"36. The learned single Judge placed reliance on Charan Lal Sahu (11) (AIR 1975
SC 1288) (supra) and came to hold that Rule 79(2) in relation to the deposit of the
security along with the petition is mandatory and since on facts it is not in dispute
AIR 2018 SC 1298.
(emphasis supplied)
7-AEP-12766-2025
Basis the above, he submitted that since it was an admitted position that
the Petition when presented did not have the security for costs deposited
as required under Section 117(1) of the R.P. Act, the Petition was defective
and would have to be dismissed/rejected as such.
V. The security deposit was made by the Petitioner's Advocate, and not
by the Petitioner and hence the Petition was not in compliance with
Section 117(1) of the R.P. Act.
14. Mr. Karande also pointed out that the security for costs was not even
deposited by the Petitioner as mandated under Section 117(1) of the R.P.
the receipt dated 6th January 2025, which was in the name of the Petitioner's
advocate and not in the Petitioner's name. Mr. Karande thus submitted that
since the Petitioner had failed to comply with the mandatory provisions of
Section 117(1) of the R.P. Act, the Petition would have to be dismissed at
the threshold under the provisions of Section 86(1) of the R.P. Act.
15. Mr. Karande submitted that, apart from warranting dismissal under
Section 86(1) of the R.P. Act for the reasons set out in (I) to (V) above, the
Petition was also liable to be rejected under the provisions of Order VII
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Rule 11 of the CPC since the Election Petition did not disclose any cause
of action and was devoid of the necessary material facts. He then pointed
out that, since Section 87 of the R.P. Act provided that an Election Petition
is to be tried "as nearly as may be" in accordance with the provisions of the
with full force. He therefore submitted that if on a plain reading of an
compliance with the mandatory statutory provisions, of the R.P. Act, an
Court in the case of Karim Uddin Barbhuiya v. Aminul Haque Laskar
"12. At the outset, it may be noted that as per the well settled legal position, right to
contest election or to question the election by means of an Election Petition is neither
common law nor fundamental right. It is a statutory right governed by the statutory
provisions of the RP Act. Outside the statutory provisions, there is no right to dispute
an election. The RP Act is a complete and self-contained code within which any
rights claimed in relation to an election or an election dispute must be found. The
AIR 2024 SC 2193.
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7-AEP-12766-2025
provisions of Civil Procedure Code are applicable to the extent as permissible
under Section 87 of the RP Act.
13. It hardly needs to be reiterated that in an Election Petition, pleadings have to be
precise, specific and unambiguous, and if the Election Petition does not disclose a
cause of action, it is liable to be dismissed in limine. It may also be noted that the
cause of action in questioning the validity of election must relate to the grounds
specified in Section 100 of the RP Act. As held in Bhagwati Prasad Dixit
'Ghorewala' v. Rajeev Gandhi (1986) 4 SCC 78 : (AIR 1986 SC 1534) and in
Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (1987) Supp SCC 93 : (AIR 1987
SC 1577)., if the allegations contained in the petition do not set out the grounds as
contemplated by Section 100 and do not conform to the requirement of Section 81
and 83 of the Act, the pleadings are liable to be struck off and the Election Petition
is liable to be rejected under Order VII, Rule 11 CPC.
14. .......A beneficial reference of the decision in case of Laxmi Narayan Nayak v.
Ramratan Chaturvedi and Others ((1990) 2 SCC 173: (AIR 1991 SC 2001)) be also
made, wherein this Court upon review of the earlier decisions, laid down following
principles applicable to election cases involving corrupt practices:
"5. This Court in a catena of decisions has laid down the principles as to the
nature of pleadings in election cases, the sum and substance of which being:
(1) The pleadings of the election petitioner in his petition should be absolutely
precise and clear containing all necessary details and particulars as required by
law ...
(2) The allegations in the election petition should not be vague, general in
nature or lacking of materials or frivolous or vexatious because the court is
empowered at any stage of the proceedings to strike down or delete pleadings which
are suffering from such vices as not raising any triable issue vide ... .
(3) The evidence adduced in support of the pleadings should be of such nature
leading to an irresistible conclusion or unimpeachable result that the allegations
made, have been committed rendering the election void under Section 100 ....
(4) The evidence produced before the court in support of the pleadings must be
clear, cogent, satisfactory, credible and positive and also should stand the test of
strict and scrupulous scrutiny vide ....
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(5) It is unsafe in an election case to accept oral evidence at its face value
without looking for assurances for some surer circumstances or unimpeachable
documents vide ....
