RAM SUKH versus DINESH AGGARWAL

9. From the afore-quoted provisions, it would appear that Section 81 enables a petitioner to c~ll in question any election on one or more of the grounds specified in sub-section (1) of D Section 100 of the Act. Section 83, the pivotal provisi0n for the present case, requires that: (a) the election petition must contain a concise statement of "material facts" on which petitioner relies and (b) he should also set forth "full particulars" of any corrupt practices which the petitioner alleges. Proviso E to clause (c) of sub-section (1) of Section 83 also provides that where the petitioner alleges any corrupt practice, the election petition shall also be accompanied by an affidavit in the . prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It is plain that the –1, requirement of disclosure of "material facts" and "full particula~;, as stipulated in the Section is mandatory. Section 86 mandates that where the election petition does not comply with the provisions of Section 81 or $ection 82 or Section 117 of the Act, the High Court should dismiss the election petition. Section G 87 which lays down the procedure required to be followed by the High Court while trying an election petition, requires that every election petition shall be tried, as nearly as may be, in accordance with the procedure applicable under the Code to the trial of the suits, subject of course to the provisions of the Act and of any requirement made thereunder. RAM SUKH v. DINESH AGGARWAL [D.K. JAIN, J.] 1'

10. It is evident that controversy in this appeal lies in a narrow compass. It revolves around the ambit of Section 83 of the Act. The point for consideration is whether the election petition lacked "material facts" required to be stated in the election petition in terms of Section 83(1) of the Act and if so, could it be dismissed summarily without trial?

11. As already noted, it is mandatory that all "material facts" are set out in an election petition and it is also trite that if material facts are not stated in the petition, the same is liable to be dismissed on that ground alone. Therefore, the question c is as to whether the election petitioner had set out "material facts" in his petition?

12. The phrase "material facts" has neither been defined in the Act nor in the Code and, therefore, it has been understood by the courts in general terms to mean the entire D bundle of facts which would constitute a complete cause of action. In other words, "material facts" are facts upon which the plaintiffs cause of action or defendant's defence depends. (See: Mahadeorao Sukaji Shivankar vs. Ramaratan Bapu & Ors. 3). Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are "material facts". Material facts are facts which, if established, would give the petitioner the relief asked for. But again, what could be said to be material facts would depend upon the facts of each case and no rule of F universal application can be laid down.

13. The requirement in an election petition as to the statement of material facts and the consequences of lack of such disclosure with reference to Sections 81, 83 and 86 of the Act came up for consideration before a three-Judge Bench of this Court in Samant N. Balkr/shna & Anr. vs. George Fernandez & Ors.4 Speaking for the three~Judge Bench, M. 3. (2004) 1 sec 1a1. 4. (19690 3 sec 238. A Hidayatullah, C.J., inter-alia, laid down that: (i) Section 83 of the Act is mandatory and requires first a concise statement of material facts and then the fullest possible particulars; (ii)· omission of even a single material fact leads to an incomplete cause of action and statement of claim becomes bad; (iii) the 8 function of particulars is to present in full a picture of the cause of action and to make the opposite party understand the case he will have to meet; (iv) material facts and particulars are distinct matters – material facts will mention statements of fact and particulars will set out the names of persons with date, time c and place and (v) 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:

14. At this juncture, in order to appreciate the real object and purport of the phrase "material facts", particularly with D reference to election law, it would be appropriate to notice distinction between the phrases "material facts" as appearing in clause (a) and "particulars" as appearing in clause (b) of sub- section (1) of Section 83. As stated above, "material facts" are primary or b~sic facts which have to be pleaded by the E petitioner to prove his cause of action and by the defendant to prove his defence. "Particulars", on th~ other hand, are details in support of the material facts, pleaded by the parties. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture aiready drawn so as to F make it full, more clear and more informative. Unlike "material facts" which provide the basic foundation on which the entire edifice of the election petition is built, "particulars" are to be stated to ensure that opposite party is not taken by surprise.

15. The distinction between "material facts" and G "particulars" and their requirement in an election petition was succinctly brought out by. this Court in Virender Nath Gautam vs. Satpal Singh & Ors.5, wherein C.K. Thakker, J., stated thus: (SCC p.631, para 50) H s. c2001) 3 sec 617. RAM SUKH v. DINESH AGGARWAL [D.K. JAIN, J.] 853 "50. There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but c only relevant facts required to be proved at the trial in order to establish the fact in issue."

16. Now, before excimining the nval submissions in the light of the afore-stated legal position, it would be expedient to deal with another submission of learned counsel for the appellant that the High Court should not have exercised its power either under Order VI Rule 16 or Order VII Rule 11 of the Code to reject the election petition at the threshold. The argument is two- fold viz. (i) that even if the election petition was liable to be dismissed ultimately, it should have been dismissed only after affording an opportunity to the election petitioner to adduce evidence in support of his allegation in the petition and (ii) since Section 83 does not find a place in Section 86 of the Act, rejection of petition at the threshold would amount to reading into sub-section (1) of Section 86 an additional ground.

