Sri Modugala Venugopala Reddy vs Jayadev Galla
2023 Latest Caselaw 933 AP

            HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                             I.A.No.3 of 2021
                                    in
                             E.P.No.2 of 2019

ORDER:

The applicant herein (hereinafter referred to as the applicant) had

been elected as a member of parliament from 13 Guntur Parliamentary

Constituency in the general elections held on 11.04.2019. The applicant

had been declared as the elected candidate on account of having polled

4205 votes more than the petitioner in E.P.No.2 of 2019 (hereinafter

referred to as the respondent).

2. The respondent, being aggrieved by the said result, had filed

E.P.No.2 of 2019 for the following reliefs:

A. Declare the election of respondent No.1 as Member of Parliament from No.13 Guntur Parliament Constituency, as null and void;

B. Pass an order for summoning all 9,782 postal ballot papers including ETPBS in No.13 Guntur Parliament Constituency and to declare the result after counting them;

C. Pass an order for recounting of the votes in No.13 Guntur Parliament Constituency and to declare the result after counting them;

D. Award costs of the election petition;

E. Pass such other order or direction which the Hon'ble Court may deem fit and proper in the facts of the case.

                                       2                                RRR,J
                                                            E.P.No.2 of 2019

3. The grounds raised by the respondent, in the election

petition, can be summarized as follows:

Ground No.1:

a) 16977 postal ballots have been issued. 15084 votes had been

cast by way of postal ballots. However, only 5317 of these postal ballots

were treated as valid votes and counted. 9782 postal ballots were

declared as invalid on the ground that Form-13-B cover did not contain

the serial number of the ballot.

b) The respondent contends that invalidating these votes is

contrary to the directions of the Election Commission of India and more

specifically, the Circular bearing No.52/ECI/LET/FUNL/GUD/SDR/2016,

dated 04.10.2016, which require the staff of the returning officer to fill up

the serial number of the ballot paper on the Form-13-B cover, before

sending the postal ballot to the elector.

c) In view of this violation, 9782 postal ballots which have been

invalidated should be treated as valid votes and counted.

Ground No.2:

a) The returning officer had initially sought to use the services of

4252 teachers in private educational institutions on the date of the polling.

However, the Chief Election Commissioner, by a Memo dated 02.04.2019,

had directed the returning officer to remove all the private school teachers

from election duty in Guntur District. The returning officer and the District 3 RRR,J E.P.No.2 of 2019

Election Officer, who are arrayed as respondents 19 and 20, in the

Election Petition, did not act upon the same till 08.04.2019. It was only on

09.04.2019 that these private employees were replaced by 1763

Government employees.

b) By then these 4252 private employees had been issued postal

ballots and had cast their votes on 05.04.2019 and 06.04.2019 at the

facilitation centers set up for that purpose and some of them had also

dispatched the postal ballots through post despite the issuance of circular

on 02.04.2019. Thereafter, these persons had also exercised their

franchise in the polling booths on the date of polling on 11.04.2019.

c) In the normal course, the Returning Officer is to make an

endorsement in the electoral Rolls, against the names of those electors,

who have been issued postal ballots, and the said voter list containing the

endorsement is to be forwarded to the polling officers of the said

constituency. This would enable the polling officers to ensure that electors

who had been given postal ballots do not vote again, in the polling booths.

However, this exercise was not undertaken by the Returning Officer due

to which 4252 private employees were able to exercise their vote in their

respective constituencies by way of double voting. The petitioner contends

that these facts can be easily verified by inspecting the Form-17A register

maintained at all the polling centres in Guntur Parliamentary Constituency.

However, the request made by the petitioner under the R.T.I Act for such

a verification, was declined on the ground that Rule 93 of the Election 4 RRR,J E.P.No.2 of 2019

Rules stipulate that the packets containing these covers shall not be

opened and shall not be inspected or produced except under the order of

a competent Court.

d) The petitioner contends that double voting by the private

employees has vitiated the entire election.