(6) The onus of proof of the allegations made in the election petition is
undoubtedly on the person who assails an election which has been concluded vide
...."
15. The legal position with regard to the non-compliance of the requirement of Section
83(1)(a) of the RP Act and the rejection of Election Petition under Order VII Rule
11, CPC has also been regurgitated recently by this Court in case of Kanimozhi
Karunanidhi v. A. Santhana Kumar and Others (2023 SCC Online SC 573: (AIR
2023 SC 2366):
"28. The legal position enunciated in afore stated cases may be summed up as under:
i. Section 83(1)(a) of RP Act, 1951 mandates that an Election petition shall
contain a concise statement of material facts on which the petitioner relies. If
material facts are not stated in an Election petition, the same is liable to be
dismissed on that ground alone, as the case would be covered by Clause (a) of Rule
11 of Order 7 of the Code.
ii. The material facts must be such facts as would afford a basis for the allegations
made in the petition and would constitute the cause of action, that is every fact which
it would be necessary for the plaintiff/petitioner to prove, if traversed in order to
support his right to the judgment of court. Omission of a single material fact would
lead to an incomplete cause of action and the statement of plaint would become
bad.
iii. Material facts mean the entire bundle of facts which would constitute a
complete cause of action. Material facts would include positive statement of facts
as also positive averment of a negative fact, if necessary.
iv. In order to get an election declared as void under Section 100(1)(d)(iv) of the
RP Act, the Election petitioner must aver that on account of non-compliance with
the provisions of the Constitution or of the Act or any rules or orders made under
the Act, the result of the election, in so far as it concerned the returned candidate,
was materially affected.
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v. 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 it as a handle for vexatious
purpose.
vi. An Election petition can be summarily dismissed on the omission of a single
material fact leading to an incomplete cause of action, or omission to contain a
concise statement of material facts on which the petitioner relies for establishing a
cause of action, in exercise of the powers under Clause (a) of Rule 11 of Order VII
CPC read with the mandatory requirements enjoined by Section 83 of the RP Act."
(emphasis supplied)
17. Applying the aforesaid principles, Mr. Karande submitted that the present
Petition would have to be rejected since the Petition was entirely lacking
in the following material particulars, facts and pleadings: (i) actual
knowledge on the part of the Applicant regarding the pendency of the cases
alleged to have been suppressed; (ii) absence of any averment that such
cases were of a heinous nature, involved moral turpitude, or constituted
serious offences so as to mandate disclosure; (iii) no pleading as to how
any electoral right was interfered with or how the voters were influenced
by such alleged suppression so as to constitute undue influence under the
provisions of Section 123(2) of the R.P. Act; (iv) the date on which
cognisance was taken in the alleged cases so as to attribute knowledge to
the Applicant; (v) the documents relied upon by the Petitioner, in fact,
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demonstrated that the Applicant had no knowledge of the filing of the
chargesheet in FIR No. 569/2022; (vi) no pleading identifying which
specific provision of law was violated and, crucially, (vii) how the result
of the election, insofar as it concerns the Applicant, was materially affected
by the alleged suppression.
18. Mr. Karande then took pains to point out that the Applicant had disclosed
as many as twenty cases in the Affidavit in Form 26 attached to the
Applicants nomination form and had therefore made a substantial
disclosure of the Applicant's antecedents. He submitted that information
which the Petitioner alleged was suppressed pertained to minor offences
which could not have in any manner affected the free exercise of electoral
rights. In support of his contention, he placed reliance upon the decisions
in the case of Ravi Namboothiri v. K.A. Baiju9 and Satish Mahadeorao
Uke v. Devendra Gangadhar Fadnavis10 to submit that non-disclosure of
minor and trivial offences does not vitiate an election or the result thereof.
AIR OnLine 2022 SC 883.
2016 (2) MhLJ 613.
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7-AEP-12766-2025
Basis above, he submitted that the Interim Application ought to be allowed.
Submissions on behalf of the Petitioner:
19. Mr. Ghogare, Learned Counsel appearing for the Petitioner, at the outset
submitted that the Election Petition as filed was fully compliant with the
provisions of the R.P. Act and that all the grounds raised by the Applicant
seeking dismissal of the Election Petition were entirely misconceived and
devoid of merit. He thus submitted that the Election Petition would have to
be heard and decided on merits.