17. In our opinion, both the contentions are misconceived and untenable. Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order VI Rule 16 and Order VI I Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should "nt be pennitted to occupy the A judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the Electorate have B reposed confidence in him. The submission, therefore, must fail. Coming to the second limb of the argument viz., absence of Section 83 in Section 86 of the Act, which specifically provides for dismissal of an election petition which does not comply with certain provisions of the Act, in our view, the issue is no longer c res-integra. A similar plea was negatived by a three-Judge Bench of this Court in Hardwari Lal vs. Kanwal Singh6, wherein speaking for the Bench, AN. Ray, J. (as His Lordship then was) said: (SCC p.221, para 23) "23. Counsel on behalf of the respondent submitted that ari election petitlon could not be dismissed by reason of want of material facts because Section 85 of the Act conferred power on the High Court to dismiss the election petition which did no! ~omply with the provisions of Section 81, or. Section 82 or Section 117 of the Act. It was emphasised that Section 83 did not find place in Section – 86. Under Section 87 of the Act 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, 1 soa. to the trial cf suits. A suit which does not furnish cause of action can be dismissed."

18. The issue was again dealt with by this Court in Azhar Hussain vs. Rajiv Gandhi7. Referring to earlier · pronouncements of this C9urt in Samant N. Balkrishna (supra) and Udhav Singh vs. Madhav, Rao Scindia8 wherein it was ~ observed that the omission of a single material fact would lead to incomplete cause of action and that an election petition s. {1972) 1 sec 214. 7. 1986 (supp) sec 315. H s. {1977) 1 sec 511. RAM SUKH v. DINESH AGGARWAL [D.K. JAIN, J.] f without the material facts is not an election petition at all, the Bench held that all the facts which are essential to clothe the petition with complete cause bf action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate of Section 83(1 )(a) of the Act and an election petition can be and must be dismissed if it suffers from any such vice.

19. We may now advert to the facts at hand to examine whether the election petition suffered from the vice of non- disclosure of material facts as stipulated in Section 83(1)(a) of c the Act. As already stated the case of the election petitioner is confined to the alleged violation of Section 100(1)(d)(iv). For the sake of ready reference, the said provision is extracted below: "100. Grounds for declaring election to be void.-(1) Subject to the provisions of sub-section (2) if the High Court is of opinion- ***** (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- ***** (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, the High Court shall declare the election of the returned candidate to be void."

20. It is plain that in_ order to get an election declared as void under the said provision, the election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under – the Act, the result of the election, insofar as it concerned the returned candidate, was materially affected. As already stated, l A in the present case, the allegation of the election petitioner is that the Returning Officer failed to circulate the attested signatures of his election agent to various polling stations and, therefore, failed to comply with para 12 of Chapter VII of the Handbook for Returning Officers. The pleadings in the election B petition, in relation to grounds (i) ana (ii), extracted in para 2 above, were as under: "11. That due to aforesaid inaction of the Returning Officer the polling agent of the petitioner was not permitted to c function till 3.00 P.M. by which time more than 80% polling was over. This inaction on the part of Returning Officer materially affected the election as almost all other polling agents of the petitioner working in other polling stations got confused and supporters of the petitioner either returned back or voted for congress candidate. 12. That the Returning Officer was duty bound to send required Praroop of the petitioner and his agent's signature one day before the day of e.lection which he did not do. Due to his inaction of the Returning Officer the election of 13 Laxman Chowk Legislative Assembly Constituency was materially affected." 21. There is no quarrel with the proposition that the instructions contained in the Handbook for the Returning Officers are issued by the Election Commission in exercise of its statutory functions and are, therefore, binding on the Returning Officers. They are obliged to follow them in letter and spirit. But the question for consideration is whether the afore- extracted paragraphs of the election petition disclose material facts so as to constitute a complete cause of action. In other G words, the question is whether the alleged omission on the part of the Returning Officer ipso facto "materially affected" the election result. It goes without saying that the averments in the said two paragraphs are to be read in conjunction with the preceding paragraphs in the ele~tion petition. What is stated H in the preceding paragraphs, as can be noticed from grounds RAM SUKH v. DINESH AGGARWAL [D.K. JAIN, J.] (i) and (ii) reproduced above, is that by the time specimen signature of the polling agent were circulated 80% of the polling was over and because of the absence of the polling agent the voters got confused and voted in favour of the first respondent. In our opinion, to say the least, the pleading is vague and does not spell out as to how the election results were materially affected because of these two factors. These facts fall short of being "material facts" as contemplated in Section 83(1)(a) of the Act to constitute a complete cause of action in relation to allegation under Section 100(1)(d)(iv) of the Act. It is not the case of the election petitioner that in the absence of his election c agent there was some malpractice at the polling stations during the polling. It needs little reiteration that for purpose of Section 100( 1 )( d)(iv), it was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first respondent, was materially affected due to the said omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition. In our judgment, therefore, the Election Tribunal/High Court was justified in coming to the conclusion that statement of material facts in the election petition was completely lacking and the petitkm was liable to be rejected at the threshold on that ground. We have, therefore, no hesitation in upholding the view taken by the High Court. 22. Consequently, this appeal, being devoid of any merit, fails and is dismissed accordingly. Since the first respondent remained unrepresented, there will be no order as to costs. R.P. Appeal dismissed.