Ground No.3:

As mentioned above, 1763 government employees were appointed

as polling staff on 09.04.2019 for the polling that was to be held on

11.04.2019. In view of the paucity of time, the said Government

employees were not given postal ballots nor were they in a position to

exercise their franchise by casting their votes in the respective polling

booths. Consequently, 1742 electors were restrained from exercising their

franchise and as such the entire process has been vitiated.

Ground No.4:

a) The number of persons, who have exercised their franchise in a

polling booth, is to be recorded in a form known as Form-17C. At the time

of the counting of votes, this form is verified against the number of votes

which are actually polled in the said polling centres. In the present case,

the said Forms were either manipulated or did not contain the actual

number of votes recorded in the said polling stations. An example would

be the Forms filed in respect of polling station 102 and polling station 103.

A comparison of these two forms would show that the Form-17C used in 5 RRR,J E.P.No.2 of 2019

respect of polling station No.102 was used as the Form for polling station

No.103 also. This can be seen by the correction/alterations made in the

number of votes etc., in Form-17C filed for polling station No.103. Further,

the petitioner had filed these Forms in respect of all the seven assembly

constituencies forming part of Guntur Parliamentary constituency. Form-

17C in various constituencies had not been filled up in toto and in many

cases do not contain signatures of the presiding officers or the signatures

of polling agents, which would vitiate the entire polling process.

b) The applicant has now filed an application under Order VII Rule

11 for rejecting the election petition on the ground that no cause of action

of any nature had been made out in the election petition.

4. The contentions raised in this regard, both in the application

as well as the contentions of Sri B. Adinarayana Rao, learned Senior

Counsel appearing for Sri Balaji Medamilli, learned counsel for the

applicant, are as follows:

Ground No.1:

a) Three covers are given along with the postal ballot paper to

the elector. These covers are called Form 12-A, 13-B and 13-C. Form-13A

cover is to be used for sending a declaration stating that the elector, who

is casting the postal ballot, had received the said postal ballet and was

exercising his franchise to his satisfaction. The actual postal ballot is to be

placed in the Form-13B cover after recording, on the cover, the serial 6 RRR,J E.P.No.2 of 2019

number of the ballot paper contained in Form-13B cover. Both these

covers are to be placed in Form-13C cover and forwarded to the Returning

Officer of the constituency.

b) The returning officer / counting staff are to open Form-13B

cover and compare the number of the ballot paper with the number

written on the cover. If there is a discrepancy between the number on the

ballot paper and the number written on the Form-13B cover, the said

postal ballot would be treated as an invalid vote,. If no number is written

on the cover of the Form 13-B, the said Ballot would also be treated as an

invalid vote and the cover would not be opened.

c) The instructions in the circular relied upon by the respondent

itself shows that Form-13B postal covers which do not have the ballot

number on the cover are to be rejected as invalid votes.

d) In the circumstances, the contention of the petitioner that mere

absence of ballot number on Form-13B cover, would not invalidate the

vote is clearly wrong. Further the instructions given by the Election

Commission in the circular, relied upon by the respondent does not, in any

manner, detract from the requirement of law under Rule 54 of the Election

Rules which stipulate that serial number of the ballot has to be written on

Form-13B cover.

e) In the circumstances, the lack of the ballot paper number on

the Form-13B cover is sufficient for rejecting the said postal ballot and 7 RRR,J E.P.No.2 of 2019

the circular does not validate the said votes. Secondly, this contention of

the respondent does not, in any manner, raise a cause of action in favour

of the respondent.

Ground No.2:

a) The said ground is not made out and no cause of action arises

under the said ground as specific particulars, such as material allegations

and material particulars, are lacking in relation to this ground. No details

of the voters, who are said to have exercised their franchise twice, have

been given. In the circumstances, no roving enquiry can be undertaken in

the election petition and as such no case is made out, on the basis of the

allegations in the election petition.

b) Section 83 of the Representation of the People, 1951 (for short

'the Act') itself stipulates that there has to be a concise statement of all

the relevant and material facts. As the material particulars relating to the

persons, out of the aforesaid 4252 electors, who had exercised their

franchise twice, has not been set out, no cause of action arises for

consideration before this Court.