20. Mr. Ghogare, then, in dealing with the Applicants' contentions, submitted
as follows:
I. Personal Presentation
21. Mr. Ghogare at the outset submitted that the contention that the Petition
was not presented personally by the Petitioner but was presented by the
Petitioner's advocate was ex facie untenable since the Office Note dated 6th
January 2025, issued by the Assistant Prothonotary and Senior Master
(Judicial), specifically recorded the personal presence of the Petitioner. Mr.
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Ghogare thus submitted that it was beyond the pale of doubt that the
Petition was presented by the Petitioner and not the Petitioner's Advocate.
22. Mr. Ghogare then pointed out that the Office Note dated 6th January 2025
also contained directions to accept the payment of the Rs 2,000, which he
submitted was in accordance with Rule 25 of the Rules framed by the
Bombay High Court in regard to the Election Petitions under the
Representation of the People Act, 1951 ("the Election Rules"). He thus
submitted that the contention that the security deposit of Rs. 2,000 was
made by the Petitioner's Advocate and not the Petitioner was also plainly
untenable since the Petitioner had personally withdrawn the amount of Rs.
2,000 from the Petitioner's savings account through an ATM (ATM ID No.
SB033102), as was evidenced by the ATM withdrawal slip and bank
statement of the Petitioner, produced as Exhibits B and C to the Petitioner's
Affidavit in Reply. He also pointed out that the Petitioner's advocate had
filed a praecipe for deposit of the amount as per the established practice of
this Court on the Original Side in which it was specifically requested that
the deposit certificate be issued in favour of the Petitioner. In these facts
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he submitted, it could not be suggested that the Petitioner had not
personally presented the Petition or had not personally deposited the
security for costs and hence the decision in G. Sreerama Reddy would not
apply.
23. Mr. Ghogare also submitted that the issue of personal presentation, being
a disputed question of fact, cannot be adjudicated at the stage of Order VII
Rule 11 of the Code of Civil Procedure, 1908 ("CPC"), since the Court
must proceed on the basis of a demurrer and is not required to conduct a
mini-trial. In support of his contention, he placed reliance upon the decision
of the Hon'ble Supreme Court in the case of Tarun Prasad Chatterjee v.
Dinanath Sharma11.
II. Limitation and Compliance within Time
24. Mr. Ghogare then, with regard to the three office objections raised, pointed
out that the concise statement of material facts formed an integral part of
the Election Petition itself, as was evident from paragraphs 37 to 43 of the
Petition and thus the objection in this regard was untenable. He also pointed
AIR 2001 SC 36.
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7-AEP-12766-2025
out that Section 83 of the R.P. Act does not require the filing of a separate
concise statement of material facts but only mandates that the material facts
must be pleaded in the Petition, which requirement he submitted had been
fully complied with.
25. Mr. Ghoghare submitted that the statutory Affidavit required to be filled
under Section 83 of the R.P. Act was in fact annexed to the Petition at the
time of its presentation, but since it did not expressly refer to Section 83,
the confusion possibly arose. He invited my attention to the said Affidavit,
as annexed to the Petition, to point out that it was dated 3rd January 2025
and was titled "Form 25 Affidavit", and when this was pointed out to the
Registry, the objection was withdrawn. He also pointed out, from the
payment receipt annexed at Exhibit D to the reply, that the security deposit
was made on 6th January 2025, which was within the prescribed period of
limitation and, hence, within time.
26. On the aspect of limitation, Mr. Ghogare submitted that since the election
results were declared on 23rd November 2024, by virtue of Section 9 of the
General Clauses Act, 1897, the said date would have to be excluded while
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7-AEP-12766-2025
computing limitation. He thus submitted that the forty five-day period
under Section 81(1) of the R.P. Act would therefore commence on 24th
November 2024 and expire on 7th January 2025. He submitted that since
the Petition was presented before that date, i.e., on 4th January 2025, the
Petition was well within limitation.
27. Mr. Ghogare then took pains to point out that when the Petition was
presented on 4th January 2025, no objections were raised. He submitted that
the objections regarding the statutory affidavit, concise statement of facts
and the security deposit receipt were raised only on 6th January, 2025, and
were complied with on the same date. He submitted that since, the Registry
on 7th January 2025, raised further objections regarding pagination which
necessitated a fresh index to be filled, it was only this which was done in
the morning, following which the Petition was registered. He submitted
that the date of registration, i.e., 8th January 2025, was purely
administrative and had no bearing on limitation since limitation ceases to
run upon the presentation of a Petition which he submitted was the 4th of
January 2025. He submitted that the interpretation advanced by the
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Applicant, equating registration with presentation, was contrary to settled
legal principles.
