 10(d, g) are true to my personal knowledge. Thus, the contents of affidavit in Form 25 filed by the Petitioner are contradictory interse. We have already pointed out elsewhere that the pleadings with respect to documents Annexure 7 and 8 do not prima facie bear out from the contents of the document. However, the Petitioner in his affidavit has also verified the above affidavit on oath.

The Supreme Court in the matter of L.R. Shivaramagowda, Etc. Vs. T.M. Chandrashekar Etc., , while dealing with the requirement of filing affidavit in the election petition based on corrupt practices while dealing Rule 94(A) and Form 25, has held that the petition must disclose the source of information and clearly state which allegation is based on personal knowledge and which on information received, otherwise the affidavit cannot be held to be in conformity with Form 25 prescribed in Rule 94(A) and the same is a very serious defect.

In the matter of Mr. V. Narayanaswamy Vs. Mr. C.P. Thirunavukkarasu, , this aspect has been considered by the Supreme Court. In that case wherein learned Counsel for the Appellant argued that the petition should not have been thrown at the threshold and opportunity ought to have been given to the Appellant to supply the material particulars, it has been held that the Petitioner till date of impugned judgment persisted that the petition do not lack material particulars and verification was in accordance with the Code and affidavit in support of corrupt practices is in the Form 25 prescribed though admittedly that the petition lack material particulars, verification was not in accordance with the Code and'' affidavit did not conform to the Code prescribed. At the first opportunity, the Respondents raised the objections that the petition lacks with material facts and material particulars and that the verification of the petition and the affidavit were not in accordance with law, however the Petitioner persisted in his stand and termed the objections as irrelevant. Since the Petitioner had an opportunity to supply the material particulars which were admittedly lacking and had also opportunity to amend the verification and to file affidavit in the form prescribed, but he failed to do so and accordingly it was held that the existence of material particulars and affidavit are relevant and important when the petition is based on corrupt practices and in absence of those, the Court has jurisdiction to dismiss the petition.

The Respondent No. 1 and 7 have submitted that the copies of petition supplied to them do not correspond to the original election petition and as such, the same is not true copy of the petition. It is contended that-Section 81(3) of the Act casts a duty upon the Petitioner that the petition is to be accompanied by as many true copies thereof as there are Respondents mentioned in the petition and the same are required to be attested by the Petitioner under his own signatures that they are true copies. It is submitted that from the perusal of the endorsement of the A.R.(J) of the High Court in para 6, it is mentioned that "whether accompanied by necessary copies of petition and process fees- Yes". On the basis of entries recorded on 21-1-2004, A.R. (J) has registered the petition without making any endorsement that the petition is accompanied by true copies of the petition or on verification the petition is found with no defect. Reliance is placed in the matter of Mithilesh Kumar Pandey Vs. Baidyanath Yadav and Others, where there were mistakes in the copy supplied to the elected candidate as regards names of the persons through whom the corrupt-practices alleged to have been committed by him, it has been held that such mistakes are fatal and the petition was liable for dismissal in limine.

Further reliance is placed in the matter of Dr. (Smt) Shipra v. Shanti Lal Khoiwal AIR 1996 SC 1691 wherein it is mentioned that the petition was on the allegations of corrupt practices accompanied by affidavit as per Rule 94(A) in Form 25. Copies of the petition supplied to the Respondents and elected candidate did not contain endorsement of the notary in the affidavit filed in Form 25 as per Rule 94(A) of the Act. Dealing with the meaning of true copy in para 8 of the judgment, it was held that a true copy is a transcript identical or substitute to the original but not absolutely exact copy. But no body can by any possibility, misunderstand it to be not a true copy. It is seen that the test, as stated earlier, is whether by any variation from the original is to mislead an ordinary person. When the Petitioner is enjoined to file an election petition accompanied by an affidavit: duly sworn by the applicant duly verifying diverse allegations of corrupt practices imputed to the returned candidate and attested by the prescribed authority, it would be obvious that the statute intended that it shall be performed in the same manner as prescribed in Form 25 read with Rule 94-A of the Rules. With the above findings, the appeal preferred by the Appellant Petitioner against the judgment of the election judge dismissing the petition u/s 81(3) of the Act was decided in the following terms:

The contention that the election petition cannot be dismissed u/s 86 at the threshold on account of the omission on the part of the Registry of the High Court to point out the same as per its procedure cannot be countenanced. Lapse on the part of the Registry is not an insurance to deny to the returned candidate the plea that the attestation of the affidavit and its certification to be a true copy is an integral part of the pleadings in the election petition. 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 on an objection, being raised by the returned candidate, as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objection. In case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objections, the election petition would result in dismissal at the threshold, as the Court is left with no option except to dismiss the same.

The above matter again has been discussed in the matters of T.M. Jacob Vs. C. Poulose and Others, and it has been held that in Dr. Shipra''s AIR 1996 SC 1691 (supra) case on the basis of absence of "notarial endorsement" of the verification as well as absence of an "affirmation" or "oath" by the election Petitioner, the returned candidate got the impression, on a perusal of the "true copy" of the affidavit, that there was no duly sworn and verified affidavit filed in support of the allegations of corrupt practice by the election Petitioner. It was precisely on account of this "fatal" defect that K. Ramaswamy, J. opined that "the principle of substantial compliance cannot be accepted in the fact situation".

In the instant case also, the notarial endorsement of the verification and true copy supplied to the elected candidate is missing. Not only that, the copy supplied to the Respondents does also not contain the relevant insertion by handwriting note in para 10(h) and, therefore, it cannot be said that the true copy was, in fact, supplied to the Respondents. The Petitioner had an opportunity to cure the above defect but the Petitioner has not taken any step in this regard till date despite having opportunity to do the same.

Counsel for the Petitioner places her reliance in the matters of Jugal Kishore Patnaik Vs. Ratnakar Mohanty, and in the matters of Manohar Joshi Vs. Nitin Bhaurao Patil and Another, and it is argued that, the petition was presented by the Petitioner along with as many true copies of the petition as per Section 81(3) of the Act. and after verifying the same, the petition was accepted and the same was registered and, therefore, now it is not open to the Respondents to pray for dismissal of the petition u/s 81(3) of the Act of 1951 on the ground that true copies having not been supplied to them as there is no further scope for any further enquiry for the purposes of Section 86 to ascertain the deficiency as the verification is a ministerial act. She further submits that where there is deficiency in particulars, dismissal of the petition at the threshold is not proper and Petitioner could be directed to supply particulars and make good the deficiency. Reliance is placed in the matters of Sardar Harcharan Singh Brar v. Such Darshan Singh and Ors. AIR 2004 SCW 6205.

As stated in foregoing paragraphs, from the records of the case and the endorsement of the A.R.(J) it has been observed that at the time of filing of the petition, the Additional Registrar (J) has made an endorsement that as many copies as there are Respondents have been filed by the Petitioner. It is not mentioned that true copies have been filed. Thus relying upon the judgment of the Supreme Court in Dr. Shipra s case 1996 SC 1691 (Supra), which has been duly considered by the Constitution Bench and further considering that objection preferred by Respondent No. 7 is identical to that in the matters of Dr. Shipra 1996 SC 1691 (supra), and also considering that the copies supplied to the Respondents do not contain the allegations of corrupt practices against the Respondent No. 1 mentioned in para 10(h) by ink and as such under no stretch of imagination, the same can be termed as true copy, this Court is of the opinion that the petition deserves to be dismissed for non-compliance of the Section 81(3) of the Act of 1951.

Thus in view of the aforesaid analysis, the applications preferred by Respondent No. 1 and Respondent No. 7 deserve to be allowed and the same are accordingly allowed and the petition is dismissed for non-compliance of Section 81(3), 83(1)(c) and Rule 94(A) of the Rules.