Ground No.3:

The allegations under this ground are also vague as no details are

given as to the electors, who are unable to exercise their franchise on

account of being deployed for election duty. The Election Rules

themselves allow the polling officers to vote if they are in the same 8 RRR,J E.P.No.2 of 2019

constituency. There are no details as to the constituency in which the

electoral staff would be exercising their franchise nor any details as to the

electoral staff who were not within the Guntur Parliamentary Constituency

and who could not vote on account of being stationed at a different place

due to election duty. In the absence of these averments, no cause of

action would arise and consequently, the plaint would have to be rejected.

Ground No.4:

The alleged defects in recording the number of votes polled in the

Form 17C returns do not make out any case for the respondent as no

relief of discarding any votes or including any discarded votes have been

sought. Further, the allegations in the petition do not state as to how such

alleged mistakes/defects in the filling up of the form 17Cs would materially

affect the outcome of the election.

5. Sri E.V.V.S. Ravi Kumar, learned counsel appearing for the

respondent would reply in the following manner:

"The case of the applicant appears to be that the respondent would

not be able to prove the averments / allegations in the election petition.

Such a contention is not sufficient for rejection of the election petition

under Order VII Rule 11 C.P.C. The only issue before the Court, in an

application under Order VII Rule 11 C.P.C., is whether a cause of action is

shown in the pleadings."

                                     9                               RRR,J
                                                         E.P.No.2 of 2019

6. In reply to the issues raised on the aforesaid four grounds,

Sri E.V.V.S. Ravi Kumar contended as follows:

Ground No.1:

The instructions given in the handbook are not directions but are

instructions given to supplement gaps in the Rules and the Statute. Rule-

54A stipulates rejection of postal ballots in the event of discrepancy

between the numbers on the ballot cover and the ballot paper. This Rule

would not apply when the Form-13B cover does not contain the ballot

number. In any event this is a matter for trial and argument before it can

be decided.

Ground No.2:

a) The petitioner has placed the list of private employees who

had initially been assigned election duties and subsequently removed from

such election duty. The respondent, after placing this list along with the

election petition, before this Court, had contended that these persons had

exercised their franchise and such double voting, would materially affect

the outcome of the election. Such a statement is sufficient to make out a

cause of action. The question, whether the respondent is able to make

good his contention, is a matter for trial and the said question cannot be

considered while considering an application for rejection of the election

petition.

                                        10                             RRR,J
                                                           E.P.No.2 of 2019


         b)     Sri E.V.V.S. Ravi Kumar has relied upon the judgment of the

Hon'ble Supreme Court in Ashraf Kokkur vs. K.V. Abdul Khader and

Ors.,1 (paras 15 to 18).

Ground No.3:

The appointment of 1763 public servants as election staff on

09.04.2019, for polling on 11.04.2019, itself is sufficient to show that

there was no time for postal ballots to be issued to these employees or for

these employees to exercise their franchise through such postal ballots.

The attempt of the petitioner to obtain necessary details and material for

making good this averment was unsuccessful on account of the stand of

the Election Commission that such information cannot be given except by

way of an order of the Court. Necessary information and documents would

be obtained by making necessary applications before this Court, at the

time of trial. The allegation that there are no averments in this regard,

setting out the material particulars, cannot be accepted as the said

material particulars would be revealed only upon the necessary documents

being placed before this Court.

Ground No.4:

a) The manipulation of Form-17C, which is clearly demonstrated

on the basis of the forms for polling stations 102 and 103 would be

sufficient to make out a case of improper reception/ counting of votes.

    (2015) 1 SCC 129
                                              11                                    RRR,J
                                                                      E.P.No.2 of 2019

Further, the remaining Form-17Cs for all the polling stations of the Guntur

Parliamentary Constituency, have already been filed before this Court and

the same would be sufficient to make out a case of improper

reception/counting of votes which materially vitiates the entire election

process.

b) Sri E.V.V.S. Ravi Kumar relies upon the judgments of the

Hon'ble Supreme Court in Madiraju Venkata Ramana Raju vs.

Peddireddigari Ramachandra Reddy and Ors.,2 for this proposition.

