Paragraph numbers below are the court’s original numbering, recovered from the source text.
37. The appellant also submitted that there are no r averments with regard to such ambulances being specifically …… deployed for the benefit of any elector in the constituency.
38. The appellant submitted that any company operating mines on large scale with heavy machinery is under an obligatory duty to maintain safety of the mines and is, as such, statutorily required to j;"liOVide required facilities including deployment of ambulances in adequate numbers at various mines to ensure safety of the persons working in the mines. The various mines of Salgaoncar Mining Industries are spread over large areas falling in the constituency.
39. According to the appellant there is no material fact in the pleading of the election petition to the effect regarding the deployment of such ambulances at which specific places at which specific time and for the benefit of whom and whether that was done at the behest and influence of the appellant.
40. According to the appellant, the third allegation pertains -1· to the election expem~es incurred by the appellant on the basis of that amount spent on digging of bore holes as well as the cost of 5 ambulances deployed for discharge for statutory requirement for carrying out mining operations by a company r -… – ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 29 SHIGAONKAR [DAL\~EER BHANDARI, J.] ought to be calculated towards the election expenses incurred A by the appellant is devoid of any merit in view of the insufficiency of pleadings in terms of 'material facts' with respedt to the two main allegations of corrupt practices relating to digging of bore holes and purchase of 5 ambulances.
41. According to the appellant, the High Court in the 8 impugned judgment has totally misdirected itself by misconstruing the ratio laid down in a catena of cases pronounced by this Court. The other material questions of general importance arising in the petition for determination by c this court are whether amenities or facilities provided in general and not in particular by a candidate or his agent or by any other person with the consent of the candidate, is a corrupt practice -t or a bribery or a gratification within the meaning of section 100 (1)(b) read with section 123 (1) of the 1951 Act. According to the appellant, the re~pondent did not furnish affidavit in Form 25 as required under Rule 94A of the Conduct of Election Rules, 1961 and in terms of proviso to Section 83 of the Act, is fatal to the maintainability of an election petition on the ground of corrupt practices.
42. According to the appellant, the respondent failed to plead the fact which constitutes an offence under section 100 of the Act and the appeal deserves to be allowed and the election petition deserves to be dismissed.
43. The short question which falls for adjudication in this case is whether the election petition is liable to be dismissed because of lack of material facts. This controversy is no long res integra. More than a century ago, in Phillips v. Phillips, (1878) 4 QBD 127: 48 LJ QB 135, Cotton, L.J. stated: "What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the -4 defendants, should state those facts which will put the defendants on their guard and tell them what they have to t- meet when the case comes on for trial."
44. In Bruce v. Odhams Press Ltd. (1936) 1 KB 697: (1936) 1 All ER 287 (CA), Scott, L.J. referring to Phillips' case (supra) observed: "The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' c in the old phraseology, and in the new is liable to be 'struck out' under R.S.C. Order 25 Rule 4 (see Phillips v. Phillips); or 'a further and better statement of claim' may be ordered under Rule 7." 1-
45. In Halsbury's Laws of England (4th Edn.), Vol. 36, para 38, it has been stated: Ji "38. The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, Jt.- namely, either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. Each party is entitled to know the case that is intended to be made against him at the trial, and to have such particulars of his opponent's case as will prevent him from being taken by surprise. Particulars enable the other party to decide what evidence he ought to be prepared with and to prepare for the trial. A party is bound by the facts included in the particulars, and he may not rely on any other facts at the -J ' trial without obtaining the leave of the court."
46. When we revert to the Indian cases, we find that our courts have accepted the principle laid down by the English ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 31 SHIGAONKA~ [DALVEER BHANDARI, J.] )-_ cases. We would like to refer to some of them.
47. In Manubhai Nand/al Amorsey v. Popat/al Manila/ Joshi & Others (1969) 1 SCC 372, this Court observed as under: "5. The first question is whether the trial judge should have B allowed the amendment. Section 83(1)(b) provides that "An election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have commit such corrupt practice and the date and c place of the commission of each such practice". The section is mandatory …………….. " …\
48. In Samant N. Balkrishna & Another v. George Fernandez & Others (1969) 3 SCC 238, this Court observed D as under: "37. From our examination of all the cases that were cited before us we are satisfied that an election petition must set out a ground or charge. In other words, the kind of corrupt practice which was perpetrated together with material facts on which a charge can be made out must be stated. It is obvious that merely repeating the words of the statute does not amount to a proper statement of facts and the section requires that material facts of F …….. corrupt practices must be stated. If the material facts of the corrupt practice are stated more or better particulars of the charge may be given later, but where the material facts them-selves are missing it is impossible to think that the charge has G been made or can be later amplified. This is tantamount to the making of a fresh petition."
49. In Hardwari Lal v. Kanwal Singh (1972)1 SCC 214, a · three judge Bench of this Court observed as under: 1– "22 …………. The gravamen of the charge of corrupt practice within the meaning of Section 123(7) of the Act is obtaining or procuring or abetting or attemp.ting to t- obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action."