III. Supply of Attested Copy
28. Mr. Ghogare submitted that the Applicant's contention that the copy of the
Petition which had been served upon the Applicant was not attested in
accordance with the provisions of Section 81(3) of the R.P. Act was wholly
baseless and one of desperation. He first pointed out that the Registry had
not raised any objection in this regard. He then submitted that the
signatures appearing on the first three pages and all other pages of the
Petition were those of the Petitioner and thus the copy served upon the
Applicant was duly attested in accordance with the provisions of Section
81(3) of the R.P. Act. In any event, he submitted that the allegations of
non-attestation and mismatch of signatures were disputed questions of fact
and would require parties to lead evidence. He placed reliance upon the
decisions in Tarun Prasad Chatterjee v. Dinanath Sharma, Ritaben
Ketankumar Patel v. Election Commission of India12, and M.
[Gujarat High Court] Order dated 20th September 2024 in Election Application No. 3 of 2024.
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Karunanidhi v. Dr. H.V. Hande13 to point out that where there is
substantial compliance with the statutory requirements and the objections
were merely technical, rejection under Section 86(1) of the R.P. Act was
not warranted.
IV. Payment of Security Deposit under Section 117(1)
29. Mr. Ghogare submitted that the difference between the date of
presentation, i.e., 4th January 2025, and the date of deposit of the Rs 2,000,
i.e., 6th January 2025, arose because 5th January 2025 was a Sunday, on
which the Registry was closed. Consequently, the Petitioner deposited the
amount of Rs. 2,000 on the next working day. He submitted that the deposit
was made in strict compliance with the Rules as also with Rule 39 and 365
of the Bombay High Court (Original Side) Rules ("BHC Rules"). He
pointed out that Rule 25 mandates payment of security deposit in cash
during office hours, and Rule 365 stipulates that cash deposits are not
accepted after 12:00 p.m. on Saturdays. He submitted that the deposit,
having been made on 6th January 2025, was in accordance with these Rules
(1983) 2 SCC 473.
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and, therefore, in compliance with the provisions of Section 117 of the R.P.
Act.
30. Lastly, he submitted that under Rule 52 of the BHC Rules, once a party is
represented by an Advocate, the party is not entitled to act or appear
personally in the matter. Therefore, the issuance of the receipt in the name
of the Advocate is merely procedural and does not imply that the Petitioner
failed to personally deposit the amount.
V. Cause of Action and Material Particulars
31. Mr Ghogare submitted that the Election Petition fully disclosed a cause of
action since the Petitioner had specifically and in detail pleaded the non-
disclosure of the criminal cases by the Applicant in his nomination form
filed under Section 33A(1)(i) of the R.P. Act.
32. He submitted that the Petition specifically set out that charges had been
framed against the Applicant in the relevant criminal cases and that the
Applicant had full knowledge of the pendency of these cases and of the
statutory obligations to disclose the same in his nomination form. He
submitted that the deliberate suppression of this information constituted
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corrupt practice under Section 123(2) of the R.P. Act. He submitted that
this fact distinguished the present case from Satish Mahadeorao Uke v.
Devendra Gangadhar Fadnavis, in which the Petition had entirely failed
to plead that charges had been framed against the candidate.
33. He then submitted that at the Order VII Rule 11 stage, the Court is required
to read the Election Petition as a whole, and if any ground disclosed by the
Petition justified its continuance, the Petition could not be rejected in
limine. He pointed out that the standard at this stage was not proof of
allegations but only whether a cause of action was disclosed. In support of
this contention, he placed reliance upon the decisions in the case of Tarun
Prasad Chatterjee v. Dinanath Sharma and Ritaben Ketankumar Patel v.
Election Commission of India.
34. Mr. Ghogare, in these circumstances, prayed that the Application be
dismissed and that the Election Petition be tried on its merits.
Reasons and Conclusions:
35. Having heard Learned Counsel for the parties, perused the contents of the
Petition and the relevant provisions of the R.P. Act, as also the case law
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upon which reliance was placed, I find that the Application would have to
be allowed. I say so for the following reasons:
A. Section 86(1) of the R.P. Act mandates the dismissal of an Election
Petition which is not in compliance with the provisions of Sections
81, 82 or 117 of the R.P. Act. Thus, if an Election Petition is found
not to be in compliance with any of these Sections, the Court has no
option but to dismiss the same, since under Section 86(1) there is no
discretion vested in the Court to do otherwise. Section 117 of the
R.P. Act mandates that the security for costs shall be deposited by
the Petitioner at the time of presentation of the Election Petition.