Consideration of the Court:

7. An election, conducted under the provisions of The

Representation of People Act, 1951, (hereinafter referred to as the Act)

can be questioned by way of an Election Petition filed under Section 80 of

the Act, on the grounds, which are enumerated under Sections 100 and

101 of the Act.

8. The grounds in Section 100 read as follows:

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) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act 9[or the Government of Union Territories Act, 1963 (20 of 1963)]; or

(2018) 14 SCC 1 12 RRR,J E.P.No.2 of 2019

(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) that any nomination has been improperly rejected; or

(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 1[by an agent other than his election agent], or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(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.

(2) ................

9. The contents of the petition required in an appropriately

constituted election petition, are set out in section 83 of the Act, which

reads as follows:

83. Contents of petition.--(1) An election petition--

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) 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 13 RRR,J E.P.No.2 of 2019

committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the 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.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

10. The present application, has been filed under the provisions

of Order VII Rule 11 of the Code of Civil Procedure, for rejection of plaint,

on the ground that the pleadings in the election petition do not make out

any cause of action. The guidelines for considering such applications, as

laid down by the Hon'ble Supreme Court Ashraf Kokkur v. K.V. Abdul

Khader (1 supra) in the following passages, need to be noticed before

taking up the application:

22. After all, the inquiry under Order 7 Rule 11(a) CPC is only as to whether the facts as pleaded disclose a cause of action and not complete cause of action. The limited inquiry is only to see whether the petition should be thrown out at the threshold. In an election petition, the requirement under Section 83 of the RP Act is to provide a precise and concise statement of material facts. The expression "material facts"

plainly means facts pertaining to the subject-matter and which are relied on by the election petitioner. If the party 14 RRR,J E.P.No.2 of 2019

does not prove those facts, he fails at the trial [see Philipps v. Philipps [(1878) LR 4 QBD 127 (CA)] (QBD p.

133); Mohan Rawale v. Damodar Tatyaba [(1994) 2 SCC 392] (SCC p. 399, para 16)].

23. ........

24. In V.S. Achuthanandan v. P.J. Francis [(1999) 3 SCC 737] , a three-Judge Bench of this Court has taken the view that only because full particulars are not given, an election petitioner is not to be thrown out at the threshold. To quote para 15: (SCC p. 747)

"15. ... An election petition was not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out. It is, therefore, evident that material facts are such primary facts which must be proved at the trial by a party to establish existence of a cause of action. Whether in an election petition a particular fact is a material fact or not, and as such, required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon, and in the light of the special circumstances of the case."

Again at para 16 of V.S. Achuthanandan case [(1999) 3 SCC 737] , it was held that: (SCC p. 748)

"16. ... 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."

(emphasis supplied) 15 RRR,J E.P.No.2 of 2019

25. ........

26. ......

27. In Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC 100] , this Court at para 12 held that: (SCC p. 115)

"12. ... 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 7 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, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint."

11. In Madiraju Venkata Ramana Raju v. Peddireddigari

Ramachandra Reddy, (2 supra) the Hon'ble Supreme Court has held as

follows:

38. It is well settled that the election petition will have to be read as a whole and cannot be dissected sentence-wise or paragraph-wise to rule that the same does not disclose a cause of action. Cause of action embodies a bundle of facts which may be necessary for the plaintiffs to prove in order to 16 RRR,J E.P.No.2 of 2019

get a relief from the Court. The reliefs claimed by the appellant are founded on grounds inter alia ascribable to Section 100(1)(d)(i). Further relief has been claimed to declare the appellant as having been elected under Section 101 of the 1951 Act. The cause of action for filing the election petition, therefore, was perceptibly in reference to the material facts depicting that the nomination form of Respondent 1 was improperly accepted by the Returning Officer.