50. The question of materials facts in the election petition c was comprehensively dealt with by this Court in Azhar Hussain's case (supra). The court observed that it is not disputed that the Code of Civil Procedure applies to the trial of an election petition by virtue of section 87 of the Representation of the People Act, 1950. Section 87(1) and —– section 87(2) of the Act apply to the election petition. Section 87(1) of the Act reads as under: "87. Procedure before the High Court – (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, >— 1908 (5 of 1908) to the trial of the suits ; Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness. or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. (2) xxx xxx -xxx'' -f
51. In this view of the matter, the court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11 (a) of the Code. These ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI SHIGAONKAR [DALVEER BHANDARI, J.] provisions are set out as under: "Order 6, Rule 16: Striking out pleadings.- The court may at any stage of the proceedings order to be struck out or amend any matter in any pleading- ( a) which may be unnecessary, scandalous, frivolous B or vexatious; or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or (c) which is otherwise an abuse of the proc,ess of the court. Order 7, Rule 11 (a): Rejection of plaint.- The plaint shall be rejected in the following cases- (a) where it does not disclose a cause of action; xxx xxx xxx xxx xxx xxx"
52. The position is well settled that an election petition can a 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.
53. This Court in Samant N. Balkrishna's case (supra) has expressed itself in no uncertain terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all.
54. In Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC 511, the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the B ingredients of the particular corrupt practice alleged by the . petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or • not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case~ c All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)( a). An election petition therefore can be and must be dismissed if it suffers from any such vice. 0 The first ground of challenge must therefore fail.
55. In V. Narayanaswamy v. C.P. Thirunavukkarasu (2000) 2 SCC 294, this Court reiterated the legal position that an election petition is liable to be dismissed if it lacks in material facts.
56. In L.R. Shivaramagowda & Others v. T.M. Chandrashekar (dead) by LRs & Others (1999) 1 SCC 666, this Court again considered the importance of pleadings in an election petition alleging corrupt practice falling within the scope F of Section 123 of the Act and observed as under: "11. This Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, ·the absence of material particulars can be cured at a later stage by an appropriate amendment. ….. " ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 35 SHIGAONKAR [DALVEER BHANDARI, J.]
57. In Udhav Singh's case (supra), this Court observed as under: "41. Like the Code of Civil Procedure, this section also envisages a distinction between "material facts" and "material particulars". Clause (a) of sub-section (1) corresponds to Order 6, Rule 2, while clause (b) is analogous to Order 6, Rules 4 and 6 of the Code. The ..:,- distinction between "material facts" and "material particulars" is important because different consequences may flow from a deficiency of such facts or particulars in c the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete r.._ allegations of such a charge are liable to be stuck off under Order 6, Rule 16, Code of Civil Procedure. If the petition — is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily D rejected for want of cause of action. In the case of a petition suffering from a deficiency of material particulars the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation."
58. In H.D. Revanna's case (supra), the appeal was filed by the candidate who had succeeded in the election and whose application for dismissal of the election petition in limine was rejected by the High Court. This Court noticed that it has been laid down by this Court that non-compliance with the provisions F 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.
59. In Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi & Others (2005) 5 SCC 46, this Court observed thus: "14. Nec~ssary averment of facts constituting an appeal on the ground of "his religion" to vote or to refrain from voting would be material facts within the meaning of t-1 clause (a) of sub-section (1) of Section 83 of the Act. If such material facts are missing, they cannot be supplied later on, after the expiry of period of limitation for filing the election petition and the plea being deficient, can be directed to be struck down under Order 6 Rule 16 of the Code of Civil Procedure, 1908 and if such plea be the sole ground of filing an election petition, the petition itself can be rejected as not disclosing a cause of action under clause (a) of Rule 11 Order 7 of the Code." i-" c
60. In Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511, this Court again reiterated the distinction between 'material facts' and 'material particulars' and observed as _) under: "51. 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. 52. All "material facts" must be pleadetf 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." ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI SHIGAONKAR [DALVEER BHANDARI, J.] 61. In Sudarsha Avasthi v. Shiv Pal Singh (2008) 7 SCC A 604, this Court observed as under: "20. The election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses this as a handle for vexatious purpose …………… n 4' 62. It is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet C with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. 63. The election petition must contain a concise statement D of "material facts" on which the petitioner relies. There is no definition of "material facts" either in the Representation of Peoples 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 E 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. 64. This court in Harkirat Singh's case (supra) tried to give various meanings of "material facts". The relevant paragraph 48 of the said judgment is reproduced as under:- "The expression 'material facts' has neither been defined G in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus, (Third Edn.); p.349]. The phrase 'material –1 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 plaintiffs 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 c existence 9f a cause of action or defence are material facts and must be stated in the pleading by the party." 65. In the context of a charge of corrupt practice, "tnaterial facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner D (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. 66. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention F . such an important averment in the petition is fatal for ttie election-petitioner (respondent herein) and the election petition is liable to be summarily dismissed on that ground. 67. The legal position has been crystallized 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. ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI SHIGAONKAR [DALVEER BHANDARI, J.] 68. When we apply the aforementioned test to the election petition in this case, then the conclusion becomes irresistible that the election petition lacks the materials facts. The election petition read as a whole does not disclose any cause of action. Considering the facts and circumstances of this case and principles applicable to the election petition, this appeal a deserves to be allowed and we accordingly allow this appeal. Consequently, the election petition stands dismissed. 69. In the facts and circumstances of this case, we direct the parties to bear their own costs. c G.N. Appeal allowed.