Thus, an Election Petition which is presented without the deposit for
security cannot be said to have been validly presented as per Section
117 of the R.P. Act.
B. Crucially, the Applicant has, in the Affidavit in Reply, specifically
admitted that the deposit of security for costs was not made when
the Petition was presented, i.e., on 4th January 2025, but was made
two days later, i.e., on 6th January 2025, after objections were raised.
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Furthermore, and importantly, the Petitioner has, in the Affidavit in
Reply, not denied the Applicant's specific case that "the Petitioner
neither presented the Petition himself nor deposited the security for
costs himself...". Thus, plainly, the presentation of the Petition was
not in accordance with the provisions of Section 117 of the R.P. Act.
C. The Hon'ble Supreme Court has, in the case of Sitaram v. Radhye
Shyam Vishnav and Others, specifically held that failure to deposit
security for costs at the time of presentation of an Election Petition
is an incurable defect, even if the deposit is subsequently made
within the period of limitation. Hence, the said decision will squarely
apply to the facts of the present case.
D. The Petitioner's reliance upon Rule 25 of the Election Rules and
Rule 39 and 365 of the BHC Rules to justify payment of the security
on 6th January 2025 is entirely misplaced. Firstly, Rule 25 of the
Election Rules only provides for the mode of payment of security
for costs, i.e., in cash and nothing else, and Rule 365 only provides
for the timing to make a cash deposit. The said rules do not and
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cannot in any manner supplant the provisions of Section 117 of the
R.P. Act. Secondly, and crucially, as held in the case of Ashok s/o.
Tapiram Patil @ A. T. Nana Patil v. Dr. Gurumukh Mehrumal
Jagwani & Ors. an Election Petition must be presented as per the
provisions of the R.P. Act, and Rules framed by the High Court will
not prevail over the statutory provisions of the R.P. Act. The Hon'ble
Supreme Court has also held in the case of Satya Narain v. Dhuja
Ram and Ors.14 that the High Court Rules cannot confer upon the
Registry a power which is not specifically permitted under the
statute.
E. As already noted above, Section 117(1) expressly requires that the
Petitioner shall deposit the security for costs "at the time of
presenting" the Election Petition, which admittedly was on 4th
January 2025. The language of Section 117 of the R.P. Act makes
the security for costs contemporaneous, if not a condition precedent,
to the presentation of an Election Petition. Therefore, the
(1974) 4 SCC 237.
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requirement to deposit security for costs is not procedural but
mandatory. The Petitioner, having chosen to present an Election
Petition which, on the face of it, was not in accordance with the
mandatory provisions of Section 117 of the R.P. Act, must therefore
face the consequences of presenting such a defective Petition.
F. Also, in my view, the Petition is liable to be rejected under the
provisions of Order VII Rule 11 of the CPC, in light of the decisions
of the Hon'ble Supreme Court in the case of Karim Uddin
Barbhuiya v. Aminul Haque Laskar and Anil Vasudev Salgaonkar
v. Naresh Kushali Shirgaonkar since the Petition is entirely lacking
in the following material particulars, facts and pleadings with regard
to: (i) absence of any averment that such cases were of a heinous
nature, involved moral turpitude, or constituted serious offences so
as to mandate disclosure; (ii) no pleading as to how any electoral
right was interfered with or how the voters were influenced by such
alleged suppression so as to constitute undue influence under the
provisions of Section 123(2) of the R.P. Act; and, crucially, (iii) no
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averment on how the result of the election, insofar as it concerns the
Applicant, was materially affected by the alleged suppression.
G. Additionally, and crucially, the Applicant has disclosed as many as
20 pending criminal cases in the Affidavit annexed to his nomination
form. As held by this Court in the case of Satish Mahadeorao Uke
v. Devendra Gangadhar Fadnavis, mere non-disclosure of
information in Form 26 of the nomination form for election, does
not ipso facto vitiate an election unless the Election Petitioner
specifically pleads and establishes (i) deliberate and intentional
suppression, (ii) materiality of the information, and (iii) that such
suppression materially affected the result of the election within the
meaning of Section 100 of the Representation of the People Act,
1951. Hence, as already noted, in paragraph (F) above, the Petition
is lacking in the material facts as required under Section 83 of the
R.P. Act and is liable to be rejected at the threshold under Order VII
Rule 11 CPC and Section 86 of the Act.
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36. In light of the aforesaid reasons, I pass the following order:
a. The captioned Application is allowed and the Election Petition is
accordingly rejected.
b. There shall be no order as to costs.
[ARIF S. DOCTOR, J.]
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