39. On reading the election petition as a whole, we have no hesitation in taking a view that the High Court misdirected itself in concluding that the election petition did not disclose any cause of action with or without Paras 2 and 9 to 11 of the election petition. Indeed, the pleadings of the election petition should be precise and clear containing all the necessary details and particulars as required by law. "Material facts" would mean all the basic facts constituting the ingredients of the grounds stated in the election petition in the context of relief to declare the election to be void. It is well established that in an election petition, whether a particular fact is material or not and as such required to be pleaded, is a question which depends on the nature of the grounds relied upon and the special circumstances of the case. Particulars, on the other hand, are the details of the case set up by the party. The distinction between "material facts" and "full particulars" has been delineated in Mohan Rawale v. Damodar Tatyaba [Mohan Rawale v. Damodar Tatyaba, (1994) 2 SCC 392] . This judgment has been adverted to in the reported decision relied on by the parties. The Court noted thus : (SCC pp. 397-99, paras 10-18)

"10. We may take up the last facet first. As Chitty, J. observed, "There is some difficulty in affixing a precise meaning to" the expression "discloses no reasonable cause 17 RRR,J E.P.No.2 of 2019

of action or defence". He said:"In point of law ... every cause of action is a reasonable one." (See Republic of Peru v. Peruvian Guano Co. [Republic of Peru v. Peruvian Guano Co., (1887) LR 36 Ch D 489] ) A reasonable cause of action is said to mean a cause of action with some chances of success when only the allegations in the pleading are considered. But 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 quite often more known than clearly understood. It does introduce another special demurrer in a new shape. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. The distinctions among the ideas of the "grounds" in Section 81(1); of "material facts" in Section 83(1)(a) and of "full particulars" in Section 83(1)(b) are obvious. The provisions of Section 83(1)(a) and

(b) are in the familiar pattern of Order 6 Rules 2 and 4 and Order 7 Rule 1(e) of the Code of Civil Procedure. There is a distinction amongst the "grounds" in Section 81(1); the "material facts" in Section 83(1)(a) and "full particulars" in Section 83(1)(b).

11. Referring to the importance of pleadings a learned author says:

'Pleadings do not only define the issues between the parties for the final decision of the court at the trial, they manifest and exert their importance throughout the whole process of the litigation. ... They show on their face whether a reasonable cause of action or defence is disclosed. They provide a guide for the proper mode of trial and particularly for the trial of preliminary issues of law or fact. They 18 RRR,J E.P.No.2 of 2019

demonstrate upon which party the burden of proof lies, and who has the right to open the case. They act as a measure for comparing the evidence of a party with the case which he has pleaded. They determine the range of the admissible evidence which the parties should be prepared to adduce at the trial. They delimit the relief which the court can award. ...'

[See : Jacob:"The Present Importance of Pleadings" (1960) Current Legal Problems, at pp. 175-76.]

12. Further, the distinction between "material facts" and "full particulars" is one of degree. The lines of distinction are not sharp. "Material facts" are those which a party relies upon and which, if he does not prove, he fails at the time.

13. In Bruce v. Odhams Press Ltd. [Bruce v. Odhams Press Ltd., (1936) 1 KB 697 : (1936) 1 All ER 287 (CA)] Scott L.J. said:"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." The purpose of "material particulars" is in the context of the need to give the opponent sufficient details of the charge set up against him and to give him a reasonable opportunity.

14. Halsbury refers to the function of particulars thus:

'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, 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.'

(See : Pleadings Vol. 36, para 38) 19 RRR,J E.P.No.2 of 2019

15. In Bullen and Leake and Jacob's "Precedents of Pleadings" 1975 Edn. at p. 112 it is stated:

'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 save costs. The object of particulars is to "open up" the case of the opposite party and to compel him to reveal as much as possible what is going to be proved at the trial, whereas, as Cotton L.J. has said [Spedding v. Fitzpatrick, (1888) LR 38 Ch D 410 (CA)] , 'the old system of pleading at common law was to conceal as much as possible what was going to be proved at the trial'.'

16. The distinction between "material facts" and "particulars" which together constitute the facts to be proved

-- or the facta probanda -- on the one hand and the evidence by which those facts are to be proved -- facta probantia -- on the other must be kept clearly distinguished. In Philipps v. Philipps [Philipps v. Philipps, (1878) LR 4 QBD 127 at p. 133 (CA)] , Brett, L.J. said:

'I will not say that it is easy to express in words what are the facts which must be stated and what matters need not be stated. ... The distinction is taken in the very rule itself, between the facts on which the party relies and the evidence to prove those facts. Erle, C.J. expressed it in this way. He said that there were facts that might be called the allegata probanda, the facts which ought to be proved, and they were different from the evidence which was adduced to prove those facts. And it was upon the expression of opinion of Erle, C.J. that Rule 4 [now Rule 7(1)] was drawn. The facts which ought to be stated are the material facts on which the party pleading relies.' 20 RRR,J E.P.No.2 of 2019

17. Lord Denman, C.J.

in Williams v. Wilcox [Williams v. Wilcox, (1838) 8 Ad & El 314 : 112 ER 857] said:

'It is an elementary rule in pleading that, when a state of facts is relied it is enough to allege it simply, without setting out the subordinate facts which are the means of proving it, or the evidence sustaining the allegations.'

18. An election petition can be rejected under Order 7 Rule 11(a) CPC if it does not disclose a cause of action. Pleadings could also be struck out under Order 6 Rule 16, inter alia, if they are scandalous, frivolous or vexatious. The latter two expressions meant cases where the pleadings are obviously frivolous and vexatious or obviously unsustainable."

(emphasis supplied)

12. In the present case, the respondent has approached this

Court under Section 100(1)(d)(iii) of the Act. This requires the petitioner

to allege that there was an improper reception/refusal/rejection of any

vote or the reception of any vote which is void and such reception, refusal

or rejection had resulted in materially affecting the result of the election.

The petitioner would have to set out the allegations about the improper

reception or rejection of votes and the manner in which such reception or

rejection had affected the election. Section 83 requires the Election

Petition to contain a concise statement of the material facts.

13. It is the contention of the applicant that necessary material

facts have not been set out for making out any of the four grounds of 21 RRR,J E.P.No.2 of 2019

challenge raised in the election petition. The petitioner would also contend

that material particulars are necessary for making out a cause of action in

relation to the four grounds set out in the election petition. As no such

particulars have been set out, the present election petition would have to

be dismissed.

14. The Hon'ble Supreme Court while considering the question

of the requirement of material particulars and material facts in an election

petition had held in Harkirat Singh v. Amrinder Singh3, as follows:

47. 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.

48. The expression "material facts" has neither

been defined in the Act nor in the Code. According to

the dictionary meaning, "material" means

"fundamental", "vital", "basic", "cardinal", "central",

"crucial", "decisive", "essential", "pivotal",

"indispensable", "elementary" or "primary". [Burton's

Legal Thesaurus (3rd Edn.), p. 349.] The phrase

"material facts", therefore, may be said to be those

facts upon which a party relies for its claim or

(2005) 13 SCC 511 : 2005 SCC OnLine SC 1770 at page 526 22 RRR,J E.P.No.2 of 2019

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.

49. In the leading case

of Philipps v. Philipps [(1878) 4 QBD 127 : 48 LJQB 135

: (1874-80) All ER Rep Ext 1684 (CA)] 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."

50. In Bruce v. Odhams Press Ltd. [(1936) 1 KB 697 :

(1936) 1 All ER 287 (CA)] Scott, L.J. referring

to Philipps v. Philipps [(1878) 4 QBD 127 : 48 LJQB 135

: (1874-80) All ER Rep Ext 1684 (CA)] observed: (All ER

p. 294) 23 RRR,J E.P.No.2 of 2019

"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 [(1878) 4 QBD

127 : 48 LJQB 135 : (1874-80) All ER Rep Ext 1684 (CA)]

); or 'a further and better statement of claim' may be

ordered under Rule 7."

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 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 24 RRR,J E.P.No.2 of 2019

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.

53. In Halsbury's Laws of England (4th Edn.), Vol.

36, para 38, it has been stated:

"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, 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 trial without obtaining

the leave of the court."

                          25                                RRR,J
                                               E.P.No.2 of 2019


   53, 54, 55 and 56..................

   57. In Samant         N.        Balkrishna v. George

Fernandez [(1969) 3 SCC 238 : AIR 1969 SC 1201] the

Court again considered a similar question. Referring

to the relevant provisions of the Act, the Court held

that Section 83 which provides that the election

petition must contain a concise statement of

material facts on which the petitioner relies and

further that he must also set forth the 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 committed such

corrupt practice and the date and place of the

commission of each such practice is mandatory.

Then, drawing the distinction between "material

facts" and "particulars", the Court observed: (SCC pp.

250-51, para 29)

"What is the difference between material facts

and particulars? The word 'material' shows that the

facts necessary to formulate a complete cause of

action must be stated. Omission of a single material

fact leads to an incomplete cause of action and the

statement of claim becomes bad. The function of

particulars 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. There may be some overlapping 26 RRR,J E.P.No.2 of 2019

between material facts and particulars but the two

are quite distinct. Thus the material facts will

mention that a statement of fact (which must be set

out) was made and it must be alleged that it refers to

the character and conduct of the candidate that it is

false or which the returned candidate believes to be

false or does not believe to be true and that it is

calculated to prejudice the chances of the petitioner.

In the particulars the name of the person making the

statement, with the date, time and place will be

mentioned. The material facts thus 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. In stating the material facts it will not do

merely to quote the words of the section because

then the efficacy of the words 'material facts' will be

lost. The fact which constitutes the corrupt practice

must be stated and the fact must be correlated to

one of the heads of corrupt practice. Just as a plaint

without disclosing a proper cause of action cannot

be said to be a good plaint, so also 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 making of a false statement. That 27 RRR,J E.P.No.2 of 2019

statement must appear and the particulars must be

full as to the person making the statement and the

necessary information."

15. The Hon'ble Supreme Court had pointed out that material

facts are necessary in all the election petitions. However, full particulars

are required only where an election is challenged on the ground of corrupt

practices by the returned candidate. The Hon'ble Supreme Court went on

to hold that the question of material particulars or full particulars arise

only where corrupt practices are alleged and that material facts are

sufficient for all other challenges to an election.

16. It is the case of the applicant that Ground No.1 raised by the

respondent cannot be made out by the respondent as the said election is

incorrect and can be demonstrated by reference to the circulars relied

upon by the respondent, and by the provisions of the Act, and the Election

Rules made under the Act. The objection, of the applicant, to ground No.1

raised by the Respondent, in the election petition, is to the tenability of

that ground.

17. An application under Order VII Rule 11 C.P.C., is to be

considered strictly in terms of the pleadings in the plaint/election petition

only. The hon'ble Supreme Court had taken the view, in the judgements

cited above, that the defenses of the respondent in an election petition

cannot be looked into while dealing with an application under Order VII

Rule 11 C.P.C. In such circumstances, this Court cannot look into the 28 RRR,J E.P.No.2 of 2019

defenses raised by the applicant, however well founded the said defenses

may be or not.

18. The necessary facts that 9782 postal ballots had been

rejected on untenable grounds have been pleaded. The question of

whether such pleadings are tenable or not and whether the defence

mounted by the applicant would demonstrate the untenability of this

ground is outside the scope of an application under Order VII rule 11 of

C.P.C. Consequently, the contention of the applicant, that Ground No.1

does not reveal a cause of action, cannot be accepted.

19. The application under Order VII Rule 11 C.P.C., is for

rejection of the entire plaint. The provisions of Order VII Rule 11 C.P.C.,

require this court to see whether a cause of action is made out on a

reading of the whole petition. It would not be permissible for this court to

reject a plaint or petition on the ground that no cause of action is made

out in some pleadings. This would mean that the relief that can be

granted under this application is either for rejection of the entire plaint or

rejection of the plaint against certain defendants, where no cause of

action can be shown against such defendants. Either way, a Court acting

under Order VII Rule 11 C.P.C., would be rejecting the plaint in toto and

cannot reject a part of the plaint. In view of the fact that Ground No.1

makes out a cause of action, the question of whether cause of action

arises under the other three grounds raised by the respondent, would be

an academic question.

                                     29                              RRR,J
                                                          E.P.No.2 of 2019

20. In the circumstances, this application is dismissed.

_________________________ R. RAGHUNANDAN RAO, J.

16th February, 2023 Js.

                          30                      RRR,J
                                       E.P.No.2 of 2019


      HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




                  I.A.No.3 of 2021
                      And / in
                  E.P.No.2 of 2019




                16th February, 2022
Js.